State v. Richey , 64 Ohio St. 3d 353 ( 1992 )

Moyer, C.J.

We have reviewed appellant’s twenty-three propositions of law, independently assessed the evidence relating to the death sentence, balanced the aggravating circumstance against the mitigating factors, and compared the sentence to those imposed in similar cases. As a result, we affirm the convictions and sentence of death.

I

Evidence of Threats

In his first proposition of law, Richey argues that admitting evidence of his threats destroyed the constitutionally required reliability and fairness of his trial and sentence. This evidence included the following. Richey told Deputy Roy Sargent on November 19 that “Randy Bassinger [the prosecutor] was a dead man” and that “whoever testified against him had better hope he’s six feet under.” On August 17, Richey told Deputy Mike Ball to take a message to Randy Bassinger, “that when he got out he was going to cut his throat.”

While in pretrial confinement, Richey initiated conversations with his jailers about the offenses charged against him. Richey’s threats were simply part of those conversations. Although Richey moved to suppress these statements, he did not object specifically to evidence of the threats. Hence, the issue is waived except for plain error. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364; State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804.

Richey’s threats reflect a consciousness of his guilt, similar to evidence of flight to avoid prosecution, or efforts made to cover up a crime or intimidate witnesses. See State v. Eaton (1969), 19 Ohio St.2d 145, 48 O.O.2d 188, 249 N.E.2d 897 (flight from justice may indicate a consciousness of guilt); Cleveland v. McNea (1952), 158 Ohio St. 138, 142, 48 O.O. 68, 70, 107 N.E.2d 201, 203 (suppression of adverse evidence constitutes a prejudicial circumstance of much weight); State v. Huffman (1912), 86 Ohio St. 229, 99 N.E. 295; Moore v. State (1853), 2 Ohio St. 500; 2 McCormick on Evidence (4 Ed.1992), Sections 263, 265; 2 Wigmore on Evidence (Chadbourn Rev.1979 and 1991 Supp.), Sections 273, 276 and 278.

However, even if we were to find the evidence improper, no plain error is apparent. The circumstantial evidence against Richey was compelling in view of his explicit threat that Building “A” would burn that night, his motive and opportunity to start the fire, and the other circumstances. In State v. Bayless (1976), 48 Ohio St.2d 73, 106, 2 O.O.3d 249, 267, 357 N.E.2d 1035, 1056, vacated in part (1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155, we found evidence about threats against deputies to be harmless error even though wrongfully admitted, over objection, in an aggravated murder prosecution. Additionally, in a bench trial, the court must be presumed to have “ ‘considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.’ ” State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759.

In Proposition of Law II, Richey argues that the judges of the panel, having been persuaded at the trial’s outset that Richey was dangerous, should have disqualified themselves. At the trial, the prosecutor moved that Richey’s hands and feet be shackled. However, the panel ordered Richey’s feet shackled but left his hands free.

Admittedly, “no one should be tried while shackled, absent unusual circumstances.” State v. Kidder (1987), 32 Ohio St.3d 279, 285, 513 N.E.2d 311, 318. However, shackling is left to the trial court’s sound discretion. State v. Woodards (1966), 6 Ohio St.2d 14, 23, 35 O.O.2d 8, 13, 215 N.E.2d 568, 576. In this case, defense counsel did not object to the shackling, and Richey had repeatedly threatened to kill the prosecutor and witnesses against him. Under the circumstances, we find no prejudicial error. Compare Woodards v. Cardwell (C.A.6, 1970), 430 F.2d 978, with Kennedy v. Cardwell (C.A.6, 1973), 487 F.2d 101; Annotation (1979 and 1991 Supp.), 90 A.L.R.3d 17. On its own motion, the court ruled that deputies could wear firearms and could search anyone entering the courtroom, but those orders reflected routine housekeeping functions. See R.C. 2945.03.

Even though the judges had been exposed to evidence about Richey’s threats, they did not need to recuse themselves. Richey accepted the panel and raised this issue neither at trial nor before the court of appeals. Hence, we need not consider this issue. State v. Williams, supra; State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772.

State v. Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d 272, is distinguishable. Gillard involved a ruling on ex parte evidence in a closed hearing under Crim.R. 16(B)(1)(e). Also, Gillard did not announce a per se prejudice rule. In this case, as in Gillard, the trial judges are presumed not to have improperly used the evidence about threats in their subsequent deliberations. State v. Post, supra. Nothing in the record indicates they did so, and the evidence of guilt is otherwise compelling. See discussion, Part V.

Since the evidence about Richey’s threats was included in the report of the presentence investigation, it could be considered during sentence deliberations. Such evidence relates to an accused’s “history, character, and background.” R.C. 2929.04(B). Criminal wrongdoing, even without convictions, is part of an accused’s social history and thus properly included in a presentence investigation report. State v. Cooey (1989), 46 Ohio St.3d 20, 35, 544 N.E.2d 895, 914; State v. Hutton (1990), 53 Ohio St.3d 36, 559 N.E.2d 432, paragraph one of the syllabus.

II

Presentence Investigation

In Proposition of Law III, Richey argues that the presentence investigation report (“PSI”) erroneously included a letter he wrote. The trial court had earlier suppressed that letter as not relevant at the guilt or penalty phase.

While in pretrial custody, Richey wrote to a friend in Scotland that police in the United States did not scare him. The letter was quoted in the PSI as follows:

“If one ever pulls a gun on me he’d better shoot to kill. * * * Remember that day when I shot Gog’s in the head with your gun, I laughed so hard I almost ripped my sides! [If the police in Scotland] ever found out about V2 the stuff we done they’d bring back the death penalty just for us! * * * If they just give me prison time they better hope to hell I die in there, cause when I get out I won’t stop hunting them all down until everyone who is involved in this case is dead!”

Arguably that letter was relevant to the sentencing decision. A PSI is not limited by the strict rules of evidence. See State v. Greer (1988), 39 Ohio St.3d 236, 254, 530 N.E.2d 382, 402-403. This PSI related to Richey’s “history, character, and background.” R.C. 2929.04(B); State v. Hutton, supra.

Moreover, having failed to object to the PSI, or the letter’s inclusion in the PSI, Richey waived any issue related to the PSI except for plain error. State v. Cooey, supra, 46 Ohio St.3d at 35, 544 N.E.2d at 914; State v. Long, supra. No plain error was involved since the court already knew Richey had threatened the prosecutor and the trial witnesses. See Part I. Hence, evidence of these additional threats made little difference and did not cause a miscarriage of justice.

III

Other Evidence Issues

In his fourth proposition of law, Richey argues that his rights to a fair trial and effective counsel were violated when the prosecutor called a defense-retained expert as a state witness. Dubois, a consulting engineer, agreed with the State Fire Marshal’s opinion that accelerants had been used in the fire.

The right to the effective assistance of counsel includes access to defense experts, and the state’s use of such witnesses could infringe an accused’s attorney-client privilege. See Miller v. Dist. Ct. of Denver (Colo.1987), 737 P.2d 834; State v. Mingo (1978), 77 N.J. 576, 392 A.2d 590; but, see, Noggle v. Marshall (C.A.6, 1983), 706 F.2d 1408; Granviel v. Estelle (C.A.5, 1981), 655 F.2d 673; State v. Pawlyk (1990), 115 Wash.2d 457, 800 P.2d 338.

The prosecutor’s use of a defense expert does not violate an accused’s Sixth Amendment right to counsel. Noggle, supra. Although the prosecutor’s use of a defense expert may violate an accused’s attorney-client privilege, Dubois did not disclose or rely upon any confidential communications here. Instead, Dubois based his testimony upon the physical evidence, reports, and photographs of the fire.

By not objecting, Richey waived any attorney-client privilege as to Dubois. Moreover, no plain error exists; no manifest miscarriage of justice occurred because Dubois’s testimony made no difference. The Fire Marshal’s testimony that the fire had been caused by arson and accelerants was not otherwise contradicted. In such cases, the record must reflect prejudice before reversal is required. See Hutchinson v. People (Colo.1987), 742 P.2d 875, 886; United States v. Talley (C.A.9, 1986), 790 F.2d 1468; State v. Mingo, 77 N.J. at 588, 392 A.2d at 596.

In Proposition of Law VI, Richey argues that the admission of the Collins carpet into evidence violated his rights because the physical integrity of the carpet had been compromised. Two deputy sheriffs recovered the Collins carpet from a trash dump on July 1, where it had been taken, unknown to investigators, after the fire. Two samples from this carpet revealed the presence of gasoline and paint thinner.

The evidence firmly established that the carpet admitted into evidence was the carpet from the Collins apartment. Authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Evid.R. 901(A). The possibility of contamination goes to the weight of the evidence, not its admissibility. “A strict chain of custody is not always required in order for physical evidence to be admissible.” State v. Wilkins (1980), 64 Ohio St.2d 382, 389, 18 O.O.3d 528, 532, 415 N.E.2d 303, 308; see State v. Downs (1977), 51 Ohio St.2d 47, 63, 5 O.O.3d 30, 38, 364 N.E.2d 1140, 1150.

Moreover, other evidence established that the arsonist had used accelerants, including dominant pour patterns to the burning on the wood deck and living room concrete. An accelerant was also found in wood chips from the deck floor. Thus, even if the rug had been wrongfully admitted, other evidence of arson rendered any error harmless. Crim.R. 52(A).

In Proposition of Law IX, Richey argues that evidence of his pretrial statements violated his Miranda rights and Sixth Amendment right to counsel. Richey made several statements to police about the fire, denying any culpability. In one statement, Richey admitted he had broken into a greenhouse across the street and stolen some potted plants. The trial court denied Richey’s motion to suppress, finding no constitutional violations.

Richey complains first about admission of a statement he made to Police Chief Miller on the morning of the fire. However, Miller initially interviewed Richey only as a possible witness to the fire, and Richey was not under arrest or in custody. Richey was free to leave as long as he stayed out of the fire fighters’ way. Since no custodial interrogation occurred, Miller was not required to inform Richey of his constitutional rights. See Oregon v. Mathiason (1977), 429 U.S. 492, 97 S.Ct. 711, 60 L.Ed.2d 714; Minnesota v. Murphy (1984), 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409.

Even if a custodial interrogation occurred, any error would be harmless beyond a reasonable doubt. In this brief June 30 statement, Richey said nothing about how the fire started, and the statement could not have harmed him before the trier of fact.

Around noon, Miller interviewed Richey again, but Miller then advised him of his Miranda rights before securing a second statement. On July 1, Richey was advised of his rights twice when he was arrested.

Richey further complains that his Sixth Amendment rights were violated by evidence about conversations he had while in pretrial confinement. On August 17, 1986, Richey threatened the prosecutor in a conversation with Deputy Mike Ball. On November 19, Richey made further threats against the prosecutor and witnesses in a conversation with Deputy Roy Sergeant. In neither case did the deputies initiate the conversation or question Richey.

The Miranda safeguards do not preclude admission of this evidence because Richey initiated the conversations and also waived his right to have a lawyer present. Hence, the trial court did not err in declining to suppress Richey’s statements. See Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297; Oregon v. Bradshaw (1983), 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405; Connecticut v. Barrett (1987), 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920.

IY

Prosecutorial Misconduct

In Proposition of Law V, Richey argues that the prosecutor grievously erred in his final guilt-phase argument. However, “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87. Accord State v. DePew (1988), 38 Ohio St.3d 275, 288, 528 N.E.2d 542, 556-557; State v. Johnson (1989), 46 Ohio St.3d 96, 102, 545 N.E.2d 636, 642. Moreover, in a bench trial, trial judges are presumed to rely only upon relevant, material, and competent evidence, in arriving at their judgments. State v. Post, supra, 32 Ohio St.3d at 384, 513 N.E.2d at 759.

The prosecutor did not commit crucial errors. The prosecutor’s reference to Richey as a sociopath or psychopath was a fair inference based on the evidence. In any event, it was not prejudicial before a panel of judges. State v. Post, supra. The prosecutor’s varied comments about why accelerants had not shown up on Richey’s clothing also constituted fair comment. Prosecutors are entitled to latitude as to what the evidence has shown and what inferences can be drawn therefrom. State v. Stephens (1970), 24 Ohio St.2d 76, 82, 53 O.O.2d 182, 185, 263 N.E.2d 773, 777; see State v. Byrd (1987), 32 Ohio St.3d 79, 82, 512 N.E.2d 611, 616.

By referring to Richey’s threats, the prosecutor referred to evidence in the record admitted without objection. The prosecutor’s reference to the helpless victim, who was in a hopeless situation from which she could not escape, was brief and not prejudicial. See Payne v. Tennessee (1991), 501 U.S.-, 111 S.Ct. 2597, 115 L.Ed.2d 720. Thus, Proposition of Law V is overruled.

V

Sufficiency of Evidence

In Proposition of Law VII, Richey argues that the circumstantial evidence at trial did not establish his identity as the arsonist and killer of Cynthia Collins. Richey argues the evidence is insufficient because testing failed to show accelerants on his clothing. However, Richey may not have spilled any gasoline or paint thinner on his clothing when he set the fire, or at least not on portions of the clothing eventually tested. Alternatively, the fatigues seized by the police on July 1 may not have been those worn by Richey on June 29-30.

Richey challenges the accuracy of the times that Altimus gave for statements she heard. However, Altimus may have been simply confused about when she heard Richey. Richey argues that he could not have set the fire because he was intoxicated and had a splint on his hand. However, he could still use that bandaged hand, and the evidence about his intoxication was conflicting.

In a review for sufficiency, the evidence must be considered in a light most favorable to the prosecution. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Davis (1988), 38 Ohio St.3d 361, 365, 528 N.E.2d 925, 930. “ * * * [T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. Murder convictions can rest upon circumstantial evidence. State v. Nicely (1988), 39 Ohio St.3d 147, 150, 529 N.E.2d 1236, 1239; State v. Apanovitch (1987), 33 Ohio St.3d 19, 27, 514 N.E.2d 394, 402. Indeed, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence. State v. Lott (1990), 51 Ohio St.3d 160, 167, 555 N.E.2d 293, 302. Accord State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492.

The evidence against Richey established that he was the killer and arsonist. Five days before the fire, Richey pulled a knife on Butler, who had just been in bed with Candy, and Richey had told Candy he would kill any new boyfriend she found. At the party, Richey was infuriated because Candy brought Nichols, kissed him repeatedly, and asked Nichols to spend the night with her. Dannenberger, Price, and Altimus all heard Richey say that Building “A” would burn that night, which Richey said more than once. The fire started three hours later.

The evidence shows that Hope Collins gave Richey access to her apartment and asked Richey to baby-sit Cynthia, and he agreed to do so. Moreover, Richey admitted to the police that he knew Cynthia was in her bedroom, since he had stopped to see her there during the party. Less than an hour after agreeing to baby-sit for her, Richey started the fire in Hope’s apartment. Candy’s apartment was immediately below Hope’s apartment, and the latter’s smoke detector had been ripped out of the ceiling and was hanging by the wires. Damage to the smoke detector may have delayed any warning about the fire.

Unrebutted expert witnesses asserted that the fire had been deliberately started, and that gasoline and paint thinner had been used as accelerants. Richey had access to a greenhouse where gasoline and paint thinner were stored; some of the gasoline and paint thinner could have been missing; and Richey admittedly had stolen plants from that greenhouse. Additionally, during the fire, Richey continued to challenge Nichols to a fight and reasserted to Candy that he would not let anyone else have her. To Altimus, the elderly neighbor, Richey bragged that he had done “a helluva good job” as he laughed and surveyed the fire damage.

The evidence also established Richey’s intention to kill Candy and Nichols. Before the fire, Richey threatened Candy and any new boyfriend she would acquire. At the party, Richey specifically threatened to burn Building “A.” He then set the fire in a jealous rage directed at Candy and her new boyfriend. “It is a fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts.” State v. Johnson (1978), 56 Ohio St.2d 35, 39, 10 O.O.3d 78, 80, 381 N.E.2d 637, 640; State v. Lott, supra, 51 Ohio St.3d at 168, 555 N.E.2d at 302.

The fact that the intended victims escaped harm, and that an innocent child, Cynthia Collins, was killed instead, does not alter Richey’s legal and moral responsibility. “The doctrine of transferred intent is firmly rooted in Ohio law.” State v. Sowell (1988), 39 Ohio St.3d 322, 332, 530 N.E.2d 1294, 1305. Very simply, “the culpability of a scheme designed to implement the calculated decision to kill is not altered by the fact that the scheme is directed at someone other than the actual victim.” State v. Solomon (1981), 66 Ohio St.2d 214, 218, 20 O.O.3d 213, 216, 421 N.E.2d 139, 142.

Other states agree. Aside from a few states whose statutes require a different result, “there is a singular unanimity among the decisions in the overwhelming majority of the states that such a homicide ‘partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the blow fallen upon the intended victim instead of the bystander.’ ” Gladden v. State (1974), 273 Md. 383, 392, 330 A.2d 176, 181. Accord State v. Julius (1991), 185 W.Va. 422, 408 S.E.2d 1, and cases cited in Gladden and Julius.

In Wareham v. State (1874), 25 Ohio St. 601, 607, this court explained the reasons for this principle: “The purpose and malice with which the blow was struck is not changed in any degree by the circumstance that it did not take effect upon the person at whom it was aimed. The purpose and malice remain, and if the person struck is killed, the crime is as complete as though the person against whom the blow was directed had been killed, the lives of all persons being equally sacred in the eye of the law, and equally protected by its provisions.”

A verdict will not be reversed “where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.” State v. Eley (1978), 56 Ohio St.2d 169, 10 O.O.3d 340, 383 N.E.2d 132, syllabus. In this case, substantial evidence existed to sustain all the elements of the offenses charged, and the panel’s verdict stands.

VI

Miscellaneous Guilt Phase Issues

In Proposition of Law VIII, Richey argues that the trial court failed to minimize the risk of collusion among witnesses and that, hence, the guilty verdict was not reliable. At the trial, the court granted Richey’s motion to separate witnesses in accordance with Evid.R. 615. Richey also asked that witnesses be sequestered from each other and admonished not to discuss their testimony after they testified. The trial court denied that motion, ruling that possible discussion among witnesses could be tested on cross-examination.

R.C. 2945.03 specifies the right of a trial judge in a criminal trial to control the trial proceedings. Orders relating to witnesses are entrusted to the sound discretion of the trial court.

At trial, Richey failed to demonstrate any need for the measures he requested. Richey could question witnesses during cross-examination about any prior discussions. Richey also fails to cite specific instances of preventable discussions, or any prejudice from the lack of such orders, or any authority requiring such orders. Thus, Proposition of Law VIII lacks merit.

In Proposition of Law X, Richey argues that the trial court erred by not severing count three, the break-in at the K & J Greenhouse, from the other offenses. Richey argues that this offense was not related to the arson. However, the law favors joining multiple offenses in a single trial under Crim.R. 8(A). See State v. Lott, supra, 51 Ohio St.3d at 163, 555 N.E.2d at 298; State v. Torres (1981), 66 Ohio St.2d 340, 343, 20 O.O.3d 313, 315, 421 N.E.2d 1288, 1290. The K & J break-in was an integral part of the arson and thus part of “a common scheme or plan” or “a course of criminal conduct” under Crim.R. 8(A). Richey broke into the K & J Greenhouse, located across the street from the apartment complex, in the hours before the arson. Moreover, the break-in explained Richey’s access to gasoline and paint thinner, which other evidence demonstrated were the accelerants used in the arson.

Even though joinder was possible, Richey argues that the trial court should have severed count three from the others under Crim.R. 14. However, Richey has the burden to establish prejudice to his rights in accordance with Crim.R. 14. State v. Torres, supra, syllabus; State v. Lott, supra, 51 Ohio St.3d at 163, 555 N.E.2d at 298; State v. Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201, 204, 405 N.E.2d 247, 251.

Richey failed to establish prejudice. Evidence of the joined crime, the break-in, was simple and direct and thus not possibly confusing. See State v. Lott, supra, 51 Ohio St.3d at 163, 555 N.E.2d at 298; State v. Franklin (1991), 62 Ohio St.3d 118, 122, 580 N.E.2d 1, 6. Moreover, the panel of judges could not have confused the separate offenses. State v. Lott, supra, 51 Ohio St.3d at 164, 555 N.E.2d at 298.

Additionally, evidence of that break-in would have been admissible, under Evid.R. 404(B), even if that offense had not been joined. Proof that Richey broke into the greenhouse established that he had the opportunity to discover and steal the paint thinner and gasoline stored there. Access to these accelerants was also part of his preparation to bum Building “A.” See State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180; State v. Broom (1988), 40 Ohio St.3d 277, 282, 533 N.E.2d 682, 690. Proposition of Law X lacks merit.

In Proposition of Law XIII, Richey argues that the state’s failure to record grand jury testimony violated his due process and fair trial rights, necessitating reversal. Richey correctly points out that “[pjursuant to Crim.R. 22 grand jury proceedings in felony cases must be recorded.” State v. Grewell (1989), 45 Ohio St.3d 4, 543 N.E.2d 93, syllabus.

At trial, Richey expressed an interest in grand jury testimony only to avoid unnecessary voir dire of jurors. Richey subsequently waived a jury trial and therefore abandoned this basis for that request. On appeal, Richey asserts for the first time that he needed the transcripts to explore possible inconsistent statements by witnesses. However, Richey established no basis at trial for any particularized need, and his general assertions do not establish particularized need now. “Grand jury proceedings are secret, and an accused is not entitled to inspect grand jury transcripts * * * unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists * * State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph two of the syllabus.

Therefore, Richey was not entitled to the transcripts, even if they existed. The error in failing to record the testimony is harmless. See State v. Grewell, supra, 45 Ohio St.3d at 9, 543 N.E.2d at 98; State v. Wickline (1990), 50 Ohio St.3d 114, 122, 552 N.E.2d 913, 922.

In Proposition of Law XIV, Richey argues for reversal because the trial court failed to state essential findings under Crim.R. 12(E) when it denied Richey’s motions to suppress his pretrial statements. However, Crim.R. 12(E) does not control because Richey did not request factual findings. “[I]n order to invoke the rule, the defendant must request that the court state its essential findings of fact in support of its denial of a motion.” State v. Benner (1988), 40 Ohio St.3d 301, 317, 533 N.E.2d 701, 718; see Bryan v. Knapp (1986), 21 Ohio St.3d 64, 21 OBR 363, 488 N.E.2d 142. Moreover, the evidence necessitated the trial court’s decision not to suppress the statements. Any error would be harmless. See Part III.

In Proposition of Law XVI, Richey argues that his rights to a complete record, the effective assistance of counsel, and meaningful appellate review were compromised because the visit to the crime scene was unrecorded. However, the trial court asked counsel before the visit, “Do you have any problem waiving the presence of the court reporter?” The prosecutor said he did not, and defense counsel said nothing. At trial, neither counsel asked the court to describe the visit.

R.C. 2945.16 authorizes a view of a crime scene, and the trial court is vested with broad discretion in such matters. State v. Zuern (1987), 32 Ohio St.3d 56, 58, 512 N.E.2d 585, 588. A view of a crime scene is neither evidence nor a crucial stage in the proceedings. See State v. Tyler (1990), 50 Ohio St.3d 24, 38, 553 N.E.2d 576, 593; Snyder v. Massachusetts (1934), 291 U.S. 97, 108-109, 54 S.Ct. 330, 333, 78 L.Ed. 674, 679-680. The trial panel must be presumed to know and apply that principle. State v. Post, supra. Furthermore, Richey has not supplemented the record, pursuant to App.R. 9(C) or 9(E), in an effort to show prejudice from the lack of recording. The court cannot presume prejudice from an unrecorded visit to a crime scene. State v. Watson (1991), 61 Ohio St.3d 1, 15, 572 N.E.2d 97, 109; State v. Tyler, supra, 50 Ohio St.3d at 38, 553 N.E.2d at 593.

VII

Ineffective Assistance of Counsel

In Proposition of Law XV, Richey argues that his counsel ineffectively represented him, thereby depriving him of his Sixth Amendment rights. Reversal on this ground requires that the defendant show, first, “that counsel’s performance was deficient” and, second, “that the deficient performance prejudiced the defense” so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693.

Richey complains first that his counsel failed to object to evidence about his threats to the prosecutor and witnesses. However, this evidence was arguably admissible and, in any event, made no difference at trial. See Part I. Richey also complains that his counsel did not attempt to disqualify the trial panel. However, counsel’s tactical choice not to do so was within the range of professional discretion and cannot be second-guessed on appeal. His counsel could also properly choose not to object to the presentence report. See Strickland, supra, at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

The prosecution’s use of the defense’s arson expert as a state witness made no difference in view of the uncontradicted evidence of arson and accelerants. Counsel had moved to suppress Richey’s pretrial statements, and did not fail in any essential duty by not asking for findings under Crim.R. 12(E), since those statements were properly admitted into evidence. The trial court properly sentenced Richey on different counts; hence, his counsel did not perform deficiently by not objecting to the imposed sentences.

In sum, Richey’s counsel continued to function as the “counsel” guaranteed him by the Sixth Amendment. Moreover, no reasonable probability existed “that, were it not for counsel’s errors, the result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. The prosecution had a strong case against Richey.

VIII

Constitutionality

We have previously rejected Richey’s constitutional challenges in Propositions of Law XX and XXI to Ohio’s proportionality review. See State v. Jenkins (1984), 15 Ohio St.3d 164, 176, 15 OBR 311, 321, 473 N.E.2d 264, 278; State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus. Despite Richey’s claims in Proposition of Law XXII, Ohio’s felony-murder statute is constitutional. See State v. Henderson (1988), 39 Ohio St.3d 24, 528 N.E.2d 1237, paragraph one of the syllabus. Despite Richey’s claims in Proposition of Law XXIII, Ohio’s law meets constitutional requirements for death penalty statutes. State v. Combs (1991), 62 Ohio St.3d 278, 291, 581 N.E.2d 1071, 1082; State v. Steffen, supra, 31 Ohio St.3d at 125, 31 OBR at 285, 509 N.E.2d at 396; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768.

IX

Sentencing Errors

In Proposition of Law XI, Richey argues that imposing separate sentences for aggravated arson and aggravated murder violates R.C. 2941.25 and constitutional guarantees. In Proposition of Law XII, Richey pursues these same arguments in seeking to overturn separate sentences imposed for aggravated murder and endangering a child.

State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816, 817, noted:

“This court has set forth a two-tiered test to determine whether two crimes with which a defendant is charged are allied offenses of similar import. In the first step, the elements of the two crimes are compared. * * * In the second step, the defendant’s conduct is reviewed to determine whether the defendant can be convicted of both offenses.” (Emphasis sic.) See, also, State v. Mitchell (1983), 6 Ohio St.3d 416, 418, 6 OBR 463, 464, 453 N.E.2d 593, 594; State v. Logan (1979), 60 Ohio St.2d 126, 128, 14 O.O.3d 373, 374, 397 N.E.2d 1345, 1348.

When the elements are compared, aggravated murder and aggravated arson are not allied offenses of similar import within the meaning of R.C. 2941.25. Aggravated murder requires purposefully causing the death of another while committing one of nine specified felonies, of which aggravated arson is only one. Moreover, aggravated arson does not require a purposeful killing; instead, it requires a substantial risk of physical harm by fire or explosion. Thus, “[t]he two offenses are not prerequisites, one for the other. To consummate either offense, the other need not by definition be committed.” State v. Moss (1982), 69 Ohio St.2d 515, 520, 23 O.O.3d 447, 450, 433 N.E.2d 181, 186. See, also, State v. Bickerstaff (1984), 10 Ohio St.3d 62, 10 OBR 352, 461 N.E.2d 892; State v. Willey (1981), 5 Ohio App.3d 86, 5 OBR 200, 449 N.E.2d 471 (aggravated arson and involuntary manslaughter are separately punishable).

Richey’s Proposition of Law XII also lacks merit. Child endangering under R. C. 2919.22(A) and aggravated murder are not allied offenses of similar import. The elements of child endangering are the defendant’s custody or control of a child under eighteen and his creation of a substantial risk to the health or safety of the child by violating a duty of care or protection. Aggravated murder is a purposeful killing in the course of one of nine specified felonies, none of which is child endangering. These offenses have entirely different elements. Cf. State v. Anderson (1984), 16 Ohio App.3d 251, 16 OBR 275, 475 N.E.2d 492 (child endangering and felonious assault are not allied offenses of similar import).

In Proposition of Law XVII, Richey complains the trial court erred in not giving any weight to relevant mitigation evidence. In Proposition of Law XIX, Richey argues the court of appeals failed to individually consider his particular character and family background.

Richey presented a variety of evidence concerning his personal history, character and background. Also, several mental health professionals concluded that Richey suffered from borderline and antisocial personality disorders. Richey reasons that this evidence was strongly mitigating and that the trial court and court of appeals erred by imposing a death sentence.

Contrary to Richey’s claims, courts need not give weight to relevant mitigation evidence simply because they must consider such evidence under Supreme Court precedents. See Eddings v. Oklahoma (1982), 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1; Skipper v. South Carolina (1986), 476 U.S. 1, 106 S. Ct. 1669, 90 L.Ed.2d 1. What weight to be given mitigation evidence is necessarily an individual decision by the fact finder. “ * * * The fact that an item of evidence is admissible under R.C. 2929.04(B)(7) does not automatically mean that it must be given any weight.” State v. Steffen, supra, paragraph two of the syllabus. See, also, State v. Stumpf (1987), 32 Ohio St.3d 95, 512 N.E.2d 598, paragraph two of the syllabus.

At times, we have assigned little or no weight to evidence of personality disorders or family background; hence, the trial court did not err when declining to give those factors any weight. See State v. Cooey, supra, 46 Ohio St.3d at 41, 544 N.E.2d at 919; State v. Van Hook (1988), 39 Ohio St.3d 256, 263, 530 N.E.2d 883, 889-890.

Richey’s Proposition of Law XIX also lacks merit. The court of appeals did not err when it referred to millions of persons with backgrounds similar to Richey’s. By so doing, the court simply reflected its view that his family background was not mitigating. We have used similar reasoning. See State v. Dickerson (1989), 45 Ohio St.3d 206, 218, 543 N.E.2d 1250, 1261; State v. Broom, supra, 40 Ohio St.3d at 294, 533 N.E.2d at 701.

The court of appeals’ written opinion demonstrates that the court performed its constitutional obligation of giving “individualized consideration” to the appropriate penalty for Richey. Lockett v. Ohio (1978), 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990; Eddings v. Oklahoma (1982), 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1. Moreover, our independent evaluation of the evidence cures any sentencing errors by the trial court or the court of appeals. See Clemons v. Mississippi (1990), 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725; State v. Lott, supra; State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710.

X

Sentence Evaluation

In Proposition of Law XVIII, Richey argues that his death sentence was inappropriate based upon residual doubt, the admission of irrelevant evidence of threats, and overwhelming mitigation evidence. Richey does not dispute, and we find, that the aggravating circumstance, that the murder occurred during an aggravated arson, was proved beyond a reasonable doubt.

Richey presented extensive mitigating evidence that he suffered “borderline” and “antisocial” personality disorders. According to Dr. Leena Puhakka, a psychologist, Richey displayed classic symptoms of those personality disorders. Dr. Puhakka found Richey functioned at the emotional level of a ten- or eleven-year-old. Dr. Antoine Demosthene, a psychiatrist, found no evidence of psychosis or mental disease, although Richey was very socially maladjusted, and suffered antisocial personality disorder.

Dr. William McIntosh, a psychologist, testified that Richey frequently lied to manipulate the results of mental evaluations. He stated that Richey had come from a chaotic family background, had an early history of violence and drug abuse, and displayed erratic behavior and poor impulse control. Although not psychotic, Richey did have mental disorders, according to Dr. McIntosh.

Dr. Thomas Sherman, a board-certified psychiatrist testifying by deposition for the state, found Richey “extremely impulsive, self-centered, hedonistic.” He stated that Richey did not display any psychosis or inability to understand the criminality of his acts or to refrain from those acts.

Evidence by psychiatrists and psychologists also revealed Richey’s preoccupation with death, blood, and violence, and his acts of self-mutilation and attempts at suicide resulting in over six hundred self-imposed scars and cuts on his body. Richey received his first mental health evaluation in January 1978, when thirteen years old, and has been briefly treated and evaluated for erratic behavior in various mental institutions.

Social worker Judith Tolliver described Richey as a blustering young man who suffered from a “histrionic behavior disorder” in addition to his other personality disorders. She found Richey not delusional, mentally impaired or actively psychotic but severely and chronically maladjusted.

Richey was bom in Holland in August 1964, where his father was stationed as a member of the United States Armed Forces. His mother was Scottish. Richey was raised mostly in Scotland, where his parents lived. As a teenage boy in Scotland, Richey was arrested several times for fighting, larceny, and breaking and entering. Richey came to the United States in 1982 and worked for his father, and he also travelled to different cities and worked at different jobs. In 1984, Richey joined the Marine Corps, and he served for fourteen months before being honorably discharged. Richey also was married in Minnesota and fathered a son, but afterwards his wife divorced him.

Our independent assessment of the evidence reveals some mitigating features in Richey’s history and background. Richey’s mother abused alcohol and taught him to resent authority. Richey suffers from lifelong borderline and antisocial personality disorders. Richey also served more than a year in the United States Marine Corps and was honorably discharged. All of these factors are entitled to some mitigating weight. Otherwise, little else in Richey’s history, character, or background is mitigating. Although Richey abused alcohol and drugs, nothing suggests a serious drug addiction. On balance, his history, character and background do not offer substantial mitigating features.

Nothing in the nature and circumstances of the offense offers any mitigating features. Richey killed a defenseless child, whose safety had been entrusted to him, as a result of a blind, jealous rage directed at his ex-girlfriend and her current lover. The fact that he killed an unintended victim rather than the intended victims does not alter his moral culpability under the firmly established doctrine of transferred intent. State v. Solomon; Wareham v. State, both supra. His ostensible efforts to save Cynthia did not help her and interfered with firemen’s efforts to rescue her and fight the fire. Under the circumstances, nothing in the facts of the offense is mitigating.

The murder victim did not induce or facilitate the offense nor was Richey under “duress, coercion, or strong provocation”; hence, R.C. 2929.04(B)(1) and (B)(2) do not apply. Richey did not suffer, at the time of the offense, from a “mental disease or defect”; therefore, R.C. 2929.04(B)(3) did not apply. A behavior or personality disorder does not qualify as a mental defect or disease. State v. Cooey; State v. Van Hook, supra. Richey’s age of twenty-one when he committed the offenses is a relevant statutory mitigating factor entitled to weight under R.C. 2929.04(B)(4). Richey’s prior adjudications as a juvenile offender and his adult record of arrests and convictions preclude finding the lack of a record as a mitigating factor. See R.C. 2929.04(B)(5). The evidence shows that Richey was the only actor in these crimes; hence, R.C. 2929.04(B)(6) does not apply.

Richey suggests residual doubt as an “other factor,” R.C. 2929.04(B)(7). Depending upon the facts, residual doubt can be a mitigating factor. State v. Watson, supra. However, the strong evidence of guilt in this case precludes awarding residual doubt any mitigating value.

Richey also argues that the admission of irrelevant evidence that he threatened the prosecutor and witnesses showed the unfairness of the trial and rendered the death penalty inappropriate. However, such evidence related to his “history, character, and background,” R.C. 2929.04(B), and thus was relevant to the death penalty determination. Richey’s background and his personality disorders are relevant under R.C. 2929.04(B)(7), but their impact has already been considered as part of his background and history. No other mitigation appears relevant as “other factors” under R.C. 2929.04(B)(7).

Despite this mitigation evidence, the aggravating circumstance outweighs any mitigating factors. In torching an apartment building at night, he jeopardized the lives of others in addition to killing an innocent two-year-old child. Applicable mitigating factors are of little weight when compared to the aggravating circumstance proved against him. His personality disorders did not rise to the level of substantial impairment of capacity under R.C. 2929.-04(B)(3). Many criminals have personality disorders. Thus, his background did not contain any substantial mitigating features.

The death penalty is appropriate and proportionate when compared with similar felony murder cases. See State v. Bonnell (1991), 61 Ohio St.3d 179, 573 N.E.2d 1082 (felony murder); State v. Lott, supra (felony murder, victim set on fire); State v. Seiber (1990), 56 Ohio St.3d 4, 564 N.E.2d 408 (felony murder); State v. Powell (1990), 49 Ohio St.3d 255, 552 N.E.2d 191 (felony murder, seven-year-old victim); State v. DePew, supra (felony murder including arson, three victims including a seven-year-old); State v. Morales (1987), 32 Ohio St.3d 252, 513 N.E.2d 267 (felony murder, twelve-year-old victim); State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795 (felony murder, eleven-year-old victim); State v. Maurer, supra (felony murder, seven-year-old victim).

Accordingly, we affirm the convictions and sentence, including the death penalty.

Judgment affirmed.

Holmes, Douglas and Resnick, JJ., concur. Sweeney, Wright and H. Brown, JJ., dissent.