finding no plain error when the trial court indicated that it would remain “aware” of whether a juror was sleeping and did not question or remove a juror after the defendant complained that the juror had been asleep. The court noted that “her position [is] pretty much to just sit there and look straight ahead,” and the issue was not raised again
How later courts described this case
- finding no plain error when the trial court indicated that it would remain “aware” of whether a juror was sleeping and did not question or remove a juror after the defendant complained that the juror had been asleep. The court noted that “her position [is] pretty much to just sit there and look straight ahead,” and the issue was not raised again
- nothing in the record indicated that the juror actually missed critical evidence, and therefore there was no plain error
- applying non- constitutional harmless-error analysis to erroneous admission of other acts evidence
- applying Schad rationale in rejecting unanimity claims
Written by the judges who cited it.
The opinion
Moyer, C.J.,
concurring in part and dissenting in part.
{¶ 336} I concur in the decision of the majority to affirm the murder convictions and the sentence of death. I disagree with the determination of the majority that sufficient evidence exists to convict McKnight for a course-of-conduct specification pursuant to R.C. 2929.04(A)(5).
{¶ 337} I agree that the passage of five and one-half months between the two murders does not necessarily invalidate the course-of-conduct conviction. Nevertheless, “ ‘[t]he further apart the acts are temporally, the more incumbent it is upon a court to carefully consider other factors * * * in determining whether the acts * * * are part of a course of conduct.’ ” State v. Sapp, 105 Ohio St.3d 104 , 2004-Ohio-7008 , 822 N.E.2d 1239, ¶ 56 , quoting State v. Cummings (1992), 332 N.C. 487, 510 , 422 S.E.2d 692 . Because a significant period of time elapsed between the two murders, evidence of “other factors,” such as modus operandi and motive, must exist.
{¶ 338} No distinctive modus operandi linked the murders of Murray and Julious. Both Murray and Julious were shot in the head, and their bodies were disposed of on MeKnight’s remote homesite; however, no other “ ‘pattern or psychological thread * * * ties [the offenses] together.’ ” Id. at ¶ 52, quoting Cummings, 332 N.C. at 510 , 422 S.E.2d 692 . By way of comparison, in Sapp , each of the victims was raped and left nude from the waist down, and the victims’ pants were cut open in a distinctive way. Id. at ¶ 59.
{¶ 339} Moreover, no evidence of a common motive links the murders of Murray and Julious. Murray was murdered as part of a kidnapping and robbery. There is no evidence that Julious’s murder was motivated by similar secondary crimes. In contrast, in Sapp , there was a common motive linking the murders. Sapp murdered each victim to gratify his recurring “taste for blood.” Id. at ¶ 60. Furthermore, Sapp murdered his victims after he perceived that they had each provoked him. Id.
{¶ 340} Though similarities exist between the two murders, there was no common scheme or pattern that tied the aggravated murders of Julious and Murray together. For these reasons, I would reverse the judgment of the court *151 of common pleas and vacate McKnight’s conviction for a course-of-conduct specification. I concur in the remainder of the majority opinion, which affirms the convictions for murder and the sentence of death.
Lanzinger, J., concurs in the foregoing opinion.