State v. Lewis

616 N.E.2d 921, 67 Ohio St. 3d 200
Ohio Supreme Court·Decided August 25, 1993·No. No. 91-2417·Published·Cited by 69 cases

Opinion

Francis E. Sweeney, Sr., J.

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

I

Appellant alleges in. his first proposition of law that the trial court’s jury instruction on specific intent was not adequate.

However, appellant failed to object to this instruction. Appellant’s failure to object waives this issue on appeal absent plain error. State v. Thompson (1987), 33 Ohio St.3d 1, 13, 514 N.E.2d 407, 419.

A jury instruction must be viewed in the context of the overall charge rather than in isolation. State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772, paragraph four of the syllabus. While appellant cites only that portion of the charge labeled “specific intent,” the court also instructed the jury [204] as to the definitions of “purpose,” “intent,” and “causation.” Therefore, we find that, when read in its entirety, the jury charge adequately defined specific intent. Further, we found a similar charge adequate in State v. Maurer (1984), 15 Ohio St.3d 239, 248, 15 OBR 379, 386-387, 473 N.E.2d 768, 778-779. Thus, we find no error in the court’s charge. Accordingly, the first proposition of law is not well taken.

II

Appellant argues in his second proposition of law that the trial court erred by failing to state its reasons for its finding that the aggravating circumstance outweighed the mitigating factors.

R.C. 2929.03(F) requires the trial court or three-judge panel to “state in a separate opinion its specific findings as to the existence of any of the mitigating factors set forth in division (B) of section 2929.04 of the Revised Code, the existence of any other mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors. * * * ”

The trial court did not comply -with the above statute because it did not state its reasons for finding that the aggravating circumstance outweighed the mitigating factors. Instead, the trial court merely concluded that the aggravating circumstance did outweigh the mitigating factors.

In a similar case, State v. Maurer, supra, the trial court also did not state its reasons for concluding that the aggravating circumstances outweighed the mitigating circumstances. We held that the appellant was not prejudiced because independent review of each stage of appeal can correct such omission. Id., 15 Ohio St.3d at 247, 15 OBR at 386, 473 N.E.2d at 778. Also, in State v. Johnston (1988), 39 Ohio St.3d 48, 57, 529 N.E.2d 898, 908, this court found harmless error in the trial court’s failure to articulate the reasons for imposing the death penalty and what, if any, evidence it found to be mitigating. See, also, State v. Landrum (1990), 53 Ohio St.3d 107, 124, 559 N.E.2d 710, 729. Accordingly, this court’s independent review will cure the omission of the trial court in failing to conform with the requirements of R.C. 2929.03(F).

III

Appellant in his third proposition of law alleges the state failed to establish aggravated robbery because there is no evidence that the appellant intended to rob the victim at the time the murder occurred.

[205] From the undisputed facts and from appellant’s own statement, we know that after he beat the victim, he then took the victim’s wallet, car, and the car battery. Appellant argues that he intended only to beat the victim, and the taking of the wallet, the car, and the battery was an afterthought. As a result, he should have been convicted only of murder and theft.

This court discussed a similar issue in State v. Smith (1991), 61 Ohio St.3d 284, 574 N.E.2d 510. In Smith, the appellant argued that the victim of a stabbing was dead at the time the appellant took her property. This court held, “[a] robber cannot avoid the effect of the felony-murder rule by first killing a victim, watching her die, and then stealing her property after the death.” Id. at 290, 574 N.E.2d at 516. See, also, State v. Cooey (1989), 46 Ohio St.3d 20, 23, 544 N.E.2d 895, 903.

In addition, appellant was asked if he planned to rob the victim. He answered, “Sort of. Right before we was getting out of the car I turned to Richard and said, ‘Man, I’m getting tired of this old man, I feel like kicking his ass, talking that shit.’ Richard said, ‘Go ahead. I’m with you.’ He like enticed me.”

“ * * * The relevant inquiry [in regard to determining the sufficiency of evidence on appeal] is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 260, 574 N.E.2d 492, 494, paragraph two of the syllabus.

In light of appellant’s “sort of’ response as to whether he intended to rob the victim, and the testimony of Parker, there is no evidence, other than the unsworn statement of appellant, that his purpose was anything other than to beat and rob the victim. A rational trier of fact could have easily found the establishment of aggravated robbery. Accordingly, this proposition is not well taken.

IV

Appellant in his fourth proposition of law alleges the trial court failed to explain to the jury the function of mitigating factors. However, appellant failed to object to the instructions and has thus waived all but plain error. Additionally, the trial court did explain the function of mitigating factors in its charge to the jury.

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State v. Lewis, 616 N.E.2d 921, 67 Ohio St. 3d 200 (Ohio 1993).

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