        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0015P (6th Cir.)
                File Name: 00a0015p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                             ;
                              
 MICHAEL JEFFREY JOHNSON,
                              
        Petitioner-Appellant,
                              
                              
                                       No. 97-4092
          v.
                              
                               >
 RALPH COYLE, Warden,         
        Respondent-Appellee. 1


      Appeal from the United States District Court
       for the Northern District of Ohio at Akron.
   No. 96-00771—David D. Dowd, Jr., District Judge.
               Argued: February 5, 1999
          Decided and Filed: January 12, 2000
 Before: JONES, NELSON, and BOGGS, Circuit Judges.
                  _________________
                       COUNSEL
ARGUED: Luz V. Lopez-Ortiz, PUBLIC DEFENDER’S
OFFICE, OHIO PUBLIC DEFENDER COMMISSION,
Columbus, Ohio, for Appellant. Michael L. Collyer, OFFICE
OF THE ATTORNEY GENERAL OF OHIO, Cleveland,
Ohio, for Appellee. ON BRIEF: Luz V. Lopez-Ortiz, Linda
E. Prucha, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC
DEFENDER COMMISSION, Columbus, Ohio, for


                            1
2    Johnson v. Coyle                             No. 97-4092      No. 97-4092                                   Johnson v. Coyle         15

Appellant. Michael L. Collyer, OFFICE OF THE                       specification at Johnson’s retrial. This determination is
ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for                     properly made by the Ohio courts, and the parties are free to
Appellee.                                                          argue the issue in the forthcoming state proceedings.
                    _________________                                                                 III
                        OPINION                                       Sufficient evidence was presented at trial for a rational jury,
                    _________________                              viewing all the evidence most favorably for the prosecution,
                                                                   to find beyond a reasonable doubt that (1) Johnson killed
  BOGGS, Circuit Judge. An Ohio state-court jury convicted         Brunst, (2) Johnson killed Brunst with prior calculation and
Michael Johnson of two counts of aggravated murder, each           design, (3) Johnson killed Brunst while raping or attempting
with a capital specification, for the death of his sister, Susan   to rape Brunst, and (4) assuming that Ohio courts would
Brunst. One capital specification alleged that Johnson killed      interpret the “restraint of liberty” term of the Ohio kidnapping
Brunst with prior calculation and design; the other alleged        statute to be satisfied on the facts presented at trial, Johnson
that he killed her in the course of a kidnapping or rape. The      killed Brunst while kidnapping or attempting to kidnap her.
jury convicted Johnson on both counts and recommended a            There is no federal constitutional bar to the state’s retrying
sentence of death. The state court of appeals affirmed the         Johnson for murder or aggravated murder, nor for prosecuting3
conviction and sentence. See State v. Johnson, 1992 WL             a capital specification predicated on rape and/or kidnapping.
328492 (Ohio App. Nov. 4, 1992) (unpublished).                     The state may not prosecute a capital specification based on
                                                                   Johnson’s 1984 Florida conviction. Accordingly, we deny
  Johnson appealed to the Ohio Supreme Court, which                Johnson’s habeas petition.
reversed his conviction and remanded the case for a new trial.
See State v. Johnson, 643 N.E. 2d 1098 (Ohio 1994). The
Ohio Supreme Court found that (1) Johnson’s previous
Florida conviction for second-degree murder was not a
conviction for a specific intent crime and, therefore, cannot be
an aggravating circumstance upon which a capital
specification can be grounded, id. at 1103–04; (2) the
testimony of three of the four witnesses who testified that
Brunst told them about Johnson’s previous attempt to rape
Brunst was inadmissible hearsay, and admitting it was an
abuse of discretion, id. at 1104–05; (3) certain statements that
were admitted into evidence constituted inadmissible
character evidence, id. at 1105–06; and (4) a graphic and              3
                                                                          The magistrate judge asserted that Johnson “is no longer facing a
crude passage in an otherwise admissible letter from Johnson       death penalty” because his state case was not affirmed on appeal, citing
to Brunst was unfairly prejudicial, id. at 1106.                   Ohio Revised Code § 2929.06. J.A. at 21. The district court correctly
                                                                   held that such a conclusion is not based on a federal constitutional issue
  Johnson sought rehearing, arguing that the evidence              and, therefore, such a claim is not cognizable in Johnson’s habeas
presented at trial was insufficient to support his conviction      proceeding. Id. at 71. Whether § 2929.06 prohibits the death penalty in
and that a retrial would thus violate his right against double     Johnson’s case is a matter for the Ohio courts, and we make no ruling on
                                                                   that point. We note the issue to bring it to the parties’ attention for the
jeopardy. The Ohio Supreme Court denied rehearing.                 retrial.
14       Johnson v. Coyle                                No. 97-4092        No. 97-4092                             Johnson v. Coyle        3

   No evidence was presented that Brunst was killed,                        Johnson filed a habeas corpus petition in federal district court,
terrorized, or physically harmed anywhere other than at her                 again arguing that he may not be retried. The magistrate
apartment. There is no way to know if Brunst was killed in                  judge recommended denial of the petition. The district court
her apartment or removed alive and killed elsewhere.                        considered Johnson’s objections and denied the writ. The
Although a rational jury might find the elements of murder                  district court issued a certificate of probable cause, limited to
and/or aggravated murder without evidence of the exact                      Johnson’s sufficiency-of-the-evidence claim involving the
location of the killing, the same cannot be said for                        kidnapping and rape charges. We affirm the district court’s
kidnapping, which requires that Brunst’s apartment be ruled                 denial of Johnson’s petition.
out as the scene of the murder. There being no evidence for
the “purpose” element of kidnapping under either subsection                                                 I
(2) or (3) of Ohio Rev. Code Ann. § 2905.01(A), no rational
jury could find beyond reasonable doubt that Johnson                        A. The 1984 Florida Murder
committed kidnapping under those subsections.
                                                                              In 1984, Johnson pled guilty to murder in connection with
   Therefore, to predicate a capital specification on                       the death of a Florida woman, Denise Hutchinson. There
kidnapping, the state must prove beyond a reasonable doubt                  were numerous similarities in the circumstances of the two
that Johnson restrained Brunst’s liberty in order to engage in              killings. At trial in the case before us, the prosecution argued
sexual activity, under subsection (4) of of Ohio Rev. Code                  that the alleged pattern made it more likely that Johnson
Ann. § 2905.01(A). We held above that a rational jury could                 killed Brunst.
find beyond a reasonable doubt that Johnson raped Brunst. At
least one Ohio court has held that the physical restraint                      Johnson lived with Kathy Keller in Pierson, Florida, from
incident to rape may constitute the restraint of liberty required           1980 to 1984. Hutchinson was Keller’s friend, whom
for kidnapping. See State v. Hatton, 1999 WL 253450, *23                    Johnson “treated as a sister” although he was sexually
(Ohio Ct. App. April 19, 1999) (unpublished) (holding that                  attracted to her. After a fight between Johnson and Keller,
the defendant’s act of forcing himself on top of the victim                 Keller moved in with Hutchinson. Johnson felt that
constituted a restraint 2of liberty sufficient to support a                 Hutchinson was responsible for his break-up with Keller. He
kidnapping conviction). We are reluctant to consider this the               fought with Hutchinson, who forbade him to come to her
settled law of Ohio; however, that is a matter for the Ohio                 mobile home. On December 29, 1984, Florida police found
courts. We hold that if the Ohio courts allow a conviction for              Hutchinson’s body, nude from the chest down, lying in her
kidnapping on these facts, there is no federal constitutional               bed. Her face had been struck repeatedly with an iron skillet.
bar preventing the state from arguing the kidnapping capital                Hutchinson was very drunk when she was killed. She had
                                                                            semen in her vagina, but the quantity recovered was
                                                                            insufficient to determine the blood type of the donor. Johnson
     2
      To convict a defendant of both rape and kidnapping, Ohio law          eventually confessed to the murder. He was steadily
requires the prosecution to prove “separate animus” for the two crimes,     employed, but quit going to work immediately after the
see Ohio Rev. Code Ann. § 2941.25, which has not been shown on the          murder. Johnson pled guilty to murder in the second degree
evidence in the record. To support the capital specification, it must be    and was imprisoned in Florida. While in prison, he wrote a
possible for a rational jury to find beyond a reasonable doubt, on the      letter to his sister, Susan Brunst, referring to her as “a perfect
evidence viewed most favorably for the prosecution, that Johnson raped      10” and stating that he found her attractive. State v. Johnson,
or kidnapped Brunst. There was no need for the state to prove separate
animus because (1) either is sufficient in itself and (2) Johnson was not   643 N.E. 2d 1098, 1106 (Ohio 1994).
convicted of either rape or kidnapping.
4    Johnson v. Coyle                            No. 97-4092      No. 97-4092                            Johnson v. Coyle      13

B. The Charged Conduct                                            evidence. Four witnesses testified that Brunst told them of
                                                                  the Thanksgiving Sunday, 1989, rape attempt. The Ohio
   Johnson was released from prison in 1989 and moved back        Supreme Court ruled that the testimony of three of these
to Akron, Ohio, where he lived with his mother and younger        witnesses was erroneously-admitted hearsay, see Johnson,
brother, Thomas Johnson. Johnson’s sister, Susan Brunst,          643 N.E. 2d at 1104–05, but held that Cook’s testimony fell
also lived in Akron. She was involved with a married man,         within the “excited utterance” exception to the hearsay
Ron Cook.                                                         exclusion, id. at 1104. However, “‘where the evidence
                                                                  offered by the State and admitted by the trial court—whether
   Brunst told several friends that on the Sunday after           erroneously or not—would have been sufficient to sustain a
Thanksgiving, 1989, Johnson tried to rape her in her              jury verdict, the Double Jeopardy Clause does not preclude
apartment. The friends testified that according to Brunst,        retrial.’” United States v. Quinn, 901 F.2d 522, 530 (6th Cir.
Johnson told her he wanted to “lick her pussy,” held a knife      1990) (quoting Lockhart v. Nelson, 488 U.S. 33, 34 (1988)).
to her throat, pulled up her shirt, touched her breasts, and      Accordingly, for the purposes of this appeal we consider the
attempted to carry her to the bedroom, but that she was able      evidence from all four witnesses. Brunst’s body was found
to talk him out of raping her. After this incident, Brunst told   nude, and the prosecution also presented evidence that
her daughter, Cynthia, not to be alone with Johnson, and          Johnson wrote to Brunst from prison expressing his attraction
Brunst and Cook ceased socializing with him. Johnson later        to her.
admitted to police that on that Sunday he heard Brunst talking
on the telephone to a woman he was interested in, telling her       Viewing all of the evidence presented at trial in the light
that Johnson had been in prison and that he was kinky.            most favorable to the prosecution, a rational jury could have
Johnson said that he fought with Brunst and wanted to scare       found beyond a reasonable doubt that Johnson killed Brunst
her, but denied that he tried to rape her.                        during or immediately after raping or attempting to rape her.
                                                                  Allowing the state to argue a capital specification based on
   Johnson was treated briefly at Fallsview Psychiatric           rape will not subject Johnson to double jeopardy.
Hospital in February 1990. Johnson’s family apparently
attempted to have him committed at that time, but the court         In Ohio, kidnapping is defined as the forceful removal or
released him after three days. Johnson was angry at the           restraint of another in order to to hold the victim for ransom
family, particularly his brother and Brunst, for trying to        or as a hostage or shield, to facilitate the commission of a
commit him, and told his brother that nobody would get away       felony, to terrorize or inflict serious physical harm on the
with “putting him away like that.”                                victim or another, or to engage in sexual activity against the
                                                                  victim’s will. There is no evidence that Johnson sought
  A woman who lived with Johnson’s aunt, Donna Gray,              ransom for Brunst or used her as a shield or hostage.
testified that Johnson spent every weekend at Gray’s house in     Therefore, no rational jury could have found that Johnson
Diamond, Ohio, to drive his Jeep on trails there. On May 27,      committed kidnapping under subsection (1) of Ohio Rev.
1990, Johnson took several relatives and friends with him and     Code Ann. § 2905.01(A). However, he may have removed
showed them a trail off of Jones Road, behind the post office,    her from her apartment to facilitate killing her or to terrorize
that he had discovered the day before. Brunst’s body was          or harm her, or he may have restrained her liberty to engage
eventually found near this trail. Johnson did not visit Gray      in sexual relations against her will.
the weekend that Brunst disappeared.
12   Johnson v. Coyle                              No. 97-4092    No. 97-4092                           Johnson v. Coyle      5

  the place where he is found or restrain him of his liberty,        On Friday, June 1, 1990, Brunst and Cook argued at her
  for any of the following purposes:                              apartment. Brunst told Cook that she planned to spend the
    (1) To hold for ransom, or as a shield or hostage;            weekend drunk. She drank and smoked marijuana with a
    (2) To facilitate the commission of any felony or flight      friend that evening, then went to the East Akron Eagles Club,
  thereafter;                                                     where she had two more drinks and left for home at
    (3) To terrorize, or to inflict serious physical harm on      approximately 11:00 p.m. Johnson entered the Eagles Club
  the victim or another;                                          with James Westberg about fifteen minutes after Brunst left.
    (4) To engage in sexual activity, as defined in section       The barmaid told Johnson that he had just missed his sister
  2907.01 of the Revised Code, with the victim against his        and that she was drunk. Later, Johnson went to the pay phone
  will.                                                           and, on his return, stated that he got no answer at Brunst’s
                                                                  house, but that he was sure she made it home safely and
Ohio Rev. Code Ann. § 2905.01(A) (“Kidnapping”).                  would check on her the next morning. Cook, who was out of
                                                                  town, also tried to call Brunst several times that night. At
     (A) “Sexual conduct” means vaginal intercourse               midnight, Brunst answered. After a brief argument, Cook
  between a male and female; anal intercourse, fellatio, and      hung up, but immediately called again. Brunst told Cook that
  cunnilingus between persons regardless of sex; and,             she was alone, that she was going to be sick, and that she had
  without privilege to do so, the insertion, however slight,      to go. Cook called a third time “almost immediately,” but got
  of any part of the body or any instrument, apparatus, or        no answer.
  other object into the vaginal or anal cavity of another.
  Penetration, however slight, is sufficient to complete            Johnson and Westberg left the Eagles Club in Johnson’s red
  vaginal or anal intercourse.                                    Jeep at 1:00 a.m., when the club closed. Johnson said he
     (B) “Sexual contact” means any touching of an                wanted to check on his sister, so he drove to her apartment.
  erogenous zone of another, including without limitation         Johnson went into Brunst’s apartment with a Budweiser beer
  the thigh, genitals, buttock, pubic region, or, if the person   can. While Johnson was inside, Westberg got out of the Jeep
  is a female, a breast, for the purpose of sexually arousing     and vomited for about ten minutes. Johnson came back
  or gratifying either person.                                    outside without his beer, and the two drove to the apartment
     (C) “Sexual activity” means sexual conduct or sexual         complex where they both lived. Johnson told Westberg that
  contact, or both.                                               Brunst was drunk and vomiting, naked, with the door wide
                                                                  open, and referred to her repeatedly as a “stupid bitch.” When
Ohio Rev. Code Ann. § 2907.01 (in relevant part).                 he pulled up at their apartment building, Johnson did not stop
                                                                  the engine. Johnson was still in the Jeep with the engine
  The prosecution presented evidence that Johnson had been        running when Westberg entered his apartment. At 4:30 that
convicted of murdering Hutchinson in 1984, that her body          morning, another neighbor, who was returning home, saw
was found with semen in the vagina, and that she would not        Johnson leaving the apartment complex in his red Jeep. On
have consented to sexual relations with Johnson, see Johnson,     Saturday, June 2, Johnson did not show up for work. A
643 N.E. 2d at 1105. Johnson viewed both women as sisters,        coworker testified that before that day, Johnson had never
both had angered him, and in both cases he appears to have        missed work.
reacted with sexual violence toward the source of his anger
and rejection. The similarity of the two cases suggests a           Cook went to Brunst’s apartment at 9:00 a.m. on Saturday,
pattern, which a rational jury might have inferred from the       June 2, 1990, and found the door open. He found an address
6    Johnson v. Coyle                           No. 97-4092      No. 97-4092                            Johnson v. Coyle      11

book and a small jewelry box outside the door, but there was       The Ohio Supreme Court held that purposeful killing is not
no sign of a struggle. Cook testified that some of the clothes   an element of the Florida second-degree murder statute and,
he saw Brunst wearing the day before were there, but that he     consequently, that Johnson’s “1984 Florida conviction of
found only one of the pink socks that she had been wearing.      second-degree murder was insufficient to prove the R.C.
Cook found a Budweiser can in the bedroom. Cook handled          2929.04(A)(5) aggravating circumstance.” See State v.
many items, cleaned up the vomit around the toilet, and          Johnson, 643 N.E. 2d 1098, 1103–04 (Ohio, 1994).
generally spoiled the apartment as a crime scene. An Akron       “Whereas an appellate court on habeas review decides federal
detective interviewed Cook at the apartment that evening.        law questions de novo . . . , the federal reviewing court is
                                                                 generally bound by state court interpretations of state law.”
   Akron police interviewed Johnson several times after          Caldwell v. Russell, 181 F.3d 731, 735-36, (6th Cir. 1999)
Brunst was reported missing. On June 3, 1990, Johnson            (citing Marshall v. Lonberger, 459 U.S. 422, 431 (1983), and
admitted that he had left his beer can at Brunst’s apartment.    Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Accordingly,
On June 5, Johnson spoke of Brunst in the past tense and told    we defer to the Ohio Supreme Court and hold that there was
police that although he was not guilty of the murder, he might   insufficient evidence to prove the specific intent capital
as well confess and get it over with because his family was      specification.
trying to slander him. He said that he had learned from his
mother and his aunt Donna that Brunst’s body had been            D. Sufficiency of the Evidence re: Rape/Kidnapping
moved twice; that Brunst had never been in his Jeep; that he        Capital Specification
killed Brunst for sex, drugs, and money; and that while he
was in prison in Florida he discussed committing the perfect       Again, under Ohio law, “[i]mposition of the death penalty
crime with Ted Bundy. On June 8, Johnson maintained eye          for aggravated murder is precluded unless one or more of the
contact with the police officer who was questioning him until    following is specified in the indictment or count in the
he was asked about Brunst. During June 1990, Johnson sold        indictment pursuant to section 2941.14 of the Revised Code
his car, told his landlady that he was moving out, and refused   and proved beyond a reasonable doubt:”
to help his family look for Brunst.
                                                                     ....
  On June 27, 1990, a Portage County deputy sheriff found
what later proved to be Brunst’s nude body, badly                    (7) The offense was committed while the offender was
decomposed, near Jones Road in Diamond, Ohio. The deputy           committing, attempting to commit, or fleeing
coroner concluded that “homicidal violence” was involved.          immediately after committing or attempting to commit
Near the body, police found a pink sock matching the one           kidnapping, rape, aggravated arson, aggravated robbery,
found at Brunst’s apartment, a pair of panties of the kind         or aggravated burglary, and either the offender was the
Brunst wore, and a piece of carpet torn from Johnson’s truck.      principal offender in the commission of the aggravated
In an attempt to identify the body, Portage County deputy          murder or, if not the principal offender, committed the
sheriffs interviewed Johnson, who happened to be the first         aggravated murder with prior calculation and design.
relative they were able to contact. Johnson told the deputies
that they might as well charge him because everyone thought      Ohio Rev. Code Ann. § 2929.04(A) (in relevant part).
that he killed Brunst.
                                                                     No person, by force, threat, or deception, or, in the case
                                                                   of a victim under the age of thirteen or mentally
                                                                   incompetent, by any means, shall remove another from
10    Johnson v. Coyle                             No. 97-4092    No. 97-4092                            Johnson v. Coyle      7

C. Sufficiency of the Evidence re: Specific Intent Capital          On June 29, 1990, Akron detectives again interviewed
   Specification                                                  Johnson. The first thing Johnson said to the officers was “I’m
                                                                  the killer,” and he dared them to arrest him. Johnson gave the
  Under Ohio law, “[i]mposition of the death penalty for          officers several accounts of the murder, saying he bludgeoned
aggravated murder is precluded unless one or more of the          Brunst with a tire iron, then that he stabbed her, and finally
following is specified in the indictment or count in the          that he shot her, referring to Brunst throughout as a “bitch”
indictment pursuant to section 2941.14 of the Revised Code        and a “whore.” None of the accounts of the murder itself
and proved beyond a reasonable doubt:”                            were plausible in light of the lack of evidence of traumatic
                                                                  injury to the recovered body, although in each case Johnson
     ....                                                         said that he dumped the body behind the post office in
                                                                  Diamond. On June 30, 1990, Akron police officers arrested
    (5) Prior to the offense at bar, the offender was             Johnson. At his arraignment, Johnson stated that he was tired
  convicted of an offense an essential element of which           of it all and just wanted to plead guilty.
  was the purposeful killing of or attempt to kill another, or
  the offense at bar was part of a course of conduct                                            II
  involving the purposeful killing of or attempt to kill two
  or more persons by the offender.                                   Johnson argues that there is insufficient evidence that
                                                                  Brunst was a victim of homicide at all; that even if there is
Ohio Rev. Code Ann. § 2929.04(A) (in relevant part).              evidence that he killed Brunst, there is insufficient evidence
                                                                  that the killing was a result of prior calculation and design;
    A person acts purposely when it is his specific               that there is insufficient evidence that Brunst’s death was
  intention to cause a certain result, or, when the gist of the   connected with rape; and that there is insufficient evidence
  offense is a prohibition against conduct of a certain           that Brunst’s death was connected with kidnapping. Although
  nature, regardless of what the offender intends to              the Ohio Supreme Court found reversible error in Johnson’s
  accomplish thereby, it is his specific intention to engage      trial, and even though that court several times referred to the
  in conduct of that nature.                                      evidence as “weak” or as “not overwhelming,” it stopped
                                                                  short of holding that the evidence was insufficient to support
Ohio Rev. Code Ann. § 2901.22(A).                                 a conviction. See State v. Johnson, 643 N.E. 2d 1098 (Ohio
                                                                  1994).
  There is no evidence that Johnson killed or attempted to kill
more than one person in the case now before us. The statute         When a defendant challenges the sufficiency of the
under which he was previously convicted in Florida states:        evidence to support a conviction, we inquire “whether after
                                                                  viewing the evidence in the light most favorable to the
     The unlawful killing of a human being, when                  prosecution, any rational trier of fact could have found the
  perpetrated by any act imminently dangerous to another          essential elements of the crime beyond a reasonable doubt.”
  and evincing a depraved mind regardless of human life,          Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en
  although without any premeditated design to effect the          banc); Jackson v. Virginia, 443 U.S. 307, 319 (1979).
  death of any particular individual, is murder in the
  second degree . . . .
Fla. Stat. Ann. § 782.04(2) (in relevant part).
8     Johnson v. Coyle                             No. 97-4092      No. 97-4092                                   Johnson v. Coyle           9

A. Sufficiency of the Evidence re: Murder                           death”).1 We held above that a rational jury could, on the
                                                                    evidence in the record, find beyond a reasonable doubt that
   “No person shall purposely cause the death of another . . . .”   Johnson killed Brunst. Unless that jury were to find that
Ohio Rev. Code Ann. § 2903.02 (“Murder”). Viewing the               Johnson killed Brunst on his first visit, while Westberg was
evidence most favorably to the prosecution, there is no doubt       waiting outside, it must necessarily find that he returned to do
that a rational jury could have found that Johnson killed           it. While it is possible that he could have returned with pure
Brunst. Johnson is the last person known to have seen Brunst        motives and, once he was there, killed Brunst in a moment of
alive. He was angry with her just after he saw her. He sat in       passion, (1) this does not seem likely, and (2) even if it is
his running vehicle rather than enter his apartment when he         possible, a rational jury might find, on the evidence presented,
drove home. A neighbor saw him leaving home at 4:30 a.m.            that he returned later to kill her after calculating and forming
the morning Brunst disappeared. Brunst’s nude body was              a plan.
found near an off-road trail Johnson had found days before
Brunst disappeared. A piece of carpet from Johnson’s Jeep              Johnson was mad at Brunst when he and Westberg left her
was found near the body. Johnson, who had a perfect work            apartment at approximately 1:30 a.m. He displayed no
attendance record, did not show up for work the morning after       injuries, and there was no sign of a struggle at Brunst’s
Brunst disappeared, similar to his behavior after the               apartment. These facts suggest that there was no “triggering
Hutchinson murder. Johnson did not visit his aunt in                event” to ignite Johnson’s passions after he returned. If
Diamond that weekend, as he had done every weekend for a            Brunst was alive when Johnson left her apartment at
year. Johnson sold the vehicle that the piece of carpet was         approximately 1:30 a.m., and he killed her later, it was most
taken from. Johnson told his landlady he was going to move          likely with “prior calculation and design.”
out and asked to have his security deposit returned. He began
to behave erratically and suspiciously in general. He                 On the evidence presented at trial, a reasonable jury could
confessed to the murder several times. He referred to his           believe that Brunst was alive when Johnson left at 1:30 a.m.,
sister in the past tense before she was known to be dead. He        and that he returned intending to kill her. Therefore, the
sustained eye contact with detectives until they asked about        evidence in the record, viewed most favorably to the
Brunst. Although circumstantial, this evidence is substantial.      prosecution, could lead a rational jury to conclude that,
“Circumstantial evidence alone is sufficient to support a           beyond a reasonable doubt, Johnson killed Brunst “with prior
conviction, and ‘[i]t is not necessary for the evidence to          calculation and design.” There was sufficient evidence to
exclude every reasonable hypothesis except that of guilt.’”         convict him of aggravated murder.
United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999)
(quoting United States v. Beddow, 957 F.2d 1330, 1334 (6th
Cir. 1992)). The evidence presented against Johnson is
certainly sufficient for a rational jury to find beyond a
                                                                        1
reasonable doubt that he killed Brunst.                                   Causing the death of another “while committing or attempting to
                                                                    commit, or while fleeing immediately after committing or attempting to
B. Sufficiency of the Evidence re: Aggravated Murder                commit, kidnapping[ or] rape,” which was alleged in Johnson’s
                                                                    indictment, also constitutes aggravated murder. Ohio Rev. Code Ann.
  “No person shall purposely, and with prior calculation and        § 2903.01(B). Because we hold that a rational jury could have found
                                                                    prior calculation and design, which is sufficient to support a conviction
design, cause the death of another . . . .” Ohio Rev. Code          for aggravated murder, we need not analyze the rape and kidnapping
Ann. § 2903.01 (“Aggravated murder; specific intent to cause        allegations here. See infra at 11-15, for our analysis of these allegations
                                                                    as a capital specification.
