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IN THE SUPREME COURT OF OHIO
STATE OF OHIO
Appellee,
vs.
SHAWN KELLEY
Appellant.
SUPREME COURT CASENO. 08-0946
ON APPEAL FROM THECOURT OF APPEALS,NINTH APPELLATEDISTRICT 06CA008967
LORAIN COUNTY COMMONPLEAS COURT CASE NO.05CR066940
MEMORANDUM OF APPELLEE INOPPOSITION TO JURISDICTION
DENNIS P. WILL #0038129Lorain County Prosecuting AttorneyLorain County, Ohio225 Court Street, 31d FloorElyria, Ohio 44035(440) 329-5389
TERRY H. GILBERT #0021948Attorney at Law1370 Ontario Street, Suite 600Cleveland, Ohio 44113(216) 241-1430
BY: BILLIE JO BELCHER #0072337Assistant Prosecuting Attorney
COUNSEL FOR APPELLEE
BY: ANDREA WHITAKER #0074461Attorney at Law
COUNSEL FOR APPELLANT
MEMAY 2 2 ?00f3
CLERK OF COURTSUPRERT OF OHIO
TABLE OF CONTENTS
Table of Contents ............................................................................................................................................ i
Table of Authorities ........................................................................................................................................ ii
Explanation of Why This Honorable Court Should Not Accept Jurisdiction ....................................................1
LAW & ARGUMENT ......................................................................................................................................1
RESPONSE TO APPELLANT'S FIRST PROPOSITION OF LAW
1. THE VERDICT IS SUPPORTED BY THE MANIFEST WEIGHTOF THE EVIDENCE ............................................................................................................1
RESPONSE TO APPELLANT'S SECOND PROPOSITION OF LAW
II. THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTIONFOR ACQUITTAL ...............................................................................................................4
RESPONSE TO APPELLANT'S THIRD PROPOSITION OF LAW
III. THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTIONTO SEVER ...........................................................................................................................6
RESPONSE TO APPELLANT'S FOURTH PROPOSITION OF LAW
IV. APPELLANT WAS NOT PREJUDICED BY THE INTRODUCTIONOF PHOTOGRAPHS ... ........................................................................................................9
RESPONSE TO APPELLANT'S FIFTH PROPOSITION OF LAW
V. APPELLANT'S SENTENCE IS LEGALLY PROPER .........................................................11
Conclusion ...................................................................................................................................................14
Proof of Service ............................................................................................................................................15
TABLE OF AUTHORITIES
CASES:
Collins v. Youngblood (1990), 497 U.S. 37 ...............................................................................................12
Drew v. United States (C.A.S.C. 1964), 118 U.S. App. D.C. 11, 331 F.2d 85, 88 ........................................9
Great Northern Railway Company v. Sunburst Oil & Refining Company (1932), 287 U.S. 358............ 12
Jackson v. Virginia (1979), 443 U.S. 307 .....................................................................................................4
Keller v. Flaherty (1991), 74 Ohio App.3d 788 .............................................................................................5
Lewis v. Ohio, 9th Dist. No. 22717, 2005 Ohio 2400 .....................................................................................3
Miller v. Florida (1987), 482 U.S. 423 .........................................................................................................13
Saffold v. Saffold (May 13, 1999), 10th Dist. No. 72937 ...............................................................................5
State v. Barnes, 94 Ohio St.3d 21, 27, 2002 Ohio 68 .............................................................................6, 11
State v. Bethel, 110 Ohio St.3d 416, 2006 Ohio 4853 ............................................................................6, 11
State v. Craig, 110 Ohio St.3d 306, 2006 Ohio 4571 ....................................................................................9
State v. Cruz, 9th Dist. No. 03CA0031-M, 2003 Ohio 4782 ...........................................................................1
State v. Drummond, 111 Ohio St.3d 14, 2006 Ohio 5084 ..........................................................................11
State v. Figueroa, 9th District No. 22208, 2005 Ohio 113 ..............................................................................3
State v. Fortson (August 2, 2001), 8th Dist. No. 78240 .................................................................................6
State v. Foster, 109 Ohio St,3d 1, 2006 Ohio 856 ....................................................................11, 12, 13, 14
State v. Franklin (1991), 62 Ohio St.3d 118 .............................................................................................7, 8
State v. Garner (1995), 74 Ohio St.3d 49 ....................................................................................................12
State v. Gilliam (Aug. 12,1998), 9th Dist. No. 97CA006757 .........................................................................3
State v. Glover, 8t^ Dist, No. 84413, 2005 Ohio 1984 ...................................................................................6
State v. Hairston, 9th Dist. No. 05CA008768, 2006 Ohio 4925 ...................................................................11
ii
State v. Harris, 1It Dist. No. C-040483, 2005 Ohio 6995 ..............................................................................6
State v. Harris, 1st Dist. No. C-050160, 2006 Ohio 716 ................................................................................6
State v. Haydon (Dec. 22, 1999), 9th Dist. No. 19094 ...................................................................................3
State v. Hunt, 9th Dist. No. 02CA008208, 2003 Ohio 4525 ...........................................................................1
State v. Jackson, 107 Ohio St.3d 53, 2005 Ohio 5981 ...............................................................................10
State v. Jenks (1991), 61 Ohio St.3d 259 .................................................................................................3, 4
State v. Jones, 91 Ohio St.3d 335, 2001 Ohio 57 .........................................................................................2
State v. Long (1978), 53 Ohio St.2d 91 ...................................................................................................6, 11
State v. Lott (1990), 51 Ohio St.3d 160 .................................................................................................7, 8, 9
State v. Moore, 3b Dist. No-1-05-51, 2006 Ohio 6860 ................................................................................14
State v. t)tten (1986), 33 Ohio App.3d 339 ...................................................................................................1
State v. Owens (1975), 51 Ohio App.2d 132 .................................................................................................6
State v. Prade (2000), 139 Ohio App.3d 676 ........................................................................................7, 8, 9
State v. Roberts (1980), 62 Ohio St.2d 170 ..................................................................................................9
State v. Roberts (September 17, 1997), 9th Dist. No. 96CA006462 ................................................:.............1
State v. Ross, 9th Dist. No. 23375, 2007 Ohio 1265 ....................................................................................14
State v. Saade, 8th Dist. Nos. 80705, 80706, 2002 Ohio 5564 ......................................................................6
State v. Slagle (1992), 65 Ohio St.3d 597 .....................................................................................................9
State v. Smith, 9th Dist. No. 20885, 2002 Ohio 3034 .....................................................................................1
State v. Stearns, 9th Dist. No. 04CA008515, 2005 Ohio 870 ......................................................................13
State v. Tayfor (1997), 78 Ohio St.3d 15 .......................................................................................................2
State v. Torres (1981), 66 Ohio St.2d 340 ....................................................................................................7
State v. Walls, 96 Ohio St.3d 437, 2002 Ohio 5059 ..............................................................................12, 13
iii
State v. Webb ( 1994), 70 Ohio St.3d 325 ....................................................................................................12
State v. Wickline (1996), 74 Ohio St.3d 369 .........................................................................................12, 13
State v. Wiles ( 1991), 59 Ohio St.3d 71 .....................:..................................................................................7
State v. Williams (1996), 74 Ohio St3d 569 .................................................................................................4
State v. Williams, 9th Dist, No. 02CA008112, 2003 Ohio 4639 .....................................................................1
United States v. McWaine (C.A. 5, 2002), 290 F.3d 269 ............................................................................13
Weaverv. Graham (1981), 450 U.S. 24 ......................................................................................................13
RULES & STATUTES:
Crim.R. 14 ..................................................................................................................................................6, 7
Crim.R. 29 ......................................................................................................................................................4
Crim. R. 52(B) . ................................................................................................................................................6
Crim.R. 8(A) ......................................... .......................................................................................................... 7
Evid.R. 404(B) ................. :.................................................................... ...................................................... 7, 8
R.C. 2901.04(A) ...........................................................................................................................................13
iv
EXPLANATION OF WHY THIS CASE DOES NOTINVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION
AND IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST
This Honorable Court should not accept jurisdiction for the following reasons:
1. The decision of the Ninth Judicial District Court of Appeals to affirm Appellant's convictionand sentence created no injustice because Appellant's arguments were addressed byexisting case law.
2. No issue or substantial consttutional question exists in Appellant's appeal to thisHonorable Court. The attempted appeal further presents no viable question of generalpublic interest that warrants the exercise of this Court's jurisdiction.
LAW & ARGUMENT
RESPONSE TO APPELLANT'S FIRST PROPOSITION OF LAW
1. THE VERDICT IS SUPPORTED BY THE MANIFEST WEIGHT OF THEEVIDENCE.
When a defendant maintains that a conviction is against the manifest weight of the
evidence, "an appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses and determine whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered." State v. Otten (1986), 33 Ohio App..
3d 339. This power is to be invoked only in extraordinary circumstances where the evidence
presented at trial weighs heavily in favor of a defendant. Id. A finding that a conviction is
supported by the weight of the evidence also includes a finding of sufficiency of the evidence.
State v. Smith, 9th Dist. No. 20885, 2002 Ohio 3034, quoting State v. Roberts (September 17,
1997), 9th Dist. No. 96CA006462. See also State v. Cruz, 9th Dist. No. 03CA0031-M, 2003 Ohio
4782; State v, Williams, 9th Dist. No. 02CA0081 12, 2003 Ohio 4639; State v. Hunt, 9th Dist. No.
02CA008208, 2003 Ohio 4525.
1
The phrase'prior calculation and design' *** indicates studied care in planning or analyzing
the means of the crime as well as a scheme encompassing the death of the victim." State v.
Jones, 91 Ohio St.3d 335, 2001 Ohio 57, quoting, State v. Taylor (1997), 78 Ohio St.3d 15. The
amount of care or time that the defendant spends in planning and analyzing the crime are not
critical factors in themselves; however, they "must amount to more than momentary deliberation."
Id. In short, there is no bright-line test for determining the existence of prior calculation and design.
Id.
In the case at bar, the jury verdict is supported by the manifest weight of the evidence.
Here, it was clear that Appellant acted with prior calculation and design. It is evident from the
record that Appellant murdered Kennedy Linkous by manually strangling her to death. Testimony
revealed that subsequent to Wilhelm leaving Baker's house, the door was closed. Testimony also
revealed that all doors to Baker's residence were locked. Testimony further reveals that the only
people in Baker's house were Baker, Lutz, Appellant, and Kennedy Linkous. When Baker and Lutz
awake due to Appellant's brutal attack, Kennedy Linkous is dead. Obviously, Baker and Lutz could
not have killed Kennedy Linkous. This only leaves Appellant as the murderer. Appellant wanted
the jury, and wants this Honorable Court, to believe that Robert King snuck over to Baker's house
and killed Kennedy Linkous. This is absurd. King did not even know where Kennedy Linkous was
or how to get there. Further, this does not explain why Baker and Lutz suddenly attacked
Appellant as he claims. Rather, the evidence and testimony presented supports the verdict and
Appellee's theory of the case; that Appellant murdered Kennedy Linkous, after forcing her to
engage in unwanted sexual activity or after stealing from her to conceal his actions.
After Kennedy Linkous' death, Appellant began plotting the deaths of any witness to the
offense. Appellant then decided that he must kill Baker and Lutz as they were potential witnesses
2
to his crime. Appellant dons a pair of Baker's work gloves, grabs a knife, and sneaks upstairs to
Baker's bedroom, where the unsuspecting Baker and Lutz sleep. Appellant attacked Baker first;
he was stronger and posed more of a dsk. Appellant stabbed Baker numerous times and slit his
throat. Appellant then turned his attentions toward Lutz. Lutz had escaped however; Appellant
was then forced to pursue her. When Appellant caught her he tried to smother her. When this was
unsuccessful, Appellant then opted to beat Lutz to death with his own hands and to try and snap
her neck. Baker and Lutz were only able to escape by joining forces and beating Appellant off of
them. Appellant's actions reflected ample time to form the requisite prior calculation and design
necessary to support Appellant's convictions.
Appellant next contends that because the witness testimony presented by Appellee was
unreliable that his conviction is not supported by the manifest weight of the evidence. However, as
this Honorable Court is well aware, a judgment is not against the manifest weight of the evidence
simply because conflicting evidence exists before the trier of fact. Lewis v. Ohio, 9th Dist. No.
22717, 2005 Ohio 2400, citing, State v. Haydon (Dec. 22, 1999), 9th Dist. No. 19094. Similarly,
upon presentation of conflicting testimony, "a conviction is not against the manifest weight of the
evidence simply because the [trier of fact] believed the prosecution testimony." State v. Figueroa,
9th District No. 22208, 2005 Ohio 113, quoting, State v. Gilliam (Aug. 12,1998), 9th Dist. No.
97CA006757. Moreover, a conviction may be upheld even when the evidence is susceptible to
some possible, plausible, or even reasonable theory of innocence. State v. Fiaueroa, 9th District
No. 22208, 2005 Ohio 1132, citing, State v. Jenks (1991), 61 Ohio St.3d 259.
In sum, the testimony presented at the trial was sufficient to establish each and every
element of the offenses and specifications of which Appellant was convicted. As such, Appellant's
first proposition of law must be denied.
3
RESPONSE TO SECOND PROPOSITION OF LAW
II. THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION FORACQUITTAL.
In evaluating a motion for acquittal pursuant to Criminal Rule 29, the "relevant inquiry 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. Williams (1996), 74 Ohio St.3d 569, quoting State v. Jenks (1991), 61 Ohio St.3d 259,
following Jackson v. Virginia (1979), 443 U.S. 307.
In the instant matter, Appellee proved the essential elements of the four (4) counts of
Attempted Aggravated Murder of which Appellant was convicted. Sufficient evidence existed to
support the trial court's finding that Appellant had acted with prior calculation and design when he
tried to kill Baker and Lutz. Evidence was presented to demonstrate that Appellant tried to murder
Baker and Lutz subsequent to the murder of Kennedy Linkous because they were witnesses to the
murder of Kennedy Linkous. Baker and Lutz both testified that Kennedy Linkous was alive when
they retired to bed for the evening. When they awoke, subsequent to Appellant's brutal attack,
Kennedy Linkous was dead and no one else had been in the house. It is clear that Appellant acted
with prior calculation and design, see previous discussion in Response to the First Proposition of
Law regarding prior calculation and design, when he tried to murder Baker and Lutz on January 1,
2005.
The trial court could not order an entry of judgment of acquittal as the evidence was, at a
minimum; such that reasonable minds could reach different conclusions as to whether each
material element of the crimes with which Appellant was charged were established beyond a
reasonable doubt. The trial court did not err when it denied Appellant's motion for acquittal.
4
Appellant also takes issue with the trial court's denial of his Motion for Acquittal in regards
to the Aggravated Robbery, Rape and Tampering with Evidence charges. The jury ultimately
acquitted Appellant of these charges. Appellant's challenge in regard to these issues is barred by
the doctrine of mootness.
An appeal will be dismissed when, absent the fault of any party, circumstances preclude
the reviewing court from granting effective relief. Keller v. Flaherty (1991), 74 Ohio App.3d 788.
Moreover, an appellate court is not required to render an advisory opinion on a moot question or to
rule on a question of law that cannot affect matters at issue in the case. Saffold v. Saffdld (May 13,
1999), 10th Dist. No. 72937.
In the instant matter, Appellant seeks appellate review regarding multiple charges of which
he was ultimately acquitted, the Aggravated Robbery, Rape and Aggravated Murder charges.
Appellant contends the trial court erred when it denied his Motion for Acquittal and permitted the
jury to consider those charges. This Honorable Court need not address the issue as the issue is
moot. It is unclear why Appellant seeks review of those charges as the Double Jeopardy Clause
bars any further action by Appellee against Appellant regarding those charges. Assuming
arguendo that the trial court erred, this Honorable Court could not grant Appellant any relief.
Obviously, Appellant was not sentenced on those charges. Appellant is not able to be prosecuted
on those charges again despite review by this Honorable Court on this issue.
Since the trial court properly denied Appellant's Motion for Acquittal and the issue
regarding the Motion for Acquittal in relation to the charges of Aggravated Robbery, Rape, and
Aggravated Murder is moot, Appellant's second proposition of law should be denied.
5
RESPONSE TO THIRD PROPOSITION OF LAW
Ill. THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION TO SEVER.
Preliminarily, it must be noted that "Crim,R. 14 allows for separate trials on multiple counts
in an indictment when joinder of the offenses would be prejudicial to the defendant. [Citations
omitted.] To preserve the issue of prejudicial joinder for appeal, however, the defendant must
renew his motion at the close of all the evidence. When a defendant fails to renew his motion at the
conclusion of all the evidence, he waives any error in the trial court's denial of the motion, unless
the error rises to the level of plain error under Crim.R. 52(B). [Citations omitted.]" State v. Harris,
1st Dist. No.C-050160, 2006 Ohio 716, quoting State v. Harris, 1st Dist. No. C-040483, 2005 Ohio
6995. As such, this Honorable Court may only review any error pursuant to a plain error standard.
State v. Bethel, 110 Ohio St. 3d 416, 2006 Ohio 4853. An error is plain error only if it is obvious,
State v. Barnes, 94 Ohio St.3d 21, 27, 2002 Ohio 68, and, "but for the error, the outcome of the trial
clearly would have been otherwise." State v. Bethel, 110 Ohio St. 3d 416, 2006 Ohio 4853,
quoting State v. Long (1978), 53 Ohio St.2d 91.
Here, Appellant has failed to preserve the issues of prejudicial joinder for review. Trial
counsel did not renew the motion at the close of Appellee's case or at the close of all evidence.
(Tr. 1894-1904; 2149). See also State v. Glover, 8th Dist. No. 84413, 2005 Ohio 1984, citing State
v. Owens (1975), 51 Ohio App.2d 132; State v. Saade, 8th Dist. Nos. 80705 and 80706, 2002 Ohio
5564; State v. Fortson (August 2, 2001), 8th Dist. No. 78240.
When reviewed pursuant to a plain error standard, Appellant has not demonstrated that
the results of the proceeding would have been otherwise had the trial court granted Appellant's
Motion to Sever. This is because the trial court properly denied Appellant's Motion to Sever,
6
Pursuant to Crim.R. 8(A):
two or more offenses may be charged in the same indictment, information or complaint in aseparate count for each offense if the offenses charged, whether felonies ormisdemeanors or both, are of the same or similar character, or are based on the same actor transaction, or are based on two or more acts or transactions connected together orconstituting parts of a common scheme or plan, or are a part of a course of criminalconduct.
"The law favors joining multiple criminal offenses in a single trial under Crim.R. 8(A)[.]"
State v. Prade (2000), 139 Ohio App.3d 676, quoting State v. Lott (1990), 51 Ohio St.3d 160; see,
also, State v. Torres (1981), 66 Ohio St.2d at 340. An accused may move to sever under Crim.R.
14 if he can establish prejudice to his rights. State v. Prade (2000), 139 Ohio App.3d 676, citing
State v. Lott, 51 Ohio St.3d at 163; State v. Wiles (1991), 59 Ohio St.3d 71.
Appellee may counter the claim of prejudice in two ways. State v. Prade (2000), 139 Ohio
App.3d 676. The first is the "other acts" test, where the state can argue that it could have
introduced evidence of one offense in the trial of the other, severed offense under the "other acts"
portion of Evid.R. 404(B). Id. The second is the "joinder" test, where the state is merely required
to show that evidence of each of the crimes joined at trial is simple and direct. Id. If the state can
meet the joinder test, it need not meet the stricter "other acts" test. Id. Thus, an accused is not
prejudiced by joinder when simple and direct evidence exists, regardless of the admissibility of
evidence of other crimes under Evid.R. 404(B). Id., citing State v. Franklin (1991), 62 Ohio St.3d
118.
The trial court did not err in refusing to sever the charges because the evidence would
have been admissible under the "other acts" provisions of Evid.R. 404(B), which states:
evidence of other crimes, wrongs, or acts is not admissible to prove the character of aperson in order to show that he acted in conformity therewith. It may, however, beadmissible for other purposes, such as proof of motive, opportunity, intent, preparation,plan, knowledge, identity, or absence of mistake or accident.
7
State v, Prade (2000), 139 Ohio App.3d 676.
Appellee alleged at trial that Appellant's motive for attempting to murder Charles Baker
and Tammy Lutz was to prevent them for testifying about the evenings events prior to the death of
Tanya Kennedy Linkous. Here, Appellant brutally murdered Tonya Kennedy Linkous in the
downstairs portion of Charles Baker's residence and then proceeded upstairs in an attempt to
silence the only potential witnesses to his heinous actions. The attempted murders of both Lutz
and Baker formed the basis of the capital specifications, i.e. that Appellant murdered one (1)
person and attempted to murder others. The attempted killing of Lutz and Baker were the
necessary elements of that specification. As such, the information would have been provided to
the jury in any case. Therefore, no prejudice can result. Appellant's murder of Kennedy Linkous
provided motive to murder Baker and Lutz to ensure their silence. Additionally, all of the crimes
happened at the same location, were close in time and were inextricably intertwined. Because the
evidence would have been admitted under Evid,R. 404(B) at a separate trial on either matter, this
negates Appellant's claims of prejudice.
Moreover, the attempted killings of Lutz and Baker formed the backdrop of why law
enforcement responded to the crime scene and how they located Kennedy Linkous. It was only
after the vicious attacks and escape by Baker and Lutz that they were able to contact law
enforcement. Once law enforcement responded to the crime scene, Kennedy Linkous and
Appellant were located. Therefore, the information regarding Lutz and Baker would have been
provided to the jury and no prejudice can result.
Under the joinder test set forth in Franklin, Appellee could further negate the claim of
prejudice suffered by Appellant through joinder. State v. Prade (2000), 139 Ohio App.3d 676. The
Ninth District Court of Appeals has noted that "when simple and direct evidence exists, an accused
is not prejudiced by joinder[.]" State v. Prade (2000), 139 Ohio App.3d 676, quoting State v. Lott
8
(1990), 51 Ohio St.3d 160. The essential problem associated with joinder is not found to be
present when "the evidence relative to the various charges is direct and uncomplicated, so that the
jury is believed capable of segregating the proof on each charge." State v. Prade (2000), 139 Ohio
App.3d 676., quoting State v. Roberts (1980), 62 Ohio St.2d 170, citing Drew v. United States
(C.A.D.C.1964), 118 U.S. App. D.C. 11, 331 F.2d 85, 88.The elements of the crimes of Felonious
Assault, Attempted Murder, Tampering with Evidence and Aggravated Murder are wholly distinct
and different from each other. It is beyond credibility to think that the jury would have so confused
the evidence related to the crimes so as to cumulate the evidence against Appellant and convict
him of crimes not fully supported by the evidence, especially in light of the fact that the jury did not
convict Appellant of aggravated murder. Therefore, because Appellee also met the "joinder test,"
any prejudice claimed by Appellant was negated.
Because Appellant has not affirmatively established that he was prejudiced or that she
provided the trial court with sufficient information upon which to consider the motion for severance,
Appellant has failed to show that the trial court erred. Since Appellant has failed to show that the
trial court erred in denying his Motion to Sever, Appellant has not met his burden of proof under a
plain error standard as Appellant cannot show that but for the alleged error, the outcome of the trial
would have been different. As such, Appellant's third proposition of law must be denied.
RESPONSE TO FOURTH PROPOSITION OF LAW
IV. APPELLANT WAS NOT PREJUDICED BY THE INTRODUCTION OFPHOTOGRAPHS.
Nonrepetitive photographs, even if gruesome, are admissible in capital cases as long as
the probative value of each photograph outweighs the danger of material prejudice of the accused.
State v. Craig, 110 Ohio St.3d 306, 2006 Ohio 4571. Decisions on the admissibility of photographs
are left to the sound discretion of the trial court. State v. Slagle (1992), 65 Ohio St.3d 597. The
9
intent of the defendant and circumstances of the victim's death are relevant and probative. State v.
Jackson, 107 Ohio St.3d 53, 2005 Ohio 5981.
In the present case, the photographs in question were relevant and probative. With
respect to the autopsy photographs of Tonya Kennedy Linkous, the photographs clearly
demonstrated the procedure at the autopsy, the external injuries and intemal injuries. Dr. Matus
explained the relevance of each photograph and its purpose. With respect to the photographs of
Tammy Lutz, the photographs were relevant and probative. Counts fourteen (14) through
seventeen (17) of the indictment alleged that Appellant was the perpetrator of the Attempted
Aggravated Murder and Attempted Murder offenses in relation to Tammy Lutz. Moreover, the jury
was entitled to see the injuries that Lutz sustained as well as hearing her verbal description of her
injudes and the evening's events. Appellee is required to prove purpose; the photographs
demonstrated the extent of Lutz's injuries and reflect directly on the issue of purpose to kill.
Similarly, counts ten (10) through twelve (12) of the indictment alleged that Appellant was
the perpetrator of the Attempted Aggravated Murder and Attempted Murder offenses in relation to
Charles Baker. Again, Appellee was required to prove Appellant's underlying purpose to kill. The
photographs demonstrated the lengths to which Appellant went to accomplish that purpose.
Moreover, the jury was entitled to see the injuries that Baker sustained as well as hearing his
verbal description of his injuries and the evening's events. Also, as testified to by Detective Yost,
the injuries were documented at different times and the photographs themselves were done at
different angles for the purpose of clearly documenting each injury and its effect. As such, the
photographs were both relevant and probative.
Appellant never objected to the introduction of any of the photographs at issue. The
autopsy photographs were contained in State's exhibits 217 through 240. The photographs of Lutz
were State's exhibits 127-146 and 160-162. At trial, Appellant indicated there was no objection to
10
the introduction of State's exhibits 27 through 264. The photographs of Charles Baker were
encompassed in State's exhibits 112-113 and 364-369. Again, Appellant indicated that there was
no objection to the introduction of those exhibits. As such, any error assigned to the admission of
the photographs is waived, or alternatively, invited error. State v. Drummond, 111 Ohio St.3d 14,
2006 Ohio 5084; State v. Hairston, 9th Dist. No. 05CA008768, 2006 Ohio 4925.
Should this Court decide that Appellant has forfeited his objection to the admission of the
photographs rather than waived the objection, Appellant offers nothing in support of a claim of plain
error. An error is plain error only if it is obvious, State v. Barnes, 94 Ohio St.3d 21, 27, 2002 Ohio
68, and, "but for the error, the outcome of the trial cleady would have been otherwise." State v.
Bethel, 110 Ohio St.3d 416, 2006 Ohio 4853, quoting State v. Long (1978), 53 Ohio St.2d 91.
Appellant has not, and cannot, demonstrate that the admission of the photographs
prejudiced him. Clearly, no evidence exists that the jury was so inflamed by the photographs that
they decided to convict Appellant of all the counts as charged in the indictment, The verdicts
themselves demonstrate this to be untrue. Appellant was found not guilty of five (5) out of nineteen
(19) counts including the Aggravated Murder counts. It appears that the jury was able to focus on
the evidence, give it the weight they deemed proper and render verdicts in accordance with those
views. It is impossible for Appellant to show that the results of the proceeding would have been
otherwise had the photographs not been admitted into evidence. As such, Appellant's fourth
proposition of law should be denied.
RESPONSE TO FIFTH PROPOSITION OF LAW
V. APPELLANT'S SENTENCE IS LEGALLY PROPER.
Appellant asserts that the application of State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856
violates the Ex Post Facto Clause of the United States Constitution and his Due Process rights
11
because the events underlying the criminal charges and the plea hearing took place prior to the
decision in State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856. These assertions are without merit.
In relation to Appellant's Ex Post Facto Clause challenge, it must fail. This Honorable
Court has recognized that the Ex Post Facto Clause prohibits the retroactive application of a new
law when its enforcement would *** punish as a crime an act previously committed, which was
innocent when done; *** make more burdensome the punishment for a crime, after its commission;
[and] deprive one charged with a crime [a] of any defense available according to law at the time
when the act was committed. State v. Wickline (1996), 74 Ohio St.3d 369, quoting, Collins v.
Youngblood (1990), 497 U.S. 37. In addition to the three (3) foregoing scenarios, this Court has
more recently stated that the Ex Post Facto prohibition would also apply to any law, which, after the
commission of the actual crime, would alter the nature of the evidence needed to obtain a
conviction for that crime. State v. Walls, 96 Ohio St.3d 437, 2002 Ohio 5059.
While the Ex Post Facto Clause of the United States Constitution applies only to legislative
enactments, "due process places similar constraints on a court's power to apply precedent to
cases arising before the precedent was announced." State v. Wickline (1996), 74 Ohio St,3d 369,
quoting, State v. Webb (1994), 70 Ohio St. 3d 325 and State v.Garner(1995), 74 Ohio St.3d 49.
However, a state court may apply its own precedents retroactively, so long as the application does
not amount to an ex post facto law. State v. Wickline (1996), 74 Ohio St.3d 369. A state in
defining limits of adherence to precedent may make a choice for itself between the principle of
forward operation and that of relation backward. Great Northern Railway Company v. Sunburst Oil
& Refining Company (1932), 287 U.S. 358.
In the instant case, Appellant cannot persuasively argue the Ex Post Facto clause is
applicable to the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006 Ohio
856. Appellant's sentencing hearing took place on June 14, 2006, well after the Ohio Supreme
12
Court's decision dated February 27, 2006 in State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856.
The decision can hardly be said to be retroactively applied when Appellant's sentencing hearing
occurred long after the matter was decided.
Appellant also cannot demonstrate that the legislature altered the definition of any of his
crimes in a manner that has retroactively criminalized his conduct or gave Appellant lack of a fair
warning that his conduct could be treated as a criminal offense. State v. Walls, 96 Ohio St.3d 437,
2002 Ohio 5059, citing, Weaver v. Graham (1981), 450 U.S. 24. Appellant also cannot
demonstrate that he was deprived of a defense that was previously available to him, that the
evidence needed to convict him of his crimes was somehow altered or that his punishment
increased when the range of punishment for felony offenses in the state of Ohio was unmodified by
State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856.
Appellant further contends that a retroactive application of this Court's decision in State v.
Foster, 109 Ohio St.3d 1, 2006 Ohio 856 would increase punishment beyond what was prescribed
when the crime as consummated and violate Due Process. Miller v. Florida (1987), 482 U.S. 423.
It is unclear how such a result could occur. This Court's decision in State v. Foster, 109 Ohio St.3d
1, 2006 Ohio 856 did not alter the penalties for any criminal offense of which Appellant was
convicted. Moreover, [t]here is no constitutional right to concurrent sentences." State v. Stearns,
9th Dist. No. 04CA008515, 2005 Ohio 870, quoting, United States v. McWaine (C.A. 5, 2002), 290
F.3d 269.
Lastly, Appellant seeks to rely upon the rule of lenity to support his proposition. The rule
of lenity is codified in R.C. 2901.04(A) and is a rule of statutory construction. R.C. 2901.04
provides that "sections of the Revised Code defining offenses or penalties shall be strictly
construed against the state and liberally construed in favor of the accused." The rule of lenity only
13
applies where there is an ambiguity in a statute or a conflict between statutes." State v. Moore, 3d
Dist, No-1-06-51, 2006 Ohio-6860.
On March 21, 2007, the Ninth District Court of Appeals rejected Appellant's argument
regarding Foster and the rule of lenity. In State v. Ross, 9th Dist No. 23375, 2007 Ohio 1265, the
appellate court held that:
[w]hile appellant may disagree with the Foster court's choice ofremedy, that remedy has not created an ambiguity in thesentencing statute. Accordingly, the rule of lenity does not apply.
In sum, Appellant has failed to demonstrate how the trial court's non-compliance with an
unconstitutional statute violates the Ex Post Facto clause, offends Due Process considerations,
and violates the rule of lenity. As such, Appellant's fifth proposition of law should be denied.
CONCLUSION
For the foregoing reasons, Appellee respectfully requests that this Honorable Court decline
jurisdiction over the instant matter.
Respectfully Submitted,DENNIS P. WILL, #0038129Prosecuting AttorneyLorain County, Ohio
BILLIE JO BELCHER, #0072337Assistant Prosecuting Attorney225 Court Street, 31d FloorElyria, Ohio 44035(440) 329-5393
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PROOF OF SERVICEA copy of the foregoing Memorandum in Opposition to Jurisdiction was sent by regular
U.S. Mail to Terry Gilber, Esq., and Andrea Whitaker, Esq., Counsel for Appetlant,1370 Ontario
Street, Suite 600, Cleveland, Ohio 44113 this-day of gau 2008.
Billie Jo BelcherAssistant Prosecuting Attorney
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