[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Roberts, Slip Opinion No. 2017-Ohio-2998.]




                                           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. 2017-OHIO-2998
            THE STATE OF OHIO, APPELLEE, v. ROBERTS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Roberts, Slip Opinion No. 2017-Ohio-2998.]
Criminal law—Aggravated murder—Death penalty—Sentence of death imposed
        after resentencing hearing—Death penalty affirmed.
     (No. 2014-0989—Submitted February 7, 2017—Decided May 30, 2017.)
           APPEAL from the Court of Common Pleas of Trumbull County,
                                     No. 2001 CR 793.
                                      ______________
        O’DONNELL, J.
        {¶ 1} This is the third time this case has been appealed to this court. After
our review of the first appeal, we affirmed convictions for aggravated murder,
aggravated burglary, and aggravated robbery but vacated the death sentence
imposed on Donna Roberts and remanded the matter to the trial court for
resentencing because the trial court had engaged in an ex parte communication with
                                SUPREME COURT OF OHIO




the prosecuting attorney and allowed the prosecutor to participate in drafting the
sentencing opinion. On remand, the trial court again imposed capital punishment.
         {¶ 2} On the second appeal, we again vacated the death sentence and
remanded the case, this time because we concluded that the trial court had failed to
consider the defendant’s allocution, since it was not referenced in the sentencing
opinion.
         {¶ 3} Pending our appeal, the trial judge retired and subsequently died, and
therefore a different judge presided over the third resentencing and imposed a
sentence of death.
         {¶ 4} Roberts now appeals from that third sentence and presents four
propositions of law. For the following reasons, we affirm the judgment of the trial
court.
                             Facts and Procedural History
         {¶ 5} Previous opinions in this case have set forth the facts of the killing in
detail. See State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168
(“Roberts I”), ¶ 1-86; State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998
N.E.2d 1100 (“Roberts II”), ¶ 1-7. For purposes of this opinion, we summarize the
facts as follows.
         {¶ 6} On December 12, 2001, Roberts reported the shooting death of
Robert Fingerhut at their home in Howland Township, located in Trumbull
County. After a week-long investigation, police arrested Roberts and Nathaniel
Jackson,1 a man she had been dating for two years and with whom she had been
having an affair. Roberts was separately indicted and tried for the aggravated
murder of Fingerhut. A jury found her guilty of aggravated murder with death




1
 Jackson was separately tried and convicted of murdering Fingerhut and sentenced to death.
See State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362, and State v. Jackson, ___
Ohio St.3d ___, 2016-Ohio-5488, __ N.E.3d __.




                                               2
                               January Term, 2017




penalty specifications and recommended a sentence of death, and at sentencing, the
trial court imposed that sentence.
        {¶ 7} The evidence presented at that trial reveals that although she and
Fingerhut were divorced, they lived together and were regarded as husband and
wife. Fingerhut owned two insurance policies on his life with a total benefit
amount of $550,000, both of which named Roberts as the sole beneficiary.
        {¶ 8} Roberts began an affair with Nathaniel Jackson, who later went to
prison on convictions unrelated to this case. During his incarceration, he and
Roberts exchanged numerous letters, which police recovered from her house and
the trunk of her car. Prison authorities also recorded 18 of their telephone
conversations.
        {¶ 9} The letters and conversations included extensive discussion of how
they intended to deal with Fingerhut upon Jackson’s release from prison.
Jackson repeatedly avowed that when he obtained his release, he would kill
Fingerhut. In one letter, Roberts complained about Fingerhut’s control of her
finances and urged Jackson to “[d]o whatever you want to him ASAP.” At
Jackson’s request, Roberts bought a ski mask and a pair of gloves for Jackson
to use during the murder.
        {¶ 10} On December 9, 2001, upon Jackson’s release, Roberts picked him
up at the prison and spent that night and much of the next two days with him.
        {¶ 11} On December 11, Fingerhut left work around 9:00 p.m. A witness
saw Roberts in her car around 9:30 p.m. She had given her cell phone to Jackson,
and telephone records show six calls from her cell phone to the phone in her car
between 9:45 and 10:00 p.m., and two more at 11:01 and 11:44 p.m. One call had
been placed from her car phone to her cell phone at 10:03 p.m.
        {¶ 12} That night, Roberts went to the Days Inn in Boardman, Ohio, and
reserved a room for a week. Police later found Jackson’s fingerprints in that
room.




                                        3
                             SUPREME COURT OF OHIO




       {¶ 13} After midnight on December 12, Roberts called 9-1-1 from her
residence and told the operator that something was wrong with her husband.
When police arrived, they found Fingerhut’s body on the kitchen floor. An
autopsy revealed that he had been shot and died from multiple gunshot wounds.
       {¶ 14} At 3:38 a.m., while officers were processing the crime scene,
the telephone rang.     Howland Township Detective Sergeant Paul Monroe
answered, but after a pause, the caller hung up without speaking. At trial, the
state established that this call originated from Roberts’s cell phone. Roberts later
admitted to detectives that “Nate [Jackson] must have had the phone. He’s always
borrowing it.”
       {¶ 15} On the afternoon of December 12, Monroe and Detective Sergeant
Frank Dillon interviewed Roberts at Howland Township police headquarters.
Roberts described her relationship with Fingerhut as “loving,” but claimed that
sexually, Fingerhut “did his thing [and] she did hers.” She also told the detectives
that she had been in a sexual relationship for six months with someone named
Carlos. When Monroe asked Roberts if she had relationships with anyone else,
Roberts replied, “No, there’s nobody else. I told you everybody.” Monroe then
asked about Jackson, and Roberts claimed she had forgotten about him.
       {¶ 16} She then admitted that she had been dating Jackson for two years,
that he had phoned her from prison, and that they had corresponded. She also
stated that she had last seen Jackson on December 9, when she picked him up at
the prison, but she added that she had last spoken to him over the telephone on
the morning of December 11.
                         Indictment, Trial, and Verdict
       {¶ 17} A grand jury indicted Roberts on two counts of aggravated murder,
R.C. 2903.01(A) (purposely causing death with prior calculation and design) and
(B) (felony murder). Both counts contained two death specifications pursuant
to R.C. 2929.04(A)(7): one charging aggravated murder during the commission




                                         4
                               January Term, 2017




of aggravated burglary and one charging aggravated murder              during the
commission of aggravated robbery, with each alleging prior calculation and design
and/or that Roberts was the principal offender. The indictment also charged her
with aggravated burglary, R.C. 2911.11, with a firearm specification, R.C.
2941.145, and aggravated robbery, R.C. 2913.01, with a firearm specification. The
jury found Roberts guilty of all counts and specifications. At sentencing, the
state elected to proceed on Count One (prior calculation and design), and the
trial court dismissed Count Two (felony murder) and its specifications.
                                    Sentencing
       {¶ 18} Before the mitigation hearing, Roberts informed her counsel that
she did not wish to present any mitigating evidence except an unsworn statement.
As a result, the court conducted an Ashworth hearing and found her competent to
make that decision. See generally State v. Ashworth, 85 Ohio St.3d 56, 706 N.E.2d
1231 (1999), paragraph one of the syllabus. At the mitigation hearing, Roberts
exercised her right pursuant to R.C. 2929.03(D)(1) to make an unsworn statement
to the jury and declined to present any other evidence. The jury recommended a
death sentence, and the trial court sentenced Roberts to death.
                                   First Appeal
       {¶ 19} On direct appeal, we affirmed her convictions for aggravated
murder, aggravated burglary, and aggravated robbery, but we vacated the death
sentence and remanded the case to the trial court because the judge had improperly
allowed the prosecutor to participate in drafting the sentencing opinion, and in
doing so had engaged in ex parte communication with the prosecutor. Roberts I,
110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1186, ¶ 153-164. We ordered
the trial judge on remand to “afford Roberts her right to allocute” provided by
Crim.R. 32(A)(1), to “personally review and evaluate the evidence, weigh the
aggravating circumstances against any relevant mitigating evidence, and




                                         5
                            SUPREME COURT OF OHIO




determine anew the appropriateness of the death penalty,” and to prepare “an
entirely new penalty opinion.” Roberts I at ¶ 167.
       {¶ 20} On remand, the trial court afforded Roberts her right to allocution,
and one week later, after asking her if she had anything further to say and hearing
argument from defense counsel, the court sentenced her to death and filed its
sentencing opinion pursuant to R.C. 2929.03(F).
                                 Second Appeal
       {¶ 21} Roberts appealed as of right from the second judgment imposing
the death sentence. On that appeal, we sustained the second proposition of law,
concluding that the court had failed to consider her allocution in determining her
sentence during the proceeding on remand. Roberts II, 137 Ohio St.3d 230, 2013-
Ohio-4580, 998 N.E.2d 1100, ¶ 51-76. For the second time, we vacated the death
sentence and remanded the case for resentencing. We directed the trial court as
follows:


               On remand, the trial court is to review the entire record,
       including Roberts’s allocution of October 22, 2007. The trial court
       shall consider the entire record—again, including the allocution—
       in determining whether the aggravating circumstances outweigh the
       mitigating factors beyond a reasonable doubt. The trial court shall
       then write and file a sentencing opinion pursuant to R.C. 2929.03(F)
       reflecting that it has complied with these instructions.
               In accordance with our holding as to Roberts’s first
       proposition of law, Roberts is not entitled to present any further
       evidence on remand. Moreover, because Roberts has been given her
       opportunity to make allocution pursuant to Crim.R. 32, she is not
       entitled to make another one.




                                         6
                                January Term, 2017




               Finally, while the trial court must consider Roberts’s
       allocution, nothing in today’s opinion should be interpreted as a
       determination that the matters discussed in her allocution are true or
       that the trial court must afford them any particular weight. It is for
       the trial court to determine in the first instance what mitigating
       factors, if any, are present in the case, and what weight, if any, they
       should be given.


Id. at ¶ 73-75. We further specified that “the trial court must make an independent
determination of whether a death sentence is appropriate and may not give
deference to the sentences previously entered.” Id. at ¶ 96.
       {¶ 22} The original trial judge in this case retired and subsequently died
during the pendency of the second appeal. Id. at ¶ 78. On remand, Judge Ronald
Rice presided over the resentencing.
       {¶ 23} Roberts filed a motion in the trial court to preclude a death sentence,
or in the alternative, to order a full penalty-phase hearing. In this motion, Roberts
argued that because Judge Rice had neither presided over the trial nor personally
heard her allocution, he could not properly weigh the aggravating circumstances
against the mitigating factors and sentence her to death.
       {¶ 24} On April 30, 2014, Judge Rice heard arguments on the defense
motion. He denied the motion on the grounds that (1) our instructions in Roberts
II regarding the proceedings on remand precluded granting the motion and (2) this
court in Roberts II had “already considered and rejected [Roberts’s] arguments”
with regard to the presentation of additional evidence.
       {¶ 25} Judge Rice then imposed sentence. He stated that he had carefully
reviewed the entire record, including the guilt and penalty phases of Roberts’s trial,
the record of proceedings on remand, including Roberts’s allocution, and all
exhibits. He also announced that he had “given no deference to the prior decisions




                                          7
                             SUPREME COURT OF OHIO




of” the original trial judge. Finally, he announced his finding that “the aggravating
circumstances outweigh the mitigating factors by proof beyond a reasonable doubt”
and that death was an appropriate sentence. He incorporated those findings into a
sentencing opinion that was later reissued nunc pro tunc to correct “editing
inconsistencies” in the original version.      At the hearing, he also reimposed
sentences on the noncapital counts and notified Roberts about postrelease control.
       {¶ 26} On this appeal, Roberts presents four propositions of law. Finding
merit in none, we overrule them all and affirm the judgment of the trial court.
                                 Substitute Judge
       {¶ 27} Roberts’s first and fourth propositions of law are related and will be
discussed together.
       {¶ 28} Roberts contends that when a capital case is remanded for
resentencing before a judge other than the one who originally imposed sentence,
capital punishment is precluded because no statutory provision specifically permits
such a procedure. She further argues that the Eighth Amendment precludes a death
sentence in these circumstances unless the substitute judge at least permits the
defendant to make a new allocution. In her fourth proposition, Roberts contends
that, if a death sentence is permissible in such a situation, R.C. 2929.06(B) requires
that the substitute judge empanel a new jury and conduct a new mitigation hearing
before imposing a death sentence.
       {¶ 29} We begin by examining the statutory arguments presented.
                                Statutory Arguments
       {¶ 30} In the first proposition of law, Roberts argues that “[t]he sentencing
option of death should have been precluded” on remand because “Ohio’s statutory
scheme does not provide a procedure for a * * * rewriting of the R.C. 2929.03(F)
opinion where the original judge is no longer available to write the opinion.”
       {¶ 31} Roberts bases this argument on State v. Penix, 32 Ohio St.3d 369,
513 N.E.2d 744 (1987). In Penix, a capital defendant appealed his conviction of




                                          8
                                 January Term, 2017




aggravated murder and sentence of death. The court of appeals affirmed the
conviction, but vacated the death sentence due to erroneous penalty-phase jury
instructions and remanded the case for resentencing. We affirmed the judgment of
the court of appeals. Id. at 370-372.
          {¶ 32} We then considered “the procedure to be employed, and the penalties
which may be imposed, upon resentencing.” Id. at 372. We held that a death
sentence could not be imposed on resentencing, because R.C. 2929.03(C)(2)(b)
specifically provided that “the trial jury and the trial judge shall sentence a
defendant who has been tried by jury and convicted of aggravated murder and one
or more [death] specifications.” (Emphasis sic.) Id. Further, we noted that R.C.
2929.03(D)(2) makes repeated reference to “the trial jury” weighing mitigating
factors     against   aggravating   circumstances    and   making    a   sentencing
recommendation. Id. at 372-373. “Thus, the decisions leading to a death sentence
must be made by the same jury that convicted the offender in the guilt phase. There
are simply no statutory provisions for another jury to make these crucial
determinations.” Id. at 373. Absent statutory authority, we declined to “create such
a procedure out of whole cloth.” Id.
          {¶ 33} In 1996, the General Assembly enacted legislation abrogating the
specific holding of Penix. See State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583,
972 N.E.2d 534, ¶ 6, 21, and paragraph one of the syllabus (discussing effect of
1996 amendments to R.C. 2929.06(B)).
          {¶ 34} Roberts argues by analogy that because no statutory provision
specifically authorizes a judge who has not previously presided over the case to
sentence a capital defendant on remand, such a procedure is as impermissible as the
retrial of the defendant’s sentencing phase before a new jury was in Penix.
          {¶ 35} The analogy fails. In Penix, we relied heavily on the language of
R.C. 2929.03(C)(2)(b) and 2929.03(D)(2), which specifically entrust the trial jury
with making the necessary findings in capital cases. At that time, and until the




                                          9
                             SUPREME COURT OF OHIO




enactment of R.C. 2929.06(B), no provision of law authorized any other jury to
perform that task.
       {¶ 36} It is true that R.C. 2929.03(C)(2)(b)(ii) similarly provides that a
capital defendant shall be sentenced “[b]y the trial jury and the trial judge, if the
offender was tried by jury.” (Emphasis added.) However, R.C. 2929.06(B) now
authorizes resentencing on remand in capital cases. And R.C. 2929.06(B) does not
require that the “trial judge” preside over a capital defendant’s resentencing.
Rather, it provides that if a death sentence is set aside due to sentencing error, “the
trial court that sentenced the offender shall conduct a new hearing to resentence the
offender.” (Emphasis added.)
       {¶ 37} The General Assembly’s use of the term “trial court” in R.C.
2929.06(B) suggests that it did not intend to require that the “trial judge,” i.e., the
individual who presided over the capital defendant’s trial, necessarily must also
preside over that defendant’s resentencing. See Metro. Secs. Co. v. Warren State
Bank, 117 Ohio St. 69, 76, 158 N.E. 81 (1927) (when General Assembly uses
certain language in one instance and wholly different language in another, it will
“be presumed that different results were intended”); Indus. Comm. v. Snyder, 113
Ohio St. 405, 415, 149 N.E. 397 (1925); State v. Herbert, 49 Ohio St.2d 88, 113,
358 N.E.2d 1090 (1976) (Corrigan, J., dissenting) (“the use of different language
gives rise to a presumption that different meanings were intended”).
       {¶ 38} In addition, the Rules of Criminal Procedure specifically authorize a
trial judge who has not presided over a trial to sentence a defendant. Crim.R. 25(B)
provides:


       If for any reason the judge before whom the defendant has been tried
       is unable to perform the duties of the court after a verdict or finding
       of guilt, another judge designated by the administrative judge, or, in
       the case of a single-judge division, by the Chief Justice of the




                                          10
                                     January Term, 2017




        Supreme Court of Ohio, may perform such duties. If such other
        judge is satisfied that he cannot perform those duties because he did
        not preside at the trial, he may in his discretion grant a new trial.


(Emphasis added.)
        {¶ 39} Thus, it is “entirely proper” for a substitute judge to sentence a
defendant after the retirement or death of the judge who presided over the
defendant’s trial. State v. Green, 122 Ohio App.3d 566, 571, 702 N.E.2d 462 (12th
Dist.1997). See also State v. Fitzpatrick, 1st Dist. Hamilton Nos. C-930413, C-
930439, B-927123, and B-928955, 1994 WL 164189 (May 4, 1994) (Crim.R. 25(B)
authorized substitution of judge on sentencing when substitute judge stated on
record that trial judge “would not be available for several months” and substitute
“had familiarized himself with the file”).
        {¶ 40} Crim.R. 25(B) applies to sentencing in general. We can find nothing
in its language that precludes its operation in a capital case. Moreover, the rule
applies by its terms to the situation in this case. Because the original trial judge
retired and subsequently died before we remanded the case in Roberts II,2 he was
“unable to perform the duties of the court after a verdict or finding of guilt.”
Crim.R. 25(B).
        {¶ 41} Roberts contends that we should take “guidance” from R.C.
2901.04(A), the rule of lenity. But the rule of lenity is not relevant here. R.C.
2901.04(A) provides that “sections of the Revised Code defining offenses or
penalties shall be strictly construed against the state, and liberally construed in
favor of the accused.” (Emphasis added.) No statutory definition of “offenses or



2
  Roberts incorrectly states that when we ordered resentencing in Roberts II, we assumed the trial
judge would conduct the resentencing. In fact, we understood that resentencing “necessarily
[would] be conducted by a different judge.” Roberts II, 137 Ohio St.3d 230, 2013-Ohio-4580, 998
N.E.2d 1100, ¶ 78.




                                               11
                             SUPREME COURT OF OHIO




penalties” is at issue here. This case involves the procedure for imposing a death
sentence on remand. “[S]ections of the Revised Code providing for criminal
procedure shall be construed so as to effect the fair, impartial, speedy, and sure
administration of justice.” R.C. 2901.04(B).
       {¶ 42} For the foregoing reasons, we reject Roberts’s claim that Ohio law
does not authorize the resentencing of a capital defendant on remand by a judge
other than the judge who presided over the trial.
       {¶ 43} The fourth proposition of law urges that if we reject the first
proposition of law, R.C. 2929.06(B) should apply to the resentencing and require a
de novo penalty-phase hearing before a new jury.
       {¶ 44} Roberts cites the following language of the statute:


               Whenever any court of this state or any federal court sets
       aside, nullifies, or vacates a sentence of death imposed upon an
       offender because of error that occurred in the sentencing phase of
       the trial and if division (A) of this section does not apply, the trial
       court that sentenced the offender shall conduct a new hearing to
       resentence the offender. If the offender was tried by a jury, the trial
       court shall impanel a new jury for the hearing.


(Emphasis added.) R.C 2929.06(B).
       {¶ 45} However, the error that invalidated the death sentence imposed in
this case—i.e., the trial court’s failure to consider Roberts’s allocution—took place
after the trial court discharged the jury. And the general rule is that “[u]pon remand
from an appellate court, the lower court is required to proceed from the point at
which the error occurred.” State ex rel. Stevenson v. Murray, 69 Ohio St.2d 112,
113, 431 N.E.2d 324 (1982); see also State v. Chinn, 85 Ohio St.3d 548, 565, 709
N.E.2d 1166 (1999). We find no indication in R.C. 2929.06(B) that the General




                                         12
                                   January Term, 2017




Assembly intended to abrogate that rule in capital cases. Thus, on the second
remand, the trial court was required to proceed from the point of error, not from an
earlier point in the sentencing proceedings.
           {¶ 46} In Roberts I, we left the jury’s penalty-phase recommendation
undisturbed because no reversible error infected it. Because a legally valid penalty-
phase jury verdict has already been rendered in this case, there is no reason to
empanel a jury and retry the evidentiary portion of either the guilt or penalty phases
of the proceeding.
           {¶ 47} “It is a cardinal rule of statutory construction that a statute should
not be interpreted to yield an absurd result.” Mishr v. Poland Bd. of Zoning
Appeals, 76 Ohio St.3d 238, 240, 667 N.E.2d 365 (1996). It would be absurd to
read R.C. 2929.06(B) as requiring that a new hearing be held and a new jury be
empaneled for resentencing in a case where the original jury’s recommendation of
death is untainted by error. Such an interpretation would be especially illogical in
light of recent precedent interpreting R.C. 2929.06(B). As we have observed, “[i]t
is evident that the intent of R.C. 2929.06(B) was to abrogate Penix and to make all
capital offenders whose death sentences are set aside eligible for a death sentence
on resentencing.” White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534,
at ¶ 21.
           {¶ 48} Therefore, when a capital case is remanded to a trial court for
resentencing pursuant to R.C. 2929.06(B), the trial court need not empanel a new
jury if the case has been remanded for an error, such as a postverdict sentencing
error on the part of the trial judge, that does not invalidate the jury’s verdict
recommending a death sentence.
           {¶ 49} Here, the matter involves a postverdict sentencing error on the part
of a trial judge that can be corrected on remand without the involvement of the jury.
Thus, we overrule the fourth proposition of law.




                                            13
                             SUPREME COURT OF OHIO




                             Constitutional Argument
       {¶ 50} Stressing the importance of the trial judge’s ability to see and hear
the defendant’s allocution and the evidence adduced in the penalty phase, Roberts
contends that it is impossible for a judge to properly consider or weigh the
mitigating factors present in the case by reviewing a cold record, and she urges that
such a procedure infringes on a capital defendant’s ability to have mitigation
properly presented and accurately assessed. She further contends that the Eighth
Amendment requires that the sentencer in a capital case “must be allowed to
consider and give effect to mitigating evidence relevant to a defendant’s character
or record or the circumstances of the offense.” Penry v. Lynaugh, 492 U.S. 302,
327-328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), overruled on other grounds,
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
       {¶ 51} Roberts cites Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57
L.Ed.2d 973 (1978) (plurality opinion), which states that the sentencer in a capital
case may “not be precluded from considering, as a mitigating factor, any aspect of
a defendant’s character or record and any of the circumstances of the offense that
defendant proffers as a basis for a sentence less than death.” (Emphasis sic.) See
also Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982) (sentencer may not “refuse to consider, as a matter of law, any relevant
mitigating evidence” [emphasis sic]); Skipper v. South Carolina, 476 U.S. 1, 106
S.Ct. 1669, 90 L.Ed.2d 1 (1986) (testimony about defendant’s good behavior in jail
pending trial was relevant and therefore could not be excluded); Hitchcock v.
Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (death sentence
invalid when instructions precluded jury’s consideration of mitigating
circumstances not enumerated in statute); Penry at 319-328 (instructions
preventing jury from giving effect to evidence of intellectual disability were
inconsistent with Lockett and Eddings).




                                          14
                                January Term, 2017




       {¶ 52} However, none of these cases address the question presented in this
case. In Saffle v. Parks, 494 U.S. 484, 490, 110 S.Ct. 1257, 108 L.Ed.2d 415
(1990), the Supreme Court explained, “There is no dispute as to the precise holding
in [Lockett and Eddings]: that the State cannot bar relevant mitigating evidence
from being presented and considered during the penalty phase of a capital trial.”
See also Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702
(1998) (“Our consistent concern has been that restrictions on the jury’s sentencing
determination not preclude the jury from being able to give effect to mitigating
evidence”). We recognized as much in Roberts II: “Each case in the Lockett-
Eddings-Skipper-Hitchcock tetralogy involved the trial court’s exclusion of, or
refusal to consider, evidence in the original sentencing proceeding.” 137 Ohio
St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 34.
       {¶ 53} In this case, the issue is not what information is constitutionally
relevant, but rather, it is whether a sentencing judge in a capital case may consider
mitigation presented by the defendant without having personally observed its
presentation in court.
       {¶ 54} Here, the assignment of Judge Rice to conduct the third sentencing
hearing based on review of the record and without hearing additional mitigating
evidence did not “bar relevant mitigating evidence from being presented and
considered during the penalty phase.” Saffle at 490. Roberts had an opportunity to
present mitigating evidence during the penalty phase of her trial, but she elected
not to do so.    Previously, she had made an unsworn statement and had an
opportunity for allocution. Judge Rice reviewed and considered her unsworn
statement, her allocution, and the evidence in the trial record before imposing
sentence for the third time.
       {¶ 55} Saffle rejected a capital defendant’s attempt to derive from Lockett
and Eddings “a rule relating, not to what mitigating evidence the jury must be
permitted to consider in making its sentencing decision, but to how it must consider




                                         15
                             SUPREME COURT OF OHIO




the mitigating evidence.” (Emphasis sic.) Saffle, 494 U.S. at 490, 110 S.Ct. 1257,
108 L.Ed.2d 415. Likewise, Roberts seeks to derive from Lockett and Penry a rule
“relating, not to what mitigating evidence the [judge] must be permitted to
consider,” but to how the judge must obtain it (i.e., by live presentation as opposed
to reviewing a record). Neither Lockett nor its progeny state or imply any such rule.
       {¶ 56} Indeed, the California Supreme Court has rejected similar
constitutional claims in two capital cases: People v. Espinoza, 3 Cal.4th 806, 12
Cal.Rptr.2d 682, 838 P.2d 204 (1992), and People v. Lewis, 33 Cal.4th 214, 14
Cal.Rptr.3d 566, 91 P.3d 928 (2004).
       {¶ 57} In Espinoza, the trial judge became ill during the guilt phase of the
trial and another judge reviewed the transcript and completed the trial. Espinoza at
827-828. Lewis, like this case, involved a capital case that had been remanded for
resentencing due to postverdict error. Lewis at 218. The original trial judge
withdrew, and the resentencing was assigned to a different judge, who denied a
defense request to present the guilt- and penalty-phase evidence by live testimony
and proceeded to sentence the defendant on the basis of the record. Id. at 224.
       {¶ 58} In both cases, the defendants argued that because the substitute judge
had not personally heard all the evidence, he could not properly impose a death
sentence. And in both cases, the court rejected that argument. Espinoza at 830;
Lewis at 226. The court in Lewis explained: “[W]hen the original trial judge is
unavailable, necessity requires the replacement judge to evaluate the credibility of
the witnesses as best he or she can from the written record.             We find no
constitutional obligation to provide more.” Id.
       {¶ 59} In the instant case, the retirement and death of the original trial judge
and the substitution of Judge Rice did not deny Roberts the ability to present
mitigating evidence or to have it considered by the sentencer. Her claim to the
contrary is not supported by the Lockett line of cases she cites, and both Lewis and
Espinoza, the only cases we have found that address this issue in the capital-




                                         16
                                January Term, 2017




sentencing context, reject the notion that a capital defendant may be sentenced to
death only by a judge who has personally presided over one or both phases of the
trial. We therefore reject this Eighth Amendment argument.
       {¶ 60} Accordingly, we overrule the first and fourth propositions of law.
                             The Sentencing Opinion
                         Weighing the Mitigating Factors
       {¶ 61} The second proposition of law concerns the weight the trial court
afforded the mitigating factors discussed in the allocution. Roberts concedes that
“the trial court did identify numerous factors in mitigation” but contends that they
received little weight because they were not properly considered by the trial court.
       {¶ 62} Roberts further argues that the trial court erred in stating that the
mitigating factors found in her allocution “do not even draw the Court’s attention
away from the aggravating circumstances,” and she suggests that the use of this
phrase reflects improper weighing, because a defendant is not required to offer
mitigation that “ ‘draw[s] the Court’s attention’ from the [aggravating
circumstances].”
       {¶ 63} The trial court’s use of this phrase does not constitute error. The
opinion of the trial court reflects that the proffered mitigating factors were weak
and lacked significance in comparison to the aggravating circumstances. R.C.
2929.03(D)(3) requires the trial court to determine whether the aggravating
circumstances outweigh the mitigating factors, and the language to which Roberts
objects does no more than express the trial court’s conclusion in that regard.
       {¶ 64} Roberts contends that the trial court engaged in improper speculation
that she made up allegations of domestic violence to induce Jackson to help her.
The sentencing opinion notes that Roberts made allegations in her letters to Jackson
“regarding the physical abuse she suffered at the hand of Mr. Fingerhut.” The
opinion later notes that “absolutely no evidence before the Court * * * support[ed]
the veracity of the physical abuse allegations.” Roberts claims that the trial court’s




                                         17
                             SUPREME COURT OF OHIO




discussion improperly “reduc[ed] the weight domestic violence should have been
provided.”
       {¶ 65} Roberts’s argument is premised on two misunderstandings of the
record. First, contrary to Roberts’s claim, the record does contain evidence that
Roberts falsely told Jackson that Fingerhut abused her. She implied as much in her
unsworn statement when she said: “I said a lot of things that weren’t true to
Nathaniel. My husband never touched me. He never laid a hand on me.” And
several of her letters describe physical altercations.
       {¶ 66} Second, as the trial court found, the record contains no evidence to
corroborate the claim of domestic violence found in Roberts’s letters. Roberts
herself repudiated that claim in her unsworn statement. Thus, the trial court did not
improperly “reduce the weight” of domestic violence as a mitigating factor; absent
any evidence of domestic violence, the court properly determined that domestic
violence should receive no weight.
       {¶ 67} Next, she contends that the trial court gave improper reasons for
minimizing the weight to be given to her statements in allocution that she had been
sexually abused as a child and that her auto accidents caused physical and mental
trauma and related depression. With respect to childhood sexual abuse, the trial
court noted the lack of any connection between the abuse and the murder of
Fingerhut. Roberts contends that “[t]here is no requirement” that a defendant
establish a “direct connection” between childhood sexual abuse and a capital crime.
       {¶ 68} It is true that a sentencer may not refuse to consider mitigating
evidence on the ground that no connection exists between that evidence and the
murder for which the defendant is being sentenced. See Smith v. Texas, 543 U.S.
37, 45, 48, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004) (evidence of defendant’s
troubled childhood and low IQ was constitutionally relevant despite lack of nexus
with murder; hence, instruction preventing jury from giving effect to that evidence
violated Eighth Amendment).




                                          18
                                January Term, 2017




       {¶ 69} But the trial court in this case did not refuse to consider Roberts’s
claim of childhood sexual abuse. Nothing in the sentencing opinion suggests that
the court would exclude or ignore the alleged abuse simply because no nexus could
be found between it and the murder.
       {¶ 70} Instead, the trial court merely recognized that a childhood trauma
that did contribute in some way to a defendant’s crime would necessarily have
greater impact on the defendant’s moral blameworthiness—and therefore would
deserve greater weight in mitigation—than a childhood trauma having no
connection to the crime. Whether mitigating factors help to explain the murder is
obviously relevant to the weight of those factors and may be considered by the
sentencer in assigning weight to them. See State v. Davis, 116 Ohio St.3d 404,
2008-Ohio-2, 880 N.E.2d 31, ¶ 402 (holding defendant’s childhood abuse “entitled
to weight” but noting that “there was no evidence of any significant connection
between [the defendant’s] childhood abuse and [the victim’s] murder”).
       {¶ 71} Next, Roberts contends that the sentencing opinion improperly
“minimized or de-valued” the mitigating weight of her auto accidents (which took
place in 1963, 1983, and 1999) and her resulting physical injuries, depression, and
suicide attempt. The opinion states that “these incidents are isolated and occurred
in a time frame so far removed from the murder of Mr. Fingerhut that their
relevance for mitigation is significantly decreased.”
       {¶ 72} Without citation to authority, she asserts: “There is no basis in law
for discounting mitigation because the court finds the lack of proximity in time to
the offense.” In other words, she argues that a sentencer may not attach less
significance to a mitigating factor on the ground that the factor came into existence
long before the murder.
       {¶ 73} Yet in assigning weight to a defendant’s traumatic childhood in State
v. Campbell, 95 Ohio St.3d 48, 765 N.E.2d 334 (2002), we took into account that
the defendant




                                         19
                             SUPREME COURT OF OHIO




       was nearly forty-nine years old when he committed the murder that
       is the subject of this case. He had reached “an age when * * *
       maturity could have intervened” and “had clearly made life choices
       as an adult before committing [this] murder.” * * * At forty-nine,
       [the defendant] had considerable time to distance himself from his
       childhood and allow other factors to assert themselves in his
       personality and his behavior.


(Emphasis and second brackets added.) Id. at 53, quoting State v. Murphy, 65 Ohio
St.3d 554, 588, 605 N.E.2d 884 (1992) (Moyer, C.J., dissenting).
       {¶ 74} The trial court’s reasoning here is similar to ours in Campbell—the
passage of many years between an alleged traumatic event and an aggravated
murder can diminish the mitigating weight attributed to the traumatic event—and
we adhere to the analysis in Campbell in this case.
       {¶ 75} Finally, Roberts complains that the sentencing opinion states that her
charitable works and “generosity,” as reported by her on allocution, and her claim
that she suffered from “mental trauma” seem inconsistent with her insistent
references to her financial success during the same allocution. Roberts argues that
the trial court improperly used “evidence of mitigation * * * to cancel out the weight
to be afforded clearly established mitigation.” She cites no authority for this
argument, nor does she explain why it is improper for the sentencing judge to point
out what appear to be contradictions in the defendant’s presentation.
       {¶ 76} Thus, the second proposition of law is not well taken.
          Consideration of the Nature and Circumstances of the Offense
       {¶ 77} The third proposition of law contends that the trial court improperly
used the nature and circumstances of the offense as an aggravating circumstance
based on the following language from the sentencing opinion:




                                         20
                               January Term, 2017




              Roberts planned and plotted for the murder of Fingerhut over
       a period of at least three months. She conspired with Jackson, her
       imprisoned lover, to murder Fingerhut for his life insurance
       proceeds. The murder plan was well documented through telephone
       calls recorded from Jackson’s residence[:] the Lorain Correctional
       Institut[ion]. In addition, detailed letters were exchanged between
       the loving couple outlining their plans. These plans included the
       acquisition of supplies, the procurement of a hotel room, and the
       promise of a new vehicle for Jackson—all provided by Roberts.
       Ultimately, Roberts provided access to the residence in order for
       Jackson to carry out the murder as planned.
              Despite these intricate details, Roberts “forgot” to include
       Jackson as one of her named lovers to the police during interviews.
       In addition, Roberts attempted to thwart the investigation into the
       Fingerhut murder by implicating other individuals[,] not Jackson.
       In addition, Roberts’s feigned emotional outbursts over Fingerhut’s
       death do not correlate to the insidious behavior relative to the same.
              Therefore, the court has granted little to no weight to any of
       the mitigating factors outlined by Roberts in her unsworn statement
       or her allocution.


       {¶ 78} Roberts argues that her planning and preparation, her pecuniary
motive, and her attempts to deceive the police and impede their investigation are
part of the nature and circumstances of the offense. Pursuant to R.C. 2929.04(B),
the nature and circumstances of the offense are mitigating factors and may not be
weighed on the side of aggravation in determining whether aggravation outweighs
mitigation. See generally State v. Stumpf, 32 Ohio St.3d 95, 99, 512 N.E.2d 598




                                        21
                              SUPREME COURT OF OHIO




(1987); State v. Wogenstahl, 75 Ohio St.3d 344, 354-355, 662 N.E.2d 311 (1996);
State v. Davis, 76 Ohio St.3d 107, 120, 666 N.E.2d 1099 (1996). Since the trial
court used these facts to determine that Roberts’s proffered mitigating factors were
to be “granted little or no weight,” she contends that the trial court in effect weighed
them against mitigation.
       {¶ 79} This contention lacks merit. “When a court correctly identifies the
aggravating circumstances in its sentencing opinion, we will presume that the court
relied only on those circumstances and not on nonstatutory aggravating
circumstances.” State v. Clemons, 82 Ohio St.3d 438, 447, 696 N.E.2d 1009
(1998). That presumption applies here because the sentencing opinion correctly
identifies the aggravating circumstances in this case, and Roberts failed to
overcome the presumption.
       {¶ 80} R.C. 2929.03(D)(1) requires the court to consider “the nature and
circumstances of the aggravating circumstances the offender was found guilty of
committing.”      Aggravating circumstances here consist of felony-murder
specifications pursuant to R.C. 2929.04(A)(7), which include findings that “the
offender * * * if not the principal offender, committed the offense with prior
calculation and design.” Thus, the detailed planning of this killing, which was
referenced in the sentencing opinion, is evidence that supports the finding of prior
calculation and design and therefore was properly considered as part of the statutory
aggravating circumstances in this case.
       {¶ 81} Moreover, it is settled law that the nature and circumstances of the
offense may also be used to explain why the aggravating circumstances outweigh
the mitigating factors. See, e.g., State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-
5048, 873 N.E.2d 1263, ¶ 183, citing State v. Sheppard, 84 Ohio St.3d 230, 238,
703 N.E.2d 286 (1998). In this case, the facts cited in the sentencing opinion are
relevant to the mitigation offered because they refute the defendant’s factual
assertions.




                                          22
                                January Term, 2017




       {¶ 82} In her unsworn statement and in her allocution, Roberts asserted that
she and Fingerhut had a good relationship and loved each other deeply. The trial
court reasonably viewed these statements to be inconsistent with the relationship
she had maintained with Jackson, her conspiracy with him to murder Fingerhut, her
pecuniary motive for that murder, and her feigned emotional outbursts during
police interviews. The sentencing opinion properly referred to these facts to refute
her claims.
       {¶ 83} The sentencing opinion does not treat the nature and circumstances
of the offense as nonstatutory aggravating circumstances. Instead, the opinion
correctly identifies the aggravating circumstances found by the jury’s verdict and
then discusses the facts of the case as they relate to those aggravating circumstances
and to the claimed mitigating factors. Roberts’s third proposition of law is therefore
overruled.
                             Sixth Amendment Claim
       {¶ 84} During oral argument, Roberts argued that the sentencing procedure
employed on remand violated Hurst v. Florida, ___ U.S. __, 136 S.Ct. 616, 193
L.Ed.2d 504 (2016), which held that Florida’s capital-sentencing scheme violated
the Sixth Amendment right to a jury trial because it “[did] not require the jury to
make the critical findings necessary to impose the death penalty” but instead
allowed the trial judge to increase the defendant’s “authorized punishment based
on her own factfinding.” Id. at ___, 136 S.Ct. at 622. We recognize that the United
States Supreme Court decided Hurst after the submission of briefs in this case, but
Roberts could have made essentially the same Sixth Amendment argument by
relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
       {¶ 85} We therefore decline to address this claim because it has not been
presented in a proposition of law or briefed by the parties, having been raised for
the first time during oral argument. When an appellant’s initial brief fails to




                                         23
                             SUPREME COURT OF OHIO




mention an argument as a basis for reversing the judgment under review, we need
not address that argument in deciding the appeal. State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17-19; State v. Carter, 27 Ohio St.2d
135, 139, 272 N.E.2d 119 (1971) (failure to include issue in brief “would warrant
our refusal to consider it”). As we observed in Quarterman, “ ‘justice is far better
served when it has the benefit of briefing, arguing, and lower court consideration
before making a final determination.’ ” Quarterman at ¶ 19, quoting Sizemore v.
Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. Because Roberts failed
to brief her Sixth Amendment claim, it is not properly before the court.
                         Independent Sentence Review
       {¶ 86} Pursuant to R.C. 2929.05, we are directed to independently review
Roberts’s death sentence and determine whether the evidence supports the jury’s
finding of aggravating circumstances, whether the aggravating circumstances
outweigh the mitigating factors, and whether the death sentence is proportionate to
those affirmed in similar cases.
                           Aggravating Circumstances
       {¶ 87} R.C. 2929.04 describes the death-penalty specifications to be
included in an indictment and provides:


               (A) Imposition of the death penalty for aggravated murder is
       precluded unless one or more of the following is specified in the
       indictment or count in the indictment pursuant to section 2941.14 of
       the Revised Code and proved beyond a reasonable doubt:
               ***
               (7) The offense was committed while the offender was
       committing, attempting to commit, or fleeing immediately after
       committing or attempting to commit kidnapping, rape, aggravated
       arson, aggravated robbery, or aggravated burglary, and either the




                                          24
                               January Term, 2017




       offender was the principal offender in the commission of the
       aggravated murder or, if not the principal offender, committed the
       aggravated murder with prior calculation and design.


       {¶ 88} In this case, the jury returned verdicts finding Roberts guilty of two
felony-murder specifications pursuant to R.C. 2929.04(A)(7): one predicated on
aggravated burglary and one predicated on aggravated robbery. And on each of the
felony-murder specifications, the jury found that Roberts had acted with prior
calculation and design in the aggravated murder.
       {¶ 89} We have previously determined that the state presented proof
beyond a reasonable doubt to support the jury’s verdict on the elements of
aggravated robbery and on the corresponding R.C. 2929.04(A)(7) capital
specification. See Roberts I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d
1168, ¶ 122-130.
       {¶ 90} The state also presented proof beyond a reasonable doubt to
support the jury’s finding of guilty in connection with the aggravated-burglary
specification. The evidence at trial established that Jackson murdered Fingerhut
during the commission of aggravated burglary and that Roberts aided and
abetted in the commission of that crime. See R.C. 2923.01(A)(1) and (2).
       {¶ 91} On December 8, Jackson told Roberts that he needed to be in the
house when Fingerhut came home. The murder that Roberts and Jackson had
planned over a two-month period took place in the house sometime between 9:00
p.m., when Fingerhut left work, and 12:01 a.m., when Roberts called 9-1-1.
Jackson and Roberts were seen together several times on the day of the murder and
had dinner at a restaurant, where they paid their check at 6:43 p.m.
       {¶ 92} The evidence further showed that Jackson had Roberts’s cell phone
in his possession, and phone records introduced at trial established that he and
Roberts were in near-constant communication between 9:45 and 11:45 p.m. on the




                                        25
                                SUPREME COURT OF OHIO




evening of the murder. And police found no signs of forced entry at the house,
permitting the inference that Roberts encouraged Jackson to commit the
aggravated burglary and gave him access to the house on the night of the murder,
thereby aiding and abetting the killing and the aggravated burglary.
        {¶ 93} Finally, the jury’s finding of prior calculation and design as alleged
in both capital specifications is supported by evidence of the correspondence and
taped conversations in which Roberts and Jackson planned the murder, as well as
Roberts’s purchase of a ski mask and gloves for Jackson’s use in carrying out the
plan. See Roberts I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at
¶ 35-84.
                                  Mitigating Factors
        {¶ 94} When considering whether the aggravating circumstances proved in
this case outweigh the mitigating factors beyond a reasonable doubt, we review
whether there is anything mitigating about the “nature and circumstances of the
offense, [and] the history, character, and background of the offender,” R.C.
2929.04(B), as well as the following specific mitigating factors: R.C.
2929.04(B)(1) (victim inducement), (B)(2) (duress, coercion, or strong
provocation), (B)(3) (mental disease or defect), (B)(4) (youth of the offender),
(B)(5) (lack of a significant criminal record), (B)(6) (accomplice only), and (B)(7)
(any other relevant factors).
        {¶ 95} At the mitigation hearing, Roberts declined to present any
evidence but did make an unsworn statement. In that statement, she asserted that
she would not beg the jury to spare her life. Instead, she used her statement to
expose witnesses who she claimed had lied, cheated, and abused their power
while testifying at trial. She disputed the testimony of various witnesses and the
evidence recovered from the Days Inn. She complained that her home had been
illegally   searched and accused       Sergeant Monroe, who had headed the




                                         26
                                    January Term, 2017




investigation, of planting evidence in order to further his ambition to become
Howland Township chief of police.
        {¶ 96} In her unsworn statement, Roberts contended that the trial had
shown the jury approximately five percent of her life, including the eight times
she had been with Jackson in the 14 months preceding the murder. She decried
the media coverage of the case because the coverage allegedly had ignored her
40-year career as a businesswoman. She also criticized the jurors as “young
inexperienced people” who did not read newspapers or watch the news.
        {¶ 97} She derided the idea that she would murder someone for $250,000,3
claiming that she and Fingerhut earned more than $200,000 per year. Roberts
stated: “I had everything. Now I have nothing. But the most important thing I
don’t have is Robert [Fingerhut], and my two little girls”—her dogs. She then
showed the jury photographs of the dogs.
        {¶ 98} Roberts denied that her correspondence with Jackson reflected an
actual plot to murder Fingerhut. She claimed that she had made a number of false
statements to Jackson and that she actually loved Fingerhut “very much.” She said
Fingerhut “never laid a hand on me” and “gave me everything I wanted, the same
as I did to him.”
        {¶ 99} Roberts also accused the prosecutor of appealing to racial and
religious prejudice and used her statement “to demand racial equality.” She
explained that she had refused to present mitigating evidence so that the jury
would have no choice but to return a death verdict. Her case and Jackson’s, she
argued, differed only in that she is white and he is black. Because Jackson had been
sentenced to death, she told the jury, “the right thing” would be to sentence her to
death too.



3
  In reality, Fingerhut’s two life insurance policies had a combined benefit amount of over twice
that. Roberts claimed in her unsworn statement that she had not known about one of the policies.




                                               27
                             SUPREME COURT OF OHIO




       {¶ 100} In her October 22, 2007 allocution, Roberts told her life story. She
was born in Youngstown in 1944. When she was five, her family moved to a farm
in what is now Austintown. As a child, Roberts said, she “tried to be happy and
positive,” but because there were five children in the family, she never got any
attention or affection, so she “always felt empty.”
       {¶ 101} Roberts stated that she grew up in an abusive household, observing
her father beat and verbally abuse her mother. Roberts said she “spent a lot of time
under [her] bed,” especially “when guns came out.” She also stated that, when she
was very young, a cousin raped her, resulting in internal injuries.
       {¶ 102} Roberts said she had always been on the honor roll in school and
on the dean’s list in college. After college, she married her first husband, moved
to Florida, and had a son in 1969. Her son enlisted in the Army, served in the
Judge Advocate General Corps, and then worked for the New Hampshire Attorney
General’s office.
       {¶ 103} Roberts recounted a long history of motor-vehicle accidents and
resulting injuries. In 1963, while attending college and working two jobs, she fell
asleep while driving and had a collision. As a result, she was hospitalized. She
told the jury, “[T]hey spent a long time picking glass out of me and I was like
spacey for awhile.” In 1983, a car ran a red light and collided with a car she was
in. She was hospitalized again and went to a neurosurgeon for months afterward.
       {¶ 104} In 1999, Roberts sustained serious injuries in a third accident.
Roberts remembered being in the hospital, but after that she could not remember
anything “for a long time.” She said she suffered from depression after the
accident, culminating in a suicide attempt. After this incident, she found herself in
a psychiatric ward, where she claimed to have suffered from auditory
hallucinations.
       {¶ 105} After the suicide attempt, Roberts began falling down repeatedly,
hitting her head, and losing track of what day it was. About seven months after




                                         28
                                January Term, 2017




her hospitalization, the Social Security Administration sent her to a psychiatrist.
As a result, Roberts began receiving benefits.
       {¶ 106} Roberts stated that she worked for “almost 23 years” in a plastic
surgeon’s office, where they “helped a lot of people.” She said that when she
operated a restaurant in the Youngstown bus terminal that Fingerhut owned, she
gave food and money to people who were short of money at the end of the month.
She also gave several thousand dollars to help her sisters and her son.
       {¶ 107} In 1980, Roberts converted to Judaism. She recounted how she
had raised money to rescue an Ethiopian Jew who was in danger of being murdered
in his home country. She also volunteered to assist wounded soldiers in Israel.
       {¶ 108} Roberts renewed her accusation that the police had committed
perjury at her trial. Contrary to both trial testimony and her own letter to Jackson,
she insisted that she had plenty of money and did not need to ask Fingerhut for it.
       {¶ 109} Roberts stated that she had been a “good writer” in high school and
college, was “creative,” and “had a great imagination.” Her correspondence and
conversations with Jackson, she said, were merely “stories.” She never initiated
discussions about “hurting anyone,” but just went along and wrote “what he told
me to write.”
       {¶ 110} Roberts concluded her allocution by saying: “I never intended for
anything like that to happen * * * and I still can’t believe it. We loved each other
and we had a good life.”
       {¶ 111} The statutory mitigating factor set forth in R.C. 2929.04(B)(6)
exists in this case, since the evidence at trial establishes that Roberts was not the
principal offender in the aggravated murder. Nonetheless, she had a central role
in the murder, which diminishes the weight of this factor. See State v. Herring,
94 Ohio St.3d 246, 267, 762 N.E.2d 940 (2002). There is no other evidence of
the statutory mitigating factors in this record. See Stumpf, 32 Ohio St.3d at 101-




                                         29
                             SUPREME COURT OF OHIO




102, 512 N.E.2d 598 (defendant bears burden of proving existence of mitigating
factors).
        {¶ 112} Roberts’s history, character, and background, as recounted in her
allocution and reflected in the trial record, present some mitigating features.
Roberts worked for a plastic surgeon in Florida, helped treat wounded soldiers
in Israel, operated a restaurant, and helped Fingerhut run the bus terminals. Her
work history and compassion for others deserve some weight in mitigation. See,
e.g., State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 281
(work history as mitigating factor). However, her uncorroborated claims of an
unhappy childhood are entitled to little weight, as is her claimed history of
mental problems stemming from injuries resulting from traffic accidents.
        {¶ 113} In light of the trial evidence, her claim that she loved Fingerhut
lacks credibility. And although she expressed sadness about Fingerhut’s murder,
she never accepted an y responsibility for it; rather, she chose to deny that she had
ever made plans with Jackson to kill Fingerhut, notwithstanding overwhelming
evidence to the contrary.
        {¶ 114} Finally, the nature and circumstances of the offense offer nothing
in mitigation. Motivated at least in part by greed, she assisted Jackson in
murdering Fingerhut in his home, which they planned prior to Jackson’s release
from prison.
                               Sentence Evaluation
        {¶ 115} After our independent review and weighing, we find that the
aggravating circumstances present in this case outweigh the mitigating factors
beyond a reasonable doubt. The evidence of the recorded telephone calls and the
letters exchanged between Roberts and Jackson shows that over a period of
months, Roberts and Jackson planned to kill Fingerhut and that she facilitated the
burglary of her home. Her active participation in the murder of Fingerhut and the




                                         30
                                January Term, 2017




accompanying felonies was essential to successfully committing these crimes. By
comparison, the mitigating factors carry little weight.
       {¶ 116} We find that the death penalty in this case is appropriate and
proportionate when compared with capital cases involving aggravated murder
committed during aggravated burglary, see State v. Davie, 80 Ohio St.3d 311,
686 N.E.2d 245 (1997), and for aggravated murder committed during
aggravated robbery, see State v. Burke, 73 Ohio St.3d 399, 653 N.E.2d 242
(1995); State v. Raglin, 83 Ohio St.3d 253, 699 N.E.2d 482 (1998).
       {¶ 117} We further find that the death sentence is proportionate to the
death sentence imposed on Jackson. See State v. Jackson, 107 Ohio St.3d 300,
2006-Ohio-1, 839 N.E.2d 362 (affirming death sentence), and State v.
Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414 (affirming
death sentence on appeal from resentencing).
       {¶ 118} Accordingly, we affirm the judgment of the Trumbull County
Court of Common Pleas.
                                                                 Judgment affirmed.
       KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., concur.
       O’CONNOR, C.J., concurs in judgment only.
       O’NEILL, J., concurs in part and dissents in part, for the reasons set forth in
his dissenting opinion in State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-
164, 981 N.E.2d 900.
                               _________________
       Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne
Annos and Ashleigh Musick, Assistant Prosecuting Attorneys, for appellee.
       David L. Doughten and Robert A. Dixon, for appellant.
                               _________________




                                         31
