State v. Simko

OPINIONS OF THE SUPREME COURT OF OHIO

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The State of Ohio, Appellee, v. Simko, Appellant.

[Cite as State v. Simko (1994), Ohio St.3d .]

Criminal law -- Death penalty upheld, when.

(No. 93-569 -- Submitted November 30, 1994 -- Decided

December 30, 1994.)

Appeal from the Court of Appeals for Lorain County, No.

91CA005214.

Defendant-appellant, John Simko, Jr., was convicted by a

three-judge panel of the kidnapping and aggravated murder of

his ex-girlfriend, Mary Jane Johnson, and the kidnapping of her

coworker, Harold "Buddy" Baker. The crimes were committed the

morning of August 7, 1990, at the Lorain Durling Elementary

School where the victims worked. The following events led to

this tragedy.

Appellant and Mary Jane Johnson had had an on-again-off-

again relationship for approximately five to seven years. At

the time of the shooting, the couple had been apart for about

one to four weeks.

On August 2, 1990, appellant entered the Magnum-Fire Gun

Shop in Lorain, Ohio and expressed an interest in purchasing a

.357 Magnum Smith & Wesson revolver. On August 3, 1990, he

returned to the store and bought the gun and a box of

ammunition. That same day, appellant went to his cousin Larry

Simko's house to learn how to use the weapon.

Three days later, on August 6, around 10:30 p.m., Johnson

and her best friend and neighbor, Mary Hembree, were sitting on

Johnson's porch drinking coffee. They saw appellant walk by

the house. He appeared to be intoxicated. After Johnson

expressed fear at seeing appellant, the women decided to finish

their coffee at Hembree's house. Before going to Hembree's,

however, they watched appellant walk past Hembree's house.

They then entered Hembree's car and drove around to determine

if appellant's car was parked nearby. From the car they saw

appellant on an adjacent street, behind Johnson's house.

Not finding appellant's car, they drove to Hembree's

house. When they arrived there, they observed appellant

driving stop-and-go through the neighborhood in his car.

Johnson ran into Hembree's house and again expressed fear.

Because Johnson was unwilling to do so, Hembree called the

sheriff's department to report appellant.

Several hours later, at approximately 1:00 a.m., on August

7, appellant went to his son James Simko's house. Appellant

woke him up and had him drive to Tiny's Bar.

At the bar, appellant had a few more drinks. Appellant

told his son that he was going to shoot himself and Johnson and

that he wanted to prepare a will. Appellant wrote on a piece

of paper, "I leave Jim my TV 2 VCRs a chair, & boat air

compressor battery charger, tools, & whatever I own."

Appellant signed his name and then had a patron of the bar

witness his signature. In addition, appellant wrote a check to

James Simko to exhaust the balance of his bank account. The

men stayed at the bar until it closed.

After leaving the bar, James Simko drove his father home.

They stayed there for approximately ten to twenty minutes. At

about 3:00 a.m., since he had to be at work by 6:00 a.m.,

appellant asked James to drive him to Lorain Clearview High

School, where he worked as a custodian. At the school,

appellant grabbed a bottle of whiskey and made some coffee,

which James drank. Appellant had one or two shots of whiskey

and a coke.

At around 4:00 a.m., when James was out of the room,

appellant called his cousin, Larry Simko. Appellant asked

Larry to hide his (appellant's) boat and told him that he was

"going to shoot two people." Although Larry testified he did

not take appellant's threat seriously because he thought

appellant was drunk, Larry admittedly dressed and went looking

for appellant.

James Simko stayed with his father until 5:50 a.m. when he

dropped him off at nearby Durling Elementary School where

Johnson worked as a cleaner. James did not think his father

was drunk, just "hung over." Although James did not take his

father's threat seriously, he admittedly drove by the school

three times that morning.

At around 6:00 a.m., Harold Baker, a fellow custodian,

arrived for work at Durling. He saw appellant walking toward

him. Baker thought appellant might have been drinking, but he

did not think he was drunk. Upon appellant's request to "have

five minutes" with Johnson, Baker unlocked the school and

appellant accompanied him to the teachers' lounge. Baker did

not notice whether appellant had a gun.

When Johnson arrived for work, soon after 6:00 a.m., Baker

met her at the front of the building, and told her of

appellant's request. Johnson went to the teachers' lounge.

Upon hearing Johnson scream his name, Baker ran to the lounge,

unlocked the door and saw appellant with his left arm around

Johnson and a gun in his right hand. Johnson was crying, and

appeared to be scared and nervous. Appellant yelled at Baker

to "get the hell out," but when Baker attempted to exit the

lounge to the hallway, appellant said, "No, not there," and

instead directed Baker to go into the restroom located in the

lounge.

Once in the restroom, Baker locked the door and after

removing the screen, escaped through the window. Baker then

drove his truck to the nearby bus garage to find someone to

call the police. While the police were being summoned, Baker

saw a student being dropped off at school. Baker jumped in his

truck to stop the boy from entering the school.

When Baker arrived back at the school, he saw the youth

starting down the hall. Baker apprised him of the situation.

As the two were starting to leave, Baker saw appellant shoot

himself in the foot, as he stood in the doorway of the lounge.

Baker and the boy left the school. Once they were

outside, Larry Simko approached Baker and asked him if he had

seen appellant. Baker told him what was happening. Larry

entered the school and shouted out to appellant. After hearing

two shots, the men decided to leave. Back at the bus garage,

the men then heard two more shots around 6:40 a.m.

It was later determined that the first two shots had been

fired at the lounge's door lock, and the second two shots had

been fired at Johnson.

Sometime later, around 8:30 a.m., the rescue squad came

and took Johnson to the hospital.

Upon her arrival at the hospital, Johnson was alert and

oriented. Just before surgery, Johnson was interviewed by

Detective Bruce Johnston of the Lorain County Sheriff's

Department. Although Johnson was unable to talk because she

was intubated, she nodded her head in response to the

detective's questions. Detective Johnston testified that

Johnson nodded affirmatively when asked if appellant had told

her he was going to kill her and kill himself, and if she had

attempted to run from the appellant. Johnson also nodded yes

to whether appellant shot her twice and then fled from the

school building. Despite efforts to save her, Johnson died one

day later from injuries caused by the gunshot wounds.

Police found appellant walking in the area and arrested

him. Expert testimony indicated that appellant's blood alcohol

level at the time of the shooting would have been about .14

percent.

On August 14, 1990, appellant was indicted for two counts

of kidnapping and one count of aggravated murder with a felony-

murder specification alleging kidnapping and a firearm

specification. The three-judge panel convicted appellant as

charged.

Appellant called several family members, coworkers, and a

clinical forensic psychologist during the sentencing hearing.

Most family members acknowledged that appellant had a drinking

problem. Some said that when drunk he was more likely to be

aggressive and mean. All the family members and coworkers

related specific instances where appellant had been thoughtful

and caring. These included the care of his elderly and

arthritic mother, who witnesses testified was a demanding and

difficult person. In addition, appellant's stepson told how

appellant had supported his ex-wife, both emotionally and

financially, while she was dying of cancer. The stepson also

detailed the help appellant had provided to him, a paraplegic.

A coworker testified to appellant's strong work ethic and the

work he did overseeing troubled youth in a work study program

at the school.

Appellant's family was neither close nor loving. Although

appellant's brother testified that appellant's upbringing had

been fairly normal, another family member testified that

appellant's father had been an alcoholic. Appellant's former

sister-in-law testified that appellant's father had been a

cruel man and a "demonic person" when he drank.

Family members and coworkers agreed that although

appellant was likable, he was also reserved and uncomfortable

around people. Although appellant quit school in the tenth

grade, he received a high school equivalency diploma while in

the service. Appellant did not attend college like his

siblings. Instead, he successfully served eight years in the

air force.

Dr. James Brown diagnosed appellant as suffering from

"avoidant personality disorder" ("APD"), as well as a history

of alcohol dependency. Dr. Brown stated that the symptoms of

APD include pervasive social anxiety, a fear of rejection, and

a hypersensitivity to the reactions of others. He testified

that alcohol disinhibits feelings of anger, and renders a

person like appellant more prone to violence.

Despite this disorder, Dr. Brown testified, appellant was

able to form a close, loving relationship with Johnson, which

was unique in his life. When this relationship was threatened,

appellant reacted in an uncharacteristic manner. Dr. Brown

believed that APD together with the alcoholism contributed to

Johnson's death.

Sergeant Thomas Tomasheski of the Lorain County Sheriff's

Department testified that appellant had no prior convictions or

criminal record. Corrections Officer Robert Vansant testified

that appellant had adjusted to incarceration and was not a

discipline problem.

Finally, appellant gave a brief unsworn statement

indicating his remorse.

In rebuttal, the state presented James Simko, who

testified that he had seen his father assault his mother "quite

a few times," and that this was what led to their divorce.

After this testimony, in an attempt to impeach his credibility,

the defense questioned James about his own record of domestic

violence and his drug problems. The defense also questioned

James about the approximately $16,600 he had received from

appellant's retirement fund which was now missing.

After considering this mitigation evidence, the panel

sentenced appellant to death. For the firearm specification

and the remaining offenses, appellant was sentenced in

accordance with law. The court of appeals affirmed the

convictions and sentences, including the sentence of death.

The cause is now before this court upon an appeal as of

right.

David H. Bodiker, Ohio Public Defender, Kathleen A.

McGarry and Linda E. Prucha, Assistant Public Defenders, for

appellant.

Gregory A. White, Lorain County Prosecuting Attorney, and

Jonathan E. Rosenbaum, Assistant Prosecuting Attorney, for

appellee.

Francis E. Sweeney, Sr., J. Beginning in State v.

Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570, and

recently reiterated in State v. Scudder (1994), Ohio

St.3d , N.E.2d , we expressed the view that when we

review death penalty cases, our obligation under the law does

not require us to address all propositions of law in opinion

form. We adhere to this view today, and therefore summarily

dispose of many propositions of law where either the error was

not properly preserved or the propositions have been decided

adversely to the appellant. In doing so, we hasten to add that

although this opinion does not separately address each of the

twenty-one propositions of law (see Appendix), we have fully

reviewed the record and passed upon each one prior to reaching

our decision. In addition, we independently assessed the

evidence relating to the death sentence, balanced the

aggravating circumstance against the mitigating factors, and

reviewed the proportionality of the sentence to sentences

imposed in similar cases. As a result, we affirm the

convictions and sentence, including the death penalty.

I

GUILT PHASE

Sufficiency of Evidence

In Proposition of Law I, appellant challenges the

sufficiency of the evidence for the capital specification and

for the separate kidnapping offense charged in count two.1

The capital specification appellant was convicted of was

kidnapping: "committing, attempting to commit, or fleeing

immediately after committing or attempting to commit

kidnapping." R.C. 2929.04(A)(7). Appellant was also convicted

of the separate offense of kidnapping Johnson. R.C. 2905.01,

as charged in this case, involves the removing of a person by

force, threat, or deception from the place where she is found,

or restraining her of her liberty, to terrorize or inflict

serious harm on the victim. R.C. 2905.01(A)(3).

Appellant argues that under this court's decision in State

v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d

1345, the state failed to present sufficient evidence of either

the elements of kidnapping or a separate animus from the animus

to commit aggravated murder to sustain his convictions on these

charges. Appellant asserts that the alleged kidnapping of

Johnson was incidental to the murder, as in State v. Jenkins

(1984), 15 Ohio St.3d 164, 198, 15 OBR 311, 340, 473 N.E.2d

264, 295 (no kidnapping where restraint was in a public bank

and incidental to robbery).

In Logan, supra, this court held that where the murder is

the underlying crime, "a kidnapping in facilitation thereof

would generally constitute a separately cognizable offense."

Id. at 135, 14 O.O.3d at 379, 397 N.E.2d at 1352. However, the

test to determine whether the kidnapping was committed with a

separate animus and thus amounts to a separate offense is

"whether the restraint or movement of the victim is merely

incidental to a separate underlying crime, or instead, whether

it has a significance independent of the other offense." Id.

at 135, 14 O.O.3d at 378, 397 N.E.2d at 1351.

In State v. Seiber (1990), 56 Ohio St.3d 4, 14, 564 N.E.2d

408, 420, we found kidnapping where bar patrons were repeatedly

ordered to lie on the floor while defendant and his accomplice

had drawn guns. When another bystander refused to comply with

the demands, he was shot and killed. Under these

circumstances, this court held that it was reasonable for a

jury to conclude that Seiber had restrained that victim of his

liberty and that this evidence was sufficient to support the

kidnapping charge and specification.

Clearly, the instant facts present a more compelling case

of kidnapping than even Seiber. According to Harold Baker's

testimony, Johnson was restrained and terrorized by the armed

appellant for approximately one-half hour. Further evidence

indicated that Johnson managed to escape from appellant, but

appellant shot her twice in the back while she was fleeing down

the school hallway. Thus, contrary to appellant's assertion,

the evidence and testimony indicate that Johnson's kidnapping

was completed prior to the murder, and appellant did not murder

Johnson until she fled from him. Therefore, the prosecution

presented sufficient evidence to prove not only kidnapping, but

also an animus for kidnapping separate from the aggravated

murder. We reject this proposition of law.

In Proposition of Law VIII, appellant argues that the

state failed to introduce evidence sufficient to convict him of

kidnapping Harold Baker. Appellant contends that "any movement

of Harold Baker was incidental to the murder of Mary Jane

Johnson."

This proposition of law is also without merit. A review

of the evidence reveals that it was sufficient to support

appellant's conviction for kidnapping Baker.

Baker testified that when he encountered appellant in the

teachers' lounge, appellant had a gun in one hand and an arm

around Johnson. When Baker attempted to help Johnson,

appellant told him to "get the hell out of here." When Baker

reached for the door leading out to the hallway, appellant told

him "No, not there" and motioned with the gun for Baker to go

into the teachers' lounge restroom. After removing the screen

from the window, Baker managed to escape. This testimony

clearly indicated that Baker was restrained of his liberty to

exit the teacher's lounge and was forced by appellant to enter

the lounge restroom which had no outside exit. Moreover, Baker

testified he was "scared" because appellant had a gun, thus

demonstrating appellant's terrorizing of Baker (and

inferentially Johnson). We reject this proposition of law.

Hearsay

In Proposition of Law VI, appellant argues that the trial

court improperly admitted prejudicial hearsay testimony that

did not qualify as an exception under either Evid.R.

804(B)(2)--dying declaration, or Evid.R. 803(2)--excited

utterance.

The testimony was elicited from Detective Bruce Johnston

of the Lorain County Sheriff's Department. Defense counsel

challenged Detective Johnston's testimony on the grounds that

the dying declaration exception did not apply since the victim

had no reason to believe she was dying at the time Detective

Johnston questioned her. In response, the prosecution claimed

that it was relying not only on the dying declaration

exception, but also on the excited utterance exception applied

in State v, Huertas (1990), 51 Ohio St.3d 22, 31, 553 N.E.2d

1058, 1068. The trial court then permitted the detective's

testimony. The prosecution now concedes that the declaration

does not qualify as a dying declaration under Evid.R.

804(B)(2). However, the state asserts it is admissible under

the excited utterance exception.

In Huertas, id. at 31, 553 N.E.2d at 1068, this court,

quoting paragraph two of the syllabus in Potter v. Baker

(1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E.2d 140, set

forth the standard for the excited utterance exception: "To be

admissible under Evid.R. 803(2) as an excited utterance, a

statement must concern 'some occurrence startling enough to

produce a nervous excitement in the declarant,' which

occurrence the declarant had an opportunity to observe, and

must be made 'before there had been time for such nervous

excitement to lose a domination over his reflective

faculties. * * *'"

The testimony in issue consisted of Detective Johnston's

questions to the victim, who was unable to speak because she

was intubated. The detective testified that the victim nodded

her head in response to specific questions posed to her. When

asked if appellant had told her that he was going to kill her

and kill himself, the victim nodded affirmatively. The victim

also nodded yes as to whether she had attempted to run from

appellant, and whether appellant had shot her twice and then

fled the school building.

Appellant asserts that Huertas is not on point because

there the declarant made oral statements, but here the victim

only nodded in response to words of the detective. In

addition, appellant points to paragraph two of the syllabus in

State v. Wallace (1988), 37 Ohio St.3d 87, 524 N.E.2d 466,

where this court held: "The admission of a declaration as an

excited utterance is not precluded by questioning which: (1)

is neither coercive nor leading, (2) facilitates the

declarant's expression of what is already the natural focus of

the declarant's thoughts, and (3) does not destroy the

domination of the nervous excitement over the declarant's

reflective faculties."

A review of Huertas and Wallace justifies the admission of

the testimony as an excited utterance. Given that the victim

was unable to speak because of the intubation in her throat,

the questions posed to her by the detective could certainly be

characterized as leading under the syllabus in Wallace, supra.

However, the questioning by the detective does not appear to be

coercive, and the victim could have readily shook her head "no"

to any of the questions, since the detective described her as

being "alert" and "aware of what was going on." Therefore,

appellant's sixth proposition of law is overruled.

In Proposition of Law XII, appellant contends that the

testimony of Mary Hembree and Cheryl Hutchison contained

irrelevant and prejudicial hearsay.

In the first instance, appellant characterizes as

irrelevant the testimony of Hembree, the best friend of the

deceased victim, who testified with respect to her activities

with the victim on the night before the shooting. Appellant

asserts that this testimony was not used by the state to show

that appellant had harassed the victim, but rather to elicit

testimony from Hembree that the victim had said she was

"scared," which was clearly hearsay under Evid.R. 801(C).

The other instance of hearsay cited by appellant concerns

the testimony of Cheryl Hutchison, the victim's daughter. In

response to the prosecutor's inquiry as to why the victim had

changed her phone number, Hutchison testified that her mother

had changed the number because appellant kept calling her

mother after being told to stop. Defense counsel objected on

hearsay grounds, but the trial court overruled the objection.

For Hembree's testimony, the prosecution cited Evid.R.

803(1) to support admission of the hearsay statements as

statements of present sense impressions. In support of

Hutchinson's testimony, the prosecutor referred to "present

sense of mind," conflating the exceptions of Evid.R. 803(1) and

(3). Evid.R. 803(1) permits admission of "[a] statement

describing or explaining an event or condition made while the

declarant was perceiving the event or condition * * *." The

court of appeals found the testimony of Hembree to be properly

admitted under Evid. R. 803(3), which permits "[a] statement of

the declarant's then existing state of mind, emotion, [or]

sensation * * *." In addition, the appellate court held that

Hembree's testimony was "arguably relevant" to show that

appellant was distraught and that he was following Mary Jane

Johnson on the night before the shooting, showing prior

calculation and design on the part of appellant.

The testimony of both witnesses is relevant, and its

admission under Evid.R. 803(3) is supportable. Testimony

similar to Hembree's was upheld in State v. Apanovitch (1987),

33 Ohio St.3d 19, 21-22, 514 N.E.2d 394, 398. (Testimony that

the victim was fearful and apprehensive was not inadmissible

hearsay and was properly admitted.)

Assuming, arguendo, that the testimony should not have

been allowed, the other evidence in the case is still

overwhelming. In addition, since this case was tried before a

three-judge panel, it is presumed that the court considered

only the relevant, material and competent evidence in arriving

at its judgment, State v. Post (1987), 32 Ohio St.3d 380, 384,

513 N.E.2d 754, 759; State v. White (1968), 15 Ohio St.2d 146,

151, 44 O.O.2d 132, 135, 239 N.E.2d 65, 70, and nothing in the

record compels a contrary conclusion. Consequently, any error

is harmless beyond a reasonable doubt. Accordingly,

appellant's twelfth proposition of law is rejected.

Prejudicial Expert Testimony During Cross-examination

In Proposition of Law XIII, appellant contends that the

trial court permitted inadmissible, prejudicial expert

testimony during cross-examination. This testimony was

elicited by the prosecution from appellant's expert witness,

Dr. Robert Forney, a pathologist called to testify regarding

appellant's blood alcohol level at the time of the murder.

During direct examination, Dr. Forney testified that based

on tests he conducted upon appellant's blood sample taken after

his arrest, appellant's blood alcohol level at the time of the

shooting would have been .14 percent. On cross-examination,

the state attempted to ask Dr. Forney whether a person with a

blood alcohol level of .14 percent could form specific intent

or purpose. Defense counsel objected and the prosecutor

rephrased the question several times, which prompted further

objections by appellant. Dr. Forney responded as follows to

the prosecutor's question whether he understood the defense of

intoxication: "[I]f intoxication is to such a degree as to

prevent the formation of intent, that may be considered as a

mitigating circumstance by the Court."

When asked by the prosecutor, over defense objection,

whether a person with a blood alcohol content of .14 percent

would be so intoxicated as to prevent formation of intent, Dr.

Forney responded, "No, they would not be so intoxicated." Upon

defense counsel's request that the answer be stricken as too

confusing on legal issues as to which Dr. Forney could not

testify, the court replied:

"He's [Dr. Forney] talking about his belief and his field

as a toxicological expert. * * * I'm not going to strike it.

We will give it such weight as is appropriate.

"We are well aware of our responsibility to rule on issues

of law."

Dr. Forney further testified that while appellant's blood

alcohol level of .14 percent would affect his perception and

judgment as well as be disinhibiting to him, "it would not go

to the purpose of Mr. Simko on August 7th, 1990." Defense

counsel's motion to strike this statement was overruled.

"Purpose" and "intent" are not arcane legal terms

unfamiliar to nonlawyers. Thus Dr. Forney's testimony in this

regard did not constitute a legal determination but was merely

his professional opinion as to how a .14 percent blood alcohol

level will affect a person's mind. This opinion meets the

criteria of Evid.R. 702. Accordingly, appellant's thirteenth

proposition of law should be overruled.

Ineffective Assistance of Counsel

In Proposition of Law XVI, appellant claims he was

deprived of the effective assistance of counsel throughout his

trial. We have considered appellant's arguments, and find that

he has failed to meet his burden of establishing ineffective

assistance under the standards set forth in Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674. We, therefore, reject this proposition of law.

II

PENALTY PHASE

Appropriateness of Death Penalty

In his second proposition of law, appellant submits that

the facts of this case do not warrant the sentence of death.

Appellant argues that he presented substantial mitigating

evidence, that he was found guilty of only one aggravated

circumstance, and that the kidnapping was merely incidental to

the aggravated murder. Appellant further argues that the court

of appeals' review of the trial court's action in this respect

was cursory, contrary to R.C. 2929.05, and unconstitutional.

First, with respect to appellant's assertion that the

kidnapping of Mary Jane Johnson was merely incidental to the

aggravated murder, this argument was explored and rejected

under Proposition of Law I.

Second, a review of the trial court's separate opinion,

required pursuant to R.C. 2929.03(F), indicates that the court

thoroughly explored various possible mitigating factors

including the history, character and background of appellant.

The trial court gave "some weight" to appellant's lack of a

prior criminal history, as well as appellant's work record,

service record, adjustment to his incarceration, and his

support and assistance of his family members. The court also

considered appellant's remorse. Nevertheless, the three-judge

panel found that the aggravating circumstance outweighed the

mitigating factors beyond a reasonable doubt. Similar to the

trial court in State v. Stumpf (1987), 32 Ohio St.3d 95, 103,

512 N.E.2d 598, 607; and State v. Steffen (1987), 31 Ohio St.3d

111, 509 N.E.2d 383, the trial panel below properly discharged

its duties under R.C. 2929.03(F).

The court of appeals' discussion of the mitigating factors

was somewhat more than cursory, but not as thorough as the

trial court's. In addition, the appellate court failed to

state what weight, if any, it gave to any of the mitigating

factors in favor of the appellant. Nevertheless, this court's

independent weighing of the aggravating circumstance versus the

mitigating factors and proportionality review will cure any

error in this regard. State v. Clark (1988), 38 Ohio St.3d

252, 263, 527 N.E.2d 844, 856; State v. Evans (1992), 63 Ohio

St.3d 231, at 253, 586 N.E.2d 1042, at 1059.

For these reasons, we reject Proposition of Law II.

Errors in Sentencing Opinion and Penalty Phase

In his third proposition of law, appellant contends that

errors within the sentencing opinion of the trial court

necessitate vacation of his capital sentence.

Appellant asserts that the trial court made findings that

were inconsistent with the evidence presented at trial.

Specifically, appellant contends there was no evidence of when

or where the victim was shot. While it is true that the

prosecution did not present an eyewitness blow-by-blow account

of the victim's escape or the shooting by appellant, the

physical and testimonial evidence was more than sufficient for

the court to infer that appellant shot the victim as she

escaped and ran down the school hallway.

Appellant next cites a misrepresentation of the record in

the sentencing opinion's statement that the victim had

indicated to appellant that she did not want to reestablish

their relationship. The mistake was certainly harmless.

Appellant then cites seven other instances in which the

sentencing opinion allegedly misrepresented the record by

failing to include evidence that could have been mitigating.

However, as pointed out by the appellate court below, "while

the panel was required to consider and weigh the nature of the

circumstances of the offenses with the mitigating factors

[Stumpf, supra], as trier of fact, it was not required to

believe or consider relevant all evidence presented to it.

Furthermore, the panel was not required to enumerate every

piece of evidence presented in the record of this opinion."

While appellant asserts that, based on the language of the

sentencing opinion, the court might not have found him guilty

of the aggravating circumstance until the penalty phase, the

filed verdicts show that the finding of guilt was properly made

during the guilt phase. Likewise, appellant's argument

concerning the trial court's reference to "circumstances" in

the plural at several points in the opinion, rather than to the

single aggravating circumstance, is similar to the argument

rejected by this court in State v. Jells (1990), 53 Ohio St.3d

22, 33-34, 559 N.E.2d 464, 475-476.

Appellant also claims error in the sentencing opinion

where the trial court found "that the Defendant has not

established by a preponderance of the evidence sufficient

mitigating factors set forth in R.C. 2929.04(B) which prevent

the aggravating circumstances from outweighing the mitigating

factors beyond a reasonable doubt." Although appellant asserts

that the trial court erroneously switched the burden of proof

to him, appellant misreads the trial court's statement.

For all these reasons, Proposition of Law III is overruled.

In his fifth proposition of law, appellant argues that

three egregious errors during the penalty phase compel vacation

of his death sentence.

First, appellant seizes on a comment made by one member of

the panel during a hearing prior to the penalty phase: "* * *

I am not clear on a distinction between mitigating factors and

exculpatory evidence * * *." Appellant also cites a statement

by defense counsel that is inconsistent with State v. Holloway

(1988), 38 Ohio St.3d 239, 527 N.E.2d 831, paragraph one of the

syllabus:

"I think mitigating evidence, Your Honor, has been defined

that mitigating factors are factors that while they do not

justify or excuse the crime, nevertheless in fairness and mercy

may be considered by you as extenuating or reducing degree of

the defendant's blame for punishment."

Appellant points out that counsel for the state also

injected culpability into a definition of mitigation, and that

this combination of errors mandates vacation of the death

sentence.

While it is clear that mitigating factors "are not

necessarily related to a defendant's culpability," Holloway,

supra, paragraph one of the syllabus, the sentencing opinion

indicates that the trial court considered all the proffered

mitigating factors, not merely those related to appellant's

culpability.

Appellant also contends under this proposition that the

trial court erred in ordering a guilt-phase transcript.

Defendant relies on State v. DePew (1988), 38 Ohio St.3d 275,

528 N.E.2d 542, in arguing that under R.C. 2929.03(D)(3), the

sentencing court may only consider the "relevant evidence

raised at trial," and that admission of the transcript would

permit the court to consider irrelevant and prejudicial

evidence contained therein.

The instant cause was tried before a three-judge panel,

and the admission of the transcript by the panel did not

deprive appellant of a fair trial since the court may consider

"the testimony" at trial. In addition, the presumption applies

that the trial panel considered only the relevant, material and

competent evidence in arriving at its judgment unless it

affirmatively appears to the contrary. Post, supra, 32 Ohio

St.3d 380, 513 N.E.2d 754. Since it does not affirmatively

appear that the trial panel considered irrelevant, immaterial

or incompetent evidence, this argument is rejected.

Appellant also asserts that the trial court erred in

allowing, over defense counsel's objection, improper rebuttal

testimony from James Simko, appellant's son, that appellant hit

his ex-wife. However, in its sentencing opinion, the panel

stated that it did not find this testimony credible and did not

rely on it. Accordingly, this proposition of law is meritless.

III

INDEPENDENT ASSESSMENT OF SENTENCE

Pursuant to our duties imposed by R.C. 2929.05(A), we now

independently review the death penalty sentence for

appropriateness and proportionality.

The evidence establishes beyond a reasonable doubt the

aggravating circumstance that appellant killed Johnson during

the commission of a kidnapping.

The nature and circumstances of the offense provide few

mitigating features. Appellant and Johnson had an

on-again-off-again relationship that was definitely off at the

time of the offenses. Although appellant went on a drinking

binge during the twelve or so hours prior to the shooting,

evidence indicated that appellant was able to plan, move, and

make himself understood on the morning of the shooting. The

facts that appellant attempted to execute a will, emptied his

bank account and told his son that he was going to kill himself

and Johnson, that he declared to his cousin that he was going

to shoot two people, that he purchased a gun and ammunition

several days before and learned how to use the weapon, and that

the night before the shooting appellant stalked Johnson all

indicate that his crimes were not a sudden or provoked act of

passion. Appellant held his victim at bay for approximately

one-half hour, terrorizing her and kidnapping a coworker in

order to prevent him from obtaining help for the victim. Five

shots were fired from appellant's gun, two of which were

directed at Johnson's back as she tried to escape from him.

Afterwards, appellant fled and left her to die by the school

dumpsters. Help for Johnson did not arrive until sometime

later.

Appellant's history, character, and background do provide

mitigating features. Appellant's father was a cruel man and an

alcoholic. Evidence established that appellant, too, was

alcohol dependent. His mother was possessive and demanding.

However, appellant had several siblings, all of whom graduated

from college. Appellant served eight years in the armed

service and received an honorable discharge. Coworkers and

family members found appellant helpful and likable.

With respect to the statutory mitigating factors,

appellant's lack of a significant criminal history is entitled

to some weight, R.C. 2929.04(B)(5). Stumpf, supra; State v.

Brewer (1990), 48 Ohio St.3d 50, 64, 549 N.E.2d 491, 505.

Under the "other factors" provision, R.C. 2929.04(B)(7),

appellant's voluntary intoxication may be given some weight,

see State v. Lawson (1992), 64 Ohio St.3d 336, 352, 595 N.E.2d

902, 914. However, under the circumstances of this case,

intoxication is not accorded much weight, given the expert and

eyewitness testimony of appellant's level of intoxication and

behavior at the time of the murder. State v. Slagle (1992), 65

Ohio St.3d 597, 614, 605 N.E.2d 916, 931. The avoidant

personality disorder that appellant suffers from, as testified

to by Dr. Brown, is entitled to some weight in mitigation. See

State v. Davis (1992), 63 Ohio St.3d 44, 51, 584 N.E.2d 1192,

1198. However, this disorder does not qualify as a "mental

disease or defect" under R.C. 2929.04(B)(3). See Seiber,

supra, 56 Ohio St.3d at 9, 564 N.E.2d at 415. In addition,

appellant's alcoholism does not qualify as a "mental disease or

defect." See State v. Lewis (1993), 67 Ohio St.3d 200, 209, 16

N.E.2d 921, 928. Appellant's expression of remorse during his

unsworn statement should be accorded little if any weight given

the history of his relationship with the victim. See Post,

supra, 32 Ohio St.3d at 394, 513 N.E.2d at 768. Also,

appellant's work record, service record, adjustment to

incarceration, and assistance to his family members are

entitled to some weight in mitigation. While appellant was

under stress due to the breakup of his relationship with the

victim, it cannot be characterized as coercion or strong

provocation and is not entitled to any weight under R.C.

2929.04(B)(2). See State v. Bedford (1988), 39 Ohio St.3d 122,

133, 529 N.E.2d 913, 924. None of the other statutory

mitigating factors appear relevant.

Upon weighing the aggravating circumstance against the

mitigating factors, the aggravating circumstance outweighs the

mitigating factors beyond a reasonable doubt. Appellant

deliberately went to Johnson's place of employment armed with a

weapon he purchased only a few days before the murder. When

Johnson entered the teachers' lounge, appellant used the gun to

restrain her of her liberty. Appellant held Johnson against

her will and prevented her from leaving the lounge. In fact,

appellant had the opportunity to release Johnson when Baker

came to her aid. However, appellant chose to restrain Johnson

and ordered Baker into the restroom. Later, Johnson managed to

escape, and was shot twice in the back. This whole ordeal

lasted approximately thirty minutes. Thus, the evidence proved

a calculated, prolonged and unprovoked kidnapping in the course

of which appellant purposely murdered Johnson.

The death penalty imposed in this case is both appropriate

and proportionate when compared with similar capital cases.

While the circumstances of the instant murder do not contain

the brutality present in felony murder cases involving

kidnapping such as State v. Buell (1986), 22 Ohio St.3d 124, 22

OBR 203, 489 N.E.2d 795; State v. Cooey (1989), 46 Ohio St.3d

20, 544 N.E.2d 895; or State v. Spirko (1991), 59 Ohio St.3d 1,

570 N.E.2d 229; the penalty is justifiable when compared to the

sentence imposed in State v. Brewer (1990), 48 Ohio St.3d 50,

549 N.E.2d 491; State v. Seiber, supra, 56 Ohio St.3d 4, 564

N.E.2d 408; and State v. Fox (1994), 69 Ohio St.3d 183, 631

N.E.2d 124.

Accordingly, the judgment of the court of appeals is

affirmed.

Judgment affirmed.

A.W. Sweeney, Douglas and Resnick, JJ., concur.

Moyer, C.J., Wright and Pfeifer, JJ., dissent.

Footnote:

1 At trial, defense counsel conceded that appellant had

killed Johnson.

APPENDIX

"Proposition of Law No. I[:] Where the state fails to

introduce sufficient evidence to prove a capital specification

of kidnapping beyond a reasonable doubt, a defendant is

deprived of his right to due process of law under the

Fourteenth Amendment to the United States Constitution, and

Section 16, Article I of the Ohio Constitution.

"Proposition of Law No. II[:] The death sentence imposed

in appellant Simko's case was inappropriate, in violation of

the Fifth, Eighth and Fourteenth Amendments to the United

States Constitution and Sections 9 and 16, Article I of the

Ohio Constitution.

"Proposition of Law No. III[:] Errors in the opinion of

trial court, filed pursuant to R.C. 2929.03(F), mandate

vacation of the death sentence.

"Proposition of Law No. IV[:] Where the trial court fails

to assess a defendant's knowledge of the relevant circumstances

and likely consequences of his waiver of jury trial, the court

has failed to insure an intelligent, voluntary and knowing

waiver of rights guaranteed by the Fifth, Sixth, Eighth and

Fourteenth Amendments of the United States Constitution and

Sections 5, 9 and 16, Article I of the Ohio Constitution.

"Proposition of Law No. V[:] Any egregious error in the

penalty phase of a death penalty proceeding will be cause to

vacate the sentence of death.

"Proposition of Law No. VI[:] Where the trial court

allows the admission of improper and prejudicial hearsay

testimony, a defendant's conviction is unconstitutional and

must be reversed.

"Proposition of Law No. VII[:] The admission of victim

character evidence in the guilt-innocence phase of a capital

case, and victim impact evidence in the penalty phase is

contrary to Ohio law and denies a capital defendant a fair

determination of his guilt and sentence.

"Proposition of Law No. VIII[:] Where a state fails to

introduce sufficient evidence to prove beyond a reasonable

doubt, a conviction for kidnapping is unconstitutional and

cannot stand.

"Proposition of Law No. IX[:] The 'presumption' applied

in three-judge panel cases that the judges do not consider and

are not influenced by any erroneously admitted evidence denies

capital defendants due process and equal protection.

"Proposition of Law No. X[:] Misconduct by the prosecutor

during the guilt/innocence phase of a capital case eradicates

the reliability of the guilt determination.

"Proposition of Law No. XI[:] Any egregious error in the

penalty phase of a death penalty proceeding, including

prosecutorial misconduct, will be cause to vacate the sentence

of death with a subsequent remand to the trial court for a new

sentencing procedure. (State v. Thompson [1987], 33 Ohio St.3d

1 [514 N.E.2d 407], followed.)

"Proposition of Law No. XII[:] Hearsay statements are not

admissible unless they meet one of the recognized exceptions.

"Proposition of Law XIII[:] Where the trial court allows

inadmissible and prejudicial testimony during cross-examination

of a witness, defendant's conviction and sentence are rendered

unconstitutional and must be reversed.

"Proposition of Law No. XIV[:] In a capital case, the

accused is required to be present at every stage of the

proceedings unless he, personally, voluntarily absents himself.

"Proposition of Law No. XV[:] Where the trial court

admits improper evidence in the guilt/innocence phase of a

capital trial, the resulting conviction is unreliable and must

be reversed.

"Proposition of Law No. XVI[:] Counsel's performance will

be deemed ineffective if it falls below an objective standard

of reasonable representation and prejudice arises from

counsel's performance.

"Proposition of Law No. XVII[:] Where the trial court

allows the state to conduct the examination of its own

witnesses through the use of leading questions, a defendant is

denied rights guaranteed by the Sixth and Fourteenth Amendments

to the United States Constitution.

"Proposition of Law No. XVIII[:] The state should not be

allowed to cross-exam a defense witness concerning a prior

inconsistent statement when such statement is posed without a

good faith belief that such statement was actually made.

"Proposition of Law No. XIX[:] The Fifth, Eighth and

Fourteenth Amendments to the United States Constitution,

Sections 10 and 16, Article I of the Ohio Constitution and Ohio

Revised Code Section 2929.05 guarantee a convicted capital

defendant a fair and impartial review of his death sentence.

The statutorily mandated proportionality process in Ohio is

fatally flawed thereby denying appellant Simko the above rights.

"Proposition of Law No. XX[:] Where the trial court

abuses its discretion in denying a defendant's motion to permit

the three-judge panel to view the scene, it violates a

defendant's rights as guaranteed by the Fifth, Sixth, Eighth

and Fourteenth Amendments to the United States Constitution and

Sections 10 and 16, Article I of the Ohio Constitution.

"Proposition of Law No. XXI[:] The Fifth, Sixth, Eighth

and Fourteenth Amendments to the United States Constitution and

Sections 2, 9, 10 and 16, Article I of the Ohio Constitution

establish the requirements for a valid death penalty scheme.

Ohio Revised Code, Section 2903.01, 2929.02, 2929.021,

2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio's

statutory provisions governing the imposition of the death

penalty, do not meet the prescribed requirements and thus are

unconstitutional, both on their face and as applied."

Wright, J., dissenting. In my view, the aggravating

circumstance, kidnapping, clearly does not outweigh the

mitigating factors beyond a reasonable doubt. I say this for

the following reasons:

(1) The appellant was fifty-eight years old at the time of

the crime. Furthermore, he has no record of previous felonious

conduct whatsoever. Appellant's only criminal conviction was

for a DWI some years ago.

(2) Appellant's history indicates a dysfuntional family

background.

(3) Although appellant has a limited educational

background, having completed only the tenth grade, he has had a

record of productive employment during most of his adult life

and notably spent eight years in the United States Army,

receving an honorable discharge after his service;

(4) There is a substantial amount of testimony in the

record with respect to the appellant's reputation and none of

the testimony credited by the three-judge panel pointed toward

violent activity in his past. The trial panel gave no

credibility to the testimony of James Simko as to previous

incidents of domestic violence.

(5) Appellant poses no threat to society in the event of a

twenty or thirty year actual incarceration.

(6) Appellant has been a model prisoner.

(7) While it is true that the murder itself was brutal in

character, it has to be noted that appellant has a history of

alcohol abuse and was intoxicated at the time of the offense,

according to expret testimony that his blood alcohol level at

the time of the offense would have been about .14 percent.

(8) Appellant was diagnosed as having avoidant personality

disorder. While this does not rise to the level of a mental

disease or defect such that it would be a mitigating factor

under R.C. 2929.04(B)(3), it does apply to appellant's mental

state and should be considered under R.C. 2929.04(B)(7).

(9) Appellant has shown remorse for his actions.

Furthermore, it would appear that the trial panel may well

have treated the nature and circumstances of the crime as a

second aggravating circumstance insofar as they made detailed

findings of fact concerning the circumstances of the crime and

used the plural several times in alluding to aggravating

circumstances.2 This court has held that it is appropriate to

consider the nature and circumstances of the offense as a

mitigating factor, but not as an additional statutory

aggravating circumstance.

In State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282,

494 N.E.2d 1061, syllabus, this court held "R.C. 2941.14(B)

limits the aggravating circumstances which may be considered in

imposing the death penalty to those specifically enumerated in

R.C. 2929.04(A)." This principle was discused in great detail

in State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744 and

State v. Davis (1988), 38 Ohio St.3d 361, 528 N.E.2d 925.

In State v. Davis, the defendant was convicted of

aggravated murder in violation of R.C. 2903.01(A). The death

penalty specification count of prior purposeful killing was

included in the indictment. The court of appeals upheld the

death sentence imposed upon the defendant. This court reversed

the judgement of the court of appeals and remanded the cause to

the trial court for resentencing because the three-judge panel

improperly weighed nonstatutory aggravating circumstances

against the mitigating factors. The panel specified what it

considered to be the mitigating factors and aggravating

circumstances. Its opinion read:

"We find the following aggravated [sic] circumstances have

been proved beyond a reasonable doubt:

"1) The manner by which the Defendant purchased the gun,

used to kill the victim in this case.

"2) The manner by which the Defendant purchased the

ammunition for the gun.

"3) The shooting of the victim, the firing at close range

and finally placing the gun almost against her skull and

discharging the weapon.

"4) The prior purposeful killing of his wife in 1970 by

multiple stab wounds.

"5) Committing the present offense while on parole for the

muder of his wife.

"After considering the mitigating factors and the

aggravating circumstances proved beyond a reasonable doubt, we

unanimously find by proof beyond a reasonable doubt that the

aggravating circumstances the Defendant was found guilty of,

outweigh the mitigating factors found by this panel." Id., 38

Ohio St.3d at 368, 528 N.E.2d at 932.

Of the five "aggravating circumstances" listed in the

opinion, only the aggravating circumstance described in R.C.

2929.04(A)(5) was a statutory aggravating circumstance. In

response, this court stated "the balance of the five

circumstances listed by the three-judge panel was outside the

statute" and it was therefore improper to consider them. Id.

at 369, 528 N.E.2d at 933.

The three-judge panel in this case apparently undertook

the same type of flawed analysis. See footnote 1. It is

permissible for a court to consider nonstatutory aggravating

circumstances if there are no mitigating factors present as

there is no danger that nonstatutory circumstances will

overcome the mitigating factors in the weighing process. Id.,

38 Ohio St.3d at 370-371, 528 N.E.2d at 934, citing Elledge v.

State (1977) 346 So.2d 998. However, as specified above, there

are numerous mitigating factors present in this case and

therefore the nature and circumstances of the offense should

not have been considered as an aggravating circumstance. See,

also, Zant v. Stephens (1983), 462 U.S. 862, 103 S.Ct. 2733, 77

L.Ed.2d 235, and Barclay v. Florida (1982), 463 U.S. 939, 103

S.Ct. 3418, 77 L.Ed.2d 1134.

In addition, I concur in the thrust of the dissent of

Justice Pfeifer as it is my belief that the sentence of death

in this case is disproportionate and inappropriate given the

previous cases decided by this court.

For all these reasons, I would affirm the conviction but

reverse the death sentence and remand the matter to the trial

panel for resentencing pursuant to State v. Davis (1988), 38

Ohio St.3d 361, 528 N.E.2d 925.

FOOTNOTE:

2 The opinion of the trial panel read as follows:

"REASONS WHY THE AGGRAVATING CIRCUMSTANCES THE OFFENDER

WAS FOUND GUILTY OF COMMITTING WERE SUFFICIENT TO OUTWEIGH THE

MITIGATING FACTORS.

"1. The Panel finds beyond a reasonable doubt that the

Defendant was the principal offender in Count I, Count II and

Count III of the indictment.

"2. The kidnapping of Mary Jane Johnson was not a mere

restraint of liberty incident to the homocide. ***

"3.Defendant's purchase of a 357 Magnum gun along with

hollow point bullets four days before the shooting.

"4. Defendant's decision to go to Durling Elementary

School with a loaded 357 Magnum.

"5. Defendant's decision to take only one key to the

elementary school, the key to enter the building.

"6. The continued restraint of Mary Jane Johnson after she

called for help, by force, for the purpose of terrorizing

and/or for the purpose of inflicting serious physical harm.

"7. The circumstance that Defendant had the opportunity

and could have released her to safety on at least three

different occasions. ***

"8. The circumstance that Defendant left Mary Jane Johnson

bleeding to death by the dumpster; that Defendant sought no

medical treatment for her, but decided to flee.

"9. Even with no prior criminal history and considering

his character and background, the aggravating circumstances

clearly outweigh the mitigating factors.

"***

"Finally, in looking at any other relevant factors, we

consider Defendant's claim of remorse and his lack of a

criminal history. Balancing the mitigating factors enumerated

above against the aggravating circumstances, we conclude that

the aggravating circumstances outwigh the mitigating factors

beyond a reasonable doubt." (Emphasis added.)

State v. Simko.

Pfeifer, J., dissenting. I concur with Justice Wright

that the aggravating circumstance in this case does not

outweigh the mitigating factors. I write further because I

would hold that the sentence of death is disproportionate,

given the particular facts of this case.

The death penalty is special. That special nature is

reflected in the types of crimes punishable by death and by

this court's role in the death penalty analysis.

By statute, not every murder is a death-penalty crime.

The state of Ohio takes very seriously the awesome

responsibility involved in taking a person's life. The death

penalty is reserved for those committing what the state views

as the most heinous of murders, such as those committed while

the murderer was committing another violent crime, e.g.,

kidnapping or rape.

This court's role is also special in death-penalty cases.

Unlike other criminal defendants, including non-death-penalty

murderers, defendants eligible for the death penalty receive an

automatic right of appeal to this court. Part of that appeal

is our mandated consideration of "whether the sentence is

excessive or disproportionate to the penalty imposed in similar

cases." R.C. 2929.05(A). Proportionality review is a key part

of this court's death-penalty review, and as the state's

highest court we are in a unique position to determine what is

proportionate in a statewide sense.

The focus in most death-penalty cases has been on issues

other than proportionality. Typically, the court locates

previous cases with similar statutory aggravating circumstances

where the death penalty has been imposed, and thus finds

proportionality to the case at issue. However, murders with

the same statutorily defined aggravating circumstance are not

necessarily crimes of the same character. In the present case,

for example, the majority cites three cases in its

proportionality review.

In State v. Fox (1994) 69 Ohio St.3d 183, 631 N.E.2d 124,

the defendant lured the victim into meeting with him by posing

as a prospective employer. He drove her to a remote country

road, and when she resisted his advances and tried to escape,

he brutally stabbed her. He then got a rope out of his trunk

and strangled her, "just to make sure she was dead." Id at

195, 631 N.E.2d at 133.

In State v. Seiber (1990), 56 Ohio St.3d 4, 564 N.E.2d

408, the defendant held a bar's patrons at gunpoint,

terrorizing them and murdering one, shooting him in the back as

he sat at the bar.

In State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d

491, the defendant kidnapped the wife of his lifelong friend,

locking her in his car's trunk for hours as he drove around.

At one point the victim was able to scrawl "HELP ME PLEASE" in

lipstick on a piece of paper and stick it through a gap in the

trunk seal. When the defendant learned that the police were

looking for him for an explanation, he drove to a remote area,

attempted to strangle the victim with his hands and a necktie,

and then stabbed her and slashed her throat with a butcher

knife.

Thus, even though these cases share the same

death-penalty-qualifying aggravating circumstance as the case

at issue, the characters of the crimes differ widely. To rely

completely on the crimes of others in determining whether the

death penalty is proportionate in a given case demeans our

responsibility to review each case individually.

In the present case, Simko technically did commit

kidnapping and thus became eligible for the death penalty. But

the death penalty is not for technicalities. The General

Assembly recognized that when it mandated that this court

employ a proportionality review. Our role is basically to

determine whether the penalty of death is appropriate in a

particular case, given the penalty's role in our overall system

of justice. Our mandate was not prescribed with precision

because the type of review involved is not truly capable of

precise measurement. Yet we have been charged with making that

call, and as the state's supreme court we ought not back down

from making it.

The death penalty is to apply to the worst of cases. This

is not one of those.

Moyer, C.J., concurs in the foregoing dissenting opinion.