State v. Wesson , 137 Ohio St. 3d 309 ( 2013 )

[Cite as State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575.]
THE STATE OF OHIO, APPELLEE, v. WESSON, APPELLANT.
[Cite as State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575.]
R.C. 2945.06—When a person charged with a capital offense waives a jury, the
panel hearing the case shall be composed of three judges, two of whom
shall be designated by the presiding judge or chief justice of the common
pleas court, and if no one holds either position, then they shall be
designated by the chief justice of the Supreme Court—Conviction for
committing aggravated murder while under detention reversed—
Conviction for committing aggravated murder during the course of an
aggravated robbery affirmed—Death penalty affirmed.
(No. 2009-0739—Submitted June 11, 2013—Decided October 23, 2013.)
APPEAL from the Court of Common Pleas of Summit County,
No. 2008-03-0710.
____________________
SYLLABUS OF THE COURT
When a person charged with a capital offense waives a jury, the panel hearing the
case shall be composed of three judges, two of whom shall be designated
by the presiding judge or chief justice of the common pleas court, and if
no one holds either position, then they shall be designated by the chief
justice of the Supreme Court. (State v. Eley, 77 Ohio St.3d 174, 672
N.E.2d 640 (1996), clarified.)
____________________
O’DONNELL, J.
{¶ 1} Hersie R. Wesson appeals from a judgment of a three-judge panel
that convicted him of two counts of aggravated murder with death penalty
specifications in connection with the death of Emil Varhola, two counts of
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attempted murder in connection with the stabbing of Mary Varhola, two counts of
aggravated robbery, and one count each of having a weapon while under a
disability and tampering with evidence. The court merged allied offenses,
imposed capital punishment for the aggravated murder of Emil Varhola while
committing an aggravated robbery, and sentenced Wesson to an aggregate term of
26 years’ imprisonment for the noncapital offenses.
{¶ 2} Count Three, aggravated murder, and one specification associated
with Count Two, the other aggravated murder charge, required proof that Wesson
was under detention at the time of the murder; but because the original sentencing
entry that imposed postrelease control on Wesson placing him under detention is
void, we reverse the convictions for Count Three, the specifications related to that
count, and Specification One related to Count Two.
{¶ 3} However, we affirm the remaining convictions, including the
aggravated murder conviction related to Count Two and its death penalty
specification, the imposition of capital punishment, and the consecutive aggregate
sentence of 26 years as imposed by the three-judge panel.
Facts and Procedural History
{¶ 4} On February 25, 2008, Wesson’s girlfriend, Mildrian Ford, filed a
police report against him following a dispute. Because Wesson was serving a
three-year term of postrelease control following his release from prison in 2007,
Ford also notified his parole officer, Julie Clark, of the incident. Clark, together
with another parole officer and members of Akron’s fugitive task force, began
searching for Wesson.
{¶ 5} That evening, Wesson went to the home of 81-year-old Emil
Varhola and his 77-year-old wife, Mary, who lived near Ford and knew Wesson
from the neighborhood. Wesson sometimes talked to Emil, who occasionally
gave him money or hired him to do odd jobs. Wesson knocked on their door and
asked if he could come inside while he waited for Ford’s bus to arrive, and they
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accommodated him. Emil, who used a portable oxygen tank to breathe, offered
Wesson coffee, and the two sat together at the kitchen table. Mary returned to the
living room.
{¶ 6} Mary then heard a whistling sound coming from the kitchen. When
she returned to the kitchen, she saw Emil lying on the floor in a pool of blood
with the whistling sound coming from his windpipe and Wesson rifling through
Emil’s pockets. Mary confronted him, and he admitted that he killed Emil, and
then he attacked her. He demanded “the gun,” explaining that he needed it to kill
his girlfriend. Mary refused to tell him where Emil kept his handgun, even as
Wesson beat and stabbed her. According to Mary, he stopped assaulting her only
when he thought she was dead.
{¶ 7} Wesson fled the home, taking a rifle and the cup from which he had
drunk and throwing them in a bush in the front yard. He also took Mary’s jewelry
and Emil’s wallet containing approximately $800.
{¶ 8} When he left, Mary contacted her son, Paul, who called 9-1-1 to
report the incident. When officers arrived, they found Emil dead in the kitchen
and Mary hardly able to stand or speak, but she was able to show police where
Emil kept his pistol, in a hollowed-out book in the living room. She had multiple
stab wounds on her chest and upper abdomen, bruises, and lacerations on her
hands and fingers. Her right cheek had a large gash in it with the skin peeled
back, exposing bone. Emergency personnel transported Mary to the hospital,
where she lost consciousness and remained unconscious and on a respirator for
more than a month before awaking.
{¶ 9} Officers found blood pooled on the kitchen floor, splattered on the
curtains, smeared on the refrigerator, and splashed on the dining room wall and
carpet. They noted other signs of a struggle, including objects strewn about and a
set of dentures on the floor. The gun cabinet stood open, and one long gun
appeared to be missing. Investigators did not find any weapon near Emil’s body.
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{¶ 10} Police followed a trail of bloody footprints leading to a bush in the
front yard of the home, where they discovered Emil’s long gun and the cup. They
subsequently located Emil’s wallet—which had no money in it—under the porch
of a home several blocks away.
{¶ 11} Based on Mary’s statements, the police began to look for Wesson.
With Ford’s assistance, officers located him at the Akron home of Christopher
Conley, his cousin, in the early morning hours of February 26, 2008. On a dresser
in the room where the police found Wesson, they discovered a straight-edged
steak knife with what appeared to be dried blood on it. When they arrested
Wesson, they observed blood-soaked bandages on his hands and what appeared to
be blood on his sneakers and pants and on a jacket found in the room.
{¶ 12} At the police station, Wesson waived his Miranda rights, and two
detectives interviewed him. He admitted stabbing Emil and Mary, but claimed
that he acted in self-defense. He related that he and Mary had an ongoing sexual
relationship and that Emil usually watched, but on this occasion he became upset
watching them have unprotected sex on the kitchen floor. According to Wesson,
Emil threatened him with a long gun and attacked him with a knife, but Wesson
was able to disarm and stab Emil. Then, he claimed, he stabbed Mary after she
hit him on the head with her cane. Based on Wesson’s assertion that he had
engaged in intercourse with Mary, investigators had the hospital perform a rape-
kit examination on her, but samples tested negative for semen.
{¶ 13} An autopsy revealed that Emil had been stabbed eight times—four
times in the torso, once in the neck, and three times in the back—and it revealed
defensive wounds on his hands. Dorothy Dean, a deputy medical examiner for
the Summit County Medical Examiner’s Office, concluded that the stab wounds
in Emil’s neck and torso caused his death, and she testified that Emil’s injuries
could have been caused by the knife seized at the time of Wesson’s arrest.
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{¶ 14} A grand jury indicted Wesson for three counts of aggravated
murder: aggravated murder with prior calculation and design, R.C. 2903.01(A);
aggravated murder while committing aggravated robbery, R.C. 2903.01(B); and
aggravated murder while under detention, R.C. 2903.01(D). Each count carried
three capital specifications: aggravated murder while under detention, R.C.
2929.04(A)(4)(b); aggravated murder as “part of a course of conduct involving
the purposeful killing of or attempt to kill two or more persons by the offender,”
R.C. 2929.04(A)(5); and aggravated murder while committing aggravated
robbery, R.C. 2929.04(A)(7). The indictment also charged Wesson with three
counts of attempted aggravated murder, two counts of attempted murder, three
counts of aggravated robbery, one count of having weapons while under a
disability, and one count of tampering with evidence.
{¶ 15} Wesson pled not guilty to all charges, waived his right to trial by
jury, and elected to be tried by a three-judge panel. Notably, he did not object
when the judge presiding over the trial appointed the other two members of the
three-judge panel.
{¶ 16} Prior to trial, Wesson moved to suppress his statement to police,
alleging that his intoxication at the time of questioning rendered his Miranda
waiver invalid, that the warnings had not been properly given, and that police had
coerced his statement. The court found, however, that he knowingly,
intelligently, and voluntarily had waived his constitutional rights. Also, the state
filed a motion in limine to exclude an audio recording that Wesson made
retracting his statements to police; the trial court granted that motion and excluded
the recording as hearsay.
{¶ 17} At trial, the state argued that Wesson came to the Varholas’ home
looking for a gun to kill his girlfriend and then murdered Emil and attempted to
murder Mary. In contrast, the defense presented a theory of a friendly encounter
that turned bad, stating that the Varholas had invited Wesson into their home so
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he would not have to wait for a bus in the cold, but that Emil began to behave
erratically, and Wesson, who knew that Emil owned guns, thought Emil had
threatened him. Thus, the defense asserted that Wesson stabbed Emil in self-
defense and assaulted Mary only when she attacked him with her cane.
{¶ 18} At the close of the state’s case, the panel acquitted Wesson of
aggravated murder with prior calculation and design.
{¶ 19} In Wesson’s case-in-chief, the defense called a single witness,
Akron Police Detective Joseph Urbank, who testified that he had interviewed a
woman named Linda Fields about her observations of Wesson on February 25,
the date of the murder. Fields died before trial, and by agreement of the parties,
the defense played an audio recording of Urbank’s interview with her. On the
recording, she claimed that Wesson was at his cousin’s residence, where she had
been staying, from 5:00 p.m. until 8:00 p.m. on February 25. He left around 8:00
p.m. and did not return until 10:00 p.m. At that time, he had fresh cuts on his
hands and she gave him bandages for the cuts. Fields also told Urbank that she
had left the knife on the bedroom dresser earlier that afternoon.
{¶ 20} Following its deliberation on the case, the three-judge panel
returned guilty verdicts on the remaining two counts of aggravated murder and on
all three specifications for each count. In addition, the panel found Wesson guilty
of two counts of attempted murder, two counts of aggravated robbery, one count
of having a weapon while under a disability, and one count of tampering with
evidence. The trial court merged the two aggravated murder convictions, the two
attempted murder convictions, and the two aggravated robbery convictions. The
state then elected to have Wesson sentenced for aggravated murder while
committing aggravated robbery.
{¶ 21} After the sentencing hearing, the three-judge panel unanimously
found that the aggravating circumstances outweighed the mitigating factors
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beyond a reasonable doubt and sentenced Wesson to death for aggravated murder
and to an aggregate term of 26 years in prison for the other convictions.
{¶ 22} On direct appeal to this court, Wesson presents 12 propositions of
law.
Law and Analysis
The Indictment
{¶ 23} In proposition of law I, Wesson argues that his due process rights
were violated because the indictment did not state the requisite mens rea for
aggravated robbery in Count Two, which charged aggravated murder during the
course of an aggravated robbery, R.C. 2903.01(B), Counts Seven and Thirteen,
which charged aggravated robbery, R.C. 2911.01(A)(1) and (3), or the felony-
murder specifications in Counts Two and Three that list aggravated robbery as the
basis for the felony-murder specification, R.C. 2929.04(A)(7). But because he did
not raise these objections at trial, Wesson has waived error. State v. Horner, 126
Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 46 (“failure to timely object to
a defect in an indictment constitutes a waiver of the error”). Thus, we conduct a
plain-error analysis.
{¶ 24} Article I, Section 10, of the Ohio Constitution guarantees that “no
person shall be held to answer for a capital, or otherwise infamous, crime, unless
on presentment or indictment of a grand jury.” As we recently explained in
Horner,
[t]he purpose of a grand jury indictment has always been to
give notice to the accused: “[A] criminal offense must be charged
with reasonable certainty in the indictment so as to apprise the
defendant of that which he may expect to meet and be required to
answer; so that the court and jury may know what they are to try,
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and the court may determine without unreasonable difficulty what
evidence is admissible.”
Id. at ¶ 10, quoting Horton v. State, 85 Ohio St. 13, 19, 96 N.E. 797 (1911). Thus,
we have recognized that even when an indictment fails to charge the mens rea of
the offense, it is not defective as long as it “tracks the language of the criminal
statute describing the offense,” because that suffices to “provide[] the defendant
with adequate notice of the charges against him.” Id. at ¶ 45.
{¶ 25} In this case, Count Two of the indictment states:
[The grand jurors find that] HERSIE R. WESSON * * *
did commit the crime of AGGRAVATED MURDER in that he
did purposely cause the death of Emil Varhola, while committing
or attempting to commit, or while fleeing immediately after
committing or attempting to commit aggravated robbery, in
violation of section 2903.01(B) of the Revised Code * * *.
(Capitalization and boldface sic.)
{¶ 26} Count Two identifies the mens rea for aggravated felony murder as
“purposefully.” See State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926
N.E.2d 1239, ¶ 40. It is unnecessary for this count to charge the elements of the
predicate offense—aggravated robbery—because “it is the predicate offense itself
and not the elements of the predicate offense that is an essential element of the
charged offense.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853
N.E.2d 1162, ¶ 12. However, Wesson contends that the indictment for this count
is defective because it names the predicate offense—aggravated robbery—without
citing the Revised Code section for that offense. Yet he cites no authority for this
proposition; moreover, the indictment charged aggravated robbery in Counts
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Seven and Thirteen, and those counts do cite the code section. Thus, “[r]eading
the felony-murder counts in pari materia with the related felony counts provided
ample notification of the elements of the underlying felonies * * * that the state
had to prove.” State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d
836, ¶ 29. The indictment therefore provided sufficient notice of the predicate
offense charged in Count Two.
{¶ 27} Wesson also claims that the felony-murder specifications attached
to Counts Two and Three alleging that Wesson was the principal offender of an
aggravated murder while committing aggravated robbery should have charged the
mental state of recklessness. However, as we explained in Fry, capital
specifications provided in R.C. 2929.04(A)(7) “do[] not include a mens rea
component.” Id. at ¶ 51. Thus, this indictment is not defective.
{¶ 28} Regarding Count Seven, Wesson asserts that the indictment did not
include the reckless mens rea for aggravated robbery, R.C. 2911.01(A)(1). Count
Seven of the indictment states:
[The grand jurors find that] HERSIE R. WESSON * * *
did commit the crime of AGGRAVATED ROBBERY in that he
did, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately
after the attempt or offense, have a deadly weapon, to wit: a knife,
on or about the offender’s person or under the offender’s control
and either display the weapon, brandish it, indicate that the
offender possesses it, or use it, in violation of Section
2911.01(A)(1) of the Revised Code * * *.
(Capitalization and boldface sic.)
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{¶ 29} Recklessness is not an element of the charged offense. R.C.
2911.01(A)(1) applies only to persons “attempting or committing a theft offense,
as defined in section 2913.01 of the Revised Code,” and incorporates the mens rea
of the underlying theft offense. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830,
935 N.E.2d 26, at ¶ 49; see also Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707,
853 N.E.2d 1162, at ¶ 10-12. And as we explained in State v. Lester, 123 Ohio
St.3d 396, 2009-Ohio-4225, 916 N.E.2d 1038, ¶ 32-33, the mens rea of
recklessness does not apply to the element of displaying, brandishing, indicating
possession of, or using a deadly weapon, because the General Assembly imposed
strict liability as to that element, and therefore “the state is not required to charge
a mens rea for this element of the crime of aggravated robbery under R.C.
2911.01(A)(1).” In any case, because the indictment tracks the language of the
criminal statute describing the offense, it provides adequate notice of the charges.
Horner at ¶ 45.
{¶ 30} Wesson raises a similar objection to Count Thirteen of the
indictment, which states:
[The grand jurors find that] HERSIE R. WESSON * * *
did commit the crime of AGGRAVATED ROBBERY in that he
did, in attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code, or in fleeing immediately
after the attempt or offense, recklessly inflict, or attempt to inflict,
serious physical harm on another, to wit: Emil Varhola and/or
Mary Varhola, in violation of Section 2911.01(A)(3) of the Ohio
Revised Code * * *.
(Capitalization and boldface sic; italics added for emphasis.)
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{¶ 31} As discussed with regard to Count Seven, R.C. 2911.01(A)(3)
applies only to persons “attempting or committing a theft offense, as defined in
section 2913.01 of the Revised Code,” and R.C. 2911.01 thereby incorporates the
mens rea of the underlying theft offense. But as to the element involving physical
harm, Count Thirteen of the indictment tracks the language of the statute, and in
any case, it identifies recklessness as the requisite mens rea.
{¶ 32} Hence, Wesson has failed to demonstrate plain error, and we
therefore overrule this proposition of law.
Miranda Waiver
{¶ 33} Proposition of law V argues that Wesson did not validly waive his
rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), and therefore his motion to suppress his statement to the
police should have been granted. Wesson received Miranda warnings and orally
waived each Miranda right before making a statement to police. He nonetheless
claims that “the combination of the lack of sleep, the alcohol, the coercive nature
of the setting and defendant’s lack of education combined to render [his] waiver
invalid.”
{¶ 34} When a suspect is questioned in a custodial setting, the Fifth
Amendment requires that he receive Miranda warnings to protect against
compelled self-incrimination. Miranda at 478-479. A suspect may then
knowingly and intelligently waive these rights and agree to make a statement. Id.
at 479. If a defendant later challenges a confession as involuntary, the state must
prove a knowing, intelligent, and voluntary waiver by a preponderance of
evidence. See id. at 475; Colorado v. Connelly, 479 U.S. 157, 168-169, 107 S.Ct.
515, 93 L.Ed.2d 473 (1986).
{¶ 35} To determine whether a valid waiver occurred, we “consider the
totality of the circumstances, including the age, mentality, and prior criminal
experience of the accused; the length, intensity, and frequency of interrogation;
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the existence of physical deprivation or mistreatment; and the existence of threat
or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976),
paragraph two of the syllabus; see also Arizona v. Fulminante, 499 U.S. 279, 285,
111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). We have held that a waiver is not
involuntary unless there is evidence of police coercion, such as physical abuse,
threats, or deprivation of food, medical treatment, or sleep. State v. Cooey, 46
Ohio St.3d 20, 28, 544 N.E.2d 895 (1989).
{¶ 36} At the suppression hearing, the trial court heard testimony from an
expert witness called by the defense, Dr. Robert Bellotto Jr., who used the
Widmark Method to estimate Wesson’s blood-alcohol level at the time of his
statement based on information given to him by the defense. Some of the factors
he considered included height, weight, age, gender, amount and type of alcohol
and food consumed, alcohol-elimination rate, and history of alcohol use. Bellotto
stated that a 50-year-old male chronic alcoholic who is five feet, seven inches tall
and weighs 147 pounds, who consumed a large bottle of Mogen David wine (18
percent alcohol) and six to eight beers (5.5 percent alcohol) between early
afternoon and 11:00 p.m., and who slept from approximately 11:15 p.m. to 3:15
a.m. would have a blood-alcohol level of .17 grams per deciliter at 4:00 a.m. But
he conceded that he did not know how much alcohol or food Wesson had actually
consumed on February 25 or Wesson’s alcohol-elimination rate.
{¶ 37} During his testimony at the suppression hearing, Wesson claimed
that he drank a “fifth” of Mogen David wine and a considerable amount of beer
throughout the day on February 25, but that he did not drink any alcohol between
11:00 p.m. that evening, when he went to bed, and 4:00 a.m. the next morning,
when police questioned him. He further claimed to have been intoxicated and
falling from his chair during the interrogation.
{¶ 38} In response, the state presented testimony from four law
enforcement officers who interacted with Wesson on the morning of February 26,
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2008, each of whom testified that he did not observe any signs of intoxication or
smell alcohol on his breath, and the three officers Wesson spoke to that morning
testified that they did not detect any slurring of his speech. Wesson had had no
trouble sitting upright or walking, and he responded appropriately to the questions
asked. The officers who had questioned Wesson denied that he had fallen out of
his seat during the interview. The state also presented the testimony of Steve
Perch, a toxicologist from the Summit County Medical Examiner’s Office, who
questioned Bellotto’s finding and stated that it would not be possible to correctly
estimate Wesson’s blood-alcohol level without knowing his elimination rate, his
food consumption that day, or his typical alcohol consumption.
{¶ 39} The court denied the motion to suppress and found “the detectives’
testimony credible and supported by the recording of [Wesson’s] interview.”
After considering all the circumstances, the court determined that Wesson “made
a knowing, voluntary, and intelligent waiver of his constitutional rights, and that
his statement to police was voluntarily made.”
{¶ 40} As we explained in State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, “[a]ppellate review of a motion to suppress presents a
mixed question of law and fact. When considering a motion to suppress, the trial
court assumes the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses.” Id. at ¶ 8.
And we also stated: “[A]n appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. * * * Accepting these
facts as true, the appellate court must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.” Id.
{¶ 41} Wesson argues that his intoxication, lack of sleep, and lack of
education, in addition to the coercive nature of the interview setting, rendered the
waiver of his constitutional rights invalid. Here, however, the trial court finding
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that Wesson validly waived his Miranda rights is supported by competent and
credible evidence, consisting of the testimony of the four police officers and the
audio recording of Wesson’s statement. Wesson’s claim of a limited education
may evidence “low mental aptitude,” but that alone does not demonstrate
involuntariness. State v. Hill, 64 Ohio St.3d 313, 318, 595 N.E.2d 884 (1992),
citing Connelly, 479 U.S. at 164, 107 S.Ct. 515, 93 L.Ed.2d 473. Notably,
Wesson’s prior criminal record shows familiarity with the criminal process, and
he himself recited the Miranda warnings at the suppression hearing. This record
does not support his allegation of police coercion, as neither the audio recording
of the statement nor the testimony from the suppression hearing indicates any
physical abuse, threats, or efforts to deprive Wesson of food, medical treatment,
or sleep. The actions of the detectives in seating him in a fixed chair and
handcuffing him to a steel table in an interrogation room while they questioned
him for less than one hour do not amount to police coercion. See McCall v.
Dutton, 863 F.2d 454 (6th Cir.1988) (no coercion when officers handcuffed a
defendant and placed him on the ground, then numerous armed officers
surrounded and yelled at him); State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d
491 (1990) (“find[ing] nothing improper in the ‘length, intensity, and frequency’
of the questioning” when there was no evidence of deprivation or mistreatment
and “the actual interview took up only about three hours”).
{¶ 42} Based on the totality of the circumstances presented here, Wesson
validly waived his Miranda rights, and we reject this proposition of law.
Selection of the Three-Judge Panel
{¶ 43} In proposition of law IV, Wesson argues that the trial court violated
R.C. 2945.06 and his due process rights because Judge Teodosio, the judge
assigned to hear Wesson’s criminal trial, selected the other two judges who served
on the three-judge panel that adjudicated his guilt and imposed sentence.
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{¶ 44} R.C. 2945.06 provides the procedure for appointing judges when
the accused in a death penalty case waives the right to trial by jury:
[The accused] shall be tried by a court to be composed of three
judges, consisting of the judge presiding at the time in the trial of
criminal cases and two other judges to be designated by the
presiding judge or chief justice of that court, and in case there is
neither a presiding judge nor a chief justice, by the chief justice of
the supreme court.
{¶ 45} Wesson waived his right to a jury trial and elected to have the case
tried to a three-judge panel. After reviewing our decision in State v. Eley, 77
Ohio St.3d 174, 672 N.E.2d 640 (1996), Judge Teodosio concluded that as the
judge presiding over the case, he had the authority to designate the other judges to
serve on the panel. Wesson executed an amended written waiver, consenting to
be tried by a panel “consisting of Judge Thomas A. Teodosio, presiding at this
time, and two other judges to be designated pursuant to law.” Judge Teodosio
then appointed Judges Brenda Burnham Unruh and Robert M. Gippin to the panel
and docketed a journal entry confirming that the court had constituted the panel as
“selected and approved by counsel for Defendant.” Wesson never objected to
Judge Teodosio’s decision to appoint the panel nor sought to withdraw the jury
waiver.
{¶ 46} The term “presiding judge,” as used in R.C. 2945.06, does not refer
to the judge to whom a capital case has been assigned, but rather refers to the
presiding judge of the common pleas court. The statute requires the court to be
composed of three judges: the judge presiding at the time in the case and two
others to be designated by the presiding judge or chief justice of the common
pleas court, and when there is neither, then by the chief justice of the Supreme
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Court.1 If the General Assembly had intended to allow the judge assigned to
preside over a capital murder trial to appoint the other two judges of the three-
judge panel, then there would be no need to designate the chief justice of the
Supreme Court to appoint the judges when there is neither a presiding judge nor a
chief justice of the common pleas court, because there would always be a judge
presiding over the capital case. Thus, the term “presiding judge,” as used in R.C.
2945.06, does not refer to the judge presiding over the assigned capital case.
Instead, it refers to the judge who serves as the presiding judge over a multiple
judge common pleas court.
{¶ 47} We realize that the trial court here reviewed and relied on our
statement in Eley, paraphrasing R.C. 2945.06 as “provid[ing] that the three-judge
panel is to be composed of three judges: the judge presiding at the time in the trial
of criminal cases and two judges to be designated by that judge or by the
presiding judge or chief justice of that court.” Id. at 184. However, that language
is dicta, as Eley presented no question regarding the authority to appoint members
of the three-judge panel, and it is inconsistent with the plain meaning of R.C.
2945.06. We disavow our statement in Eley that the judge presiding over the
capital case may designate the other two judges, and we clarify that when a
person charged with a capital offense waives a jury, the panel hearing the case
shall be composed of three judges, two of whom shall be designated by the
presiding judge or the chief justice of the common pleas court, and if no one holds
either position, then they shall be designated by the chief justice of the Supreme
Court.
1. Ohio law provided for common pleas courts to select a chief justice of the court until 1995. See
Sub.H.B. No. 151, 146 Ohio Laws, Part II, 2177 (an act “to repeal section 2301.04 of the Revised
Code to eliminate the authority of a court of common pleas with more than two judges to
designate one of their number as the chief justice of the court”). The current Ohio Rules of
Superintendence provide for common pleas courts to select a presiding judge, not a chief justice of
the court. Sup.R. 3.
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{¶ 48} Accordingly, the judge presiding over Wesson’s trial, who was
neither the presiding judge nor the chief justice of the Summit County Common
Pleas Court, lacked authority to designate the other two members of the panel.
{¶ 49} We have held that trial courts must strictly comply with R.C.
2945.06 and convene a three-judge panel when the accused in a capital case
waives a jury. See State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766 (1996),
paragraph one of the syllabus (holding that the jury-waiver requirements in R.C.
2945.05 must be strictly observed); Pratts v. Hurley, 102 Ohio St.3d 81, 2004-
Ohio-1980, 806 N.E.2d 992, ¶ 14 (requiring strict compliance with statutory
procedures for three-judge panels). Further, in Pratts, we noted that strict
compliance with the mandate for a three-judge panel may not be voluntarily
waived and the failure to strictly comply with the mandate is always reversible
error on direct appeal. Id. at ¶ 32.
{¶ 50} However, we have never held that error in the selection of the
three-judge panel is per se reversible error nor that such an error could not be
waived. Rather, we have recognized that not every trial court error in applying
R.C. 2945.06 is automatically reversible error. In State v. Turner, 105 Ohio St.3d
331, 2005-Ohio-1938, 826 N.E.2d 266, for example, we considered the
requirement that the three-judge panel “examine the witnesses” to determine the
accused’s guilt. There, the court had failed to comply with R.C. 2945.06,
admitting evidence through agreed stipulations of facts rather than through live
testimony, but we declined to hold that the error was reversible. Quoting our
prior decision in State v. Post, 32 Ohio St.3d 380, 393, 513 N.E.2d 754 (1987),
we explained:
“Agreements, waivers and stipulations made by the
accused, or by the accused's counsel in his presence, during the
course of a criminal trial are binding and enforceable. * * *
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Although R.C. 2945.06 requires the court to ‘examine the
witnesses’ in determining whether the accused is guilty of
aggravated murder, we find that appellant was bound by the
agreed-upon procedure wherein the state would proffer a statement
of facts in lieu of witnesses or other evidence.”
Turner at ¶ 41.
{¶ 51} Here, Wesson accepted the court’s method of appointing the
members of the three-judge panel. He executed an amended jury waiver in open
court immediately after Judge Teodosio explained that he would designate the
members of the panel, and the journal entry confirmed that the court had
constituted the panel as “selected and approved by counsel for Defendant.” And
because Wesson never objected to the procedure followed by Judge Teodosio to
select the panel members nor objected to the panel members, he has forfeited all
but plain error.
{¶ 52} Reversal for plain error “is warranted only if the outcome of the
trial clearly would have been different absent the error.” State v. Hill, 92 Ohio
St.3d 191, 203, 749 N.E.2d 274 (2001). But here, Wesson makes no argument—
and therefore does not demonstrate—that the appointment of different members to
the three-judge panel would have changed the outcome of the proceeding.
Further, both of the panelists served as members of the Summit County Court of
Common Pleas. Nothing suggests that either was ineligible or unqualified to hear
the case.
{¶ 53} Because Wesson fails to demonstrate plain error, this proposition
of law is not well taken.
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Right to Present a Complete Defense
{¶ 54} Proposition of law III asserts that the trial court violated Wesson’s
due process rights when it refused to admit a recording of his retraction of the
statement he made to police on the day of his arrest.
{¶ 55} When confronted by detectives, Wesson initially claimed that he
and Mary had a sexual relationship, that Emil regularly watched them engage in
intercourse, and that he and Mary were having sex when Emil became angry and
threatened him with a gun and a knife. He further stated that in response to the
threat, he stabbed Emil, and because Mary struck him with her cane, he also
stabbed her.
{¶ 56} Prior to trial, defense counsel notified the court that Wesson
“repudiates the statement made by him on the day of his arrest to Detective
Harrah” and submitted an audio recording of the repudiation, asserting that the
tape “call[ed] into question the admissibility of his arrest day statement” by
proving that it was “untrustworthy and unreliable.”
{¶ 57} The state moved to exclude the repudiation recording from trial,
arguing that it constituted inadmissible hearsay. The trial court excluded the
recording, concluding that Evid.R. 801(D)(2) does not permit a party to offer his
own out-of-court statement as an admission by a party opponent.
{¶ 58} Wesson concedes that the Rules of Evidence bar admission of his
repudiation. See State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824
N.E.2d 504, ¶ 105 (“A party may not introduce his own statement under Evid.R.
801(D)(2)(a)”); In re Coy, 67 Ohio St.3d 215, 218, 616 N.E.2d 1105 (1993).
However, he asserts that applying the hearsay rule in these circumstances
deprived him of the constitutional right to present a defense.
{¶ 59} “[T]he Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’ ” Crane v. Kentucky, 476 U.S. 683,
690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), quoting California v. Trombetta, 467
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U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). However, “[a]
defendant’s right to present relevant evidence is not unlimited, but rather is
subject to reasonable restriction.” United States v. Scheffer, 523 U.S. 303, 308,
118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). And states have a legitimate interest in
ensuring that triers of fact are presented with reliable evidence and have “broad
latitude under the Constitution to establish rules excluding evidence from criminal
trials” to further that goal. Scheffer at 308, 309. Such “rules do not abridge an
accused’s right to present a defense so long as they are not ‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve’ ” and if they do not
“infringe[ ] upon a weighty interest of the accused.” Id. at 308, quoting Rock v.
Arkansas, 483 U.S. 44, 56, 58, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).
{¶ 60} Ohio’s rule excluding hearsay statements offered by a party to
advance that party’s own interests is neither arbitrary nor disproportionate. The
general rule excluding hearsay, “which has long been recognized and respected by
virtually every State,” traditionally excludes “[o]ut-of-court statements * * *
because they lack the conventional indicia of reliability: they are usually not made
under oath or other circumstances that impress the speaker with the solemnity of
his statements; the declarant’s word is not subject to cross-examination; and he is
not available in order that his demeanor and credibility may be assessed” by the
trier of fact. Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 35
L.Ed.2d 297 (1973), citing California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930,
26 L.Ed.2d 489 (1970). This rule is “based on experience and grounded in the
notion that untrustworthy evidence should not be presented to the triers of fact,”
id., and therefore, excluding self-serving hearsay statements that are not subject to
cross-examination or made under circumstances ensuring their reliability is
neither arbitrary nor disproportionate to the purposes the rule is designed to serve.
{¶ 61} In this case, Wesson has failed to demonstrate that applying the
hearsay rule to his statement “infringed upon a weighty interest of the accused.”
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Scheffer, 523 U.S. at 308, 118 S.Ct. 1261, 140 L.Ed.2d 413. Although he asserts
that excluding his repudiation undermined his ability to combat the prejudicial
effect of his statement to police, he does not explain how it impaired his ability to
offer any particular defense. Moreover, he could have repudiated his statement to
police at trial, if he were willing to do so under oath and subject himself to cross-
examination, but he chose not to do so, and he is precluded from introducing his
own inadmissible hearsay repudiation as a substitute for that testimony.
{¶ 62} For these reasons, this proposition is not well taken.
Conviction for Committing Aggravated Murder While Under Detention
{¶ 63} Proposition of law II asserts that Wesson’s conviction for
committing aggravated murder while under detention and his convictions for the
specifications charging that he committed aggravated murder while under
detention are invalid because the sentence imposing the postrelease control that
caused him to be under detention is void.
{¶ 64} At trial, the state proved that Wesson had been convicted in 2003
of burglary, violating a protection order, criminal damaging or endangering, and
domestic violence. Pursuant to R.C. 2967.28(B)(2), Wesson’s conviction for
burglary, a second-degree felony, required the trial court to impose a prison
sentence and a mandatory three-year term of postrelease control, but the trial
court mistakenly sentenced him to a three-year discretionary term of postrelease
control to be served at the discretion of the Adult Parole Authority. In May 2007,
the Adult Parole Authority released him from prison subject to a three-year term
of postrelease control.
{¶ 65} Within a year of his release, Wesson murdered Emil, and the state
charged him with committing aggravated murder while under detention. Relying
on the 2003 sentencing entry and Wesson’s postrelease-control order, the three-
judge panel found Wesson guilty of committing aggravated murder while under
detention (Count Three) and of two specifications for committing aggravated
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murder while under detention (Specification One to Count Two and Specification
One to Count Three).
{¶ 66} In State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d
960, we concluded that an offender could not be convicted of escape when his term
of postrelease control was void. In that case, Billiter had been convicted of
aggravated burglary and domestic violence and sentenced to imprisonment and
postrelease control in 1998. After he served his prison term and the Adult Parole
Authority placed him on postrelease control, Billiter violated the terms of his
release, and he subsequently pled guilty to escape in 2004. He did not appeal, but
in 2010, he filed a motion to vacate the escape conviction, seeking to invalidate his
2004 guilty plea because his 1998 postrelease-control sentence was void. The trial
court denied the motion and the court of appeals affirmed.
{¶ 67} Reversing the appellate court, we held that Billiter’s 1998 sentence
was void because it imposed an incorrect term of postrelease control, that “[t]he
trial court’s incorrect sentence for postrelease control in 1998 was insufficient to
confer authority upon the Adult Parole Authority to impose up to three years of
postrelease control on Billiter,” id. at ¶ 12, and that he “[was] not barred by res
judicata from arguing that his plea [to the escape charge] is void,” id. at ¶ 13.
{¶ 68} Here, Wesson’s 2003 sentence failed to impose a mandatory three-
year term of postrelease control, and so that part of the 2003 sentence is void. See
R.C. 2967.28(B)(2); Billiter at ¶ 12; State v. Fischer, 128 Ohio St.3d 92, 2010-
Ohio-6238, 942 N.E.2d 332, ¶ 26. Accordingly, pursuant to Billiter, we reverse
the conviction for (1) Count Three, (2) the specifications to Count Three, and (3)
the specification to Count Two that Wesson committed aggravated murder while
under detention. For the reasons explained in our independent sentencing
evaluation below, Wesson’s sentence of death for Count Two is unaffected by this
disposition.
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Allied Offenses
{¶ 69} Proposition of law VI contends that aggravated robbery (Count
Seven) and tampering with evidence (Count Ten) are allied offenses of similar
import because both involved Wesson’s carrying a gun and a cup out of the
Varholas’ house and discarding them in the bushes in the front of the house.
According to Wesson, his “animus for taking the items from the house was the
same as the animus for making these items unavailable to the prosecution.” The
trial court sentenced Wesson to nine years for the robbery conviction and four
years for tampering with evidence, to be served consecutively.
{¶ 70} R.C. 2941.25(A) states: “Where the same conduct by defendant
can be construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the
defendant may be convicted of only one.” But pursuant to R.C. 2941.25(B),
“where his conduct results in two or more offenses of the same or similar kind
committed separately or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the defendant may be
convicted of all of them.” Thus, as we explained in State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, “[w]hen determining whether two
offenses are allied offenses of similar import subject to merger under R.C.
2941.25, the conduct of the accused must be considered.” Id. at the syllabus.
{¶ 71} Wesson’s allied offenses claim fails because the same conduct is not
the basis of both convictions. Wesson tampered with evidence when he removed
the cup and the long gun from the Varhola home and concealed them in the bushes.
He committed other conduct supporting the aggravated robbery conviction when he
stole Emil’s wallet and Mary’s jewelry. Notably, the trial court referred to the
stolen wallet when discussing the aggravating circumstance of the aggravated
robbery in its sentencing opinion.
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{¶ 72} Because the aggravated robbery and the tampering with evidence
involve separate conduct and different property, they are not allied offenses and
Wesson can be separately sentenced on each conviction. We therefore reject this
proposition of law.
Victim-Impact Statements
{¶ 73} In proposition of law VII, Wesson claims that his Eighth
Amendment rights were violated by the introduction of four victim-impact
statements that were given before the trial court issued its sentencing opinion.
{¶ 74} The Eighth Amendment does not bar the admission of victim-
impact evidence. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115
L.Ed.2d 720 (1991). Rather, as the court explained in Payne, each “[s]tate may
legitimately conclude that evidence about the victim and about the impact of [a]
murder on the victim’s family is relevant to the [fact-finder’s] decision as to
whether or not the death penalty should be imposed.” Id. And in State v. Smith,
97 Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, we held: “Victim-impact
evidence is permitted where it elicits the effect that the victim’s death has had on
family members. * * * However, victim-impact evidence that expresses an
opinion as to the appropriate sentence to be imposed is inappropriate.” Id. at ¶ 65.
{¶ 75} In this case, Paul Varhola’s statement reflected on his father’s
military service and character, the heinous nature of the crime, and the impact that
his mother’s injuries had on the family. His wife explained the impact of the
crime on her family, described Wesson as having taken advantage of Emil’s
friendship and generosity, and expressed her wish that Wesson be sentenced to
death so he could not hurt anyone else. The victims’ nephew, Dennis Woods,
explained how Emil’s murder and Mary’s injuries had affected their family,
neighbors, and friends. Woods called Wesson a liar, “a menace to society,” “a
pathetic coward with no respect for human life,” and among “the worst scum of
any society” because he “prey[s] on the weak and the defenseless.” Woods said
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January Term, 2013
that it had been proved “beyond a shadow of a doubt that justice can only be
served if Hersie R. Wesson is sentenced to death.” And in a recorded statement,
Mary described Wesson as a liar who took advantage of her husband, explained
how the crime had ruined her finances and home, and expressed her wish that the
court sentence Wesson to death.
{¶ 76} The foregoing demonstrates that the trial court improperly
permitted statements about punishment for the crime, specifically, statements
recommending that capital punishment be imposed; however, these statements
were presented to a three-judge panel, not a jury, and we have recognized that
when an improper victim-impact statement is conveyed only to judges, “it is not
reversible error unless there is some indication that the judge actually considered
it in sentencing the defendant to death.” State v. Franklin, 97 Ohio St.3d 1, 2002-
Ohio-5304, 776 N.E.2d 26, ¶ 88.
{¶ 77} Nothing in this record suggests that the panel relied on the victim-
impact statements in reaching its sentencing decision, and Wesson admits that the
sentencing opinion does not refer to the victim-impact statements. See State v.
Goodwin, 84 Ohio St.3d 331, 343, 703 N.E.2d 1251 (1999) (finding no improper
influence where the judge heard an improper victim-impact statement but the
sentencing opinion did not refer to the statement); State v. Treesh, 90 Ohio St.3d
460, 489, 739 N.E.2d 749 (2001) (holding that no reversible error occurred where
the court did not refer to the “improper sentencing recommendation either orally
at sentencing or in the court’s written sentencing opinion”). Notably, here, the
victim-impact statements were presented to the court only after the panel had
decided to impose a death sentence and had announced that it “unanimously finds
by proof beyond a reasonable doubt, that the aggravating circumstances the
Defendant was found guilty of committing outweighed the mitigating factors.”
{¶ 78} Wesson asserts that because the panel was authorized to change its
sentencing decision after hearing the victim-impact statements, it may have been
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improperly influenced by the statements into maintaining its original decision.
This speculation does not show improper influence, and Wesson points to nothing
demonstrating that the statements affected the decision to impose capital
punishment. Thus, as we explained in State v. Hale, 119 Ohio St.3d 118, 2008-
Ohio-3426, 892 N.E.2d 864, when there is no indication that the trial court
considered the victim-impact statements in arriving at its sentencing decision,
“ ‘[t]his court will presume that a trial court considered only the relevant,
material, and competent evidence in arriving at its judgment.’ ” Id. at ¶ 148,
quoting State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186,
¶ 131.
{¶ 79} Therefore, this proposition lacks merit.
Ineffective Assistance of Counsel
{¶ 80} In proposition of law VIII, Wesson claims ineffective assistance of
counsel during the guilt phase of the trial. He identifies five instances of
allegedly deficient performance, each of which recasts one of his substantive
propositions of law as an ineffective-assistance claim. He also makes a blanket
claim that counsel rendered deficient performance with respect to “arguments
addressed elsewhere in [his] brief.”
{¶ 81} To establish his claim, Wesson bears the burden to demonstrate
that counsel’s performance “fell below an objective standard of reasonableness”
as determined by “prevailing professional norms” and to demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland v. Washington, 466 U.S.
668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When performing this
analysis, courts “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689.
{¶ 82} Three of Wesson’s ineffective assistance claims may be denied for
the same reasons that we rejected the errors asserted in propositions I, VI, and
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VII.2 Counsel did not perform deficiently (1) by “fail[ing] to object to the
improper indictment which did not include the mens rea for Aggravated
Robbery,” because the indictment was not defective, (2) by failing to request
merger of the aggravated robbery and tampering counts, because they were based
on different conduct, or (3) by failing to object to victim-impact statements,
because Wesson suffered no prejudice and there is no indication that the court
relied on these statements in imposing sentence.
{¶ 83} Wesson also asserts ineffective assistance because counsel failed to
object to Judge Teodosio’s appointment of the three-judge panel. We have
clarified that as the judge presiding over the trial, Judge Teodosio should not have
appointed the other members of the panel. Nonetheless, Wesson fails to
demonstrate any reasonable probability that, but for counsel’s failure to object,
the result of the proceeding would have been different. Strickland at 694.
Nothing in the record or Wesson’s brief indicates that different judges would have
been appointed or that had different judges been appointed, the outcome of the
trial would have been different.
{¶ 84} Wesson’s claim that counsel provided ineffective assistance by not
contesting the state’s proof that he committed the murder while under detention is
mooted by our resolution of proposition of law II.
{¶ 85} For the foregoing reasons, we reject this proposition of law.
Cumulative Error
{¶ 86} In proposition of law IX, Wesson raises cumulative error.
According to Wesson, the trial court deprived him of a fair trial due to a
combination of errors that violated the Fifth, Sixth, Eighth, and Fourteenth
Amendments.
2. Wesson’s blanket claim of deficient performance based on “arguments addressed elsewhere in
[his] brief” can be rejected for similar reasons.
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{¶ 87} The cumulative error doctrine provides that “a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a
fair trial even though each of the numerous instances of trial-court error does not
individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 223, citing State v. DeMarco, 31 Ohio St.3d
191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.
{¶ 88} Here, Wesson cannot point to “multiple instances of harmless
error.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Nor does
Wesson explain how the alleged errors collectively deprived him of a fair trial,
and as we explained in State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854
N.E.2d 150, “it is not enough simply to intone the phrase ‘cumulative error.’ ” Id.
at ¶ 197.
{¶ 89} Accordingly, this proposition of law is overruled.
Settled Issues
{¶ 90} In propositions X, XI, and XII, Wesson presents 12 constitutional
challenges to Ohio’s capital punishment scheme. We summarily reject these
claims, as we have done in prior decisions. See, e.g., Fry, 125 Ohio St.3d 163,
2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 215-216; State v. Davis, 116 Ohio St.3d
404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 381-383; State v. Carter, 89 Ohio St.3d 593,
607-608, 734 N.E.2d 345 (2000). As we explained in State v. Jenkins, 15 Ohio
St.3d 164, 473 N.E.2d 264 (1984), paragraph one of the syllabus, “Ohio’s
statutory framework for imposition of capital punishment, as adopted by the
General Assembly effective October 19, 1981, and in the context of the arguments
raised herein, does not violate the Eighth and Fourteenth Amendments to the
United States Constitution or any provision of the Ohio Constitution.”
{¶ 91} Wesson also argues that Ohio’s death penalty statutes violate
international law and treaties and therefore offend the Supremacy Clause of the
U.S. Constitution. However, we have “rejected the argument that Ohio’s death
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penalty statutes are in violation of treaties to which the United States is a
signatory, and thus offend[ ] the Supremacy Clause of the United States
Constitution.” State v. Bey, 85 Ohio St.3d 487, 502, 709 N.E.2d 484 (1999).
{¶ 92} These propositions of law are overruled.
INDEPENDENT SENTENCING EVALUATION
{¶ 93} Because we affirm Wesson’s conviction for aggravated felony
murder, R.C. 2903.01(B), we are required to independently review the sentence of
death imposed by the trial court. R.C. 2929.05(A). In doing so, we must
determine whether the evidence supports the trial court’s finding of aggravating
circumstances, whether the aggravating circumstances outweigh the mitigating
factors, and whether Wesson’s death sentence is proportionate to those affirmed
in similar cases. Id.Aggravating Circumstances
{¶ 94} The court convicted Wesson of specifications alleging that he (1)
murdered Emil Varhola as “part of a course of conduct involving the purposeful
killing of or attempt to kill two or more persons by the offender,” R.C.
2929.04(A)(5), and (2) was “the principal offender in the commission of the
aggravated murder” and committed that murder while “committing, attempting to
commit, or fleeing immediately after committing or attempting to commit * * *
aggravated robbery,” R.C. 2929.04(A)(7). The evidence at trial supports the
finding of both aggravating circumstances.
{¶ 95} First, the evidence establishes that Wesson’s murder of Emil and
attempted murder of Mary were purposeful and part of a single course of conduct.
See R.C. 2929.04(A)(5). Wesson used the same knife to stab both victims, and
the attacks were linked in time and place. See State v. Sapp, 105 Ohio St.3d 104,
2004-Ohio-7008, 822 N.E.2d 1239, ¶ 52 (factors such as time, location, and
murder weapon can establish the factual link proving a course of conduct). The
evidence also supports the conclusion that Wesson acted purposefully. He
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stabbed Emil eight times, inflicting two fatal wounds, and when Mary discovered
Wesson standing over her husband’s body, he stabbed her several times in the
chest and upper abdomen. According to Mary’s testimony, Wesson stopped
attacking her only when she pretended to be dead. The evidence supports the trial
court finding that Wesson is guilty of the specification set forth in R.C.
2929.04(A)(5).
{¶ 96} Second, the evidence also proves that Wesson committed the crime
as the principal offender and murdered Emil in the course of committing
aggravated robbery. See R.C. 2929.04(A)(7). Wesson acted alone and took a
gun, a cup, Emil’s wallet, and Mary’s jewelry from the home when he left. This
evidence supports the trial court finding that Wesson is guilty of the specification
set forth in R.C. 2929.04(A)(7).
{¶ 97} The trial court also found Wesson guilty of a third specification,
committing the offense while under detention as a result of a prior conviction
pursuant to R.C. 2929.04(A)(4)(b). We reverse that finding of guilt based on the
improper imposition of postrelease control in 2003. We further conclude that the
trial court erred by considering that specification as an aggravating circumstance.
However, we cure that error by excluding that specification from our independent
review of Wesson’s sentence. State v. Davis, 76 Ohio St.3d 107, 115, 666 N.E.2d
1099 (1996) (affirming death sentence after reversing a conviction for an
attempted-rape specification and “independently reweigh[ing] the remaining
aggravating circumstances against the mitigating factors”); see Clemons v.
Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); Stringer
v. Black, 503 U.S. 222, 230-231, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). In
accord with the foregoing authority, we exclude this third specification—that
Wesson committed the offense while under detention as a result of a prior
conviction—from our independent sentencing evaluation.
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Mitigating Evidence
{¶ 98} We are further required to determine whether the aggravating
circumstances of which Wesson has been convicted—excluding the commission
of the offense while under detention—outweigh the mitigating factors in this case
beyond a reasonable doubt. In doing so, we consider whether there is anything
mitigating about the “nature and circumstances of the offense, [or] the history,
character, and background of the offender.” R.C. 2929.04(B). In addition, we
consider the specific mitigating factors set forth in R.C. 2929.04(B): (B)(1)
(victim inducement), (B)(2) (duress, coercion, or strong provocation), (B)(3)
(mental disease or defect), (B)(4) (youth of the offender), (B)(5) (lack of a
significant criminal record), (B)(6) (accomplice only), and (B)(7) (any other
relevant factors).
{¶ 99} During the penalty phase of the trial, defense counsel argued that
two of the statutory mitigating factors are present in this case. One, a claim that
Wesson has a mental condition affecting his ability to conform his conduct to the
requirements of the law. See R.C. 2929.04(B)(3). Two, a variety of other factors
relevant to whether Wesson should receive a death sentence pursuant to the
catchall mitigation provision contained in R.C. 2929.04(B)(7). In support,
Wesson presented two mitigation witnesses and made an unsworn statement in
open court.
{¶ 100} Wesson’s older sister, Yvette Wesson, testified about Wesson’s
family background and his formative years. She testified that he has two full
siblings, several half-siblings, children, and many grandchildren, and that he has
the support of his family.
{¶ 101} His mother, Barbara Wesson, worked multiple jobs and often
relied on family, friends, and neighbors to help out during Wesson’s youth. The
family moved frequently, living in various homes in the Cleveland and Detroit
areas. The Wessons’ house burned down when Wesson was five years old, and
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the family moved in with Wesson’s paternal grandmother. The children were
later separated and lived with different family members for a while before their
mother was able to care for them again. The Children’s Services Board
periodically monitored the family throughout Wesson’s youth.
{¶ 102} Yvette considered herself his primary caregiver for the first five
or six years of his life. She recalled an incident when her mother and
grandmother wanted to go out but lacked a babysitter, so they locked the children
in the closet with a baby bottle filled with milk and gin (for Wesson, then an
infant) and a bottle of beer (for Yvette, then two and one-half years old). When
Wesson drank the bottle, he passed out and Yvette thought he had died.
{¶ 103} Wesson’s parents were both alcoholics, and Barbara drank alcohol
during her pregnancies. His father, Hersie Wesson Sr., turned violent when
drunk, regularly beating the children with instruments like razor straps, bed slats,
electric cords, belts, and switches. His father gave him a particularly hard time,
telling Wesson that he did not have his father’s blood—Wesson had received a
blood transfusion at birth—and regularly belittling and beating him for stuttering.
{¶ 104} His father moved out of the family home when Wesson was five
or six years old, and his mother hired a babysitter to care for the children while
she worked. She also began dating a violent man named Marino. The babysitter
mistreated Wesson, and Marino regularly beat Barbara in front of him—one time
severely enough to cause a miscarriage. Another time, the children watched
Marino tie their mother up, put her in the bathtub, and beat her.
{¶ 105} During his preteen years, Wesson lived with his maternal
grandmother, Evelyn Williams, in Akron, Ohio. Williams, a functional alcoholic,
regularly beat him with her cane, but her brother, Eugene, intervened to protect
him from abuse. Yvette described Eugene as the children’s “savior.”
{¶ 106} Yvette also testified that Wesson suffered several head injuries.
As an infant, he fell down the stairs and “cracked his head open,” but he received
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no treatment. As a teenager, he suffered injuries to the back of his head when he
was beaten during a robbery. And later in life, Wesson’s younger brother
smashed a 30 to 40 pound lead-glass basket over his head.
{¶ 107} Yvette noted that until February 2008, Wesson had complied with
his parole and worked with her in a bakery.
{¶ 108} Dr. Jeffrey Smalldon, a clinical and forensic psychologist,
evaluated Wesson. He discussed Wesson’s family background and his “chaotic”
childhood, noting that Wesson moved frequently—often between relatives’
homes—and received minimal supervision as a child. Children mocked Wesson
at school, especially for his lifelong stuttering problem, and he quit school after
seventh grade, spending a lot of his adolescence in the juvenile system.
{¶ 109} Smalldon testified that Wesson told him he “had a bad childhood”
but Smalldon noted that Wesson did not dwell on his parents’ alcoholism or his
own physical abuse. Wesson’s father physically abused him and ridiculed him for
stuttering, and he once pointed a gun at Wesson. And Wesson regularly
witnessed acts of violence as a child, which included observing the shooting death
of his father’s girlfriend. Smalldon opined that these experiences led Wesson to
see physical violence as an acceptable way to resolve conflicts and contributed to
his sense of vulnerability.
{¶ 110} Smalldon also noted that Wesson had suffered serious head
injuries. As a teenager, police officers hit the back of Wesson’s head with the
butt of a gun. Years later, Wesson’s brother hit him over the head with a glass
object, and though he lost consciousness, he received no medical treatment.
Wesson also reported falling from a tree as an adult and striking his head.
Smalldon testified that even relatively mild head injuries can be associated with
impulsivity and poor judgment, but he could not corroborate the injuries Wesson
reported with either hospital records or results from independent
neuropsychological testing.
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{¶ 111} In addition, Smalldon administered a range of tests during his
evaluation of Wesson, who cooperated with most tests and appeared motivated to
do well and anxious to be deemed mentally fit and motivated. On the Wide-
Range Achievement Test, Wesson functioned at a third-grade level for word
recognition, a sixth-grade level in spelling, and a second-grade level in arithmetic.
Wesson’s performance on a standardized IQ test yielded an estimated full-scale
IQ of 76. On the Trail Making Test, Wesson scored in the normal range for visual
scanning and speed, but badly faltered on the part of the test that required mental
flexibility, which might indicate brain impairment. He demonstrated deficits on
the Aphasia Screening Test, which might also indicate impaired brain functioning.
However, Wesson performed well on the Rey’s 15-item Visual Memory Test, a
screening mechanism for assessing the subject’s motivation to give his best effort,
and did reasonably well on the Bender Visual Motor Gestalt Test, a test designed
to assess brain impairment.
{¶ 112} Wesson completed two self-report symptom checklists, both of
which indicated clinically significant symptoms of depression, anxiety, and
feelings of inadequacy and low self-worth. Wesson had also been diagnosed with
major depression in 2007, when he lost his job and his criminal background
impeded his finding new work.
{¶ 113} According to Smalldon, Wesson fathered five children by three
different women. His adult relationships with women were fraught with conflict
and alcohol issues. He stated that Wesson seemed to have become frantic
whenever he thought he was going to be rejected and abandoned by a woman,
largely due to feelings of inadequacy and self-doubt.
{¶ 114} Wesson began drinking at an early age, abused alcohol regularly
as an adult, engaged in episodes of binge drinking, and was diagnosed with
alcohol dependence in 2008. Smalldon opined that prenatal alcohol exposure may
have caused Wesson to suffer deficits such as an inability to assess the
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consequences of his behavior, an inability to respond appropriately to subtle
social cues, and weak language skills.
{¶ 115} Smalldon diagnosed Wesson with (1) depressive disorder (not
otherwise specified), (2) borderline intellectual functioning, (3) alcohol
dependence, and (4) a personality disorder with passive-aggressive, narcissistic,
and antisocial features. According to Smalldon, these aspects of Wesson’s
personality make him impulsive and likely to overreact to perceived slights.
{¶ 116} Smalldon opined that Wesson’s limited intellectual ability,
struggles at school, difficulty with stuttering, and lack of support at home may
have rendered him unable to successfully adapt to the circumstances of his
childhood and adolescence. He also indicated that Wesson’s limited intellectual
ability, personality, history of depression, and alcohol exposure may have
compromised his ability to conform his conduct to the requirements of the law.
Nonetheless, Smalldon testified that he believed that Wesson had understood the
criminality of his behavior. And on cross-examination, he acknowledged that
most people with issues similar to Wesson’s do not commit crimes and that
Wesson had received mental health treatment while in the juvenile justice system
and while on parole as an adult.
{¶ 117} In an unsworn statement, Wesson expressed his fondness for the
Varholas. He had visited with Emil Varhola approximately 12 times in the yard
outside the Varhola home and had been in the home once before. He stated that
on that occasion, Emil came to the door holding a handgun, but he put it in his
pocket when he recognized Wesson.
{¶ 118} Wesson said he did not intend to rob or hurt the Varholas when he
went to their house on February 25, 2008. Rather, he knocked on the their door
around 6:40 p.m., to ask if he could wait there for his girlfriend’s bus to arrive at
7:43 p.m. He claimed the Varholas let him in and offered him food, coffee, and
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beer. Emil showed Wesson his guns, taking a long gun out of the living-room
gun cabinet and handing it to Wesson.
{¶ 119} Wesson said that he went upstairs to use the restroom, and when
he returned, he saw Mary watching television in the living room and Emil in the
kitchen. According to Wesson, Emil then made a comment about his wife’s
chest, and when Wesson said he did not like the comment, Emil stood up, grabbed
a knife, and walked toward him. Wesson claimed that he took the knife from
Emil and stepped back, but when he saw Emil reach into his pocket, he thought
Emil might be reaching for the handgun Emil sometimes carried. Wesson then
“reacted to that threat” and stabbed him.
{¶ 120} After Emil fell to the ground, Wesson felt Emil’s pockets and
realized he did not have a gun. He then panicked, asking Mary, “Where is the
gun?” When Mary hit Wesson with her cane, he “turned on her,” but he stopped
the attack when Mary begged him not to kill her.
{¶ 121} Wesson spoke about his having respect for his elders and admitted
that “maybe [he] reacted too quickly.” He also expressed sorrow for his actions,
saying that he believed the Varholas were nice people, but he then immediately
stated, “Once I feel my life is threatened, I’m going to react,” explaining that after
the childhood he had had, he “will never let anyone ever hurt [him] again.” And
ultimately, Wesson failed to accept responsibility for his crimes, blaming Emil by
claiming that he would not be on trial and Emil “wouldn’t be up in heaven with
God right now” if Emil had not reached into his pocket.
{¶ 122} Wesson insisted that he did not need to rob or kill anyone for
money or a gun. According to Wesson, he was not pressed for money and he
could easily have secured a gun from friends on the east side. Wesson admitted
that he took the gun and cup from the house because he knew the gun had his
fingerprints on it.
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January Term, 2013
{¶ 123} Wesson acknowledged the love and support of his family
members, and he concluded his statement by telling the panel that he does not use
crack, dresses nicely, is polite, and is sorry.
Weighing
{¶ 124} We now assign weight to Wesson’s mitigating evidence and
determine whether the aggravating circumstances outweigh the mitigating factors
beyond a reasonable doubt.
{¶ 125} As an initial matter, we find nothing mitigating in the nature and
circumstances of the offense. R.C. 2929.04(B). Wesson murdered an 81-year-old
man and attempted to murder his 77-year-old wife in their own home. The
victims had befriended Wesson and extended him hospitality, even on the day of
the murder. No evidence supports Wesson’s unsworn claim that Emil threatened
him with a knife or a gun. At most, Wesson knew that Emil owned guns,
including a handgun, but far from posing a legitimate threat to Wesson, these
victims had serious medical problems and limited mobility, and he responded to a
perceived threat by stabbing the Varholas repeatedly with a knife.
{¶ 126} We find that five of the statutorily enumerated mitigating factors
do not apply. We give no weight to Wesson’s unsworn and unbelievable claims
that Emil and Mary induced, facilitated, or provoked the crime. See R.C.
2929.04(B)(1) and (B)(2). An offender’s youth is a mitigating factor pursuant to
R.C. 2929.04(B)(4), but Wesson was 50 years old at the time of the crime. And
Wesson cannot point to a lack of significant criminal history, see R.C.
2929.04(B)(5), or other offenders who participated in the crime, see R.C.
2929.04(B)(6).
{¶ 127} We give limited weight to evidence Wesson presented to show
that a mental disease or defect affected his ability to conform his conduct to the
requirements of the law. See R.C. 2929.04(B)(3). Dr. Smalldon testified that
Wesson’s ability to conform his conduct to the law may have been compromised
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at the time of the murder based on (1) his limited intellectual ability, (2) his
personality disorder with passive aggressive, narcissistic, and antisocial features,
(3) his history of depression, and (4) his history with alcohol. But neither long-
term depression nor Wesson’s personality disorders meets the requirements for a
“mental disease or defect” under R.C. 2929.04(B)(3). See Bey, 85 Ohio St.3d at
507-508, 709 N.E.2d 484 (finding no mental disease or defect where defendant
suffered from long-term depression and a serious personality disorder with
antisocial and paranoid features); State v. Fox, 69 Ohio St.3d 183, 192, 631
N.E.2d 124 (1994) (finding no mental disease or defect after defendant
established a personality disorder). Accordingly, Smalldon’s opinion deserves
only limited weight under R.C. 2929.04(B)(3).
{¶ 128} This evidence is also relevant to the catchall mitigation provision
contained in R.C. 2929.04(B)(7), and when it is viewed alongside other mitigating
evidence presented by Wesson, we find that he has presented mitigating evidence
that is entitled to significant weight pursuant to R.C. 2929.04(B)(7).
{¶ 129} Wesson presented evidence of a long history of contact with
alcohol. Prenatal alcohol exposure may have affected his ability to assess the
consequences of his behavior, his ability to respond appropriately to social cues,
and his language skills. In addition, Wesson consumed alcohol at a young age,
was alcohol dependent, and engaged in bouts of binge drinking. However,
Wesson did not present evidence of alcohol impairment at the time of the murder,
though he claimed that he had been impaired the next day, when he spoke to
police.
{¶ 130} Wesson has limited intellectual ability and may have suffered
brain impairment caused by head injuries. He has a low IQ and tested at
elementary school level in arithmetic, word recognition, and spelling. Smalldon
testified that Wesson’s low performance on certain tests could indicate brain
impairment, although he could not confirm it.
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January Term, 2013
{¶ 131} Further, according to Smalldon, Wesson struggles with
depression, has significant feelings of inadequacy and low self-worth, and is
prone to overreacting, caused in part by his unstable childhood. As a young child,
his older sister regularly cared for him, and he was shuttled between various
relatives. His alcoholic father physically abused him, and Wesson witnessed
serious violence in the home. Wesson also had a severe stutter, and his own
father and peers mocked him.
{¶ 132} This evidence is tempered, however, by testimony that relatives
and friends helped the family during his childhood. In fact, he still enjoys the
love and support of numerous family members, and some of them were present in
the courtroom at sentencing.
{¶ 133} Considering all of this evidence, we conclude that Wesson’s
background, history with alcohol, and mental difficulties are mitigating pursuant
to R.C. 2929.04(B)(7) and entitled to significant weight.
{¶ 134} Nonetheless, the weight of Wesson’s mitigation evidence is
substantially outweighed by the weight of the aggravating circumstances in this
case. After full consideration of the aggravating circumstances and the mitigating
factors, we conclude that the aggravating circumstances outweigh the mitigating
factors beyond a reasonable doubt.
Proportionality
{¶ 135} Finally, we conclude that the death penalty is appropriate and
proportionate compared to death sentences affirmed in other robbery-murder
cases. See Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31 (elderly
victim murdered in home robbery); State v. Foust, 105 Ohio St.3d 137, 2004-
Ohio-7006, 823 N.E.2d 836 (one murder and one attempted murder in home
robbery); State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096 (1997) (one
murder and one attempted murder in separate armed robberies). It is also
proportionate to death sentences upheld for other course-of-conduct murders.
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State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038 (one
murder and two attempted murders); Foust, 105 Ohio St.3d 137, 2004-Ohio-7006,
823 N.E.2d 836 (one murder and one attempted murder).
Conclusion
{¶ 136} Accordingly, we reverse Wesson’s conviction for aggravated
murder in Count Three, the specifications related to that count, and the
specification to Count Two alleging that he committed the murder while under
detention. However, we affirm the remaining convictions, the imposition of
capital punishment on Count Two, and the imposition of consecutive terms of
imprisonment on the noncapital offense convictions.
Judgment accordingly.
PFEIFER, ACTING C.J., and VUKOVICH and KENNEDY, JJ., concur.
FRENCH, J., concurs in part and dissents in part.
LANZINGER, J., dissents.
O’NEILL, J., dissents without opinion.
JOSEPH J. VUKOVICH, J., of the Seventh Appellate District, sitting for
O’CONNOR, C.J.
____________________
FRENCH, J., concurring in part and dissenting in part.
{¶ 137} I join the majority in all but the part of its decision vacating
Wesson’s conviction and specifications for aggravated murder while under
detention. On this point, I agree with Justice Lanzinger; Wesson’s 2003 sentence
was not void, and he committed the murder while under postrelease control. In all
other respects, I concur.
____________________
LANZINGER, J., dissenting.
{¶ 138} I respectfully dissent. For the reasons expressed in my opinion
concurring in part and dissenting in part in State v. Billiter, 134 Ohio St.3d 103,
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January Term, 2013
2012-Ohio-5144, 980 N.E.2d 960, I would not find void any portion of Wesson’s
2003 sentence. As the mistake was solely in the court’s exercise of jurisdiction in
imposing postrelease control (imposing three years of discretionary, rather than
three years of mandatory, postrelease control), the sentence was merely voidable.
Since the error was not raised on appeal within 30 days, res judicata applies and
Wesson remained under the supervision of the Adult Parole Authority.
{¶ 139} I also dissent from the majority’s judgment affirming the
remaining capital convictions. I would vacate the convictions and remand the
case to the trial court for the proper selection of a three-judge panel in this case as
precedent demands. Although it acknowledges the requirement of strict
compliance with R.C. 2945.05 and 2945.06 when a defendant waives a jury in a
capital case, the majority nonetheless declares that Wesson forfeited the right to
challenge the way that the three-judge panel was selected because he assented to
the procedure followed by Judge Teodosio in appointing the members of the
panel. This holding is inconsistent with our decisions in State v. Parker, 95 Ohio
St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846; State v. Filiaggi, 86 Ohio St.3d 230,
239, 714 N.E.2d 867 (1999); State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766(1996); and Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d
992.
{¶ 140} In Parker, the defendant in a capital case waived his right to a
trial by jury, waived his right to a three-judge panel, and pled guilty to aggravated
murder. Id. at ¶ 2. We affirmed the court of appeals’ decision to vacate the
conviction, holding that the defendant could not waive the right to a three-judge
panel. Id. at ¶ 11. In Filiaggi, the defendant had waived his right to a trial by
jury. Id. at 238. The three-judge panel entered convictions only on the
aggravated-murder charge and specifications, and the presiding judge decided the
noncapital charges. Id. at 239. We reversed the judgment and remanded the case
for the three-judge panel to render verdicts on the noncapital charges, holding that
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because we have consistently required strict compliance with R.C. 2945.06, “the
presiding judge did not have sole authority to enter a verdict on the noncapital
charges.” Id. at 240. Here, Wesson executed a jury waiver, consenting to be tried
by a panel “consisting of Judge Thomas A. Teodosio, presiding at this time, and
two other judges to be designated pursuant to law.” (Emphasis added.) Wesson
thus did not waive his rights under R.C. 2945.06 to the following of the proper
procedure in selecting his three-judge panel. Parker and Filiaggi would not allow
him to do so in any event.
{¶ 141} Furthermore, the majority’s opinion in this case is yet another
example of the inconsistent holdings of this court in cases in which the trial-court
judge acted contrary to a statutory mandate. The majority reverses Wesson’s
conviction for aggravated murder while under detention and for the corresponding
specification on Count Two due to a postrelease-control error. So on the one
hand, the majority collaterally declares a portion of Wesson’s 2003 sentence void
because the trial judge imposed three years of discretionary rather than mandatory
postrelease control. Then on the other hand, although the trial judge did not have
authority to appoint the other two judges of the three-judge panel in this capital
case, the majority affirms Wesson’s remaining capital convictions. Apparently, a
postrelease-control error is more important than a procedural error in a capital
case. I cannot agree with this inconsistency. I would hold that any error in the
court’s exercise of jurisdiction is voidable rather than void.
{¶ 142} As we held in Pratts,
[t]he failure of a court to convene a three-judge panel, as
required by R.C. 2945.06, does not constitute a lack of subject-
matter jurisdiction that renders the trial court’s judgment void ab
initio and subject to collateral attack in habeas corpus. It
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January Term, 2013
constitutes an error in the court’s exercise of jurisdiction that must
be raised on direct appeal.
(Emphases added.) 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, at
syllabus.
{¶ 143} Wesson raised this error on direct appeal. I would therefore
vacate the convictions and remand the case for a new trial in accordance with the
mandatory capital procedures within R.C. 2945.06. Because I would not hold any
portion of the 2003 sentence to be void, Wesson would still be eligible to be
convicted of Count Three and the specification to Count Two for aggravated
murder while under detention.
____________________
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard
S. Kasay, Assistant Prosecuting Attorney, for appellee.
David L. Doughten and George C. Pappas, for appellant.
_________________________
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