Michael Jeffrey Johnson v. RALPH COYLE , Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0015P (6th Cir.)
File Name: 00a0015p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
M ICHAEL J EFFREY J OHNSON ,
Petitioner-Appellant,
v.
R ALPH C OYLE , Warden,
Respondent-Appellee.
;>

1
No. 97-4092
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 96-00771—David D. Dowd, Jr., District Judge.
Argued: February 5, 1999
Decided and Filed: January 12, 2000
Before: JONES, NELSON, and BOGGS, Circuit Judges.
_________________
COUNSEL
ARGUED: Luz V. Lopez-Ortiz, PUBLIC DEFENDER’S
OFFICE, OHIO PUBLIC DEFENDER COMMISSION,
Columbus, Ohio, for Appellant. Michael L. Collyer, OFFICE
OF THE ATTORNEY GENERAL OF OHIO, Cleveland,
Ohio, for Appellee. ON BRIEF: Luz V. Lopez-Ortiz, Linda
E. Prucha, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC
DEFENDER COMMISSION, Columbus, Ohio, for

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2 Johnson v. Coyle No. 97-4092
Appellant. Michael L. Collyer, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for
Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. An Ohio state-court jury convicted
Michael Johnson of two counts of aggravated murder, each
with a capital specification, for the death of his sister, Susan
Brunst. One capital specification alleged that Johnson killed
Brunst with prior calculation and design; the other alleged
that he killed her in the course of a kidnapping or rape. The
jury convicted Johnson on both counts and recommended a
sentence of death. The state court of appeals affirmed the
conviction and sentence. See State v. Johnson, 1992 WL
328492 (Ohio App. Nov. 4, 1992) (unpublished).
Johnson appealed to the Ohio Supreme Court, which
reversed his conviction and remanded the case for a new trial.
See State v. Johnson, 643 N.E. 2d 1098 (Ohio 1994). The
Ohio Supreme Court found that (1) Johnson’s previous
Florida conviction for second-degree murder was not a
conviction for a specific intent crime and, therefore, cannot be
an aggravating circumstance upon which a capital
specification can be grounded, id. at 1103–04; (2) the
testimony of three of the four witnesses who testified that
Brunst told them about Johnson’s previous attempt to rape
Brunst was inadmissible hearsay, and admitting it was an
abuse of discretion, id. at 1104–05; (3) certain statements that
were admitted into evidence constituted inadmissible
character evidence, id. at 1105–06; and (4) a graphic and
crude passage in an otherwise admissible letter from Johnson
to Brunst was unfairly prejudicial, id. at 1106.
Johnson sought rehearing, arguing that the evidence
presented at trial was insufficient to support his conviction
and that a retrial would thus violate his right against double
jeopardy. The Ohio Supreme Court denied rehearing.
No. 97-4092 Johnson v. Coyle 15
3The magistrate judge asserted that Johnson “is no longer facing a
death penalty” because his state case was not affirmed on appeal, citing
Ohio Revised Code § 2929.06. J.A. at 21. The district court correctly
held that such a conclusion is not based on a federal constitutional issue
and, therefore, such a claim is not cognizable in Johnson’s habeas
proceeding. Id. at 71. Whether § 2929.06 prohibits the death penalty in
Johnson’s case is a matter for the Ohio courts, and we make no ruling on
that point. We note the issue to bring it to the parties’ attention for the
retrial.
specification at Johnson’s retrial. This determination is
properly made by the Ohio courts, and the parties are free to
argue the issue in the forthcoming state proceedings.
III
Sufficient evidence was presented at trial for a rational jury,
viewing all the evidence most favorably for the prosecution,
to find beyond a reasonable doubt that (1) Johnson killed
Brunst, (2) Johnson killed Brunst with prior calculation and
design, (3) Johnson killed Brunst while raping or attempting
to rape Brunst, and (4) assuming that Ohio courts would
interpret the “restraint of liberty” term of the Ohio kidnapping
statute to be satisfied on the facts presented at trial, Johnson
killed Brunst while kidnapping or attempting to kidnap her.
There is no federal constitutional bar to the state’s retrying
Johnson for murder or aggravated murder, nor for prosecuting
a capital specification predicated on rape and/or kidnapping.3
The state may not prosecute a capital specification based on
Johnson’s 1984 Florida conviction. Accordingly, we deny
Johnson’s habeas petition.

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14 Johnson v. Coyle No. 97-4092
2To convict a defendant of both rape and kidnapping, Ohio law
requires the prosecution to prove “separate animus” for the two crimes,
see Ohio Rev. Code Ann. § 2941.25, which has not been shown on the
evidence in the record. To support the capital specification, it must be
possible for a rational jury to find beyond a reasonable doubt, on the
evidence viewed most favorably for the prosecution, that Johnson raped
or kidnapped Brunst. There was no need for the state to prove separate
animus because (1) either is sufficient in itself and (2) Johnson was not
convicted of either rape or kidnapping.
No evidence was presented that Brunst was killed,
terrorized, or physically harmed anywhere other than at her
apartment. There is no way to know if Brunst was killed in
her apartment or removed alive and killed elsewhere.
Although a rational jury might find the elements of murder
and/or aggravated murder without evidence of the exact
location of the killing, the same cannot be said for
kidnapping, which requires that Brunst’s apartment be ruled
out as the scene of the murder. There being no evidence for
the “purpose” element of kidnapping under either subsection
(2) or (3) of Ohio Rev. Code Ann. § 2905.01(A), no rational
jury could find beyond reasonable doubt that Johnson
committed kidnapping under those subsections.
Therefore, to predicate a capital specification on
kidnapping, the state must prove beyond a reasonable doubt
that Johnson restrained Brunst’s liberty in order to engage in
sexual activity, under subsection (4) of of Ohio Rev. Code
Ann. § 2905.01(A). We held above that a rational jury could
find beyond a reasonable doubt that Johnson raped Brunst. At
least one Ohio court has held that the physical restraint
incident to rape may constitute the restraint of liberty required
for kidnapping. See State v. Hatton, 1999 WL 253450, *23
(Ohio Ct. App. April 19, 1999) (unpublished) (holding that
the defendant’s act of forcing himself on top of the victim
constituted a restraint of liberty sufficient to support a
kidnapping conviction).2 We are reluctant to consider this the
settled law of Ohio; however, that is a matter for the Ohio
courts. We hold that if the Ohio courts allow a conviction for
kidnapping on these facts, there is no federal constitutional
bar preventing the state from arguing the kidnapping capital
No. 97-4092 Johnson v. Coyle 3
Johnson filed a habeas corpus petition in federal district court,
again arguing that he may not be retried. The magistrate
judge recommended denial of the petition. The district court
considered Johnson’s objections and denied the writ. The
district court issued a certificate of probable cause, limited to
Johnson’s sufficiency-of-the-evidence claim involving the
kidnapping and rape charges. We affirm the district court’s
denial of Johnson’s petition.
I
A. The 1984 Florida Murder
In 1984, Johnson pled guilty to murder in connection with
the death of a Florida woman, Denise Hutchinson. There
were numerous similarities in the circumstances of the two
killings. At trial in the case before us, the prosecution argued
that the alleged pattern made it more likely that Johnson
killed Brunst.
Johnson lived with Kathy Keller in Pierson, Florida, from
1980 to 1984. Hutchinson was Keller’s friend, whom
Johnson “treated as a sister” although he was sexually
attracted to her. After a fight between Johnson and Keller,
Keller moved in with Hutchinson. Johnson felt that
Hutchinson was responsible for his break-up with Keller. He
fought with Hutchinson, who forbade him to come to her
mobile home. On December 29, 1984, Florida police found
Hutchinson’s body, nude from the chest down, lying in her
bed. Her face had been struck repeatedly with an iron skillet.
Hutchinson was very drunk when she was killed. She had
semen in her vagina, but the quantity recovered was
insufficient to determine the blood type of the donor. Johnson
eventually confessed to the murder. He was steadily
employed, but quit going to work immediately after the
murder. Johnson pled guilty to murder in the second degree
and was imprisoned in Florida. While in prison, he wrote a
letter to his sister, Susan Brunst, referring to her as “a perfect
10” and stating that he found her attractive. State v. Johnson,
643 N.E. 2d 1098, 1106 (Ohio 1994).

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4 Johnson v. Coyle No. 97-4092
B. The Charged Conduct
Johnson was released from prison in 1989 and moved back
to Akron, Ohio, where he lived with his mother and younger
brother, Thomas Johnson. Johnson’s sister, Susan Brunst,
also lived in Akron. She was involved with a married man,
Ron Cook.
Brunst told several friends that on the Sunday after
Thanksgiving, 1989, Johnson tried to rape her in her
apartment. The friends testified that according to Brunst,
Johnson told her he wanted to “lick her pussy,” held a knife
to her throat, pulled up her shirt, touched her breasts, and
attempted to carry her to the bedroom, but that she was able
to talk him out of raping her. After this incident, Brunst told
her daughter, Cynthia, not to be alone with Johnson, and
Brunst and Cook ceased socializing with him. Johnson later
admitted to police that on that Sunday he heard Brunst talking
on the telephone to a woman he was interested in, telling her
that Johnson had been in prison and that he was kinky.
Johnson said that he fought with Brunst and wanted to scare
her, but denied that he tried to rape her.
Johnson was treated briefly at Fallsview Psychiatric
Hospital in February 1990. Johnson’s family apparently
attempted to have him committed at that time, but the court
released him after three days. Johnson was angry at the
family, particularly his brother and Brunst, for trying to
commit him, and told his brother that nobody would get away
with “putting him away like that.”
A woman who lived with Johnson’s aunt, Donna Gray,
testified that Johnson spent every weekend at Gray’s house in
Diamond, Ohio, to drive his Jeep on trails there. On May 27,
1990, Johnson took several relatives and friends with him and
showed them a trail off of Jones Road, behind the post office,
that he had discovered the day before. Brunst’s body was
eventually found near this trail. Johnson did not visit Gray
the weekend that Brunst disappeared.
No. 97-4092 Johnson v. Coyle 13
evidence. Four witnesses testified that Brunst told them of
the Thanksgiving Sunday, 1989, rape attempt. The Ohio
Supreme Court ruled that the testimony of three of these
witnesses was erroneously-admitted hearsay, see Johnson,
643 N.E. 2d at 1104–05, but held that Cook’s testimony fell
within the “excited utterance” exception to the hearsay
exclusion, id. at 1104. However, “‘where the evidence
offered by the State and admitted by the trial court—whether
erroneously or not—would have been sufficient to sustain a
jury verdict, the Double Jeopardy Clause does not preclude
retrial.’” United States v. Quinn, 901 F.2d 522, 530 (6th Cir.
1990) (quoting Lockhart v. Nelson, 488 U.S. 33, 34 (1988)).
Accordingly, for the purposes of this appeal we consider the
evidence from all four witnesses. Brunst’s body was found
nude, and the prosecution also presented evidence that
Johnson wrote to Brunst from prison expressing his attraction
to her.
Viewing all of the evidence presented at trial in the light
most favorable to the prosecution, a rational jury could have
found beyond a reasonable doubt that Johnson killed Brunst
during or immediately after raping or attempting to rape her.
Allowing the state to argue a capital specification based on
rape will not subject Johnson to double jeopardy.
In Ohio, kidnapping is defined as the forceful removal or
restraint of another in order to to hold the victim for ransom
or as a hostage or shield, to facilitate the commission of a
felony, to terrorize or inflict serious physical harm on the
victim or another, or to engage in sexual activity against the
victim’s will. There is no evidence that Johnson sought
ransom for Brunst or used her as a shield or hostage.
Therefore, no rational jury could have found that Johnson
committed kidnapping under subsection (1) of Ohio Rev.
Code Ann. § 2905.01(A). However, he may have removed
her from her apartment to facilitate killing her or to terrorize
or harm her, or he may have restrained her liberty to engage
in sexual relations against her will.

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12 Johnson v. Coyle No. 97-4092
the place where he is found or restrain him of his liberty,
for any of the following purposes:
(1) To hold for ransom, or as a shield or hostage;
(2) To facilitate the commission of any felony or flight
thereafter;
(3) To terrorize, or to inflict serious physical harm on
the victim or another;
(4) To engage in sexual activity, as defined in section
2907.01 of the Revised Code, with the victim against his
will.
Ohio Rev. Code Ann. § 2905.01(A) (“Kidnapping”).
(A) “Sexual conduct” means vaginal intercourse
between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight,
of any part of the body or any instrument, apparatus, or
other object into the vaginal or anal cavity of another.
Penetration, however slight, is sufficient to complete
vaginal or anal intercourse.
(B) “Sexual contact” means any touching of an
erogenous zone of another, including without limitation
the thigh, genitals, buttock, pubic region, or, if the person
is a female, a breast, for the purpose of sexually arousing
or gratifying either person.
(C) “Sexual activity” means sexual conduct or sexual
contact, or both.
Ohio Rev. Code Ann. § 2907.01 (in relevant part).
The prosecution presented evidence that Johnson had been
convicted of murdering Hutchinson in 1984, that her body
was found with semen in the vagina, and that she would not
have consented to sexual relations with Johnson, see Johnson,
643 N.E. 2d at 1105. Johnson viewed both women as sisters,
both had angered him, and in both cases he appears to have
reacted with sexual violence toward the source of his anger
and rejection. The similarity of the two cases suggests a
pattern, which a rational jury might have inferred from the
No. 97-4092 Johnson v. Coyle 5
On Friday, June 1, 1990, Brunst and Cook argued at her
apartment. Brunst told Cook that she planned to spend the
weekend drunk. She drank and smoked marijuana with a
friend that evening, then went to the East Akron Eagles Club,
where she had two more drinks and left for home at
approximately 11:00 p.m. Johnson entered the Eagles Club
with James Westberg about fifteen minutes after Brunst left.
The barmaid told Johnson that he had just missed his sister
and that she was drunk. Later, Johnson went to the pay phone
and, on his return, stated that he got no answer at Brunst’s
house, but that he was sure she made it home safely and
would check on her the next morning. Cook, who was out of
town, also tried to call Brunst several times that night. At
midnight, Brunst answered. After a brief argument, Cook
hung up, but immediately called again. Brunst told Cook that
she was alone, that she was going to be sick, and that she had
to go. Cook called a third time “almost immediately,” but got
no answer.
Johnson and Westberg left the Eagles Club in Johnson’s red
Jeep at 1:00 a.m., when the club closed. Johnson said he
wanted to check on his sister, so he drove to her apartment.
Johnson went into Brunst’s apartment with a Budweiser beer
can. While Johnson was inside, Westberg got out of the Jeep
and vomited for about ten minutes. Johnson came back
outside without his beer, and the two drove to the apartment
complex where they both lived. Johnson told Westberg that
Brunst was drunk and vomiting, naked, with the door wide
open, and referred to her repeatedly as a “stupid bitch.” When
he pulled up at their apartment building, Johnson did not stop
the engine. Johnson was still in the Jeep with the engine
running when Westberg entered his apartment. At 4:30 that
morning, another neighbor, who was returning home, saw
Johnson leaving the apartment complex in his red Jeep. On
Saturday, June 2, Johnson did not show up for work. A
coworker testified that before that day, Johnson had never
missed work.
Cook went to Brunst’s apartment at 9:00 a.m. on Saturday,
June 2, 1990, and found the door open. He found an address

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6 Johnson v. Coyle No. 97-4092
book and a small jewelry box outside the door, but there was
no sign of a struggle. Cook testified that some of the clothes
he saw Brunst wearing the day before were there, but that he
found only one of the pink socks that she had been wearing.
Cook found a Budweiser can in the bedroom. Cook handled
many items, cleaned up the vomit around the toilet, and
generally spoiled the apartment as a crime scene. An Akron
detective interviewed Cook at the apartment that evening.
Akron police interviewed Johnson several times after
Brunst was reported missing. On June 3, 1990, Johnson
admitted that he had left his beer can at Brunst’s apartment.
On June 5, Johnson spoke of Brunst in the past tense and told
police that although he was not guilty of the murder, he might
as well confess and get it over with because his family was
trying to slander him. He said that he had learned from his
mother and his aunt Donna that Brunst’s body had been
moved twice; that Brunst had never been in his Jeep; that he
killed Brunst for sex, drugs, and money; and that while he
was in prison in Florida he discussed committing the perfect
crime with Ted Bundy. On June 8, Johnson maintained eye
contact with the police officer who was questioning him until
he was asked about Brunst. During June 1990, Johnson sold
his car, told his landlady that he was moving out, and refused
to help his family look for Brunst.
On June 27, 1990, a Portage County deputy sheriff found
what later proved to be Brunst’s nude body, badly
decomposed, near Jones Road in Diamond, Ohio. The deputy
coroner concluded that “homicidal violence” was involved.
Near the body, police found a pink sock matching the one
found at Brunst’s apartment, a pair of panties of the kind
Brunst wore, and a piece of carpet torn from Johnson’s truck.
In an attempt to identify the body, Portage County deputy
sheriffs interviewed Johnson, who happened to be the first
relative they were able to contact. Johnson told the deputies
that they might as well charge him because everyone thought
that he killed Brunst.
No. 97-4092 Johnson v. Coyle 11
The Ohio Supreme Court held that purposeful killing is not
an element of the Florida second-degree murder statute and,
consequently, that Johnson’s “1984 Florida conviction of
second-degree murder was insufficient to prove the R.C.
2929.04(A)(5) aggravating circumstance.” See State v.
Johnson, 643 N.E. 2d 1098, 1103–04 (Ohio, 1994).
“Whereas an appellate court on habeas review decides federal
law questions de novo . . . , the federal reviewing court is
generally bound by state court interpretations of state law.”
Caldwell v. Russell, 181 F.3d 731, 735-36, (6th Cir. 1999)
(citing Marshall v. Lonberger, 459 U.S. 422, 431 (1983), and
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Accordingly,
we defer to the Ohio Supreme Court and hold that there was
insufficient evidence to prove the specific intent capital
specification.
D. Sufficiency of the Evidence re: Rape/Kidnapping
Capital Specification
Again, under Ohio law, “[i]mposition of the death penalty
for aggravated murder is precluded unless one or more of the
following is specified in the indictment or count in the
indictment pursuant to section 2941.14 of the Revised Code
and proved beyond a reasonable doubt:”
. . . .
(7) The offense was committed while the offender was
committing, attempting to commit, or fleeing
immediately after committing or attempting to commit
kidnapping, rape, aggravated arson, aggravated robbery,
or aggravated burglary, and either the offender was the
principal offender in the commission of the aggravated
murder or, if not the principal offender, committed the
aggravated murder with prior calculation and design.
Ohio Rev. Code Ann. § 2929.04(A) (in relevant part).
No person, by force, threat, or deception, or, in the case
of a victim under the age of thirteen or mentally
incompetent, by any means, shall remove another from

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10 Johnson v. Coyle No. 97-4092
C. Sufficiency of the Evidence re: Specific Intent Capital
Specification
Under Ohio law, “[i]mposition of the death penalty for
aggravated murder is precluded unless one or more of the
following is specified in the indictment or count in the
indictment pursuant to section 2941.14 of the Revised Code
and proved beyond a reasonable doubt:”
. . . .
(5) Prior to the offense at bar, the offender was
convicted of an offense an essential element of which
was the purposeful killing of or attempt to kill another, or
the offense at bar was part of a course of conduct
involving the purposeful killing of or attempt to kill two
or more persons by the offender.
Ohio Rev. Code Ann. § 2929.04(A) (in relevant part).
A person acts purposely when it is his specific
intention to cause a certain result, or, when the gist of the
offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to
accomplish thereby, it is his specific intention to engage
in conduct of that nature.
Ohio Rev. Code Ann. § 2901.22(A).
There is no evidence that Johnson killed or attempted to kill
more than one person in the case now before us. The statute
under which he was previously convicted in Florida states:
The unlawful killing of a human being, when
perpetrated by any act imminently dangerous to another
and evincing a depraved mind regardless of human life,
although without any premeditated design to effect the
death of any particular individual, is murder in the
second degree . . . .
Fla. Stat. Ann. § 782.04(2) (in relevant part).
No. 97-4092 Johnson v. Coyle 7
On June 29, 1990, Akron detectives again interviewed
Johnson. The first thing Johnson said to the officers was “I’m
the killer,” and he dared them to arrest him. Johnson gave the
officers several accounts of the murder, saying he bludgeoned
Brunst with a tire iron, then that he stabbed her, and finally
that he shot her, referring to Brunst throughout as a “bitch”
and a “whore.” None of the accounts of the murder itself
were plausible in light of the lack of evidence of traumatic
injury to the recovered body, although in each case Johnson
said that he dumped the body behind the post office in
Diamond. On June 30, 1990, Akron police officers arrested
Johnson. At his arraignment, Johnson stated that he was tired
of it all and just wanted to plead guilty.
II
Johnson argues that there is insufficient evidence that
Brunst was a victim of homicide at all; that even if there is
evidence that he killed Brunst, there is insufficient evidence
that the killing was a result of prior calculation and design;
that there is insufficient evidence that Brunst’s death was
connected with rape; and that there is insufficient evidence
that Brunst’s death was connected with kidnapping. Although
the Ohio Supreme Court found reversible error in Johnson’s
trial, and even though that court several times referred to the
evidence as “weak” or as “not overwhelming,” it stopped
short of holding that the evidence was insufficient to support
a conviction. See State v. Johnson, 643 N.E. 2d 1098 (Ohio
1994).
When a defendant challenges the sufficiency of the
evidence to support a conviction, we inquire “whether after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en
banc); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

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8 Johnson v. Coyle No. 97-4092
A. Sufficiency of the Evidence re: Murder
“No person shall purposely cause the death of another . . . .”
Ohio Rev. Code Ann. § 2903.02 (“Murder”). Viewing the
evidence most favorably to the prosecution, there is no doubt
that a rational jury could have found that Johnson killed
Brunst. Johnson is the last person known to have seen Brunst
alive. He was angry with her just after he saw her. He sat in
his running vehicle rather than enter his apartment when he
drove home. A neighbor saw him leaving home at 4:30 a.m.
the morning Brunst disappeared. Brunst’s nude body was
found near an off-road trail Johnson had found days before
Brunst disappeared. A piece of carpet from Johnson’s Jeep
was found near the body. Johnson, who had a perfect work
attendance record, did not show up for work the morning after
Brunst disappeared, similar to his behavior after the
Hutchinson murder. Johnson did not visit his aunt in
Diamond that weekend, as he had done every weekend for a
year. Johnson sold the vehicle that the piece of carpet was
taken from. Johnson told his landlady he was going to move
out and asked to have his security deposit returned. He began
to behave erratically and suspiciously in general. He
confessed to the murder several times. He referred to his
sister in the past tense before she was known to be dead. He
sustained eye contact with detectives until they asked about
Brunst. Although circumstantial, this evidence is substantial.
“Circumstantial evidence alone is sufficient to support a
conviction, and ‘[i]t is not necessary for the evidence to
exclude every reasonable hypothesis except that of guilt.’”
United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999)
(quoting United States v. Beddow, 957 F.2d 1330, 1334 (6th
Cir. 1992)). The evidence presented against Johnson is
certainly sufficient for a rational jury to find beyond a
reasonable doubt that he killed Brunst.
B. Sufficiency of the Evidence re: Aggravated Murder
“No person shall purposely, and with prior calculation and
design, cause the death of another . . . .” Ohio Rev. Code
Ann. § 2903.01 (“Aggravated murder; specific intent to cause
No. 97-4092 Johnson v. Coyle 9
1Causing the death of another “while committing or attempting to
commit, or while fleeing immediately after committing or attempting to
commit, kidnapping[ or] rape,” which was alleged in Johnson’s
indictment, also constitutes aggravated murder. Ohio Rev. Code Ann.
§ 2903.01(B). Because we hold that a rational jury could have found
prior calculation and design, which is sufficient to support a conviction
for aggravated murder, we need not analyze the rape and kidnapping
allegations here. See infra at 11-15, for our analysis of these allegations
as a capital specification.
death”).1 We held above that a rational jury could, on the
evidence in the record, find beyond a reasonable doubt that
Johnson killed Brunst. Unless that jury were to find that
Johnson killed Brunst on his first visit, while Westberg was
waiting outside, it must necessarily find that he returned to do
it. While it is possible that he could have returned with pure
motives and, once he was there, killed Brunst in a moment of
passion, (1) this does not seem likely, and (2) even if it is
possible, a rational jury might find, on the evidence presented,
that he returned later to kill her after calculating and forming
a plan.
Johnson was mad at Brunst when he and Westberg left her
apartment at approximately 1:30 a.m. He displayed no
injuries, and there was no sign of a struggle at Brunst’s
apartment. These facts suggest that there was no “triggering
event” to ignite Johnson’s passions after he returned. If
Brunst was alive when Johnson left her apartment at
approximately 1:30 a.m., and he killed her later, it was most
likely with “prior calculation and design.”
On the evidence presented at trial, a reasonable jury could
believe that Brunst was alive when Johnson left at 1:30 a.m.,
and that he returned intending to kill her. Therefore, the
evidence in the record, viewed most favorably to the
prosecution, could lead a rational jury to conclude that,
beyond a reasonable doubt, Johnson killed Brunst “with prior
calculation and design.” There was sufficient evidence to
convict him of aggravated murder.

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