COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58559, 58560 : STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND RICHARD EBERLING : OPINION OSCAR B. HENDERSON : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-232316 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. EBERLING'S CONVICTION FOR TAMPERING WITH RECORDS VACATED. ALL OTHER CONVIC- TIONS AFFIRMED. ORDER OF SOLITARY CONFINEMENT VACATED. REMANDED FOR HEARING ON RESTITUTION AND FOR RESEN- TENCING. HENDERSON'S CONVICTIONS FOR AGGRAVATED MURDER, FORGERY AND TAMPERING WITH RECORDS VACATED. ALL OTHER CONVICT- IONS AFFIRMED. ORDER OF SOLITARY CONFINEMENT VACATED. REMANDED FOR HEARING ON RESTITUTION AND FOR RESEN- TENCING. DATE OF JOURNALIZATION: (cont.) - 1 - APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: STEPHANIE TUBBS JONES, Cuyahoga DAVID L. DOUGHTEN, Esq. County Prosecuting Attorney Standard Bldg., Suite 200 GEORGE RUKOVENA, Esq., Assistant 1370 Ontario Street Prosecuting Attorney Cleveland, Ohio 44113 Justice Center, Courts Tower Attorney for Richard Eberling 1200 Ontario Street Cleveland, Ohio 44113 HYMAN FRIEDMAN, Cuyahoga County Public Defender BEVERLY PYLE, Esq., Assistant County Public Defender Marion Bldg., Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 Attorney for Oscar B. Henderson -2- HARSHA, J.: On October 13, 1988, a Cuyahoga County grand jury indicted Oscar Henderson and Richard Eberling on nine charges arising out of the death and financial affairs of Ethel May Durkin. The charges included one count of aggravated murder (R.C. 2903.01), one count of aggravated grand theft of property valued at $100,000 or more (R.C. 2913.02), one count of forgery (R.C. 2913.31), one count of complicity (R.C. 2923.03) to commit perjury (R.C. 2921.11), one count of tampering with evidence (R.C. 2921.12), one count of tampering with records (R.C. 2913.42), and three counts of grand theft of property valued at $5,000 or more. The first six charges alleged Henderson and Eberling murdered Durkin and committed the other crimes in order to misappropriate over $1,000,000 from her estate. The final three charges stemmed from tangentially related claims of insurance fraud. The state, as well as the defendants, engaged in pretrial motion practice. Defendants' motions for separate trial, -3- suppression of evidence and change of venue were denied. The state's motion to amend count two of the indictment was granted. Trial was held before a jury on June 6, 1989. At the close of the state's case, the defendants moved for acquittal pursuant to Crim. R. 29. The court granted Henderson's motion as to count seven, which was one of the counts charging grand theft of $5,000 or more in relation to insurance fraud. The remaining charges were deliberated upon by the jury. Both defendants were found guilty of counts one through six and also on count nine. Additionally, Eberling was found guilty of counts seven and eight. Henderson was found to be not guilty of count eight, another of the grand theft counts relating to insurance fraud. The following sentences were ordered: Count Charge Eberling Henderson 1 Agg. Murder life imprisonment l i f e imprisonment 2903.01 $25,000 fine $25,000 fine 2 Agg. Grand 5-15 years 5-15 years Theft $7,500 fine $7,500 fine 2913.02 3 Forgery 1 1/2 years 1 1/2 years 2913.31 $2,500 fine $2,500 fine 4 Complicity to 2 years 2 years commit per- $5,000 fine $5,000 fine jury 2923.03/2921.11 5 Tampering with 2 years 2 years evidence $5,000 fine $5,000 fine 2921.12 6 Tampering with 1 1/2 years 1 1/2 years records $2,500 fine $2,500 fine 2913.42 -4- 7 Grand Theft 2 years Dismissed pur- 2913.02 $5,000 fine suant to Rule 29 8 Grand Theft 2 years Jury Verdict 2913.02 $5,000 fine Not Guilty 9 Grand Theft 2 years 2 years 2913.02 $5,000 fine $5,000 fine Eberling's life sentence was ordered to be served consecutive to the thirteen years from counts three through nine which was ordered to be consecutive to the five to fifteen years from count two. Henderson's life sentence was ordered to be served consecutive to the nine years from counts three through six and count nine. That term was ordered to be served consecutive to the term from count two. Henderson and Eberling were ordered jointly liable for restitution in the amount of $1,524,453.69 to the estate of Mrs. Durkin. Eberling was also ordered to pay restitution of $32,000 on count seven and $56,900 on count eight. Both defendants were liable for $17,500 restitution on count nine as well as court costs for those counts on which they were convicted. The trial in these cases revealed the following pertinent facts. Mrs. Durkin was a feeble, elderly woman who required constant assistance. In order to enable her to accomplish her daily routine, Durkin employed a number of people, including Eberling, Henderson, and her cousin, Linda Newton. On November 15, 1983, Durkin fell in her home while Eberling was with her. She was hospitalized with two broken cervical vertebrae until she -5- died on January 3, 1984. Durkin's body was examined, but not autopsied by the coroner, who concluded she had died from complications resulting from an accidental fall. Durkin was subsequently buried and the manner of her death was seemingly settled. Patricia Bogar testified that she became acquainted with Henderson in 1979 and that he introduced her to Eberling. Eberling, at some unknown time, presented two sheets of paper bearing Durkin's signature to Bogar. Eberling told her he was going to make a will for Durkin and promised he would give ten percent of its proceeds to Bogar if she would sign as a witness. She did so. She informed the police of the matter when the will was probated and Eberling and Henderson would not pay her. She also testified that Eberling approached her in April, 1982 and presented her with the idea of staging a burglary of her residence in order to collect insurance proceeds. Henderson was not present at that time. Ultimately, a burglary was staged and a false claim was filed. This claim was the basis of count seven in the indictment. Beverly Scheidler testified that she and her husband, Dale, were involved in a greenhouse and an Arabian horse business which were failing. Eberling offered them financial assistance. On the night of Durkin's "fall," Eberling suggested they go to the home which Eberling and Henderson shared in order to compose a letter regarding a potential business venture. In the two to two and one-half hours after their arrival, Henderson typed numerous -6- drafts of the one page letter. At 9:30 p.m. Henderson answered a phone call, at the close of which he stated, "What's done is done." Eberling was not in the house at the time. On January 6, 1984, at Eberling's request, Mrs. Scheidler took her typewriter to Durkin's home. She typed two wills onto paper, which already bore the signatures of Durkin and Bogar. She and her husband also signed the wills as witnesses. At Durkin's wake, the wills were presented to Durkin's attorney and to Eberling. The wills named Henderson as executor and awarded him four percent of Durkin's estate. Eberling was to receive seventy percent of the estate. The Scheidlers would eventually be called as witnesses at the probate proceedings. During February 1984, the Scheidlers' financial status grew worse. Eberling suggested that they could get fast cash by staging a false insurance claim. He finally convinced Mrs. Scheidler that the idea was sound by taking her to Durkin's home and showing her a false burglary he and Henderson had staged there. Henderson submitted a false proof of loss claim form in the amount of $26,709.82. Allstate Insurance Company paid out $17,552.87 in a check payable to Henderson as executor of Durkin's estate. Henderson deposited the money into his own account. This false claim was the basis of count nine in the indictment. Seeing the success of Eberling and Henderson, the Scheidlers decided to stage a false burglary of their home on April 7, 1984. Under Eberling's direction, the Scheidlers went out to dinner. -7- When they returned, their home was burglarized. Eberling later took the couple to various stores to get estimates for many items they never owned in order to inflate the false claim. A claim for $252,800 was filed with Westfield Insurance Company. A total of $56,900 was paid on the claim. The false claim was the basis of count eight in the indictment. On April 18, 1984, a hearing in the probate court was held. The Scheidlers were subpoenaed to testify regarding the validity of the will. They initially resisted Eberling's instructions that they perjure themselves at the hearing. However, when they resisted, Eberling made comments which the Scheidlers viewed as veiled threats to reveal the false insurance claim to the police. Under this pressure, they agreed to commit perjury. Eberling and Henderson coached the Scheidlers on what to say and do at the hearing and provided them with "scripts" to recite while testifying. The Scheidlers presented the perjured testimony at the hearing. In April 1985, Mrs. Scheidler had dinner with Eberling at a Lakewood restaurant. During this dinner, Scheidler expressed surprise that Mrs. Durkin could have broken her neck by falling face forward to the ground. In response, Eberling stated that it wasn't the fall that had killed Durkin; rather, he had hit her. From 1982 through the date of Durkin's death, Henderson, via Durkin's power of attorney, conducted all of Durkin's financial affairs. Two days after Durkin's death and one day prior to the typing of the wills by Mrs. Scheidler, Henderson opened a power -8- of attorney checking account by swearing in an affidavit that Durkin was living. He cashed three certificates of deposit and used the proceeds to place $30,469.97 in the checking account. Henderson then disbursed hundreds of thousands of dollars to Eberling and tens of thousands to himself. In 1988, as the strange occurrences surrounding Durkin's death and the execution of her will began to filter out, the Lakewood Police Department had Durkin's body exhumed. On September 10, 1988, an autopsy was performed. The autopsy revealed that not only did Mrs. Durkin have bruises on the front of her face, she also had a bruise on the back of her head. This bruise was inconsistent with the theory that Durkin broke her neck after falling forward. The bruise appeared to be made by a blow from a blunt object. Based upon these findings, the cause of death was revised to homicide. Other pertinent facts will be discussed in conjunction with our analysis of the assigned errors. Eberling raises six assignments of error through his attorney on appeal and three assignments of error pro se. Henderson raises six separate assignments of error, although one has five subparts, through his appellate counsel. I Eberling I. THE CONVICTION OF AGGRAVATED MURDER IS AGAINST THE WEIGHT OF THE EVIDENCE. Eberling asserts that the judgment of the trial court journalizing the jury verdict finding him guilty of aggravated murder was against the manifest weight of the evidence. A -9- reviewing court will not reverse a jury verdict 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. Smith (1991), 61 Ohio St. 3d 284, 289; State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. The test for determining if a judgment was against the manifest weight of the evidence is much broader than a determination regarding sufficiency of the evidence; the court, in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Martin 91983), 20 Ohio App. 3d 172. Eberling specifically questions the validity of the September 15, 1988 autopsy report conducted by Dr. Elizabeth Balraj of the Cuyahoga County Coroner's Office and the testimony of Beverly Scheidler. Dr. Balraj testified that Durkin died of a blunt impact to the head with a fracture to the spine and heart problems (Tr. 1004) and that the autopsy revealed a bruise to the back of the head that was not incurred after death (Tr. 1075). The paramedics testified that Durkin was found face down. The evidence further revealed that Durkin's death was caused by receiving multiple blows by a blunt object to the front and back of her head, which was inconsistent with the earlier finding of an accidental fall. (Tr. 1004-1014.) Beverly Scheidler -10- testified that she had dinner with Eberling a year after Durkin died and when she commented that it was a shame that a fall similar to the one Durkin had could kill somebody, Eberling replied, "She didn't fall. I hit her." (Tr. 2993.) Eberling's assertions on appeal essentially attack Dr. Balraj and Beverly Scheidler's credibility. However, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. Davis (1991), 62 Ohio St. 3d 326, 345. In the case at bar, the alleged inconsistencies in the challenged testimony were properly resolved by the jury in favor of Dr. Balraj and Beverly Scheidler, after being subject to full cross-examination during the jury trial. We are unpersuaded that reliance upon the foregoing evidence by the trier of fact was indicative that it had "clearly lost its way." Martin, supra. There was substantial evidence upon which the jury could reasonably conclude that the elements of aggravated murder had been proven beyond a reasonable doubt. Eberling's first assignment of error is overruled. II Henderson I. THERE WAS CONSTITUTIONALLY INSUFFICIENT EVIDENCE TO SUSTAIN MR. HENDERSON'S CONVICTIONS FOR AGGRAVATED MURDER, FORGERY, TAMPERING WITH RECORDS, AND COMPLICITY IN COMMITTING PERJURY. Count one charged Henderson with having purposely and with prior calculation and design caused the death of Ethel May Durkin on January 3, 1984. Count three alleged that Henderson, with a -11- purpose to defraud or knowledge that he was facilitating a fraud, forged a will. Count four stated that Henderson solicited, procured or aided and abetted Beverly Scheidler's and Dale Scheidler's commission of perjury. Count six accused Henderson of having, with a purpose to defraud or knowledge that he was facilitating a fraud, falsified a will. Henderson asserts that there was constitutionally insufficient evidence to sustain his convictions for aggravated murder, forgery, tampering with records, and complicity in committing perjury. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt; the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus, citing Jackson v. Virginia (1979), 443 U.S. 307. A Henderson contends that the state failed to prove that the victim's death was a homicide rather than an accident and that there was no evidence of motive or conspiracy. However, as noted in our disposition of Eberling's first assignment of error, the testimony of Dr. Balraj and Beverly Scheidler supported a finding -12- that Eberling had committed a homicide. The issue is whether the evidence further supported a finding that Henderson was also guilty of aggravated murder. The Scheidlers testified that Eberling asked that on November 15, 1983 (the day Durkin was struck) the Scheidlers go to appellants' home so that Henderson could type a letter con- cerning a business venture involving the Scheidlers and appel- lants. Beverly Scheidler had a typewriter, could type and re- typed the letter Henderson produced. According to the Scheid- lers they waited for Henderson's telephone call at between six and six-thirty p.m. and then went to appellants' home at between seven and seven-thirty p.m. Once they were at appellants' home the Scheidlers sat in the basement as Henderson typed and retyped a simple one-page letter. At approximately nine-thirty p.m. Henderson answered the telephone in the Scheidlers' presence and, after listening for a moment, said, "What's done is done." He told them that the caller was Richard and then hurried them out. (Tr. 2844-2852; 3588-3591.) Durkin was struck by Eberling at approximately seven p.m. Henderson was charged with aggravated murder, R.C. 2903.01(A): purposely, and with prior calculation and design, causing the death of Ethel May Durkin. The evidence revealed that Eberling was alone with Durkin and struck her. Henderson can be prosecuted under R.C. 2923.03, Complicity. Under R.C. 2923.03 a person may be an accomplice in an offense and prosecuted as the principal offender if, among other things, he aids -13- or abets another in committing the offense while acting with the kind of culpability required for commission of the offense. State v. Coleman (1988), 37 Ohio St. 3d 286 (paragraph two of the syllabus). "[M]ere association with one who perpetrates a crime does not render a person a participant...." Id. at 290. Appellee's brief contends that the following evidence estab- lishes that Henderson is guilty of aggravated murder. Appellant, Eberling and Bogar engaged in a scheme since 1980 to construct a forged will for the victim, ... during the last several emotionally charged days before the victim was bludgeoned, she was freeing herself from the emotional and financial manipulation of the appellant and Eberling, ... [and] after the bludgeoning, the appellant and Eberling did in fact complete the forged will scheme and between them ended up with the bulk of the victim's estate. (Page 29-30.) Bogar testified that in 1980 Eberling had her sign the page with Durkin's name on it. Bogar never said Henderson was involved with the signing. She merely said that sometime later she and appellants discussed the fact that she had signed and they offered her a lesser amount. That testimony proves that Henderson knew of Bogar's signing but not that he had anything to do with its occurring. Several witnesses testified that, just before she died, Durkin said there would be changes around her household. All of this testimony concerned conflicts between the witnesses and Eberling. At trial appellee neither alleged nor proved that there was anything improper in the manner in which Henderson acquired or used the power of attorney. In fact, Durkin's -14- cousin, Linda Newton, testified that Henderson tried to quit handling the power of attorney and she told him to "cool down." (Tr. 1278.) There was no evidence that Henderson was involved in any emotional or financial manipulation of Durkin. After Durkin was struck by Eberling in 1983 the will was forged by Eberling and the Scheidlers. There is no evidence that Henderson participated in Eberling's scheme with the Scheidlers although Eberling told Beverly Scheidler that Henderson knew of Eberling's plan. Knowledge, prior or subsequent, of another's crime does not constitute a crime. Probating a will he knew to be false and coaching the Scheidlers to lie was tampering with evidence and complicity to commit perjury but there was no evidence that Henderson forged or falsified the will itself. The appellee theorized that appellants planned to kill Durkin all along and solicited first Bogar and then, after killing Durkin, the Scheidlers. However, there must be evidence of Henderson's actual involvement. Henderson was charged with aggravated murder, not conspir- acy to commit aggravated murder. Complicity, R.C. 2923.03, states as follows: (A) No person, acting with the kind of culpa- bility required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense. .... -15- (F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense. It is just as likely that, once Henderson knew Bogar had signed, Henderson was waiting for the ninety-year old woman to die before they would make a will out of the page with the signatures of Durkin and Bogar. Appellee's brief argues as follows: The contrived letter typing meeting arranged by the appellant and Eberling to take place on the evening that the victim was bludgeoned estab- lishes beyond a reasonable doubt the appellant's part in the aggravated murder was at least one of inciting, encouraging, or conspiracy with Eberling to kill the victim. The meeting was timed by the appellant to start at the same time that Eberling called the Lakewood Hospital at 7:00 p.m. ... The appellant continued to type and re-type a one page letter until a call came in from Eberling, during which the appellant offered encouragement by stating to Eberling, "What is done is done." ... This evidence, although circumstantial, together with all of the other evidence in the record of appellant's involvement in manipulation of the victim to obtain her money and the eminent failure of their scheme is sufficient proof beyond a reasonable doubt that the appellant aided, abet- ted, and conspired in her killing. (Page 30-31.) Since Eberling told the Scheidlers that Henderson would call when Henderson was ready for them to come, it appears that appel- lants had discussed the arrangements for the meeting but there is no evidence that Henderson was keeping the Scheidlers occupied to aid or abet the killing. The Scheidlers were not in the habit of dropping in on Durkin's home. "What's done is done" could refer -16- to the fall and injury that Henderson may have thought were accidental. Encouragement cannot be offered after an action is completed. Appellee failed to produce evidence to show that Henderson solicited, procured, aided or abetted Eberling's murder of Durkin. In so holding, we note that the evidence against Henderson on the aggravated murder charge was circumstantial. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. See Jenks, supra, at paragraph one of the syllabus, overruling a case which Henderson relies upon on appeal, State v. Kulig (1974), 37 Ohio St. 2d 157. However, nothing in Jenks changes a reviewing court's duty to determine whether the conviction was supported by sufficient evidence. Jenks, supra, at 283. In the case at bar, the evidence was insufficient to permit a reasonable inference from which the jury could have determined that Henderson was guilty of aggravated murder. Accordingly, we vacate Henderson's conviction for aggravated murder. Henderson's assignment of error I(A) is sustained. B Beverly Scheidler testified that Henderson discussed with them the testimony that the Scheidlers would give at the probate hearing to resolve a challenge to the authenticity of the will. (Tr. 2949.) She stated that appellants coached them on what to -17- say and Eberling brought scripts (Exhibits 87(A), (B) and (C) and 88(A), (B) and (C)) to a meeting at which Henderson came and in which he participated. (Tr. 2952-2955.) Dale Scheidler testi- fied that he and his wife discussed the false probate testimony with appellants. (Tr. 3626.) Appellants showed them a picture of Patricia Bogar, the third witness to the will and a person that the Scheidlers had never met. (Tr. 3628.) Scheidler insisted that the false testimony was concocted by the appel- lants. (Tr. 3677.) Although Eberling was more active, both of the Scheidlers testified that Eberling and Henderson taught them the false testimony that they gave at the probate hearing. Thus, Hender- son solicited, procured or aided and abetted the commission of perjury. Assignment of Error No. I(B) is overruled. C Patricia Bogar testified as follows: long before Durkin died Eberling asked her to sign as a witness to the signature of Durkin that was on an otherwise blank paper and told her he was going to make a will. (Tr. 1966-67.) Eberling offered her ten percent (10%) of the half million he would get but she refused the money and signed. (Tr. 1969-70.) Later when she decided she did want some of the money and discussed with Henderson and Eberling her previous signing, Eberling said that her name had been removed. (Tr. 1975.) When she demanded her share appel- lants offered her a lesser amount (Tr. 2368) and when she threatened to go to the police, appellants told her that it was -18- their word against hers and Henderson offered to pay her $5,000 for several years. (Tr. 2439.) Beverly Scheidler testified as follows: Eberling invited the Scheidlers to Durkin's ninetieth birthday party and told her to act as if she knew Durkin and always had. (Tr. 2833.) On December 6, 1984, three days after Durkin died, Eberling told the Scheidlers to come to Durkin's house and told Beverly to bring her typewriter. (Tr. 2862.) Beverly arrived first and was asked to type up the contents of a yellow sheet of paper which he stated was Durkin's "will" but she refused. (Tr. 2867.) Eber- ling told her that Durkin had told him what she wanted in her will. Thinking that Durkin was still alive she asked why Henderson didn't type it but Eberling told her that Henderson didn't want to type it because if anything were to come of this there might be a lie detector test and questions concerning his previous knowledge of the contents. (Tr. 2868.) Eberling produced two papers, both signed by Durkin and Bogar but otherwise blank. (Tr. 2869 and 2872.) Eberling told her that he had obtained Durkin's signature by telling her it was for hand- writing analysis. (Tr. 2873.) She typed and signed the wills and Eberling told her that she was to present them to Durkin's lawyer and say that Durkin had her keep them since May of 1982 because Durkin's family had stolen a previous will. (Tr. 2883.) In March of 1988 appellants told her to stick to her story and they would take care of her. (Tr. 2996.) -19- Dale Scheidler testified that in January of 1984 he went to Durkin's house and talked to Eberling upstairs about making a will. He agreed to sign "to get out of debt" and signed the paper with Durkin's and Bogar's signatures. (Tr. 3603.) Later, Bogar called and threatened to go to the police if the Scheidlers didn't give her money but when he told Henderson to settle the problem or he would "turn state's evidence" Henderson just laughed and told him they'd get Bogar for extortion. (Tr. 3683.) On January 5, 1984, two days after Durkin died, Henderson closed Durkin's bank accounts and opened a new power of attorney account after executing an affidavit in which he swore that he had no knowledge that the power of attorney had been revoked by death. (Tr. 4554.) As noted in the discussion of the evidence in support of aggravated murder, Henderson's knowledge of Bogar's signing was gained after she signed. There is no evidence that Henderson solicited or procured Eberling in a plan to forge the will or aided or abetted in Eberling's efforts to do so. The fact that he may have known that Eberling's efforts were ongoing does not make him guilty of forgery or tampering with records (falsifying the will). When Henderson told Bogar that it was their word against Bogar's, he indicated that he planned to corroborate Eberling's denial. Nothing more was done until 1982 when Eberling told Beverly Scheidler that Henderson did not want to see the contents of the will. This established that after Bogar signed, Henderson found out about it, assisted in trying to -20- placate her and was later told of Eberling's efforts to construct a phony will. Opening a power of attorney account after Durkin's death establishes only that Eberling told Henderson that he was executor, not that Henderson agreed to fake the will. None of this evidence established that Henderson solicited, procured, aided or abetted in the falsification or forgery of the will. Accordingly, we vacate the convictions for forgery and tampering with records. Assignment of Error No. I(C) is sustained. Henderson's convictions for aggravated murder, forgery and tampering with records are vacated and his conviction for complicity to commit perjury is upheld. III Henderson II. THE TRIAL COURT ERRED IN NOT PROVIDING MR. HENDERSON A SEPARATE TRIAL. Eberling II. THE TRIAL COURT ERRED BY FAILING TO PROVIDE SEPARATE TRIALS FOR [EBERLING] AND HIS CO-DEFENDANT. Crim. R. 14 provides as follows: When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried separately, unless the court orders the defendants to be tried jointly, upon application by the prosecuting attorney or one or more of the defendants, and for good cause shown. (Emphasis added.) Prior to April 3, 1989 aggravated murder was a capital offense even in the absence of the specifications necessary for the death penalty. State v. Henry (1983), 4 Ohio St. 3d 44 (paragraph one and two of the syllabus, construing R.C. 2901.02(B)). Since appellants were indicted for an aggravated -21- murder that occurred prior to April 3, 1984 it was a capital offense at that time. However, appellants were tried after the amendment of the statute defining a capital offense (R.C. 2901.02). Appellants were tried jointly. Any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto. Beazell v. Ohio (1925), 269 U.S. 167, 169-170; State, ex rel. Corrigan, v. McAllister (1985), 18 Ohio St. 3d 239. The inhibition of the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed. Dobbert v. Florida (1977), 432 U.S. 282, 293-294. A procedural modification in the law is not ex post facto and for these modifications, the law at the time of the trial controls. State v. Clark (Aug. 12, 1986), Greene App. No. 84CA60, unreported. In McAllister, supra, the Ohio Supreme Court held that a defendant tried after April 3, 1984 for non-capital murder had no right to a special venire reserved for capital cases although the crime was a capital offense at the time it was committed. Similarly, in Beazell, supra, the United States Supreme Court rejected an ex post facto contention when an Ohio law, formerly providing for separate trials when two or more persons were -22- jointly indicted for a felony, was amended to require a joint trial unless the court for good cause shown, ordered separate trials. We are persuaded that the amendment to R.C. 2901.02, changing the definition of capital offense, insofar as it changed the right to separate trials, was similar to the procedural modification that occurred in Beazell, supra. Accordingly, appellants possessed no right to the "benefits" provided for capital cases at the time of their trial. Henderson and Eberling's second assignments of error are overruled. IV Henderson III. MR. HENDERSON'S CONVICTION FOR AGGRAVATED GRAND THEFT IS BASED ON A CONSTITUTIONALLY IMPER- MISSIBLE APPLICATION OF AN EX POST FACTO LAW. Eberling III. THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER THE APPLICATION OF THE OFFENSE OF AGGRAVATED THEFT IN AN EX POST FACTO SITUATION. Count two, aggravated grand theft, alleged that the appel- lants knowingly and by deception obtained or exerted control over Durkin's money and/or personal property with a purpose to deprive Durkin or her estate of $100,000 or more. The offense of aggravated grand theft was not created by statute until June 26, 1986. The count covered activity between December 1983 and July 1988. Appellants contend that their convictions on this count were violative of the constitutional prohibition against ex post -23- facto laws since they were partially charged with a time period when the offense did not even exist. McAllister, supra. Initially, we note that since appellants failed to raise such issue regarding a defect in their indictment below, they have waived the error for purposes of appeal. Crim. R. 12(B)(2) and (G). Although waiver requires that we remove from consideration matters not offered for resolution in the court below, we may invoke the plain error standard of review to sua sponte consider errors affecting an accused's substantial rights. State v. Sneed (1992), 63 Ohio St. 3d 3, 10; State v. Combs (1991), 62 Ohio St. 3d 278, 281. Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. Sneed, supra. Plain error does not exist unless, but for the error, the outcome at trial would have been different. State v. Watson (1991), 61 Ohio St. 3d 1, 6. In the case at bar, even if a review of the evidence is limited to after June 26, 1986, (i.e., when the crime of aggravated grand theft was statutorily created), the record reveals evidence that Henderson, as executor of Durkin's estate until his removal in July of 1988, paid Eberling in excess of $100,000 pursuant to the forged will. Eberling and Henderson participated in the scheme to probate a will naming Henderson executor and Eberling the beneficiary of seventy percent of the estate. From the foregoing evidence, it is reasonable to infer that appellants deceived the probate court and obtained control -24- following June 26, 1986 of over $100,000 of Durkin's estate's money. Accordingly, since the outcome at trial would not have necessarily differed, there is no plain error regarding the aggravated grand theft charges. Henderson and Eberling's third assignments of error are overruled. V Henderson IV. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO VIEW PHOTOGRAPHS OF MRS. DURKIN'S MOSS-COVERED EXHUMED BODY. Eberling Pro Se I. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO VIEW PHOTOGRAPHS OF MRS. DURKIN'S MOSS-COVERED EXHUMED BODY. Appellants objected to the admission of exhibits 3, 4, 5 and 7. Pursuant to Evid. R. 403 and 611(A), the admission of photographs is within the trial court's discretion. State v. Landrum (1990), 53 Ohio St. 3d 107, 121. The term "abuse of discretion" connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St. 3d 410, 413. In capital cases, it has been held that nonrepetitive photographs, even if gruesome, are admissible if relevant and of probative value. State v. Maurer (1984), 15 Ohio St. 3d 239, paragraph seven of the syllabus; Watson, supra, at 7. Although this case was not a capital case, see R.C. 2901.02 and our discussion regarding separate trials, supra, by analogy to Maurer and Watson, supra, we now determine if the trial court abused its discretion in admitting the photographs. -25- State exhibits 3, 4 and 5 are photographs of the victim's head after the scalp was peeled back to reveal a previously undiscovered blow to the head. Three angles were utilized. Though gruesome, the photographs are clearly relevant, of probative value on the charge of aggravated murder, are illustrative of the coroner's testimony, are not repetitive or cumulative, and their probative value is not outweighed by the danger of material prejudice. However, state exhibit 7 is a photograph of the victim in the casket. Her face is covered with mold. State exhibit 2 shows her face after the mold was cleaned off. There was no reason to show her face before the mold was cleaned off except to appeal to the sentiments of the jury. The photograph contributes nothing to the state's case. Its 1 admission was error but in light of the evidence against appellants the error is found to be harmless. Henderson's fourth and Eberling's first pro se assignments of error are overruled. VI Henderson V. THE TRIAL COURT'S SENTENCE DENIED MR. HENDERSON HIS PROTECTION AGAINST DOUBLE JEOPARDY AND HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, 1 The evidence regarding five of the convictions was dis- cussed in Assignments of Error No. I, II and IV. Henderson admitted to the theft in count nine. There was detailed testi- mony against Eberling on the three theft counts. The testimony established that appellants, knowing of the false will, pre- sented it for probate and disbursed (or received) monies. (Aggravated grand theft and tampering with evidence.) -26- SECTION 10 OF THE OHIO CONSTITUTION. A. THE TRIAL COURT VIOLATED MR. HENDERSON'S CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY BY CONVICTING HIM OF AND BY ORDERED SEPARATE CONSE- CUTIVE SENTENCES FOR AGGRAVATED GRAND THEFT, FORGERY, TAMPERING WITH EVIDENCE AND TAMPERING WITH RECORDS WHEN THE OFFENSES WERE ALLIED OFFENSES PURSUANT TO R.C. 2941.25. Eberling IV. THE OFFENSES OF AGGRAVATED THEFT, FORGERY, TAMPERING WITH EVIDENCE AND TAMPERING WITH RECORDS ARE ALLIED OFFENSES WITHIN THE MEANING OF R.C. 2941.25. We have previously vacated Henderson's convictions for tam- pering with records and forgery. With regard to Henderson we address a portion of this assignment of error under App. R. 12(A). Appellants failed to raise their argument concerning allied offenses of similar import during the proceedings below. Failure to object to a conviction on the basis that offenses are allied offenses of similar import constitutes a waiver of the issue on appeal. State v. Comen (1990), 50 Ohio St. 3d 206, 211. Accordingly, we proceed to discuss the merits of these assignments of error under a plain error analysis. Sneed, supra; Combs, supra; Crim. R. 52(B). R.C. 2941.25 states as follows: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or -27- information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct consti- tutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. The indictment states, in pertinent part, as follows: [Appellants] knowingly and by deception obtained or exerted control over money and personal property, with the purpose to deprive the owner, Ethel May Durkin, and/or the estate of Ethel May Durkin of said property or services. [R.C. 2913.02.] [Appellants,] with the purpose to defraud or knowing that they were facilitating a fraud, forged a writing, to-wit: a will so that it purported to be genuine when it was actually spurious. [R.C. 2913.31.] [Appellants,] knowing that an official proceeding or investigation was likely to be instituted, and with purpose to mislead a public official who was, or might be engaged in such proceeding or investigation, made, presented or used a certain record or document, to-wit: a will which [they] knew to be false. [R.C. 2921.12(A)(2).] [Appellants,] knowing that they had no privilege to do so, and with purpose to defraud, or knowing they were facilitating a fraud, falsified a writing, to-wit: a will. [R.C. 2913.42(A)(1).] Further, Under R.C. 2941.25, a two-tiered test must be undertaken to determine whether two or more crimes are allied offenses of similar import. In the first step, the elements of the two crimes are compared. If the elements of the offenses cor- respond to such a degree that the commission of -28- one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were com- mitted separately or that there was a separate animus for each crime, the defendant may be con- victed of both offenses. (Emphasis in original.) Newark v. Vazarani (1990), 48 Ohio St. 3d 81 (syllabus). An examination of the elements of the four crimes reveals that the commission of theft does not necessarily result in the commission of tampering with records, State v. Hunter (1983), 12 Ohio App. 3d 75, 78; State v. Burgess (Nov. 16, 1989), Cuyahoga App. No. 56165, unreported; forgery or tampering with evidence. Tampering with records requires a falsification of a writing. Forgery requires the forging of a writing. Tampering with evidence requires the knowledge that an official proceeding or investigation was likely to be instituted and a "purpose to mislead a public official..." as well as the making, presentation or use of a record or document. Theft can be committed without committing any of the other three. Contra State v. Bican (Sept. 8, 1983), Cuyahoga App. No. 45993, unreported (finding theft and forgery allied but not applying the elements test as required). However, the commission of tampering with evidence results in the commission of tampering with records. State v. McNeeley (1988), 48 Ohio App. 3d 73, 77. Accordingly, tampering with evidence and tampering with records are allied offenses of similar import under R.C. 2941.25(A). -29- The state argues that each crime was committed with a separate animus. However, appellants made, presented or used a false will and falsified a will for one reason: to obtain the money and property of the decedent. There was one animus and the crimes were not committed separately. The construction of the false will was part of the presentation of that false will in probate. Accordingly, we vacate the convictions and sentences for tampering with records and affirm the convictions for aggravated grand theft, forgery and tampering with evidence. Therefore, Henderson's assignment of error V(A) and Eberling's fourth assignment of error are sustained in part and overruled in part. VII Henderson V(B). THE TRIAL COURT ERRED BY ORDERING MR. HENDERSON JOINTLY RESPONSIBLE TO PAY RESTITUTION OF $1,542,453.69 WITHOUT HOLDING A HEARING TO DETERMINE THE PROPER AMOUNT, IF ANY, OF RESTI- TUTION. Eberling V. THE TRIAL COURT ERRED BY ORDERING THE APPELLANT TO PAY RESTITUTION OF $1,542,450.69 (SIC) WITHOUT HOLDING A HEARING TO DETERMINE THE PROPER AMOUNT IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES AND OHIO CONSTITUTIONS. -30- R.C. 2929.11(E) provides that "[t]he court *** may require a person who is convicted of or pleads guilty to a felony to make restitution for all or part of the property damage that is caused by his offense and for all or part of the value of the property that is the subject of any theft offense ***." Although a court has the right to require restitution, the amount of such an order is limited to the actual loss caused by the offense for which the defendant was convicted. State v. Irvin (1987), 39 Ohio App. 3d 12; State v. Williams (1986), 34 Ohio App. 3d 33. It constitutes an abuse of discretion for a court to order restitution without a due process determination that the amount of the payment ordered bears a reasonable relationship to the actual loss experienced. State v. Deal (Sept. 27, 1990), Cuyahoga App. No. 57458, unreported; State v. Trivedi (1982), 8 Ohio App. 3d 412. The failure to hold a hearing at which evidence could be presented of damage and cost and ability to pay constitutes plain error. State v. Wohlgemuth (Feb. 8, 1990), Cuyahoga App. No. 56508, unreported. At the sentencing, Henderson disputed the accuracy of the pre-sentence report. Appellee points out that there was evidence (in the form of testimony and exhibits) to show amounts taken. However, appellants note that there was also testimony that proper disbursements were made (such as payments of court costs, attorney fees and payments to beneficiaries) and appellants were ordered to return some property that may be incorrectly included in the restitution amount. It is not clear that those amounts -31- were deducted from the total value of the estate which was used as the basis for the restitution order. Henderson also notes that the probate court has found him liable for only $73,062.90. A separate hearing is necessary to determine the damage and cost incurred by the theft offenses for which an order of resti- tution is permitted under R.C. 2929.11(E). See Irvin, supra; Deal, supra; Wohlgemuth, supra. Henderson's assignment of error V(B) and Eberling's fifth assignment of error are sustained. VIII Henderson V(C). THE TRIAL COURT ERRED AND VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW BY JOURNALIZING AN ENTRY WHICH INCREASED APPELLANT'S SENTENCE ON COUNT ONE TO INCLUDE A FINE OF $25,000 WHEN IT HAD PRONOUNCED IN OPEN COURT A SENTENCE CONTAINING NO FINE. Eberling VI. THE TRIAL COURT ERRED IN FINING THE APPELLANT $25,000 IN THE SENTENCING JOURNAL ENTRY WHEN SUCH SENTENCE HAD NOT BEEN ORDERED IN OPEN COURT. The supplemental transcript reveals that the trial court sentenced appellants in court and then journalized an entry which added a fine of $25,000 that was not in the sentence pronounced orally. Crim. R. 43(A) provides that the "defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence ***." (Emphasis added.) A -32- defendant has the right to be present when the court imposes sentence and a trial court cannot abrogate defendant's right of allocution by imposing its sentence in defendant's absence. State v. Pavone (June 21, 1984), Cuyahoga App. Nos. 47700 and 47701, unreported. Crim. R. 43(A) requires the physical presence of a defendant during sentencing. State v. Bell (Dec. 13, 1990), Cuyahoga App. No. 57779, unreported. As to Henderson, since the $25,000 fine was imposed on his aggravated murder count, no resentencing on this count is required since we have vacated his aggravated murder conviction. Eberling, however, must be resentenced in open court, with respect to the $25,000 fine. Henderson's assignment of error V(A) and Eberling's sixth assignment of error are sustained. IX Henderson V(D). THE TRIAL COURT ERRED BY ORDERING MR. HENDERSON TO PAY FINES IN THE AMOUNT OF FIFTY TWO THOUSAND DOLLARS ($52,000) (sic). The trial court ordered Henderson to pay fines of $52,500. The trial court shall not impose a fine that exceeds an amount that the defendant is or will be able to pay by the method and within the time allowed without undue hardship to himself or dependents or which will prevent payment of restitution. R.C. 2929.14(C). After we have vacated the convictions for aggravated murder, forgery and tampering with records Henderson is left with $22,500 in fines. "Although appellant was found indigent for the purposes of this appeal, the record does not show that the trial -33- court had ever determined or had been asked to determine that the appellant was indigent. See State v. Jackson (1985), 21 Ohio App. 3d 157; State v. Slider (1980), 70 Ohio App. 2d 283...." Cleveland v. Atwood (Mar. 22, 1990), Cuyahoga App. No. 56692, unreported, at p. 13. Pursuant to Atwood, supra, Henderson's assignment of error V(D) is overruled. X Henderson V(E). THE TRIAL COURT ERRED WHEN IT ORDERED SOLITARY CONFINEMENT FOR MR. HENDERSON ON EACH NOVEMBER 15TH AND JANUARY 4TH. Eberling Pro Se II. THE TRIAL COURT'S SENTENCE DENIED MR. EBERLING HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND HIS PROTECTION FROM CRUEL AND UNUSUAL PUNISHMENT AS PROVIDED IN THE EIGHTH AMENDMENT OF THE CONSTI- TUTION OF THE UNITED STATES. The trial court sentenced appellants to serve their prison time in solitary confinement on every November 15 and January 4. A trial court may only pronounce the judgment provided by law. State v. Dillon (1883), 30 Ohio St. 586; State v. Bilder (1987), 39 Ohio App. 3d 135. The authority to define and fix punishment for a crime belongs indisputably to the legislature, and the discretionary power of judges to sentence is circumscribed by the -34- legislature. Cleveland v. Scott (1983), 8 Ohio App. 3d 358. Although the General Assembly previously authorized trial courts to sentence prisoners to solitary confinement, see, e.g., Ex Parte Clark (1893), 50 Ohio St. 649, cf.; also, People v. Holderfied (Ill. 1946), 65 N.E. 2d 443, such authorization is not present in the sentencing provisions pertinent in the instant case. Consequently, the trial court lacked authority to specify where in a particular institution appellants would serve their sentences. The portion of the judgment purporting to order solitary confinement is vacated and Henderson's assignment of error V(E) and Eberling's second pro se assignment of error are sustained. XI Henderson VI. MR. HENDERSON WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOUR- TEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Eberling MR. EBERLING WAS DENIED THE Pro Se III. EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. The Sixth Amendment to the United States Constitution provides that the accused shall enjoy the right to "have the Assistance of Counsel" in all criminal prosecutions. See, also, Section 10, Article I, Ohio Constitution. The Supreme Court of the United States has recognized that the Sixth Amendment right -35- to counsel exists, and is needed, in order to protect the fundamental right to a fair trial in that it assures the fairness, and thus, the legitimacy of our adversary process. Powell v. Alabama (1932), 287 U.S. 45; Johnson v. Zerbst (1938), 304 U.S. 458; Gideon v. Wainwright (1963), 372 U.S. 335; Kimmelman v. Morrison (1986), 477 U.S. 106. The constitutional right to counsel is the right to effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759, 771. In Strickland v. Washington (1984), 466 U.S. 668, 687, the Supreme Court of the United States set forth the following two- pronged analysis for determining whether counsel's assistance was so defective as to require reversal. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable. In other words, counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable -36- representation and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St. 3d 136, at paragraph two of the syllabus. In analyzing the first portion of the test, i.e., whether appellant's trial counsel's performance was deficient, a fair assessment of attorney performance requires that every effort be made to eliminate the disturbing effects of hindsight to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland, supra, at 689. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. State v. Frazier (1991), 61 Ohio St. 3d 247, 253. A properly licensed attorney in Ohio is presumed competent and the burden of proving ineffectiveness is on the defendant. State v. Smith (1985), 17 Ohio St. 3d 98, 100. Appellants contend that the failure of trial counsel to object to the allied offenses of similar import prejudiced them by waiving that error. We address a portion of this argument under App. R. 12(A). If review were to be denied because waiver was concluded from the failure to object, the appellants would be severely prejudiced. Not only would each have two more convic- tions on their record and additional consecutive terms, but also additional fines and orders to pay restitution. There is no -37- rational reason to refrain from objecting. As we concluded in our prior discussion, the offenses were not allied except for tampering with records and tampering with evidence. Counsel violated an essential duty and prejudiced appellants; effective assistance was denied. Bradley, supra. Appellants further contend that their trial counsel rendered ineffective assistance of counsel because: (1) they should have called Nurse Blanchemori Collister to testify; (2) Eberling's trial counsel failed to call any witnesses although Eberling told him to do so; (3) Eberling's trial counsel failed to demand documents; and (4) Henderson's trial counsel presented a disjointed and illogical defense and introduced testimony from defense witnesses that even the trial court concluded had hurt Henderson's defense. However, a proffer of Nurse Collister's testimony revealed that her testimony was already contained in medical records introduced into evidence, i.e., that the victim nodded when Collister asked if she had slipped. Moreover, the record fails to reveal that Eberling requested that his counsel call witnesses, and does not explain how any other witness, besides Nurse Collister, would have aided his defense. Similarly, Eberling does not assert what documents would have reasonably aided his defense. Finally, although the trial court concluded that one of Henderson's witnesses hurt his case, we are not persuaded that calling such witness represented deficient counsel performance. As to these assertions of ineffective assistance of counsel, we are persuaded that they lack merit. -38- Henderson's sixth assignment of error and Eberling's pro se third assignment of error are thus sustained in part and overruled in part. XII Accordingly, for all of the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings. Eberling's convictions are affirmed except for his conviction for tampering with records, which is vacated. Additionally, his order of solitary confinement is vacated and his case is remanded for a hearing on restitution and for resentencing. Henderson's convictions for aggravated murder, forgery and tampering with records are vacated, and his other convictions are affirmed. Additionally, his order of solitary confinement is vacated and his case is remanded for a hearing on restitution and for resentencing. -39- This cause is remanded for further proceedings consistent with this opinion. It is ordered that appellants recover of appellee 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 Common Pleas Court to carry this judgment into execution. The defendants' convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure. SARA J. HARPER, J., and ANN McMANAMON, P.J., CONCUR __________________________________ WILLIAM W. HARSHA, JUDGE Sitting by Assignment of the Supreme Court of Ohio: William W. Harsha, Fourth District Court of Appeals. 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .