State v. Kirkland (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

State v. Kirkland, Slip Opinion No. 2014-Ohio-1966.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2014-OHIO-1966

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

[Until this opinion appears in the Ohio Official Reports advance sheets,

it may be cited as State v. Kirkland, Slip Opinion No. 2014-Ohio-1966.]

Criminal law—Aggravated murder—Substantially prejudicial prosecutorial

misconduct can be cured by the court’s independent evaluation of the

capital sentence—Death penalty affirmed.

(No. 2010-0854—Submitted September 11, 2013—Decided May 13, 2014.)

APPEAL from the Court of Common Pleas of Hamilton County,

No. B-0901629.

____________________

FRENCH, J.

{¶ 1} This is a death-penalty appeal of right. Defendant-appellant,

Anthony Kirkland, was convicted of the aggravated murder of two girls in

Hamilton County between 2006 and 2009. He was also convicted of the murder

of two other women.

{¶ 2} On the first morning of trial, Kirkland voluntarily pled guilty to the

murders of Mary Jo Newton and Kimya Rolison, as well as to two counts of abuse

SUPREME COURT OF OHIO

of a corpse. The jury convicted Kirkland on all remaining charges, including

aggravated murder with death specifications for the deaths of Esme K. and

Casonya C., and recommended a sentence of death. The trial court accepted the

recommendation and sentenced Kirkland accordingly.

{¶ 3} For the reasons explained below, we affirm Kirkland’s convictions

and sentence.

The State’s Evidence at Trial

{¶ 4} On the night of May 3, 2006, around 11:00 p.m., 14-year-old

Casonya C. left the home of her grandmother, Patricia C. She took her book bag,

gym shoes, and cell phone with her. Her grandmother assumed Casonya meant to

spend the night at her mother’s house.

{¶ 5} Around midnight, Casonya called her friend, Tania H., from the

front porch of her friend’s house. Tania told Casonya she was already in bed and

did not want to go out, so Casonya said she was going back home.

{¶ 6} After leaving Tania’s house, as she headed for her grandmother’s

house, Casonya spoke on the phone with her boyfriend, Ra’Shaud B. The two

were having an argument when suddenly the phone cut off. Ra’Shaud tried for

three days to reach Casonya by telephone, but he never spoke to her again.

{¶ 7} The next morning, Casonya did not show up at school. Casonya’s

mother indicated that she had not seen her daughter, and calls to Casonya’s cell

phone went to voicemail.

{¶ 8} At approximately 1:30 p.m. on May 4, 2006, Patricia C. called the

police to report that her granddaughter was missing.

{¶ 9} On May 9, 2006, city workers doing landscaping discovered a body

underneath a pile of old tires. The body was located in a secluded wooded area,

approximately ten feet down the hillside from the end of a dead-end road.

{¶ 10} The body was heavily charred and decomposed, so much so that

the responding officer could not determine the race or gender of the body. The

2

January Term, 2014

front teeth had been recently knocked out. The only clothing on the body was a

sock on one foot.

{¶ 11} Just beyond the end of the road, police found a burn pit, a charred

site where they believed that the body was burned before it was dragged down the

hillside and buried under the tires. And near the pit they found a long piece of

timber, charred at one end, that appeared to have been used as a poker to stir the

fire.

{¶ 12} The forensic pathologist was unable to do a rape examination

because the pelvic area was almost completely charred. Investigators were also

unable to look for DNA evidence under the victim’s fingernails because the hands

and forearms were completely charred.

{¶ 13} The body was positively identified as that of Casonya C. by

comparison of dental x-rays.

{¶ 14} One month later, on June 15, 2006, the still hot and smoking

remains of a second human body were found approximately 35 feet from the end

of a dead-end street. The right foot was found 37 feet from the body. Tests

indicated that the fire was started using either lighter fluid or paint thinner.

{¶ 15} The autopsy was unable to determine a cause of death but did

demonstrate that the victim was already dead when the body was set on fire. The

body was eventually identified as that of Mary Jo Newton by comparison of

dental records.

{¶ 16} In the spring of 2008, skeletal remains of a third victim were

discovered in a heavily wooded area at the end of another dead-end street. The

bones were scattered, and the hands and feet were never found.

{¶ 17} The cause of death was a sharp-force injury to the neck caused by a

cutting instrument. The bones showed traces of burning on the face, the front of

the hip bones, and the thigh bones. A forensic anthropologist determined that the

victim was most likely an African-American woman, probably between 30 and 55

3

SUPREME COURT OF OHIO

years of age. However, the victim’s identity remained unknown for nearly one

year.

{¶ 18} On the afternoon of Saturday, March 7, 2009, 13-year-old Esme K.

left her home to go jogging, wearing her iPod and a purple watch. Esme K.’s

mother called 9-1-1 at 4:21 p.m. to report Esme missing.

{¶ 19} Police searched abandoned houses and nearby woods. Eventually,

two canine-unit officers spotted a man, later identified as Anthony Kirkland,

sitting underneath some fir trees in the nearby woods.

{¶ 20} The officers saw knives protruding from his left pants pocket, so

they disarmed him and searched him. They found a purple watch and an iPod in

his pockets. Etched on the back of the iPod were the words “Property of Esme

[K].”

{¶ 21} The officers placed Kirkland in handcuffs. Kirkland initially gave

his name as Anthony Palmore. He claimed that he had found the watch and iPod

in the woods. The police read Kirkland his Miranda rights.

{¶ 22} Efforts to confirm his identity through police databases were

unsuccessful, but after about 20 minutes, Kirkland gave his real name. As the

search for Esme continued, police transported Kirkland to the police station.

{¶ 23} At around 3:00 in the morning, searchers found the body of Esme

K. in the woods. She was naked except for her shoes and socks. Her body was

propped up against a tree branch, with her arms crossed and her legs spread. Her

groin, inner thighs, and left hand had all been severely burned.

{¶ 24} The official cause of death was asphyxiation due to ligature

strangulation, confirmed by a fracture of the hyoid bone, ligature marks on the

neck, and petechiae on her face consistent with a long struggle. There was also

evidence of premortem trauma to Esme’s vagina consistent with rape.

{¶ 25} Police found Esme’s top a few days later in the parking lot of a

nearby vacant building. The shirt had burn holes and had been cut open in the

4

January Term, 2014

front. A trail of burnt clothing led police to a white plastic bag containing Esme’s

grey sweatpants and underpants. The zipper pocket of the sweatpants was burned,

but the underwear was not.

{¶ 26} Investigators took DNA samples from Kirkland’s hands, his penis,

and a stain on his boxer shorts, and in all three cases, DNA consistent with

Esme’s was found. Partial shoe prints in the woods were consistent with the type

of sneaker Kirkland wore at the time.

{¶ 27} On the morning of March 8, 2009, Detective Keith Witherell

interviewed Kirkland. Witherell had previously interviewed Kirkland on March

15, 2007, in connection with the homicides of Casonya and Mary Jo. During the

2007 interrogation, Kirkland viewed a photograph of Casonya and said that he did

not recognize her. He admitted that he knew Mary Jo and that the nature of their

relationship was sexual, but denied having anything to do with her death.

{¶ 28} In 2007, police had no forensic evidence tying Kirkland to the

murders, no eyewitnesses, and no admissions from Kirkland. Consequently, they

were unable to arrest or charge him.

{¶ 29} The first March 2009 interview lasted over four hours. A video

recording of that interview was introduced into evidence and played for the jury.

{¶ 30} During that interview, Kirkland offered multiple, inconsistent

versions of events. At the outset, he professed confusion as to the reason for his

arrest, telling officers that he thought they brought him in because of outstanding

warrants relating to an altercation with his ex-girlfriend’s current boyfriend and

that he had no idea he was there because of the missing girl.

{¶ 31} He repeatedly denied seeing a young girl jogging (or anyone else)

in the vicinity of the reservoir near where he was found. He acted as if he did not

even know the race of the missing girl. And he professed surprise to learn that the

5

SUPREME COURT OF OHIO

watch and radio,1 which he continued to insist he stumbled upon while walking in

the woods, belonged to the missing girl.

{¶ 32} After further questioning, Kirkland admitted meeting Esme at the

reservoir and told detectives that he could take them to her. He said that the two

literally ran into one another and that the collision caused Kirkland to drop his

beer and lose his temper. He punched Esme multiple times and kicked her. But

he claimed to have left her alive.

{¶ 33} After detectives told Kirkland that her body had been found, he

changed his story. First claiming to have no memory of events, Kirkland then

admitted chasing Esme into the woods. But he continued to claim that he left her

injured but alive, and he repeatedly insisted that she was wearing clothes when he

left her.

{¶ 34} As the questioning continued, Kirkland claimed to have left Esme

alive with a man he knew only as Pedro. But when challenged, Kirkland

confessed knowing all along that she was dead. He admitted that he had returned

to the reservoir some hours after the murder to move the body.

{¶ 35} Kirkland said Esme died “because of my hatred.” But when asked

directly if he had killed her, he still said no, and as the interview concluded,

Kirkland was still insisting that he had learned the location of the body from

Pedro.

{¶ 36} A second interview of Kirkland began approximately two hours

later. This time, Detective William Hilbert questioned Kirkland about Mary Jo

and Casonya. The interview occurred in two sessions, the first lasting about two

and one-half hours, and the second less than 90 minutes. Video recordings of

those interviews were introduced into evidence, and a redacted version was

played for the jury.

1

What Kirkland initially called a radio was in fact Esme’s iPod.

6

January Term, 2014

{¶ 37} Kirkland gave the following account of Mary Jo’s murder:

{¶ 38} He first met Mary Jo at the bus stop across the street from the

downtown Justice Center. She worked as a prostitute to support a drug habit. She

was just getting out of the Justice Center when Kirkland met her. He and Mary Jo

had sex together a couple of times.

{¶ 39} On the day she died, Kirkland picked her up in the College Hill

area. They went to a liquor store together, then to a Rally’s for food. They took

some drugs. Next they went by the house of Kirkland’s girlfriend, who was at

work at the time.

{¶ 40} As they continued to drive, an argument broke out. Kirkland

choked Mary Jo to death from behind. Then he drove to Avondale and dumped

her body at the end of a dead-end street. He had a gas can in his vehicle that he

used to set the body on fire. According to Kirkland, he burned the body because

fire purifies and burning the body was “a proper burial” like the Vikings did. It

was still daylight at the time, but no one was around, so Kirkland stayed to watch

the flames.

{¶ 41} Hilbert shifted the conversation to Casonya, and Kirkland offered

this account:

{¶ 42} He first saw Casonya at the top of a bridge that crosses Interstate

71 near Walnut Hills High School. It was around 1:00 in the morning. Kirkland

was sitting smoking marijuana. He heard Casonya having an argument with

somebody on her cell phone, and when she saw him smoking, she hung up the

phone.

{¶ 43} According to Kirkland, Casonya asked him about the marijuana, he

asked if she was old enough for that, and she answered she was old enough to be

doing a lot of things.

{¶ 44} That led to a conversation in which Kirkland gave her $20 and

agreed to go as high as $60. He says the money was to pay her just to talk. The

7

SUPREME COURT OF OHIO

two had an argument about, according to Kirkland, “girls playing games.”

Casonya threw the money back at him. At that point, Kirkland got mad and

grabbed Casonya. She kneed him, and he strangled her.

{¶ 45} Before the altercation, the pair had crossed the bridge together and

descended to Victory Parkway. From there, Kirkland carried her dead body to a

wooded area where he burned her, using lighter fluid he took from a nearby

house. He then carried her burned body down the hill and covered the body with

tires because he was scared. He stayed with the body all night long.

{¶ 46} Kirkland then offered the following account of Esme’s murder:

{¶ 47} At around 3:00 in the afternoon, as he was walking near the

reservoir, Esme ran into him. She was apologetic, which only enraged Kirkland.

He punched her, called her names, and demanded to know her name and what

music she was listening to. At some point, he chased her into the woods, she

tripped over a small fence, and he continued to punch and choke her.

{¶ 48} At first, Kirkland denied raping Esme. But then he told Hilbert that

Esme said that “she would do whatever I wanted, just don’t hurt her,” and he

asked to have sex with her. However, he was unable to penetrate her completely,

so he made her masturbate him manually. Then he choked her to death with his

bare hands because he did not believe her when she said she would not tell

anyone. In a subsequent interview, he elaborated that he had used a rag to

strangle Esme when his efforts to kill her with his bare hands failed.

{¶ 49} He propped up her body against a tree and stayed for two hours

talking to her, apologizing to her. Then he tried to start a fire using her clothes as

an accelerant. It was dark when he left to find lighter fluid “to perform the ritual.”

He ate some food from a garbage can and eventually returned to the woods (but

not the body), where he fell asleep until the police found him.

{¶ 50} A third interview of Kirkland—also shown to the jury—

commenced 30 minutes later. In the interview, detectives asked him about the

8

January Term, 2014

unidentified burned body found in the spring of 2008. At first, Kirkland claimed

to have killed only three victims. And then, after a great deal of discussion,

Kirkland announced, “I, three—I wasn’t honest totally. * * * It was one more.”

{¶ 51} Kirkland knew her as Kim. She was working as a prostitute when

he met her on Reading Road in December 2006. He paid her $40, and they had

sex. As they continued to drive together, an argument broke out, and Kirkland

pulled the car over. He stabbed Kim in the throat with her own knife. He

dumped her body up a dead-end hill. He laid the body out on a bed of wood and

sprayed it with lighter fluid, then covered the body. He returned a few weeks

later, to find the skeleton still in place, but the leg bones missing.

{¶ 52} Police tried to identify those remains using information provided

by Kirkland, including the fact that on the night she died, she and Kirkland had

had an encounter with a uniformed police officer in Clifton who told them they

could not be in a public park after dark. An investigator reviewed a month’s

worth of records showing license-verification requests sent by Cincinnati police to

the state of California. The search revealed that on December 22, 2006, a police

officer working in Clifton ran an inquiry on a California driver’s license

belonging to Kimya Bodi Iamaya Corrine Rolison, whose date of birth roughly

matched the one Kirkland remembered seeing on her license. The Rolison family

confirmed that Kimya was missing. Dental records confirmed the identity of the

body.

{¶ 53} After the state finished playing the videotapes of Kirkland’s

confessions, and over the defense’s objection, the state called Kylah W. to testify.

Kylah testified that she was 13 years old in the fall of 2007. At the time, Kylah

was living with her mother. Kirkland was a friend of her mother’s who would

sometimes stay with them.

{¶ 54} Kylah testified that on September 26, 2007, she arrived home from

school at about 3:30 in the afternoon and found herself alone in the apartment

9

SUPREME COURT OF OHIO

with Kirkland. Kylah was hungry, so she decided to cook herself a hamburger.

She left the food cooking on low to go into her bedroom to talk to a friend on the

telephone.

{¶ 55} According to Kylah, Kirkland knocked on her bedroom door, then

opened the door, put the hamburger on top of her dresser, and left the room,

closing the door behind him. Kylah continued her telephone conversation. But a

short time later, Kirkland opened her door again, and this time his “bottoms” were

down and his privates were exposed. Kirkland stood in the doorway without

entering. Kylah repeatedly told him to get out of her room, which he eventually

did.

{¶ 56} Five or ten minutes later, Kirkland returned again. He was still

exposing himself. This time he was carrying a piece of paper, and he approached

Kylah and held the paper so she could read it. The note read, “I want to be the

first to eat you out and I’ll pay you.” Kylah continued telling him to leave, and

Kirkland did.

{¶ 57} But he came to her room a fourth time. This time he was dressed.

He walked into her room, placed five dollars on the dresser, and walked out.

{¶ 58} Unsure what to do, Kylah stayed on the phone with her friend for

another ten minutes and then left the apartment. When she later told her mother

what had happened, her mother told Kirkland to get out of the apartment, and then

the two women went to the local police station to report the incident. Kirkland

was eventually convicted of importuning and served about one year in prison, a

fact the jury did not learn until the penalty phase.

The Defense Case

{¶ 59} The defense did not call witnesses during the guilt phase.

Procedural History of the Case

{¶ 60} On March 17, 2009, the state filed a 12-count indictment against

Kirkland. The indictment included four counts of aggravated murder with death-

10

January Term, 2014

penalty specifications. Count Two charged Kirkland with the aggravated murder

of Casonya C. while committing or attempting to commit rape, a death-penalty

specification under R.C. 2929.04(A)(7), and Count Four charged Kirkland with

the aggravated murder of Casonya C. while committing or attempting to commit

aggravated robbery, R.C. 2929.04(A)(7). Counts Two and Four included “course-

of-conduct” death-penalty specifications. R.C. 2929.04(A)(5).

{¶ 61} Counts Nine and Eleven contained rape and robbery aggravated-

murder charges in connection with the death of Esme K. Each of these counts

also included a course-of-conduct specification as well as an escape-detection-or-

apprehension specification under R.C. 2929.04(A)(3).

{¶ 62} The indictment contained eight additional counts: Count One,

attempted rape of Casonya; Count Three, aggravated robbery of Casonya; Count

Six, murder of Mary Jo Newton; Count Eight, attempted rape of Esme K.; Count

Ten, aggravated robbery of Esme K.; and Counts Five, Seven, and Twelve, gross

abuse of a corpse.

{¶ 63} Kirkland was indicted separately for murder and abuse of a corpse

relating to Kimya Rolison. Over objection, the two indictments were

consolidated for trial.

{¶ 64} On the morning of trial, Kirkland voluntarily entered a plea of

guilty to the murder and abuse-of-a-corpse charges relating to Mary Jo Newton

and Kimya Rolison. On March 12, 2010, the jury found Kirkland guilty on all the

remaining counts, including all the death-penalty specifications, and

recommended a sentence of death. For purposes of sentencing, the court merged

the escape-detection specifications with the specifications of felony murder while

attempting rape or robbery. The court then sentenced Kirkland to death for the

aggravated murder of Esme K. while committing or attempting to commit a rape

and for the aggravated murder of Casonya C. while committing or attempting to

11

SUPREME COURT OF OHIO

commit a robbery. The court also sentenced Kirkland to 70 years to life for the

murders of Mary Jo Newton and Kimya Rolison.

Legal analysis

{¶ 65} Kirkland seeks reversal of his convictions of aggravated murder

and the sentence of death in ten propositions of law.

1. The admission of Kylah W.’s testimony (Proposition of Law I)

{¶ 66} In his first proposition of law, Kirkland argues that the trial court

violated Evid.R. 404(B) by allowing Kylah W. to testify that when she was 13

years old, Kirkland exposed himself to her and offered her $5 to engage in oral

sex.

{¶ 67} The trial court has broad discretion in the admission and exclusion

of evidence, including evidence of other acts under Evid.R. 404(B). State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 22. Unless the

trial court has “clearly abused its discretion and the defendant has been materially

prejudiced thereby, this court should be slow to interfere” with the exercise of

such discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).

We have defined “abuse of discretion” as an “unreasonable, arbitrary, or

unconscionable use of discretion, or as a view or action that no conscientious

judge could honestly have taken.” State v. Brady, 119 Ohio St.3d 375, 2008-

Ohio-4493, 894 N.E.2d 671, ¶ 23.

{¶ 68} Evid.R. 404(B) states that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith.” Such evidence may, however, be admissible for other

purposes, “such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B).

Similarly, R.C. 2945.59 allows the admission of other-acts evidence tending to

show a defendant’s “motive or intent, the absence of mistake or accident on his

part, or the defendant’s scheme, plan, or system in doing the act in question.”

12

January Term, 2014

Generally, evidence of other acts is admissible if it is offered for a purpose other

than to prove the character of a person in order to show action in conformity with

that character, Evid.R. 404(B), it is relevant when offered for that purpose,

Evid.R. 401, and the danger of unfair prejudice does not substantially outweigh its

probative value, Evid.R. 403. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-

5695, 983 N.E.2d 1278, ¶ 20.

{¶ 69} The trial court did not abuse its discretion by admitting Kylah’s

testimony. The state introduced the evidence of her encounter with Kirkland for a

valid purpose other than proving character in order to show that he had acted in

conformity with that character: to show that Kirkland offered money to Casonya

not “just to talk” with her, as he told police, but that he had a sexual intent and

motive for doing so. Nor did the trial court admit Kylah’s testimony as proof of

character. In fact, in its final instructions to the jury, the trial court told the jury

that it could not consider evidence of any other acts for such a purpose. We

presume that the jury followed this limiting instruction. See id. at ¶ 23. Kylah’s

testimony was relevant to the attempted-rape allegations involving Casonya

because it tended to show a fact “of consequence,” i.e., that Kirkland had a sexual

interest in Casonya and a sexual purpose for approaching her. Evid.R. 401.

Moreover, the attempted rape of Casonya was one of the only crimes the defense

contested during the guilt phase, and Kylah’s testimony was relevant to refute the

defense’s suggestion that Kirkland had an innocent purpose for offering Casonya

money and that he did not have sex with her.

{¶ 70} Finally, the danger of unfair prejudice did not substantially

outweigh the probative value of Kylah’s testimony. The trial court reduced any

danger of undue prejudice in its limiting instruction to the jury. See State v.

Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194 (limiting

instruction “minimized the likelihood of any undue prejudice” caused by the

admission of Evid.R. 404(B) evidence); see also Williams at ¶ 24. The only claim

13

SUPREME COURT OF OHIO

of prejudice in Kirkland’s brief is his conclusory statement that Kylah’s testimony

“made the difference between life and death,” a statement that seems to refer to

the outcome of the mitigation phase rather than the guilt phase. Kirkland supports

this claim by citing two newspaper articles that contain posttrial statements from

the prosecuting attorney and one victim’s stepmother. These materials are not in

the record, and we cannot consider them. State v. Ishmail, 54 Ohio St.2d 402, 377

N.E.2d 500 (1978), paragraph one of the syllabus (“A reviewing court cannot add

matter to the record before it, which was not part of the trial court’s proceedings,

and then decide the appeal on the basis of the new matter”).

{¶ 71} We overrule Kirkland’s first proposition of law.

2. Ineffective Assistance of Counsel (Proposition of Law II)

{¶ 72} In his second proposition of law, Kirkland alleges two incidents of

ineffective assistance of counsel. First, Kirkland alleges that his trial counsel told

the jury in the mitigation-phase opening statement that an uncle would testify to

explain why Kirkland’s parents were not in attendance and why Kirkland should

receive a sentence other than death. But the uncle was not called to the stand, and

the jury was given no explanation in closing argument for the uncle’s absence.

{¶ 73} The record does not show defense counsel making any such

representation to the jury in an opening statement, either at the guilt phase or the

mitigation phase. Defense counsel told the judge that a family member might

testify but later reported that the family would not cooperate. Those statements

were made outside the presence of the jury. The record does not support this

allegation of ineffective assistance.

{¶ 74} The second alleged deficiency concerns the testimony of

Kirkland’s mitigation expert witness, Dr. Scott Bresler, a forensic psychiatrist,

who testified that Kirkland is a psychopath. Dr. Bresler testified that psychopaths

have reduced serotonin levels and that a low serotonin level is associated with

impulsive aggression. On cross-examination, Dr. Bresler conceded that no brain

14

January Term, 2014

scans or chemical tests were performed on Kirkland. Kirkland now alleges that

his counsel was ineffective for failing to arrange blood tests for possible lack of

serotonin.

{¶ 75} To prove an allegation of ineffective assistance of counsel, a

defendant must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, he must establish that counsel’s

performance fell below an objective standard of reasonable representation. Id. at

687. And second, he must show that the deficient performance caused him

prejudice. Id. A defendant can establish prejudice by showing a reasonable

probability that but for counsel’s errors, the result of the trial would have been

different. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph

three of the syllabus.

{¶ 76} Kirkland cannot prevail on this claim at this stage of the

proceedings. To prove prejudice, he would need to show that the results of a

serotonin test would support his case. In other words, he would need to supply

proof outside the record, which this court cannot consider on direct appeal. State

v. Madrigal, 87 Ohio St.3d 378, 390-391, 721 N.E.2d 52 (2000).

{¶ 77} We overrule Kirkland’s second proposition of law.

3. Prosecutorial Misconduct (Proposition of Law III)

{¶ 78} In his third proposition of law, Kirkland alleges prosecutorial

misconduct in the course of penalty-phase closing arguments.

{¶ 79} Allegations of prosecutorial misconduct implicate due-process

concerns, and the touchstone of the analysis is the “ ‘fairness of the trial, not the

culpability of the prosecutor.’ ” State v. Newton, 108 Ohio St.3d 13, 2006-Ohio-

81, 840 N.E.2d 593, at ¶ 92, quoting Smith v. Phillips, 455 U.S. 209, 219, 102

S.Ct. 940, 71 L.Ed.2d 78 (1982). The test for prejudice in closing arguments,

including penalty-phase closing arguments, is “ ‘ “whether the remarks were

improper, and, if so, whether they prejudicially affected substantial rights of the

15

SUPREME COURT OF OHIO

defendant.” ’ ” State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d

439, ¶ 83, quoting State v. Hessler, 90 Ohio St.3d 108, 125, 734 N.E.2d 1237

(2000), quoting State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984).

{¶ 80} By the time the jury heard closing arguments in the penalty phase,

Kirkland had already pled guilty to the murders of Mary Jo Newton and Kimya

Rolison. In urging the jury to return a sentence of death for the other two

murders, the prosecutor told the jury: “Finally, for the murder of Mary Jo and

Kimya, which he admitted to before opening statements, he’s going to jail for the

rest of his life now. He’s gone. So I guess Casonya and Esme are just freebies

for him—” (Emphasis added.) The trial court did not sustain the defense’s

objection. Thereafter, the prosecutor stated, “Again, and I’ll be very clear about

this, [life in prison] should not be something you even consider, okay. He’s going

to jail on those other two for the rest of his life.”

{¶ 81} According to Kirkland, the message to the jury was plain: if you do

not return a recommendation of death, Kirkland will receive no punishment for

two murders. Kirkland challenges these statements as improper.

{¶ 82} We agree. “[I]t is improper for a prosecutor to argue that a

sentence less than death is meaningless and would not hold the defendant

accountable for a victim’s death when he is already serving a life sentence.”

Hanson v. State, 2009 OK CR 13, ¶ 24, 206 P.3d 1020. In capital-sentencing

deliberations, the jury must weigh the aggravating and mitigating circumstances

of the offense. But by suggesting that Kirkland would receive no punishment for

killing Esme and Casonya unless the jury returned a verdict of death for their

murders, the state asked the jury to set aside its proper assignment and return a

recommendation of death based on improper considerations.

{¶ 83} We also find that the prosecutor’s closing argument prejudicially

affected Kirkland’s substantial rights.

16

January Term, 2014

{¶ 84} For a prosecutor’s closing argument to be prejudicial, the remarks

must be “so inflammatory as to render the jury’s decision a product solely of

passion and prejudice.” State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906

(1986). To determine whether the remarks were prejudicial, the court must

review the closing argument in its entirety. State v. Slagle, 65 Ohio St.3d 597,

607, 605 N.E.2d 916 (1992); State v. Moritz, 63 Ohio St.2d 150, 157, 407 N.E.2d

1268 (1980). Thus, the court must consider all of the prosecutor’s remarks,

irrespective of whether the defense preserved an objection. State v. Keenan, 66

Ohio St.3d 402, 410, 613 N.E.2d 203 (1993) (“even though the defense waived

objection to many remarks, those remarks still form part of the context in which

we evaluate the effect on the jury of errors that were not waived”).

{¶ 85} The objectionable statements in the state’s closing argument fall

into a number of categories.

References to the subjective experiences of the victims

{¶ 86} It is error for a prosecutor to invite the jury to consider what the

victim experienced and felt in her last moments of life, because it improperly

“ ‘invites the jury to speculate on facts not in evidence.’ ” State v. Lynch, 98 Ohio

St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 122, quoting State v.

Wogenstahl, 75 Ohio St.3d 344, 357, 662 N.E.2d 311 (1996); State v. Combs, 62

Ohio St.3d 278, 283, 581 N.E.2d 1071 (1991). The state’s closing argument

employed this method on a number of occasions:

What was it like for Casonya that night? It was dark, she’s alone,

and the only person escorting her is him. * * * What was it like for

her then?

***

[A]fter he confronts Esme on the back of that building, he talks

about how she’s cringing and he’s calling her names. You’re

17

SUPREME COURT OF OHIO

nothing but a lying bitch, this little girl, 4-foot-11. What did that

evoke in her?

And she’s petrified.

***

What’s this little girl going through naked in the woods

except for her shoes and this little top? * * *

We know at some point she’s actually vomiting on herself

she’s so terrified. * * * * * * [Y]ou saw all the scrapes and cuts

and raw skin on her back and on her behind. She probably never

even felt that because of the horrible pain between her legs at that

point.

Facts Outside the Record

{¶ 87} A closing argument that goes beyond the record in order to arouse

an emotional response in the jury may be prejudicial. State v. Loza, 71 Ohio St.3d

61, 78-79, 641 N.E.2d 1082 (1994). Although the prosecution is entitled to a

degree of latitude in closing argument, it is improper for prosecutors to incite the

jurors’ emotions through insinuations and assertions that are not supported by the

evidence and that are therefore “calculated to mislead the jury.” Smith, 14 Ohio

St.3d at 14, 470 N.E.2d 883.

{¶ 88} After graphically describing the strangulation of Esme, the

prosecutor concluded by saying “she’s not fighting anymore. She’s not

struggling. She just pounds her little hands on the ground and digs into the dirt.

At that point she’s no longer begging that man to let her live. She’s begging that

man to let her die.” (Emphasis added.) Nothing in the record supports the claim

that Esme begged Kirkland to let her die.

{¶ 89} To generate jury sympathy for Casonya, the prosecutor said,

“[Y]ou talk about tough childhoods. How about her? Her dad is in prison when

18

January Term, 2014

she’s born. She hardly ever sees him. Her mom chose drugs over her little girl,

and as a result she’s brought up with some other brothers and sister and cousins

by her grandma.” None of this information is in the record. Casonya’s

grandmother, Patricia C., testified that she had custody of Casonya and two of her

brothers “because the mother ran into problems and the children were placed with

me.” Patricia did not identify the nature of the problems, much less testify that

Casonya’s mother chose drugs over her daughter. Nor is there any testimony

about the father being in jail or Casonya living with sisters or cousins.

The “nature and circumstances” of the

murder as aggravating circumstances

{¶ 90} While a prosecutor in the penalty phase of a capital trial may refer

in closing argument to the nature and circumstances of the offense, that

prosecutor may not “ ‘make any comment before a jury that the nature and

circumstances of the offense are “aggravating circumstances.” ’ ” State v. Were,

118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 209, quoting

Wogenstahl, 75 Ohio St.3d 344, 662 N.E.2d 311, paragraph two of the syllabus;

see also State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶

200.

{¶ 91} The state can describe the crime to prove the existence of the

statutory aggravating factors. Hale at ¶ 199-200 (a prosecutor described the

circumstances of the murder to prove that the defendant acted with prior

calculation and design, which is a statutory aggravating circumstance); Newton,

108 Ohio St.3d 13, 2006-Ohio-81, 840 N.E.2d 593, at ¶ 54 (the facts of the case

were relevant to prove that the murder occurred while the defendant was in a

prison); State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173,

at ¶ 93 (the state could properly have victims testify in the penalty phase about

their experience to establish the course-of-conduct aggravating circumstance).

19

SUPREME COURT OF OHIO

{¶ 92} The state may also argue the nature and circumstances of the

offense to suggest that there is nothing mitigating about the circumstances of the

offense. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 324;

State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 79; State

v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 178-179. And,

if the defense argues that the nature or circumstances of the crime is actually

mitigating, the state may argue the nature and circumstances of the offense to

rebut the defense’s assertion. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-

5048, 873 N.E.2d 1263, at ¶ 184; State v. Smith, 87 Ohio St.3d 424, 443-444, 721

N.E.2d 93 (2000).

{¶ 93} And finally, the state may argue the nature and circumstances of

the aggravating offense to explain why the aggravating circumstances outweigh

the mitigation evidence. State v. Sheppard, 84 Ohio St.3d 230, 238, 703 N.E.2d

286 (1998).

{¶ 94} But the state may not tell the decisionmaker that the nature and

circumstances of the murder itself are the aggravating circumstances. State v.

Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 165-166. Nor

can the prosecutor tell the jury to weigh the circumstances of the murder as

aggravating circumstances against the mitigation evidence. State v. Skatzes, 104

Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 189; State v. Clemons, 82

Ohio St.3d 438, 446-447, 696 N.E.2d 1009 (1998).

{¶ 95} In this case, the prosecution repeatedly urged the jury to weigh the

specific details of the murder against the mitigation:

[Kirkland] wants you to say, hey, I’m a psychopath, that outweighs

what I did. It does just the opposite.

And the last thing he tells us as he’s choking the life out of

that little girl and squeezing the last breaths out of her little body,

20

January Term, 2014

he says she’s not fighting anymore. She’s not struggling. She just

pounds her little hands on the ground and digs into the dirt. At that

point she’s no longer begging that man to let her live. She’s

begging that man to let her die. And thankfully it ended for her.

You’ll never see a case with aggravating circumstances

that weigh more or mitigation that weighs any less.

****

* * * He takes a rag out of the back of his pocket. He

twists it up and he slowly and methodically strangles Esme [K.] to

death. She never fought. She dug her fingers into the dirt as she

vomited and slowly died.

Now, let’s weigh that against the mitigation that he is a

psychopath and a self-proclaimed monster. Again, ladies and

gentlemen, strike four, not even a close call.

(Emphasis added.) With these remarks, the state led the jurors to believe that they

had to weigh the circumstances of the murder itself against the mitigation.

{¶ 96} In sum, we find that the state’s closing remarks in the penalty phase

were improper and substantially prejudicial. Accordingly, we conclude that

Kirkland’s third proposition of law is well taken.

{¶ 97} Nevertheless, we decline to remand the case for a new sentencing

hearing. Pursuant to R.C. 2929.05(A), this court must conduct its own

independent evaluation of the capital sentence, and that evaluation can cure errors

in penalty-phase proceedings. See, e.g., Hale, 119 Ohio St.3d 118, 2008-Ohio-

3426, 892 N.E.2d 864, at ¶ 131-132 (improper questions of a penalty-phase

witness were cured by the independent sentence review); State v. Sanders, 92

Ohio St.3d 245, 267, 750 N.E.2d 90 (2001) (the independent review can cure a

trial court’s erroneous decision to exclude a witness, whose testimony had been

21

SUPREME COURT OF OHIO

proffered, from the mitigation hearing). In State v. Mills, 62 Ohio St.3d 357, 373-

374, 582 N.E.2d 972 (1992), for example, this court held that a prosecutor’s

sentencing argument was “clearly improper” but that the court’s independent

sentence evaluation would cure any prejudice the argument had caused.

{¶ 98} Accordingly, the issues raised in the third proposition of law will

be cured by this court’s review of the sentence, which will not consider the state’s

improper arguments.

4. “Automatic death” jurors (Proposition of Law IV)

{¶ 99} In his fourth proposition of law, Kirkland claims ineffective

assistance of counsel based on his trial counsel’s alleged failure to weed out those

jurors who would automatically vote for death without regard to mitigating

factors. Kirkland asserts that his counsel performed only a “garden variety”

felony-jury selection, rather than a specialized, specific, and focused voir dire.

{¶ 100} This proposition of law does not satisfy either prong of the

Strickland test. Kirkland does not identify a question that his attorneys should

have asked but did not, a question that they did ask but should not have, or a

specific objection that they failed to raise. Therefore, we have no basis on which

to conclude that his counsel’s performance was deficient.

{¶ 101} Likewise, we have no basis on which to conclude that the manner

in which defense counsel conducted voir dire resulted in prejudice. In fact,

defense counsel did identify at least one “automatic death” member of the panel

and successfully had that person removed for cause.

{¶ 102} We overrule Kirkland’s fourth proposition of law.

5. The weight of mitigation evidence (Proposition of Law V)

{¶ 103} In his fifth proposition of law, Kirkland challenges his sentence of

death, given the alleged weight of mitigation. This presents an issue best

addressed concurrently with the court’s independent sentence evaluation, and we

will discuss it in that context. See Jones, 135 Ohio St.3d 10, 2012-Ohio-5677,

22

January Term, 2014

984 N.E.2d 948, at ¶ 211 (consideration of a challenge to a trial court’s weighing

of aggravating and mitigating factors deferred until the independent sentence

evaluation).

6. Constitutional challenges to the death penalty (Proposition of Law VI)

{¶ 104} Kirkland’s sixth proposition of law consists of nine subparts

(some with multiple subheadings) challenging the constitutionality of Ohio’s

death penalty. The court has addressed most of these issues in previous cases.

Subpart 1. “The death penalty is arbitrary and unequal punishment”

{¶ 105} We have rejected each argument presented in Subpart 1 at least

once:

{¶ 106} * State v. Jenkins, 15 Ohio St.3d 164, 169, 473 N.E.2d 264

(1984), citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859

(1976) (rejecting the claim that Ohio’s death-penalty scheme is unconstitutional

because it gives prosecutors unfettered discretion to indict);

{¶ 107} * State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952

N.E.2d 1121, ¶ 137, and State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805

N.E.2d 1064, ¶ 103 (both rejecting the claim that Ohio’s death penalty is applied

in a racially discriminatory manner);

{¶ 108} * State v. Buell, 22 Ohio St.3d 124, 136, 489 N.E.2d 795 (1986)

(rejecting an equal-protection challenge based on the geographic disparity of

death sentences); and

{¶ 109} * Mink at ¶ 103; Jenkins, 15 Ohio St.3d at 168, 473 N.E.2d 264

(rejecting the claim that the death penalty is unconstitutional because it is neither

the least restrictive punishment nor an effective deterrent).

Subpart 2. Ohio uses “unreliable sentencing procedures”

{¶ 110} In State v. Glenn, 28 Ohio St.3d 451, 453, 504 N.E.2d 701 (1986),

this court rejected the argument that allowing juries to weigh aggravating and

23

SUPREME COURT OF OHIO

mitigating factors leads to arbitrary and capricious imposition of the death

penalty.

Subpart 3(A). Use of the same jury at trial and sentencing burdens

a defendant’s rights to counsel and an impartial jury

{¶ 111} This court rejected this argument in State v. Mapes, 19 Ohio St.3d

108, 116-117, 484 N.E.2d 140 (1985).

Subpart 3(B). Ohio’s death-penalty statutes unconstitutionally

fail to provide individualized sentencing because they

require proof of aggravating circumstances during the guilt phase

{¶ 112} This court rejected this argument in State v. Ferguson, 108 Ohio

St.3d 451, 2006-Ohio-1502, 844 N.E.2d 806, ¶ 88.

Subpart 3(C). Ohio imposes an impermissible risk of death on capital

defendants who choose their right to trial because a trial judge,

in the interest of justice, may dismiss the death-penalty specification

{¶ 113} This court rejected this argument in State v. Van Hook, 39 Ohio

St.3d 256, 264, 530 N.E.2d 883 (1988).

Subpart 3(D). R.C. 2929.04(B)(7) unconstitutionally allows

a sentencer to convert mitigation evidence into an aggravating factor

{¶ 114} This court rejected this argument in State v. Scott, 101 Ohio St.3d

31, 2004-Ohio-10, 800 N.E.2d 1133, ¶ 52-53.

Subpart 4. R.C. 2929.04(A)(7) is unconstitutional because, by setting forth as

aggravating factors the same felony-murder specifications that distinguish

aggravated murder from murder, R.C. 2929.04(A)(7) does nothing to narrow the

class of persons eligible for the death penalty

{¶ 115} This court rejected this argument in State v. Henderson, 39 Ohio

St.3d 24, 28-29, 528 N.E.2d 1237 (1988).

24

January Term, 2014

Subpart 5. R.C. 2929.03(D)(1) and 2929.04 are unconstitutionally vague

{¶ 116} This court rejected a vagueness challenge to R.C. 2929.03(D)(1)

in State v. McNeill, 83 Ohio St.3d 438, 453, 700 N.E.2d 596 (1998). We upheld

R.C. 2929.04 in State v. Chinn, 85 Ohio St.3d 548, 567-568, 709 N.E.2d 1166

(1999).

Subpart 6. The court’s proportionality review is unconstitutional

{¶ 117} This court summarily rejected this argument in Jones, 135 Ohio

St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, at ¶ 207, and Scott, 101 Ohio St.3d

31, 2004-Ohio-10, 800 N.E.2d 1133, at ¶ 51.

Subpart 7. Lethal injection is cruel and unusual punishment

{¶ 118} Kirkland argues that lethal injection violates the Eighth

Amendment to the United States Constitution. However, the United States

Supreme Court has affirmed the constitutionality of lethal injection as a method of

execution. Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).

This court has reached the same conclusion. State v. Adams, 103 Ohio St.3d 508,

2004-Ohio-5845, 817 N.E.2d 29, ¶ 131; State v. Carter, 89 Ohio St.3d 593, 608,

734 N.E.2d 345 (2000).

Subpart 8. The death penalty violates Ohio’s obligations under

international charters, treaties, and conventions

{¶ 119} This court has addressed most, but not all, of these claims before.

In State v. Phillips, 74 Ohio St.3d 72, 103-104, 656 N.E.2d 643 (1995), we held

that capital punishment does not violate obligations owed under the American

Declaration of the Rights and Duties of Man. We reaffirmed this holding as to the

Declaration in State v. Issa, 93 Ohio St.3d 49, 69, 752 N.E.2d 904 (2001). And in

Short, we rejected claims that the death penalty is barred by the International

Covenant on Civil and Political Rights, the United Nations Covenant against

Torture, and the international-law norm. 129 Ohio St.3d 360, 2011-Ohio-3641,

952 N.E.2d 1121, at ¶ 138, citing Buell v. Mitchell, 274 F.3d 337, 370-372 (6th

25

SUPREME COURT OF OHIO

Cir.2001); People v. Perry, 38 Cal.4th 302, 322, 42 Cal.Rptr.3d 30, 132 P.3d 235

(2006); Sorto v. State, 173 S.W.3d 469, 490 (Tex.Crim.App.2005).

{¶ 120} However, we have not previously addressed the contention that

Ohio’s death-penalty scheme violates the International Convention on the

Elimination of All Forms of Racial Discrimination or the Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment. But

as noted above, we have repeatedly held that Ohio’s death-penalty procedures are

not unconstitutional or imposed in a racially discriminatory manner. See, e.g.,

Short at ¶ 137; Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, at

¶ 103. And Kirkland “has not advanced any argument that these issues, as

defined under international law, differ in any significant way from the

constitutional arguments * * * already addressed, e.g., that equal protection and

arbitrariness would be evaluated differently under international law than they are

under the United States or Ohio Constitutions.” State v. Skatzes, 2d Dist.

Montgomery No. 15848, 2003-Ohio-516, ¶ 407; see also State v. Tenace, 6th

Dist. Lucas No. L-00-1002, 2003-Ohio-3458, ¶ 175-185. In short, these claims

fail for the same reasons as prior death-penalty challenges based on international

law.

{¶ 121} Finally, in subpart 9, Kirkland presents a general challenge to the

constitutionality of Ohio’s death penalty. Because this claim is wholly

conclusory, we summarily reject this argument. Carter, 89 Ohio St.3d at 607, 734

N.E.2d 345; Jenkins, 15 Ohio St.3d at 179, 473 N.E.2d 264.

{¶ 122} For these reasons, we reject Kirkland’s sixth proposition of law in

its entirety.

7. Ohio’s Jury Instructions (Proposition of Law VII)

{¶ 123} Consistent with the definition set forth in R.C. 2901.05(E), the

trial court instructed the jury that

26

January Term, 2014

[r]easonable doubt is present when the jurors, after they have

carefully considered and compared all the evidence, cannot say

they are firmly convinced of the truth of the charge. It is a doubt

based on reason and common sense. Reasonable doubt is not mere

possible doubt because everything relating to human affairs or

depending on moral evidence is open to some possible or

imaginary doubt.

Proof beyond a reasonable doubt is proof of such character

that an ordinary person would be willing to rely and act upon it in

the most important of his or her own affairs.

Kirkland contends in his seventh proposition that the phrases “willing to act” and

“firmly convinced” allowed the jury to convict based on a lower standard of

proof, namely clear and convincing evidence, in violation of due process. And he

alleges that the use of the phrase “moral evidence” allowed the jury to convict

based on subjective moral decisions, rather than demanding proof beyond a

reasonable doubt.

{¶ 124} We have repeatedly upheld the constitutionality of Ohio’s

reasonable-doubt instruction. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873

N.E.2d 1263, ¶ 242; State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819

N.E.2d 1047, ¶ 145. The phrases “willing to act” and “firmly convinced”

adequately convey the difficult concept of reasonable doubt, and they do not

establish a lower, clear-and-convincing standard. State v. Nabozny, 54 Ohio St.2d

195, 201-203, 375 N.E.2d 784 (1978), citing Holland v. United States, 348 U.S.

121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

{¶ 125} This court has not specifically discussed the constitutionality of

the phrase “moral evidence.” Compare State v. Frazier, 8th Dist. Cuyahoga No.

62557, 1994 WL 50703 (Feb. 17, 1994), with State v. Frazier, 73 Ohio St.3d 323,

27

SUPREME COURT OF OHIO

330, 652 N.E.2d 1000 (1995). However, the United States Supreme Court has

considered the meaning of that phrase and concluded that the phrase “moral

evidence” means the same thing as “beyond a reasonable doubt. Victor v.

Nebraska, 511 U.S. 1, 10-12, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).

{¶ 126} Based upon Victor, we reject Kirkland’s seventh proposition of

law.

8. Imposition of Costs on Indigent Defendants (Proposition of Law VIII)

{¶ 127} In State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817

N.E.2d 393, we held that the imposition of court costs upon an indigent defendant

does not violate the Equal Protection Clause. In a subsequent decision, this court

held that “although costs in criminal cases are assessed at sentencing and are

included in the sentencing entry, costs are not punishment.” State v. Threatt, 108

Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15. If the imposition of costs

does not constitute “punishment,” it cannot implicate constitutional prohibitions

on cruel and unusual punishment.

{¶ 128} Kirkland asks the court to reconsider its rulings in White and

Threatt but provides no compelling reason, such as an intervening change in

United States Supreme Court precedent, to do so.

{¶ 129} Alternatively, Kirkland suggests that the court should stay the

collection of costs. But the logic of White suggests no reason why felons should

be exempt from payment of costs while they remain incarcerated.

{¶ 130} Accordingly, we reject Kirkland’s eighth proposition of law.

9. Insufficient Evidence of Attempted Rape and/or Aggravated Robbery

(Proposition of Law IX)

{¶ 131} Kirkland asserts that the state presented insufficient evidence to

convict him of attempted rape or robbery in connection with the murder of

Casonya C. At the close of the evidence, the defense moved for acquittal on these

28

January Term, 2014

charges. The trial court denied the motion and allowed all the charges to proceed

to the jury.

{¶ 132} When reviewing a record for sufficiency, we must consider

whether any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 77; State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. The court must view the

evidence in the light most favorable to the prosecution and defer to the trier of

fact on questions of credibility and the weight assigned to the evidence. State v.

Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 146.

Aggravated Robbery

{¶ 133} Count Four of the indictment charged Kirkland with aggravated

murder and included an aggravated-robbery specification. “Aggravated robbery”

means a theft offense in which the offender inflicts or attempts to inflict serious

physical harm on another. R.C. 2911.01(A)(3).

{¶ 134} The state provided sufficient evidence to support the charge based

on the fact that Casonya’s backpack and cell phone were never located. Tania H.

testified that Casonya always carried her book bag with her. Patricia C. testified

that the book bag was missing. And Kirkland and Ra’Shaud B. agreed that

Casonya was talking on her cell phone at the time she encountered Kirkland.

These facts are sufficient evidence to sustain a conviction for aggravated robbery.

See State v. Davis, 76 Ohio St.3d 107, 115-116, 666 N.E.2d 1099 (1996).2

Attempted Rape

{¶ 135} The relevant definition of rape is “engag[ing] in sexual conduct

with another when the offender purposely compels the other person to submit by

2

The state argues that “[p]hone records demonstrated the continued use of the phone after

Casonya’s death,” thus suggesting that Kirkland had possession of the cell phone. However,

police testified at trial only that the phone continued to give off a locational signal for about a

week, but that there were no calls or texts made from the phone after Casonya disappeared.

29

SUPREME COURT OF OHIO

force or threat of force.” R.C. 2907.02(A)(2). A criminal attempt occurs when a

person, “purposely or knowingly, and when purpose or knowledge is sufficient

culpability for the commission of an offense, * * * engage[s] in conduct that, if

successful, would constitute or result in the offense.” R.C. 2923.02(A). We have

likened Ohio’s definition of attempt to that in the Model Penal Code, which

requires that the offender not only intended to commit the completed offense, but

also engaged in conduct constituting a substantial step toward completing the

offense. State v. Woods, 48 Ohio St.2d 127, 132, 357 N.E.2d 1059 (1976),

overruled on other grounds, State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d 1140

(1977). “To constitute a substantial step, the conduct must be strongly

corroborative of the actor’s criminal purpose.” Woods at paragraph one of the

syllabus.

{¶ 136} Kirkland confessed to killing Casonya after she rejected his offer

of money “to talk.” Any rational juror could have equated this offer with an offer

of sex, and even Kirkland concedes “soliciting Casonya to have sex for hire” in

his brief. Kirkland’s description of the conversation with Casonya was replete

with sexual innuendo. Kirkland told police that when he asked Casonya if she

was old enough to smoke marijuana, she replied that “she was old enough to be

doing a lot of things.” According to Kirkland, he began arguing with Casonya

about “girls playing games” and the “things that some women wouldn’t do,” and

Casonya threw the money back at him.

{¶ 137} That Kirkland attacked Casonya only after she refused his sexual

advances created a strong inference that he acted with a sexual purpose—that

being, to forcibly compel from her what she had refused to give him. The

physical evidence corroborated this purpose. Casonya’s body was found in the

woods, with nothing more than one sock, indicating that Kirkland transported her

to a secluded area and forcibly undressed her. See State v. Scudder, 71 Ohio St.3d

263, 274-275, 643 N.E.2d 524 (1994) (finding that the location of the victim’s

30

January Term, 2014

pants around her ankles and underwear at midthigh supported the conclusion that

she was forcibly undressed); State v. Biros, 78 Ohio St.3d 426, 448, 678 N.E.2d

891 (1997) (the fact that the victim’s sweater, pants, and undergarments were

never found revealed the defendant’s “concealment or destruction” of evidence

and “consciousness of guilt” for purposes of proving attempted rape). Moreover,

Kirkland burned Casonya’s entire body so severely that her “pelvic area had

almost been completely charred by fire,” and so similarly to that of 13-year-old

Esme K., whom he did confess to raping. This court has previously found that the

“evisceration” of a victim’s sexual organs can create a “reasonable inference” of

an “attempt[] to conceal evidence of rape or attempted rape.” Id. While there

was no testimony about where the fire originated on Casonya’s body, there was

evidence that the burning of Esme’s body originated in her pubic area. Kirkland’s

burning of Casonya revealed the consciousness of guilt.

{¶ 138} Viewing the evidence, including all permissible inferences, in

favor of the state, we find that any rational trier of fact could conclude that

Kirkland formed a purpose to forcibly rape Casonya and engaged in a course of

conduct—i.e., grabbing, choking, transporting her to a secluded area, and

undressing her—qualifying as a substantial step toward the completion of that

crime.

{¶ 139} Accordingly, we overrule Kirkland’s ninth proposition of law.

10. Cumulative Error (Proposition of Law X)

{¶ 140} In his tenth proposition of law, Kirkland argues that the court

should reverse his conviction based on the doctrine of cumulative error. Under

that doctrine, this court will reverse a conviction when the cumulative effect of

errors deprives a defendant of a fair trial even though each of the instances of

trial-court error does not individually constitute cause for reversal. State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 223; State v.

DeMarco, 31 Ohio St.3d 191, 196-197, 509 N.E.2d 1256 (1987). Cumulative

31

SUPREME COURT OF OHIO

error does not apply in cases such as this one where any error in the trial court is

curable through the court’s independent review. State v. Brown, 100 Ohio St.3d

51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 48.

Independent sentence evaluation

{¶ 141} Having considered Kirkland’s propositions of law, this court must

now independently review Kirkland’s death sentence. First, the court must

review and independently weigh all facts and other evidence disclosed in the

record, “and consider the offense and the offender to determine whether the

aggravating circumstances the offender was found guilty of committing outweigh

the mitigating factors in the case, and whether the sentence of death is

appropriate.” R.C. 2929.05(A).

Aggravating circumstances

{¶ 142} The evidence at trial established beyond a reasonable doubt that

Kirkland murdered Esme K., with the aggravating circumstance of murdering her

while committing or attempting rape or aggravated robbery. The evidence also

established beyond a reasonable doubt that he murdered Casonya C. with the

aggravating circumstance of murdering her while committing or attempting

aggravated robbery or rape.

{¶ 143} The jury also found an additional aggravating circumstance in

connection with each murder, namely that the murders were part of a course of

conduct.

Mitigating evidence

{¶ 144} Against these aggravating circumstances, this court must weigh

the evidence in mitigation submitted by Kirkland.

{¶ 145} Kirkland called a single witness to testify in mitigation. Dr. Scott

Bresler testified that he had performed an evaluation of Anthony Kirkland. He

diagnosed Kirkland as having “an adjustment disorder with mixed emotional

issues and conduct” as well as an antisocial personality disorder. Kirkland’s

32

January Term, 2014

condition causes him to have trouble thinking as well as difficulty in emotions,

interpersonal functioning, and impulse control. In lay terms, he is a psychopath.

{¶ 146} Dr. Bresler testified that the condition manifests in unlawful

behaviors, a pattern of deceitfulness, impulsivity, irritability, extreme

aggressiveness, reckless disregard for the safety of himself and others, “a

consistent kind of irresponsibility over a life force,” and lack of remorse. The

problem manifests at an early age. Individuals appear to be genetically

predisposed.

{¶ 147} At the same time, the circumstances of his upbringing played a

role. Kirkland’s biological father was alcohol-dependent and extremely violent

toward Kirkland and his mother. Until his father left (when Kirkland was about

nine or ten), Kirkland was often beaten by his father, often watched his father beat

his mother, and was forced to watch his father rape his mother.

{¶ 148} By his early teens, Kirkland had engaged in extensive substance

abuse. He often fought with other kids. He suffered from depression, for which

he did not seek treatment until his adult years.

{¶ 149} Meanwhile, his mother remarried and got help for herself and

some of the children, but not Kirkland, who was the oldest. As a result, his

attachment to his family, which the forensic psychiatrist testified allows a person

to adapt to the world and to live responsibly, was damaged. Throughout his

adulthood, he formed no stable relationships, maintained no steady income, drank

and took drugs, and, after his release from prison, became homeless. According

to Dr. Bresler, Kirkland “cannot live responsibly in society ever.”

{¶ 150} Dr. Bresler also testified that Kirkland was able to justify his

crimes, with one exception: he cannot rationalize his killing of Esme K., and “so

oftentimes when he talks about her he’ll cry.”

33

SUPREME COURT OF OHIO

{¶ 151} Finally, Dr. Bresler stated that Kirkland would have a difficult

time adjusting to life in prison, but prison can handle him, as shown by the fact

that he had already spent 17 years in prison.

{¶ 152} This statement from Dr. Bresler was the first time the jury learned

that Kirkland spent an extended period of time in jail. Kirkland went to prison in

1987 after murdering Leola Douglas and setting her on fire. And while he was

incarcerated, he threatened various prison officials and staff.

{¶ 153} Finally, Dr. Bresler testified on cross-examination that Kirkland’s

sisters were sexually abused by their father, and also by Kirkland himself when he

was 13.

{¶ 154} Kirkland made a brief unsworn statement to the jury. He accepted

responsibility for the deaths of the four women. He said he “get[s] so angry and

cannot stop [him]self,” though he acknowledged that was no excuse. He

expressed a desire to be locked away forever. “I cannot believe how horrible I

am. I will never forgive—forget or rest or be at peace, nor should I.” He said he

confessed to the police because he wanted it to stop. And in conclusion, he told

the jury: “I do not blame you if you kill me. I don’t deserve to live, but please

spare my life.”

Sentence evaluation

{¶ 155} R.C. 2929.04(B)(7) provides that the court may consider as

mitigation, in addition to other factors listed in the statute, “any other factors that

are relevant to the issue of whether the offender should be sentenced to death.”

Kirkland has pointed to several facts that may have mitigating weight under

division (B)(7):

{¶ 156} * His personality disorder: This court has traditionally accorded

personality disorders some, but little, weight. State v. Cunningham, 105 Ohio

St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 138; Hoffner, 102 Ohio St.3d 358,

2004-Ohio-3430, 811 N.E.2d 48, at ¶ 119.

34

January Term, 2014

{¶ 157} * His abusive childhood: The court accords some, but not

decisive, weight to evidence that the defendant suffered an abusive childhood.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 276; Hale,

119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 265.

{¶ 158} * His history of alcohol and drug abuse: A history of drug and

alcohol abuse is entitled to weight in mitigation. Scott, 101 Ohio St.3d 31, 2004-

Ohio-10, 800 N.E.2d 1133, ¶ 108.

{¶ 159} * His confession and cooperation with police: A defendant’s

confession and cooperation with law enforcement are mitigating factors. State v.

Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 191. The

mitigation value of Kirkland’s confessions would usually receive little weight,

given that he initially lied to police and tried to blame Esme K.’s murder on the

fictitious Pedro. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d

104, ¶ 247. However, in the peculiar circumstances here, we believe Kirkland’s

confession is entitled to serious consideration because the information he

voluntarily provided enabled the police to identify the body of Kimya Rolison and

thus her family was able to learn what had happened to her.

{¶ 160} * Remorse: Apologies and expressions of remorse in an unsworn

statement are given some mitigating weight. State v. Trimble, 122 Ohio St.3d

297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 327. Although the transcript cannot

capture his tone or affect, there is no question that Kirkland expressed a good deal

of self-loathing in his unsworn statement.

{¶ 161} The sincerity of his remorse was a hotly contested issue. Dr.

Bresler testified that Kirkland cried during their sessions when he talked about

killing Esme K. Detective Hilbert, on the other hand, had the impression that

when Kirkland cried during his police interviews, it was more out of self-regard

than concern for the victims. Kirkland’s allocution consisted of six simple words:

“Offer an apology to the family.” The statement is revealing: he apologized to the

35

SUPREME COURT OF OHIO

family, singular, probably the family of Esme K. Whatever credit he is due for his

remorse over killing Esme is offset by his apparent lack of remorse for the pain

and suffering he caused his other victims and their families. His expressions of

remorse are too infrequent, too ambiguous, and ultimately too self-serving to

justify according them significant weight.

{¶ 162} * Mercy: The trial court gave some mitigating value to Kirkland’s

request for mercy in his unsworn statement. But mercy is not a mitigating factor.

State v. O’Neal, 87 Ohio St.3d 402, 416, 721 N.E.2d 73 (2000).

{¶ 163} In State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847

N.E.2d 386, ¶ 97-106, this court vacated a death sentence on the grounds that the

aggravating circumstances of the offense did not outweigh the mitigating factors.

The court afforded great weight to the tragic circumstances of Tenace’s

childhood. Both his parents were criminals and substance abusers, and they were

neglectful and abusive to the children. Id. at ¶ 103. Tenace was sexually abused

himself, including being sold by his mother for sexual services, and forced to

watch the sexual abuse of his sister. Id. at ¶ 102. He was exposed to substance

abuse by his mother and her boyfriends, who encouraged him to commit crimes.

Id.

{¶ 164} In contrast, we declined to vacate the death sentence based on

childhood circumstances in State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836,

873 N.E.2d 828, ¶ 206. Mundt’s mother had eight children by four different

fathers. Id. at ¶ 192. A children’s protective agency removed Mundt from his

mother’s custody for one month when he was an infant. Id. And when he was

approximately five years old, his mother voluntarily surrendered custody of her

children because she was homeless. Id. However, this court concluded that

Mundt’s mitigation evidence “present[ed] nothing comparable to Tenace.” Id. at

¶ 206.

36

January Term, 2014

{¶ 165} Kirkland’s case falls somewhere between the extremes

represented by Tenace and Mundt. The testimony of pervasive physical and

sexual abuse in Kirkland’s home exceeds anything alleged by Mundt. At the

same time, it does not equate to the facts in Tenace. Kirkland was abused by one

parent, his father, George Palmore. So unlike Tenace, Kirkland had one

nonabusive parent in his life. Moreover, his father left the home when Kirkland

was nine or ten years old, and there is no evidence that any abuse continued

during his teen years when he lived with his mother. The fact that Kirkland is a

psychopath from a dysfunctional home is tragic, but not sufficient to outweigh the

aggravating circumstances of his crimes, even when coupled with the other

mitigating factors identified above.

{¶ 166} We therefore affirm the sentence and, in doing so, reject

Kirkland’s contention that the aggravating circumstances did not outweigh the

mitigating evidence.

Proportionality review

{¶ 167} The second part of the court’s independent review requires us to

decide whether a sentence of death satisfies the requirement of proportionality.

R.C. 2929.05(A) requires this court to “consider whether the sentence is excessive

or disproportionate to the penalty imposed in similar cases.”

{¶ 168} In Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, at

¶ 265, this court affirmed the defendant’s death sentence for aggravated murder in

the course of committing a rape. The court has also affirmed death sentences in

cases combining a course-of-conduct specification with a robbery-murder

specification. See Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104,

at ¶ 253, and cases cited therein. Therefore, we find that the sentence is

appropriate.

Judgment affirmed.

O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., concur.

37

SUPREME COURT OF OHIO

PFEIFER and LANZINGER, JJ., concur in part and dissent in part.

O’NEILL, J., dissents.

____________________

PFEIFER, J., concurring in part and dissenting in part.

{¶ 169} Ohio continues to employ the death penalty as part of our

criminal-justice punishment scheme, and Anthony Kirkland’s predatory, brutal,

and heinous crimes clearly qualify him for that ultimate penalty. The state had a

seemingly airtight case against Kirkland, but overzealousness in both the guilt and

punishment phases has tainted its efforts; this court will taint the law if we bless

the state’s actions. In regard to the penalty phase, I concur in Justice Lanzinger’s

opinion that Kirkland should be resentenced due to the prejudicial effects of

prosecutorial misconduct. In regard to the guilt phase, I write separately to

dissent from the majority’s holding sustaining Kirkland’s conviction on the

attempted rape of Casonya C.

I

{¶ 170} I dissent from the majority’s holding regarding the “other acts”

evidence introduced at trial through the testimony of Kylah W. Kylah testified

that when she was 13 years old, Kirkland had exposed himself to her and solicited

sex from her. In my judgment, Evid.R. 404(B) should have precluded the

admission of that testimony; also, its admission was unfairly prejudicial pursuant

to Evid.R. 403.

{¶ 171} The state’s theory is that Kirkland’s September 26, 2007 offer to

pay Kylah for a sex act is evidence that is admissible to prove that Kirkland

attempted to rape Casonya over a year earlier, in May 2006. There is no doubt

that the testimony regarding Kirkland’s exposing himself to Kylah and offering to

pay her for a sex act are revelatory. The acts show him to be an evil person who

sexualizes underage girls and is willing to pay for sex. That is, the evidence

demonstrates his character. The state admitted as much in its closing argument

38

January Term, 2014

when it told the jury that the kind of a man who would pay a girlfriend’s child for

sex acts is the kind of man who would rape Casonya:

First count, again, is a charge of attempted rape; that when

he approached Casonya [C.] on that bridge, when he walked with

her and when he offered her money, it was an act, it was an attempt

to have sexual contact with her.

And, again, this is where the other acts testimony comes in.

* * * This is a young girl [Kylah W.] that actually was the

daughter of one of his girlfriends, but he sees her as he sees all

women, as a sex object.

And what does he do, offers this little 13-year-old girl,

whose mother actually is nice enough to let him live there from

time to time, five dollars for, his words, to be the first to eat her

out.

***

But he wants you to believe that when confronted by a

stranger, a 14-year-old girl walking across the bridge, he offered

her 20 dollars and it got up to 60 dollars to talk.

Well, I’m sure if this little girl was offered 60 dollars just to

talk, she would have taken it, but something he said or did made

her take that money, throw it back in this predator’s face and knee

him. Did she do that because he said let’s talk, or did he say I want

to have sex with you—

***

You look at his pattern. You look at what he does when he

sees a woman. You see what’s in his eyes. He sees sex. And he’s

39

SUPREME COURT OF OHIO

going to get it. He’ll barter for it, he’ll pay for it, but he’s gonna

get it.

We don’t know if he was successful or not [in raping

Casonya C.]. He did a pretty good job destroying it.

As demonstrated by the state’s use of the evidence in closing argument, Kylah’s

testimony was not relevant to prove any consequential fact. Its only probative

value was to show that Kirkland is a very bad person who would pay for sex with

an underage girl, and therefore he must have raped Casonya.

{¶ 172} Evidence that an accused committed a crime other than the one

for which he is on trial is not admissible when its sole purpose is to show the

accused’s propensity or inclination to commit crime, that is, to show that he acted

in conformity with his bad character. State v. Curry, 43 Ohio St.2d 66, 68, 330

N.E.2d 720 (1975). Evid.R. 404(B) codifies the common law with respect to

evidence of other acts of wrongdoing and is construed against admissibility. State

v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994). The standard for

determining the admissibility of such evidence is strict. State v. Broom, 40 Ohio

St.3d 277, 533 N.E.2d 682 (1988), paragraph one of the syllabus.

{¶ 173} Evid.R. 404(B) establishes when other-acts evidence is

admissible:

Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other

purposes such as proof of motive, opportunity, intent, preparation,

knowledge, identity, or absence of mistake or accident.

40

January Term, 2014

The majority rules that Kylah’s testimony is admissible under Evid.R. 404(B)

because Kirkland’s act—soliciting Kylah—demonstrated that “he had a sexual

intent and motive” for offering Casonya money. Majority opinion at ¶ 69. But

Kirkland faces the death penalty for the death of Casonya not because he offered

her money for a sex act but because he allegedly attempted to rape her before

killing her. Intent to solicit sex is not the same thing as intent to compel sex. And

murder committed in anger because a sexual advance has been refused is not the

same crime as murder in the course of rape. The state needed to show, pursuant

to Evid.R. 404(B), that the act of soliciting Kylah established a motive for the

attempted rape of Casonya or that the act of soliciting Kylah established that

Kirkland’s intent was to rape Casonya. On the pivotal question of whether

Kirkland attempted to rape Casonya, Kylah’s testimony sheds no light. When

Kylah rejected Kirkland’s proposition, he did not rape her. He walked away.

Thus, Kirkland’s bad act shows no intent or motive regarding the crime at issue,

and the testimony is not admissible under Evid.R. 404(B).

{¶ 174} Further, I would find Kylah’s testimony inadmissible under

Evid.R. 403 because its probative value is substantially outweighed by the danger

of unfair prejudice. Because of the complete lack of corresponding operative

facts between the behavior toward Kylah and the murder of Casonya, Kylah’s

testimony was of limited probative value. Kylah was the daughter of a friend of

Kirkland, and he would sometimes stay with the family. Kirkland exposed

himself to Kylah while she was in her bedroom, but then left the room. He

returned with a note offering to pay her for a sex act and then left the room again.

Finally, after again entering the room—while dressed—he put a five-dollar bill on

her dresser and then left. Kirkland did not react violently when Kylah refused his

offer.

{¶ 175} In contrast, Casonya was a stranger. The encounter between

Kirkland and Casonya occurred randomly, in public, and at night. There is no

41

SUPREME COURT OF OHIO

evidence that Kirkland solicited Casonya for sex or that Kirkland exposed himself

to her. Finally, after offering money to Casonya, Kirkland responded with

violence when she threw the money back at him. The question in this case is

whether there was a rape at all. Kirkland’s criminal but nonviolent activity with

Kylah is being offered to show that a rape occurred. That is, a situation where no

rape occurred is being used as evidence that a rape occurred. The evidence is thus

of limited probative value.

{¶ 176} Kylah’s testimony was undoubtedly prejudicial, even to a

defendant as demonstrably repugnant as Kirkland. The majority mentions a

newspaper article that it dared not quote because it is not in the record. The

defense claims that it demonstrates prejudice. I will save the reader the trip to the

Internet: Hamilton County Prosecutor Joe Deters told the Cincinnati Enquirer

that Kylah’s testimony was pivotal in Kirkland’s conviction for the capital murder

of Casonya:

Deters wonders if the jury would have recommended the

death sentence in the case involving Casonya without the girl’s

testimony.

“I think it would have been a coin flip,” Deters said. “There

is no question she made the difference in Casonya’s case.”

Perry, Deters: Teen’s testimony could seal killer Anthony Kirkland’s fate, The

Cincinnati Enquirer (March 31, 2010). Certainly, Prosecutor Deters was

attempting to publicly recognize a young girl for her courage and may have

overstated her importance in the case, but there can be no doubt that Kylah’s

testimony was highly prejudicial against Kirkland.

{¶ 177} Without question, evidence that a grown man sexually solicited

and exposed himself to a girl he knew to be 13 years old is prejudicial. The

42

January Term, 2014

testimony was unfairly prejudicial because the state, by its own admission, used

the testimony to convince the jury that Kirkland must have tried to rape Casonya.

The state rested its entire opposition to Kirkland’s Civ.R. 29 motion on Kylah’s

testimony: “Specifically in regard to the attempted rape on Casonya [C.], this last

witness [Kylah] has shown there was a common scheme or plan.”

{¶ 178} Because the other-acts testimony reflected on Kirkland’s

character, did not meet the requirements of Evid.R. 404(B), and was unfairly

prejudicial under Evid.R. 403, I would find that Kirkland’s first proposition of

law has merit.

II

{¶ 179} Kirkland asserts in his ninth proposition of law that there was

insufficient evidence to convict him of attempted rape in connection with the

murder of Casonya C. At the close of the evidence, the defense made a Crim.R.

29 motion for acquittal on that charge. The trial court denied the motion and

allowed all charges to proceed to the jury. I would find that there is insufficient

evidence to convict Kirkland of attempted rape.

{¶ 180} When reviewing a record for sufficiency, the court must consider

whether, viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proved

beyond a reasonable doubt. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-

6235, 818 N.E.2d 229, at ¶ 77; State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. The court must view the evidence in the

light most favorable to the prosecution and defer to the trier of fact on questions

of credibility and the weight to assign evidence. State v. Fry, 125 Ohio St.3d 163,

2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 146.

{¶ 181} The crime of rape is “engag[ing] in sexual conduct with another

when the offender purposely compels the other person to submit by force or threat

of force.” R.C. 2907.02(A)(2). The crime of attempted rape is complete when an

43

SUPREME COURT OF OHIO

offender purposely engages in conduct that, if successful, would constitute or

result in the offense of rape. R.C. 2923.02(A). We have explained a “criminal

attempt” as an act “constituting a substantial step in a course of conduct planned

to culminate” in an offender’s commission of the crime. State v. Woods, 48 Ohio

St.2d 127, 357 N.E.2d 1059 (1976), at paragraph one of the syllabus. To

constitute a “substantial step,” the conduct must be strongly corroborative of the

offender’s purpose to commit the crime, thus directing attention to the offender’s

overt acts. State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980,

at ¶ 95.

{¶ 182} The element of force for purposes of proving the attempted rape

of Casonya C. is obvious and indisputable. The question, then, is what overt acts

were presented as evidence to prove that Kirkland attempted to compel sexual

conduct. The police collected no physical evidence of rape from a rape kit,

because the fire damage to Casonya’s body, specifically her pelvic area,

prevented the forensic pathologist from taking any specimens. And during his

police interrogation, Kirkland repeatedly denied having sex with Casonya.

{¶ 183} The majority states that Kirkland’s offer of money to Casonya “to

talk” was an offer of sex. But without Kylah’s testimony, the state had no

evidence from which to conclude that the offer of money was for sexual services.

And even if there were evidence that Kirkland offered Casonya money for sex,

that evidence would not be probative of whether he attempted to rape her before

he killed her.

{¶ 184} The majority points to physical evidence that it says is consistent

with a sexual purpose behind the murder. Casonya was found naked save for a

single sock. The state argues that that fact, standing alone, is sufficient to sustain

the attempted-rape conviction. However, even in the cases cited by the majority,

the naked condition of the body was not the sole evidence of sexual assault. See

44

January Term, 2014

State v. Scudder, 71 Ohio St.3d 263, 274-275, 643 N.E.2d 524 (1994); State v.

Biros, 78 Ohio St.3d 426, 447-448, 678 N.E.2d 891 (1997).

{¶ 185} This court’s holding in State v. Heinish, 50 Ohio St.3d 231, 553

N.E.2d 1026 (1990), suggests that the naked condition of the body, standing

alone, is insufficient to sustain a conviction for aggravated rape. In Heinish, the

murdered victim was found with her jeans partially unzipped and pulled down

several inches from her hips. Id. at 232. Her shoes, jacket, and watch were

missing, and there was no underwear on the body. There was also a saliva stain

on the crotch of her jeans that, according to laboratory tests, was consistent with

the defendant’s. Despite this evidence, this court vacated Heinish’s attempted-

rape conviction, because “[e]vidence of finding the victim’s body in the condition

noted above does not allow the fact-finder to conclude beyond a reasonable doubt

that an attempted rape has occurred.” Id. at 239.

{¶ 186} The burning of Casonya’s body, coupled with other-acts evidence

concerning Kirkland’s sexual assault of another victim, Esme K., presents a closer

call. According to the state, Kirkland’s intent to rape Casonya is evident from the

fact that he raped Esme: “The stark similarities between the defendant’s attack on

Esme [K.], i.e., the beating, the vaginal burning, the nude body, are particularly

relevant.”

{¶ 187} When Kirkland burned the body of Esme K.—a girl we know he

did rape—he started the fire in her pubic area. Based on that evidence, the state

argues for an inference of rape of Casonya C. because the fire was started in or

was concentrated in the vaginal area, which the state characterizes as an obvious

attempt to destroy any evidence of rape.

{¶ 188} However, the record does not support the state’s assertion that the

fire was started in or concentrated on Casonya’s vaginal area. Obinna Ugwu,

M.D., a deputy coroner and forensic pathologist employed by the county, offered

no testimony as to the origin point of the fire on Casonya’s body. The only

45

SUPREME COURT OF OHIO

opinion came from Elizabeth Murray, Ph.D., a forensic anthropology consultant.

Dr. Murray testified that “[i]t looked like the center of the fire was at the center of

the body.” Dr. Murray was not asked to clarify whether, by “the center of the

body,” she meant the vaginal area or somewhere on the torso. However, it is clear

in context that she meant the latter: she testified that the hands and forearms were

most burned because they were likely folded across the body. Also, she noted

that the legs were not as severely burned, suggesting again that she believed the

fire began higher on the body. In fact, Casonya’s legs were the only part of the

body not substantially charred by the fire.

{¶ 189} Burning Casonya’s body may well have been an attempt to

destroy evidence of her murder, not to destroy evidence of an attempted rape.

Kirkland burned the bodies of all four of his victims, not just Esme and Casonya.

Ultimately, all the state was able to prove was that Kirkland destroyed the bodies

of his victims, including the bodies of two victims who were not raped. The fact

that he burned Casonya’s body is not probative evidence of whether he attempted

to rape her first.

{¶ 190} In summary, the state presented insufficient evidence of attempted

rape, and I would therefore reverse Kirkland’s conviction on that charge.

III

{¶ 191} In conclusion, I believe that the case should be remanded for

resentencing without a consideration of the attempted rape of Casonya Crawford

as an aggravating circumstance. The protections afforded by state law and our

constitutions are only as meaningful as this court’s willingness to recognize them.

____________________

LANZINGER, J., concurring in part and dissenting in part.

{¶ 192} I concur in the judgment affirming Kirkland’s convictions. But

because I believe that the prosecutorial misconduct in this case violated

Kirkland’s rights to due process, I respectfully dissent from the majority’s

46

January Term, 2014

decision to affirm his death sentence and would remand the case for a new

sentencing hearing pursuant to R.C. 2929.06(B).

{¶ 193} Although I agree with the majority’s conclusion that “the

prosecutor’s closing argument prejudicially affected Kirkland’s substantial

rights,” majority opinion at ¶ 83, I disagree with the majority’s decision declining

to remand the case for a new sentencing hearing. Our procedures for sentencing

in capital cases charge two independent bodies with evaluating whether the death

penalty is proper: the jury or a three-judge panel at the trial level and this court at

the appellate level. In cases like this, where a jury has recommended a sentence

of death, our independent review of a death sentence should occur only if proper

sentencing-phase procedures were followed leading up to the jury’s

recommendation.

{¶ 194} While R.C. 2929.05(A) provides that we must conduct an

independent evaluation of the death sentence, we should not conduct this

evaluation when the sentence was recommended by a jury that was exposed to

substantial and prejudicial prosecutorial misconduct. We have typically used our

independent evaluation of the death sentence to correct errors of law by the trial

court in its sentencing opinion. See, e.g., State v. Lang, 129 Ohio St.3d 512,

2011-Ohio-4215, 954 N.E.2d 596, ¶ 298; State v. Fox, 69 Ohio St.3d 183, 191,

631 N.E.2d 124 (1994). By declining to remand this case, the majority fails to

preserve the unique role of the jury in capital cases.

{¶ 195} As noted in the majority opinion, a prosecutor’s closing argument

is prejudicial when it is “so inflammatory as to render the jury’s decision a

product solely of passion and prejudice.” State v. Williams, 23 Ohio St.3d 16, 20,

490 N.E.2d 906 (1986). The majority opinion cites repeated remarks by the

prosecutor that meet this standard in this case, and it concludes that “the state’s

closing remarks in the penalty phase were improper and substantially prejudicial.”

Majority opinion at ¶ 96. This conclusion is borne out by the record.

47

SUPREME COURT OF OHIO

{¶ 196} Because the prosecutorial misconduct in this case potentially

rendered the jury’s decision recommending death “a product solely of passion and

prejudice,” it cannot be cured by this court’s independent review of the sentence.

While our own evaluation can cure errors occurring during the penalty phase, it

cannot cure an error that may have caused the jury to recommend a sentence that

is solely a product of prejudice. The majority cites State v. Mills, 62 Ohio St.3d

357, 373-374, 582 N.E.2d 972 (1992). In Mills, however, there were far fewer

instances of prosecutorial misconduct, and the defendant failed to object. Most

significantly, we did not conclude that the state’s actions were substantially

prejudicial. Kirkland’s case, on the other hand, is not a case in which offhand

remarks by the prosecutor may have had a negligible effect. Here, the majority

has concluded that the prosecutorial misconduct was substantially prejudicial. I

do not believe that we can conduct an independent review of a death sentence that

was not properly recommended, and I therefore would reverse the judgment and

remand for a proper sentencing hearing.

{¶ 197} Reversing the judgment sentencing Kirkland to death would not

mean that he has escaped the death penalty for his actions. Because this case

would be remanded due to an error that occurred during the sentencing phase of

the trial, Kirkland would still be eligible for the death penalty pursuant to R.C.

2929.06(B). Although the crimes Kirkland is alleged to have committed are

horrific, due process requires that a jury be free from prejudice before

recommending the death penalty. Due process, in my view, demands a reversal

and remand for resentencing.

____________________

O’NEILL, J., dissenting.

{¶ 198} As a justice and as a citizen, it is truly difficult in this case to

separate personal outrage from clinical constitutional analysis. The latter,

however, is required by my oath of office. Anthony Kirkland’s actions were

48

January Term, 2014

monstrous—he must be punished and society must be vigilantly protected from

him. He deserves nothing less than life in prison without possibility of release,

and the horror of his crimes certainly makes it easy to suggest that death is the

only fit punishment for him. But because the death penalty “is inherently both

cruel and unusual,” State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164,

981 N.E.2d 900, ¶ 2 (O’Neill, J., dissenting), I cannot accept that easy suggestion.

And because the majority’s analysis results in a denial of the defendant’s right to

a fair jury trial, even if I believed that the death penalty could be constitutionally

imposed, I would still be compelled to dissent in this case.

{¶ 199} The majority correctly concludes that the state’s closing remarks

in the penalty phase “were improper and substantially prejudicial.” Majority

opinion at ¶ 96. Compare Carter, Harmless Error in the Penalty Phase of a

Capital Case: A Doctrine Misunderstood and Misapplied, 28 Ga.L.Rev. 125, 131,

134 (1993) (discussing harmless, as opposed to prejudicial, error). But instead of

reversing the sentence and remanding for a new sentencing hearing, the majority

holds that our independent evaluation and approval of the capital sentence cured

the errors in the penalty-phase proceedings. I disagree. This court has relied

upon its independent review to “cure” trial-court penalty-phase deficiencies in

preparing a written sentencing opinion, State v. Gumm, 73 Ohio St.3d 413, 424,

653 N.E.2d 253 (1995), allowing improper testimony from a state expert witness,

State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 132, and

giving erroneous jury instructions, State v. Dixon, 101 Ohio St.3d 328, 2004-

Ohio-1585, 805 N.E.2d 1042, ¶ 84. Today, it holds that independent review of a

sentence can also “cure” prejudicial penalty-phase prosecutorial misconduct that

this court has repeatedly determined to be improper: arguing facts outside the

record, arguing the subjective experiences of the victim, and arguing that the

circumstances of the murder are themselves aggravating factors. That holding, in

my opinion, undermines the very foundation of the jury system in Ohio. And it

49

SUPREME COURT OF OHIO

does not comport with the Sixth Amendment to the United States Constitution,

which in this context requires that the facts permitting the imposition of a death

sentence must be found by a jury.

{¶ 200} In Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 108

L.Ed.2d 725 (1990), the United States Supreme Court held that it was permissible

for the Mississippi Supreme Court to impose a sentence of death based on its

independent reweighing of aggravating and mitigating circumstances after the

state court struck down as unconstitutional one of the aggravating factors found

by the jury. This court has recognized that Ohio’s system for imposing and

reviewing death sentences is analogous to the Mississippi system approved in

Clemons. See State v. Landrum, 53 Ohio St.3d 107, 124, 559 N.E.2d 710 (1990).

{¶ 201} But in Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153

L.Ed.2d 556 (2002), the United States Supreme Court concluded that the Sixth

Amendment right to a jury trial required that a jury, rather than a judge, find the

presence of aggravating circumstances necessary for the imposition of the death

penalty. The Supreme Court stated that “[t]he right to trial by jury guaranteed by

the Sixth Amendment would be senselessly diminished if it encompassed the

factfinding necessary to increase a defendant's sentence by two years, but not the

factfinding necessary to put him to death.” Id.

{¶ 202} When it is applied to this case, Clemons, standing alone, would

compel the conclusion that this court does not violate the United States

Constitution by “curing” prejudicial errors in the penalty phase of a death-penalty

case by independently reviewing the death sentence. But I simply cannot accept

the proposition that our independent review somehow comports with the Sixth

Amendment right to have a jury weigh mitigating and aggravating circumstances.

In my opinion, Clemons is inconsistent with the United States Supreme Court’s

pronouncement in Ring, because Clemons rests on a premise—“the Sixth

Amendment does not require that a jury specify the aggravating factors that

50

January Term, 2014

permit the imposition of capital punishment, nor does it require jury sentencing,

even where the sentence turns on specific findings of fact”—that Ring has shown

to be faulty. (Citation omitted.) Clemons at 746. As Ring demonstrates, the

Sixth Amendment requires precisely those things: “enumerated aggravating

factors operate as ‘the functional equivalent of an element of a greater offense,’

[and therefore] the Sixth Amendment requires that they be found by a jury.” Ring

at 609, quoting Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147

L.E.2d 435 (2000), fn. 19. Moreover, in Alleyne v. United States, ___ U.S. ___,

133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), the court concluded that any fact

that increases the mandatory minimum punishment for a crime “is an ‘element’

that must be submitted to the jury and found beyond a reasonable doubt.” See

also id. at 2165-2166 (Sotomayor, J., concurring) (demonstrating how Ring

compels the decision in Alleyne).

{¶ 203} In short, as one federal judge has observed, “[i]f a defendant has a

right to have a jury find all the facts that make him eligible for the death penalty,

he must also have the right to have a jury make the final determination that he

actually will be sentenced to death.” Baston v. Bagley, 420 F.3d 632, 639, fn.1

(6th Cir.2005) (Merritt, J., dissenting) (arguing that “Ring has overruled

Clemons”). In light of Apprendi, Ring, and Alleyne, it seems obvious that

Clemons is bad law that will someday be explicitly overruled. And given that this

court has already concluded that the defendant’s penalty-phase hearing was

unfair, it compounds that unfairness for this court to simply reimpose the death

penalty instead of remanding the case for a sentencing jury to make that

determination.

{¶ 204} I have stated my belief that capital punishment itself is

unconstitutional; with today’s decision, the court plainly demonstrates that Ohio’s

system of imposing and reviewing death sentences is unconstitutional as well.

Accordingly, I dissent.

51

SUPREME COURT OF OHIO

____________________

Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.

Breyer, Chief Assistant Prosecuting Attorney, for appellee.

Herbert E. Freeman and Bruce K. Hust, for appellant.

_________________________

52