COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59009 STATE OF OHIO : : SUPPLEMENTAL Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RAYVON TAYLOR : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 10, 1991 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-242000 JUDGMENT : Separate Opinion Pursuant to R.C. 2929.05(A) DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 2000 Standard Building TIMOTHY J. McGINTY, ASST. 1370 Ontario Street EDWARD KRAUS, ASST. Cleveland, Ohio 44113 Justice Center - 8th Floor 1200 Ontario Street CARLA TRICARICHI, ESQ. Cleveland, Ohio 44113 55 Public Square, Suite 2120 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Pursuant to R.C. 2929.05(A), this court certified that it has reviewed the judgment, the sentence of death, the transcript and all of the facts and other evidence in the record in this case and makes the following independent findings: 1) The aggravating circumstances for which the defendant was found guilty outweigh the mitigating factors in this case. 2) The death sentence is not excessive or disproportionate to the penalty imposed in similar cases. 3) The evidence supports the findings by the trial jury and the trial judge that defendant was guilty of two counts of aggravated murder and the aggravating circumstance charged in each count. 4) The trial judge properly weighed the aggravating circumstances for which the jury found defendant guilty and the mitigating factors. 5) The sentence of death is appropriate in this case. BLANCHE KRUPANSKY, C.J., and FRANCIS E. SWEENEY, J., CONCUR. JOHN F. CORRIGAN JUDGE COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59009 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RAYVON TAYLOR : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 10, 1991 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-242000 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 2000 Standard Building TIMOTHY J. McGINTY, ASST. 1370 Ontario Street EDWARD KRAUS, ASST. Cleveland, Ohio 44113 Justice Center - 8th Floor 1200 Ontario Street CARLA TRICARICHI, ESQ. Cleveland, Ohio 44113 55 Public Square, Suite 2120 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Defendant Rayvon Taylor appeals from his convictions for two counts of aggravated murder, both with death penalty specifications, one count of aggravated robbery, and one count of kidnapping. Defendant raises sixteen assignments of error which challenge these convictions as well as the trial court's imposition of the death penalty. I. On July 31, 1989, defendant and co-defendant Leon Turnage were indicted for one count of aggravated murder in violation of R.C. 2903.01(A), with a felony murder specification, one count of aggravated murder in violation of R.C. 2903.01(B), with a felony murder specification, one count of aggravated robbery in violation of R.C. 2911.01, and one count of kidnapping in violation of R.C. 2905.01. These charges stem from the bludgeoning death of Preston McKissick, a retired truck driver, which occurred on or about May 15, 1989. Defendant entered a plea of not guilty, and moved for a separate trial. The trial court granted this motion pursuant to Crim. R. 14, and the case against defendant proceeded to trial on October 2, 1989. For its key evidence, the state presented the testimony of Willoughby Police Officer Terry Hager, the victim's landlady Mary Nix, Cleveland Police Homicide Detectives James Svekric and Michaelene Taliano, Chief Deputy Coroner Robert Challener, - 3 - p1umber Robert Adams, Cleveland Prosecution Mediator Stanley Roberts, and the victim's sister Evelyn Bell. Willoughby Police Officer Terry Hager testified that while on his way to work on May 16, 1989 at approximately 7:00 a.m., he observed a van to the south of Kirtland Road near the Route 306 exit off of Interstate 90. (Tr. 881-884) According to Hager, the van was surrounded by foliage on the side of the road, and it appeared as though the vehicle had been proceeding toward a nearby ravine. (Tr. 889-890) The right rear tire of the van was stuck in a sink hole, and from tire tracks near the area, it appeared that a second vehicle had stopped behind the van. (Tr. 887-891) Hager further testified that because the inside of the van was extensively stained with a substance which he suspected to be blood, he conducted an unsuccessful search of the area for the body of the owner, and had the van transported to the Lake County Crime Lab. (Tr. 885-886, 899-900) Hager next established that the substance which he suspected to be blood was later determined to be blood of a single blood type. (Tr. 900, 1403) Further, with respect to the location and nature of the blood stains within the van, Hager testified that there were some spatters on the driver's side door and the passenger seat, extensive staining around the console between the two front seats, extensive pooling inside of the console compartments, extensive staining behind the driver's seat and on an automobile column lock box placed behind the driver's seat, - 4 - extensive staining behind a second row bench seat, and a streak of blood on the ceiling of the van which extended from the area of the second row of seats to the rear of the van. (Tr. 897-925) In addition, a bloody lug wrench was found beneath a second row seat. (Tr. 922) As blood was present on the underside of the lug wrench, it appeared that it was used elsewhere and then placed beneath the seat afterward. (Tr. 924-925) Hager also opined that the blood was initially shed in the console area, and that the smears on the ceiling were consistent with a body being dragged to the rear area. (Tr. 925, 936) Lastly with respect to the evidence found inside of the van, Hager noted that the Lake County Crime Lab processed the van for finger prints but found none. (Tr. 943) Hager next indicated that the Willoughby Police determined that the van belonged to Preston McKissick of 1964 E. 73rd Street in Cleveland, and they then notified the Cleveland Police of their discovery. (Tr. 896, 944-945) By May 19, 1989 McKissick still had not been found, and Hager met with defendant at the Cleveland Police Homicide Unit, advised defendant of his rights, then questioned him regarding McKissick's disappearance. (Tr. 949) According to Hager, defendant appeared "shocked," denied knowledge of McKissick's whereabouts, and denied any involvement. (Tr. 950) Mary Nix, owner and resident caretaker of the apartment where McKissick resided, testified that defendant had lived in - 5 - her apartment building for approximately seven years. (Tr. 1229- 1231) Nix stated that she saw McKissick two or three times per day, and collected his retirement check, which arrived in the early part of each month, and his workers' compensation check, which arrived around the 20th of each month. (Tr. 1231-1232) As to the events of May 15, 1989, Nix established that she last saw McKissick at approximately 6:00 p.m. (Tr. 1233) Later, at approximately 11:00 p.m., Nix heard heavy shoes, and the sound of someone running down the steps of the apartment and past her door. (Tr. 1235) Nix then went to her window and saw a tall, heavy, broad-shouldered man and a shorter man. (Tr. 1240) Nix averred that neither man resided at the apartment, (Tr. 1241) and that the majority of the residents are senior citizens. (Tr. 1230) As to the events of the following day, May 16, 1989, Nix testified that a Cleveland Police Sergeant came to the apartment house, and she brought him to McKissick's apartment. (Tr. 1244- 1245) As Nix started to insert her key to the apartment into the door, the door opened. (Tr. 1245) Nix then became alarmed because McKissick always kept his door locked. (Tr. 1245) Nix further observed that a closet door which McKissick normally kept closed and locked was open, and the lock was gone. (Tr. 1246) Cleveland Police Homicide Detectives James Svekric and Michaelene Taliano next established that on July 18, 1989 Willoughby Police called the Cleveland Police Homicide Unit and - 6 - requested that they contact defendant, who lived at 10414 Sandusky Avenue, and bring him to their office for questioning. (Tr. 1384) Defendant was subsequently questioned as to whether he knew "Leon" and defendant replied that he did not. (Tr. 1383) Defendant was then informed that the Willoughby Police had had a conversation with "Leon" and defendant then gave a written statement. (Tr. 954, 1385) This statement, which was admitted into evidence provided as follows: "Mr. Preston came over to my house and asked me to settle about prosecution about a car lock, out of court and I told him that I didn't want to talk about it. Mr. Preston is my grandmother's boyfriend, Preston McKissick. He left and came back later on and so Leon, Leon Turnage came over, and he, Preston asked Leon for his ten dollars he owed him, so Leon said he didn't have it on him at the time, so what Leon did was ask Preston to follow him somewhere so he could get the money and pay him. They left and didnt come back for a long time, and Pres-on [sic] didn't at all. But Leon came back. and [sic] he came in acting all hyper, like if he had did something, to Mr. Preston and so asked me to do a favor for him and I was telling him what kind of favor do you want me to do so he wanted me to go with him to pick up the van, which he had stashed somewhere off Superior somewhere, so I went with him. He picked up the van, this was that night, so we took the van out to Willoughby and dropped it off and came on back home. I didn't look in the van, I didn't touch the van and I didn;t [sic] look in the van, I didn't really see what was happeneing [sic], I didn't want to get involved, I called my self doinh [sic] him a favor, but I knew something was going down. So he had told me while we were riding that he had took care of Mrr. [sic] Preston. I asked him, you did what, that he - 7 - took care of Mr. Preston, so I told him to take me home and he did, it was his car." Defendant then indicated in written follow-up questioning that he was never in the van and never looked inside the van, but, when asked how Leon killed McKissick, he stated, "All the blood that I saw, maybe I assumed that he busted his head or something." The testimony of the homicide detectives next established that in light of this discrepancy, defendant was asked if he would like to change any aspect of his statement, (Tr. 1158) and he then admitted that he had also helped Leon dump McKissick's body. After this written statement was made, defendant directed Hager, Taliano, and Svekric to the abandoned apartment building where he claimed, he and Leon picked up the van. (Tr. 1386) Defendant then directed them to the 192 mile marker of Interstate 90 to find McKissick's remains. (Tr. 1388) The detectives subsequently located McKissick's body about a mile away, (Tr. 1388) and the Lake County and Cuyahoga County Coroners were then contacted. (Tr. 1390) The next day, July 19, 1989, the detectives met with Leon Turnage and read defendant's statement to him. (Tr. 1391) Thereafter, Leon Turnage made a written statement. (Tr. 1394) This statement was in turn read to defendant, prompting defendant to make a further oral statement to the police, then a second written statement. (Tr. 1165, 1395) - 8 - With respect to the oral statement which preceded the second written statement, Detective Taliano testified that defendant explained the events surrounding McKissick's death as follows: "[defendant said that] Preston McKissick had come to the house on Sandusky where he lived, where Rayvon lived with his grandmother. Preston was a little intoxicated. They got in a conversation. Preston was demeaning him about not working. He called him lazy and was waving money at him and all that stuff. He told me to get out. He got a little huffy. That's when Leon went to subdue him and apparently Mr. McKissick passed out. Rayvon went through his wallet and pocketed [sic] and took money. When McKissick awoke he became argumentative and he realized he was being assaulted. That's when Leon allegedly hit him in the head with the rolling pin. They wrapped him in a blanket and put him in the backseat of the van." (Tr. 1165) Taliano acknowledged however, that in her notes of defendant's oral statement and in defendant's second written statement, there is no reference to defendant going through McKissick's pockets. (Tr. 1186-1187) With respect to defendant's second written statement, the detectives established that defendant stated as follows: "On July 18, I made a statement to the Police, I would like to change something that I missed. I would like to add that it happened in my house when Leon Turnage started choking Mr. Preston and put him to sleep and then he woke up and Leon hit him in the head with a rolling pin and took the money out of his pockets then. I dont [sic] know nothing about Murray Hill or Ashbury, I took you to where the van was parked. I - 9 - still say that I didn't drive that van at all, not at any time that night or day." In written follow-up questioning, defendant further admitted that McKissick had a wallet, and that after he and Leon dumped McKissick's body they bought beer and sat in Leon's car drinking. Defendant also admitted that McKissick was "out and bleeding" when they put him in the van, but defendant continued to deny striking McKissick and being in the van. Finally, the detectives established that on July 20, 1989 they went to defendant's grandmother's Sandusky Avenue home with serologist Linda Luke in order to find any evidence of an assault having taken place there. (Tr. 1422-1423) This examination revealed no evidence of blood (Tr. 1423) and no evidence that the home had been cleaned to remove such evidence. (Tr. 1424) Chief Deputy Coroner Robert Challener testified that on July 18, 1989, at the direction of the Lake County Coroner, he went to an area near the 191 mile marker of Interstate 90 in Willoughby and observed a body at the base of a ravine partially covered by a brown blanket. (Tr. 761, 771, 761-768) According to Challener, it appeared as though the body had been placed there, (Tr. 769), and the area beneath the body was brown, indicating that no light had shone on this area for a time. (Tr. 769) Challener next stated that when the blanket was removed, he observed a body in an advanced state of decomposition, clad in a shirt, weather beaten jacket, and a truss or heavy leather belt. (Tr. 771-773) According to Challener, the face was not - 10 - recognizable, there were two defects in the skin of the skull, there was evidence of extensive dental work, the head was detached from the body, and part of the body was skeletonized. (Tr. 772-779) Challener next established that a forensic dentist working with him in this matter subsequently identified the body as Preston McKissick. (Tr. 796, 841-842) Challener also established that he performed an autopsy of the body and determined, based upon the nature and size of a depressed fracture in the skull, that McKissick was the victim of a homicide, and died from heavy blows to the head. (Tr. 807, 798- 800) Challener then opined that the bloody lug wrench found in McKissick's van could have been the murder weapon. (Tr. 808) Finally, Challener opined, based upon his examination of the body and his subsequent examination of McKissick's van, that McKissick was alive when placed in the van and was struck heavily on the head inside of the van. (Tr. 823) Robert Adams, a plumber who had done work at the Sandusky Avenue house on May 11, 1989 and May 12, 1989 was also called to testify for the state in this matter. Because Adams' name was not on the list of state witnesses which was provided to the defense, the court conducted a voir dire hearing to examine the circumstances surrounding the discovery of this witness, and the substance of his proposed testimony, in order to determine whether this testimony would be admitted. (Tr. 1316-1333) - 11 - Testifying to the circumstances surrounding discovery of this witness, Detective Hager stated that in the evening, on May 19, 1989, following the publication of various television reports which broadcast the discovery of McKissick's van and requested that anyone with information on the matter contact the Willoughby Police, an anonymous phone call was made to the Willoughby Police. (Tr. 1337) Hager further established that this phone call was recorded in the ordinary course of police business. (Tr. 1336) (In this call, the anonymous caller explained that while he was working at defendant's grandmother's house on the previous Friday McKissick told him that defendant had threatened him, and wanted to kill him, after McKissick caught defendant going through the pockets of McKissick's pants. The caller then explained that he did not want to get involved, and warned that if the police revealed that someone who worked at the house had notified them of the threat, defendant would know who had called.) Hager then established that the police were hampered in their efforts to locate the caller as defendant's grandmother, Viola Thomas, initially denied that anyone had worked at the house on the Friday before McKissick's van was found. (Tr. 1343) The police then learned only days earlier that the caller's name was Robert Adams. (Tr. 1338, 1342-1343) Hager further testified that Thomas did not provide them with Adams' phone number or address, and that the police did not locate Adams until the previous day. (Tr. 1343) - 12 - Robert Adams then testified that he was contacted by police on the preceding day, and was brought to the Justice Center by police who had a subpoena for him to appear. (Tr. 1317-1319) Adams averred that he was in fear for his life because he was contacted and told to testify for the living man, not the dead man. (Tr. 1318). Testifying to the substance of the proffered testimony, Adams stated that he did plumbing work at Thomas' home on a Thursday and Friday before McKissick's van was discovered and met Preston McKissick. (Tr. 1323) According to Adams, McKissick was upset (Tr. 1368), and told him that earlier that morning he caught defendant going through his pants where he kept two to three hundred dollars. (Tr. 1356) Also, according to Adams, McKissick stated that defendant "was going to do something" to him at this time, but Thomas intervened, then defendant threatenend to kill him. (Tr. 1356) The trial court determined that Adams' testimony would be admitted (Tr. 1351), and Adams reiterated his testimony for the jury. (Tr. 1353-1365) Stanley Roberts, Mediator for the City of Cleveland Prosecutors Office, testified that on April 24, 1989, McKissick filed a petty theft complaint against defendant, which accused defendant with stealing a column lock from his van. (Tr. 1271, 1278-1279) Roberts further established that McKissick was told that the matter would be heard on May 20, 1989. (Tr. 1281) - 13 - Notice of the hearing was also sent to defendant, but it had the wrong address and was returned to the city. (Tr. 1281) Finally, McKissick's sister Evelyn Bell testified that McKissick was a retired truck driver who regularly visited his family members, and his ladyfriend Thomas. (Tr. 1113-1115) According to Bell, McKissick carried a wallet and always had money. (Tr. 1120) At the close of the state's case, the defense moved for acquittal of all charges. The trial court denied this motion and the matter was submitted to the jury. Defendant was subsequently found guilty of all four counts of the indictment. Thereafter, on October 25, 1989, a mitigation hearing was held. Mitigation testimony was provided by defendant's grandmother Viola Thomas, defendant's sister Jennifer Taylor, and Detective James Svekric. In addition, defendant made an unsworn statement. Viola Thomas testified that defendant has resided with her since 1980, and that he moved in to help when defendant's grandfather became ill. (Tr. 1720-1721) Thomas further established that defendant was a singer, and had made three records, from which he earned money regularly. (Tr. 1722) Finally, Thomas averred that defendant attended church and sang in the church choir. (Tr. 1730-1731) Jennifer Taylor testified that she was close to her brother, - 14 - and that Leon Turnage had been in prison for attempted murder. (Tr. 1774-1779) James Svekric testified that in the course of his investigation, he learned that defendant had never previously been convicted of a felony. (Tr. 1809) Svekric was then asked to read Leon Turnage's July 19, 1989 statement to police into the record. (Tr. 1814) In his statement, Leon indicated that McKissick had gone to Thomas' house at about noon May 15, 1989 and asked defendant about the missing column lock. (Tr. 1814) McKissick then left, returned a short time later, drunk, and flashed money in defendant's face to indicate what defendant could have if he went to work. (Tr. 1815) Leon's statement next indicates that McKissick became "fighty," and Leon grabbed him around the neck and "put him to sleep," at which time defendant went through his pockets. (Tr. 1816) McKissick then "came back around" and Leon hit him with a rolling pin, drawing blood. (Tr. 1816) The men then put McKissick in the van, abandoned the van at Superior and Ashbury, then cleaned away the evidence. (Tr. 1816-1817) Later, they moved the van near a vacant apartment building, then drove it to a highway in Painesville where they stopped and rolled the body down a hill. (Tr. 1817-1818) Thereafter, the men abandoned the van in Willoughby. (Tr. 1818) In his unsworn statement, defendant stated that McKissick had always criticized him, and did not understand that he was an entertainer. (Tr. 1862-1864) He further denied that Thomas had - 15 - previously accused him of burglarizing her home. (Tr. 1864) He also denied that he used drugs, and stated that he went into a drug abuse recovery program in December 1988 in order to convince Thomas that he did not have a problem. (Tr. 1865) Defendant also stated that he goes to church every Sunday and was afraid of his cousin Leon. (Tr. 1870, 1868) According to defendant, Leon killed McKissick, and defendant helped him clean away the evidence because he was afraid that Leon would kill him, too. (Tr. 1873, 1882) Finally, defendant stated that he is not a murderer, and that he does not have the heart to kill. (Tr. 1878, 1882) The state provided rebuttal evidence which indicated that although defendant claimed to have made money to support himself by singing, he had applied for welfare from 1986 through June 1986, each time listing that he had no income. (Tr. 1980-1984) The state's rebuttal evidence further established that defendant entered Exodus, a drug abuse treatment center, in December 1988, then left the center against the advice of the staff. (Tr. 1930- 1931) The state also established that defendant was admitted to the Harbour Light Detox Center in December 1988, and signed an intake form which indicated that he used cocaine. (Tr. 2012) Finally, the state established that Thomas' home had been burglarized on May 4, 1989, and when Thomas reported the incident to police, she named defendant as a suspect, and stated that he - 16 - was no longer living there because he had a drug problem. (Tr. 2058-2065) Following the mitigation hearing, the jury concluded that the aggravating circumstances surrounding the killing outweighed the mitigating factors, and it recommended that defendant receive the death penalty. The trial court then conducted its own consideration of the aggravating versus mitigating factors, determined that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, and sentenced defendant to death for both aggravated murder convictions, and eight to twenty-five years imprisonment for the aggravated robbery and kidnapping convictions. II. In his first assignment of error, defendant contends that the trial court erred in permitting Robert Adams to testify, because defendant claims: A) Adams' testimony that McKissick said defendant threatened to kill him, was not admissible pursuant to Evid. R. 803(3); B) admission of this testimony violated defendant's constitutional right to confrontation of adverse witnesses; and C) Adams's testimony also included irrelevant "other acts" evidence. We shall address each of these contentions in turn. A. Hearsay Evid. R. 802 sets forth a general prohibition against the admission of hearsay, as it provides: - 17 - "Hearsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio." Evid. R. 803, however, provides in relevant part as follows: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness: "*** "(2) 'A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.' "(3) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." To be admissible under Evid. R. 803(2) as an excited utterance: " a statement must concern 'some occurrence startling enough to produce a nervous excitement in the declarant,' which occurrence the declarant had an opportunity to observe, and must be made 'before there had been time for such nervous excitement to lose a domination over his reflective faculties. ***' Potter v. Baker (1955), 162 Ohio St. 488, 55 O.O. 389, 124 N.E. 2d 140, paragraph two of the syllabus ****" See State v. Huertas (1990), 51 Ohio St. 3d 22, 31; accord State v. Boston (1989), 46 Ohio St. 3d 108, 117. - 18 - Moreover, in considering whether a declaration is admissible under this exception to the hearsay rule, a reviewing court should sustain the decision of the trial court where such decision appears to be a reasonable one. Id. at 117. To be admissible under Evid. R. 803(3), the testimony sought to be introduced must reflect the declarant's then existing mental or emotional condition, without reference to how or why that mental or emotional condition was brought about, and must point towards the future rather than the past. State v. Apanovich (1987), 33 Ohio St. 3d 19, 21. In this case, because the testimony at issue went beyond merely asserting McKissick's then existing mental or emotional condition, and set forth the basis of that condition, we concur in defendant's determination that the testimony was inadmissible pursuant to Evid. R. 803(3). Nonetheless, we hold that the testimony at issue provided background and led up to McKissick's excited utterance, and we therefore find that the trial court had a reasonable basis for admitting this testimony. McKissick's statements to Adams concerned his discovery, that morning, of defendant going through his pants, and defendant's subsequent act of placing McKissick in fear of an attack which was averted by Thomas, then threatening McKissick (Tr. 1332). This occurrence was startling enough to upset McKissick (Tr. 1368), and put him in a state of nervous excitement. From the record evidence, - 19 - moreover, this nervous excitement continued to dominate McKissick as he relayed the events to Adams. Accordingly, we reject defendant's claim that this testimony was inadmissible. B. Right to Confrontation The Sixth Amendment's Confrontation Clause, made applicable through the states through the Fourteenth Amendment, see Pointer v. Texas (1965), 380 U.S. 400, 403-405, provides as follows: "In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him." The clause does not operate to prohibit all forms of hearsay. Ohio v. Roberts (1980), 448 U.S. 56, 63. Rather, the Clause operates to require the prosecution to demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Id. at 65. Then, once a witness is shown to be unavailable, the clause further operates to require that there are indicia of reliability which surround the statement to be admitted. Id. In this context, the United States Supreme Court has noted that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Id. at 66. The category of excited utterances, into which the testimony at issue here falls, is a firmly rooted exception to the hearsay rule, such that reliability can be inferred, as this hearsay exception is a product of the prolonged judicial rule-making - 20 - experience which therefore satisfies considerations of fairness and trustworthiness. Cf. State v. Fowler (1985), 27 Ohio App. 3d 149, 152. Accordingly, we reject defendant's claim that admission of this testimony violation his constitutional right to confrontation. C. Other Acts Evid. R. 404(B) provides as follows: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See, also, R.C. 2945.59. The rule and statute contemplate acts which may or may not be similar to the crime at issue. State v. Broom (1988), 40 Ohio St. 3d 277, paragraph one of the syllabus. If the "other act" does in fact "tend to show" by substantial proof any of those things enumerated, such as proof of motive, etc., then evidence of the "other act" may be admissible. Id. In this case, the "other acts" brought forth by Adams' testimony and now challenged here, i.e., accusations of theft, laziness, and disrespect for elders, are illuminative of the basis of discord between defendant and McKissick, and therefore tend to show by substantial proof, defendant's motive, scheme, - 21 - and intent in orchestrating or participating in the killing of McKissick. Defendant's first assignment of error is overruled. II. In his second assignment of error, defendant asserts that the trial court committed prejudicial error in permitting the state to introduce evidence that McKissick had filed a complaint against defendant for the theft of his column lock, on April 24, 1989. In a criminal trial, evidence of previous criminal acts, wholly independent of the offense for which the defendant is on trial, is inadmissible. State v. Hector (1969), 19 Ohio St. 2d 167, paragraph one of the syllabus; State v. Buck (1982), 3 Ohio App. 3d 349, 350. Exceptions to this rule are listed in R.C. 2945.59. Id. R.C. 2945.59 provides: "In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant." The Supreme Court has interpreted this statute to mean that contested evidence which is "inextricably intertwined and, thus, necessary to give the complete picture of what occurred" is - 22 - admissible. State v. Wilkinson (1980), 64 Ohio St. 2d 308, 318; State v. Buck, supra. In this case, defendant's July 18, 1989 statement begins with, "Mr. Preston came over to my house and asked me to settle about a prosecution about a car lock, out of court and I told him that I didn't want to talk about it." Therefore, we conclude that the fact of this prosecution is inextricably intertwined within the immediate background of the offenses at issue and the jury was entitled to know the circumstances surrounding this prosecution, in order to have the complete picture of what occurred. Moreover, this testimony is admissible pursuant to Evid. R. 404(B) as it tends to show by substantial proof, defendant's motive, intent, or plan in connection with McKissick's death. Defendant's second assignment of error is overruled. IV. In his third assignment of error, defendant asserts that the evidence is constitutionally insufficient to sustain his convictions for the felony murder specifications of counts one and two because he claims, he was not the principal offender, and the killing was not committed with prior calculation and design. In evaluating a challenge to the sufficiency of the evidence supporting a conviction, our inquiry must focus upon whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia (1979), 443, U.S. - 23 - 307, 318. The relevant question in this evaluation is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 319. R.C. 2929.04(A) provides in relevant part: "(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt: "*** "(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design." Pursuant to R.C. 2923.03, if a person acting with the culpability required for the commission of an offense, aids or abets another in committing the offense, then that person is guilty of complicity in the commission of the offense and shall be prosecuted and punished as if he were a principal offender. To aid is to assist; to abet is to incite or encourage. State v. Sims (1983), 10 Ohio App. 3d 56, 58. Thus, an aider and abettor is: - 24 - "'One who assists another in the accomplishment of a common design or purpose; he must be aware of and consent to such design or purpose.'" (Citation omitted.) Id. at 58-59. An aider and abettor's purpose to kill may be inferred where he engaged in a common design with others to commit the offense by force or violence. State v. Coleman (1989), 45 Ohio St. 3d 298, paragraph one of the syllabus. This inference is not conclusive, however. R.C. 2903.01(D); State v. Coleman, supra. By application of the foregoing, we hold that the record evidence reasonably supports the jury's determination with respect to both capital specifications, that defendant committed aggravated murder, with prior calculation and design, and in connection with an aggravated robbery. That is, viewing the evidence in a light most favorable to the prosecution, the jury could conclude that the defendant formed a prior decision to kill McKissick, then, while acting with purpose to kill, implemented this scheme by engaging in a common design of aggravated murder and aggravated robbery with Leon Turnage. That is, the evidence established that defendant threatened to kill McKissick, participated in a common scheme to kill McKissick, went through McKissick's pockets after Turnage rendered him unconscious, then participated in the transporting and secretion of McKissick's body and his van. Moreover, the degree of defendant's involvement, considered with defendant's prior manifestation of - 25 - intent to kill McKissick, is irreconcilable with defendant's claim that he was not a principal. Defendant's third assignment of error is overruled. V. Defendant next contends that his convictions are against the manifest weight of the evidence because, it is implausible that McKissick truly feared him yet continued to go to the Sandusky Avenue home. Defendant argues that there is no physical evidence implicating him, and the statements admitted into evidence do not indicate that he struck McKissick. Courts of appeals have power to consider and pass upon the weight of the evidence. State v. Cooey (1989), 46, Ohio St. 3d 20, 26. In State v. Mattison (1985), 23 Ohio App. 3d 10, 14, this court set forth the following guidelines for reviewing challenges to the manifest weight of the evidence: "'"1. Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible. *** "'"2. Whether evidence is uncontradicted, *** "'"3. Whether a witness was impeached, *** "'"4. Consideration of what was not proved, *** "'"5. The certainty of the evidence, *** "'"6. The reliability of the evidence, *** "'"7. The extent to which any of the witnesses may have an interest to advance or protect by their testimony, *** - 26 - "'"8. The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting together in a [logical] pattern, ***."'" [Citations omitted.] Applying the foregoing, we hold that defendant's convictions are not contrary to the manifest weight of the evidence. The uncontradicted evidence presented by the state competently, and credibly established that defendant placed McKissick in imminent threat of an assault, and threatened to kill McKissick only days before McKissick was killed, but that McKissick continued to come to the Sandusky Avenue home out of regard for defendant's grandmother. The state's evidence also established that despite an absence of physical evidence linking defendant to the killing, defendant, by his own admission had an argument with McKissick on the morning McKissick was killed, participated in the attack by robbing McKissick and helping to remove McKissick from the house after he was rendered unconscious. Moreover, while defendant's statement failed to indicate that he personally struck McKissick, defendant's statements likewise fail to offer any explanation regarding the manner in which McKissick lost blood. Given the interest which defendant has in this matter, and the other evidence presented, this omission precludes defendant's claim that the manifest weight of the evidence compels the conclusion Turnage was the sole principal. Rather, the evidence as a whole, including the unrefuted evidence of defendant's past confrontations with McKissick, and participation in the robbery, creates the strong inference that defendant was involved as a - 27 - principal in inflicting McKissick's fatal wounds, and that he is guilty of all offenses charged beyond a reasonable doubt. Defendant's fourth assignment of error is overruled. VI. For his fifth assignment of error, defendant asserts that the admission of victim impact evidence during the guilt phase of the trial deprived him of a fair trial in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Sections 1 and 16, Article I of the Ohio Constitution. In Booth v. Maryland (1987), 482 U.S. 496, 509, the United States Supreme Court held that introduction of victim impact evidence during the sentencing phase of a capital trial was unconstitutional. The Court considered such evidence to include the personal characteristics of the victim, the emotional trauma suffered by the victim's family, and the family members' opinions and characterizations of the defendant and the crime. Id. at 502. While the Court determined that a "mini trial" regarding the victim's character "could well distract the jury from its constitutionally required task - determining whether the death penalty is appropriate in light of the background and record of the accused an the particular circumstances of the crime," id. at 507, the Court recognized that "[s]imilar types of information may well be admissible because they relate directly to the circumstances of the crime." Id. - 28 - Later, in South Carolina v. Gathers (1989), 490 U.S. 805, 109 S. Ct. 2207, 2211 the court extended the rule announced in Booth to statements made by a prosecutor to the sentencing jury regarding the personal qualities of the victim. However, in Payne v. Tennessee (1991), U.S. , 111 S. Ct. 2597, the Supreme Court rejected the premises of Booth and Gathers, i.e., that evidence relating to a particular victim or to the harm which a capital defendant causes a victim's family do not in general reflect upon the defendant's "blameworthiness," and that only evidence relating to "blameworthiness" is relevant to the capital sentencing decision. The court in turn overruled Booth and Gathers, stating: "We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. 'The State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.' Booth, 482 U.S., at 517 (White, J., dissenting) (citation omitted). By turning the victim into a 'faceless stranger at the penalty phase of a capital trial,' Gathers, 490 U.S., at 821 (O'Connor, J., dissenting), Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the [*31] proper punishment for a first-degree murder." - 29 - In State v. Post (1987), 32 Ohio St. 3d 380, 383, the Ohio Supreme Court noted that the admission of victim impact evidence at capital trials was not expressly permitted by the Ohio statutes, and also noted that pursuant to Booth, such evidence denies a fair sentencing determination as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution. Finally, in State v. Williams (1988), 38 Ohio St. 3d 346, 354, the Supreme Court held that it was not error for the trial court to permit testimony from the victim's mother in the guilt phase of a capital trial where this testimony was offered to establish relevant events on the night her son was murdered. The court stated: "Appellant's reliance on [State v.] White [(1968), 15 Ohio St. 2d 146] is misplaced. There, this court held that the introduction of evidence of a victim's background or surviving family was error because such evidence was irrelevant to the guilt or innocence of the accused. The testimony of the victim's mother in this case was distinguishable. She testified that on Christmas Eve she arrived home at 10:00 p.m., that she heard the television in the victim's room and assumed he was home, and that after the murder, the appellant, who had previously been friendly, avoided her. The testimony did not concern the victim's background or surviving family, and it does not appear to have been relied on by the state to elicit the jury's sympathy. Instead, it focuses on the relevant events on the night the victim was murdered. We therefore conclude that the testimony was not improper, and we overrule these proposition of law." - 30 - In this case, while the challenged testimony involved the victim's daily habits (which included visiting others to help take care of their affairs), and the family's calls to police regarding his whereabouts, it was not offered to establish the victim's personal characteristics, or the family's emotional trauma, or to elicit the sympathy of the jury. Rather, we find that the testimony concerning McKissick's habits offered to show that it was probable that McKissick would continue to go to Thomas' home, despite the prior altercations with defendant, and that, with respect to the state's allegations regarding prior calculation and design, that such visits could be anticipated in advance. Similarly, the testimony regarding the family's calls to police was offered to show, with respect to identity of the body, that McKissick was never heard from again after going to Thomas' home on May 15, 1989. Thus, the evidence related directly to the circumstances of the crime and was admissible pursuant to State v. Williams, supra, as well as the more restrictive standard set forth in Booth and ultimately overruled in Payne. Defendant's fifth assignment of error is overruled. - 31 - VII. Defendant next claims that the trial court erred in denying his motion for a mistrial which was made after the prosecutor commented in closing argument, that "[w]e can't force [defendant] to tell us" why blood pooled in the console compartments. (Tr. 1544) In State v. Ferguson (1983), 5 Ohio St. 3d 160, 162 the Supreme Court noted that the state may not directly comment upon an accused's failure to take the stand. The court stated: "such comments would penalize an accused for exercising his constitutional right against self-incrimination. *** "***" Id. at 162-163, quoting State v. Cooper (1977), 52 Ohio St. 2d 163, 173. See also, Griffin v. California (1965), 380 U.S. 609. Nonetheless, in Chapman v. California (1967), 386 U.S. 18, and more recently in United States v. Hasting (1983), 461 U.S. 499, the United States Supreme Court held that a defendant's conviction may be affirmed, despite prosecutorial comment regarding defendant's silence, where such comments are found to be harmless beyond a reasonable doubt. Likewise, the Ohio Supreme Court has held that if it is "*** clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury would have found the defendant guilty," then defendant's conviction need not be reversed. State v. Thompson (1987), 33 - 32 - Ohio St. 3d 1, 4, quoting State v. Smith (1984), 14 Ohio St. 3d 13, 15. In this case, while the prosecutor's comment was clearly improper, cf. State v. Thompson, supra, this comment was harmless beyond a reasonable doubt. That is, we conclude that even if this comment had not been made, the jury would have found defendant guilty beyond a reasonable doubt nonetheless, in light of the uncontroverted evidence of defendant's previous altercation with McKissick, his May 12, 1989, threat to kill McKissick and his written and oral statements in this matter. Defendant's sixth assignment of error is overruled. VIII. Defendant next claims that the prosecutor gave prejudicially erroneous "jury instructions" regarding the definition of mitigating evidence, and the definition of a principal offender. A. The "Mitigation" Remark Initially we note that the challenged definition was not provided within jury instructions, but rather, was made during the prosecutor's closing remarks in the penalty phase of the trial, where the prosecutor stated: "Listen to whatever they count for mitigation out of the hundreds of things that can be imagined. Listen to whatever he wants to say and figuratively put weight on that side of the scale if, No. 1, it's mitigation. It doesn't necessarily have to be mitigation if it's a common experience or something that isn't an excuse or lessens a purposeful premeditated prior calculation murder of an - 33 - elderly gentleman by two guys in a brutal fashion in a quest for cocaine." (Tr. 2118) Defendant contends that this remark was erroneous as it contemplates a "reduction of blame definition for the concept of mitigation." We note, however, that defendant did not object to this statement. Further, because the Supreme Court in State v. Lawrence (1989), 44 Ohio St. 3d 24, 29, stated that "use of the word 'blame' alone would not have constituted prejudicial error," and because the trial court subsequently correctly advised the jury of the meaning of mitigatory evidence and of the mitigating factors it was to consider, (Tr. 2187-2188) we can not find this comment to constitute plain error. B. The "Principal" Remark This challenge likewise arises not from jury instructions but from the prosecutor's final closing argument during the mitigation phase, as follows: "Rayvon suggested we take him to Murray Hill. Here they start putting together bits of the truth. There may be bits of truth in that minimization there, but no question no matter how you read it even in this thing in this concoction that they brought through evidence in this case in which they could have done at any time, they could bring in and say it shows it was a joint action, that they did this together. Both our [sic] principals. You don't have a principal in this type of case. If five people go to the bank and hold up and pull the gun, and if it's planned and they kill the guy and it's a planned bank robbery, they're all principal offenders. Perhaps the person who pulled the trigger is more guilty then [sic] the others, but - 34 - they're all equally guilty under the law. You can say he's more but he's equal." (Tr. 2166-2167) "*** "*** Now, you hear that the offender, and you have to consider each one of these carefully. The offender was a participant in the offense but not the principal offender to the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the end. Obviously he's a principal. There is no question he's a principal. There is no need to even consider this. This insults the intelligence. They didn't address that one. There is no evidence of that one. (Tr. 2172) Considerable latitude is permitted in closing arguments, and the oversight of closing arguments is committed, in the first instance, to the discretion of the trial court. See State v. Maurer (1984), 15 Ohio St. 3d 239, 269. We find no abuse of discretion as the court had already given the jury the correct definition of "principal" in the guilt phase (Tr. 1617-1618), had already instructed the jury that the arguments of counsel are not evidence (Tr. 1597), and then properly instructed the jury that the degree of defendant's participation should be considered as a mitigating factor. (Tr. 2188) Defendant's seventh assignment of error is overruled. - 35 - IX. Defendant claims, in his eight assignment of error, that he was deprived effective assistance of trial counsel in both the guilt and mitigation phases, because: his counsel failed to request a curative instruction after Det. Taliano testified, upon questioning from defense counsel, that he learned from Leon Turnage that defendant robbed McKissick; counsel failed to request an instruction limiting the use of "other acts" testimony; counsel failed to object to "split verdict" and "acquittal first instructions;" and counsel, during the mitigation phase, failed to object to the consideration of "two capital sentencings," the "instruction of multiple aggravating circumstances," and the trial court's definitions of "reasonable doubt" and "mitigation." In order to obtain a new trial for ineffective assistance of counsel, the defendant must show that his counsel deprived him of a fair trial. He must demonstrate that (1) his counsel's performance was seriously deficient, and (2) the result would probably have been different had his counsel performed competently. Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Post (1987), 32 Ohio St. 3d 380, 388. In evaluating defense counsel's performance, a reviewing court initially presumes that duly licensed counsel performed competently. State v. Lytle (1976), 48 Ohio St. 2d 391, 397. - 36 - Further, a reviewing court must accord deference to counsel's strategic choices from counsel's perspective then without the benefit of hindsight. Strickland, supra, at 689-690. Thus, it is within this framework that we analyze each asserted basis of defendant's deprivation of effective counsel claim. With respect to counsel's failure to request a curative instruction during Taliano's cross-examination, we note that Taliano testified on direct that before defendant made his second oral statement, he orally admitted to robbing McKissick. Therefore, counsel may have determined that to request a curative instruction after it was further disclosed during cross- examination that Taliano also learned this information from Turnage, would unduly highlight defendant's involvement in this aspect of the offense. Thus, counsel could move into a new aspect of questioning, without requesting a curative instruction as a reasonable trial strategy. With respect to counsel's failure to request a limiting instruction regarding the "other acts," which presumably relates to testimony concerning the theft of the column lock, we note, as we stated previously, that this fact is inextricably intertwined with, and necessary for a complete understanding of the relevant facts of this matter, given that defendant's statement of July 18, 1989 specifically mentions the car lock prosecution. Moreover, this evidence, as noted previously, was - 37 - relevant to defendant's motive, intent, scheme and plan in this matter, and we do not consider counsel to be deficient in failing to object. With respect to counsel's failure to request a "split verdict" instruction, defendant claims that because the jury was not instructed that it could not split its finding as to whether defendant committed aggravated robbery or kidnapping, and he was possibly deprived of a unanimous verdict, as some of the jurors may have found him guilty of the death specification as a result of finding him guilty of aggravated robbery and others may have found him guilty of the same specification as a result of finding him guilty of kidnapping. The verdict forms for the death specifications list only aggravated robbery, and make absolutely no mention of kidnapping. Thus, the specifications do not contain two or more distinct conceptual felony groupings, and we can ascertain no deficiency in trial counsel's failure to request a "split verdict" instruction. See State v. Johnson (1989), 46 Ohio St. 3d 96, 104-105. With respect to counsel's failure to request an "acquittal first" instruction, we note that the trial court instructed the jury as follows: "Now, with regard to Count 1, ladies and gentlemen, if you find that the State proved beyond a reasonable doubt all the essential elements of aggravated murder with prior calculation and design, your verdict must be guilty of that offense, and in that event you will not consider any lesser offense. However, if you find that the State failed - 38 - to prove prior calculation and design or if you are unable to unanimously agree upon a verdict as to aggravated murder under Count 1 of the indictment, you will proceed with your deliberations and decide whether or not the State has proved beyond a reasonable doubt the elements of the lesser offense of murder." (Emphasis added.) (Tr. 1628) As this instruction embodies the "unable to unanimously agree" language specifically adopted in State v. Thomas (1988), 40 Ohio St. 3d 213, 220, we ascertain no deficiency in counsel's failure to object to this instruction. As to counsel's failure, during the penalty phase, to object to consideration of two capital sentencings, we note that count one charged defendant with purposely causing the death of another with prior calculation and design, plus the death penalty specification set forth in R.C. 2929.04(A)(7), whereas count two charged defendant with purposely causing the death of another in connection with an aggravated robbery, plus the death penalty specification set forth in R.C. 2929.04(A)(7). Thus, there were two aggravating circumstances associated with the two counts for which defendant was convicted. Cf. State v. Cooey (1989), supra, at 37-38. State v. D'Ambrosio (August 30, 1990), Cuyahoga App. No. 57448, unreported at p. 39-41. Moreover, even assuming that a double counting occurred, the mandatory independent review by this court would cure this error. Id. Thus, counsel was not deficient in this regard. - 39 - Finally, as to counsel's failure to object to the court's definition of "reasonable doubt" and "mitigation," we note that the court defined these terms as follows: "Reasonable doubt is present when after you have carefully considered and compared all the evidence you cannot say you are firmly convinced of the truth of the charge. "Reasonable doubt is a doubt based on reason and common sense. Reasonable doubt is not a mere possible doubt because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her own affairs. "*** "What are the mitigating factors that you are to consider? Mitigating factors are factors that while they do not justify or excuse the crime, nevertheless in fairness and mercy may be considered by you as extenuating or reducing the degree of the defendant's blame or punishment. These mitigating factors include but are not limited to the nature and circumstances of the offense, the history, character and background of the offender and any or all of the following factors listed in Ohio Revised Code 2929.04(B) as follows. Whether it is unlikely that the offense would have been committed but for the fact that the offender was under duress, coercion or strong provocation; the youth of the offender; the offender's lack of significant history of prior criminal convictions and delinquency adjudications; if the offender was a participant in the offense but not the principal offender; the degree of the offender's participation in the offense and the degree of the offender's participation in the acts that led to the death of the victim. Finally, you will consider any other factors - 40 - that are relevant to the issue of whether the offender should be sentenced to death." (Tr. 2185-2188) As the definition of "reasonable doubt" tracks the statutory definition of this term contained within R.C. 2901.05(D), it was a correct definition, cf. State v. Scott (1986), 26 Ohio St. 3d 92, 99-100. Thus counsel was not deficient in failing to object to it. Similarly, the court's definition of "mitigating evidence" has been approved in State v. Lawrence (1989), 44 Ohio St. 3d 24, 29. See, also, State v. Hill (April 25, 1991), Cuyahoga App. No. 57334, unreported at 30. Further, in the court's subsequent listing of mitigatory factors, it enumerated only those raised by defendant, as required by State v. DePew (1988), 38 Ohio St. 3d 275, 289. Thus, no objection was required as to either term. Defendant's eighth assignment of error is overruled. X. Defendant next claims that the trial court erred in failing to require the state to elect to proceed under either the first count of aggravated murder, or the second count of aggravated murder in the penalty phase of the trial, because defendant claims, the Supreme Court, in State v. Brown (1988), 38 Ohio St. 3d 305, 316 has held that two charges of aggravated murder which arise from a single killing are allied offenses. In State v. Brown, supra, at 317-318, the Supreme Court stated: - 41 - "Case precedent establishes that the state may submit to the jury two crimes that are allied offenses of similar import. However, the law prohibits a conviction of both crimes. State v. Osborne (1976), 49 Ohio St. 2d 135, 3 O.O. 3d 79, 359 N.E. 2d 78. "In this case, the court submitted two charges of aggravated murder to the jury. It is undisputed the crimes were allied offenses of similar import. The jury returned a guilty verdict on both. Ultimately, the court sentenced defendant on both charges. This was error. "The next question is whether the defendant was prejudiced by this error. The error was merely procedural in nature and did not involve any substantial right. In our view, the error was harmless beyond a reasonable doubt. Therefore, we reject this contention." In this case, no error occurred because a single sentence of death was imposed for both aggravated murder convictions. Accord State v. D'Ambrosio, supra, at 44-45. As to defendant's further contention that the jury's consideration of the death specifications contained in both counts one and two artificially inflated the aggravating circumstances of this case, we note that the evidence establishes a separate animus as to aggravated murder with prior calculation and design, as well as felony murder aggravated murder. Cf. State v. Jenkins (1984), 15 Ohio St. 3d 164, 198-200. Moreover, even assuming that consideration of the aggravating circumstances contained in both the first and second counts of the indictment artificially inflated the aggravating circumstances, we note that the trial judge instructed the jury that during their weighing - 42 - process they should give primary consideration to the "quality of the evidence *** [which] may or may not be commensurate with the quantity of the evidence ***" (Tr. 2190), cf. State v. Jenkins, supra; and State v. Penix, (1987), 32 Ohio St. 3d 369, 372. Further, artificial duplication does not, standing alone, require that defendant's sentence be set aside, as "[a]ny remote possibility of error that this had upon the jury's judgment can be guarded against when this court undertakes its responsibility *** to weigh all of the evidence and determine whether the *** aggravating circumstances which appellant was found guilty of committing outweigh the mitigating factors present in the case." Id. Defendant's ninth assignment of error is overruled. XI. In his tenth assignment of error, defendant claims that during the penalty phase, the prosecuting attorney asserted non- statutory aggravating factors, and this deprived him of a fair trial. More specifically, defendant claims that the prosecuting attorney impermissibly: 1) cross-examined Viola Thomas regarding whether defendant had broken into the Sandusky Avenue home, whether defendant had a cocaine habit, and whether defendant was on welfare; 2) cross-examined Jennifer Taylor regarding whether defendant had publicly claimed to have been framed by police; and 3) cross-examined Det. Svekric as to whether McKissick was active in his church. Defendant also - 43 - claims that the prosecuting attorney improperly put forth evidence in rebuttal, of defendant's "bad moral character" by offering testimony that defendant did not properly support his child, assaulted the mother of his child, was on welfare, did not complete drug treatment, and had been accused by Thomas of breaking into Thomas's home. The aggravating circumstances to be weighed against the mitigating circumstances in the penalty phase of a capital trial are contained within R.C. 2929.04(A). Cf. State v. Landrum (1990), 53 Ohio St. 3d 107, 112. Improperly introducing non- statutory aggravating circumstances is error. Id. Nonetheless, the state may put forth evidence to challenge defendant's mitigation evidence. Cf. State v. Landrum, supra, at 113. Applying the foregoing, we find the state's cross- examination and rebuttal to be proper in this instance. First, as to the claims regarding Thomas, we note that Thomas, in her direct testimony indicated that defendant helped out around the house, had a variety of jobs, and regulary earned money from his records. Therefore, it was proper for the state to impeach Thomas's credibility with direct challenges to each of these statements. Accordingly, the state could properly cross- examine Thomas regarding her previous burglary accusation against defendant, her demand that defendant obtain drug abuse counselling, and the fact that defendant was on welfare. - 44 - Second, as to the claims regarding Jennifer Taylor, we note that Taylor testified on direct that she was close to defendant and that she was afraid of Leon Turnage, who had previously been imprisoned for attempted murder. Thus the state could properly impeach Taylor's claim of having a close relationship with defendant by cross-examining her as to whether she had knowledge of defendant's drug habit, and knowledge of defendant's prior claims of being uninvolved in McKissick's murder. Third, as to the claims regarding the state's cross- examination of Svekric, we note that in his direct testimony, Svekric read Leon Turnage's written statement into the record, and thereby indicated that before being attacked, McKissick had become "fighty." Accordingly, the state could challenge this evidence by eliciting from Svekric that in the course of his investigation he learned defendant was generally peaceful and religious. Finally, as to the challenged rebuttal evidence, we note that in his unsworn statement, defendant stated, "*** I sing for my money, you know to pay my grandmother rent, take care of my little daughter which I have now *** Weekends I was always working and I make money to take care of my family and my daughter ***. (Tr. 1863) It's never been on my record, never been in my mind for me to rob nobody because I always had my own money. *** Never in my life strung out on drugs, and nobody can come in here and sit in this seat today and tell you I was strung - 45 - out on drugs because I never in my life have been strung out on drugs. (Tr. 1875) *** I don't use drugs. (Tr. 1876) *** I'm not out here to rob the world, (Tr. 1876) *** I always wanted to be a good man in life, take care of my family, take care of my little daughter ****." (Tr. 1877) Accordingly, the state properly put forth rebuttal evidence to controvert each of these claims. Thus, the state properly put forth evidence that defendant did not regularly support his child and that the child's mother received welfare for the child's support, that defendant stole from the child's mother and beat her, and that defendant had received drug abuse counseling and was on welfare. Defendant's tenth assignment of error is overruled. XII. Defendant next claims that the trial court erred in instructing the jury that "aggravating circumstances, " rather then a single aggravating circumstance, was determined in this action. Aggravating circumstances are listed in R.C. 2929.04(A) and include: "(7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, - 46 - committed the aggravated murder with prior calculation and design." See, also Committee Comment to R.C. 2929.04(A) (The *** aggravating circumstances deal with [inter alia,] felony murder.) In this case, defendant was convicted of two counts of aggravated murder, both with an accompanying death penalty specifications pursuant to R.C. 2929.04(A)(7). Under count one, defendant was convicted of aggravated murder, in violation of R.C. 2903.01(A) (prior calculation and design) and the felony murder death penalty specification. Under count two, defendant was convicted of aggravated murder in violation of R.C. 2903.01(B) (felony murder) and the felony murder death penalty specification. Accordingly, there were two aggravating circumstances and the trial court did not err in so instructing the jury. See, generally State v. D'Ambrosio, supra, at 25-26, and supplemental opinion. Defendant's eleventh assignment of error lacks merit. XIII. Defendant next claims, for his twelfth assignment of error, that the trial court erred in failing to instruct the jury that it must unanimously determine defendant's guilt with respect to each subgrouping contained within the felony murder death specifications. Concomitantly, defendant claims that he may have been deprived of a unanimous verdict as some of the jurors may have found defendant guilty of the prior calculation and design branch of this specification, whereas other jurors may - 47 - have found him guilty of the felony murder branch, stemming from an aggravated robbery, and still other jurors may have found him guilty of the felony murder branch, stemming from a kidnapping. As we noted previously, in our discussion regarding defendant's eighth assignment of error (See pages 35-36), all twelve jurors indicated on the verdict forms for the specifications, that defendant was guilty of aggravated murder in connection with an aggravated robbery, and aggravated murder with prior calculation and design. The presence of the word "and," a conjunctive modifier, convinces us that the jury unanimously found defendant guilty of both the felony murder and prior calculation and design branches of the felony murder death specifications. See State v. Johnson, supra, at 104, quoting Turner v. United States (1970), 396 U.S. 398, 420. Moreover, as the verdict forms listed only aggravated robbery and made absolutely no mention of kidnapping, we are further convinced that the jury unanimously agreed, with respect to the felony murder branch of the specifications that the felony at issue was aggravated robbery. Cf. State v. Johnson, supra. Defendant's twelfth assignment of error is overruled. XIV. Defendant next asserts that the trial court's instructions during the penalty phase of "reasonable doubt" and "mitigating factors" were prejudicially erroneous. As we noted previously in our discussion of defendant's eighth assignment of error (see - 48 - pages 37-39) the reasonable doubt instruction duplicated the definition set forth in R.C. 2901.05(D), and was therefore proper, cf. State v. Scott, supra, and the court's mitigation instruction was approved in State v. Lawrence, supra, and State v. Hill, supra. Accordingly, we overrule this assignment of error. XV. For his fourteenth assignment of error, defendant asserts that the requirement that a capital defendant prove mitigation by a preponderance of the evidence (See R.C. 2929.03(D)(1) and Committee Comment to R.C. 2929.04), precludes the sentencer from considering all mitigating evidence and compels a presumption of death. These contentions were rejected in State v. Seiber (1990), 56 Ohio St. 3d 4, 15-16; and State v. Coleman, supra, at 294. St. 3d 286, 294. XVI. Defendant next claims, in his fifteenth assignment of error, that the felony murder death specification, R.C. 2929.04(A)(7) unconstitutionally fails to narrow the class of persons eligible for the death penalty. This claim has been repeatedly rejected by the Ohio Supreme Court. See State v. Bueke (1988), 38 Ohio St. 3d 29, 38; State v. Broom, supra, at 291; State v. Barnes (1986), 25 Ohio St. 3d 203, 206-207. - 49 - XVII. In his final assignment of error, defendant raises ten constitutional challenges to Ohio's death penalty statutes. Because each of these challenges has been formerly raised and decided, we summarily dispose of them below. See State v. Poindexter (1988), 36 Ohio St. 3d 1, syllabus. "A.INFLICTION OF THE DEATH SENTENCE NECESSARILY VIOLATES THE DEFENDANT'S DUE PROCESS RIGHTS." Defendant asserts that life is an inalienable right which cannot be taken unless the state demonstrates that this action is the least restrictive means of furthering a compelling governmental end. This assertion was rejected in State v. Jenkins, supra, at 168. "B.REVISED CODE 2929.022, 2929.03 AND 2929.04 VIOLATE DEFENDANT'S RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO TRIAL BEFORE AN IMPARTIAL TRIER OF FACT." Defendant next asserts that the Ohio death penalty statutes compel ineffective assistance of counsel and preclude impartiality by forcing defense counsel to first deny a defendant's guilt in the guilt phase, then argue "why his guilty client should not be put to death" in the penalty phase. These contentions were rejected in State v. Jenkins, supra, at 173-174, fn. 11; State v. Mapes (1985), 19 Ohio St. 3d 108, 116-117; State v. Zuern (1987), 32 Ohio St. 3d 56, 63. Moreover, in this case, defense counsel did not present contrary arguments in the - 50 - guilt and penalty phases, as they asserted reasonable doubt of defendant's guilt in both the guilt and the penalty phases. (Tr. 2125-2132). "C.REVISED CODE 2929.03, 2929.04 AND 2929.05 ARE UNCONSTITUTIONAL AS THEY FAIL TO PROVIDE ADEQUATE GUIDELINES FOR DELIBERATION, LEAVING THE SENTENCING BODY WITHOUT PROPER GUIDELINES IN BALANCING THE AGGRAVATING AND MITIGATING CIRCUMSTANCES." Defendant further contends that the statutory requirement that the aggravating circumstances merely outweigh the mitigation circumstances in order for the death penalty to be imposed, see R.C. 2929.03(D)(2), creates the possibility that a death sentence may be based upon only a marginal difference between the aggravating and mitigating factors, and therefore creates the possibility of arbitrary and capricious sentencing. These claims were rejected in State v. Jenkins, supra, at 172-173; and State v. Buell (1986), 22 Ohio St. 3d 124, 139. "D.OHIO REVISED CODE 2929.022, 2929.03 AND 2929.04 AND OHIO RULE OF CRIMINAL PROCEDURE 11 (c)(3) PLACE AND UNCONSTITUTIONAL BURDEN ON THE DEFENDANT'S RIGHT TO A TRIAL." Defendant next claims that the Ohio death penalty statutes unfairly force a capital defendant to plead guilty to the charges raised in order to save his life. This claim was rejected in State v. Jenkins, supra, at 173, fn. 11; See, also, State v. Buell, supra, at 138-140. "E.OHIO REVISED CODE 2929.03 FAILS TO PROVIDE A MEANINGFUL BASIS FOR - 51 - DISTINGUISHING BETWEEN LIFE AND DEATH SENTENCES." Defendant claims that the failure of the Ohio death penalty statutes to require the sentencer to explain why mitigation outweighed aggravation when life imprisonment is imposed precludes meaningful proportionality review of death sentences. In State v. Benner (1988), 40 Ohio St. 3d 30l, 318, this claim was rejected. "F.THE APPELLATE REVIEW PROVISION OF R.C. 2929.05 FAILS TO SPECIFICALLY REQUIRE INQUIRY AND FINDINGS REGARDING ARBITRARINESS, PASSION OR PREJUDICE." Here, defendant suggests that because the death penalty statutes do not specifically require inquiry into the possible influence of passion, prejudice, or other arbitrary factors, they fail to ensure fair application of this penalty. This claim was rejected in State v. Durr (1991), 58 Ohio St. 3d 86, 97 wherein the Supreme Court stated, "because such inquiry is inherent in every death penalty review, we decline to accept appellant's argument." "G.THE OHIO DEATH PENALTY STATUTE IMPERMISSIBLY MANDATES IMPOSITION OF THE DEATH PENALTY AND PRECLUDES A MERCY OPTION IN THE ABSENCE OF MITIGATING EVIDENCE OR WHEN AGGRAVATING CIRCUMSTANCES OUTWEIGH MITIGATING FACTORS." Defendant next asserts that the death penalty statutes impermissibly limit the possibility of a life sentence by - 52 - precluding a mercy option. This claim was rejected in State v. Jenkins, supra, at 178; and State v. Buell, supra, at 141. "H.THE OHIO DEATH PENALTY SCHEME PERMITS IMPOSITION OF THE DEATH PENALTY ON A LESS THAN ADEQUATE SHOWING OF CULPABILITY BY FAILING TO REQUIRE A CONSCIOUS DESIRE TO KILL, PREMEDITATION, OR DELIBERATION AS THE CULPABLE MENTAL STATE." Defendant next suggests that because R.C. 2903.01(D) mandates that the prosecution prove beyond a reasonable doubt that the defendant has specific intent to cause the death of another, yet "specific intent" is not defined in the death penalty statutes, a defendant may be convicted on inadequate proof of culpability. Although R.C. 2903.01(D) provides that no person shall be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another, the Supreme Court has repeatedly held that this provision does not require the finder of fact to make a special finding that defendant specifically intended to kill his victim. State v. Jenkins, supra, paragraph nine of the syllabus, and 212-213; State v. Maurer, supra, paragraph five of the syllabus; State v. Williams (1986), 23 Ohio St. 3d 16, 22; State v. Scott, supra, at 108. Accordingly, we reject this claim. "I.THE STATUTES FAIL TO REQUIRE PROOF BEYOND ALL DOUBT AS TO GUILT AND CONVICTION BEFORE THE DEATH SENTENCE MAY BE IMPOSED." - 53 - Defendant additionally claims that because of the gravity of this sentence, the death penalty should not be imposed absent proof "beyond all doubt." This claim was rejected in State v. Jenkins, supra, at paragraph eight of the syllabus; See, also, State v. Landrum, supra, at 122. "J.THE STANDARD FOR PROPORTIONALITY REVIEW ADOPTED BY THE OHIO SUPREME COURT FAILS TO ENSURE AGAINST EXCESSIVE AND DISPROPORTIONATE SENTENCES WHICH CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AND A DENIAL OF DUE PROCESS." Finally, defendant condemns the precedent based proportionally review adopted by this state, and claims that accurate proportionality review may only be obtained through a comparison of the frequency with which capitally charged defendants receive the death penalty or a life sentence. This contention was rejected in State v. Steffen (1987), 31 Ohio St. 3d 111, paragraph one of the syllabus; and State v. Wickline, (1990), 50 Ohio St. 3d 114, 124. XVIII. R.C. 2929.05 requires this court to supplement its review of the assigned errors by independently determining whether (a) the evidence supports the trial court's determination of the statutory aggravating circumstances, (b) the statutory aggravating circumstances outweigh any mitigating factors, (c) the trial court properly weighed the statutory aggravating circumstances against the mitigating factors, (d) the death sentence is not excessive or disproportionate to the penalty - 54 - imposed in similar cases, and (e) the death sentence is appropriate in this case. The evidence here establishes that defendant, with Leon Turnage, engaged in a common design of aggravated murder and aggravated robbery. The evidence fully supports the trial court's determination that defendant was guilty of aggravated murder by prior calculation and design, with a felony murder specification and that he was also guilty of aggravated murder by felony murder with a felony murder specification. As to the evidence offered in mitigation, we note that there was no evidence of any mitigating factors relating to the commission of the crimes, as McKissick neither induced nor facilitated those offenses, see R.C. 2929.04(B)(1), and there was no evidence that defendant committed the crimes under coercion. See R.C. 2929.04(B)(2). Furthermore, defendant did not suggest that due to substance abuse or a mental defect, he was unable to appreciate his conduct or conform to legal norms. R.C. 2929.04(B)(3). In addition, defendant was twenty-eight years old at the time of the crimes, and therefore youth was not a mitigating factor. R.C. 2929.04(B)(4). As to whether defendant has a significant history of prior criminal convictions and delinquency adjudications, the evidence establishes that defendant had no prior felony convictions (Tr. 1809). Thus, evidence was presented in support of this mitigating factor. R.C. 2929.04(B)(5). As to the degree of defendant's - 55 - participation, the evidence establishes, with respect to the first count of aggravated murder, that defendant formed a decision to kill McKissick, then participated in the killing and personally robbed McKissick. The evidence further shows, with respect to the second count of aggravated murder that defendant participated in the course of conduct which resulted in McKissick's death, in accordance with his prior calculation and design then robbed McKissick. R.C. 2929.04(B)(6). Finally, as to the existence of other relevant factors, we note that defendant indicated that he moved to his grandmother's home to assist his grandparents, was a gospel singer, had released three records, was close to his sister, and that every life is worth saving. We find this evidence to be insubstantial, however. We concur with the trial court's determination that the statutory aggravating circumstances outweigh the mitigatory evidence offered in this case. Additionally, the death penalty in this case is not excessive or disproportionate to the penalty in similar cases. See State v. Scott, supra; State v. Post, supra; State v. Roe (1989), 41 Ohio St. 3d 18; State v. Jamison (1990), 49 Ohio St. 3d 182. As previously discussed, we overrule each of defendant's assignments of error, and affirm the judgment of the trial court, including the sentence of death. - 56 - It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLANCHE KRUPANSKY, C.J., and FRANCIS E. SWEENEY, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .