[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Adams, Slip Opinion No. 2015-Ohio-3954.]




                                        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-3954
              THE STATE OF OHIO, APPELLEE, v. ADAMS, APPELLANT.
     [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Adams, Slip Opinion No. 2015-Ohio-3954.]
Criminal Law—Aggravated murder—R.C. 2929.05(A)—Independent review of
          sufficiency of the evidence supporting R.C. 2929.04(A)(7) capital
          specification—Multiple predicate offenses—Lack of proof as to one of the
          alternative means to establish aggravating circumstance—Death penalty
          vacated and resentencing ordered.
      (No. 2011-1978—Submitted March 11, 2014—Decided October 1, 2015.)
              APPEAL from the Court of Appeals for Mahoning County,
                          No. 08 MA 246, 2011-Ohio-5361.
                                  ________________
                              SYLLABUS OF THE COURT
1.        The predicate offenses listed in the R.C. 2929.04(A)(7) capital
          specification are “alternative means” of establishing that an offense of
          aggravated murder meets the criteria for imposing a death sentence.
                             SUPREME COURT OF OHIO




2.   To find that the R.C. 2929.04(A)(7) specification has been proved when
     more than one predicate offense is alleged, the jury must unanimously find
     beyond a reasonable doubt that the defendant committed aggravated
     murder during the course of one or more of the alleged predicate offenses,
     but the jury need not unanimously agree on which predicate offense was
     committed.
3.   In an appeal of a death sentence based on an R.C. 2929.04(A)(7)
     specification when more than one predicate offense is alleged but the jury
     has not made a finding as to which predicate offense was committed, a
     reviewing court must determine under R.C. 2929.05(A) whether there is
     sufficient evidence to support each of the alternative predicate-offense
     theories. The appellate court must determine whether a rational trier of
     fact could have found each means of committing the crime of aggravated
     murder in the course of the alleged R.C. 2929.04(A)(7) predicate offenses
     proved beyond a reasonable doubt.
4.   When an appellate court reviews the sufficiency of the evidence pursuant
     to R.C. 2929.05(A) as to the R.C. 2929.04(A)(7) aggravating circumstance
     in an aggravated-murder case in which more than one predicate offense is
     alleged but the jury has not made a finding as to which predicate offense
     was committed and determines that the state proved some but not all of the
     alleged   alternative    means   that   could   establish   the   aggravating
     circumstance, the evidence is, as a matter of law, insufficient to support a
     death sentence and the death sentence must be vacated.
5.   When an appellate court reviews the sufficiency of the evidence to support
     a capital specification and determines that the evidence is, as a matter of
     law, insufficient to support a death sentence and vacates the death
     sentence, the state is barred by the Double Jeopardy Clause of the United
     States Constitution from seeking the death penalty on remand.




                                       2
                               January Term, 2015




         O’CONNOR, C.J.
         {¶ 1} This is an appeal as of right from a judgment affirming an
aggravated-murder conviction and death sentence. A Mahoning County jury
convicted appellant, Bennie Adams, of aggravated murder in connection with the
rape and murder of Gina Tenney and unanimously recommended a sentence of
death.    The trial court accepted the recommendation and sentenced Adams
accordingly. The Seventh District Court of Appeals affirmed the conviction and
sentence.
         {¶ 2} Although we affirm the conviction for aggravated murder, we vacate
the sentence of death and remand the matter for resentencing in accordance with
this opinion.
                            RELEVANT BACKGROUND
The Evidence at Trial
         {¶ 3} The state called 18 witnesses to testify at trial.    The defense
presented no witnesses of its own but did recall and briefly question one of the
state’s witnesses. The evidence that follows was presented to the jury.
                          The burglary and the murder
         {¶ 4} In the autumn of 1985, Gina Tenney was a sophomore at
Youngstown State University. She lived alone in a second-floor apartment in a
converted house on Ohio Avenue in Youngstown.
         {¶ 5} Adams lived in the same house in a downstairs apartment with his
girlfriend, Adena Fedelia. The duplex had an interior common staircase.
         {¶ 6} Around 1:00 a.m. on December 25, 1985, Tenney was getting ready
for bed when, as she told a friend, she “heard someone at the door with the keys
like they were trying to get in.” Tenney called her ex-boyfriend, Mark Passarello,
who came and stayed with her until about 3:00 a.m. on Christmas morning.
         {¶ 7} Shortly after Passarello left, Tenney again heard someone at her
door. The person knocked over the chair Tenney had placed against the door and




                                        3
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entered the apartment. Tenney called the police to report an intruder in her
apartment. The responding police officers found footprints in the snow leading
from her apartment to 275 West Dennick Avenue in Youngstown.
          {¶ 8} The investigation was assigned to Detective William Blanchard of
the Youngstown Police Department. On December 26, 1985, Blanchard met with
Tenney at her apartment. Looking at her apartment door, Blanchard saw “slight”
but “noticeable” evidence of a forced entry.
          {¶ 9} Blanchard followed up on the report of footprints by traveling to 275
West Dennick and interviewing a resident there, Ed Tragesser. Tragesser claimed
to know nothing about the break-in. Blanchard testified that Tragesser was never
ruled out as the burglar but that there was no evidence to sustain charging him
with any crime. Blanchard, however, suspected that Adams may have been the
burglar based on what Tenney had told him.
          {¶ 10} Tenney’s friend, Penny Sergeff, also suspected that Adams was the
burglar.
          {¶ 11} According to Sergeff, the outside door to Tenney’s building made a
loud screeching noise when it was opened or closed. But Tenney had not heard
the door screech the night of the burglary, which suggested to Sergeff that the
burglar had not come from outside the apartment building. Sergeff shared the
information about the screeching door with the police, but never explicitly
communicated her suspicions about Adams at the time she initially spoke to the
police.
          {¶ 12} Less than a week after the break-in, on the morning of December
30, 1985, Tenney’s dead body was discovered in the Mahoning River. Upon
identifying Tenney’s body, homicide detectives called Blanchard into the
investigation.




                                           4
                               January Term, 2015




                      The investigation and arrest of Adams
       {¶ 13} From the outset, Blanchard considered Adams a person of interest
in the homicide.
       {¶ 14} Blanchard and two homicide detectives traveled to the duplex on
Ohio Avenue. They knocked on the exterior door for “a number of minutes” until
Adams emerged from his apartment and admitted them into the common area.
       {¶ 15} Upstairs, the police officers found the door to Tenney’s apartment
locked. They observed no blood on the steps. Blanchard saw no new evidence of
forced entry.
       {¶ 16} The investigators decided to call the building’s owner for the key to
Tenney’s apartment.     They then knocked on Adams’s apartment door for
permission to use his telephone; Adams let them in.
       {¶ 17} While one detective placed the call, Blanchard and Lieutenant
David Campana talked to Adams, asking him when he had last seen Tenney,
whether anything suspicious had been happening lately, whether anybody else
was around who might know something, and whether he was alone. Adams
indicated that he was alone in the apartment and told detectives that he did not
know where Tenney might be.
       {¶ 18} Just then, the detectives heard a loud bump, a sound like a door
hitting a wall. Adams then said, “I never said he wasn’t here” or words to that
effect. Blanchard and Campana went into a back bedroom, where they found
Horace Landers hiding behind a door.
       {¶ 19} Campana recognized Landers and remembered that there was an
outstanding misdemeanor warrant for him. Campana and Blanchard immediately
arrested Landers and handcuffed him.
       {¶ 20} Landers was wearing trousers, but was bare-chested. Knowing that
they would have to take him outside into the cold, Blanchard looked around and
saw a shirt on the bed, which he draped over Landers’s shoulders. But Blanchard




                                        5
                             SUPREME COURT OF OHIO




thought that he should put something else on Landers. He saw a jacket on the
floor three or four feet away, just outside the door to the bedroom where they had
found Landers.
       {¶ 21} As Blanchard searched the jacket for weapons, Landers told him
that the jacket belonged to Adams. Simultaneously, Blanchard felt a hard object
in the pocket and pulled it out. The object was an ATM card from Dollar Bank
bearing the name Gina Tenney. Blanchard testified that he also found a folded
Mahoning County welfare card in the name of Bennie Adams in the pocket.
       {¶ 22} The police officers immediately arrested Adams.          When they
searched him, they found a blue tissue in his pants pocket with two cigarette butts
wrapped up in it.
       {¶ 23} Fedelia, whose name was on the lease, consented to a search of the
apartment she shared with Adams. In a bathroom wastepaper basket, police
officers found a ring of ten keys with the letter G on the keychain. One of the
keys fit Tenney’s apartment door and another key fit her automobile.
       {¶ 24} In the kitchen, Blanchard found a potholder with hair and dirt on it
in a wastebasket.    Police officers later found a matching potholder atop the
refrigerator in Tenney’s apartment.
       {¶ 25} Police officers also found an unplugged television on a bed in
Adams’s apartment. The serial number on the television matched the number on
an empty television box later discovered in Tenney’s apartment. A wall unit in
Tenney’s apartment contained an empty space for a television, and a cable-
television line dangled in the space.
       {¶ 26} In Tenney’s apartment, Blanchard saw no broken glass, broken
furniture, or other indication that the home had been ransacked. A plate of food
and a beer bottle were on the kitchen table. At trial, Blanchard claimed a “vague
recollection” of “some disarray,” but could not recall what he had observed. His




                                        6
                               January Term, 2015




contemporaneous investigative notes did not mention disarray or overturned
furniture.
         {¶ 27} Tenney’s friends told police investigators that Adams had been
bothering Tenney for some time before her death. Sergeff and Marvin Robinson,
another one of Tenney’s friends, testified that when they visited Tenney, Adams
often stood in his doorway watching them or peeked out through the curtains.
According to Robinson and Sergeff, Adams started calling Tenney late at night,
asking her to invite him up to her apartment. The calls continued even after
Tenney asked him to stop, and Tenney eventually changed her telephone number.
         {¶ 28} Robinson also described an incident in which someone slipped a
card in an envelope under Tenney’s back door addressed “to a very sweet and
confused young lady” and signed “love, Bennie.”         Police officers found the
envelope in Tenney’s apartment but did not find the card.
         {¶ 29} According to her friends, after the Christmas break-in Tenney’s
emotional state changed from frustration with Adams to fear of him. For the next
few nights, she asked a friend to stay over because she was afraid to be alone.
Sergeff testified that Tenney specifically had said that she was afraid of Adams, a
detail Sergeff did not include in her police statement given shortly after Tenney’s
death.
         {¶ 30} At trial, Tenney’s friends described their interactions with her
during the last two days of her life. Sergeff and Tenney spent the evening of
December 28, 1985, watching television in Tenney’s apartment. At some point,
Passarello, Tenney’s ex-boyfriend, came over, and Sergeff asked him to drive her
home. Passarello then returned to Tenney’s apartment. Passarello testified that
Tenney did not feel secure in the apartment. He stayed the night, and the two had
sexual relations.




                                        7
                            SUPREME COURT OF OHIO




       {¶ 31} Passarello left the next day after lunch and went home to his
apartment. Tenney left separately at the same time to meet a friend, Jeff Thomas,
for an early afternoon movie.
       {¶ 32} After the movie, Thomas and Tenney had dinner near the theater.
Thomas testified that they talked about work and school, but Tenney kept
bringing the conversation back to “the situation that was going on where she was
living.”   She told Thomas that she was very concerned about “the man
downstairs.” Thomas described her as “apprehensive” and “borderline fearful.”
Thomas and Tenney parted around 4:30 or 5:00 p.m.
       {¶ 33} Tenney’s mother, Avalon Tenney, testified that her daughter had
called her the day before she died and told her that she was afraid of Adams.
                          The identification of Adams
       {¶ 34} As part of the homicide investigation, detectives obtained Tenney’s
bank-account records from Dollar Bank. Her account records for December 29,
1985, showed six attempted transactions on her ATM card between 9:24 and 9:34
p.m.: three attempts to withdraw cash (all denied for insufficient funds), two
phony attempted deposits using empty deposit envelopes, and an unsuccessful
attempt to transfer funds between accounts.
       {¶ 35} Police officers questioned other bank customers whose ATM cards
were used at the same ATM machine around the same time as the attempted
transactions using Tenney’s card. One customer, John Allie, told police officers
that he saw a man at the ATM on the night in question.
       {¶ 36} On January 8, 1986, Blanchard brought John Allie and his wife,
Sandra Allie, who had also seen the man use the ATM, to the station to view an
in-person lineup.   There were six men in the lineup, including Adams and
Landers.   John Allie did not make an identification; Sandra Allie identified
Landers as the man she saw at the ATM.




                                        8
                                     January Term, 2015




         {¶ 37} At trial, John Allie testified that he had not identified anyone in the
lineup because he was not comfortable with the number of people in the room.
He also testified, “I told my wife, don’t say anything because we need to talk to
detective Blanchard. Don’t mention nothing to nobody.”
         {¶ 38} John Allie told the jury that he later telephoned Blanchard and said
that the man from the ATM was third from the left, which was the place where
Adams had stood in the lineup. John claimed that he returned to the police station
the next day, met with Blanchard, viewed a photo array of three pictures, and
made an identification of Adams.1
         {¶ 39} Sandra Allie testified at trial that she purposely made a false
identification at the lineup. She testified that on the way to the station that day,
John had expressed concern about putting her “in harm’s way.” When they
arrived, they were taken to an office with other people present and not to the dark
room that Sandra had been expecting. John then told her that “he didn’t like the
surroundings.” “He gave me like the signal,” Sandra testified. “When asked if I
could identify the person who was in the ATM I was just terrified, went to the
extreme opposite and identified a short, light-skinned person.”
         {¶ 40} Like her husband, Sandra Allie testified that she spoke to police
officers some time after the lineup to identify “the actual person,” but said that the
police officers did not request a statement about her misidentification at the first
lineup or call her back to view a second lineup.
         {¶ 41} At trial, the Allies both said that when they arrived at the bank that
night,2 they saw a man in the ATM vestibule who appeared not to know how to



1
  Blanchard testified at trial that he never met in person with John Allie after the lineup and that
John Allie never returned to view photographs.
2
  As previously noted, the bank’s records indicated that Tenney’s ATM card was used around 9:30
p.m., which in Youngstown in December would have been after nightfall. But John Allie insisted
that the encounter at the ATM occurred while it was still light outside.




                                                 9
                                SUPREME COURT OF OHIO




use the ATM. The man’s face was covered by a hood and scarf, so that only his
forehead, eyes, and the bridge of his nose were visible.
         {¶ 42} Sandra Allie described the man as a little taller than she is. John
Allie agreed that the man was “about medium height.”3
         {¶ 43} At trial, Sandra Allie viewed a photograph of the six-man lineup
and testified that person Number 3 (Adams) was the man at the ATM. John Allie
also identified Adams.
         {¶ 44} John Allie testified that when the man came out of the ATM
vestibule, he stood in front of the Allies’ car and waved: “He put his hands—
palms on the hood of my car and stood back, looked at me. I looked at him. He
waved.     I waved.”       John recognized Adams from seeing him around the
neighborhood, even though he did not know Adams’s name at the time.
         {¶ 45} When the man started the car he was driving, John Allie heard it
make an unusual sound. John testified that the vehicle was a Buick and identified
it from photographs as Tenney’s car. When John came to the police station, he
correctly picked out Tenney’s car from the 15 or 20 he was shown. An officer
started the engine, and the car made the same sound that John had heard it make
at the bank.
                     The parole officer’s interviews with Adams
         {¶ 46} Adams’s former parole officer, William Soccorsy, testified that he
interviewed Adams twice after his 1985 arrest. The first time they spoke, on
December 30, 1985, Adams denied committing any crime and denied having any
knowledge that any crime had been committed.
         {¶ 47} On January 2, 1986, Soccorsy asked Adams about the ATM card.
According to Soccorsy, Adams admitted that the jacket in which the card was
found belonged to him. Soccorsy’s contemporaneous notes included a statement

3
 Sandra Allie is about five feet, five inches tall. Bennie Adams is six feet, two inches tall.
Horace Landers was five feet, eight inches tall.




                                             10
                                January Term, 2015




by Adams to the effect that he found the ATM card outside his building on the
front step at around 11:30 a.m. on December 30, 1985. Adams told Soccorsy that
he rang Tenney’s doorbell to return the card but she was not home, so he put the
card in his jacket pocket, intending to return it at some later time.
                               The autopsy of Tenney
       {¶ 48} On December 31, 1985, an autopsy of Tenney’s body was
performed under the supervision of Mahoning County Coroner Nathan D.
Belinky, M.D.
       {¶ 49} Dr. Belinky reported finding “ligature type contusion(s)” on the
neck, as well as “doubletrack ligature type contusions” around both wrists. There
were additional contusions and/or abrasions on both wrists, the abdomen and
chest, both breasts, and around the nose, lips, and chin. There was blood coming
from the right nostril.    Dr. Belinky concluded that the cause of death was
“traumatic asphyxiation,” and he ruled the death a homicide.
       {¶ 50} Dr. Belinky was deceased when the case first came to trial in 2008,
and the state called Dr. Humphrey Germaniuk as its expert forensic pathologist.
       {¶ 51} Dr. Germaniuk testified that he reviewed Dr. Belinky’s autopsy
report and the death certificate, as well as the videotape of the autopsy and
photographs of the body and the scene. The photographs showed a bruise or
contusion on the upper part of Tenney’s right lip and abrasions or contusions on
her chin, a faint ligature mark on Tenney’s neck (which Dr. Germaniuk described
as “superficial”), and ligature marks on her left and right wrists.
       {¶ 52} Dr. Germaniuk ruled out drowning as a cause of death based on the
absence of a “foam cone” around Tenney’s mouth. He concluded that the cause
of death was asphyxia and the manner of death was homicide.              But Dr.
Germaniuk took issue with the phrase “traumatic asphyxiation” in the autopsy
report, which he characterized as “somewhat inexact, somewhat incorrect.” He




                                          11
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would have described the cause of death as “asphyxia,” which simply means lack
of oxygen.
       {¶ 53} Dr. Germaniuk observed a bruise or contusion on the upper part of
Tenney’s right lip and abrasions or contusions on her chin.        Although Dr.
Germaniuk testified that the marks were consistent with smothering by means of a
hand or object placed over her face, he also testified that the marks could have
been caused by someone hitting her in the face. Dr. Germaniuk said that the
evidence of smothering was not significant enough for him to declare that the
cause of death with any reasonable medical certainty.
       {¶ 54} Likewise, Dr. Germaniuk testified that there was evidence of
ligature strangulation, including petechial hemorrhaging, but the ligature marks
did not break the skin. The injuries could have been caused by strangulation or by
being tied up, but Dr. Germaniuk could not say that ligature strangulation caused
Tenney’s death. Dr. Germaniuk testified that the cause of death was “probably”
some combination of smothering and/or ligature strangulation. Ultimately, Dr.
Germaniuk was unable to opine as to a cause of death that was more specific than
asphyxia.
       {¶ 55} The autopsy report listed the time of death as 11:15 p.m., based on
a test of Tenney’s vitreous potassium. But according to Dr. Germaniuk, vitreous
potassium is an inaccurate indicator of time of death and even in 1985, only the
“uninformed” would have used vitreous potassium to determine time of death.
Dr. Germaniuk explained that most other tests for time of death could not have
been employed, because Tenney’s body had been found in the frigid waters of the
Mahoning River.     And though the time of death could possibly have been
determined based on gastric emptying, i.e., by measuring the contents of the
stomach, in order to make a reasonable calculation one has to know the time of
the victim’s last meal. Assuming that Tenney last ate around 4:00 or 4:30 p.m.
(when she and Thomas had dinner after the movie), Dr. Germaniuk estimated the




                                       12
                               January Term, 2015




time of death as between 5:00 and 10:30 p.m. But if Tenney had eaten later, his
estimate of her time of death would have been different.
       {¶ 56} The prosecution in questioning Dr. Germaniuk noted several times
that police officers had found a telephone type of cord in the trunk of Tenney’s
car. The cord was one-half centimeter wide and had no weaving pattern. The
ligature marks were also one-half centimeter wide and showed no weave pattern.
According to Dr. Germaniuk, the cord could have been used to make the ligature
marks on Tenney’s neck and wrists, but because the cord was not different from
thousands of other cords, he was unable to definitively say that the cord in the
trunk was used on Tenney.
       {¶ 57} Dr. Germaniuk testified that the autopsy team did not examine the
body for signs of sexual trauma or assault.
                          DNA and fingerprint evidence
       {¶ 58} When Adams was arrested in late 1985, police officers obtained
samples of his pubic hair, saliva, and blood. Samples were also obtained from
Landers, Passarello, and Tenney, and semen was found on a vaginal swab taken
from Tenney. The samples from Adams, Landers, and Passarello were compared
to the samples taken from Tenney.
       {¶ 59} The semen on the swab came from a “type B nonsecretor.”
Passarello is a type A secretor, and Landers was a type B secretor. Thus, blood
testing in 1986 eliminated Passarello and Landers as the semen source.
       {¶ 60} Adams, however, is a type B nonsecretor. Four percent of African-
Americans are type B nonsecretors. Thus, the blood evidence at that time did not
definitively prove that Adams, an African-American, was the source of the
vaginal semen, but it placed him within the population of possible sources.
       {¶ 61} The potholder in Adams’s apartment contained hair from an
African-American and from a Caucasian with red hair, as well as pubic hair. Gina
Tenney was Caucasian and had red hair. The red hair and pubic hair were




                                        13
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consistent with Tenney’s.    The sample of African-American hair was small
fragments and was not sufficient for comparison purposes.
       {¶ 62} Police officers found fingerprints of evidentiary value only on the
television that was in Adams’s apartment. Investigators were able to lift nine
usable prints from the television. Four prints matched Adams’s. The other five
could not be matched to Tenney, Adams, or Landers.
       {¶ 63} Despite the suspicions that Adams may have been involved in
Tenney’s death, the investigation into Tenney’s death went cold in 1986. In
January 1986, Adams was charged with one count of receiving stolen property
based on the discovery of Tenney’s ATM card in his jacket pocket. The grand
jury, however, later declined to indict Adams on the stolen-property charge.
       {¶ 64} Police officers kept Adams in custody because he was a suspect in
a rape that had occurred in nearby Boardman, Ohio. In November 1986, Adams
was convicted in Mahoning County Common Pleas Court of kidnapping, rape,
and aggravated robbery in that case. He served almost 18 years in prison, and he
was released on parole on April 21, 2004.
                            The investigation resumes
       {¶ 65} In 2007, more than 20 years after Tenney’s death, the Ohio
attorney general invited police departments to submit cold-case evidence to the
Ohio Bureau of Criminal Identification and Investigation (“BCI”) laboratory for
DNA testing. The Youngstown police department submitted evidence from the
Tenney case.
       {¶ 66} The police department submitted Tenney’s underwear and vaginal
swab for DNA testing and submitted a fresh DNA sample from Passarello.
Because Tenney and Landers were both deceased, the department forwarded




                                        14
                                     January Term, 2015




samples from 1986 that were still on file. Police officers also took a fresh DNA
sample from Adams and submitted that to BCI.4
        {¶ 67} Based on the DNA analysis, Adams could not be excluded as the
source of the DNA on the vaginal swab or the underwear. The odds that the DNA
on the swab came from someone other than Adams were 1 in 38,730,000,000,000.
The odds that the DNA on the underwear came from someone other than Adams
were 1 in 63,490,000,000,000,000,000.
        {¶ 68} DNA analysis excluded Landers as the source of the DNA on the
swab and the underwear.
        {¶ 69} Passarello’s DNA was found on Tenney’s underwear, but his DNA
was not found in the vaginal-semen sample.
Procedural History
        {¶ 70} Almost three and one-half years after he was released on parole for
the Boardman rape and related convictions, police officers arrested Adams and
charged him with aggravated murder in connection with Tenney’s 1985 death.
        {¶ 71} On October 11, 2007, a grand jury returned a five-count indictment
that was later superseded by an indictment returned on October 17, 2007. Count
One charged Adams with aggravated felony murder (R.C. 2903.01(B)) with a
single death-penalty specification, that Tenney’s murder was committed in the
course of or immediately after committing or attempting to commit rape,
aggravated burglary, aggravated robbery, and kidnapping. R.C. 2929.04(A)(7).
Count Two charged Adams with rape (R.C. 2907.02(A)(2)), with a violent-
sexual-predator specification under R.C. 2941.148(A). The remaining counts of
the indictment set forth charges for aggravated burglary (R.C. 2911.11(A)),
aggravated robbery (R.C. 2911.01(A)), and kidnapping (R.C. 2905.01(A)).



4
  Blanchard testified at a pretrial hearing that police officers arrested Adams in October 2007 for
the express purpose of obtaining his DNA.




                                                15
                             SUPREME COURT OF OHIO




         {¶ 72} The trial court dismissed all counts but the aggravated-murder
charge on statute-of-limitations grounds, and the case proceeded to trial. After
hearing the evidence, the jury returned a guilty verdict on the aggravated-murder
charge and the accompanying capital specification.
         {¶ 73} Following the presentation of mitigation evidence, the jury returned
a recommendation of death. The trial court adopted the jury’s recommendation
and sentenced Adams to death.
         {¶ 74} Because this case involves a murder committed before January 1,
1995, Adams’s direct appeal was heard first by a court of appeals. See Ohio
Constitution, Article IV, Sections 2(B)(2)(c) and 3(B)(2); State v. Davis, 131
Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 12-14. The appellate court
affirmed the conviction and sentence. 7th Dist. Mahoning No. 08 MA 246, 2011-
Ohio-5361. Adams timely appealed to this court.
                                     ANALYSIS
         {¶ 75} Adams submits 21 propositions of law. We address them out of
order.
Pretrial Issues
                  Statute of limitations (Proposition of law XIII)
         {¶ 76} The trial court dismissed Counts Two through Five of the
indictment before trial based on the statute of limitations for those offenses that
was in effect when they allegedly were committed. Adams also sought dismissal
of the capital specification attached to Count One, the aggravated-murder charge,
on the theory that if the statute of limitations barred the state from proving the
predicate felonies, then it necessarily followed that the state could not present
evidence necessary to prove the specification based on those felonies. The trial
court disagreed because aggravated murder (R.C. 2903.01) has no limitations
period. R.C. 2901.13(A)(2).




                                         16
                                January Term, 2015




       {¶ 77} Adams argues that if the predicate felonies are time-barred, then
the aggravated murder-count based on those felonies must also be time-barred.
We do not agree.
       {¶ 78} As our appellate courts have recognized, aggravated felony murder
is a specific offense that is separate from the underlying felony, and the running
of the statute of limitations on the underlying felony does not extinguish the
aggravated-murder charge. See, e.g., State v. Stansberry, 8th Dist. Cuyahoga No.
78195, 2001 WL 755898, *3 (July 5, 2001) (conviction for aggravated murder in
the course of an aggravated robbery was not time-barred, even though underlying
charge of aggravated robbery was barred by statute of limitations); State v.
Brown, 12th Dist. Clermont No. CA89-09-079, 1990 WL 165121, *4-5 (Oct. 29,
1990) (same).      Similarly, our sister high courts have uniformly rejected the
argument that an aggravated-felony-murder prosecution is time-barred if the
predicate felonies are time-barred. See, e.g., State v. Dennison, 115 Wash.2d 609,
625-626, 801 P.2d 193 (1990); State v. Jones, 274 Ga. 287, 287-288, 553 S.E.2d
612 (2001); State v. Lacy, 187 Ariz. 340, 350, 929 P.2d 1288 (1996). See also
People v. Seals, 285 Mich.App. 1, 13-16, 776 N.W.2d 314 (2009); Jackson v.
State, 513 So.2d 1093, 1095 (Fla.App.1987).
       {¶ 79} R.C. 2901.13(A)(2) plainly states that there is no statute of
limitations for aggravated murder. We reject proposition of law XIII.
                   Speedy trial (Propositions of law V and XII)
       {¶ 80} A criminal defendant has a right to a speedy trial under the Ohio
Revised Code, the Ohio Constitution, and the Fifth and Sixth Amendments to the
United States Constitution. Before his trial, Adams timely moved for dismissal
based on alleged speedy-trial violations. The trial court denied the motion. In
propositions of law V and XII, Adams argues that the state violated his statutory
and constitutional rights to a speedy trial by prosecuting him in 2007 for a crime
committed in 1985.




                                        17
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                                Statutory speedy-trial rights
        {¶ 81} The Revised Code requires that a person against whom a felony
charge is pending shall be brought to trial within 270 days after the person’s
arrest. R.C. 2945.71(C)(2). Speedy-trial provisions are mandatory, and courts
must strictly enforce them. State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534,
863 N.E.2d 1032, ¶ 15; State v. Hughes, 86 Ohio St.3d 424, 427, 715 N.E.2d 540
(1999). If the defendant is not brought to trial in the allotted time, the trial court
must discharge the defendant upon a timely motion. R.C. 2945.73(B).5
        {¶ 82} Adams was arrested for Tenney’s murder on October 4, 2007.6 He
concedes that his speedy-trial clock tolled on October 29, 2007, as a result of his
counsel filing motions. It did not run after that because he later waived his
speedy-trial rights. Because Adams was incarcerated during the time between
October 4 and 29, 2007, he is entitled to triple-count the 24 days,7 see R.C.
2945.71(E), for a total of 72 days on the speedy-trial clock.
        {¶ 83} Adams asserts that his 2007 arrest for aggravated murder should
“relate back” to his 1985 arrest for receiving stolen property and that the time he
was incarcerated in 1985 and 1986 should also count for speedy-trial purposes.
We disagree.
        {¶ 84} A later indictment is not subject to the speedy-trial timetable of an
earlier indictment or arrest “when additional criminal charges arise from facts
different from the original charges, or the state did not know of these facts at the
time of the initial indictment” or earlier arrest. State v. Baker, 78 Ohio St.3d 108,
110, 676 N.E.2d 883 (1997). As noted above, Adams was never indicted on the
5
  These same speedy-trial statutes were in effect when Adams was arrested on December 30, 1985.
See State ex rel. Dix v. Angelotta, 18 Ohio St.3d 115, 116, 480 N.E.2d 407 (1985), fn. 1.
6
  Adams’s brief filed in this court states his date of arrest as October 3, 2007, while the state’s
brief states the date of arrest as October 4, 2007. Our review of the evidence in the record and of
Adams’s pretrial motion to dismiss causes us to accept October 4, 2007, as the date of arrest.
7
  The day of arrest does not count when computing speedy-trial time. State v. Nesser, 2d Dist.
Clark No. 2013 CA 21, 2014-Ohio-1978, ¶ 32; State v. Semenchuck, 8th Dist. Cuyahoga No.
90854, 2009-Ohio-465, ¶ 21.




                                                18
                                    January Term, 2015




charge of receiving stolen property. As the investigation progressed after his
initial arrest, the evidence against him consisted of his possession of Tenney’s
ATM card, television, and keys and the telephone call from John Allie to
Blanchard identifying Adams as the man at the ATM.8
        {¶ 85} The most probative evidence linking Adams to the murder was
unavailable to police officers at the time Adams was incarcerated after his 1985
arrest. Although investigators received the fingerprint analysis on January 29,
1986, and the lab report on the blood and semen samples, which excluded
Landers and Passarello but not Adams, was completed on February 5, 1986, the
key DNA test results were not available until after the investigation into the case
was reopened in 2007.
        {¶ 86} In the context here, we hold that the October 2007 murder
indictment does not relate back to 1985 or 1986 for purposes of statutory speedy-
trial analysis, because the evidence available in 2007 was not available at the time
of the arrest in 1985 or in 1986.               State v. Brown, 5th Dist. Stark No.
2007CA00129, 2008-Ohio-4087, ¶ 25 (later indictment did not relate back
because it “was based on evidence that was not available at the time of the
original charge”); State v. Burrell, 1st Dist. Hamilton No. C-030803, 2005-Ohio-
34, ¶ 13 (trial court did not err in failing to dismiss case because later indictment
was based on new facts). Therefore, the state did not violate Adams’s statutory
speedy-trial rights.
                            Constitutional speedy-trial rights
        {¶ 87} In the second part of proposition of law XII, Adams claims that the
state violated his constitutional right to a speedy trial under the Sixth Amendment

8
  The police also had a statement from Horace Landers implicating Adams. Landers told police
officers that around Thanksgiving in 1985, Adams had said that he had stolen Tenney’s keys,
intending to use them to enter her apartment and steal her belongings. Landers also claimed that
on the day he and Adams were arrested, he saw Adams wiping the common stairs to the second
floor with a potholder and that Adams gave him some keys with instructions to throw them in the
bathroom trash can. The statement was never admitted into evidence at trial.




                                              19
                             SUPREME COURT OF OHIO




to the United States Constitution and Article I, Section 10 of the Ohio
Constitution.
       {¶ 88} To determine whether a defendant has been deprived of these
constitutional speedy-trial rights, a court must balance four factors: (1) the length
of the delay, (2) the reason for the delay, (3) the defendant’s assertion of a
speedy-trial right, and (4) the prejudice to the defendant. State v. Selvage, 80
Ohio St.3d 465, 467, 687 N.E.2d 433 (1997); Barker v. Wingo, 407 U.S. 514, 530,
92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
       {¶ 89} But before engaging in any balancing test under Selvage and
Barker, the court must make a threshold determination concerning the length of
delay. “ ‘Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the balance.’ ” (Emphasis
sic.) State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 23,
quoting Barker at 530. Thus, length of delay serves as a triggering mechanism for
the rest of the Barker analysis. Selvage at 467; Barker at 530.
       {¶ 90} A delay becomes presumptively prejudicial as it approaches one
year in length. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120
L.Ed.2d 520 (1992), fn. 1. The crux of Adams’s constitutional argument is that
the length of delay in his case was 22 years: the time between his initial arrest in
1985 and his indictment in 2007. But for constitutional speedy-trial-analysis
purposes, most of that time does not count.
       {¶ 91} When the government no longer holds a defendant under arrest or
bail for a charge, the Speedy Trial Clause of the Sixth Amendment does not apply
until the government rearrests or later indicts the defendant. United States v.
Loud Hawk, 474 U.S. 302, 310-312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986); see
also State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 65
(when calculating length of delay under Barker, two-year period between
dismissal of murder charge and reindictment on same charge does not count).




                                         20
                                January Term, 2015




The grand jury returned a “no bill” on the charge against Adams in May 1986,
which halted the constitutional clock until his arrest in 2007.
        {¶ 92} Adams argues that our decision in State v. Meeker, 26 Ohio St.2d
9, 268 N.E.2d 589 (1971), dictates a different result. The defendant in Meeker
pleaded guilty to robbery in 1963. Id. at 10. Almost six years later, the common
pleas court granted his motions to vacate the sentence and for a new trial. Id. The
grand jury then indicted Meeker on four counts, including armed robbery and
theft of a motor vehicle, all arising out of the same events as the original robbery
charge. Id. at 10-11. We held that the speedy-trial clock began to run on all of
the offenses when the state elected to charge Meeker only with robbery in 1963.
Id. at 18.
        {¶ 93} Meeker applies only when a defendant is subject to an official
prosecution for at least one related offense. See, e.g., Selvage, 80 Ohio St.3d at
466, 687 N.E.2d 433, fn. 1 (speedy-trial clock began to run when officer filed
criminal complaint). The critical fact in Meeker that distinguishes it from the
present case is that Meeker was in confinement during the entire six-year period
for the earlier conviction. This was the basis on which we distinguished Meeker
in State v. Luck, 15 Ohio St.3d 150, 153, 472 N.E.2d 1097 (1984): although 16
years passed between the crime and the indictment of Luck, Luck was never
previously subject to arrest or indictment, and therefore his speedy-trial rights
were never implicated and his speedy-trial clock did not begin to run before his
indictment.
        {¶ 94} Although Adams was incarcerated for much of the 22 years for the
Boardman rape and related offenses, he was not subject to official prosecution or
detention for crimes relating to Tenney after the grand jury declined to indict him
in 1986. The clock began to run again only upon his 2007 arrest for Tenney’s
murder. Doggett, 505 U.S. at 655, 112 S.Ct. 2686, 120 L.Ed.2d 520; United
States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (Sixth




                                         21
                              SUPREME COURT OF OHIO




Amendment’s Speedy Trial Clause does not apply prior to arrest, indictment, or
other official accusation).
       {¶ 95} Thus, for constitutional speedy-trial purposes, the only time we
count is the period from Adams’s arrest on December 30, 1985, to the grand
jury’s issuance of a “no bill” in May 1986, plus his 24 days of incarceration in
October 2007. We hold that this period was not “presumptively prejudicial,” and
we therefore do not need to reach the other elements of the Barker inquiry.
                                Preindictment delay
       {¶ 96} In proposition of law V, Adams claims that the delay in
commencing his prosecution violated his constitutional rights of due process.
       {¶ 97} The Due Process Clause of the Fifth Amendment provides limited
protection against preindictment delay. United States v. Lovasco, 431 U.S. 783,
789-790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Marion, 404 U.S. at 324-325, 92
S.Ct. 455, 30 L.Ed.2d 468.       We have recognized a comparable due-process
protection under Article I, Section 16 of the Ohio Constitution. Luck, 15 Ohio
St.3d 150, 472 N.E.2d 1097, at paragraph two of the syllabus. See State v. Walls,
96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 51-52.
       {¶ 98} A     defendant   alleging    a   due-process   violation   based   on
preindictment delay must present evidence establishing substantial prejudice to
his right to a fair trial. United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997);
Walls at ¶ 51. Unlike a Sixth Amendment speedy-trial claim, no presumption of
prejudice arises in the due-process context when a preindictment delay exceeds a
particular length of time. United States v. Schaffer, 586 F.3d 414, 425 (6th
Cir.2009). But a delay in commencing prosecution is not justified when the state
uses the delay to gain a tactical advantage or through negligence or error ceases
its investigation and then later, without new evidence, decides to prosecute.
Marion at 324; Luck at 158.




                                           22
                                January Term, 2015




       {¶ 99} We have held that if the defendant makes a preliminary showing of
substantial prejudice, then the burden shifts to the state to present evidence of a
justifiable reason for the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702
N.E.2d 1199 (1998); Walls at 452-453. Some courts, including the Sixth Circuit,
have held that under the Fifth Amendment, the defendant retains the burden of
proof at all times and must affirmatively demonstrate both substantial prejudice to
his right to a fair trial and that the delay was an intentional device by the
government to gain a tactical advantage. See Schaffer at 424.
       {¶ 100} The burden upon a defendant seeking to prove that preindictment
delay violated due process is “ ‘nearly insurmountable,’ ” especially because
proof of prejudice is always speculative. United States v. Montgomery, 491
Fed.Appx. 683, 691 (6th Cir.2012), quoting Rogers at 477, fn.10.
       {¶ 101} Adams has failed to demonstrate substantial prejudice. Indeed,
we find no evidence in the record that Adams was prejudiced by the passage of
time prior to indictment. His claim thus fails to set forth a violation of the federal
or Ohio Constitutions.
       {¶ 102} At the hearing on the dismissal motion, Blanchard testified that
Horace Landers died in May 1988. Adams points to the death of this witness as
evidence of prejudice.
       {¶ 103} The death of a potential witness during the preindictment period
can constitute prejudice, but only if the defendant can identify exculpatory
evidence that was lost and show that the exculpatory evidence could not be
obtained by other means. Rogers, 118 F.3d at 475. Adams has failed to explain
what exculpatory testimony Landers might have offered and thus has not
established prejudice. Id. at 475-476; United States v. Woods, 6th Cir. No. 98-
6452, 2000 WL 353516, *2 (Mar. 31, 2000). If anything, Landers’s absence at
trial was a benefit to Adams’s defense because Landers had implicated Adams in
the murder before he died. Compare Luck, 15 Ohio St.3d at 157-158, 472 N.E.2d




                                         23
                             SUPREME COURT OF OHIO




1097 (when defendant claimed that killing was in self-defense, the absence of a
witness who saw the killing and could have corroborated the claim was
prejudicial).
        {¶ 104} Next, Adams alleges that some records of the 1986 grand jury
proceedings against him, including witness testimony, have been lost. However,
the trial court indicated that the grand jury transcripts were discovered, along with
other (unidentified) files once thought lost. Adams objects that a Miranda form
he signed was lost, but he does not explain how a missing Miranda waiver form
might be exculpatory. See United States v. Szilvagyi, 417 Fed.Appx. 472, 479
(6th Cir.2011) (defendant failed to show that allegedly destroyed documents were
exculpatory and that they had in fact been destroyed).
        {¶ 105} Adams also complains that witnesses’ memories had faded. But
the possibility that memories will fade, witnesses will become inaccessible, or
evidence will be lost is not sufficient to establish actual prejudice. United States
v. Marion, 404 U.S. at 325-326, 92 S.Ct. 455, 30 L.Ed.2d 468.
        {¶ 106} Finally, Adams claims that the delay prejudiced him because he
was unable to recall the names of potential witnesses he saw at a party on
December 29, 1985, who might have been able to supply him with an alibi.
Adams wanted those alibi witnesses to place him at the party at the time fixed as
the time of death by the coroner. But at trial, defense counsel elicited testimony
from Dr. Germaniuk refuting the coroner’s time-of-death calculation. Once the
defense expanded the potential window for the time of death, the alibi witnesses
became irrelevant.
        {¶ 107} Because Adams fails to meet his burden to show prejudice, it is
unnecessary for us to consider the reasons for the preindictment delay. Schaffer,
586 F.3d at 425. Nevertheless, we observe that Adams’s allegation that the state
intentionally delayed prosecution to create a tactical advantage does not withstand
scrutiny.




                                         24
                                January Term, 2015




       {¶ 108} Adams contends that the delay conferred a tactical advantage on
the prosecution because in 1991 we overruled prior precedent and announced new
standards that made it easier to convict a defendant based purely on circumstantial
evidence. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraphs
one and two of the syllabus, overruling State v. Kulig, 37 Ohio St.2d 157, 309
N.E.2d 897 (1974). Of course, in 1986 prosecutors could not have anticipated our
decision in Jenks, which was still five years in the future. Thus, there is no
showing that they delayed the prosecution of Adams to secure more favorable
precedent to apply to him.
       {¶ 109} Alternatively, Adams contends that the state’s failure to try him in
1986 for any offenses involving Tenney, before he was convicted of the
Boardman rape and related offenses, “certainly” impacted his decision whether to
testify. As a preliminary matter, there is no evidence in the record that Adams
actually intended to testify and was dissuaded from doing so, and thus there is no
showing of substantial prejudice to him. See State v. Williams, 203 Or.App. 183,
190, 125 P.3d 93 (2005) (defendant failed to show substantial prejudice because
there was no evidence that he intended to testify or regarding what he would have
said on the stand). Even if the state waits until the conclusion of one prosecution
before initiating a second, it does not automatically follow that the delay resulted
from scheming to achieve a tactical advantage regarding the defendant’s decision
to testify. Black v. Goord, 419 F.Supp.2d 365, 372-373 (W.D.N.Y.2006).
       {¶ 110} But the most significant flaw in Adams’s theory is that if the
state’s true intention was to secure convictions in the Boardman case to use
against him in the prosecution for Tenney’s death, then logically the prosecution
for Tenney’s death should have commenced soon after he was convicted of the
Boardman rape and related offenses in November 1986. Adams’s theory fails to
explain why the state waited two decades more to charge him in Tenney’s death
or how that delay benefited the state.




                                         25
                             SUPREME COURT OF OHIO




       {¶ 111} We hold that Adams has failed to demonstrate a denial of his due-
process right to a fair trial under either the Fifth Amendment or the Ohio
Constitution.
                                  Findings of fact
       {¶ 112} Adams protests the trial court’s failure to state its findings of fact
when it denied his motion for dismissal. See Crim.R. 12(F). Crim.R. 12(F) is not
self-executing; if a defendant does not request findings of fact, any error is
forfeited. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166,
¶ 47. Even assuming that Adams properly requested findings (the request was a
single sentence buried within a 35-page omnibus motion), we find that the trial
court’s findings satisfied its obligations under Crim.R. 12.
       {¶ 113} With respect to the due-process claim, the trial court did make
detailed findings of fact. The court expressly found (1) that Horace Landers’s
absence was not prejudicial, because he was a prosecution witness, (2) that the
defense could not demonstrate the value of any potential alibi witnesses, and (3)
that missing grand jury transcripts had been located.
       {¶ 114} As for the Sixth Amendment and statutory speedy-trial claims, the
trial court was not required to issue findings of fact before rejecting these claims.
Crim.R. 12(F) requires a court to make findings of fact only “[w]here factual
issues are involved in determining a motion.” A court is not required to make
findings of fact when the evidence is undisputed. Bauer v. Cleveland Ry. Co.,
141 Ohio St. 197, 203, 47 N.E.2d 225 (1943); In re Haubeil, 4th Dist. Ross No.
01CA2631, 2002-Ohio-4095, ¶ 8.
       {¶ 115} The facts required to resolve these claims were not in dispute.
The parties agreed that the grand jury refused to indict Adams for receiving stolen
property in 1986 and that he was not arrested for murder until 2007. The rest of
the analysis presents purely legal questions.
       {¶ 116} Based on the foregoing, we reject propositions of law V and XII.




                                         26
                                January Term, 2015




Jury-Selection Issues
                    Voir dire time limits (Proposition of law I)
        {¶ 117} In his first proposition of law, Adams asserts that the trial court’s
imposition of short and arbitrary time limits during small-group voir dire
prevented counsel from conducting a meaningful voir dire. Alternatively, he
contends that the trial court’s manner of questioning denied him meaningful voir
dire.
        {¶ 118} At the start of voir dire, the trial court divided the venire into
panels of approximately five prospective jurors each. The small-panel sessions
provided the only opportunity to question prospective jurors about the death
penalty, their exposure to pretrial publicity, and their concerns about
sequestration. The court limited each panel to one hour total.
        {¶ 119} R.C. 2945.27 and Crim.R. 24(B) afford counsel the opportunity to
conduct reasonable voir dire of prospective jurors. State v. Jackson, 107 Ohio
St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 48. But the length and scope of
voir dire are within the sound discretion of the trial court “and vary depending on
the circumstances of a given case.” State v. LaMar, 95 Ohio St.3d 181, 2002-
Ohio-2128, 767 N.E.2d 166, at ¶ 40. Time limits on voir dire questioning are
permissible in capital cases, State v. Nields, 93 Ohio St.3d 6, 28, 752 N.E.2d 859
(2001), and will be deemed prejudicial only if they constitute a clear abuse of
discretion, State v. Cornwell, 86 Ohio St.3d 560, 565, 715 N.E.2d 1144 (1999).
        {¶ 120} Adams’s attorneys never objected on the record to the time limits
or requested additional time to inquire. We therefore review the matter only for
plain error. State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948,
¶ 204 (failure to object waives all but plain error). “ ‘Plain error does not exist
unless it can be said that but for the error, the outcome of the trial would clearly
have been otherwise.’ ” State v. Adamson, 72 Ohio St.3d 431, 434-435, 650




                                         27
                              SUPREME COURT OF OHIO




N.E.2d 875 (1995), quoting State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d
894 (1990).
       {¶ 121} It is impossible to know what information, if any, additional
questioning of prospective jurors might have elicited. Thus, even assuming that
the time limits for voir dire were too restrictive, we cannot say that but for the
erroneous time limits, the outcome of the trial would have been otherwise.
Therefore, we hold that no plain error occurred. See State v. Frazier, 115 Ohio
St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 108 (there is no plain error when
a claim is speculative).
       {¶ 122} Alternatively, Adams objects to the manner in which the court
questioned prospective jurors, describing it as “bullying” and “browbeating.” In
particular, the trial court pressed the members of panel 6 regarding their ability to
follow the law.       The court challenged those prospective jurors on the
inconsistency of supporting capital punishment in the abstract while professing a
personal inability to impose a capital sentence.        The trial judge told panel
members that if they sat on the jury that found Adams guilty and believed that the
aggravating circumstance outweighed the mitigating factors, but nevertheless
refrained from imposing a death sentence as the law required, then they would be
guilty of juror misconduct.
       {¶ 123} After the panel 6 members left the courtroom, the state moved to
strike one of the prospective jurors for cause, and the defense moved to strike the
entire panel for cause. Defense counsel expressed the opinion that the court’s
language, particularly the references to juror misconduct, could be construed as
directing the prospective jurors to reach a specific death-penalty result later in the
case. The trial court overruled both motions. Three members of panel 6 sat on
the jury that convicted Adams and sentenced him to death.
       {¶ 124} The trial court has a duty to ensure that jurors can fairly and
impartially consider the death penalty in accordance with the law and to




                                         28
                                January Term, 2015




determine whether they are unable to obey the law. State v. Lundgren, 73 Ohio
St.3d 474, 481-482, 653 N.E.2d 304 (1995). Adams asserts that the trial court
went too far in carrying out those purposes and predisposed jurors to impose the
death penalty.
       {¶ 125} We do not condone the trial court’s questions and comments, but
we find no abuse of discretion in the trial court’s questioning of the panel.
       {¶ 126} A trial court has wide discretion over both the questions allowed
during voir dire and the manner in which voir dire is accomplished. State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 54; State v. Twyford,
94 Ohio St.3d 340, 345, 763 N.E.2d 122 (2002). In hindsight, some of the trial
court’s remarks were inartful. In particular, we find that the repeated references
to possible charges of juror misconduct were ill-chosen. But at no time did the
court give an incorrect instruction of law or direct potential jurors to reach a
specific verdict if they were impaneled. We decline to hold that the trial court
abused its discretion in the manner that it conveyed correct information, but
caution judges to be mindful that their role is to ensure that jurors are aware of
what the law requires.      That information usually can be conveyed without
resorting to discussions of juror misconduct.
       {¶ 127} Finally, Adams objects to certain gaps and inconsistencies in the
record. For example, on the first day of voir dire, the court in chambers excused
prospective juror No. 18 for cause. Shortly thereafter, the court indicated to
counsel that prospective juror No. 18 would be part of panel 2, and no one
commented or objected.        The next day, counsel and the court questioned
prospective juror No. 18 in the small-group session.         Later, they questioned
prospective juror No. 18 again during the final large-group voir dire.
       {¶ 128} Ultimately, near the end of voir dire, the trial court in chambers
sua sponte dismissed prospective juror No. 18 for cause, and in the process of
doing so, inadvertently indicated that that prospective juror No. 18 may not have




                                         29
                             SUPREME COURT OF OHIO




been the same prospective juror No. 18 who was excused for cause on the first
day. The trial court greeted the first prospective juror No. 18 as “sir,” and later
stated “[h]e’s excused” when dismissing him for cause on the first day. The
record suggests that the prospective juror No. 18 dismissed near the end of voir
dire may have been female, as the trial court seems to have referred to that
prospective juror by using the word “her” after that dismissal for cause.
         {¶ 129} The record is unclear in other ways.
         {¶ 130} As a representative example, according to the transcript, panel 8
included prospective juror No. 257, even though the trial court had earlier excused
prospective juror No. 257 for cause on the first day of voir dire and even though
prospective juror No. 257 was never mentioned again as the questioning of panel
8 progressed. And panel 8 included one prospective juror, prospective juror No.
290, who wandered in after the court had given lengthy instructions and who was
later privately voir dired by the trial court. Many of the panels included multiple
prospective jurors who were added without explanation, and some of the panels
did not include prospective jurors who were scheduled to be on them but who
apparently were excused without an explanation entered on the record.
         {¶ 131} Applying a plain-error analysis, we cannot say that any concerns
of this type affected the outcome of the trial. Indeed, the lack of comment or
objection by any party suggests that the events in question were clear, at least at
the time that they occurred, to the participants. We therefore reject proposition of
law I.
                  Incomplete record (Proposition of law XVIII)
         {¶ 132} In proposition of law XVIII, Adams argues that the incomplete
voir dire record denies him effective appellate review and therefore due process.
He points not only to the removal and substitution of numerous potential jurors,
but also the trial court’s in-chambers discussion with prospective juror No. 175
prior to that prospective juror’s excusal for cause.




                                          30
                                January Term, 2015




       {¶ 133} Adams bases his argument on our decision in State v. Clinkscale,
122 Ohio St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862. Clinkscale involved the
dismissal of a sitting, deliberating juror who purportedly was the sole dissenting
vote against a verdict of conviction. See id. at ¶ 16-18. We held that the trial
court’s failure to make a record of the juror’s dismissal was materially prejudicial
because we could not determine if the trial court had obtained the consent of the
parties before dismissing the juror. Id. at ¶ 18-20.
       {¶ 134} Clinkscale is inapplicable here for three reasons.
       {¶ 135} First, we agree with the reasoning of the court of appeals below
that the removal of a deliberating juror, possibly because that juror is emerging as
a “holdout” on the verdict, implicates constitutional rights in a way very different
from any right associated with dismissing a potential juror from the jury pool.
See 2011-Ohio-5361, at ¶ 220; Clinkscale at ¶ 15.
       {¶ 136} Second, the trial court in this case did make a record of what
occurred after the fact and gave the parties an opportunity to ask questions or be
heard. See State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d
865, ¶ 207.
       {¶ 137} And third, Adams had already attempted to have prospective juror
No. 175 removed, albeit for other reasons, before the trial judge sua sponte
dismissed him. For these reasons, Adams cannot show prejudice by the dismissal
of prospective juror No. 175 a day later.
       {¶ 138} As for the other gaps in the record, this court will not reverse
based on an incomplete record, even in a capital case, unless the appealing party
demonstrates that he or she lodged an objection at the time or requested to have
the matter placed on the record, attempted to reconstruct the record, and suffered
material prejudice. State v. Palmer, 80 Ohio St.3d 543, 554, 687 N.E.2d 685
(1997). Adams lodged no objection to the dismissal of potential jurors and the




                                            31
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substitutions on the panels, made no effort to reconstruct the record, and has not
demonstrated prejudice.
       {¶ 139} We reject proposition of law XVIII.
                   For-cause excusals (Proposition of law XV)
       {¶ 140} In proposition of law XV, Adams contends that the trial court
improperly dismissed two prospective jurors for cause. Adams argues that under
R.C. 2945.25(C) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed.2d 776 (1968), the trial court may excuse prospective jurors for cause during
the death-qualification process only if the jurors unequivocally state that they will
not recommend death under any circumstance.
       {¶ 141} We have rejected this argument more than once. See State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 55.                 The
constitutional standard governing dismissal of a prospective juror for cause based
on opposition to the death penalty is set forth in Wainwright v. Witt, 469 U.S. 412,
105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Dismissal for cause is proper under R.C.
2945.25(O) if “the juror’s views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and oath.”
State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 40.
       {¶ 142} Prospective juror Nos. 55 and 233 both said that they could not
sign a death verdict. It was proper to excuse them under R.C. 2945.25(O) because
they could not perform their duties as jurors. State v. Brinkley, 105 Ohio St.3d
231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 86-92 (trial court did not abuse its
discretion by excusing prospective juror who would not vote for death penalty
even if the law required it).
       {¶ 143} We reject proposition of law XV.
              Pretrial publicity and venue (Proposition of law VIII)
       {¶ 144} In proposition of law VIII, Adams argues that the voir dire time
constraints prohibited meaningful inquiry into the exposure of potential jurors to




                                         32
                                January Term, 2015




prejudicial pretrial publicity, and he claims ineffective assistance of counsel based
on trial counsel’s failure to seek a change of venue.
       {¶ 145} During voir dire, two members of panel 4, prospective juror Nos.
55 and 60, stated that they had heard about the case before coming to court.
Prospective juror No. 55 had read in the newspaper that the police had not found
the person who committed the murder in 22 years and that Adams’s DNA
matched the evidence in the case. The court asked prospective juror No. 55
whether she could be fair and impartial. At first, the prospective juror answered,
“I think so,” but when the court pressed for a more definitive response, the answer
became “yes.”
       {¶ 146} The court then questioned prospective juror No. 60 about what he
had heard.     That prospective juror answered, “Primarily what this woman
[prospective juror No. 55] said, what I’ve read in the paper, and after all these
years and the DNA, seemed like they had the guy to me.” Prospective juror No.
60 admitted to having already formed the opinion that Adams was guilty and
stated that it would be hard to set that opinion aside.
       {¶ 147} The court asked the other members of panel 4 if what they had
just heard concerning DNA influenced them. Prospective juror No. 233 stated, “It
makes you wonder, but no, I believe I should hear all the evidence, no.”
       {¶ 148} The court excused prospective juror No. 60 in front of the other
members of panel 4. Outside the presence of the panel, the court later sua sponte
excused prospective juror No. 55 for cause, not because of her exposure to
information about the case, but based on her answers about whether she could
sign a death-verdict form.
       {¶ 149} The defense then moved to excuse all the remaining members of
panel 4 for cause, based upon the comments about DNA made by prospective
juror Nos. 55 and 60. The court denied the motion because the prospective jurors




                                          33
                             SUPREME COURT OF OHIO




all had said that they could be fair and impartial. One member of panel 4, juror
No. 220, was eventually seated on the jury.
          {¶ 150} We will not presume that improper comments tainted an entire
jury panel. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d
216, ¶ 98. The party challenging the entire jury panel has the burden to show
either that the jurors were unlawfully impaneled or that the jurors could not be fair
and impartial. State v. Knight, 11th Dist. Portage No. 2008-P-0107, 2009-Ohio-
4102, ¶ 13; State v. Feagin, 5th Dist. Richland No. 05 CA 1, 2006-Ohio-676,
¶ 23.
          {¶ 151} Adams has presented no basis upon which we can conclude that
juror No. 220, or anyone else who served on the jury that convicted Adams, was
improperly influenced by the comments of prospective juror Nos. 55 and 60. We
hold that the trial court did not abuse its discretion in denying the motion to
excuse the entire voir dire panel.
          {¶ 152} Alternatively, Adams claims ineffective assistance because his
trial attorneys did not seek a change of venue based on pretrial publicity. But the
decision whether to seek a change of venue is a matter of trial strategy and is thus
not subject to second-guessing by a reviewing court as ineffective assistance.
State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 156.
          {¶ 153} Moreover, it is unlikely that a change-of-venue motion would
have been successful given the scant evidence of prejudicial publicity in the
record.
          {¶ 154} Some degree of media exposure is not sufficient to establish
actual juror bias. State v. Maurer, 15 Ohio St.3d 239, 251-252, 473 N.E.2d 768
(1984). “It is sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366
U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Here, Adams has not shown
that any juror failed to return a verdict based on the law and the evidence.




                                         34
                                   January Term, 2015




        {¶ 155} We repeatedly have stated that voir dire is “the best test of
whether prejudicial pretrial publicity has prevented obtaining a fair and impartial
jury from the locality.” State v. Bayless, 48 Ohio St.2d 73, 98, 357 N.E.2d 1035
(1976); see also State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817
N.E.2d 29, ¶ 49 (listing cases).
        {¶ 156} We reject proposition of law VIII.
                   Batson challenges (Proposition of law XVII)
        {¶ 157} Adams alleges that the state sought to exclude three prospective
jurors for racially discriminatory reasons, in violation of Batson v. Kentucky, 476
U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
        {¶ 158} First, Adams asserts that the state’s for-cause challenge to
prospective juror No. 301, an African-American woman who remained in the jury
pool when the trial court declined to excuse her, was racially motivated. But
Batson applies only to prospective jurors removed by peremptory challenge. See
id. at 96-98.
        {¶ 159} Next Adams argues that the trial court violated Batson when it
upheld the state’s peremptory challenges against two African-American
prospective jurors (Nos. 11 and 31) without offering an independent analysis of
the state’s race-neutral justifications.
        {¶ 160} When evaluating a Batson challenge, the trial court must
determine, based on all the circumstances, whether the party opposing the
peremptory challenge has proved purposeful discrimination. State v. Were, 118
Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. But the trial court may
express its opinion of the state’s race-neutral justification in the form of a clear
rejection of the Batson challenge, without offering detailed findings, “ ‘[a]s long
as [the] trial judge affords the parties a reasonable opportunity to make their
respective records.’ ” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873
N.E.2d 1263, ¶ 98, quoting Messiah v. Duncan, 435 F.3d 186, 198 (2d Cir.2006).




                                           35
                              SUPREME COURT OF OHIO




        {¶ 161} The trial court clearly rejected Adams’s Batson challenges as to
both prospective jurors after permitting the parties to make a record. As to
prospective juror No. 11, the judge stated, “Okay. That is a race-neutral reason.
Your Batson challenge is overruled.” The trial court was just as unequivocal
when discussing the Batson challenge to prospective juror No. 31: “[I]t’s a
racially-neutral reason. There were complaints about her from the beginning by
the state, so I assumed the state was going to do that.”
        {¶ 162} We hold that the trial court met its obligations under Batson to
review the evidence and independently assess the state’s proffered race-neutral
justifications for its peremptory challenges, and we therefore reject proposition of
law XVII.
Evidence-Suppression Issues
               Violation of Miranda rights (Proposition of law XI)
        {¶ 163} In proposition of law XI, Adams asserts that he was interrogated
while in custody after he had invoked his right to remain silent. Adams asks the
court to vacate his conviction based on this purported Miranda violation.
        {¶ 164} A suspect in police custody must be warned, before questioning,
that he has the right to remain silent, that anything he says may be used against
him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney, one will be appointed for him. State v. Lather,
110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 6; Miranda v. Arizona,
384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
        {¶ 165} Before trial, Adams moved to suppress the statements that he had
given to Soccorsy, his probation officer, in late 1985 and early 1986. At the
motion hearing, retired Detective Michael Landers9 testified that he first
attempted to question Adams in the late afternoon of December 30, 1985, in an

9
  Detective Michael Landers was not related to Horace Landers, who was arrested along with
Adams on December 30, 1985.




                                           36
                                January Term, 2015




interrogation room at the Youngstown Police Department. Plainly, Adams was in
custody at the time within the meaning of the Sixth Amendment. Thompson v.
Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (an individual
is in custody for Miranda purposes when there has been an arrest or restraint on
freedom of movement of the degree associated with formal arrest). Detective
Landers testified that he read Adams his Miranda rights and that Adams did not
request an attorney. Detective Landers identified a written notice of rights and
waiver that had been signed by Adams on December 30, 1985. Despite signing
the waiver, Adams refused to speak to officers, so the interview ended.
       {¶ 166} Soccorsy also questioned Adams that day, in the Youngstown city
jail. According to Soccorsy’s testimony at the suppression hearing, he gave
Adams Miranda warnings and had him sign a waiver, but the waiver form was
destroyed, along with other materials in the file, over the years. Soccorsy testified
that Adams made a statement during that interview, but he also testified that the
statement did not include any details.
       {¶ 167} Detective Landers testified at the suppression hearing that he
again met with Adams the next day and asked more questions about the homicide.
Detective Landers advised Adams of his rights that day and secured his signature
on another standard waiver form. Again, Adams refused to speak to him, but
Adams did not ask for an attorney. Detective Landers understood Adams to be
invoking his right to remain silent.
       {¶ 168} The second time Soccorsy interviewed Adams was on January 2,
1986, again in the Youngstown jail. Soccorsy reminded Adams that his Miranda
rights still applied, but did not read him his rights again in full. Adams did not
sign a waiver form at the second meeting, but Soccorsy testified that Adams did
waive his rights and did make a statement that day. According to Soccorsy, at no
time did Adams request an attorney.




                                         37
                                SUPREME COURT OF OHIO




          {¶ 169} The trial court overruled the motion to suppress. As a result,
Soccorsy testified at trial that he first interviewed Adams on December 30, 1985,
at the Youngstown jail and that Adams waived his Miranda rights and denied
committing any crime and denied having any knowledge of any crime.
          {¶ 170} Soccorsy testified at trial that in a second interview on January 2,
1986, he asked Adams about Gina Tenney’s ATM card. He then read verbatim
from the notes he had taken of Adams’s response:


          [O]n the morning of 12-30-85 at approximately 11:30 a.m.,
          [Adams] went out to check the mailbox at 2234 Ohio Avenue. At
          this time he found a bank card belonging to Gina Tenney on the
          top step near the porch. He then rang Gina’s doorbell to give her
          the card but there was no answer.
                  The defendant then put Gina’s card in his jacket pocket and
          intended to give it to her later.


Adams argues that the state failed to demonstrate a knowing, voluntary waiver of
rights.
                                      Right to counsel
          {¶ 171} When a suspect invokes his right to counsel, police officers must
cease interrogation until counsel is present. Edwards v. Arizona, 451 U.S. 477,
484-485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). However, for this principle to
apply “ ‘the suspect must unambiguously request counsel.’ ” (Emphasis sic.)
State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 32,
quoting Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d
362 (1994).
          {¶ 172} Both Detective Landers and Soccorsy testified that Adams never
requested counsel when they interviewed him, and nothing in the record




                                              38
                               January Term, 2015




contradicts their testimony. Therefore, the trial court correctly found no violation
of Adams’s right to counsel.
                               Right to remain silent
       {¶ 173} As with the right to counsel, the right to remain silent must be
expressly invoked. Berghuis v. Thompkins, 560 U.S. 370, 380-382, 130 S.Ct.
2250, 176 L.Ed.2d 1098 (2010). The record shows no express invocation by
Adams of his right to remain silent.
       {¶ 174} However, even in the absence of an express invocation, a
defendant’s statement is not admissible unless the prosecution shows that the
defendant knowingly and voluntarily waived his or her Miranda rights when
making the statement.      Thompkins at 382.       A voluntary waiver has two
components: it must be a free choice, made in the absence of intimidation,
deception, or coercion, and it must be “ ‘made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to
abandon it.’ ” Id. at 382-383, quoting Moran v. Burbine, 475 U.S. 412, 421, 106
S.Ct. 1135, 89 L.Ed.2d 410 (1986).
       {¶ 175} There is no evidence that Adams was subjected to intimidation,
deception, or coercion. See Thompkins at 386-387 (no evidence of coercion when
police officers did not threaten the suspect, withhold food or sleep, or make him
fearful). The mere fact that police officers later resume questioning does not
constitute coercion. Police officers are permitted to resume questioning after a
suspect invokes his right to silence, as long as they scrupulously honor the
invocation by immediately ceasing the questioning and allowing a reasonable
amount of time to pass. Michigan v. Mosley, 423 U.S 96, 104, 96 S.Ct. 321, 46
L.Ed.2d 313 (1975).
       {¶ 176} The record supports the conclusion that Adams understood his
rights. He had prior experience with the criminal-justice system and understood
his rights well enough to remain silent when the arresting officers talked to him.




                                        39
                            SUPREME COURT OF OHIO




There is no allegation that a language barrier or cognitive defect prevented Adams
from understanding the warning. See United States v. Al-Cholan, 610 F.3d 945,
953-954 (6th Cir.2010).
       {¶ 177} A waiver of Miranda rights may be implied through “ ‘the
defendant’s silence, coupled with an understanding of his rights and a course of
conduct indicating waiver.’ ” Thompkins, 560 U.S. at 384, 130 S.Ct. 2250, 176
L.Ed.2d 1098, quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct.
1755, 60 L.Ed.2d 286 (1979). In this case, the trial court correctly determined
that Adams knowingly and voluntarily waived his rights. “Where the prosecution
shows that a Miranda warning was given and that it was understood by the
accused, an accused’s uncoerced statement establishes an implied waiver of the
right to remain silent.” Thompkins at 384.
       {¶ 178} We reject proposition of law XI.
                  Warrantless search (Proposition of law IV)
       {¶ 179} In proposition of law IV, Adams disputes the legality of the
search that resulted in the discovery of Tenney’s ATM card.
       {¶ 180} Adams filed a pretrial motion to suppress the ATM card found in
his jacket pocket. The trial court held an evidentiary hearing, at which Blanchard
described the police officers’ entry into the Adams/Fedelia apartment, the
discovery and arrest of Horace Landers, and the subsequent search of the jacket
pocket. On September 22, 2008, the trial court issued a judgment entry denying
the motion to suppress.
       {¶ 181} Under the Fourth Amendment to the United States Constitution, a
search conducted without prior approval of a judge or magistrate is per se
unreasonable, subject to certain well-established exceptions. State v. Farris, 109
Ohio St. 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 56 (Resnick, J., concurring in
part and dissenting in part); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct.
507, 19 L.Ed.2d 576 (1967). Courts must exclude evidence obtained by searches




                                       40
                                January Term, 2015




and seizures that violate the Fourth Amendment. State v. Jones, 88 Ohio St.3d
430, 434, 727 N.E.2d 886 (2000), abrogated in part on other grounds by State v.
Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, 792 N.E.2d 175; Mapp v. Ohio, 367
U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
        {¶ 182} Blanchard testified that the search was incident to the arrest of
Landers. An officer who makes a lawful arrest may conduct a warrantless search
of the arrestee’s person and of the area “within his immediate control.” Chimel v.
California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The
“search incident” exception has two rationales: protecting arresting officers and
safeguarding evidence that the arrestee might conceal or destroy. Arizona v.
Gant, 556 U.S. 332, 339, 129 S.Ct.1710, 173 L.Ed.2d 485 (2009).
        {¶ 183} Adams argues that the search of the jacket pocket cannot be
justified by concerns regarding officer safety, given that Landers was already
handcuffed and unable to reach the jacket. But the right to search incident to
arrest exists even if the item is no longer accessible to the arrestee at the time of
the search. United States v. Romero, 452 F.3d 610, 619 (6th Cir.2006). As long
as the arrestee has the item within his immediate control near the time of the
arrest, the item can be searched. Northrop v. Trippett, 265 F.3d 372, 379 (6th
Cir.2001).
        {¶ 184} Adams argues that Gant and similar precedents should lead to a
different result.
        {¶ 185} In Gant, police officers conducted a warrantless vehicle search
after the occupant was handcuffed and locked in a patrol car, and they discovered
cocaine. The United States Supreme Court held that the search was unreasonable
and that police officers may search a vehicle incident to arrest only if the arrestee
is within reaching distance of the passenger compartment at the time of the search
(or if another Fourth Amendment exception applies). Id. at 351.




                                         41
                             SUPREME COURT OF OHIO




       {¶ 186} We believe that the search of the jacket was likely proper even
under Gant because the jacket was within Adams’s reach at the time. But we
need not answer that question because Gant does not apply retroactively to a pre-
Gant search that was undertaken in good-faith reliance on the binding precedents
at the time. Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2434, 180
L.Ed.2d 285 (2011). In 1985, the controlling case was New York v. Belton, 453
U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which permitted the warrantless
search of a jacket in a vehicle after the occupants had all been removed. Id. at
462-463. Under Belton, the search of Adams’s jacket pocket in conjunction with
the arrest of Landers was constitutional.
       {¶ 187} Alternatively, Adams asserts that the police officers had only
limited consent to enter the apartment for the purpose of using the telephone and
that they unlawfully exceeded the scope of that consent when they entered the
back bedroom without permission.
       {¶ 188} Officers making arrests in a home are permitted to conduct a
protective sweep, which is a “ ‘quick and limited search of [the] premises,
incident to an arrest and conducted to protect the safety of [the] police officers
[and] others.’ ” United States v. Stover, 474 F.3d 904, 911 (6th Cir.2007), quoting
Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).
Police officers can conduct a protective sweep without making an arrest if
circumstances warrant. United States v. Cisneros-Gutierrez, 598 F.3d 997, 1006-
1007 (8th Cir.2010); United States v. Taylor, 248 F.3d 506, 513-514 (6th
Cir.2001).
       {¶ 189} In order for officers to undertake a protective sweep of an area,
“they must articulate facts that would warrant a reasonably prudent officer to
believe that the area to be swept harbored an individual posing a danger to those
on the scene.” United States v. Biggs, 70 F.3d 913, 915 (6th Cir.1995). In this
case, the police officers were conducting a homicide investigation and had




                                            42
                                 January Term, 2015




consensually entered an apartment in which the resident (Adams) had stated that
no one else was present. Despite being told that no one else was present in the
apartment, the officers heard a loud noise indicative of a person hiding in a
supposedly empty back room. Under these circumstances, we hold that the police
officers were justified in investigating further and searching the back room and
that they acted reasonably in sweeping the area to ensure that they were not in
danger.
          {¶ 190} We note also that Adams’s motion to suppress filed in the trial
court did not specifically challenge the officers’ right to enter the back bedroom.
The trial court’s ruling on the motion issued after the hearing did not separately
address this point. He raised this issue for the first time in the court of appeals
and has therefore waived all but plain error as to it.
          {¶ 191} Adams has presented no argument indicating that any error that
may have occurred in this regard was outcome-determinative.            Adams was
already a “person of interest” to the police. After police officers interviewed
Tenney’s friends, Adams would have been clearly on their radar as a suspect.
And once John Allie identified Adams as the man using Tenney’s ATM card, the
police officers would have had probable cause to take the DNA samples that
eventually convicted Adams. We therefore find no plain error as to this aspect of
his argument.
          {¶ 192} We reject proposition of law IV.
Trial Issues
               Prospective-juror misconduct (Proposition of law XIV)
          {¶ 193} At some point while voir dire was being conducted, a prospective
juror attempted to discuss the case with two other prospective jurors in a hallway
outside the courtroom, in violation of the court’s previous admonitions.
According to the trial court, “Juror 175 was talking about the victim or I can’t




                                          43
                             SUPREME COURT OF OHIO




forget the victim, that type of thing.” In proposition of law XIV, Adams accuses
the trial court of inadequately investigating that prospective juror’s misconduct.
       {¶ 194} However, “ ‘[t]here is no per se rule requiring an inquiry in every
instance of alleged [juror] misconduct.’ ”      (Word in brackets sic.)     State v.
Sanders, 92 Ohio St.3d 245, 253, 750 N.E.2d 90 (2001), quoting United States v.
Hernandez, 921 F.2d 1569, 1577 (11th Cir.1991). In this case, one of the three
participants in the conversation, prospective juror No. 173, had been removed for
cause before the conversation even came to light. When the court became aware
of what prospective juror No. 175 had done, it dismissed that prospective juror for
cause off the record for violating the court’s instructions.        The court later
questioned prospective juror No. 176 on the record about that prospective juror’s
ability to be fair and impartial and was satisfied with prospective juror No. 176’s
response. We find that the trial court acted appropriately.
       {¶ 195} Adams cites State v. King, 10 Ohio App.3d 161, 460 N.E.2d 1383
(1st Dist.1983), for the proposition that all juror misconduct is rebuttably
presumed to be prejudicial. See id. at 165. We have repeatedly rejected that rule,
and have held that a reviewing court will not reverse a judgment based on juror
misconduct unless the complaining party demonstrates prejudice. See State v.
Keith, 79 Ohio St.3d 514, 526, 684 N.E.2d 47 (1997), and cases cited therein.
Adams has made no such showing.
       {¶ 196} We reject proposition of law XIV.
             Defense motion for a mistrial (Proposition of law IX)
       {¶ 197} During the cross-examination of Detective Blanchard, the defense
unsuccessfully moved for a mistrial based on three allegedly improper and
prejudicial statements Blanchard made. First, when asked if he had previously
testified in the case, Blanchard volunteered that he had testified at two
“suppression hearings.” Second, when asked if he had had further conversations
with Fedelia after talking to her on January 3, 1986, he replied “[n]ot about this




                                         44
                                January Term, 2015




case.” And third, Blanchard gave the name of the victim in the Boardman rape
case in which Adams was convicted when asked about the witnesses who had
been at the police lineup in early 1986.
        {¶ 198} A trial court must declare a mistrial only “when the ends of justice
so require and a fair trial is no longer possible.” State v. Garner, 74 Ohio St.3d
49, 59, 656 N.E.2d 623 (1995). An appellate court reviews an order denying a
motion for a mistrial for abuse of discretion. State v. Treesh, 90 Ohio St.3d 460,
480, 739 N.E.2d 749 (2001). To show an abuse of discretion, the defendant must
demonstrate material prejudice. State v. Sage, 31 Ohio St.3d 173, 182, 510
N.E.2d 343 (1987).
        {¶ 199} We find no abuse of discretion.
        {¶ 200} The isolated reference to “suppression hearings” was not
prejudicial, given that Blanchard did not state or insinuate that a defense
suppression motion had been granted and evidence was being withheld from the
jury.
        {¶ 201} Likewise, his comment about talking to Fedelia was too
ambiguous to be prejudicial. According to Adams, Blanchard’s response—not
about “this” case—was meant to inform the jury that there had been another
criminal case against Adams. But depending on the intonation, the statement
could have been understood by the jury to mean that Blanchard and Fedelia
discussed a different case not involving Adams or that they discussed a topic not
related to law enforcement at all.
        {¶ 202} Finally, there are no indications that the jurors in 2008 would
have recognized the name of a victim who was raped in 1985. Apart from stating
the name, Blanchard said nothing about her. He did not indicate that she was a
rape victim, inform the jury that Adams had been convicted of raping her, or give
any details of any type.




                                           45
                             SUPREME COURT OF OHIO




       {¶ 203} Adams cites United States v. Blanton, 520 F.2d 907 (6th
Cir.1975), and United States v. Forrest, 17 F.3d 916 (6th Cir.1994), for the
proposition that a conviction must be reversed when improper testimony is
deliberately interjected into a trial.        However, in Blanton, the defendant
demonstrated what Adams cannot: that the evidence in question was unfairly
prejudicial. Id. at 910. And in Forrest, even though the witness testified to the
defendant’s prior incarceration for robbery in direct violation of the judge’s prior
warning, the court of appeals held that a mistrial was not warranted. Id. at 919-
921. Thus, neither case supports Adams’s argument.
       {¶ 204} On appeal, Adams has raised a new argument about Blanchard’s
testimony, namely that Blanchard violated the court’s prohibition against
witnesses testifying to the reasons that Tenney was afraid of Adams. But the
testimony in question occurred after the defense moved for a mistrial, and the
defense never renewed its motion for a mistrial or asked for a curative instruction.
Moreover, the court sustained the defense’s objection to this testimony. To the
extent that Blanchard blurted out anything prejudicial before the court could rule,
the defense should have requested a curative instruction, but did not. State v.
Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, at ¶ 103 (motion
for mistrial has no merit when court sustains objection and defendant never
requests cautionary instruction).
       {¶ 205} We reject proposition of law IX.
   Ineffective assistance of counsel (Propositions of law XVI, VI, and VII)
       {¶ 206} To prove an allegation of ineffective assistance of counsel, a
defendant must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must establish
that counsel’s performance fell below an objective standard of reasonable
representation. Id. And second, the defendant must show that he or she was
prejudiced by the deficient performance. Id. A defendant establishes prejudice




                                         46
                                 January Term, 2015




by showing that but for counsel’s errors, the result of the trial would have been
different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph
three of the syllabus. Adams alleges two instances of ineffective representation
by his counsel during trial.
                          Failure to file suppression motion
          {¶ 207} In proposition of law XVI, Adams claims that he was denied the
effective assistance of counsel because his trial counsel “failed to file a pretrial
challenge to identification testimony offered at trial through the Allies.”
According to Adams, the lineup procedure was constitutionally defective because
witnesses viewed the lineup together, John Allie signaled his wife during the
lineup, John left the lineup without identifying anyone, and later, after he and his
wife had time to confer, John called Blanchard to identify Adams.
          {¶ 208} Due process may require a court to suppress eyewitness testimony
when the identification results from an unduly suggestive identification
procedure. Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L.Ed.2d
402 (1969). A lineup is unduly suggestive if it steers the witness to one suspect,
independent of the witness’s honest recollection. Wilson v. Mitchell, 250 F.3d
388, 397 (6th Cir.2001); see also Jells v. Mitchell, 538 F.3d 478, 511-512 (6th
Cir.2008) (defendant was in a prison jumpsuit while the other participants were in
street clothes).     Adams has not identified any aspect of the lineup that
demonstrates that police officers steered the Allies to identify him.
          {¶ 209} Indeed, Adams’s objection is directed primarily at the conduct of
John and Sandra Allie, not the conduct of the police. When the questionable
circumstances of an identification procedure are not due to state action, the
reliability of the identification is a question going to the weight of the testimony,
not its admissibility. State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776
N.E.2d 1061, ¶ 22; State v. Brown, 38 Ohio St.3d 305, 310-311, 528 N.E.2d 523
(1988).




                                         47
                             SUPREME COURT OF OHIO




       {¶ 210} Adams argues that even if the lineup was not “unduly suggestive,”
due process requires a trial court to conduct a preliminary assessment of the
reliability of an eyewitness identification. This argument has no merit.
       {¶ 211} “[T]he Due Process Clause does not require a preliminary judicial
inquiry into the reliability of an eyewitness identification when the identification
was not procured under unnecessarily suggestive circumstances arranged by law
enforcement.” Perry v. New Hampshire, __ U.S. __, 132 S.Ct. 716, 730, 181
L.Ed.2d 694 (2012). Because a motion in limine to bar the identifications would
not have been successful, it necessarily follows that Adams’s trial counsel did not
provide substandard representation by failing to file such a motion. Indeed, it was
in the defense’s interest to have the Allies testify, given that Sandra Allie had
initially identified Horace Landers as the man she saw at the ATM.
       {¶ 212} We reject proposition of law XVI.
                      Failure to object to hearsay testimony
       {¶ 213} Tenney’s friends testified that she was apprehensive about Adams
or afraid of him and gave examples of Adams’s intimidating behavior. Adams
argues in proposition of law VI that Tenney’s state of mind was irrelevant, that
the court admitted testimony that did not satisfy the requirements of the excited-
utterance hearsay exception, and that testimony regarding the reasons for
Tenney’s fear was improper “propensity” evidence.
       {¶ 214} Robinson testified, “[T]he first time [Adams] called [, Tenney]
called me right after and she was very upset, saying that Bennie called her and he
was talking to her, asking her to [invite him] upstairs. * * * She said, I just got a
call from Bennie. He was asking me if—why won’t I let him come upstairs and
talk to him.” According to Robinson, Tenney said that she politely told Adams
that she was busy, “just to get him off the phone.”
       {¶ 215} The court of appeals deemed this testimony admissible under a
plain-error standard because, according to the appellate court, Adams never




                                         48
                                January Term, 2015




objected at trial. See 2011-Ohio-5361, at ¶ 294-295. But Adams did object
during Robinson’s testimony, and the trial court overruled the objection.
       {¶ 216} Evid.R. 803(2) creates a hearsay exception for a statement
“relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.” Robinson testified that
Tenney called him “right after” Adams had called her and was “very upset” and
“stunned.” We hold that the state laid a sufficient foundation to satisfy Evid.R.
803(2). See State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948,
at ¶ 168-169 (declarant was still under the influence of startling event less than an
hour after it occurred).
       {¶ 217} Moreover, this hearsay testimony was relevant to establish
motive.    R.C. 2945.59 provides that “[i]n any criminal case in which the
defendant’s motive or intent * * * is material, any acts of the defendant which
tend to show his motive or intent * * * may be proved, whether they are
contemporaneous with or prior or subsequent thereto.” The facts that Adams
called Tenney late at night asking her if he could come up and that she rebuffed
him are relevant to show motive when she was raped and murdered soon after.
       {¶ 218} Adams also objects to the admission of hearsay statements that
Tenney feared Adams. Robinson testified that Tenney had told him that she was
afraid of Adams, and Thomas, when asked if Tenney had ever stated “who she
was apprehensive or fearful of,” said that she had told him that it was “[t]he man
downstairs from where she lived.”
       {¶ 219} A victim’s hearsay statements that she feared the defendant are
admissible under Evid.R. 803(3) as declarations of the declarant’s then-existing
state of mind or emotion. State v. Apanovitch, 33 Ohio St.3d 19, 21, 514 N.E.2d
394 (1987). However, such hearsay testimony must still be relevant to the issues
in the case. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d
865, at ¶ 110.




                                         49
                            SUPREME COURT OF OHIO




       {¶ 220} The capital specification against Adams included a charge that the
murder occurred in the course of or immediately after a rape. R.C. 2907.02(A)(2)
defines rape as sexual conduct resulting from the use or threat of force. The state
demonstrated sexual conduct through the DNA evidence showing the presence of
Adams’s semen. Evidence that Tenney expressed fear of Adams to Thomas only
hours before the sexual conduct occurred was relevant to prove absence of
consent.
       {¶ 221} The same analysis applies to the nonhearsay testimony regarding
why Tenney was fearful. Sergeff testified, “Every time we pulled up in front of
the building and came into the apartment [Adams] was always looking out the
window or sometimes he would open the door and try to talk to us as we went up
the stairs.” Robinson testified about Tenney’s reaction to receiving the card
addressed “to a very sweet and confused young lady.” This evidence is relevant
to the narrative of a rejected courtship that prompted rape and murder.
       {¶ 222} With respect to the late-night phone calls, Sergeff testified as to
when Tenney changed her number and about the ring-pattern code they developed
so that Tenney would know it was Sergeff calling and would answer her phone.
Those statements describe events that Sergeff observed or participated in and are
not hearsay. Adams now objects to Sergeff’s testimony that the calls in question
were coming from him.       But Sergeff did not offer that fact until she was
specifically asked by the defense on cross-examination to read a portion of her
police statement into the record. Adams cannot object to the admissibility of
testimony his counsel elicited.    State v. Simpson, 2d Dist. Montgomery No.
19797, 2004-Ohio-669, ¶ 18-19.
       {¶ 223} The final “act” testimony concerns the card Adams gave to
Tenney. And once again, the fact that Adams sent Tenney a card addressed “to a
very sweet and confused young lady” is relevant to the prosecution’s theory of a
rejected courtship that prompted rape and murder. Moreover, the only hearsay




                                        50
                               January Term, 2015




that Robinson testified to in this context was that Tenney said, “Look what I
found,” after the card had been shoved under her door. The most significant
portions of the testimony, such as the writing on the envelope and the fact that the
card was signed by Adams, were based on Robinson’s personal observations.
       {¶ 224} Finally, Adams objects to testimony concerning how Tenney’s
friends perceived her state of mind. Examples of this testimony include Thomas’s
statement that she was “very apprehensive, concerned, borderline fearful but not
there, not—she didn’t strike me as being, you know, gravely afraid of the
situation,” Sergeff’s testimony that Tenney “became afraid so she was afraid to
answer” the telephone, and Passarello’s testimony that Tenney “didn’t feel secure
in that apartment.”
       {¶ 225} A witness is permitted to testify as to his or her impressions of a
victim’s mental or emotional state. State v. Braden, 98 Ohio St.3d 354, 2003-
Ohio-1325, 785 N.E.2d 439, ¶ 100.            Adams argues that Tenney’s friends’
subjective impressions of her emotional state are not relevant to any material fact
at issue. Stated differently, Adams’s argument is that testimony such as Thomas’s
opinion that Tenney seemed apprehensive is not relevant to proving whether or
not Adams killed her. However, the testimony is relevant to establish that the
sexual conduct was not consensual.
       {¶ 226} We hold that the trial court did not abuse its discretion in
admitting the testimony going to Tenney’s state of mind. State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62 (trial court has broad
discretion over the admission of evidence). And because this testimony was
admissible, Adams was not deprived of effective assistance of counsel when his
attorneys failed to object.
       {¶ 227} Adams also challenges the manner in which the trial court
conducted the pretrial hearing on whether the state would be permitted to present




                                        51
                             SUPREME COURT OF OHIO




testimony at trial regarding Tenney’s fear of Adams; the trial court treated the
matter as a motion in limine and ruled in favor of the state after the hearing.
         {¶ 228} At that hearing, the trial court allowed counsel for the parties to
question Robinson about excited utterances Tenney may have made. The state
also wanted Robinson and three other witnesses to be permitted to testify at trial
regarding Tenney’s general state of mind, and on that topic, the trial judge
decided (without objection) that he alone would pose the questions to the
witnesses. Adams now argues that in doing so, the trial judge impermissibly
interjected himself into the proceedings in a way that was overly favorable to the
state.
         {¶ 229} A trial judge is permitted to interrogate witnesses in an impartial
manner. Evid.R. 614(B). The trial judge’s questioning of the four witnesses
during the motion hearing was limited and designed to clarify a single issue,
namely, their perception of Tenney’s emotional state.          Upon review of the
transcript, we see no indication of “ ‘bias, prejudice, or prodding of a witness to
elicit partisan testimony’ ” sufficient to demonstrate that the trial judge acted with
impartiality. State v. Baston, 85 Ohio St.3d 418, 426, 709 N.E.2d 128 (1999),
quoting Jenkins v. Clark, 7 Ohio App.3d 93, 98, 454 N.E.2d 541 (2d Dist.1982).
         {¶ 230} We therefore reject proposition of law VI.
                                  Cumulative error
         {¶ 231} Adams, in proposition of law VII, argues that cumulative error
occurred based on ten examples of nonfeasance by his trial counsel that,
collectively, allegedly deprived him of effective assistance of counsel.
         {¶ 232} We have already held that Adams’s counsel were not ineffective
for failing to file a motion to suppress eyewitness testimony (proposition of law
XVI) or failing to object to state-of-mind and excited-utterance evidence
(proposition of law VI). We have also rejected Adams’s claim that his counsel
performed ineffectively by failing to challenge venue (proposition of law VIII).




                                         52
                               January Term, 2015




       {¶ 233} We have also held that the trial court properly applied the Witt
standard when qualifying prospective jurors (proposition of law XV), so that there
was no error in that regard to which trial counsel should have objected. Likewise,
the trial court did not err in its handling of the prospective juror’s misconduct
(proposition of law XIV), so counsel’s failure to object on that ground was not
ineffective assistance.
       {¶ 234} Adams also cites counsel’s failure to object to a capital
specification containing four separate predicate felonies (proposition of law II).
But as we discuss below, the omnibus capital specification was not improper.
       {¶ 235} As for proposition of law XVIII, alleging the failure to ensure a
complete record, Adams cannot demonstrate prejudice, because there is no
evidence as to what the complete record would have revealed. Powell, 132 Ohio
St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 209.
       {¶ 236} Issues regarding counsel’s failure to object to the constitutionality
of Ohio’s death penalty (propositions of law III and XX) are moot given our
disposition of Adams’s capital sentence.
       {¶ 237} That leaves only one remaining allegation of ineffective
assistance: counsel’s failure to object to the voir dire proceedings (proposition of
law I). Adams fails to demonstrate that he was prejudiced by any possibly
deficient representation in that regard. And there can be no cumulative impact
when we have not found any harmless error. State v. Garner, 74 Ohio St.3d at 64,
656 N.E.2d 623 (cumulative-error doctrine inapplicable when court does not find
multiple instances of harmless error).
       {¶ 238} Accordingly, we reject proposition of law VII.
Jury-Instruction Issues
               Requested jury instructions (Proposition of law X)
       {¶ 239} In proposition of law X, Adams asserts that the trial court erred by
refusing to give a jury instruction on involuntary manslaughter as a lesser




                                         53
                                SUPREME COURT OF OHIO




included offense of aggravated murder and refusing to instruct the jury on the law
of circumstantial evidence as it existed in 1985.
        {¶ 240} Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.
Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991);
see State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, 24 N.E.2d 1147, ¶5.
An appellate court reviews a trial court’s refusal to give a requested jury
instruction for abuse of discretion. State v. Wolons, 44 Ohio St.3d 64, 68, 541
N.E.2d 443 (1989). For the reasons discussed below, we hold that the trial court
did not abuse its discretion, and we affirm the rulings of the trial court.
                                Involuntary manslaughter
        {¶ 241} A charge on a lesser included offense is required “ ‘only where
the evidence presented at trial would reasonably support both an acquittal of the
crime charged and a conviction upon the lesser included offense.’ ” State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 192, quoting
State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the
syllabus.
        {¶ 242} Involuntary manslaughter is a lesser included offense of
aggravated murder. Thomas at 216-217. The defense requested a jury instruction
on involuntary manslaughter, which the trial court refused to give because, in the
court’s judgment, in this case “[t]here is no evidence of manslaughter. There’s
evidence of murder.”
        {¶ 243} At the time that the events at issue in this case occurred, the crime
of involuntary manslaughter was subject to a six-year statute of limitations,10



10
  In 1998, the General Assembly enacted Sub.H.B. No. 49, effective March 1999, which amended
R.C. 2901.13(A) to increase the statute of limitations for involuntary manslaughter and certain




                                              54
                                   January Term, 2015




which expired before Adams was indicted.                     Former R.C. 2901.13(A),
Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1896. A defendant charged
with a greater offense cannot be convicted of a lesser included offense if the
statute of limitations has expired for the lesser offense. State v. Price, 10th Dist.
Franklin Nos. 98AP-428 and 98AP-457, 1998 WL 896358, *4 (Dec. 22, 1998).
This rule reflects the majority rule among the states. See Cane v. State, 560 A.2d
1063, 1064 (Del.1989), fn. 3. An involuntary-manslaughter instruction would
have misled the jury into believing that it could convict Adams of a time-barred
offense. Spaziano v. Florida, 468 U.S. 447, 455-456, 104 S.Ct. 3154, 82 L.Ed.2d
340 (1984) (“Requiring that the jury be instructed on lesser included offenses for
which the defendant may not be convicted * * * would simply introduce * * *
distortion into the factfinding process”).
        {¶ 244} Moreover, although the Constitution requires a trial court in a
capital case to charge the jury on some applicable lesser offense if one exists, see
id. at 455-456, explaining and distinguishing Beck v. Alabama, 447 U.S. 625, 100
S.Ct. 2382, 65 L.Ed.2d 392 (1980), the defendant does not get to select which
lesser offense. Schad v. Arizona, 501 U.S. 624, 645, 111 S.Ct. 2491, 115 L.Ed.2d
555 (1991). As long as the jury is instructed on some lesser offense that is
supported by the evidence, the Constitution is satisfied. Id. In this case, the jury
was instructed on the lesser offense of murder.
        {¶ 245} In addition to those considerations, we agree with both lower
courts that the evidence in this case did not warrant an instruction on involuntary
manslaughter. Accordingly, the trial court did not abuse its discretion in not
giving that instruction.




other offenses to 20 years. 147 Ohio Laws, Part I, 299. The amended statute does not apply to
this case.




                                             55
                            SUPREME COURT OF OHIO




                             Circumstantial evidence
       {¶ 246} At the time of Tenney’s murder, the controlling precedent held
that if the state relied upon circumstantial evidence alone to prove an essential
element of a criminal offense, then the evidence had to be “consistent only with
the theory of guilt and irreconcilable with any reasonable theory of innocence.”
State v. Kulig, 37 Ohio St.2d at 160, 309 N.E.2d 897. In such cases, the jury
would be instructed, consistent with Kulig, that “ ‘circumstantial evidence, by
itself, will justify a finding of guilt if the circumstances are entirely consistent
with the defendants’ guilt and are wholly inconsistent or irreconcilable with any
reasonable theory of the defendants’ innocence and are so convincing as to
exclude a reasonable doubt of the defendants’ guilt.’ ” State v. Jenks, 61 Ohio
St.3d at 261, 574 N.E.2d 492, quoting 4 Ohio Jury Instructions, Section
405.03(2), 42 (1988).
       {¶ 247} In 1991, we overruled Kulig and held:


       When the state relies on circumstantial evidence to prove an
       essential element of the offense charged, there is no need for such
       evidence to be irreconcilable with any reasonable theory of
       innocence in order to support a conviction. Therefore, where the
       jury is properly and adequately instructed as to the standards for
       reasonable doubt a special instruction as to circumstantial evidence
       is not required.


Jenks at paragraph one of the syllabus.
       {¶ 248} Adams requested a jury instruction on circumstantial evidence
consistent with Kulig. The trial court refused to give that instruction and instead
gave a jury instruction consistent with Jenks. On appeal, Adams argues that the
trial court, by retroactively applying Jenks, violated the Ex Post Facto Clause of




                                          56
                                January Term, 2015




the United States Constitution, the Retroactivity Clause of the Ohio Constitution,
and the Due Process Clauses of the state and federal Constitutions.
       {¶ 249} In State v. Webb, 70 Ohio St.3d 325, 331, 638 N.E.2d 1023
(1994), we upheld the retroactive application of Jenks. We write now to clarify
the governing principles in light of more recent decisions from this court and the
United States Supreme Court.
       {¶ 250} The Ex Post Facto Clause prohibits four types of legislative
enactments:


       “1st. Every law that makes an action done before the passing of
       the law, and which was innocent when done, criminal; and
       punishes such action. 2d. Every law that aggravates a crime, or
       makes it greater than it was, when committed. 3d. Every law that
       changes the punishment, and inflicts a greater punishment, than
       the law annexed to the crime, when committed. 4th. Every law
       that alters the legal rules of evidence, and receives less, or
       different, testimony, than the law required at the time of the
       commission of the offence, in order to convict the offender.”


(Emphasis sic.) Carmell v. Texas, 529 U.S. 513, 522, 120 S.Ct. 1620, 146
L.Ed.2d 577 (2000), quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648
(1798); see also State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d
534, ¶ 50.
       {¶ 251} The Ex Post Facto Clause of the United States Constitution and
the Retroactivity Clause of the Ohio Constitution are not relevant to this case.
       {¶ 252} The federal constitutional prohibition on ex post facto laws
applies only to statutory changes enacted by the legislature, “ ‘and does not of its
own force apply to the Judicial Branch of government.’ ” Rogers v. Tennessee,




                                         57
                             SUPREME COURT OF OHIO




532 U.S. 451, 456, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), quoting Marks v.
United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Webb, 70
Ohio St.3d at 330, 638 N.E.2d 1023, fn. 1. Likewise, Article II, Section 28 of the
Ohio Constitution, the Retroactivity Clause, is expressly a limitation on the power
of the General Assembly and does not apply to judicially created rules. Id. at 331.
Adams’s reliance on those provisions is without merit.
       {¶ 253} The ability of the judiciary to apply its rulings retroactively is
limited, but that limitation is imposed by principles of due process. Id. at 330, fn.
1; Rogers at 456; Bouie v. Columbia, 378 U.S. 347, 350, 84 S.Ct. 1697, 12
L.Ed.2d 894 (1964).      The due-process limitations on the judiciary are not
coextensive with the limitations placed on legislatures by the Ex Post Facto
Clause. Metrish v. Lancaster, ___ U.S. ___, 133 S.Ct. 1781, 1788, 185 L.Ed.2d
988 (2013). Rather than incorporating the four specific ex post facto prohibitions
identified in Calder v. Bull, the due-process limitations rest on “core due process
concepts of notice, foreseeability, and, in particular, the right to fair warning as
those concepts bear on the constitutionality of attaching criminal penalties to what
previously has been innocent conduct.” Rogers at 459.
       {¶ 254} “[J]udicial alteration of a common law doctrine of criminal law
violates the principle of fair warning, and hence must not be given retroactive
effect, only where it is ‘ “unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue.” ’ ” Rogers at 462,
quoting Bouie at 354, quoting Hall, General Principles of Criminal Law 61 (2d
Ed.1960); see also State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911
N.E.2d 889, ¶ 32.
       {¶ 255} In simple terms, Rogers held that the due-process analysis
incorporates the first three Calder v. Bull categories, whereas the Ex Post Facto
Clause incorporates all four.     Janecka v. Cockrell, 301 F.3d 316, 325 (5th
Cir.2002); Reed v. Cockrell, 269 F.Supp.2d 784, 810-812 (N.D.Tex.2002), rev’d




                                         58
                               January Term, 2015




on other grounds, sub nom. Reed v. Quarterman, 555 F.3d 364 (5th Cir.2009).
Stated differently, “unexpected and indefensible” means a substantive change to
the law that increases a defendant’s criminal liability, and a change of that type
violates due process. A procedural change to the manner in which a criminal case
is adjudicated, on the other hand, does not implicate due-process concerns. State
v. Jess, 117 Haw. 381, 408-409, 184 P.3d 133 (2008). For example, due-process
limitations do not apply to changes to the rules of evidence. United States v.
Johnson, 354 F.Supp.2d 939, 968 (N.D.Iowa 2005) (retroactive application of
“forfeiture by wrongdoing” hearsay exception did not implicate due-process
concerns).
       {¶ 256} We hold that instructing the jury pursuant to Jenks did not deprive
Adams of due process. The legal change from Kulig to Jenks did not expose him
to criminal liability for conduct that was legal before the change, Bouie at 354-
355; Webb at 331, or increase the potential punishment for the same conduct,
State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, 912 N.E.2d 582, ¶ 18. The
change in the jury instruction brought about by Jenks was a procedural change,
not a substantive change to the elements of the crime or the punishment for the
offense. Reed v. Cockrell, 269 F.Supp.2d at 812 (holding that the fourth Calder
category does not apply to retroactive application of a judicial decision abrogating
the requirement that a jury instruction on circumstantial evidence that is favorable
to a criminal defendant must be given).
       {¶ 257} In sum, we hold that the trial court’s jury instruction on
circumstantial evidence did not violate due process. Based on this determination
and our earlier conclusion that an instruction on involuntary manslaughter would
have been inappropriate, we reject proposition of law X.
             Omnibus capital specification (Proposition of law II)
       {¶ 258} Adams was convicted of aggravated murder, under R.C.
2903.01(B), for having purposely caused the death of Gina Tenney while




                                          59
                             SUPREME COURT OF OHIO




committing, attempting to commit, or fleeing after committing rape, kidnapping,
aggravated robbery, or aggravated burglary.         Similarly, the original capital
indictment included a single death-penalty specification that listed four of the
predicate offenses mentioned in R.C. 2929.04(A)(7), namely rape, aggravated
burglary, aggravated robbery, and kidnapping.
       {¶ 259} On April 14, 2008, the state moved pursuant to Crim.R. 7(D) to
amend the indictment to replace the word “and” with “and/or” in the list of
predicate offenses. The trial court granted the motion soon after it was filed.
       {¶ 260} At the close of the evidence, the trial court instructed the jury that
it should find the specification proved if it found that Adams committed any of
the underlying felony offenses. The trial court stated:


               In the specification attached to Count One, you must decide
       whether the State proved beyond a reasonable doubt that the
       aggravated murder was committed while the Defendant was
       committing, attempting to commit or fleeing after committing or
       attempting to commit rape, aggravated burglary, aggravated
       robbery, or kidnapping.


(Emphasis added.) The trial court never instructed the jurors that to find that the
R.C. 2929.04(A)(7) specification had been proved, they needed to be unanimous
as to which underlying felony or felonies Adams committed.
       {¶ 261} The jurors unanimously signed two verdict forms. The first form
found Adams guilty of “the offense of aggravated murder of Gina Tenney.” On
the second form, the jurors entered a finding of guilty as to the offense of
“aggravated murder while he was committing, attempting to commit or fleeing
immediately after committing or attempting to commit rape, aggravated burglary,




                                         60
                                January Term, 2015




aggravated robbery, or kidnapping and Bennie L. Adams was the principal
offender in the aggravated murder.”
       {¶ 262} In his second proposition of law, Adams contends that it was error
for the trial court to give the jury a single omnibus R.C. 2929.04(A)(7)
specification without instructing the jurors that they had to return a unanimous
verdict as to each predicate felony in the specification for that felony to qualify as
a supporting underlying offense. Adams has not challenged the sufficiency of the
evidence as to each predicate offense. Rather, his theory is that the instructions
and jury forms left open the possibility of a nonunanimous jury verdict as to the
capital specification, and therefore violated his constitutional right to a unanimous
verdict.
       {¶ 263} We rejected a similar argument in State v. Johnson, 112 Ohio
St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, in which we stated that “when the
jury unanimously reaches a verdict, the individual jurors need not agree on which
of the alternatives bases support their individual findings.” Id. at ¶ 64; see Schad
v. Arizona, 501 U.S. at 643-644, 111 S.Ct. 2491, 115 L.Ed.2d 555 (plurality
opinion). As long as the jury unanimously convicts the defendant of aggravated
murder, the jurors need not be unanimous as to the predicate offense or offenses
the defendant committed. Johnson at ¶ 65; State v. Davis, 116 Ohio St.3d 404,
2008-Ohio-2, 880 N.E.2d 31, at ¶ 187-188.
       {¶ 264} We recognize that Johnson dealt with a felony-murder conviction
based on alternative predicate offenses, whereas Adams is objecting to the finding
of guilt on the capital specification. But in terms of a defendant’s constitutional
right to a unanimous jury verdict, the analysis is the same.
       {¶ 265} The concurring in part and dissenting in part opinion of Justice
Lanzinger in this case maintains that the United States Supreme Court’s decision
in Schad has been superseded by a more recent line of decisions beginning with
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),




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and culminating in Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013). However, Apprendi and its progeny have nothing to do with
the problem of nonunanimous jury verdicts.
       {¶ 266} Apprendi and the cases that build on it address an unrelated legal
issue: whether a trial court may enhance a criminal defendant’s sentence based
on facts not found by the jury. At issue in Apprendi was a New Jersey law that
increased the maximum term of imprisonment for certain felonies from 10 years
to 20 years if the trial judge found that the defendant committed the crime with “a
purpose to intimidate” based on racial bias or other listed biases. Id. at 468-469.
The Supreme Court declared the law unconstitutional because it permitted a judge
to make a finding of fact, by a preponderance of the evidence, to increase a
defendant’s sentence to a statutory maximum penalty. Id. at 490-492.
       {¶ 267} Apprendi stands for the proposition that if a particular fact
exposes a defendant to an enhanced maximum term of imprisonment, the fact
must be found by the jury by proof beyond a reasonable doubt. Id. at 490. Thus,
in capital cases, the aggravating circumstances that make a defendant death-
eligible must be found by the jury. Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct.
2428, 153 L.Ed.2d 556 (2002). And Alleyne makes clear that facts that serve to
increase a mandatory minimum sentence must also be found by the jury, not the
trial court judge. Alleyne at 2163, overruling Harris v. United States, 536 U.S.
545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002).
       {¶ 268} By invoking the Apprendi-Alleyne line of cases to analyze the
nonunanimous jury instruction, the separate opinion confuses two distinct lines of
jurisprudence. As the high court of Massachusetts has explained:


       In substance, the Apprendi and Ring cases are about the
       constitutional limitations imposed on who may decide a factor or
       factors that increases a defendant’s maximum punishment and not




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       about the need for jury unanimity when returning a general verdict
       under a particular theory of murder.


(Emphasis sic.) Commonwealth v. Almonte, 444 Mass. 511, 524, 829 N.E.2d
1094 (2005), overruled in part on other grounds, Commonwealth v. Carlino, 449
Mass. 71, 865 N.E.2d 767 (2007).
       {¶ 269} The inapplicability of Apprendi is obvious if one asks a simple
question: what fact did the trial court find to make Adams death-eligible? The
answer is: none. Adams became death-eligible when the jury unanimously found
him guilty of aggravated murder in the course of some predicate felony. The fact
that the jury may not have been unanimous as to which predicate felony he
committed is obviously troubling to the author of this separate opinion, but
Apprendi and its progeny are inapposite to that perceived problem. See, e.g.,
Crawford v. State, 121 Nev. 744, 750, 121 P.3d 582 (2005) (“Apprendi does not
undermine the rationale of our holdings respecting jury unanimity on alternative
theories of murder and provides no support for revisiting our reasoning on that
issue”); Spears v. Mullin, 343 F.3d 1215, 1236, (10th Cir.2003), fn. 20 (“Apprendi
does not indicate in any way that it overrules Schad”).
       {¶ 270} We reject proposition of law II.           It follows that Adams’s
contention (in proposition of law VII) that his trial counsel’s failure to object to
the jury instructions and verdict forms deprived him of the effective assistance of
counsel is also without merit.
       {¶ 271} Based on the foregoing, we affirm Adams’s conviction on the sole
count of aggravated murder. We thus turn to his claims regarding the imposition
of a death sentence.
Independent Review of the Death Sentence
       {¶ 272} R.C. 2929.05(A) imposes four responsibilities on this court as we
conduct our appellate review. We must determine (1) whether the evidence




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supports the jury’s finding of the aggravating circumstance, the R.C.
2929.04(A)(7) capital specification, (2) whether the trial court properly weighed
the aggravating circumstance against the mitigating factors present, (3) whether,
in our independent judgment, the aggravating circumstance outweighs the
mitigating factors, and (4) whether the sentence of death is appropriate.       In
conducting our independent review, we afford no deference to the conclusions of
the trial court or the court of appeals. See State v. Fox, 69 Ohio St.3d 183, 194-
195, 631 N.E.2d 124 (1994).
         Sufficiency of the evidence as to the aggravating circumstance
       {¶ 273} The sole aggravating circumstance in this case was framed in
terms of alternative means: a single crime (aggravated murder) that might have
been committed in any of four ways (murder in the course of rape, kidnapping,
aggravated robbery, or aggravated burglary). See State v. Davis, 116 Ohio St.3d
404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 182-188 (noting that the predicate offenses
named in R.C. 2929.04(A)(7) are alternative means to support the offense of
aggravated felony murder). In a typical “alternative means” case, the jury must
be unanimous as to the defendant’s guilt of the crime charged, but need not be
unanimous as to the means by which the crime was committed. Id. For purposes
of our analysis here, in which we focus on the capital specification rather than on
the aggravated-murder offense itself, the predicate offenses listed in the R.C.
2929.04(A)(7) capital specification are “alternative means” of establishing that an
offense of aggravated murder meets the criteria for imposing a death sentence. To
find that the R.C. 2929.04(A)(7) specification has been proved when more than
one predicate offense is alleged, the jury must unanimously find beyond a
reasonable doubt that the defendant committed aggravated murder during the
course of one or more of the alleged predicate offenses, but the jury need not
unanimously agree on which predicate offense was committed.




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                               January Term, 2015




       {¶ 274} In a case such as this one, jury unanimity is not required as to the
means underlying the capital specification so long as substantial evidence
supports each alternative means. See State v. Gardner, 118 Ohio St.3d 420, 2008-
Ohio-2787, 889 N.E.2d 995, ¶ 49 (plurality opinion).
       {¶ 275} The state assumed the burden of producing sufficient evidence as
to each of the alternative means of the R.C. 2929.04(A)(7) specification here,
given the way the omnibus capital specification was presented to the jury.
Accordingly, the principles we apply can be stated as follows: In an appeal of a
death sentence based on an R.C. 2929.04(A)(7) specification when more than one
predicate offense is alleged but the jury has not made a finding as to which
predicate offense was committed, a reviewing court must determine under R.C.
2929.05(A) whether there is sufficient evidence to support each of the alternative
predicate-offense theories. The appellate court must determine whether a rational
trier of fact could have found each means of committing the crime of aggravated
murder in the course of the alleged R.C. 2929.04(A)(7) predicate offenses proved
beyond a reasonable doubt. When an appellate court reviews the sufficiency of
the evidence pursuant to R.C. 2929.05(A) as to the R.C. 2929.04(A)(7)
aggravating circumstance in an aggravated-murder case in which more than one
predicate offense is alleged but the jury has not made a finding as to which
predicate offense was committed and determines that the state proved some but
not all of the alleged alternative means that could establish the aggravating
circumstance, the evidence is, as a matter of law, insufficient to support a death
sentence and the death sentence must be vacated.
       {¶ 276} The DNA test results matching Adams to the semen sample, along
with the testimony from Tenney’s friends indicating that she would not have
engaged in consensual sex with him, constitute sufficient evidence to establish the
predicate offense of rape, pursuant to R.C. 2907.02(A)(2).




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        {¶ 277} We also hold that this evidence, coupled with the testimony
regarding the presence of ligature marks on Tenney’s wrists, is sufficient evidence
that Adams restrained Tenney’s liberty for the purpose of engaging in sexual
activity with her against her will. See R.C. 2905.01(A)(4), defining the crime of
kidnapping.
        {¶ 278} The state also presented sufficient evidence to establish the
predicate offense of aggravated robbery. At the time of the offense, former R.C.
2911.01(A)(2), defining aggravated robbery, provided that no person, “in
attempting; or committing a theft offense, as defined in section 2913.01 of the
Revised Code, or in fleeing immediately after such offense or attempt, shall * * *
[i]nflict, or attempt to inflict serious physical harm on another.” Am.S.B. No.
210, 140 Ohio Laws, Part I, 583, 590. And the definition of “theft offense” in
R.C. 2913.01(K)(1) then, as now, included the crime of aggravated robbery under
R.C. 2911.01. See Sub.S.B. No. 183, 140 Ohio Laws, Part I, 505, 510.
        {¶ 279} The testimony at trial established a sufficient basis for the jury to
conclude that Adams robbed Tenney of her ATM card, apartment key, and car
key and that he inflicted serious physical harm in the process. The fact that his
intent when he attacked Tenney may have been rape, and that he may have
decided to seize those items only after she was dead, is of no legal consequence.
See State v. Twyford, 94 Ohio St.3d at 354, 763 N.E.2d 122, and cases cited
therein (rejecting the argument that no robbery occurs if the victim is already dead
at the time of the theft).
        {¶ 280} However, based on the evidence presented at trial, we hold that
there was not sufficient evidence to establish that Adams committed aggravated
burglary.
        {¶ 281} The state presented evidence that Adams likely was inside
Tenney’s apartment at some point. Her television, with his fingerprints on it, was
in his apartment. He had a blue tissue in his pants pocket that may have matched




                                         66
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tissues that were found in her kitchen and had a potholder from her kitchen in his
apartment. And the testimony from Tenney’s friends supports an inference that
Adams’s presence in Tenney’s apartment was not with her permission.
       {¶ 282} But aggravated burglary requires more than proof of trespass.
State v. Howard, 8th Dist. Cuyahoga No. 85500, 2005-Ohio-5135, ¶ 12-13. The
state never committed to a single theory of where and under what circumstances
the rape and murder occurred, and in presenting its evidence, the state failed to
prove the essential elements that distinguish aggravated burglary from simple
trespass.
       {¶ 283} Aggravated burglary requires proof that the defendant trespassed
“by force, stealth, or deception.” R.C. 2911.11(A). Blanchard testified that he
saw no fresh signs of forcible entry into Tenney’s apartment, which undercuts a
theory that Adams forced his way through the door. Although it is possible that
Adams entered through stealth or deception, there was no probative evidence of
either. The state never directly addressed the manner by which Adams secured
entry to the apartment, and absent evidence of that type, the finding of the
specification pertaining to that underlying offense cannot stand. See Howard at
¶ 8-14 (reversing conviction for aggravated burglary because state presented no
evidence of how defendant entered house).
       {¶ 284} One possible theory of the crime is that Adams attacked Tenney
outside her apartment, raped and killed her at some other location, then later used
her keys to gain access. But under that scenario, the state would have failed to
prove two essential elements of aggravated burglary. First, if Adams raped and
killed Tenney in another location, then he would not have caused her “physical
harm” while inside her domicile, an “occupied structure.” R.C. 2911.11(A)(1).
See State v. Wade, 10th Dist. Franklin No. 06AP-644, 2008-Ohio-1797, ¶ 9
(aggravated burglary’s element of trespass by force, stealth, or deception is
“separate and distinct from the requirement that the State prove appellant




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inflicted, attempted, or threatened to inflict physical harm”). And second, to
establish that Adams committed aggravated burglary, the trial court instructed the
jury that the state was required to show that at the time he entered the apartment, a
person was present or likely to be present. See former R.C. 2911.11(A), Am.S.B.
No. 210, 140 Ohio Laws, Part I, 583, 590; State v. Fowler, 4 Ohio St.3d 16, 17-
19, 445 N.E.2d 1119 (1983) (construing former R.C. 2911.11(A); State v. Wilson,
58 Ohio St.2d 52, 58-59, 388 N.E.2d 745 (1979) (construing former R.C.
2911.11(A)). Tenney lived alone. So if Adams abducted Tenney outside her
apartment, she could not have been present in the apartment when Adams later
returned with the keys. The state presented no evidence to suggest that anyone
else was present or likely to be present in the apartment at whatever time Adams
entered it.
        {¶ 285} It is also possible that Adams accosted Tenney outside her
apartment, forced her to admit him to the upstairs apartment, and raped and killed
her there. But this scenario is purely speculative. The state presented no direct
physical evidence to establish where the rape occurred. It presented no evidence
of blood or semen stains found in the apartment, and no witness testified to seeing
evidence of a struggle. Nor was there circumstantial evidence that the rape
occurred in the apartment (for example, that her bed was stripped and the sheets
missing).
        {¶ 286} As we recognized in State v. Gardner, 135 Ohio St.3d 99, 2012-
Ohio-5683, 984 N.E.2d 1025, at ¶ 24, “There is always a temptation in criminal
cases to let the end justify the means, but as guardians of the Constitution, we
must resist that temptation.” The state chose to undertake to prove that Adams
committed a specific offense, aggravated murder in the course of aggravated
burglary, and by doing so, assumed the affirmative duty to prove all elements of
aggravated burglary in proving the capital specification. It failed to do so, and
that failure cannot be remedied by flinging a plank of hypothesis across an abyss




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                               January Term, 2015




of uncertainty, see Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799,
853 N.E.2d 1115, ¶ 103, even when the plank is flung by an appellate court
charged with reviewing the sufficiency of the evidence to support a jury’s verdict
on the ensuing specification. Simply put, a capital specification that leads to a
death sentence cannot be upheld based on mere supposition and speculation rather
than evidence establishing the specification beyond a reasonable doubt.
       {¶ 287} Given all the unknowns surrounding the commission of
aggravated burglary, we are compelled to conclude that no rational trier of fact
could find beyond a reasonable doubt that Adams committed that offense.
       {¶ 288} And we are compelled to hold that the state’s success in proving
some of the alternative means cannot make up for its failure to prove all the
suggested means by which Adams may have committed the aggravating
circumstance. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995,
at ¶ 49. Because the state failed to produce sufficient evidence to prove all
elements of aggravated burglary, we find insufficient evidence to support the
finding on the R.C. 2929.04(A)(7) capital specification.
       {¶ 289} Our holding today regarding the capital specification does not
affect Adams’s underlying conviction for aggravated murder. The concurring in
part and dissenting in part opinion of Justice O’Donnell calls it “logically
inconsistent” for us to vacate the capital specification based on insufficient
evidence, but not to vacate the underlying felony-murder conviction. Id. at ¶ 134.
Of course, the reason for this apparent inconsistency should be obvious: R.C.
2929.05(A) requires us to determine whether the evidence supports the jury’s
finding of the aggravating circumstance. We have no comparable authority to
review the sufficiency of the evidence as to the underlying conviction on our own
initiative. To the contrary, R.C. 2929.05(A) specifically directs us to review
convictions “in the same manner that [we] review other criminal cases.” Adams
has not challenged the sufficiency of the evidence supporting his aggravated-




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murder conviction, so the question is not before us, and we decline to consider it
sua sponte.
       {¶ 290} As indicated above, we adopted the rule that each possibility in an
alternative means case must be supported by sufficient evidence in State v.
Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶ 49. This
separate opinion urges us to abandon this rule in favor of the rule adopted in
Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).
Because the reasoning of Griffin has been subjected to legitimate criticism and
discredited for several reasons, we decline to do so.
       {¶ 291} Griffin held that in federal prosecutions, a general verdict based
on alternative means will be sustained if the evidence warrants a guilty verdict on
one theory of guilt, even if there is insufficient evidence of guilt as to an
alternative theory. Id. at 56-57. Griffin was premised on a dubious assumption of
juror infallibility: the jury will always disregard an unproven theory and convict
only on the proven theory. Id. at 59.
       {¶ 292} The Griffin assumption defies experience and common sense. As
the Supreme Judicial Court of Massachusetts explained, “[i]f the premise of the
Supreme Court’s position were correct, a jury would never return a guilty verdict
when the evidence was insufficient to warrant that verdict, and we know that is
not so.” Commonwealth v. Plunkett, 422 Mass. 634, 640, 664 N.E.2d 833 (1996).
When the Supreme Court of California adopted Griffin with modifications, one
justice who did not accept the court’s reasoning thoroughly dissected Griffin:


       First, the premise of jury “infallibility” is unsupported. Jurors may
       be “well equipped” to determine pure questions of fact. But their
       expertise does not extend to mixed questions of law and fact—
       which include the sufficiency of the evidence. Second, the premise
       of jury “infallibility” is subversive. If it obtained, we would be




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       compelled to dismiss at the very threshold each and every
       insufficient-evidence claim raised against any verdict of guilt. For
       we would then be required to conclude that if the evidence had
       indeed been lacking, the jury would necessarily have discerned the
       deficiency and could not possibly have rendered a guilty verdict.
       Thus, the bare fact of the verdict would establish the sufficiency of
       the evidence as a matter of law.


(Emphasis sic.) People v. Guiton, 4 Cal.4th 1116, 1132-1133, 17 Cal.Rptr.2d
365, 847 P.2d 45 (1993) (Mosk, J., concurring in judgment only). This illogical
result is precisely what the separate opinion of Justice O’Donnell urges this court
to adopt.
       {¶ 293} Ohio is far from an outlier in rejecting Griffin. The Supreme
Court of Washington was the first to reject Griffin and hold that its state law
demands sufficient evidence of each alternative means. State v. Ortega-Martinez,
124 Wash.2d 702, 707-708, 881 P.2d 231 (1994). A year later, in a felony-
murder case involving multiple predicate felonies, the Supreme Court of New
Jersey held that “when there is sufficient evidence to support two or more
alternative felony theories, a jury need not designate which felony theory it relies
on to convict one of felony murder so long as there is sufficient evidence to
sustain each felony.” State v. Harris, 141 N.J. 525, 562, 662 A.2d 333 (1995).
And one year later, the high court of Massachusetts delineated the logical fallacy
at the heart of Griffin. Plunkett, 422 Mass. at 640, 664 N.E.2d 833.
       {¶ 294} The same rule governs “alternative means” prosecutions in
Wyoming, see Bloomquist v. State, 914 P.2d 812, 819 (Wyo.1996), and
Oklahoma, see Ullery v. State, 1999 OK CR 36, 988 P.2d 332, ¶ 32, fn. 48 (“In
the absence of any underlying felony convictions, this Court will support a
general verdict of murder only where sufficient evidence supports both




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alternatives charged” [emphasis sic]). Kansas requires a “super-sufficiency” of
evidence in alternative means cases. See State v. McClelland, 301 Kan. 815, 819,
347 P.3d 211 (2015). And in Hawaii, unanimity as to alternative means is not
required only if “there is no reasonable possibility that the jury’s verdict was
based on an alternative unsupported by sufficient evidence.” (Emphasis added).
State v. Jones, 96 Haw. 161, 181, 29 P.3d 351 (2001).11
         {¶ 295} The separate opinion strives to create an impression of
overwhelming consensus in favor of Griffin, but the effort is unconvincing. As
the cases from our sister courts make clear, the states are far from one mind on
this topic. And the separate opinion’s recitation of 12 separate federal appellate
court cases adopting Griffin shows nothing more than the compliance of the
federal courts with the United States Supreme Court’s mandate in Griffin.
         {¶ 296} As additional support for the Griffin rule, the separate opinion
cites an opinion from Maine that actually holds the exact opposite. State v.
Fortune, 2011 ME 125, 34 A.3d 1115. Fortune was convicted of aggravated
attempted murder by alternative means: “pre-meditation-in-fact” and “extreme
cruelty.” The Supreme Judicial Court of Maine affirmed the conviction because
the evidence was “more than sufficient” to prove both alternative means. Id. at
¶ 36.
         {¶ 297} The Fortune opinion discussed Griffin in the context of the
defendant’s argument that because he was indicted on a single count of attempted
murder involving three victims, the jury should have been instructed that it had to
agree unanimously as to which person or persons was the victim. Id. at ¶ 24, 28.
The court held that a trial court should give such an instruction when requested,




11
  Given the amount of attention the state lavished on the property taken from Tenney’s apartment,
we cannot say there is “no reasonable possibility” that the jury’s verdict was not based, at least in
part, on the aggravated-burglary charge.




                                                 72
                                January Term, 2015




but Fortune had not made the request; instead, he asked for an instruction that the
jury had to convict him unanimously as to all three. Id. at ¶ 30-31.
       {¶ 298} This aspect of Fortune is irrelevant to the present case because the
court treated the multiple-victim scenario as a “multiple acts” case, akin to when
multiple theft or drug transactions are cited in a single charge. Id. at ¶ 31. The
“meaningful” distinction between alternative means and multiple acts cases is
fundamental to our jurisprudence. Gardner, 118 Ohio St.3d 420, 2008-Ohio-
2787, 889 N.E.2d 995, at ¶ 51. The separate opinion’s failure to appreciate the
significance of this distinction likely accounts for its reliance on State v. Johnson,
46 Ohio St.3d 96, 545 N.E.2d 636 (1989). The issue in Johnson concerned a
single charge that the defendant murdered the victim while committing
aggravated robbery, or while attempting to commit aggravated robbery, or while
fleeing immediately after committing aggravated robbery, or while fleeing
immediately after attempting aggravated robbery—a classic “multiple acts”
scenario. Id. at 105.
       {¶ 299} The separate opinion counts California in support of its view but
California adopted a modified version of Griffin. Under California law, “the
appellate court should affirm the judgment unless a review of the entire record
affirmatively demonstrates a reasonable probability that the jury in fact found the
defendant guilty solely on the unsupported theory.” (Emphasis added.) Guiton, 4
Cal.4th at 1130, 17 Cal.Rptr.2d 365, 847 P.2d 45. Griffin expressly rejected this
type of approach. See 502 U.S. at 58, 112 S.Ct. 466, 116 L.Ed.2d 371.
       {¶ 300} Based on the foregoing, we must vacate Adams’s sentence of
death and remand the case to the trial court for a new sentencing hearing. When
an appellate court reviews the sufficiency of the evidence to support a capital
specification and determines that the evidence is, as a matter of law, insufficient
to support a death sentence and vacates the death sentence, the state is barred by
the Double Jeopardy Clause of the United States Constitution from seeking the




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death penalty on remand. See Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct.
2141, 57 L.Ed.2d 1 (1978) (the Double Jeopardy Clause precludes a second trial
once the reviewing court has found the evidence legally insufficient).
                                   CONCLUSION
       {¶ 301} Given our decision to vacate the sentence of death, we hold that
propositions of law XX and XXI, concerning the constitutionality of Ohio’s death
penalty, and proposition of law XIX, challenging the trial court’s refusal to give a
mercy instruction, are moot.
       {¶ 302} We hereby vacate the sentence of death and remand the cause to
the trial court for a new sentencing hearing consistent with this decision and
pursuant to R.C. 2929.06(A).
                                                         Judgment affirmed in part
                                                                and vacated in part,
                                                              and cause remanded.
       PFEIFER, FRENCH, and O’NEILL, JJ., concur.
       O’DONNELL and KENNEDY, JJ., concur in part and dissent in part.
       LANZINGER, J., concurs in part and dissents in part.
                          _________________________
       O’DONNELL, J., concurring in part and dissenting in part.
       {¶ 303} Respectfully, I dissent from the decision of the majority to vacate
the sentence of death on its finding of insufficient evidence to support a capital
specification and to remand this case for a new sentencing where imposition of
capital punishment is precluded.
       {¶ 304} In my view, the majority opinion is logically inconsistent. It
affirms Adams’s conviction for aggravated murder for having purposely caused
the death of Gina Tenney while committing rape, kidnapping, aggravated robbery,
or aggravated burglary, stating, “As long as the jury unanimously convicts the
defendant of aggravated murder, the jurors need not be unanimous as to the




                                        74
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predicate offense or offenses the defendant committed.” Majority opinion at ¶ 93.
The majority apparently does not require the state to establish each alternative
means of committing the offense of aggravated murder by sufficient evidence,
because it upholds Adams’s conviction notwithstanding its determination that
there is no evidence he committed the aggravated burglary.
       {¶ 305} However, in its independent review of the death sentence, it
states, without citation to binding authority,


               When an appellate court reviews the sufficiency of the
       evidence * * * in an aggravated-murder case in which more than
       one predicate offense is alleged but the jury has not made a finding
       as to which predicate offense was committed and determines that
       the state proved some but not all of the alleged alternative means
       that could establish the aggravating circumstance, the evidence is,
       as a matter of law, insufficient to support a death sentence and the
       death sentence must be vacated.


Majority opinion at paragraph four of the syllabus. The majority then vacates the
death sentence based on the state’s failure to prove Adams committed an
aggravated burglary, one of the alternative means of establishing the aggravating
circumstance in this case.
       {¶ 306} The majority never adequately explains why the same analysis it
employs in reviewing the determination of guilt is also not employed for a
sentencing review. If the evidence of guilt is sufficient to support a finding of
guilt of aggravated murder, it is also sufficient to uphold the penalty
recommended by the same jury that found guilt, because in order to prove an
aggravated murder conviction and the aggravating circumstance necessary to




                                          75
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impose the sentence of death in this case, the state is required to prove the same
elements beyond a reasonable doubt.
       {¶ 307} The majority’s position also runs counter to Griffin v. United
States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), and Sochor v.
Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), where the court
upheld general jury verdicts notwithstanding the state’s failure to prove beyond a
reasonable doubt each of the alternative means presented to the jury.
       {¶ 308} In Griffin, a federal grand jury indicted Diane Griffin and two
others with conspiracy to defraud a federal agency with the objects of impairing
the efforts of the Internal Revenue Service (“IRS”) to determine income taxes and
impairing the efforts of the Drug Enforcement Administration (“DEA”) to
ascertain forfeitable assets. Id. at 47. At trial, the evidence failed to connect
Griffin to the conspiracy to impair the efforts of the DEA, but the trial court
nonetheless instructed the jury in a manner that permitted it to return a guilty
verdict against Griffin “if it found her to have participated in either one of the two
objects of the conspiracy”—i.e., impairing the efforts of the IRS or impairing the
efforts of the DEA. (Emphasis sic.) Id. at 48. The jury returned a general verdict
finding Griffin guilty, and the appellate court upheld the conviction, rejecting the
argument that the general verdict could not stand because it left in doubt whether
the jury had convicted her of conspiring to defraud the IRS, for which there was
sufficient proof, or of conspiring to defraud the DEA, for which there was not. Id.
       {¶ 309} The Supreme Court affirmed, explaining,


       It was settled law in England before the Declaration of
       Independence, and in this country long afterwards, that a general
       jury verdict was valid so long as it was legally supportable on one
       of the submitted grounds—even though that gave no assurance that




                                         76
                                January Term, 2015




       a valid ground, rather than an invalid one, was actually the basis
       for the jury’s action.


Id. at 49. It then articulated the prevailing rule: “ ‘[W]hen a jury returns a guilty
verdict on an indictment charging several acts in the conjunctive, * * * the verdict
stands if the evidence is sufficient with respect to any one of the acts charged.’ ”
Id. at 56-57, quoting Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24
L.Ed.2d 610 (1970).
       {¶ 310} The court stated that when a jury returns a general verdict on a
count of an indictment that alleges alternative means of committing the offense, it
is presumed that the jury entered the verdict only on grounds supported by
sufficient evidence. Id. at 49-50. Noting that “jurors are well equipped to
analyze the evidence,” the court declined to negate the verdict “ ‘merely on the
chance—remote, it seems to us—that the jury convicted on a ground that was not
supported by adequate evidence when there existed alternative grounds for which
the evidence was sufficient.’ ” (Emphasis sic.) Id. at 59-60, quoting United
States v. Townsend, 924 F.2d 1385, 1414 (7th Cir.1991).
       {¶ 311} More directly on point, in Sochor, 504 U.S. 527, 112 S.Ct. 2114,
119 L.Ed.2d 326, the court applied these principles to a capital case where
insufficient evidence proved one of the four aggravating circumstances supporting
imposition of the death penalty. The jury had found Dennis Sochor guilty of first-
degree murder and kidnapping, and in the penalty phase of the proceeding, the
trial court charged the jury on four aggravating circumstances—that he had a prior
conviction for a violent felony, that he committed murder in the course of
committing a felony, that the murder was especially heinous, atrocious, or cruel,
and that the murder was committed in a cold, calculated, and premeditated
manner. See Sochor v. State, 580 So.2d 595, 603 (Fla.1991), fn. 2. The jury
recommended the death penalty without specifying which aggravating




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circumstances it had found, and the trial court adopted the jury’s
recommendation. On appeal, the Supreme Court of Florida determined that the
coldness factor had not been proven by the state, but it nonetheless upheld the
death sentence, because after removing the coldness factor from consideration, the
sentence of death was proportionate to Sochor’s crime. Id. at 603-604.
        {¶ 312} On direct review, the United States Supreme Court declined to
presume that the jury relied on the coldness factor in finding that the aggravating
circumstances outweighed the mitigating circumstances. Relying on Griffin, the
court rejected Sochor’s suggestion that the death sentence must be set aside “if the
jury was allowed to rely on any of two or more independent grounds, one of
which is infirm,” explaining that “it was no violation of due process that a trial
court instructed a jury on two different legal theories, one supported by the
evidence, the other not,” because a jury “is indeed likely to disregard an option
simply unsupported by evidence.” Sochor, 504 U.S. at 538, 112 S.Ct. 2114, 119
L.Ed.2d 326. The fact that the jury had been presented with an aggravating
circumstance not supported by sufficient evidence therefore did not violate due
process or the Eighth Amendment. (Although the United States Supreme Court
found against Sochor on this issue, it vacated the judgment of the Florida
Supreme Court on other grounds, i.e., the Florida Supreme Court’s failure to
explain or declare its belief that the trial court’s express weighing of the coldness
factor which had not been proven by sufficient evidence was harmless beyond a
reasonable doubt in that it did not contribute to the sentence obtained. Id. at 540-
541.)
        {¶ 313} Recent decisions from every federal circuit court of appeals
demonstrate that Griffin and Sochor remain binding federal constitutional law.
E.g., United States v. Mensah, 737 F.3d 789, 811 (1st Cir.2013); United States v.
Desnoyers, 637 F.3d 105, 109 (2d Cir.2011); United States v. Tyler, 732 F.3d 241,
253 (3d Cir.2013); United States v. Robinson, 627 F.3d 941, 956 (4th Cir.2010);




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United States v. Garza-Robles, 627 F.3d 161, 166 (5th Cir.2010); United States v.
Dedman, 527 F.3d 577, 599 (6th Cir.2008); United States v. Borrero, 771 F.3d
973, 976 (7th Cir.2014); United States v. Boyle, 700 F.3d 1138, 1143 (8th
Cir.2012); United States v. Hui Hsiung, 778 F.3d 738, 760 (9th Cir.2015), fn. 10;
United States v. Schulte, 741 F.3d 1141, 1149 (10th Cir.2014); United States v.
Bradley, 644 F.3d 1213, 1250 (11th Cir.2011); United States v. Johnson, 216 F.3d
1162, 1165 (D.C.Cir.2000).
       {¶ 314} Further, the weight of authority from our sister supreme courts
demonstrates that a general verdict is not subject to reversal when the jury is
presented with alternative means supporting a finding of guilt, as long as at least
one of those alternative means is supported by sufficient evidence.           E.g.,
Commonwealth v. Knox, 105 A.3d 1194, 1197-1198 (Pa.2014); Batiste v. State,
121 So.3d 808, 840 (Miss.2013); Kaczmar v. State, 104 So.3d 990, 1003
(Fla.2012); State v. Santiago, 305 Conn. 101, 183, 49 A.3d 566 (2012), citing
State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994); State v. Fortune,
2011 ME 125, 34 A.3d 1115, ¶ 29; People v. Becoats, 17 N.Y.3d 643, 654, 934
N.Y.S.2d 737, 958 N.E.2d 865 (2011); State v. Berry, 227 W.Va. 221, 230, 707
S.E.2d 831 (2011); State v. Mailman, 148 N.M. 702, 2010-NMSC-036, 242 P.3d
269, ¶ 11; Inyamah v. United States, 956 A.2d 58, 62 (D.C.2008); Norris v. State,
2010 Ark. 174, 6, 368 S.W.3d 52; Gordon v. State, 121 Nev. 504, 507-508, 117
P.3d 214 (2005), citing Rhyne v. State, 118 Nev. 1, 10, 38 P.3d 163 (2002); State
v. Manning, 885 So.2d 1044, 1086 (La.2004); People v. Dunaway, 88 P.3d 619,
631 (Colo.2004); People v. Sanchez, 26 Cal.4th 834, 851, 111 Cal.Rptr.2d 129, 29
P.3d 209 (2001); Gonzalez v. State, 8 S.W.3d 640, 641 (Tex.Crim.App.2000);
People v. Griffin, 178 Ill.2d 65, 83-84, 687 N.E.2d 820 (1997).
       {¶ 315} And the holdings of Griffin and Sochor are consistent with Ohio
case law. Notably, in State v. Johnson, 46 Ohio St.3d 96, 545 N.E.2d 636 (1989),
we accepted “the assumption that, ‘when a jury returns a guilty verdict on an




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indictment charging several acts in the conjunctive * * * the verdict stands if the
evidence is sufficient with respect to any one of the acts charged.’ ” Id. at 104,
quoting Turner v. United States, 396 U.S. at 420, 90 S.Ct. 642, 24 L.Ed.2d 610.
       {¶ 316} The majority’s attempt to distinguish Johnson and Fortune, 2011
ME 125, 34 A.3d 1115, as multiple-act cases is questionable. Initially, there is no
indication that the distinction between alternative-means and multiple-act cases in
any way affects the analysis in these circumstances.
       {¶ 317} In Johnson, the charge and capital specification were similar to
Adams’s—felony murder with the predicate offense of aggravated robbery. See
46 Ohio St.3d at 104-106, 545 N.E.2d 636. Here, Adams could have been found
to have committed the aggravating circumstance based on an even greater array of
acts as stated in the second verdict form signed by the jury, i.e., “aggravated
murder while he was committing, attempting to commit or fleeing immediately
after committing or attempting to commit rape, aggravated burglary, aggravated
robbery, or kidnapping.”
       {¶ 318} In Fortune, the court distinguished cases in which “separate,
similarly situated victims or similar incidents such as thefts or drug transactions
are the evidence supporting a single charge,” id. at ¶ 31, explaining that in the
case before that court, “the attempted murder charged in Count 8 was really one
incident of the charged offense, not three incidents with three separate victims,”
id. at ¶ 33. Only in this context did the court address Griffin.
       {¶ 319} In addition, three of the states listed by the majority as “rejecting”
the Griffin analysis appear to have never addressed it in the first instance; and
those jurisdictions, at least in part, trace their holdings to federal cases that
predated and were later distinguished by Griffin. See State v. Harris, 141 N.J.
525, 562, 662 A.2d 333 (1995), citing Stromberg v. California, 283 U.S. 359, 51
S.Ct. 532, 75 L.Ed. 1117 (1931); Cloman v. State, 574 P.2d 410, 412 (Wyo.1978),
citing Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1 L.Ed.2d 1356




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(1956), and United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975); and
McGregor v. State, 1994 OK CR 71, 885 P.2d 1366, 1376, fn. 19, citing Yates.
Thus, it is not clear that New Jersey, Wyoming, and Oklahoma would not follow
Griffin, especially given the weight of authority supporting it.
       {¶ 320} The majority correctly mentions four jurisdictions that reject the
rule from Griffin.    Those courts did so, however, on independent state law
grounds. E.g., State v. Owens, 180 Wash.2d 90, 95, 323 P.3d 1030 (2014), fn. 2
(rejecting Griffin on the basis that “the right to a unanimous jury verdict in
criminal trials in Washington is rooted in article I, section 21 of our state
constitution and not the federal constitution”); State v. Jones, 96 Haw. 161, 181,
29 P.3d 351 (2001) (rejecting Griffin on the basis that “the due process protection
under the Hawai‘i constitution is not necessarily limited to that provided by the
United States Constitution”); State v. Owen, 344 P.3d 956, 2015 WL 1309978, *6
(Kan.2015) (memorandum opinion) (“based upon Kansas precedent applying
Kansas law, the Court of Appeals correctly determined that the State was required
to present sufficient evidence to support each alternative means on which the jury
was instructed”).
       {¶ 321} But in contrast to those cases, the majority identifies only a
plurality opinion in Ohio supporting its holding. The assertion that “we adopted
the rule that each possibility in an alternative means case must be supported by
sufficient evidence in State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889
N.E.2d 995, at ¶ 49,” majority opinion at ¶ 120, is a stretch. Gardner was a
plurality opinion, and because four justices declined to join it, nothing in that
opinion can be characterized as a holding of this court. See Article IV, Section
2(A), Ohio Constitution; Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134
Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 29.              And, although
Gardner’s observation on this point has never been adopted by this court as the
law in Ohio, Gardner nonetheless purported to apply the federal Due Process




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Clause, id. at ¶ 47-50, and that approach cannot stand in light of Griffin, which
held that due process does not require all alternative means to be proven by
sufficient evidence.
       {¶ 322} Nor does the majority rely on the due process protections afforded
by Article I, Section 16 of the Ohio Constitution as providing any greater
protection than does the United States Constitution in these circumstances. See In
re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 17 (“the due-
process rights provided by the Fourteenth Amendment and those provided by
Article I, Section 16 of the Ohio Constitution are coextensive”); State v. Bode,
___ Ohio St.3d ___, 2015-Ohio-1519, ___ N.E.3d ___, ¶ 31, 33 (French, J.,
dissenting) (explaining that the “due course of law” provision in the Ohio
Constitution is equivalent to the “due process of law” clause in the Fourteenth
Amendment and should be similarly construed absent compelling reasons why
Ohio constitutional law should differ from federal law).
       {¶ 323} In cases of this distinction where neither a verdict form requesting
a specific finding nor an interrogatory was submitted to the jury, we presume, as
the Supreme Court directs us to in Griffin and Sochor, that the jury acted
rationally, honestly, and intelligently and disregarded any alternative means of
committing the capital specification not proven by the evidence. Nothing in this
record affirmatively demonstrates that the jury relied on the aggravated burglary
allegations to support the capital specification charged in this case—and in his
brief to this court, Adams did not challenge the sufficiency of the evidence
supporting the aggravating circumstance found by the jury, likely because the jury
heard overwhelming and compelling evidence that Adams raped and kidnapped
Tenney.
       {¶ 324} Accordingly, neither the language of the Eighth Amendment nor
principles of due process requires this court to negate the jury’s verdict that
Adams committed the murder in the course of committing rape, kidnapping,




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aggravated robbery, or aggravated burglary pursuant to R.C. 2929.04(A)(7). And
the aggravating circumstance in this case outweighs the mitigating factors beyond
a reasonable doubt. Thus, there is no reason to negate the imposition of the death
sentence, and I would affirm the judgment of the court of appeals.
       KENNEDY, J., concurs in the foregoing opinion.
                          _________________________
       LANZINGER, J., concurring in part and dissenting in part.
       {¶ 325} I concur only in the court’s decision to vacate Bennie Adams’s
sentence of death based upon the state’s failure to produce sufficient evidence of
aggravated burglary.    But I respectfully dissent from the majority’s syllabus
statements, analysis, and affirmance of the conviction in this case, because I
believe that the wording of the jury’s verdict also invalidates the guilty verdict on
the charge of aggravated murder.
       {¶ 326} Adams was tried for aggravated murder based upon a charge of
felony murder under R.C. 2903.01(B), which states that “[n]o person shall
purposely cause the death of another * * * while committing or attempting to
commit, or while fleeing immediately after committing or attempting to commit,
kidnapping, rape, * * * aggravated robbery, * * * [or] aggravated burglary.” The
statutory language applicable to this case thus sets forth the possibility of any one
of four different offenses, rather than merely “a felony,” as the predicate offense
for felony murder.
       {¶ 327} The jury’s verdict form at issue specifies:


               We the jury in this case, duly impaneled, affirmed, and
       sworn, find the defendant Bennie L. Adams, guilty of committing
       the offense of aggravated murder while he was committing,
       attempting to commit or fleeing immediately after committing or
       attempting to commit rape, aggravated burglary, aggravated




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         robbery or kidnapping and Bennie L. Adams was the principal
         offender in the aggravated murder.


         {¶ 328} The jury was required to find that at least one of the four felonies
listed was proved beyond a reasonable doubt as a predicate offense to support
aggravated murder and the felony-murder capital specification.           And as an
element of the offense of aggravated murder and the capital specification, the
particular predicate offense was to be found by the jury beyond a reasonable
doubt.
         {¶ 329} But because the jury’s verdict is worded in the disjunctive—rape,
aggravated burglary, aggravated robbery, or kidnapping—and because the verdict
was not tested by an interrogatory to show what predicate offense or offenses
were found beyond a reasonable doubt, it is conceivable that the jury determined
Adams to be guilty of committing the offense of aggravated murder while
committing, attempting to commit, or fleeing immediately after committing or
attempting to commit only aggravated burglary. It is mere speculation that the
jury found that any of the other three felonies that would have been an element of
the aggravated-murder charge and the capital specification was proved. For this
reason, I believe that the case must be remanded for a new trial rather than merely
a new sentencing hearing.
         {¶ 330} We have held that a defendant’s right to a unanimous verdict does
not include a right to a unanimous theory of culpable conduct supporting that
verdict. See State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d
1144, ¶ 65; see also State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819
N.E.2d 215, ¶ 53-54. These cases provide that jurors in a capital case “need not
agree on a single means for committing an offense” and that there is no general
requirement that the jury agree on preliminary factual issues underlying the
verdict. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 188.




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       {¶ 331} The foregoing cases were decided relying on reasoning stated in
the plurality opinion in Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115
L.Ed.2d 555 (1991). But they do not satisfactorily discuss the line of recent cases
beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), and culminating in Alleyne v. United States, 570 U.S. ___,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). The majority cites a footnote in a
federal habeas case reviewing convictions obtained under Oklahoma law, Spears
v. Mullin, 343 F.3d 1215, 1236 (10th Cir.2003), fn. 20, along with a noncapital
case from Nevada, Crawford v. State, 121 Nev. 744, 750, 121 P.3d 582 (2005), to
say that Apprendi principles do not apply. But I believe that upholding this
defective verdict would amount to approving “judicial factfinding that increases
the mandatory minimum sentence for a crime” and would violate the Sixth
Amendment. Alleyne at 2155. On resentencing, the sentencing judge would be
asked to supply a fact (the existence of a specific predicate offense) when the jury
did not specifically make that finding in its verdict form. I have previously noted
that


       Alleyne follows a line of Sixth Amendment cases that recognizes
       the jury’s right and obligations as fact-finder. The jury must find
       all elements of a crime beyond a reasonable doubt. Id. at 2156. A
       judge cannot impose a sentence that relies on facts not reflected in
       the jury’s verdict. Apprendi v. New Jersey, 530 U.S. 466, 483, 120
       S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542
       U.S. 296, 304, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).


State v. Willan, ___ Ohio St.3d ___, 2015-Ohio-1475, __ N.E.3d ___, ¶ 39
(Lanzinger, J., dissenting). We must be especially mindful of these principles in a




                                        85
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capital case, in which the penalty of death—the ultimate penalty enhancer—is a
possibility.
        {¶ 332} Furthermore, given the further developments arising from the
Apprendi line of cases, I decline to join in Justice O’Donnell’s analysis of the
issues presented in this case, because both Griffin v. United States, 502 U.S. 46,
48, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (in which the court declined to address
whether a Sixth Amendment violation had occurred), and Sochor v. Florida, 504
U.S. 527, 538, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992) (in which the court
rejected an argument that the jury’s improper consideration of a sentencing factor
violated the Eighth Amendment), predated Apprendi and did not address a
defendant’s rights under the Sixth Amendment.
        {¶ 333} Because Apprendi prevents Adams from being sentenced upon
facts not reflected in the jury’s verdict, he cannot be sentenced based upon the
jury’s flawed verdict form. And the wording of the jury’s verdict in this case
prevents us from concluding that the jury found all elements of the crime of
aggravated murder beyond a reasonable doubt.
        {¶ 334} The majority concludes, and I agree, that insufficient evidence
was presented to establish that Adams committed aggravated burglary, one of the
alternative elements supporting the capital specification and the charge of
aggravated murder. Because the verdict form is worded in the disjunctive rather
than the conjunctive, it is possible that the jury’s verdict rested on an erroneous
finding that Adams committed aggravated burglary as the element supporting the
specification and the aggravated-murder charge. We cannot uphold Adams’s
guilty verdict when the jury did not make the required findings, and the ambiguity
of the jury’s verdict accordingly precludes us from affirming something that the
jury may not have even decided.
        {¶ 335} I disagree with the majority’s holdings that sufficient evidence
was presented to permit the jury to find that Adams committed rape, kidnapping,




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and aggravated robbery. The majority’s conclusions in this regard miss the key
point, which is that we do not and cannot know what the jury unanimously found
beyond a reasonable doubt—the verdict is not clear. I accordingly dissent from
the majority’s affirmance of the aggravated-murder conviction and would hold
that this case must be remanded for a new trial.
                          _________________________
       Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera and Martin P. Desmond, Assistant Prosecuting Attorneys, for appellee.
       John B. Juhasz; and Maro & Schoenike Co. and Lynn A. Maro, for
appellant.
                          _________________________




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