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

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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

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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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