OPINIONS OF THE SUPREME COURT OF OHIO 

 

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

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

Criminal law -- Death penalty upheld, when. 

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

December 30, 1994.) 

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

91CA005214. 

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

three-judge panel of the kidnapping and aggravated murder of 

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

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

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

School where the victims worked. The following events led to 

this tragedy. 

 Appellant and Mary Jane Johnson had had an on-again-offagain relationship for approximately five to seven years. At 

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

one to four weeks. 

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

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

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

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

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

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

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

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

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

the house. He appeared to be intoxicated. After Johnson 

expressed fear at seeing appellant, the women decided to finish 

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

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

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

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

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

 Not finding appellant's car, they drove to Hembree's 
house. When they arrived there, they observed appellant 

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

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

Because Johnson was unwilling to do so, Hembree called the 

sheriff's department to report appellant. 

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

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

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

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

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

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

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

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

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

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

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

men stayed at the bar until it closed. 

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

They stayed there for approximately ten to twenty minutes. At 

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

appellant asked James to drive him to Lorain Clearview High 

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

appellant grabbed a bottle of whiskey and made some coffee, 

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

and a coke. 

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

appellant called his cousin, Larry Simko. Appellant asked 

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

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

not take appellant's threat seriously because he thought 

appellant was drunk, Larry admittedly dressed and went looking 

for appellant. 

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

dropped him off at nearby Durling Elementary School where 

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

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

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

three times that morning. 

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

arrived for work at Durling. He saw appellant walking toward 

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

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

five minutes" with Johnson, Baker unlocked the school and 

appellant accompanied him to the teachers' lounge. Baker did 

not notice whether appellant had a gun. 

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

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

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

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

unlocked the door and saw appellant with his left arm around 

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

appeared to be scared and nervous. Appellant yelled at Baker 

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

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

instead directed Baker to go into the restroom located in the 

lounge. 

 Once in the restroom, Baker locked the door and after 
removing the screen, escaped through the window. Baker then 

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

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

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

truck to stop the boy from entering the school. 

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

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

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

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

 Baker and the boy left the school. Once they were 

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

seen appellant. Baker told him what was happening. Larry 

entered the school and shouted out to appellant. After hearing 

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

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

 It was later determined that the first two shots had been 

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

been fired at Johnson. 

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

and took Johnson to the hospital. 

 Upon her arrival at the hospital, Johnson was alert and 

oriented. Just before surgery, Johnson was interviewed by 

Detective Bruce Johnston of the Lorain County Sheriff's 

Department. Although Johnson was unable to talk because she 

was intubated, she nodded her head in response to the 

detective's questions. Detective Johnston testified that 

Johnson nodded affirmatively when asked if appellant had told 

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

attempted to run from the appellant. Johnson also nodded yes 

to whether appellant shot her twice and then fled from the 

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

day later from injuries caused by the gunshot wounds. 

 Police found appellant walking in the area and arrested 

him. Expert testimony indicated that appellant's blood alcohol 

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

percent. 

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

of kidnapping and one count of aggravated murder with a felonymurder specification alleging kidnapping and a firearm 

specification. The three-judge panel convicted appellant as 

charged. 

 Appellant called several family members, coworkers, and a 

clinical forensic psychologist during the sentencing hearing. 

Most family members acknowledged that appellant had a drinking 

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

aggressive and mean. All the family members and coworkers 

related specific instances where appellant had been thoughtful 

and caring. These included the care of his elderly and 

arthritic mother, who witnesses testified was a demanding and 

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

appellant had supported his ex-wife, both emotionally and 

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

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

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

work he did overseeing troubled youth in a work study program 

at the school. 

 Appellant's family was neither close nor loving. Although 
appellant's brother testified that appellant's upbringing had 

been fairly normal, another family member testified that 

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

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

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

 Family members and coworkers agreed that although 

appellant was likable, he was also reserved and uncomfortable 

around people. Although appellant quit school in the tenth 

grade, he received a high school equivalency diploma while in 

the service. Appellant did not attend college like his 

siblings. Instead, he successfully served eight years in the 

air force. 

 Dr. James Brown diagnosed appellant as suffering from 

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

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

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

a hypersensitivity to the reactions of others. He testified 

that alcohol disinhibits feelings of anger, and renders a 

person like appellant more prone to violence. 

 Despite this disorder, Dr. Brown testified, appellant was 

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

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

appellant reacted in an uncharacteristic manner. Dr. Brown 

believed that APD together with the alcoholism contributed to 

Johnson's death. 

 Sergeant Thomas Tomasheski of the Lorain County Sheriff's 

Department testified that appellant had no prior convictions or 

criminal record. Corrections Officer Robert Vansant testified 

that appellant had adjusted to incarceration and was not a 

discipline problem. 

 Finally, appellant gave a brief unsworn statement 

indicating his remorse. 

 In rebuttal, the state presented James Simko, who 

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

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

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

the defense questioned James about his own record of domestic 

violence and his drug problems. The defense also questioned 

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

appellant's retirement fund which was now missing. 

 After considering this mitigation evidence, the panel 

sentenced appellant to death. For the firearm specification 

and the remaining offenses, appellant was sentenced in 

accordance with law. The court of appeals affirmed the 

convictions and sentences, including the sentence of death. 

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

right. 

 

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

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

appellant. 

 Gregory A. White, Lorain County Prosecuting Attorney, and 

Jonathan E. Rosenbaum, Assistant Prosecuting Attorney, for 

appellee. 

 

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

Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570, and 
recently reiterated in State v. Scudder (1994), Ohio 

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

review death penalty cases, our obligation under the law does 

not require us to address all propositions of law in opinion 

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

dispose of many propositions of law where either the error was 

not properly preserved or the propositions have been decided 

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

although this opinion does not separately address each of the 

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

reviewed the record and passed upon each one prior to reaching 

our decision. In addition, we independently assessed the 

evidence relating to the death sentence, balanced the 

aggravating circumstance against the mitigating factors, and 

reviewed the proportionality of the sentence to sentences 

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

convictions and sentence, including the death penalty. 

 I 

 GUILT PHASE 

 Sufficiency of Evidence 

 In Proposition of Law I, appellant challenges the 

sufficiency of the evidence for the capital specification and 

for the separate kidnapping offense charged in count two.1 

 The capital specification appellant was convicted of was 

kidnapping: "committing, attempting to commit, or fleeing 

immediately after committing or attempting to commit 

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

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

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

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

or restraining her of her liberty, to terrorize or inflict 

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

 Appellant argues that under this court's decision in State 

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

1345, the state failed to present sufficient evidence of either 

the elements of kidnapping or a separate animus from the animus 

to commit aggravated murder to sustain his convictions on these 

charges. Appellant asserts that the alleged kidnapping of 

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

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

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

and incidental to robbery). 

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

the underlying crime, "a kidnapping in facilitation thereof 

would generally constitute a separately cognizable offense." 

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

test to determine whether the kidnapping was committed with a 

separate animus and thus amounts to a separate offense is 

"whether the restraint or movement of the victim is merely 

incidental to a separate underlying crime, or instead, whether 

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

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

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

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

ordered to lie on the floor while defendant and his accomplice 

had drawn guns. When another bystander refused to comply with 

the demands, he was shot and killed. Under these 
circumstances, this court held that it was reasonable for a 

jury to conclude that Seiber had restrained that victim of his 

liberty and that this evidence was sufficient to support the 

kidnapping charge and specification. 

 Clearly, the instant facts present a more compelling case 

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

testimony, Johnson was restrained and terrorized by the armed 

appellant for approximately one-half hour. Further evidence 

indicated that Johnson managed to escape from appellant, but 

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

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

the evidence and testimony indicate that Johnson's kidnapping 

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

Johnson until she fled from him. Therefore, the prosecution 

presented sufficient evidence to prove not only kidnapping, but 

also an animus for kidnapping separate from the aggravated 

murder. We reject this proposition of law. 

 In Proposition of Law VIII, appellant argues that the 

state failed to introduce evidence sufficient to convict him of 

kidnapping Harold Baker. Appellant contends that "any movement 

of Harold Baker was incidental to the murder of Mary Jane 

Johnson." 

 This proposition of law is also without merit. A review 

of the evidence reveals that it was sufficient to support 

appellant's conviction for kidnapping Baker. 

 Baker testified that when he encountered appellant in the 

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

around Johnson. When Baker attempted to help Johnson, 

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

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

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

into the teachers' lounge restroom. After removing the screen 

from the window, Baker managed to escape. This testimony 

clearly indicated that Baker was restrained of his liberty to 

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

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

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

demonstrating appellant's terrorizing of Baker (and 

inferentially Johnson). We reject this proposition of law. 

 Hearsay 

 In Proposition of Law VI, appellant argues that the trial 

court improperly admitted prejudicial hearsay testimony that 

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

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

utterance. 

 The testimony was elicited from Detective Bruce Johnston 

of the Lorain County Sheriff's Department. Defense counsel 

challenged Detective Johnston's testimony on the grounds that 

the dying declaration exception did not apply since the victim 

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

Johnston questioned her. In response, the prosecution claimed 

that it was relying not only on the dying declaration 

exception, but also on the excited utterance exception applied 

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

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

testimony. The prosecution now concedes that the declaration 

does not qualify as a dying declaration under Evid.R. 
804(B)(2). However, the state asserts it is admissible under 

the excited utterance exception. 

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

quoting paragraph two of the syllabus in Potter v. Baker 

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

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

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

statement must concern 'some occurrence startling enough to 

produce a nervous excitement in the declarant,' which 

occurrence the declarant had an opportunity to observe, and 

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

excitement to lose a domination over his reflective 

faculties. * * *'" 

 The testimony in issue consisted of Detective Johnston's 

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

was intubated. The detective testified that the victim nodded 

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

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

and kill himself, the victim nodded affirmatively. The victim 

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

appellant, and whether appellant had shot her twice and then 

fled the school building. 

 Appellant asserts that Huertas is not on point because 

there the declarant made oral statements, but here the victim 

only nodded in response to words of the detective. In 

addition, appellant points to paragraph two of the syllabus in 

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

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

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

is neither coercive nor leading, (2) facilitates the 

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

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

domination of the nervous excitement over the declarant's 

reflective faculties." 

 A review of Huertas and Wallace justifies the admission of 

the testimony as an excited utterance. Given that the victim 

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

the questions posed to her by the detective could certainly be 

characterized as leading under the syllabus in Wallace, supra. 

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

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

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

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

appellant's sixth proposition of law is overruled. 

 In Proposition of Law XII, appellant contends that the 

testimony of Mary Hembree and Cheryl Hutchison contained 

irrelevant and prejudicial hearsay. 

 In the first instance, appellant characterizes as 

irrelevant the testimony of Hembree, the best friend of the 

deceased victim, who testified with respect to her activities 

with the victim on the night before the shooting. Appellant 

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

that appellant had harassed the victim, but rather to elicit 

testimony from Hembree that the victim had said she was 

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

 The other instance of hearsay cited by appellant concerns 

the testimony of Cheryl Hutchison, the victim's daughter. In 
response to the prosecutor's inquiry as to why the victim had 

changed her phone number, Hutchison testified that her mother 

had changed the number because appellant kept calling her 

mother after being told to stop. Defense counsel objected on 

hearsay grounds, but the trial court overruled the objection. 

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

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

statements of present sense impressions. In support of 

Hutchinson's testimony, the prosecutor referred to "present 

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

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

describing or explaining an event or condition made while the 

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

court of appeals found the testimony of Hembree to be properly 

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

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

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

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

appellant was distraught and that he was following Mary Jane 

Johnson on the night before the shooting, showing prior 

calculation and design on the part of appellant. 

 The testimony of both witnesses is relevant, and its 

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

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

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

the victim was fearful and apprehensive was not inadmissible 

hearsay and was properly admitted.) 

 Assuming, arguendo, that the testimony should not have 

been allowed, the other evidence in the case is still 

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

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

only the relevant, material and competent evidence in arriving 

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

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

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

record compels a contrary conclusion. Consequently, any error 

is harmless beyond a reasonable doubt. Accordingly, 

appellant's twelfth proposition of law is rejected. 

 Prejudicial Expert Testimony During Cross-examination 

 In Proposition of Law XIII, appellant contends that the 

trial court permitted inadmissible, prejudicial expert 

testimony during cross-examination. This testimony was 

elicited by the prosecution from appellant's expert witness, 

Dr. Robert Forney, a pathologist called to testify regarding 

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

 During direct examination, Dr. Forney testified that based 

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

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

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

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

blood alcohol level of .14 percent could form specific intent 

or purpose. Defense counsel objected and the prosecutor 

rephrased the question several times, which prompted further 

objections by appellant. Dr. Forney responded as follows to 

the prosecutor's question whether he understood the defense of 

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

prevent the formation of intent, that may be considered as a 
mitigating circumstance by the Court." 

 When asked by the prosecutor, over defense objection, 

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

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

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

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

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

testify, the court replied: 

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

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

We will give it such weight as is appropriate. 

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

of law." 

 Dr. Forney further testified that while appellant's blood 

alcohol level of .14 percent would affect his perception and 

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

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

counsel's motion to strike this statement was overruled. 

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

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

regard did not constitute a legal determination but was merely 

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

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

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

proposition of law should be overruled. 

 Ineffective Assistance of Counsel 

 In Proposition of Law XVI, appellant claims he was 

deprived of the effective assistance of counsel throughout his 

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

he has failed to meet his burden of establishing ineffective 

assistance under the standards set forth in Strickland v. 

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

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

 II 

 PENALTY PHASE 

 Appropriateness of Death Penalty 

 In his second proposition of law, appellant submits that 

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

Appellant argues that he presented substantial mitigating 

evidence, that he was found guilty of only one aggravated 

circumstance, and that the kidnapping was merely incidental to 

the aggravated murder. Appellant further argues that the court 

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

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

 First, with respect to appellant's assertion that the 

kidnapping of Mary Jane Johnson was merely incidental to the 

aggravated murder, this argument was explored and rejected 

under Proposition of Law I. 

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

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

thoroughly explored various possible mitigating factors 

including the history, character and background of appellant. 

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

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

service record, adjustment to his incarceration, and his 

support and assistance of his family members. The court also 

considered appellant's remorse. Nevertheless, the three-judge 
panel found that the aggravating circumstance outweighed the 

mitigating factors beyond a reasonable doubt. Similar to the 

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

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

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

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

 The court of appeals' discussion of the mitigating factors 

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

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

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

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

independent weighing of the aggravating circumstance versus the 

mitigating factors and proportionality review will cure any 

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

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

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

 For these reasons, we reject Proposition of Law II. 

 Errors in Sentencing Opinion and Penalty Phase 

 In his third proposition of law, appellant contends that 

errors within the sentencing opinion of the trial court 

necessitate vacation of his capital sentence. 

 Appellant asserts that the trial court made findings that 

were inconsistent with the evidence presented at trial. 

Specifically, appellant contends there was no evidence of when 

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

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

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

physical and testimonial evidence was more than sufficient for 

the court to infer that appellant shot the victim as she 

escaped and ran down the school hallway. 

 Appellant next cites a misrepresentation of the record in 

the sentencing opinion's statement that the victim had 

indicated to appellant that she did not want to reestablish 

their relationship. The mistake was certainly harmless. 

Appellant then cites seven other instances in which the 

sentencing opinion allegedly misrepresented the record by 

failing to include evidence that could have been mitigating. 

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

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

circumstances of the offenses with the mitigating factors 

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

believe or consider relevant all evidence presented to it. 

Furthermore, the panel was not required to enumerate every 

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

 While appellant asserts that, based on the language of the 

sentencing opinion, the court might not have found him guilty 

of the aggravating circumstance until the penalty phase, the 

filed verdicts show that the finding of guilt was properly made 

during the guilt phase. Likewise, appellant's argument 

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

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

single aggravating circumstance, is similar to the argument 

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

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

 Appellant also claims error in the sentencing opinion 

where the trial court found "that the Defendant has not 

established by a preponderance of the evidence sufficient 
mitigating factors set forth in R.C. 2929.04(B) which prevent 

the aggravating circumstances from outweighing the mitigating 

factors beyond a reasonable doubt." Although appellant asserts 

that the trial court erroneously switched the burden of proof 

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

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

 In his fifth proposition of law, appellant argues that 

three egregious errors during the penalty phase compel vacation 

of his death sentence. 

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

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

I am not clear on a distinction between mitigating factors and 

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

by defense counsel that is inconsistent with State v. Holloway 

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

syllabus: 

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

that mitigating factors are factors that while they do not 

justify or excuse the crime, nevertheless in fairness and mercy 

may be considered by you as extenuating or reducing degree of 

the defendant's blame for punishment." 

 Appellant points out that counsel for the state also 

injected culpability into a definition of mitigation, and that 

this combination of errors mandates vacation of the death 

sentence. 

 While it is clear that mitigating factors "are not 

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

supra, paragraph one of the syllabus, the sentencing opinion 

indicates that the trial court considered all the proffered 

mitigating factors, not merely those related to appellant's 

culpability. 

 Appellant also contends under this proposition that the 

trial court erred in ordering a guilt-phase transcript. 

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

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

sentencing court may only consider the "relevant evidence 

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

permit the court to consider irrelevant and prejudicial 

evidence contained therein. 

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

and the admission of the transcript by the panel did not 

deprive appellant of a fair trial since the court may consider 

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

that the trial panel considered only the relevant, material and 

competent evidence in arriving at its judgment unless it 

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

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

appear that the trial panel considered irrelevant, immaterial 

or incompetent evidence, this argument is rejected. 

 Appellant also asserts that the trial court erred in 

allowing, over defense counsel's objection, improper rebuttal 

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

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

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

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

 III 

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

independently review the death penalty sentence for 

appropriateness and proportionality. 

 The evidence establishes beyond a reasonable doubt the 

aggravating circumstance that appellant killed Johnson during 

the commission of a kidnapping. 

 The nature and circumstances of the offense provide few 

mitigating features. Appellant and Johnson had an 

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

time of the offenses. Although appellant went on a drinking 

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

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

make himself understood on the morning of the shooting. The 

facts that appellant attempted to execute a will, emptied his 

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

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

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

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

the night before the shooting appellant stalked Johnson all 

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

passion. Appellant held his victim at bay for approximately 

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

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

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

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

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

dumpsters. Help for Johnson did not arrive until sometime 

later. 

 Appellant's history, character, and background do provide 

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

alcoholic. Evidence established that appellant, too, was 

alcohol dependent. His mother was possessive and demanding. 

However, appellant had several siblings, all of whom graduated 

from college. Appellant served eight years in the armed 

service and received an honorable discharge. Coworkers and 

family members found appellant helpful and likable. 

 With respect to the statutory mitigating factors, 

appellant's lack of a significant criminal history is entitled 

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

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

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

appellant's voluntary intoxication may be given some weight, 

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

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

intoxication is not accorded much weight, given the expert and 

eyewitness testimony of appellant's level of intoxication and 

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

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

personality disorder that appellant suffers from, as testified 

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

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

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

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

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

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

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

N.E.2d 921, 928. Appellant's expression of remorse during his 
unsworn statement should be accorded little if any weight given 

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

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

appellant's work record, service record, adjustment to 

incarceration, and assistance to his family members are 

entitled to some weight in mitigation. While appellant was 

under stress due to the breakup of his relationship with the 

victim, it cannot be characterized as coercion or strong 

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

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

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

mitigating factors appear relevant. 

 Upon weighing the aggravating circumstance against the 

mitigating factors, the aggravating circumstance outweighs the 

mitigating factors beyond a reasonable doubt. Appellant 

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

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

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

restrain her of her liberty. Appellant held Johnson against 

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

appellant had the opportunity to release Johnson when Baker 

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

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

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

lasted approximately thirty minutes. Thus, the evidence proved 

a calculated, prolonged and unprovoked kidnapping in the course 

of which appellant purposely murdered Johnson. 

 The death penalty imposed in this case is both appropriate 

and proportionate when compared with similar capital cases. 

While the circumstances of the instant murder do not contain 

the brutality present in felony murder cases involving 

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

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

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

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

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

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

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

N.E.2d 124. 

 Accordingly, the judgment of the court of appeals is 

affirmed. 

 Judgment affirmed. 

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

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

Footnote: 

1 At trial, defense counsel conceded that appellant had 

killed Johnson. 

 APPENDIX 

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

introduce sufficient evidence to prove a capital specification 

of kidnapping beyond a reasonable doubt, a defendant is 

deprived of his right to due process of law under the 

Fourteenth Amendment to the United States Constitution, and 

Section 16, Article I of the Ohio Constitution. 

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

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

the Fifth, Eighth and Fourteenth Amendments to the United 
States Constitution and Sections 9 and 16, Article I of the 

Ohio Constitution. 

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

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

vacation of the death sentence. 

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

to assess a defendant's knowledge of the relevant circumstances 

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

has failed to insure an intelligent, voluntary and knowing 

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

Fourteenth Amendments of the United States Constitution and 

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

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

penalty phase of a death penalty proceeding will be cause to 

vacate the sentence of death. 

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

allows the admission of improper and prejudicial hearsay 

testimony, a defendant's conviction is unconstitutional and 

must be reversed. 

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

character evidence in the guilt-innocence phase of a capital 

case, and victim impact evidence in the penalty phase is 

contrary to Ohio law and denies a capital defendant a fair 

determination of his guilt and sentence. 

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

introduce sufficient evidence to prove beyond a reasonable 

doubt, a conviction for kidnapping is unconstitutional and 

cannot stand. 

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

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

are not influenced by any erroneously admitted evidence denies 

capital defendants due process and equal protection. 

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

during the guilt/innocence phase of a capital case eradicates 

the reliability of the guilt determination. 

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

penalty phase of a death penalty proceeding, including 

prosecutorial misconduct, will be cause to vacate the sentence 

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

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

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

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

admissible unless they meet one of the recognized exceptions. 

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

inadmissible and prejudicial testimony during cross-examination 

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

unconstitutional and must be reversed. 

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

accused is required to be present at every stage of the 

proceedings unless he, personally, voluntarily absents himself. 

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

admits improper evidence in the guilt/innocence phase of a 

capital trial, the resulting conviction is unreliable and must 

be reversed. 

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

be deemed ineffective if it falls below an objective standard 

of reasonable representation and prejudice arises from 
counsel's performance. 

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

allows the state to conduct the examination of its own 

witnesses through the use of leading questions, a defendant is 

denied rights guaranteed by the Sixth and Fourteenth Amendments 

to the United States Constitution. 

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

allowed to cross-exam a defense witness concerning a prior 

inconsistent statement when such statement is posed without a 

good faith belief that such statement was actually made. 

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

Fourteenth Amendments to the United States Constitution, 

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

Revised Code Section 2929.05 guarantee a convicted capital 

defendant a fair and impartial review of his death sentence. 

The statutorily mandated proportionality process in Ohio is 

fatally flawed thereby denying appellant Simko the above rights. 

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

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

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

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

and Fourteenth Amendments to the United States Constitution and 

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

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

and Fourteenth Amendments to the United States Constitution and 

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

establish the requirements for a valid death penalty scheme. 

Ohio Revised Code, Section 2903.01, 2929.02, 2929.021, 

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

statutory provisions governing the imposition of the death 

penalty, do not meet the prescribed requirements and thus are 

unconstitutional, both on their face and as applied." 

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

circumstance, kidnapping, clearly does not outweigh the 

mitigating factors beyond a reasonable doubt. I say this for 

the following reasons: 

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

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

conduct whatsoever. Appellant's only criminal conviction was 

for a DWI some years ago. 

 (2) Appellant's history indicates a dysfuntional family 

background. 

 (3) Although appellant has a limited educational 

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

record of productive employment during most of his adult life 

and notably spent eight years in the United States Army, 

receving an honorable discharge after his service; 

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

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

the testimony credited by the three-judge panel pointed toward 

violent activity in his past. The trial panel gave no 

credibility to the testimony of James Simko as to previous 

incidents of domestic violence. 

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

twenty or thirty year actual incarceration. 

 (6) Appellant has been a model prisoner. 

 (7) While it is true that the murder itself was brutal in 
character, it has to be noted that appellant has a history of 

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

according to expret testimony that his blood alcohol level at 

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

 (8) Appellant was diagnosed as having avoidant personality 

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

disease or defect such that it would be a mitigating factor 

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

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

 (9) Appellant has shown remorse for his actions. 

 Furthermore, it would appear that the trial panel may well 

have treated the nature and circumstances of the crime as a 

second aggravating circumstance insofar as they made detailed 

findings of fact concerning the circumstances of the crime and 

used the plural several times in alluding to aggravating 

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

consider the nature and circumstances of the offense as a 

mitigating factor, but not as an additional statutory 

aggravating circumstance. 

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

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

limits the aggravating circumstances which may be considered in 

imposing the death penalty to those specifically enumerated in 

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

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

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

 In State v. Davis, the defendant was convicted of 

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

penalty specification count of prior purposeful killing was 

included in the indictment. The court of appeals upheld the 

death sentence imposed upon the defendant. This court reversed 

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

the trial court for resentencing because the three-judge panel 

improperly weighed nonstatutory aggravating circumstances 

against the mitigating factors. The panel specified what it 

considered to be the mitigating factors and aggravating 

circumstances. Its opinion read: 

 "We find the following aggravated [sic] circumstances have 

been proved beyond a reasonable doubt: 

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

used to kill the victim in this case. 

 "2) The manner by which the Defendant purchased the 

ammunition for the gun. 

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

and finally placing the gun almost against her skull and 

discharging the weapon. 

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

multiple stab wounds. 

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

muder of his wife. 

 "After considering the mitigating factors and the 

aggravating circumstances proved beyond a reasonable doubt, we 

unanimously find by proof beyond a reasonable doubt that the 

aggravating circumstances the Defendant was found guilty of, 

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

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

 Of the five "aggravating circumstances" listed in the 
opinion, only the aggravating circumstance described in R.C. 

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

response, this court stated "the balance of the five 

circumstances listed by the three-judge panel was outside the 

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

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

 The three-judge panel in this case apparently undertook 

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

permissible for a court to consider nonstatutory aggravating 

circumstances if there are no mitigating factors present as 

there is no danger that nonstatutory circumstances will 

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

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

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

are numerous mitigating factors present in this case and 

therefore the nature and circumstances of the offense should 

not have been considered as an aggravating circumstance. See, 

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

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

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

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

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

in this case is disproportionate and inappropriate given the 

previous cases decided by this court. 

 For all these reasons, I would affirm the conviction but 

reverse the death sentence and remand the matter to the trial 

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

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

FOOTNOTE: 

 

 2 The opinion of the trial panel read as follows: 

 "REASONS WHY THE AGGRAVATING CIRCUMSTANCES THE OFFENDER 

WAS FOUND GUILTY OF COMMITTING WERE SUFFICIENT TO OUTWEIGH THE 

MITIGATING FACTORS. 

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

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

Count III of the indictment. 

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

restraint of liberty incident to the homocide. *** 

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

hollow point bullets four days before the shooting. 

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

School with a loaded 357 Magnum. 

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

elementary school, the key to enter the building. 

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

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

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

 "7. The circumstance that Defendant had the opportunity 

and could have released her to safety on at least three 

different occasions. *** 

 "8. The circumstance that Defendant left Mary Jane Johnson 

bleeding to death by the dumpster; that Defendant sought no 

medical treatment for her, but decided to flee. 

 "9. Even with no prior criminal history and considering 

his character and background, the aggravating circumstances 

clearly outweigh the mitigating factors. 
 "*** 

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

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

criminal history. Balancing the mitigating factors enumerated 

above against the aggravating circumstances, we conclude that 

the aggravating circumstances outwigh the mitigating factors 

beyond a reasonable doubt." (Emphasis added.) 

 State v. Simko. 

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

that the aggravating circumstance in this case does not 

outweigh the mitigating factors. I write further because I 

would hold that the sentence of death is disproportionate, 

given the particular facts of this case. 

 The death penalty is special. That special nature is 

reflected in the types of crimes punishable by death and by 

this court's role in the death penalty analysis. 

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

The state of Ohio takes very seriously the awesome 

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

penalty is reserved for those committing what the state views 

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

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

kidnapping or rape. 

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

Unlike other criminal defendants, including non-death-penalty 

murderers, defendants eligible for the death penalty receive an 

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

is our mandated consideration of "whether the sentence is 

excessive or disproportionate to the penalty imposed in similar 

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

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

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

proportionate in a statewide sense. 

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

other than proportionality. Typically, the court locates 

previous cases with similar statutory aggravating circumstances 

where the death penalty has been imposed, and thus finds 

proportionality to the case at issue. However, murders with 

the same statutorily defined aggravating circumstance are not 

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

for example, the majority cites three cases in its 

proportionality review. 

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

the defendant lured the victim into meeting with him by posing 

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

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

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

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

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

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

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

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

he sat at the bar. 

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

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

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

At one point the victim was able to scrawl "HELP ME PLEASE" in 
lipstick on a piece of paper and stick it through a gap in the 

trunk seal. When the defendant learned that the police were 

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

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

and then stabbed her and slashed her throat with a butcher 

knife. 

 Thus, even though these cases share the same 

death-penalty-qualifying aggravating circumstance as the case 

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

completely on the crimes of others in determining whether the 

death penalty is proportionate in a given case demeans our 

responsibility to review each case individually. 

 In the present case, Simko technically did commit 

kidnapping and thus became eligible for the death penalty. But 

the death penalty is not for technicalities. The General 

Assembly recognized that when it mandated that this court 

employ a proportionality review. Our role is basically to 

determine whether the penalty of death is appropriate in a 

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

of justice. Our mandate was not prescribed with precision 

because the type of review involved is not truly capable of 

precise measurement. Yet we have been charged with making that 

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

from making it. 

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

is not one of those. 

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