1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0015P (6th Cir.)File Name: 00a0015p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________MICHAELJEFFREYJOHNSON,Petitioner-Appellant,v.RALPHCOYLE, Warden,Respondent-Appellee.;>1No. 97-4092Appeal from the United States District Courtfor the Northern District of Ohio at Akron.No. 96-00771—David D. Dowd, Jr., District Judge.Argued: February 5, 1999Decided and Filed: January 12, 2000Before: JONES, NELSON, and BOGGS, Circuit Judges._________________COUNSELARGUED:Luz V. Lopez-Ortiz, PUBLIC DEFENDER’SOFFICE, OHIO PUBLIC DEFENDER COMMISSION,Columbus, Ohio, for Appellant. Michael L. Collyer, OFFICEOF THE ATTORNEY GENERAL OF OHIO, Cleveland,Ohio, for Appellee.ON BRIEF:Luz V. Lopez-Ortiz, LindaE. Prucha, PUBLIC DEFENDER’S OFFICE, OHIO PUBLICDEFENDER COMMISSION, Columbus, Ohio, for2Johnson v. CoyleNo. 97-4092Appellant. Michael L. Collyer, OFFICE OF THEATTORNEY GENERAL OF OHIO, Cleveland, Ohio, forAppellee._________________OPINION_________________BOGGS, Circuit Judge. An Ohio state-court jury convictedMichael Johnson of two counts of aggravated murder,eachwith a capital specification, for the death of his sister, SusanBrunst. One capital specification alleged that Johnson killedBrunst with prior calculation and design; the other allegedthat he killed her in the course of a kidnapping or rape. Thejury convicted Johnson on both counts and recommended asentence of death. The state court of appeals affirmed theconviction and sentence.See State v. Johnson, 1992 WL328492 (Ohio App. Nov. 4, 1992) (unpublished).Johnson appealed to the Ohio Supreme Court, whichreversed his conviction and remanded the case for a new trial.See State v. Johnson, 643 N.E. 2d 1098 (Ohio 1994). TheOhio Supreme Court found that (1) Johnson’s previousFlorida conviction for second-degree murder was not aconviction for a specific intent crime and, therefore, cannot bean aggravating circumstance upon which a capitalspecification can be grounded,id.at 1103–04; (2) thetestimony of three of the four witnesses who testified thatBrunst told them about Johnson’s previous attempt to rapeBrunst was inadmissible hearsay, and admitting it was anabuse of discretion,id.at 1104–05; (3) certain statements thatwere admitted into evidence constituted inadmissiblecharacter evidence,id.at 1105–06; and (4) a graphic andcrude passage in an otherwise admissible letter from Johnsonto Brunst was unfairly prejudicial,id.at 1106.Johnson sought rehearing, arguing that the evidencepresented at trial was insufficient to support his convictionand that a retrial would thus violate his right against doublejeopardy. The Ohio Supreme Court denied rehearing.No. 97-4092Johnson v. Coyle153The magistrate judge asserted that Johnson “is no longer facing adeath penalty” because his state case was not affirmed on appeal, citingOhio Revised Code § 2929.06. J.A. at 21. The district court correctlyheld that such a conclusion is not based on a federal constitutional issueand, therefore, such a claim is not cognizable in Johnson’s habeasproceeding.Id. at 71. Whether § 2929.06 prohibits the death penalty inJohnson’s case is a matter for the Ohio courts, and we make no ruling onthat point. We note the issue to bring it to the parties’ attention for theretrial.specification at Johnson’s retrial. This determination isproperly made by the Ohio courts, and the parties are free toargue the issue in the forthcoming state proceedings.IIISufficient evidence was presented at trial for a rational jury,viewing all the evidence most favorably for the prosecution,to find beyond a reasonable doubt that (1) Johnson killedBrunst, (2) Johnson killed Brunst with prior calculation anddesign, (3) Johnson killed Brunst while raping or attemptingto rape Brunst, and (4) assuming that Ohio courts wouldinterpret the “restraint of liberty” term of the Ohio kidnappingstatute to be satisfied on the facts presented at trial, Johnsonkilled Brunst while kidnapping or attempting to kidnap her.There is no federal constitutional bar to the state’s retryingJohnson for murder or aggravated murder, nor for prosecutinga capital specification predicated on rape and/or kidnapping.3The state may not prosecute a capital specification based onJohnson’s 1984 Florida conviction. Accordingly, we denyJohnson’s habeas petition.14Johnson v. CoyleNo. 97-40922To convict a defendant of both rape and kidnapping, Ohio lawrequires the prosecution to prove “separate animus” for the two crimes,seeOhio Rev. Code Ann. § 2941.25, which has not been shown on theevidence in the record. To support the capital specification, it must bepossible for a rational jury to find beyond a reasonable doubt, on theevidence viewed most favorably for the prosecution, that Johnson rapedorkidnapped Brunst. There was no need for the state to prove separateanimus because (1) either is sufficient in itself and (2) Johnson was notconvicted of either rape or kidnapping.No evidence was presented that Brunst was killed,terrorized, or physically harmed anywhere other than at herapartment. There is no way to know if Brunst was killed inher apartment or removed alive and killed elsewhere.Although a rational jury might find the elements of murderand/or aggravated murder without evidence of the exactlocation of the killing, the same cannot be said forkidnapping, which requires that Brunst’s apartment be ruledout as the scene of the murder. There being no evidence forthe “purpose” element of kidnapping under either subsection(2) or (3) of Ohio Rev. Code Ann. § 2905.01(A), no rationaljury could find beyond reasonable doubt that Johnsoncommitted kidnapping under those subsections.Therefore, to predicate a capital specification onkidnapping, the state must prove beyond a reasonable doubtthat Johnson restrained Brunst’s liberty in order to engage insexual activity, under subsection (4) of of Ohio Rev. CodeAnn. § 2905.01(A). We held above that a rational jury couldfind beyond a reasonable doubt that Johnson raped Brunst. Atleast one Ohio court has held that the physical restraintincident to rape may constitute the restraint of liberty requiredfor kidnapping.See State v. Hatton, 1999 WL 253450, *23(Ohio Ct. App. April 19, 1999) (unpublished) (holding thatthe defendant’s act of forcing himself on top of the victimconstituted a restraint of liberty sufficient to support akidnapping conviction).2We are reluctant to consider this thesettled law of Ohio; however, that is a matter for the Ohiocourts. We hold that if the Ohio courts allow a conviction forkidnapping on these facts, there is no federal constitutionalbar preventing the state from arguing the kidnapping capitalNo. 97-4092Johnson v. Coyle3Johnson filed a habeas corpus petition in federal district court,again arguing that he may not be retried. The magistratejudge recommended denial of the petition. The district courtconsidered Johnson’s objections and denied the writ. Thedistrict court issued a certificate of probable cause, limited toJohnson’s sufficiency-of-the-evidence claim involving thekidnapping and rape charges. We affirm the district court’sdenial of Johnson’s petition.IA. The 1984 Florida MurderIn 1984, Johnson pled guilty to murder in connection withthe death of a Florida woman, Denise Hutchinson. Therewere numerous similarities in the circumstances of the twokillings. At trial in the case before us, the prosecution arguedthat the alleged pattern made it more likely that Johnsonkilled Brunst.Johnson lived with Kathy Keller in Pierson, Florida, from1980 to 1984. Hutchinson was Keller’s friend, whomJohnson “treated as a sister” although he was sexuallyattracted to her. After a fight between Johnson and Keller,Keller moved in with Hutchinson. Johnson felt thatHutchinson was responsible for his break-up with Keller. Hefought with Hutchinson, who forbade him to come to hermobile home. On December 29, 1984, Florida police foundHutchinson’s body, nude from the chest down, lying in herbed. Her face had been struck repeatedly with an iron skillet.Hutchinson was very drunk when she was killed. She hadsemen in her vagina, but the quantity recovered wasinsufficient to determine the blood type of the donor. Johnsoneventually confessed to the murder. He was steadilyemployed, but quit going to work immediately after themurder. Johnson pled guilty to murder in the second degreeand was imprisoned in Florida. While in prison, he wrote aletter to his sister, Susan Brunst, referring to her as “a perfect10” and stating that he found her attractive.State v. Johnson,643 N.E. 2d 1098, 1106 (Ohio 1994).4Johnson v. CoyleNo. 97-4092B. The Charged ConductJohnson was released from prison in 1989 and moved backto Akron, Ohio, where he lived with his mother and youngerbrother, Thomas Johnson. Johnson’s sister, Susan Brunst,also lived in Akron. She was involved with a married man,Ron Cook.Brunst told several friends that on the Sunday afterThanksgiving, 1989, Johnson tried to rape her in herapartment. The friends testified that according to Brunst,Johnson told her he wanted to “lick her pussy,” held a knifeto her throat, pulled up her shirt, touched her breasts, andattempted to carry her to the bedroom, but that she was ableto talk him out of raping her. After this incident, Brunst toldher daughter, Cynthia, not to be alone with Johnson, andBrunst and Cook ceased socializing with him. Johnson lateradmitted to police that on that Sunday he heard Brunst talkingon the telephone to a woman he was interested in, telling herthat Johnson had been in prison and that he was kinky.Johnson said that he fought with Brunst and wanted to scareher, but denied that he tried to rape her.Johnson was treated briefly at Fallsview PsychiatricHospital in February 1990. Johnson’s family apparentlyattempted to have him committed at that time, but the courtreleased him after three days. Johnson was angry at thefamily, particularly his brother and Brunst, for trying tocommit him, and told his brother that nobody would get awaywith “putting him away like that.”A woman who lived with Johnson’s aunt, Donna Gray,testified that Johnson spent every weekend at Gray’s house inDiamond, Ohio, to drive his Jeep on trails there. On May 27,1990, Johnson took several relatives and friends with him andshowed them a trail off of Jones Road, behind the post office,that he had discovered the day before. Brunst’s body waseventually found near this trail. Johnson did not visit Graythe weekend that Brunst disappeared.No. 97-4092Johnson v. Coyle13evidence. Four witnesses testified that Brunst told them ofthe Thanksgiving Sunday, 1989, rape attempt. The OhioSupreme Court ruled that the testimony of three of thesewitnesses was erroneously-admitted hearsay, see Johnson,643 N.E. 2d at 1104–05, but held that Cook’s testimony fellwithin the “excited utterance” exception to the hearsayexclusion,id. at 1104. However, “‘where the evidenceoffered by the State and admitted by the trial court—whethererroneously or not—would have been sufficient to sustain ajury verdict, the Double Jeopardy Clause does not precluderetrial.’”United States v. Quinn, 901 F.2d 522, 530 (6th Cir.1990) (quotingLockhart v. Nelson, 488 U.S. 33, 34 (1988)).Accordingly, for the purposes of this appeal we consider theevidence from all four witnesses. Brunst’s body was foundnude, and the prosecution also presented evidence thatJohnson wrote to Brunst from prison expressing his attractionto her.Viewing all of the evidence presented at trial in the lightmost favorable to the prosecution, a rational jury could havefound beyond a reasonable doubt that Johnson killed Brunstduring or immediately after raping or attempting to rape her.Allowing the state to argue a capital specification based onrape will not subject Johnson to double jeopardy.In Ohio, kidnapping is defined as the forceful removal orrestraint of another in order to to hold the victim for ransomor as a hostage or shield, to facilitate the commission of afelony, to terrorize or inflict serious physical harm on thevictim or another, or to engage in sexual activity against thevictim’s will. There is no evidence that Johnson soughtransom for Brunst or used her as a shield or hostage.Therefore, no rational jury could have found that Johnsoncommitted kidnapping under subsection (1) of Ohio Rev.Code Ann. § 2905.01(A). However, he may have removedher from her apartment to facilitate killing her or to terrorizeor harm her, or he may have restrained her liberty to engagein sexual relations against her will.12Johnson v. CoyleNo. 97-4092the place where he is found or restrain him of his liberty,for any of the following purposes:(1) To hold for ransom, or as a shield or hostage;(2) To facilitate the commission of any felony or flightthereafter;(3) To terrorize, or to inflict serious physical harm onthe victim or another;(4) To engage in sexual activity, as defined in section2907.01 of the Revised Code, with the victim against hiswill.Ohio Rev. Code Ann. § 2905.01(A) (“Kidnapping”).(A) “Sexual conduct” means vaginal intercoursebetween a male and female; anal intercourse, fellatio, andcunnilingus between persons regardless of sex; and,without privilege to do so, the insertion, however slight,of any part of the body or any instrument, apparatus, orother object into the vaginal or anal cavity of another.Penetration, however slight, is sufficient to completevaginal or anal intercourse.(B) “Sexual contact” means any touching of anerogenous zone of another, including without limitationthe thigh, genitals, buttock, pubic region, or, if the personis a female, a breast, for the purpose of sexually arousingor gratifying either person.(C) “Sexual activity” means sexual conduct or sexualcontact, or both.Ohio Rev. Code Ann. § 2907.01 (in relevant part).The prosecution presented evidence that Johnson had beenconvicted of murdering Hutchinson in 1984, that her bodywas found with semen in the vagina, and that she would nothave consented to sexual relations with Johnson,see Johnson,643 N.E. 2d at 1105. Johnson viewed both women as sisters,both had angered him, and in both cases he appears to havereacted with sexual violence toward the source of his angerand rejection. The similarity of the two cases suggests apattern, which a rational jury might have inferred from theNo. 97-4092Johnson v. Coyle5On Friday, June 1, 1990, Brunst and Cook argued at herapartment. Brunst told Cook that she planned to spend theweekend drunk. She drank and smoked marijuana with afriend that evening, then went to the East Akron Eagles Club,where she had two more drinks and left for home atapproximately 11:00 p.m. Johnson entered the Eagles Clubwith James Westberg about fifteen minutes after Brunst left.The barmaid told Johnson that he had just missed his sisterand that she was drunk. Later, Johnson went to the pay phoneand, on his return, stated that he got no answer at Brunst’shouse, but that he was sure she made it home safely andwould check on her the next morning. Cook, who was out oftown, also tried to call Brunst several times that night. Atmidnight, Brunst answered. After a brief argument, Cookhung up, but immediately called again. Brunst told Cook thatshe was alone, that she was going to be sick, and that she hadto go. Cook called a third time “almost immediately,” but gotno answer.Johnson and Westberg left the Eagles Club in Johnson’s redJeep at 1:00 a.m., when the club closed. Johnson said hewanted to check on his sister, so he drove to her apartment.Johnson went into Brunst’s apartment with a Budweiser beercan. While Johnson was inside, Westberg got out of the Jeepand vomited for about ten minutes. Johnson came backoutside without his beer, and the two drove to the apartmentcomplex where they both lived. Johnson told Westberg thatBrunst was drunk and vomiting, naked, with thedoor wideopen, and referred to her repeatedly as a “stupid bitch.” Whenhe pulled up at their apartment building, Johnson did not stopthe engine. Johnson was still in the Jeep with the enginerunning when Westberg entered his apartment. At 4:30 thatmorning, another neighbor, who was returning home, sawJohnson leaving the apartment complex in his red Jeep. OnSaturday, June 2, Johnson did not show up for work. Acoworker testified that before that day, Johnson had nevermissed work.Cook went to Brunst’s apartment at 9:00 a.m. on Saturday,June 2, 1990, and found the door open. He found an address6Johnson v. CoyleNo. 97-4092book and a small jewelry box outside the door, but there wasno sign of a struggle. Cook testified that some of the clotheshe saw Brunst wearing the day before were there, but that hefound only one of the pink socks that she had been wearing.Cook found a Budweiser can in the bedroom. Cook handledmany items, cleaned up the vomit around the toilet, andgenerally spoiled the apartment as a crime scene. An Akrondetective interviewed Cook at the apartment that evening.Akron police interviewed Johnson several times afterBrunst was reported missing. On June 3, 1990, Johnsonadmitted that he had left his beer can at Brunst’s apartment.On June 5, Johnson spoke of Brunst in the past tense and toldpolice that although he was not guilty of the murder, he mightas well confess and get it over with because his family wastrying to slander him. He said that he had learned from hismother and his aunt Donna that Brunst’s body had beenmoved twice; that Brunst had never been in his Jeep; that hekilled Brunst for sex, drugs, and money; and that while hewas in prison in Florida he discussed committing the perfectcrime with Ted Bundy. On June 8, Johnson maintained eyecontact with the police officer who was questioning him untilhe was asked about Brunst. During June 1990, Johnson soldhis car, told his landlady that he was moving out, and refusedto help his family look for Brunst.On June 27, 1990, a Portage County deputy sheriff foundwhat later proved to be Brunst’s nude body, badlydecomposed, near Jones Road in Diamond, Ohio. The deputycoroner concluded that “homicidal violence” was involved.Near the body, police found a pink sock matching the onefound at Brunst’s apartment, a pair of panties of the kindBrunst wore, and a piece of carpet torn from Johnson’s truck.In an attempt to identify the body, Portage County deputysheriffs interviewed Johnson, who happened to be the firstrelative they were able to contact. Johnson told the deputiesthat they might as well charge him because everyone thoughtthat he killed Brunst.No. 97-4092Johnson v. Coyle11The Ohio Supreme Court held that purposeful killing is notan element of the Florida second-degree murder statute and,consequently, that Johnson’s “1984 Florida conviction ofsecond-degree murder was insufficient to prove the R.C.2929.04(A)(5) aggravating circumstance.”See State v.Johnson, 643 N.E. 2d 1098, 1103–04 (Ohio, 1994).“Whereas an appellate court on habeas review decides federallaw questions de novo . . . , the federal reviewing court isgenerally bound by state court interpretations of state law.”Caldwell v. Russell, 181 F.3d 731, 735-36, (6th Cir. 1999)(citingMarshall v. Lonberger, 459 U.S. 422, 431 (1983), andEstelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Accordingly,we defer to the Ohio Supreme Court and hold that there wasinsufficient evidence to prove the specific intent capitalspecification.D. Sufficiency of the Evidence re: Rape/KidnappingCapital SpecificationAgain, under Ohio law, “[i]mposition of the death penaltyfor aggravated murder is precluded unless one or more of thefollowing is specified in the indictment or count in theindictment pursuant to section 2941.14 of the Revised Codeand proved beyond a reasonable doubt:”. . . .(7) The offense was committed while the offender wascommitting, attempting to commit, or fleeingimmediately after committing or attempting to commitkidnapping, rape, aggravated arson, aggravated robbery,or aggravated burglary, and either the offender was theprincipal offender in the commission of the aggravatedmurder or, if not the principal offender, committed theaggravated murder with prior calculation and design.Ohio Rev. Code Ann. § 2929.04(A) (in relevant part).No person, by force, threat, or deception, or, in the caseof a victim under the age of thirteen or mentallyincompetent, by any means, shall remove another from10Johnson v. CoyleNo. 97-4092C. Sufficiency of the Evidence re: Specific Intent CapitalSpecificationUnder Ohio law, “[i]mposition of the death penalty foraggravated murder is precluded unless one or more of thefollowing is specified in the indictment or count in theindictment pursuant to section 2941.14 of the Revised Codeand proved beyond a reasonable doubt:”. . . .(5) Prior to the offense at bar, the offender wasconvicted of an offense an essential element of whichwas the purposeful killing of or attempt to kill another, orthe offense at bar was part of a course of conductinvolving the purposeful killing of or attempt to kill twoor more persons by the offender.Ohio Rev. Code Ann. § 2929.04(A) (in relevant part).A person acts purposely when it is his specificintention to cause a certain result, or, when the gist of theoffense is a prohibition against conduct of a certainnature, regardless of what the offender intends toaccomplish thereby, it is his specific intention to engagein conduct of that nature.Ohio Rev. Code Ann. § 2901.22(A).There is no evidence that Johnson killed or attempted to killmore than one person in the case now before us. The statuteunder which he was previously convicted in Florida states:The unlawful killing of a human being, whenperpetrated by any act imminently dangerous to anotherand evincing a depraved mind regardless of human life,although without any premeditated design to effect thedeath of any particular individual, is murder in thesecond degree . . . .Fla. Stat. Ann. § 782.04(2) (in relevant part).No. 97-4092Johnson v. Coyle7On June 29, 1990, Akron detectives again interviewedJohnson. The first thing Johnson said to the officers was “I’mthe killer,” and he dared them to arrest him. Johnson gave theofficers several accounts of the murder, saying he bludgeonedBrunst with a tire iron, then that he stabbed her, and finallythat he shot her, referring to Brunst throughout as a “bitch”and a “whore.” None of the accounts of the murder itselfwere plausible in light of the lack of evidence of traumaticinjury to the recovered body, although in each case Johnsonsaid that he dumped the body behind the post office inDiamond. On June 30, 1990, Akron police officers arrestedJohnson. At his arraignment, Johnson stated that he was tiredof it all and just wanted to plead guilty.IIJohnson argues that there is insufficient evidence thatBrunst was a victim of homicide at all; that even if there isevidence that he killed Brunst, there is insufficient evidencethat the killing was a result of prior calculation and design;that there is insufficient evidence that Brunst’s death wasconnected with rape; and that there is insufficient evidencethat Brunst’s death was connected with kidnapping. Althoughthe Ohio Supreme Court found reversible error in Johnson’strial, and even though that court several times referred to theevidence as “weak” or as “not overwhelming,” it stoppedshort of holding that the evidence was insufficient to supporta conviction.See State v. Johnson, 643 N.E. 2d 1098 (Ohio1994).When a defendant challenges the sufficiency of theevidence to support a conviction, we inquire “whether afterviewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt.”Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (enbanc);Jackson v. Virginia, 443 U.S. 307, 319 (1979).8Johnson v. CoyleNo. 97-4092A. Sufficiency of the Evidence re: Murder“No person shall purposely cause the death of another . . . .”Ohio Rev. Code Ann. § 2903.02 (“Murder”). Viewing theevidence most favorably to the prosecution, there is no doubtthat a rational jury could have found that Johnson killedBrunst. Johnson is the last person known to have seen Brunstalive. He was angry with her just after he saw her. He sat inhis running vehicle rather than enter his apartment when hedrove home. A neighbor saw him leaving home at 4:30 a.m.the morning Brunst disappeared. Brunst’s nude body wasfound near an off-road trail Johnson had found days beforeBrunst disappeared. A piece of carpet from Johnson’s Jeepwas found near the body. Johnson, who had a perfect workattendance record, did not show up for work the morning afterBrunst disappeared, similar to his behavior after theHutchinson murder. Johnson did not visit his aunt inDiamond that weekend, as he had done every weekend for ayear. Johnson sold the vehicle that the piece of carpet wastaken from. Johnson told his landlady he was going to moveout and asked to have his security deposit returned. He beganto behave erratically and suspiciously in general. Heconfessed to the murder several times. He referred to hissister in the past tense before she was known to be dead. Hesustained eye contact with detectives until they asked aboutBrunst. Although circumstantial, this evidence is substantial.“Circumstantial evidence alone is sufficient to support aconviction, and ‘[i]t is not necessary for the evidence toexclude every reasonable hypothesis except that of guilt.’”United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999)(quotingUnited States v. Beddow, 957 F.2d 1330, 1334 (6thCir. 1992)). The evidence presented against Johnson iscertainly sufficient for a rational jury to find beyond areasonable doubt that he killed Brunst.B. Sufficiency of the Evidence re: Aggravated Murder“No person shall purposely, and with prior calculation anddesign, cause the death of another . . . .” Ohio Rev. CodeAnn. § 2903.01 (“Aggravated murder; specific intent to causeNo. 97-4092Johnson v. Coyle91Causing the death of another “while committing or attempting tocommit, or while fleeing immediately after committing or attempting tocommit, kidnapping[ or] rape,” which was alleged in Johnson’sindictment, also constitutes aggravated murder. Ohio Rev. Code Ann.§ 2903.01(B). Because we hold that a rational jury could have foundprior calculation and design, which is sufficient to support a convictionfor aggravated murder, we need not analyze the rape and kidnappingallegations here.See infraat 11-15, for our analysis of these allegationsas a capital specification.death”).1We held above that a rational jury could, on theevidence in the record, find beyond a reasonable doubt thatJohnson killed Brunst. Unless that jury were to find thatJohnson killed Brunst on his first visit, while Westberg waswaiting outside, it must necessarily find that he returned to doit. While it is possible that he could have returned with puremotives and, once he was there, killed Brunst in a moment ofpassion, (1) this does not seem likely, and (2) even if it ispossible, a rational jury might find, on the evidence presented,that he returned later to kill her after calculating and forminga plan.Johnson was mad at Brunst when he and Westberg left herapartment at approximately 1:30 a.m. He displayed noinjuries, and there was no sign of a struggle at Brunst’sapartment. These facts suggest that there was no “triggeringevent” to ignite Johnson’s passions after he returned. IfBrunst was alive when Johnson left her apartment atapproximately 1:30 a.m., and he killed her later, it was mostlikely with “prior calculation and design.”On the evidence presented at trial, a reasonable jury couldbelieve that Brunst was alive when Johnson left at 1:30 a.m.,and that he returned intending to kill her. Therefore, theevidence in the record, viewed most favorably to theprosecution, could lead a rational jury to conclude that,beyond a reasonable doubt, Johnson killed Brunst “with priorcalculation and design.” There was sufficient evidence toconvict him of aggravated murder.