State v. Dunlap

[This opinion has been published in Ohio Official Reports at 73 Ohio St.3d 308.]

THE STATE OF OHIO, APPELLEE, v. DUNLAP, APPELLANT.

[Cite as State v. Dunlap, 1995-Ohio-243.]

Criminal law—Aggravated murder—Death penalty upheld, when.

(No. 94-1777—Submitted June 6, 1995—Decided August 23, 1995.)

APPEAL from the Court of Appeals for Hamilton County, No. C-930121.

__________________

{¶ 1} On October 6, 1991, at a Cincinnati park, defendant-appellant

Timothy Dunlap used a crossbow to shoot two arrows into his girlfriend, Belinda

Bolanos. After Dunlap left Bolanos to die, he drove her Chevette across the country

until he arrived on October 16 at Soda Springs, Idaho. There, Dunlap used a sawed-

off shotgun to rob a bank and kill bank teller Tonya Crane. Idaho police captured

him that afternoon. Dunlap now appeals his Ohio conviction and death sentence

for the aggravated murder and robbery of Bolanos.1

{¶ 2} In June 1991, Dunlap traveled from Indiana to Cincinnati, where he

found casual labor jobs and lived on the streets and in inexpensive motels. That

summer, he met Bolanos in Cincinnati, where he worked as a temporary worker.

They began dating, traveled to Florida, and in mid-September started living

together in her early 1980s Chevette hatchback. In late September, Dunlap bought

a crossbow and thought about killing Bolanos.

{¶ 3} On Sunday morning, October 6, 1991, Dunlap asked Bolanos to go

with him for a picnic near the Ohio River. When they arrived at a river park, Dunlap

told her he had a surprise for her. Dunlap described later how he "blind folded her,

walked her into the woods, had the cross bow with me, shot her once in the neck,

1. In Idaho, Dunlap pled guilty to Crane's murder and was sentenced to death. Upon appeal, the

Idaho Supreme Court affirmed his death sentence. See State v. Dunlap (1993), 125 Idaho 530, 873

P.2d 784.

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she fell to the ground, then I shot her once in the head." He shot her in the neck so

"she wouldn't be able to scream." In the head, he chose "the closest place to the

temple, softest part of the skull." Dunlap killed her to "get her car, credit card and

checks." When he left her, he drove her Chevette to Louisville, Kentucky.

{¶ 4} In Louisville, Dunlap purchased a 12-gauge shotgun and then drove

for several days through Kentucky, Missouri, Arkansas, Oklahoma, Kansas,

Colorado, Utah, Wyoming, and Idaho until he arrived at Soda Springs, Idaho.

Along the way, he sawed several inches off the shotgun barrel. During his journey,

he assumed the fictitious name of Steve Bolanos and used Belinda's credit card to

pay for gas, meals and lodging.

{¶ 5} On October 12, while Dunlap was driving across the country,

Bolanos's body was discovered in the woods. The coroner found that Bolanos died

as a result of wounds caused by two arrows: one arrow went through her throat

almost five inches, and the other arrow, shot into the right side of her head, pierced

her brain for six inches. Despite these injuries, Bolanos probably lived for fifteen

to thirty minutes after she was shot.

{¶ 6} Around 9:30 a.m., October 16, Dunlap walked into a Soda Springs,

Idaho bank with the sawed-off shotgun and asked teller Crane for all of her money.

According to one teller, Dunlap shot Crane "as quickly as he grabbed the money."

Dunlap was described as "very cool, very calm, and very collected," with "the

coldest eyes." Another teller confirmed that Crane "did everything" Dunlap asked,

"and he shot her for no reason." Crane died as a result of the shotgun blast to her

chest. A bystander wrote down a description of Dunlap and the car including the

license number.

{¶ 7} Later that afternoon, Dunlap abandoned the Chevette after a chase and

escaped into nearby woods, but was later apprehended. After being advised of his

Miranda rights, Dunlap admitted he had robbed the Soda Springs bank and shot the

teller.

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{¶ 8} During interviews on October 17 and 19, Dunlap again admitted to

police that he robbed the bank and shot Crane, because "she set the alarm to the

police and she didn't give me all the money." Dunlap asserted, however, he "never

intended to kill her." Because he had loaded the shotgun with bird shot, he thought

she would just wind up in the hospital.

{¶ 9} In the same interviews, Dunlap admitted he shot Bolanos with the

crossbow in order to get her car, check book, and credit cards. Dunlap recognized

"it didn't have to be done, it is just I was broke, I had no money. I was hardly

working." He felt a "little bit of sadness" because "I liked her a little bit." In the

October 19 interview, Dunlap also claimed that an ex-boyfriend of Bolanos gave

him money to kill her, but no evidence at trial supported that assertion.

{¶ 10} On October 16, Dunlap consented to a search of the car. On October

18, police searched the Chevette and found the crossbow, the shotgun, numerous

credit card receipts signed by Dunlap as "Steve Bolanos," Belinda's personal

belongings, and a large quantity of loose cash.

{¶ 11} The grand jury indicted Dunlap for two aggravated murder counts

relating to Bolanos, murder done with prior calculation and design (count I) and

felony murder (count II), as well as aggravated robbery (count III). Each murder

count included two death penalty specifications alleging murder as a "course of

conduct" and murder during an aggravated robbery in violation of R.C.

2929.04(A)(5) and (7). At trial, Dunlap asked his attorneys not to challenge the

prosecution's guilt-phase evidence or to cross-examine prosecution witnesses.

Defense did move to suppress Dunlap's pretrial statements to police and also

contested Dunlap's guilt as to the "course of conduct" death penalty specification.

The jury convicted Dunlap as charged.

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Evidence at Sentencing

{¶ 12} Dunlap's mother, Patricia Dunlap, testified that Dunlap was born in

August 1968, and his stepfather adopted him in 1969. As a youth, Dunlap played

sports, served as an altar boy, a school crossing guard, and a cub scout, and was in

the county sheriff's cadet program. In high school, he was in several plays and

played the school mascot. In two years of college, he studied business law,

communications, and drama and had the lead in a college play. When he was

twenty-one, he got married and had a son, but the marriage lasted less than a year.

Until his divorce, he was never in trouble with the law, and he even ran for political

office twice.

{¶ 13} John Dunlap, his stepfather, testified he was a good son, who was

introverted in grade school, but he blossomed in high school. At eighteen, he was

rebellious. Dunlap's grandmother spoke highly of him. His sister testified that he

had few friends and started rebelling against his parents in high school. In college,

Dunlap did well and loved acting. After his marriage, his wife had a child, and he

was "a very loving father." He went "over the edge" when his wife divorced him

less than a year later.

{¶ 14} His mother thought Dunlap "always had mental problems." When

he was twelve, his mother took him for counseling and therapy, but that stopped

when he told her, "I just can't go anymore." He reportedly had comprehension

problems and a learning disability. In January 1991, police arrested Dunlap for

harassing his ex-wife. After some time in jail, he was admitted at a mental health

facility. That facility's records report that Dunlap was "manipulative" and prone to

violence, and he had a history of depression, temper outbursts, and possible

hallucinations. Those records reflect a diagnosis of disassociative disorder,

intermittent explosive disorder, depressive disorder, and personality disorder with

a possible partial complex seizure disorder.

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{¶ 15} When released from that facility, Dunlap went back to jail and then

to Madison State Hospital in Indiana. In June 1991, he escaped from Madison and

went to Cincinnati. His family did not see him again until after his October 1991

arrest in Idaho.

{¶ 16} When his family first talked and met with Dunlap after his October

arrest, he seemed like a different person. Dunlap's voice showed "no feeling, no

warmth, no emotion." Dunlap had an unfamiliar "hideous laugh" and "cold, glaring

stare." Yet his mother, sister, and grandmother all agreed that Dunlap, after time,

showed remorse in jail. Dunlap told his grandmother he was sorry for what he had

done and had asked God to forgive him.

{¶ 17} In an unsworn statement, Dunlap said "I am but a man who thought

he was pushed to the edge of desperation, living in dire straights [sic]." Now, he

felt "sorry for what [he's] done." As to the bank robbery, he "did not intend,

calculate or design the death of the teller." When he thought she pushed the alarm,

his "anger and frustration turned to rage," and he shot her. The "same pent up anger

and rage led to [his] crime here in Ohio." On the streets of Cincinnati, he lived "on

the razor's edge of sanity struggling every day to survive." He had nowhere to stay

but in Bolanos's car. He had "very little money [and] wore the same clothes.***

The fear, anxiety, frustration and desperation ate at [him] more and more each day."

He challenged the jury that "If any one of you can *** place yourself in my

situation and state of mind, [and say] you would have done different, then you're

simply dealing in lunacy and can't possibly say one way or the other."

{¶ 18} He told the jury, "I don't want you to think I'm trying to excuse what

I've done, I am not, nor am I trying to lessen the fact that two women are dead. I'm

sorry for what I've done." Further, he said, "I care about my family, my friends,

and my son, and the people I hurt, and ask them to forgive me." Now, he hopes for

"a chance to rehabilitate" himself in prison. "And though I took two lives, I do not

deserve to die."

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{¶ 19} In rebuttal, Dr. Michael Estess, a board-certified psychiatrist,

testified via videotape that he had interviewed Dunlap and reviewed various

records. In his view, Dunlap had "personality disorders," including "passive-

aggressive," "histrionic" and "explosive" disorder. These disorders did not

constitute a mental disease or defect, and Dunlap understood right from wrong and

could conform his actions to law. Estess agreed that Dunlap might possibly have

some level organic brain dysfunction, but even if that were true, it had no particular

significance or relevance. Estess disbelieved Dunlap's claims of occasional

blackouts or hallucinations; instead he thought Dunlap was prone to "theater,"

"embellishment," and even "malingering."2

{¶ 20} Also, in rebuttal, a reporter testified that he had interviewed a Tim

Dunlap by phone after his Ohio arraignment. The reporter satisfied himself the

caller was Dunlap because of the caller's personal knowledge. When asked about

remorse, Dunlap replied, "Yeah, I've got to regret I didn't get away." In surrebuttal,

Dunlap's mother testified that he was still agitated, upset, and confused when he

first returned to Ohio, but he later changed and became truly sorry. More recently,

Dunlap had told another reporter that he was sorry and "wished things could have

turned out differently."

{¶ 21} After considering the evidence, the jury recommended the death

penalty on both aggravated murder counts. The trial court agreed and sentenced

Dunlap to death on each murder count. The court of appeals affirmed Dunlap's

convictions and death penalty.

{¶ 22} The cause is now before this court upon an appeal as of right.

__________________

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.

Cummings, Assistant Prosecuting Attorney, for appellee.

2. The video deposition lasted one hour and seventeen minutes, but was stopped after an extensive

cross-examination because of lack of tape. No issue has been raised as to that.

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Elizabeth E. Agar, for appellant.

__________________

PFEIFER, J.

{¶ 23} Dunlap presents fifteen propositions of law for our consideration.

We have considered Dunlap's propositions of law, independently weighed the

statutory aggravating circumstances against the evidence presented in mitigation,

and reviewed the death penalty for appropriateness and proportionality. Upon

review, and for the reasons which follow, we affirm the judgment of the court of

appeals.

I. Admission of Confession

{¶ 24} In his twelfth proposition of law, Dunlap argues the trial court erred

in failing to suppress his pretrial statements to the police. At a pretrial hearing,

Dunlap testified that Idaho police officers manhandled and threatened him when

they arrested him. He claimed he waived his Miranda rights "out of fear of what

might happen" because "they were going to hurt me if I didn't say it was me."

Dunlap also claimed that he requested counsel several times before interrogation,

but the police ignored those requests. Dunlap admitted he signed waivers of rights

and submitted to interviews on October 16, 17 and 19.

{¶ 25} Of course, if Dunlap did request counsel, and police ignored the

request and continued questioning him, his statements would be inadmissible.

When counsel is requested, interrogation must cease until a lawyer is provided or

the suspect reinitiates the interrogation. Arizona v. Roberson (1988), 486 U.S. 675,

108 S.Ct. 2093, 100 L.Ed.2d 704; Edwards v. Arizona (1981), 451 U.S. 477, 101

S.Ct. 1880, 68 L.Ed.2d 378.

{¶ 26} However, the record of the suppression hearing supports a finding

that Dunlap voluntarily waived his rights and never requested to consult counsel

before agreeing to be interviewed by police or while being interviewed. The

October 16 interview was videotaped, and the interviews on October 17 and 19

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were audiotaped. The tapes show that during hours of interviews, police readvised

or reminded Dunlap of his rights several times, and he signed two separate waivers

of rights. At no time during these taped interviews did appellant decline to answer

questions or ask to consult a lawyer before answering questions. The police never

threatened appellant or promised him anything to secure his cooperation. On

October 19, appellant freely talked with Cincinnati police officers after again

waiving his Miranda rights.

{¶ 27} Admittedly, at one point during the taping of Dunlap's October 17

statement, the police chief briefly referred to the fact that the interview had been

interrupted so Dunlap could sign "a document for the Court." That document "has

to do with appointing an attorney, which you [Dunlap] do not have enough funds

for."

{¶ 28} However, the context makes it clear that this request concerned the

appointment of counsel for future court hearings. Dunlap did not ask to consult

with a lawyer before answering questions nor did he ask for a lawyer to be present

during any interviews. "The rationale underlying Edwards is that the police must

respect a suspect's wishes regarding his right to have an attorney present during

custodial interrogation." Davis v. United States (1994), 512 U.S. 452, 114 S.Ct.

2350, 2355, 129 L.Ed.2d 362, 372. As Davis held, "the suspect must

unambiguously request counsel." Id. at __, 114 S.Ct. 2355, 129 L.Ed.2d at 371.

Dunlap made no unambiguous request to consult counsel. See Connecticut v.

Barrett (1987), 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920; United States v. Mills

(C.A.6, 1993), 1 F.3d 414. Instead, he simply took a short break to sign a document

to allow the Idaho court to appoint him an attorney to represent him in future court

proceedings. Thereafter, Dunlap resumed the interview with the police chief that

Dunlap had himself initiated.

{¶ 29} Moreover, that break in appellant's taped October 17 confession

occurred relatively late in the course of that interview—two thirds of the way

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through, in fact. After that point in the interview, the police chief and Dunlap

mostly discussed the Idaho robbery, not the Ohio murder. Since abundant other

evidence established appellant's guilt of that second "course of conduct" murder,

admitting the last portion of appellant's October 17 confession or even his October

19 statement, even if error, was harmless beyond a reasonable doubt.

{¶ 30} "[T]he weight of the evidence and credibility of witnesses are

primarily for the trier of the facts. *** This principle is applicable to suppression

hearings as well as trials." State v. Fanning (1982), 1 Ohio St.3d 19, 20, 1 OBR

57, 58, 437 N.E.2d 583, 584. Accord State v. DePew (1988), 38 Ohio St.3d 275,

277, 528 N.E.2d 542, 547.

{¶ 31} The trial court's decision to admit the statements rests upon

substantial evidence. We find no basis to reverse the trial court's decision and reject

the interview tapes and police officers' testimony in favor of Dunlap's claims. We

reject Dunlap's twelfth proposition.

II. Multiple Charges and Specifications

{¶ 32} In his first proposition of law, Dunlap correctly argues that the trial

court erred by submitting two charges of aggravated murder to the jury for separate

penalty determinations and in imposing two death sentences. Since both charges

"involve the same victim, they merge." State v. Lawson (1992), 64 Ohio St.3d 336,

351, 595 N.E.2d 902, 913; State v. Huertas (1990), 51 Ohio St.3d 22, 28, 553

N.E.2d 1058, 1066.

{¶ 33} However, we find this error harmless beyond a reasonable doubt.

State v. Cook (1992), 65 Ohio St.3d 516, 526-527, 605 N.E.2d 70, 82; State v.

Brown (1988), 38 Ohio St.3d 305, 317-318, 528 N.E.2d 523, 538-539. Moreover,

the court of appeals explicitly merged the two murder counts and approved only a

single death sentence. Accordingly, we recognize that only a single death sentence

remains but otherwise reject Dunlap's first proposition.

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{¶ 34} In his second proposition of law, Dunlap argues that the trial court's

submission to the jury of the R.C. 2929.04(A)(7), felony-murder death

specification, in counts I and II, prejudiced his rights to a fair sentencing

determination. Dunlap argues the specifications and instructions improperly

multiplied the felony-murder aggravating circumstance into two aggravating

circumstances as proscribed in State v. Penix (1987), 32 Ohio St.3d 369, 370-372,

513 N.E.2d 744, 746-747.

{¶ 35} As Penix notes, 32 Ohio St.3d at 371, 513 N.E.2d at 746, "[p]rior

calculation and design is an aggravating circumstance only in the case of an

offender who did not personally kill the victim." In this case, the sentencing

instructions referred to whether "the offense of aggravated murder was committed

while the defendant was committing aggravated robbery or was committed with

prior calculation and design ***." (Emphasis added.) By so doing, the instructions

incorrectly described the aggravating circumstance. However, unlike the court in

Penix, the court here did not multiply a single felony murder specification into two

aggravating circumstances. The jury's findings of guilt, as well as the specifications

in the indictment, correctly stated this aggravating circumstance. Dunlap did not

object to the instruction. We find no plain error and reject Dunlap's second

proposition. See, also, State v. Cook, 65 Ohio St.3d at 527, 605 N.E.2d at 82.

III. Exclusion of Jurors

{¶ 36} In his third proposition, Dunlap argues that excluding jurors who

could not vote for the death penalty violated his right to a jury composed of a fair

cross-section of the community. However, death-qualifying a jury "does not deny

a capital defendant a trial by an impartial jury." State v. Jenkins (1984), 15 Ohio

St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph two of the syllabus; Lockhart

v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137. Here, the record

demonstrates those excluded held views which "would prevent or substantially

impair the performance" of duties in accordance with the juror's "instructions and

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January Term, 1995

oath." State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984,

paragraph three of the syllabus, following Wainwright v. Witt (1985), 469 U.S. 412,

105 S.Ct. 844, 83 L.Ed.2d 841. Thus, Dunlap's third proposition lacks merit. State

v. Tyler (1990), 50 Ohio St.3d 24, 30, 553 N.E.2d 576, 586.

IV. Mercy Instruction

{¶ 37} In his fourth proposition, Dunlap argues the trial court erred in its

penalty phase instructions by not allowing the jury to consider sympathy and by

failing to instruct on mercy. However, the court properly instructed the jury to

exclude sympathy. State v. Jenkins, 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d

264, paragraph three of the syllabus; State v. Steffen (1987), 31 Ohio St.3d 111,

125, 31 OBR 273, 285, 509 N.E.2d. 383, 396. The court also properly refused to

instruct on mercy. State v. Lorraine (1993), 66 Ohio St.3d 414, 417, 613 N.E.2d

212, 216; State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030, 1036.

V. Sufficiency of Evidence

{¶ 38} In his fifth and sixth propositions, Dunlap argues the evidence was

insufficient to establish his guilt of the R.C. 2929.04(A)(5) "course of conduct"

specification alleging "the purposeful killing" or attempt to kill two or more

persons. Dunlap argues he did not intend to kill Crane.

{¶ 39} In a review for sufficiency, the evidence must be considered in a

light most favorable to the prosecution. Jackson v. Virginia (1979), 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Davis (1988), 38 Ohio St.3d 361, 365, 528

N.E.2d 925, 930. "[T]he weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio

St.2d 230, 39 O.O.3d 366, 227 N.E.2d 212, paragraph one of the syllabus.

{¶ 40} We find the evidence established that Dunlap purposefully killed

Crane and thus his guilt of the "course of conduct" specification. Dunlap told Police

Chief Blynn Wilcox he was angry with Crane and shot her because "she set the

alarm to the police and she didn't give me all the money." One teller identified

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Dunlap as standing at the counter, and she saw the shotgun barrel "stick out from

the edge of the teller counter." According to her, Dunlap "did not hesitate. As soon

as he had the money, he shot her." Another teller described Dunlap as "very

determined" and "very deliberate," and the force was so strong Crane "was even

blown out of her shoes."

{¶ 41} Dunlap's deliberate close-range firing of a shotgun at Crane's chest,

whatever the type of shells, proved his intent to kill. "[A] firearm is an inherently

dangerous instrumentality, the use of which is reasonably likely to produce

death[.]" State v. Widner (1982), 69 Ohio St.2d 267, 270, 23 O.O.3d 265, 266, 431

N.E.2d 1025, 1028, followed in State v. Seiber (1990), 56 Ohio St.3d 4, 14, 564

N.E.2d 408, 419. Accord State v. Johnson (1978), 56 Ohio St.2d 35, 39, 10 O.O.3d

78, 81, 381 N.E.2d 637, 640.

VI. Other Evidentiary Issues

{¶ 42} In his thirteenth proposition of law, Dunlap argues the trial court

erred in allowing rebuttal testimony from reporter Hopkins in the mitigation phase.

In a phone call, Hopkins asked the caller, who named himself Tim Dunlap, about

remorse. Dunlap reportedly said, "Yeah, I've got to regret I didn't get away." In

extensive voir dire, Hopkins explained why he was satisfied that Dunlap was the

caller. Hence, the trial court did not abuse its discretion in allowing Hopkins to

testify. "The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court." State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375,

510 N.E.2d 343, paragraph two of the syllabus. See, also, Evid.R. 611 and 901.

{¶ 43} The prosecutor's failure to list Hopkins as a potential witness, or to

eject him from the courtroom under a witness separation order, did not mandate the

exclusion of Hopkins as a witness. A rebuttal witness's name need not always be

disclosed. See State v. Howard (1978), 56 Ohio St.2d 328, 333, 10 O.O.3d 448,

451, 383 N.E.2d 912, 915-916; State v. Lorraine, 66 Ohio St.3d at 422, 613 N.E.2d

at 220. Moreover, the exclusion of testimony for an asserted discovery violation is

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January Term, 1995

discretionary. State v. Scudder (1994), 71 Ohio St.3d 263, 269, 643 N.E.2d 524,

530; State v. Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97, 110. Also, any

error was harmless. Abundant other evidence suggests Dunlap lacked remorse,

including testimony from Dr. Estess, Dunlap's family, and even Dunlap's unsworn

statement.

{¶ 44} In his fourteenth proposition of law, Dunlap argues the trial court

erred in admitting four gruesome photographs, including one autopsy photo and

three crime scene photos. Under Evid.R. 403 and 611(A), the admission of

photographs is left to a trial court's sound discretion. State v. Jackson (1991), 57

Ohio St.3d 29, 37, 565 N.E.2d 549, 559; State v. Maurer (1984), 15 Ohio St.3d 239,

264, 15 OBR 379, 401, 473 N.E.2d 768, 791. We are satisfied the trial court did

not abuse its discretion in admitting these photographs. See State v. Morales

(1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273; Maurer, at paragraph seven

of the syllabus Thus, we reject both propositions.

VII. Constitutional Issues

{¶ 45} In his eighth proposition, Dunlap challenges the constitutionality of

the felony-murder provisions in Ohio's death penalty statute. However, we have

long rejected those claims. See State v. Henderson (1988), 39 Ohio St.3d 24, 528

N.E.2d 1237, paragraph one of the syllabus. See, also, Lowenfield v. Phelps (1988),

484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568; State v. Benner (1988), 40 Ohio St.3d

301, 306, 533 N.E.2d 701, 708.

{¶ 46} We rejected challenges such as Dunlap's ninth proposition in State

v. Beuke (1988), 38 Ohio St.3d 29, 38-39, 526 N.E.2d 274, 285. See, also, State v.

Bedford (1988), 39 Ohio St.3d 122, 132, 529 N.E.2d 913, 923; State v. Sowell

(1988), 39 Ohio St.3d 322, 335-336, 530 N.E.2d 1294, 1308-1309. Dunlap's tenth

proposition also lacks merit. See State v. Jenkins, 15 Ohio St.3d at 176, 15 OBR at

321-322, 473 N.E.2d 278-279; State v. Steffen, 31 Ohio St.3d 111, 31 OBR 273,

509 N.E.2d 383, at paragraph one of the syllabus.

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VIII. Other Sentencing Issues

{¶ 47} In his seventh proposition, Dunlap correctly argues the trial court

erred by allowing the prosecutor to improperly refer to the nature and circumstances

of the offense as aggravating circumstances. Admittedly, "the nature and

circumstances of an offense are not a statutory aggravating circumstance and cannot

be considered as such." State v. Lott (1990), 51 Ohio St.3d 160, 171, 555 N.E.2d

293, 304; State v. Davis, 38 Ohio St.3d at 370-371, 528 N.E.2d at 934.

{¶ 48} However, we find any error harmless, since the prosecutor's

misstatement did not materially prejudice Dunlap. The trial court's sentence

instructions explained to the jury the weighing process and the aggravating

circumstances, and these instructions negated the prosecutor's misstatements. See

State v. Greer (1988), 39 Ohio St.3d 236, 251, 530 N.E.2d 382, 400. "Moreover,

the prosecutor could legitimately refer to the nature and circumstances of the

offense, both to refute any suggestion that they were mitigating and to explain why

the specified aggravating circumstance *** outweighed mitigating factors." State

v. Combs (1991), 62 Ohio St.3d 278, 283, 581 N.E.2d 1071, 1077. See, also, State

v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph one of the syllabus.

{¶ 49} In his eleventh proposition, Dunlap argues the trial court erred in not

requiring the jury, as he requested, to articulate the method by which the jury

weighed the aggravating circumstances against mitigation evidence. In effect,

Dunlap argues that the jury should make special findings and justify their

sentencing verdict.

{¶ 50} However, the Constitution does not require a jury in a capital case to

render a special verdict or special findings. See State v. Jenkins, 15 Ohio St.3d at

212, 15 OBR at 352, 473 N.E.2d at 306; Hildwin v. Florida (1989), 490 U.S. 638,

109 S.Ct. 2055, 104 L.Ed.2d 728. Additionally, the General Assembly mandated

special findings from the jury as to aggravating circumstances in R.C. 2929.03(B).

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However, the General Assembly did not require the jury to explain its findings in

the sentencing recommendation. Hence, we reject this proposition.

IX. Reservation of Issues

{¶ 51} In his fifteenth proposition, Dunlap asks this court to consider other

trial errors which may exist even though he failed to argue or specify such errors.

However, absent plain error, Dunlap waived any such issue by not raising them

here and in the court of appeals. State v. Williams (1977), 51 Ohio St.2d 112, 5

O.O.3d 98, 364 N.E.2d 1364. In any event, we find no plain error that is so grievous

that "but for the error, the outcome of the trial clearly would have been otherwise."

State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, at paragraph

two of the syllabus. Proof of Dunlap's guilt from his statements and the results of

the car search was compelling. Our independent reassessment of the sentence will

negate the effect of any unasserted error affecting the sentence.

X. Independent Sentence Assessment

{¶ 52} After independent assessment, we find the evidence clearly proves

the aggravating circumstances for which Dunlap was convicted, i.e., murder during

a robbery and as a "course of conduct" in purposefully killing or attempting to kill

more than one person. As to possible mitigating factors, we find nothing in the

nature and circumstances of the offense to be mitigating. Dunlap lured his

girlfriend to a secluded park area, blindfolded her, and promised her a surprise.

Then, he led her into the woods and cruelly shot her twice with a crossbow. He left

her to die alone, and killed her simply to secure her possessions: an old car, credit

cards, and checkbook.

{¶ 53} Dunlap's history and background provide modest mitigating

features. However, his childhood and life as a young adult are mostly

unremarkable. He had the advantages of a stable home, loving parents, and a solid

education. Although regularly employed, he did not keep jobs very long.

Unfortunately, an early marriage turned sour in its first year, and he became

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entangled in courts and mental hospitals. After living homeless in Cincinnati, he

turned on Bolanos, who had befriended him. Dunlap denied use of drugs or

excessive use of alcohol. His admitted personality disorders, confirmed by hospital

records and Dr. Estess's testimony, provide only slight mitigation. Additionally,

the fact he has a son and a family who love him deserves some weight. Yet, we

find nothing in his character to be mitigating.

{¶ 54} The statutory mitigating factors of age and lack of a significant

criminal history are relevant and deserve modest weight. See R.C. 2929.04(B)(4)

and (5). Dunlap had no criminal convictions prior to this offense. Although Dunlap

was twenty-three at the time of the offense, he did have some college and was

mature.

{¶ 55} We find no other applicable statutory mitigating factors in R.C.

2929.04(B)(1) to (6). His "personality disorders" were not a mental disease or

defect as Dr. Estess confirmed. See R.C. 2929.04(B)(3); State v. Fox (1994), 69

Ohio St.3d 183, 192, 631 N.E.2d 124, 131-132. As to "other factors," in R.C.

29292.04(B)(7), Dunlap's cooperation with police was mitigating evidence.

However, no significant "other factors," as specified in R.C. 2929.04(B)(7), are

relevant. His personality disorders have already been considered as part of his

background. Some evidence exists that Dunlap expressed remorse, but other

evidence, including his unsworn statement, contradicts his claims of remorse.

Under the circumstances, we assign little weight to Dunlap's remorse.

{¶ 56} In our view, the aggravating circumstances outweigh the modest

mitigating factors present in this case beyond any reasonable doubt. Dunlap killed

Bolanos to rob her, and he robbed her using treachery and extreme violence. Then,

he stole her car, assumed the identity of her fictitious husband, Steve Bolanos, and

used her credit cards to travel across the country. In Idaho, he killed another

woman, thus establishing the calculated "course of conduct." Even when

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January Term, 1995

considered collectively, the mitigating factors he raises deserve only modest weight

and offer no redeeming value. Thus, we find the death penalty is appropriate.

{¶ 57} We find the death penalty in this case is neither excessive nor

disproportionate when compared with the penalty imposed in similar cases of

felony murder. See State v. Loza (1994), 71 Ohio St.3d 61, 641 N.E.2d 1082; State

v. Woodard (1993), 68 Ohio St.3d 70, 623 N.E.2d 75; State v. Green (1993), 66

Ohio St.3d 141, 609 N.E.2d 1253; State v. Mills (1992), 62 Ohio St.3d 357, 582

N.E.2d 972. We further find the death sentence proportionate when compared with

similar "course of conduct" murders. See State v. Loza, supra; State v. Grant

(1993), 67 Ohio St.3d 465, 620 N.E.2d 50; State v. Lorraine, 66 Ohio St.3d 414,

613 N.E.2d 212; State v. Hawkins (1993), 66 Ohio St.3d 339, 612 N.E.2d 1227;

State v. Montgomery (1991), 61 Ohio St.3d 410, 575 N.E.2d 167; State v. Frazier

(1991), 61 Ohio St.3d 247, 574 N.E.2d 483; State v. Combs, 62 Ohio St.3d 278,

581 N.E.2d 1071.

{¶ 58} Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ.,

concur.

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