State v. Johnson

545 N.E.2d 636, 46 Ohio St. 3d 96, 1989 Ohio LEXIS 261
Ohio Supreme Court·Decided October 18, 1989·No. No. 88-1524·Published·Cited by 135 cases

Opinion

Per Curiam.

Appellant has raised ten propositions of law. Each has been thoroughly reviewed and for the reasons stated below we find them without merit, and uphold the appellant’s convictions and death sentence.

In his first proposition of law, appellant argues that the state failed to put forward evidence legally sufficient to support his conviction. Specifically, appellant contends that the evidence was insufficient to prove beyond a reasonable doubt that he committed the murder or robbery, and that the facts failed to substantiate that the same person committed both the aggravated robbery and the murder.

The evidence of appellant’s guilt was entirely circumstantial. We have held that “[circumstantial evidence relied upon to prove an essential element of a crime must be irreconcilable with any reasonable theory of an accused’s innocence in order to support a finding of guilt.” State v. Kulig (1974), 37 Ohio St. 2d 157, 66 O.O. 2d 351, 309 N.E. 2d 897, syllabus; see, also, State v. Graven (1978), 54 Ohio St. 2d 114, 118, 8 O.O. 3d 113, 116, 374 N.E. 2d 1370, 1373; State v. Goodin (1978), 56 Ohio St. 2d 438, 10 O.O. 3d 533, 384 N.E. 2d 290, paragraph one of the syllabus. “Whether a theory of innocence is reasonable must be determined in view of the weight and credibility that the fact finder gives the evidence, and an appellate court can reverse a conviction based in part on circumstantial evidence only where the evidence is insufficient as a matter of law to enable the fact finder to exclude a reasonable hypothesis of innocence.” State v. Hankerson (1982), 70 Ohio St. 2d 87, 92, 24 O.O. 3d 155, 158, 434 N. E. 2d 1362, 1366, citing State v. Sheppard (1956), 165 Ohio St. 293, 59 O. O. 398, 135 N.E. 2d 340; State v. Graven, supra, at 119, 8 O.O. 3d at [100]*100116, 374 N.E. 2d at 1373-1374. Although this court usually does not weigh the evidence presented below, “it may do so in order to determine whether that evidence is of sufficient probative force to support a finding of guilt for conviction in a criminal case.” State v. Nicely (1988), 39 Ohio St. 3d 147, 155, 529 N.E. 2d 1236, 1243.

Appellant asserts that there was no evidence which indicated he was inside the building at the time of the murder or the robbery. In reviewing the evidence we note that Steven Graster testified that on April 26,1983 he saw the appellant enter the Reno Hotel through the side entrance sometime before 9:45 a.m. Thus, the jury could have reasonably rejected appellant’s testimony that he had never been buzzed through the second set of doors into the hotel that morning. Also, at approximately 10:00 a.m., Lundy saw appellant walking down the steps of the hotel with the front door open behind him. Since it was shown at trial that the front door could not be opened from the outside, the most probable inference is that appellant was coming out of the hotel. This was supported by Lundy’s statement to Ganelle Johnson that she “ ‘saw Gary [appellant] coming out of the hotel,’ ” coupled with Lundy’s testimony that appellant said “he wasn’t going back into the hotel, Dee wasn’t going to blame him for anything that happened in the hotel.”

Appellant argues that the evidence did not show that he murdered Eunice Graster, and suggests that the murderer might have been Steven Graster or Mr. and Mrs. Arnold. However, Steven testified that he departed the hotel between 9:35 and 9:45. Also, W.I.C. clinic records showed that he arrived at the clinic at Miles and Broadway by 10:00 a.m. Additionally, the evidence indicates that Steven cared for Eunice. Specifically, when Steven heard that his wife was dead he hit a wall with his fist. Moreover, Robin Johnson identified a note she had seen at the Reno Hotel which read: “I love you Steven Graster. Eunice.”

Focusing on the Arnolds, they were regular customers who returned to the hotel after the murder. Also, they were not observed leaving the hotel until after the police arrived. Under these circumstances, the jury could have found unreasonable a theory exonerating appellant by throwing suspicion on the Arnolds.

The jury could have reasonably concluded that appellant was inside the hotel on the day of the murder and therefore they could have also decided appellant was lying when he testified otherwise, a circumstance tending to show consciousness of guilt. Consequently, the evidence is sufficient to eliminate all reasonable hypotheses that appellant did not kill Eunice.

Appellant maintains that there is no proof that the murder and theft offenses were related. The facts indicate that both crimes took place within the same time period. Specifically, the hotel’s money, kept in a cash box located in a locked office, was stolen and the clerk on duty during this period was murdered. Also, the only persons known to have been in the hotel at this time were appellant and the Arnolds. Both parties would have had access to the desk clerk and the money. Therefore, it is very likely that both crimes were related.1

[101] Appellant’s final contention under his first proposition of law is that the theft was not proven to be aggravated robbery. The robbery and murder were shown to have been part of the same occurrence, which was evidenced by the use of a deadly weapon in the commission of the murder of Eunice Graster and the exercise of control over the weapon in the commission of the theft offense. Thus, it is reasonable to conclude that the appellant committed aggravated murder and aggravated robbery under R.C. 2911.01 (A)(1) and (2).2

As we have stated previously, “a reviewing court will not reverse a verdict where the jury could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt.” State v. Scott (1986), 26 Ohio St. 3d 92, 102, 26 OBR 79, 88, 497 N.E. 2d 55, 64, certiorari denied (1987), 480 U.S. 923, rehearing denied (1987), 481 U.S. 1034, citing State v. Eley (1978), 56 Ohio St. 2d 169, 10 O.O. 3d 340, 383 N.E. 2d 132.

The facts presented in this cáse would have enabled the trier of fact to conclude beyond a reasonable doubt that appellant was guilty of the offense charged, thereby excluding any reasonable theory of innocence. Therefore, the trial court properly overruled the appellant’s motion for acquittal pursuant to Crim. R. 29(A) as the evidence was such that reasonable minds could reach different conclusions. State v. Bridgeman (1978), 55 Ohio St. 2d 261, 9 O.O. 3d 401, 381 N. E. 2d 184, syllabus; see, also, State v. Swiger (1966), 5 Ohio St. 2d 151, 34 O. O. 2d 270, 214 N.E. 2d 417, paragraph two of the syllabus; State v. Antill (1964), 176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548, paragraph five of the syllabus.

Accordingly, appellant’s first proposition of law is overruled.

In his second, fifth and tenth propositions of law, appellant alleges prosecutorial misconduct. First, appellant contends that the prosecutor improperly recited facts outside the record in his closing argument in the guilt phase of the trial.

The prosecutor noted:

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State v. Johnson, 545 N.E.2d 636, 46 Ohio St. 3d 96, 1989 Ohio LEXIS 261 (Ohio 1989).

545 N.E.2d 636 (State v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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