felony-murder rule in Ohio

1992See State v. Jester (1987), 32 Ohio St.3d 147, 151-152 , 512 N.E.2d 962, 968 ; Conrad v. State (1906), 75 Ohio St. 52 , 78 N.E. 957 .” In this case, the trial court reasonably could have found that the theft, or the intent to steal, occurred at the outset or during the one to three hours that Scott lived after being wounded.

1992See State v. Jester (1987), 32 Ohio St.3d 147, 151-152 , 512 N.E.2d 962, 968 ; Conrad v. State (1906), 75 Ohio St. 52 , 78 N.E. 957 .” In this case, the trial court reasonably could have found that the theft, or the intent to steal, occurred at the outset or during the one to three hours that Scott lived after being wounded.

2024It concluded that appellant could not “escape the effect of the felony-murder rule by claiming that the aggravated robbery was simply an afterthought,” observed that a “victim of a robbery, killed just prior to the robber’s carrying off her property, is nonetheless the victim of an aggravated robbery,” and noted that “[t]he victim need not be alive at the time of asportation.” Id. at 451 , citing State v. Smith, 61 Ohio St.3d 284, 290 , 574 N.E.2d 510 (1991).

2024It concluded that appellant could not “escape the effect of the felony-murder rule by claiming that the aggravated robbery was simply an afterthought,” observed that a “victim of a robbery, killed just prior to the robber’s carrying off her property, is nonetheless the victim of an aggravated robbery,” and noted that “[t]he victim need not be alive at the time of asportation.” Id. at 451 , citing State v. Smith, 61 Ohio St.3d 284, 290 , 574 N.E.2d 510 (1991).

1996See State v. Smith (1991), 61 Ohio St.3d 284, 290 , 574 N.E.2d 510, 516 . {¶ 38} This court has had occasion to explain the meaning of the word “while” with respect to R.C. 2903.01(B), stating: “ ‘The term “while” does not indicate *** that the killing must occur at the same instant as the attempted rape, or that the killing must have been caused by the attempt, but, rather, indicates that the killing must be directly associated with the attempted rape as part of one continuous occurrence[.] ***’ The evidence here showed that the murders were associated with the kidnappings, robbery, and rapes

1996See State v. Smith (1991), 61 Ohio St.3d 284, 290 , 574 N.E.2d 510, 516 . {¶ 38} This court has had occasion to explain the meaning of the word “while” with respect to R.C. 2903.01(B), stating: “ ‘The term “while” does not indicate *** that the killing must occur at the same instant as the attempted rape, or that the killing must have been caused by the attempt, but, rather, indicates that the killing must be directly associated with the attempted rape as part of one continuous occurrence[.] ***’ The evidence here showed that the murders were associated with the kidnappings, robbery, and rapes

2007Accord State v. Rojas , 64 Ohio St.3d 131 , 139 , 1992-Ohio-110 , 592 N.E.2d 1376 . {¶ 56} In this matter, the state's evidence demonstrated that defendant chased Reyes down and shot and killed him then fled in Reyes' car.

2007Accord State v. Rojas , 64 Ohio St.3d 131 , 139 , 1992-Ohio-110 , 592 N.E.2d 1376 . {¶ 56} In this matter, the state's evidence demonstrated that defendant chased Reyes down and shot and killed him then fled in Reyes' car.

2002See State v. Murphy (2001), 91 Ohio St.3d 516, 561 , 747 N.E.2d 765, 812 (Pfeifer, J., dissenting); State v. Carter (2000), 89 Ohio St.3d 593, 611 , 734 N.E.2d 345, 360 (Pfeifer, J., concurring).

2002See State v. Murphy (2001), 91 Ohio St.3d 516, 561 , 747 N.E.2d 765, 812 (Pfeifer, J., dissenting); State v. Carter (2000), 89 Ohio St.3d 593, 611 , 734 N.E.2d 345, 360 (Pfeifer, J., concurring).

2002See State v. Murphy (2001), 91 Ohio St.3d 516, 561 , 747 N.E.2d 765, 812 (Pfeifer, J., dissenting); State v. Carter (2000), 89 Ohio St.3d 593, 611 , 734 N.E.2d 345, 360 (Pfeifer, J., concurring).

2002See State v. Murphy (2001), 91 Ohio St.3d 516, 561 , 747 N.E.2d 765, 812 (Pfeifer, J., dissenting); State v. Carter (2000), 89 Ohio St.3d 593, 611 , 734 N.E.2d 345, 360 (Pfeifer, J., concurring).

2000This court has previously held that the robbery need not take place prior to or simultaneously with the murder and that a defendant “cannot escape the effect of the felony-murder rule by claiming that the aggravated robbery was simply an afterthought.” State v. Biros (1997), 78 Ohio St.3d 426, 451 , 678 N.E.2d 891, 912 ; State v. Williams (1996), 74 Ohio St.3d 569, 577-578 , 660 N.E.2d 724, 732-733 .

2000This court has previously held that the robbery need not take place prior to or simultaneously with the murder and that a defendant “cannot escape the effect of the felony-murder rule by claiming that the aggravated robbery was simply an afterthought.” State v. Biros (1997), 78 Ohio St.3d 426, 451 , 678 N.E.2d 891, 912 ; State v. Williams (1996), 74 Ohio St.3d 569, 577-578 , 660 N.E.2d 724, 732-733 .

2024“The very purpose of the felony murder doctrine is to utilize the underlying felony as a substitute for the defendant’s murderous intent and thereby raise an unintentional killing to the level of murder.” State v. Mays, 2012-Ohio- 838, ¶ 6 (2d Dist.), quoting People v. Cahill, 809 N.E.2d 561 (2003).

2012No. 24168, 2012-Ohio-838, ¶ 6 (quoting People v. Cahill, 809 N.E.2d 561, 590 (N.Y. 2003)). “[D]eath is the ‘proximate result’ of [a] [d]efendant’s conduct in committing the underlying felony offense . . . [if it is] a direct, natural, reasonably foreseeable consequence, as opposed to an extraordinary or surprising consequence, when viewed in the light of ordinary experience.” State v. Rodrigues, 9th Dist.

2024Thanks to the breadth of Ohio’s felony-murder death-penalty specification, “[a]ny murder that occurs in conjunction with a felony such as robbery [or burglary or kidnapping] is eligible.” State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 221 (Donnelly, J., concurring).

2024Thanks to the breadth of Ohio’s felony-murder death-penalty specification, “[a]ny murder that occurs in conjunction with a felony such as robbery [or burglary or kidnapping] is eligible.” State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 221 (Donnelly, J., concurring).

2024And although there is a stronger argument that Knuff’s actions technically satisfied the legal definition of “kidnapping,” see R.C. 2905.01, his actions were likewise an inappropriate basis on which to seek the death penalty. {¶ 364} I agree with former Justice Paul Pfeifer’s view that “the felony- murder rule is often inappropriate for determining which murderers are death- worthy.” State v. Twyford, 94 Ohio St.3d 340, 372, 763 N.E.2d 122 (2002) (Pfeifer, J., dissenting).

2024And although there is a stronger argument that Knuff’s actions technically satisfied the legal definition of “kidnapping,” see R.C. 2905.01, his actions were likewise an inappropriate basis on which to seek the death penalty. {¶ 364} I agree with former Justice Paul Pfeifer’s view that “the felony- murder rule is often inappropriate for determining which murderers are death- worthy.” State v. Twyford, 94 Ohio St.3d 340, 372 , 763 N.E.2d 122 (2002) (Pfeifer, J., dissenting).

2024See also State v. Roberts, 110 Ohio St.3d 71 , 2006-Ohio-3665 , 850 N.E.2d 1168, ¶ 129 (“[w]e repeatedly have rejected the argument that there is no aggravated robbery 7 Case No. 2023-T-0021 when the victim’s property is taken after he is murdered”). {¶20} While the foregoing cases relate to felony murder, courts in Ohio have applied this “continuous occurrence” analysis to Aggravated Robbery charges unrelated to felony murder.

2024See also State v. Roberts, 110 Ohio St.3d 71 , 2006-Ohio-3665 , 850 N.E.2d 1168, ¶ 129 (“[w]e repeatedly have rejected the argument that there is no aggravated robbery 7 Case No. 2023-T-0021 when the victim’s property is taken after he is murdered”). {¶20} While the foregoing cases relate to felony murder, courts in Ohio have applied this “continuous occurrence” analysis to Aggravated Robbery charges unrelated to felony murder.

2024See State -15- v. Fry, 2010-Ohio-1017, ¶ 43 . (“the mens rea element need not appear in the count for felony murder as long as the mens rea component is specified in the count charging the predicate offense.”) In other words, the jury was properly instructed on the mens rea for felonious assault as the predicate offense for felony murder. {¶ 31} Scott’s second assignment of error is overruled. {¶ 32} Scott’s first assignment of error states: TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE. {¶ 33} According to Scott, defense counsel’s performance was deficient because he failed to object to the

2024Accordingly, Scott’s first assignment of error is overruled. {¶ 40} Finally, Scott’s fourth assignment of error states: THE CUMULATIVE EFFECT OF THE ERRORS IN THIS CASE DENIED A FAIR TRIAL. {¶ 41} Scott argues that the alleged multiple errors at trial (ineffective assistance, an improper felony-murder instruction, and inconsistent verdicts) deprived him of a fair trial, and that his conviction must therefore be reversed. {¶ 42} “To find cumulative error, we first must find multiple errors committed at trial, and secondly, we must conclude that a reasonable probability exists that the outcome o

2016See, e.g., State v. Johnson, 112 Ohio St.3d 210 , 2006-Ohio-6404 , 858 N.E.2d 1144, ¶ 55-56 (aggravated murder, robbery, and rape); State v. Palmer, 80 Ohio St.3d 543, 571 , 687 N.E.2d 685 (1997) (aggravated murder and aggravated robbery); Biros, 78 Ohio St.3d at 450 , 678 N.E.2d 891 (aggravated murder and aggravated robbery). {¶ 90} Ohio has been described as having followed the minority view with respect to the felony-murder doctrine.

2016See, e.g., State v. Johnson, 112 Ohio St.3d 210 , 2006-Ohio-6404 , 858 N.E.2d 1144, ¶ 55-56 (aggravated murder, robbery, and rape); State v. Palmer, 80 Ohio St.3d 543, 571 , 687 N.E.2d 685 (1997) (aggravated murder and aggravated robbery); Biros, 78 Ohio St.3d at 450 , 678 N.E.2d 891 (aggravated murder and aggravated robbery). {¶ 90} Ohio has been described as having followed the minority view with respect to the felony-murder doctrine.

2016See Nay v. State, 123 Nev. 326, 332 , and fn. 22, 167 P.3d 430 (2007).

2016In Nay, the Supreme Court of Nevada adopted “the majority rule that the felony-murder doctrine requires that the actor must intend to commit the predicate enumerated felony before or at the time the killing occurred.” Id. at 436. {¶ 91} The statute relied on in Williams, Johnson, Palmer, and Biros [R.C. 2903.01(B)], differs from the statute involved in the case before us.

2012As we said in People v Hernandez ( 82 NY2d 309, 317 [1993]), “The basic tenet of felony murder liability is that the mens rea of the underlying felony is imputed to the participant responsible for the killing.

2012Compare id. at ¶ 53-57 (holding that felony murder under R.C. 2903.02(B) based on the simultaneous commission of the predicate offense of child endangering (serious harm) were allied offenses for this reason). 2 “It is the state that chooses which of the allied offenses to pursue at sentencing.” (Citation omitted.) State v. Whitfield, 124 Ohio St.3d 319 , 2010-Ohio-2 , 922 N.E.2d 182 , ¶ 20. 4 victim’s death the felony-murder rule’s independent-felony or merger limitation precludes it from serving this role.

2012Compare id. at ¶ 53-57 (holding that felony murder under R.C. 2903.02(B) based on the simultaneous commission of the predicate offense of child endangering (serious harm) were allied offenses for this reason). 2 “It is the state that chooses which of the allied offenses to pursue at sentencing.” (Citation omitted.) State v. Whitfield, 124 Ohio St.3d 319 , 2010-Ohio-2 , 922 N.E.2d 182 , ¶ 20. 4 victim’s death the felony-murder rule’s independent-felony or merger limitation precludes it from serving this role.

2012No. 24168, 2012-Ohio-838, ¶ 6 (quoting People v. Cahill, 809 N.E.2d 561, 590 (N.Y. 2003)). “[D]eath is the ‘proximate result’ of [a] [d]efendant’s conduct in committing the underlying felony offense . . . [if it is] a direct, natural, reasonably foreseeable consequence, as opposed to an extraordinary or surprising consequence, when viewed in the light of ordinary experience.” State v. Rodrigues, 9th Dist.