COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68961 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD JENKINS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 24, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-312326 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: DOMINIC DelBALSO (#0015094) MICHAEL D. HORN (#0019476) Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN (#0002847) 4403 St. Clair Avenue Cleveland, Ohio 44114 SPELLACY, J.: Defendant-appellant Richard Jenkins ( appellant ) appeals from his conviction for two counts of aggravated murder, one count of aggravated robbery and one count of aggravated burglary. -2- Appellant assigns the following errors for review: I. THE OFFENSES OF AGGRAVATED ROBBERY AND AGGRAVATED ROBBERY (SIC) ARE ALLIED OFFENSES OF SIMILAR IMPORT WITHIN THE CONTEMPLATION OF R.C. 2941.25, AND THE SEPARATE CONVICTIONS VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS AGAINST DOUBLE JEOPARDY GUARANTEED BY ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. II. THE COURT'S USE OF A CHALLENGE FOR CAUSE TO EXCLUDE A REHABILITATED PROSPECTIVE JUROR WITH SOME RESERVATIONS ABOUT THE DEATH PENALTY VIOLATED APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL JURY IN A CAPITAL CASE GUARANTEED BY THE EIGHTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 5, 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION. III. THE INCLUSION OF PREJUDICIAL OTHER ACTS TESTIMONY IN VIOLATION OF EVIDENCE RULE 404(b) DENIED APPELLANT A FAIR TRIAL AS GUARANTEED HIM BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. IV. THE INCLUSION OF PREJUDICIAL IRRELEVANT TESTIMONY BY THE VICTIM'S MOTHER DENIED APPELLANT A FAIR TRIAL AS GUARANTEED HIM BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. V. THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW THE DEFENSE TO RECALL THE CO-DEFENDANT AS A WITNESS. VI. THE COURT PROVIDED THE JURY WITH NUMEROUS INACCURATE TRIAL PHASE INSTRUCTIONS DEPRIVED THE APPELLANT HIS PROTECTIONS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Finding the appeal to lack merit, the judgment of the trial court -3- is affirmed. I. Between 8:15 and 8:30 a.m. on June 17, 1994, Brecksville Police Officer Russell Loede was driving to work on Interstate-77 when he observed a blue Dodge Colt with two male occupants being driven in the passing lane at a speed of approximately thirty to thirty-five miles per hour. Traffic was backing up behind the automobile. It appeared to Officer Loede that the driver did not know how to operate the car. Officer Loede positioned his unmarked police vehicle behind the Colt and activated his signal. When the car did not stop, Officer Loede used his car horn several times. The Colt finally pulled to a stop. Inside the car, driver Jason Bayles informed his sixteen-year old passenger Ricky Murray that he had shot someone that morning and that Murray should run. Officer Loede approached the driver's side of the car and asked Bayles for some identification. When Bayles could not produce any identification or proof of ownership of the car, Bayles was asked to step out of the vehicle. Officer Loede patted Bayles down at the back of the Colt. Bayles told the officer he had the necessary papers in the glove compartment. Bayles walked to the passenger's side of the car and opened the door. Both Bayles and Murray ran up a hill away from Officer Loede who radioed to dispatch the description of the two men and the direction in which they were running. Bayles and Murray entered a wooded area where Bayles removed -4- a distinctive purple shirt he was wearing and placed it in a bag along with some other items. The two men came out of the woods near a housing development. They approached one house and were given a portable phone by a resident after explaining they had encountered car problems. Bayles called a friend in Canton and asked that a taxicab be sent to the Brecksville home. Bayles and Murray were sitting in chairs on the back deck of the house when they were apprehended by police. The police discovered the blue Dodge Colt was owned by Jennifer Boucher who resided in Oak Harbor near Toledo. Police contacted Boucher's mother at that residence. She told the police it was highly unlikely Jennifer would have loaned her car to anyone. Police learned Jennifer Boucher was employed at the Aristocrat South Nursing Home in Parma Heights and was a resident of a motel located next to the nursing home. The police contacted the nursing home and discovered that Jennifer Boucher was scheduled to work that morning but had not reported to work. This was unusual as Jennifer Boucher was always prompt. The police asked that someone from the nursing home check Jennifer Boucher's room at the motel. The maintenance supervisor for the Aristocrat South Nursing Home knocked on Jennifer Boucher's room at the Northwind Inn. After receiving no response, he entered the small room and spotted Jennifer Boucher's legs on the bathroom floor. The maintenance supervisor left the room and police were contacted. The Parma Heights police found the lifeless body of Jennifer -5- Boucher in her bathroom. She was kneeling on the floor with the upper portion of her body lying draped over the bathtub. Jennifer Boucher's head and arm were submerged in the half-filled bathtub. The shower curtain and rod had been pulled down over the body. An autopsy revealed that the twenty-four year old had been strangled with such force that a pliable bone in her neck was broken. A ligature mark clearly was visible on her neck. After interviewing Jason Bayles, the Parma Heights police proceeded to the YMCA on Pearl Road. Both Bayles and appellant were residents at the YMCA. There they discovered appellant asleep in the television room. Appellant was placed under arrest. An ATM card bearing the victim's name was discovered in appellant's pocket. Appellant consented to a search of his room. A knapsack with jewelry inside was on appellant's bed. As appellant was being escorted to a police car, he mentioned that some of the victim's property could be found in the sewer in front of the YMCA. There, police discovered receipts in Jennifer Boucher's name, her MasterCard, and a small credit card carrier. At appellant's direction, additional evidence was found in a dumpster on Denison Avenue. Police recovered bedding, apparel, and nurses uniforms which belonged to Jennifer Boucher. Appellant and Jennifer Boucher became acquainted when both worked at the Aristocrat South Nursing Home and lived at the Northwind Inn. The two had gone out a few times but the relationship appeared to be casual and never went beyond friendship. The relationship apparently ended when Jennifer became -6- engaged to another man and appellant left his employment at the nursing home. Appellant was charged with two counts of aggravated murder, aggravated robbery and aggravated burglary in connection with the death of Jennifer Boucher. At trial, two somewhat different versions of the events were related by appellant and Jason Bayles. Bayles testified that he had pled guilty to aggravated murder, aggravated robbery, and aggravated burglary for the crimes committed against Jennifer Boucher. Appellant and Bayles met in May of 1994. Both were living at the YMCA. On June 16, 1994, appellant asked Bayles to participate in a robbery. Appellant wanted to get back at Jennifer Boucher because she had hurt him. Also, appellant needed $2,100 to reimburse the YMCA for the cost of replacing locks after appellant lost a master key belonging to the YMCA. That night, a young man gave appellant and Bayles a ride to the Northwind Inn. Appellant hid a set of keys in a tree near the Northwind Inn. The two went into the building and up the stairs to Jennifer Boucher's room. Appellant knocked on the door and was admitted by Jennifer Boucher. After he had been in the apartment for about five minutes, appellant coughed. Upon hearing this pre- arranged signal, Bayles entered the room. Jennifer Boucher was laying on her bed. She said that she did not like what was happening and asked them to leave. Bayles said he didn't think so and asked Jennifer Boucher where the $10,000 was. Jennifer replied that she did not have $10,000 but only $3,600. At that point, -7- Bayles wanted to leave but appellant refused, saying Jennifer had hurt him. Appellant and Jennifer Boucher began talking while Bayles began looking through her purse. Bayles removed credit cards and gave the cards and her car keys to appellant. Bayles found some jewelry on the dresser and placed it in a small basket. Bayles sat down near Jennifer Boucher and began a conversation with her. Bayles had Jennifer cover her face with a pillow so she could not see his face. Appellant unhooked the telephone. Appellant asked Bayles to come into the bathroom where he asked Bayles to strangle Jennifer. Bayles refused and returned to the room. Eventually, appellant began strangling Jennifer Boucher while Bayles held her feet to prevent Jennifer from kicking. The two switched positions but Bayles claimed he only pretended to strangle Jennifer by placing his hands on her neck. Bayles let Jennifer lose consciousness. Appellant began running the water in the bathroom in order to cover any traces the men may have left. Appellant returned to the room to look for more items to steal. He unhooked the television set and VCR. Appellant and Bayles put Jennifer Boucher on the floor. Appellant removed a shoe lace from one of Jennifer's shoes and used it to further strangle the girl. Both appellant and Bayles pulled Jennifer's nightgown off of her body and placed her in a position leaning over the bathtub. This was supposed to make it appear Jennifer had committed suicide. Appellant stripped the bed and placed the sheets and bed covers in a trash bag. Appellant -8- and Bayles carried the trash bags and Jennifer Boucher's property to her car and drove away from the crime scene. Appellant testified that he spoke to Bayles concerning the missing keys from the YMCA because appellant had information causing him to believe Bayles had stolen the keys. Appellant needed to either find the keys or come up with $2,100 to pay the YMCA for the cost of replacing the locks or appellant would lose his job at the YMCA. Bayles offered to help appellant get $2,100 by robbing someone. They considered various options when appellant thought of Jennifer Boucher. Appellant did not think Jennifer would be home on the night of June 16, 1994, as she usually did hospice volunteer work on Thursday nights. Appellant and Bayles planned to steal things from Jennifer's apartment and use the money to pay back the YMCA. The two men took a bus to Pearl and York Road where they stopped to purchase two pairs of brown work gloves at a service station. Appellant and Bayles began walking to the Northwind Inn. They hid their keys in a planter outside a restaurant near the Inn. Appellant saw Jennifer Boucher's car in the parking lot and realized she was home. The two entered the building. Appellant told Bayles to come in when appellant coughed. Appellant knocked on the door and Jennifer answered. Appellant entered the darkened room while Jennifer sat on the bed. Appellant coughed and Bayles came in and closed the door. Jennifer said she didn't like this and asked them to leave. Bayles said he didn't think so and told Jennifer to lay down. Bayles covered her -9- head with a pillow. Bayles turned on a desk light and began searching the room. Appellant went through her jewelry while Bayles took credit cards from Jennifer's purse. Jennifer Boucher started to cry. Appellant told her not to be afraid. Jennifer asked appellant why he was doing this and said he would not be doing it if he really loved her. Jennifer removed the pillow from her head. Bayles said she had seen him. Bayles began striking Jennifer, holding her down by putting his knee on her back. Jennifer began crying louder. Appellant saw Bayles grab her. Jennifer became very quiet and it sounded as if she were choking. Appellant saw a vein pop on Bayles' arm. When Bayles stood up about a minute later, Jennifer was not moving. Appellant made a motion to Bayles indicating they should leave. Instead, Bayles stood in the room, giggling. Bayles began talking about Christianity and asking Jennifer if she believed in God. There was no response. Bayles picked up one of Jennifer's shoes and removed the shoe lace. Bayles walked to the bed and asked Jennifer again if she believed in God. Bayles said its time to meet your maker. He then wrapped the shoe lace around her neck and began pulling on the string. Appellant could see the sweat dripping off Bayles' head. Bayles showed appellant how to hold the shoe lace which was embedded in the victim's neck. Appellant held the string but then loosened it. Appellant pulled at the string and saw a deep line on Jennifer's neck. She was not moving. After about ten seconds, appellant heard a small gasp. Bayles -10- heard the noise and grabbed the shoe lace again, pulling on it. Bayles and appellant place Jennifer Boucher's body on the floor. Bayles removed Jennifer's nightgown. Appellant left to take some of Jennifer's possessions to her car. When he returned, Jennifer's body was leaning over the bathtub. Bayles and appellant took whatever else they wanted from the apartment as well as the bed clothes and left, driving away in the victim's car. Appellant and Bayles then engaged in an effort to cash in on the robbery of Jennifer Boucher. Their odyssey took them from bank to bank as they attempted to access Jennifer's bank accounts. Eventually, there were twenty-one attempted transactions in which $960 was requested. The two received the daily withdrawal limit of $200. Jennifer Boucher's jewelry was split up between Bayles and appellant. They eventually returned to the YMCA, were they parted ways. Bayles began his ill-fated trip to Canton. Appellant attempted to sell Jennifer's pearls at a jewelry store but discovered it was worthless costume jewelry. He returned to the YMCA where he later was arrested. The jury convicted appellant of two counts of aggravated murder, one count of aggravated burglary, and one count of aggravated robbery. The jury recommended appellant serve a life sentence with parole eligibility after thirty years. The trial court sentenced appellant to a life term with eligibility for parole after thirty years on the two aggravated murder counts. The sentences were merged. Appellant received a sentence ten to -11- twenty-five years on each of the aggravated robbery and aggravated burglary counts. II. In his first assignment of error, appellant contends aggravated robbery and aggravated burglary are allied offenses of similar import under R.C. 2941.25 and that he should not have been convicted of both offenses. Appellant argues that because the two offenses were committed simultaneously, he could not be convicted of the two separate offenses under R.C. 2945.25. Appellant asserts that the elements of aggravated robbery and aggravated burglary correspond to such a degree that the commission of one will result in the commission of the other crime. Appellant also maintains that only one animus was present as the crimes were the result of a series of offenses which developed from a single criminal course of conduct. Appellant failed to object to the separate convictions for aggravated robbery and aggravated burglary. As such, he has waived any assertion of error. State v. Comen (1990), 50 Ohio St.3d 206. See also State v. Williams (1995), 105 Ohio St.3d 471, 481. Additionally, the offenses were not allied offenses of similar import. The aggravated burglary was complete when appellant entered Jennifer Boucher's apartment by deception with the purpose to commit a theft offense at a time appellant knew Jennifer Boucher was present and when the apartment was Jennifer Boucher's place of permanent or temporary habitation. See R.C. 2911.11. The -12- aggravated robbery was complete when appellant actually committed the theft offense while inflicting serious physical harm on Jennifer Boucher. See R.C. 2911.01. Accord State v. Murphy (1992), 65 Ohio St.3d 554. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant argues the trial court improperly excluded a prospective juror for cause. Appellant asserts that the prospective juror's reservations regarding the death penalty were not sufficient to cause the removal of the juror as that juror had been rehabilitated. As the state exercised all of its peremptory challenges, appellant contends that the removal of the juror in question resulted in providing the state with an additional, unauthorized removal of a juror. Appellant maintains this removal was an attempt to death qualify the jury. Although appellant asserts that the state benefitted from the exclusion of this juror for cause, he has failed to offer any evidence demonstrating any resultant prejudice. See State v. Wade (1978), 53 Ohio St.2d 182. As the jury did not recommend the death penalty, it is difficult to discern how appellant could have been prejudiced by the exclusion of a juror who expressed conflicting viewpoints on the imposition of the death penalty. Appellant's second assignment of error is overruled. IV. Appellant's third assignment of error challenges the admission of rebuttal evidence that appellant stole a check from an elderly -13- resident at the YMCA. Appellant asserts this evidence was in violation of Evid.R. 404(B) which prohibits the introduction of evidence of other crimes, wrongs or acts by the defendant except for some limited exceptions. The state offered the rebuttal testimony of John Irwin, a ninety-year old resident of the YMCA. Irwin testified that one of his checks was made out to and endorsed by appellant for $900.00 with the notation it was for nursing tuition. Irwin denied ever giving appellant one of his checks or writing a check to appellant for that amount. The issue of any incidents of missing property from the rooms of residents at the YMCA was raised first by defense counsel during cross-examination of the director of the YMCA. The director testified that one resident, John Irwin, was missing several checks. The missing checks led back to appellant as the checks were made payable to a nursing school and appellant's name appeared on the checks. Appellant opened the door to the rebuttal testimony of John Irwin with his questioning of the YMCA director. Appellant introduced the topic of the missing check. Under the invited-error doctrine, a party who induces or invites error in the trial court may not take advantage of that error upon appeal. State ex rel. Bitter v. Missig (1995), 72 Ohio St.3d 249. After all, a defendant may not complain of the admission of evidence which was introduced by the defendant at trial. State v. Love (June 4, 1997), Hamilton App. No. C-960499, unreported. -14- Appellant's third assignment of error lacks merit. V. In his fourth assignment of error, appellant objects to the testimony of the victim's mother. Appellant asserts this testimony was irrelevant and was impermissible victim impact testimony. During trial, appellant made a motion in limine regarding the testimony of this witness. Appellant failed to renew his objection during trial. The denial of a motion in limine is not enough to preserve an assertion of error with regard to the issues raised in the motion. In order to preserve an error for review, an objection must be raised during trial. State v. Brown (1988), 38 Ohio St.3d 305, paragraph three of the syllabus. Appellant's fourth assignment of error is overruled. VI. In his fifth assignment of error, appellant contends the trial court abused its discretion by refusing to permit appellant to recall Bayles as a witness. Appellant asserts the ruling violated his rights to cross-examination and to compulsory process. Evid.R. 611(A) provides that: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. Under this rule, the trial court is given the discretion to control the mode and order of witness interrogation and evidence presentation in order to achieve the goals set forth in the rule, -15- including an effective interrogation and presentation to ascertain the truth. State v. Davis (1992), 79 Ohio App.3d 450. Appellant correctly points out that cross-examination is to be permitted on all relevant matters and matters affecting credibility. See Evid.R. 611(B). However, the trial judge retains wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall (1986), 475 U.S. 673. The testimony appellant wished to elicit from Bayles concerned a letter Bayles wrote to appellant during trial. In the letter, Bayles stated he did not want to receive a deal to testify but was told he would be executed or sentenced to fifty to seventy-five years in prison if he did not. Bayles asked appellant to read part of the letter to the court in which Bayles wrote that appellant did not deserve a death sentence. Bayles defined a murderer as someone who does not care about or regret what had happened. To Bayles, appellant was not a murderer because after the murder of Jennifer Boucher, appellant started to cry and said he did not want her to die. The trial court conducted an extensive voir dire regarding the letter. Bayles stated that his testimony about the murder would be the same if questioned about the letter. Bayles said he wrote the letter because he did not want appellant to be sentenced to death. Bayles maintained that appellant had choked the victim and caused -16- her death. The trial court determined that the letter was unreliable, not probative, and not sufficient to recall Bayles. The letter did not include any information which conflicted with the testimony Bayles already had given. Appellant asserts that Bayles' statement in the letter that appellant was not a murderer was exculpatory evidence. But the letter itself, as well as Bayles' explanation, both negate that argument. According to both, Bayles only thought appellant was not a murderer due to Bayles' definition of a murderer as someone who later felt no regret about the murder. Because appellant had expressed regret, Bayles did not consider appellant to be a murderer. However, Bayles did not retract any of his testimony about appellant's actions that night which led to the death of Jennifer Boucher. The evidence in the letter hardly was exculpatory. Bayles' testimony at trial was lengthy, lasting three days. Appellant subjected Bayles to a full cross-examination, which included many attacks to Bayles' credibility. The trial court did not deny appellant his right of cross-examination. The evidence would have been repetitive or only marginally relative. Appellant also argues that the decision of the trial court not to recall Bayles to the witness stand denied appellant his right to compulsory process. In State v. Spirko (1991), 59 Ohio St.3d 1, the court held that prohibiting the recall of a witness is not a denial of a defendant's right to compulsory process. The recall of a witness is within the sound discretion of the trial court. Id. -17- at 28. Appellant's fifth assignment of error lacks merit. VII. In his sixth assignment of error, appellant argues that the trial court provided the jury with erroneous instructions. Appellant specifically objects to the trial court's charge on causation and in regard to the capital murder specification under R.C. 2929.04(A)(7). In must be noted that appellant failed to object to the jury instruction. See Crim.R. 30(A). Therefore, any claim of error is waived unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12. The jury instructions will be reviewed under Crim.R. 52(B) to determine if plain error is present. The plain error rule is applied only with utmost caution and invoked under exceptional circumstances in order to prevent a manifest miscarriage of justice. State v. Cooperrider (1983), 4 Ohio St.3d 226. The trial court instructed the jury on causation as follows: Cause is an element of the offense charged. The state charges that the act of the defendant caused the death of Jennifer Boucher. Cause is an act or failure to act, which in a natural and continuous sequence directly produces the death of a person and without which it would not have occurred. The defendant's responsibility is not limited to the immediate or more obvious result of the defendant's act or failure to act. The defendant is also responsible for the natural and foreseeable consequences or results that follow in the ordinary course of -18- events from an act or a failure to act. (Tr. 1566). Appellant asserts that this instruction could have allowed the jury to convict him for aggravated murder on a finding of less than specific intent and is actually an instruction for a mens rea of reckless. This same instruction was addressed in State v. Burchfield (1993), 66 Ohio St.3d 261. A jury instruction must be viewed in the context of the entire charge and not in isolation. State v. Thompson (1987), 33 Ohio St.3d 1, 13. The Burchfield court considered the entire charge and found extensive instructions regarding purpose were relayed prior to the causation instruction. The court noted that the usefulness of the foreseeability instruction was questionable and only should be used cautiously. However, after considering the entire charge, the court determined it was clear the jury understood it had to determine the defendant intended to kill. See also State v. Phillips (1995), 74 Ohio St.3d 72. A review of the entire charge reveals extensive instructions on purpose and specific intent. The instructions adequately conveyed to the jury that it had to find appellant had the specific intent to kill. Appellant has not shown that the trial's outcome would have been different but for the instruction. Appellant next argues that the trial court's instruction on the capital specification was faulty because it would permit the jury to find appellant guilty of the specification without reaching a unanimous verdict. Appellant asserts some jurors could have -19- found him guilty of being the principal offender while others may have believed he acted with prior calculation and design. Under R.C. 2929.04(A)(7), a defendant may be found to be the principal offender or actual killer in order to impose the death penalty. If not the actual killer, the defendant must be found to have committed the murder with prior calculation and design. The two are alternative provisions and are not to be charged or proven in the same case. State v. Penix (1987), 32 Ohio St.3d 369, 371. R.C. 2929.04(A)(7) sets forth one specification of what the state must prove in order for the imposition of the death penalty. State v. Sneed (1992), 63 Ohio St.3d 3. The aggravating circumstances found in R.C. 2929.04(A) narrow the class of homicides for which the death penalty becomes available as a sentencing option. State v. Jenkins (1984), 15 Ohio St.3d 164, 178. Appellant never requested that the jury be instructed it must reach a unanimous verdict on one alternative or objected to the instruction. Appellant's conviction would be reversed only if it can be determined the outcome of his trial clearly would have been different but for the alleged error. State v. Woodard (1993), 68 Ohio St.3d 70, 75. A review of the entire charge does not reveal plain error with regard to the instruction at issue. The trial court defined principal offender as being the one who personally performs every act constituting the aggravated murder and that appellant's conduct directly produced the death of Jennifer Boucher. The physical evidence was consistent with the version of -20- events related by Bayles. He testified Jennifer Boucher's legs were restrained while she was being strangled. A bruise found on Jennifer Boucher's ankle was consistent with pressure having been applied to that area. There was also a bruise on her thigh. In his testimony, appellant admitted he had his hands on the string around Jennifer Boucher's neck. The evidence was such that appellant was the principal offender and there was little likelihood of a split verdict. The instruction could have been clearer on this issue but it does not rise to the level of plain error. Appellant's sixth assignment of error is overruled. Judgment affirmed. -21- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court 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. JAMES M. PORTER, P.J. and JOHN T. PATTON, J. CONCUR. __________________________ LEO M. SPELLACY Judge N.B. This is an announcement of the court's decision. See App.R. -22- 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .