State v. Johnson (112 Ohio St. 3d 210, 2006)

O’Donnell, J.

{¶ 1} Marvin G. Johnson appeals from his convictions entered pursuant to jury verdicts finding him guilty of the aggravated murder of 13-year-old Daniel Bailey and the rape and aggravated robbery of Tina Bailey, Daniel’s mother, and from the trial court’s imposition of the death penalty.

{¶ 2} Johnson raises 23 propositions of law; however, after review, we find that none are well taken, and pursuant to our independent review of the death sentence in accordance with R.C. 2929.05(A), we affirm these convictions and the sentence imposed.

{¶ 3} The record reveals that Tina Bailey lived on Stewart Avenue in Cambridge, Ohio. Marvin Johnson first met her in 1998 or 1999, and he eventually began living with her on Stewart Avenue. Between 2000 and 2002, an Alabama court incarcerated him for violating parole in connection with a 1988 arson conviction in that state. Upon his release, however, Johnson returned to Ohio and resided with Tina until July 2003.

{¶ 4} During the time Johnson lived with Tina, his use of crack cocaine became problematic. Frequently, Johnson did not come home on payday but would instead disappear for a night or two to spend his paycheck on crack. And due to his drug habit, he only reluctantly contributed money to the household. He also had a strained relationship with Tina’s two children, especially Daniel, because he resented Tina’s generosity toward them.

{¶ 5} Both Johnson and Tina were friends of Utelius “Eric” Barnes. Johnson occasionally became jealous of Barnes, and he suspected that Tina and Barnes had a relationship.

{¶ 6} On July 3, 2003, after several weeks of tension in her relationship with Johnson, Tina told Johnson to leave. Though she later allowed him back into her house two or three times, she made it clear to him that he did not have permission to enter the house in her absence.

{¶ 7} Nevertheless, twice during the two or three weeks before August 15, 2003, Johnson entered her house while she was at work. On the second occasion, she returned to find him there, and she ordered him to leave. Johnson refused, and he dared her to call the police. As they argued, according to Tina’s trial testimony, Johnson “pulled his arm back,” as if to strike her, and he warned that she “shouldn’t be surprised if [she] found [her] house in ashes.” Eventually, he voluntarily left her home.

{¶ 8} Tina worked as a nurse at the Southeastern Ohio Regional Medical Center, a hospital in Cambridge, Ohio, and during the summer, she often worked the 11:00 p.m. to 7:00 a.m. shift. Her son, Daniel, who would stay at home alone while Tina worked, customarily stayed up until 4:00 or 5:00 a.m. and would phone her at work to say goodnight before he went to bed. On the night of August 14, 2003, Tina worked the late shift while Daniel stayed at home alone, and, in keeping with his habit, he phoned his mother in the early morning hours of August 15 to say goodnight before he went to bed.

{¶ 9} That same evening, Johnson stayed at the home of Lisa Wilson, an acquaintance of his and a drug dealer. David Jones, another Wilson acquaintance, also spent the night at Wilson’s home. At midnight, Wilson went on what she described as a “crack run,” and she testified that she saw Johnson asleep on her couch when she left. When she returned at 3:00 a.m., she remembered seeing him in the same position, and at 3:30 a.m., when she left a second time, she also noticed him there.

{¶ 10} Around 5:30 a.m., when Wilson returned, she did not see Johnson but learned from David Jones that he had gotten up about 5:00. According to Wilson, Jones also told her that “ten minutes [sic] after [Wilson] had left at 3:30,” he heard Johnson “rummaging through a bag in the kitchen” before he left. The bag contained old shoes that Wilson had collected.

{¶ 11} Sometime after Daniel’s phone call to his mother, saying goodnight, Johnson beat 13-year-old Daniel Bailey to death. The presence of blood spatters in the living room of the Bailey home established that the beating occurred there.

{¶ 12} According to Dr. Charles Lee, the physician who performed the autopsy, Daniel suffered multiple skull fractures, bruising on his face, and two long lacerations on his head caused by five or six blows from a blunt instrument, possibly a two-by-four. The blows caused Daniel’s brain to swell within the skull cavity until his breathing stopped. In such cases, according to Dr. Lee, death “typically takes anywhere from a couple to several minutes.”

{¶ 13} After beating Daniel, Johnson gagged and hogtied him with shoelaces he had taken from the bag in Lisa Wilson’s home. According to Dr. Lee, Daniel’s head injuries occurred before Johnson tied his hands and feet. Dr. Lee also concluded that Daniel was still alive when he was tied up: “Yes, there’s no question he was alive. * * * [T]he skin reaction, the red hyperemia next to the bindings around his wrists shows that * * * the heart was still pumping while these tight bindings were around the wrists.”

{¶ 14} After beating Daniel and tying him up, Johnson carried him to the basement of the Bailey home.

{¶ 15} Tina returned from work around 8:00 a.m. and spoke briefly with Utelius Barnes, as he prepared to start his second day of work on the remodeling project at her home. The two went inside and discussed the work for another 20 minutes. Tina then went upstairs.

{¶ 16} When she reached the top of the stairs, she saw Johnson coming out of the bathroom wearing an olive-colored T-shirt and carrying a knife in his hand. As Johnson held the knife up in front of her, Tina asked him to put it down, and said, “[WJhere’s Daniel, what did you do to Daniel [?]”

{¶ 17} Johnson walked Tina into her bedroom. When Tina began to hyperventilate, Johnson told her to “calm down” and to “keep quiet” because Barnes and another home-remodeler were nearby. According to Tina, Johnson warned that if she did not obey, “he couldn’t guarantee that Daniel would be okay.” She testified that Johnson told her that Daniel “would be okay,” provided that she complied with three demands: first, Johnson wanted to watch Barnes and Tina have sex; second, he wanted to have sex with Tina “one last time” himself; and, third, he wanted $1,000. Tina asked Johnson why he was doing this, and he replied, “[TJhis [is] the only way I know how to hurt you.”

{¶ 18} She disrobed and performed oral sex on him, and he placed his fingers in her vagina. He continued to hold the knife during these acts. Tina testified that she would not have done this had she not been afraid for Daniel or if Johnson had not held the knife.

{¶ 19} Afterward, according to Tina, Johnson told her to “get up and get dressed, we ha[ve] to go to the bank.” She got dressed and walked out of the bedroom ahead of Johnson, who still held the knife. She again asked him to put it down, and he returned to the bedroom and placed the knife under the mattress on the bed. Police later recovered it there with Johnson’s thumbprint on it.

{¶ 20} Johnson persuaded Tina to drive him to her bank where, using the drive-through window, she withdrew $1,000 and handed it to him. Bank records and the teller’s testimony reveal that this transaction occurred between 8:48 and 8:50 a.m. on August 15. Johnson then had Tina drive him to the parking lot of the local Elks Lodge, and he told her to go home and said he would call to tell her what he had done with Daniel.

{¶ 21} Tina went home and found Daniel in the basement behind her washing machine, gagged, tied and lying face down in a blanket. She tried to remove the gag and tried to revive him before she ran upstairs and asked one of the homeremodelers to call the police.

{¶ 22} Meanwhile, Johnson went to the home of his friend, Matthew Heskett, where he took off his bloodstained shirt, left it on the floor, and borrowed a clean one from Heskett. He then called a taxi and left for Zanesville.

{¶ 23} While Johnson was en route to Zanesville, the Cambridge police learned of Johnson’s departure and radioed the Zanesville police to look for the cab.

{¶ 24} Patrolman Mike Choma of the Zanesville police spotted the cab and saw Johnson walking away from it. Choma and another officer approached Johnson and ordered him to the ground. However, Johnson fled to an abandoned park and hid the money that he had taken from Tina. The police later recovered both the money and the bank envelope.

{¶ 25} The police also recovered Johnson’s bloody shirt from the Haskett residence and sent it to the Bureau of Criminal Identification and Investigation (“BCI”) for analysis. BCI found the bloodstains on the shirt to be consistent with the DNA profile of Daniel Bailey. According to BCI, the chance of finding the same DNA profile in a random member of the population is one in more than 320 trillion.

{¶ 26} The Guernsey County Grand Jury indicted Johnson on two counts of aggravated murder: Count 1, pursuant to the felony-murder provision in R.C. 2903.01(B), and Count 2, pursuant to the “prior calculation and design” provision in R.C. 2903.01(A). Each aggravated-murder count carried a death-penalty specification charging Johnson as the principal offender in a felony murder, pursuant to R.C. 2929.04(A)(7). The indictment also contained counts for kidnapping, rape, and aggravated robbery. The jury convicted him of all counts and all specifications, and, following the jury’s recommendation, the trial judge sentenced him to death.

{¶ 27} On appeal, Johnson presents 23 propositions of law, which we shall consider by topic.

Erroneous-Specification Issues

{¶ 28} In his 17th proposition of law, Johnson argues that his death sentence should be overturned because of an error in the verdict forms and an alleged error in the jury instructions, as well as alleged misstatements by the trial judge during voir dire.

{¶ 29} We begin by noting that no dispute exists with regard to Johnson’s indictment. Count 2 charged him with violating R.C. 2903.01(A), aggravated murder by “prior calculation and design,” with a death-penalty specification, pursuant to R.C. 2929.04(A)(7), which contained the aggravating circumstance of felony murder with Johnson alleged to be the principal offender.

{¶ 30} Johnson catalogs three alleged postindictment errors regarding the jury’s consideration of the specifications attached to Counts 1 and 2. First, he complains that in the guilt phase of the trial, the jury received a verdict form for the specification under Count 2 that mistakenly omitted the “principal offender” language. Instead of this language, the specification for Count 2 charged that Johnson “committed the aggravated murder with prior calculation and design.” Johnson contends that the erroneous substitution of “prior calculation and design” for “principal offender” in the verdict form invalidates his death sentence because the jury returned a verdict finding him guilty of a specification not contained in the indictment presented against him.

{¶ 31} Had Johnson objected to the erroneous verdict form at trial, the court could have corrected it. Because he failed to object, however, he has waived all but plain error. Plain error is “obvious,” State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, and “but for the error, the outcome of the trial clearly would have been otherwise.” See State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus.

{¶ 32} The error in this case did not determine the outcome of the trial, as State v. Bonnell (1991), 61 Ohio St.3d 179, 573 N.E.2d 1082, illustrates. In Bonnell, as in this case, the judge failed to instruct the jury on the principal-offender element of the felony-murder specification and failed to include it in the verdict form. In our opinion, we stated, “The evidence in this case does not reasonably suggest that [the] murder was committed by more than one offender. Thus, appellant was either the principal offender, or he committed no offense at all.” Id. at 184, 573 N.E.2d 1082.

{¶ 33} Using similar analysis, the United States Supreme Court, in Mitchell v. Esparza (2003), 540 U.S. 12, 124 S.Ct. 7, 157 L.Ed.2d 263, held that omitting the principal-offender allegation from a felony-murder specification constituted harmless error in the context of a habeas corpus action, because the omission could not be considered outcome-determinative. “[T]he jury verdict would surely have been the same had it been instructed to find as well that the respondent was a ‘principal’ in the offense. After all, he was the only defendant charged in the indictment. There was no evidence presented that anyone other than respondent was involved in the crime or present at the store.” Id. at 18, 124 S.Ct. 7, 157 L.Ed.2d 263.

{¶ 34} As in Bonnell and Esparza^ the indictment here named only Johnson as an offender, and no evidence presented at trial suggested involvement by anyone other than Johnson in the murder. Thus, in this case, as in Esparza, “the jury verdict would surely have been the same” had the verdict form asked the jury to determine whether Johnson was the principal offender. The verdict form’s substitution of the prior-calculation-and-design element for the principal-offender element of the specification does not alter this analysis.

{¶ 35} Second, Johnson complains that the trial court referred repeatedly during voir dire to “two specifications” when — he claims — only one existed. However, during the voir dire examination, two specifications did exist, one on each of the separate counts of aggravated murder. Johnson did not object to the judge’s statements, and we conclude that no error exists in them, let alone plain error. See State v. Jones (2001), 91 Ohio St.3d 335, 353, 744 N.E.2d 1163 (“Statements made during voir dire cannot reasonably be thought to affect sentencing verdicts”).

{¶ 36} Similarly, Johnson contends that the trial court erroneously referred to “aggravating circumstances,” in the plural, while instructing the jury during the penalty phase. However, Johnson again waived the issue because he failed to raise a timely objection, and likewise, this does not constitute plain error. State v. Smith (2000), 89 Ohio St.3d 323, 332, 731 N.E.2d 645; State v. Keenan (1998), 81 Ohio St.3d 133, 153, 689 N.E.2d 929. There were in fact two aggravating circumstances available for the jury to consider during the penalty phase. Only after the jury returned its penalty-phase verdicts recommending a death sentence for both Counts 1 and 2 did the prosecution ask the trial court to sentence Johnson for Count 2 only.

{¶ 37} Even if the jury improperly considered both aggravating circumstances when it recommended a death sentence on Count 2, our independent review, set forth below, cures the alleged error. See, generally, Clemons v. Mississippi (1990), 494 U.S. 738, 745-746, 110 S.Ct. 1441, 108 L.Ed.2d 725; State v. Lott (1990), 51 Ohio St.3d 160, 170, 555 N.E.2d 293; State v. Cook (1992), 65 Ohio St.3d 516, 527, 605 N.E.2d 70.

{¶ 38} Johnson’s 17th proposition of law is therefore overruled.

Sufficiency of Evidence

{¶ 39} In propositions of law 13 through 15, Johnson challenges the sufficiency of the evidence to support his convictions of kidnapping, rape, aggravated robbery, aggravated murder, and the specification for Count 2.

A. Kidnapping

{¶ 40} Johnson raises two issues in connection with his conviction for kidnapping Daniel. First, he argues that he could not have kidnapped Daniel, because Daniel died before Johnson hogtied him. Second, he argues that the kidnapping merged with the aggravated murder, and he cannot be convicted of both offenses. We reject these contentions for the following reasons.

{¶ 41} Regarding the first issue, the evidence does not support Johnson’s contention that Daniel had died before being restrained. Dr. Lee testified that Daniel was still alive when Johnson tied his hands and feet, and this testimony-supports the jury’s finding that Johnson restrained Daniel of his liberty.

{¶ 42} Johnson also contends that during voir dire, the state conceded that Daniel had died before Johnson hogtied him. A review of the transcript reveals that the prosecutor stated, “The charges accuse Mr. Johnson of going into the home of Constantina Bailey when Daniel was there alone, beating him to death, tying him up and dragging him into the basement * * *.” This statement is not a concession that Johnson killed Daniel before restraining and taking him to the basement.

{¶ 43} Accordingly, we reject Johnson’s assertions that Daniel died before Johnson hogtied and carried him to the basement.

{¶ 44} Regarding the second kidnapping issue, Johnson argues that the kidnapping and murder are allied offenses of similar import and must be merged pursuant to R.C. 2941.25 and our decision in State v. Logan (1979), 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345.

{¶ 45} R.C. 2941.25(B) provides that two similar offenses that are “committed separately or with a separate animus as to each” may be charged in the indictment and serve as the basis for two separate convictions.

{¶ 46} In Logan, we “recognized that where the asportation or restraint ‘subjects the victim to a substantial increase in risk of harm separate and apart from * * * the underlying crime, there exists a separate animus.’ ” State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 90, quoting Logan, 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, at paragraph (b) of the syllabus. And “where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions.” (Emphasis added.) Logan, 60 Ohio St.2d 126, 14 O.O.3d 373, 397 N.E.2d 1345, paragraph (a) of the syllabus.

{¶ 47} Here, the record supports the conclusion that Johnson’s kidnapping of Daniel had a significance and an animus independent of Daniel’s murder. Tina testified that she found Daniel hogtied and lying in a blanket behind her washing machine in the basement of her home. Dr. Lee testified that Daniel lived for a time sufficient for his skin to react to the shoelaces. Even if Daniel had lived for only a few minutes after Johnson hogtied him, sufficient evidence existed for the jury to find that Johnson had intended to prevent Daniel from getting assistance for his injuries, had he regained consciousness. Moreover, sufficient evidence existed for the jury to infer that Johnson carried Daniel, while Daniel still lived, to the basement in order to confine him in secret and to prevent anyone from finding him and rendering aid.

{¶ 48} Hence, the jury could reasonably conclude that when Johnson restrained Daniel and hid him in the basement, he committed an act that had significance independent of, and an animus separate from, murder.

{¶ 49} We overrule Johnson’s 13th proposition of law.

B. Aggravated Robbery

{¶ 50} In his 14th proposition of law, Johnson contends that the state presented insufficient evidence on which to convict him of aggravated robbery in violation of R.C. 2911.01(A)(1), because he left the knife at the Bailey home when he and Tina drove to the bank and because he did not have the knife when Tina gave him the $1,000. The state counters that Johnson committed the offense when, while holding the knife, he demanded $1,000 from Tina and ordered her to take him to the bank.

{¶ 51} Having considered the parties’ positions, we agree with the state. R.C. 2911.01(A)(1) provides, “No person, in attempting or committing a theft offense * * * shall do any of the following: * * * Have a deadly weapon on or about the offender’s person or under the offender’s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.”

{¶ 52} The uncontroverted evidence in the record shows that Johnson held the knife to Tina when he demanded that she give him $1,000 and that she drive him to the bank. Thus, sufficient evidence exists to support the jury’s finding that Johnson violated R.C. 2911.01(A)(1) by having “a deadly weapon on or about [his] person” while “attempting or committing a theft offense.”

C. Rape

{¶ 53} Also, in his 14th proposition, Johnson contends that insufficient evidence exists to prove his rape conviction beyond a reasonable doubt because the state adduced no physical evidence, such as rape-kit evidence, to corroborate Tina’s testimony. However, Tina’s testimony satisfies the test established in Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (“the relevant question is 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”). Corroboration of victim testimony in rape cases is not required. See State v. Sklenar (1991), 71 Ohio App.3d 444, 447, 594 N.E.2d 88; State v. Banks (1991), 71 Ohio App.3d 214, 220, 593 N.E.2d 346; State v. Lewis (1990), 70 Ohio App.3d 624, 638, 591 N.E.2d 854; State v. Gingell (1982), 7 Ohio App.3d 364, 365, 7 OBR 464, 455 N.E.2d 1066. Johnson’s 14th proposition is not well taken.

D. Felony Murder

{¶ 54} In his 15th proposition of law, Johnson contends that the rape and aggravated robbery of Tina Bailey cannot be used to support the aggravated-murder charge based on felony murder or the felony-murder death specification, because Johnson did not commit the rape and aggravated robbery “while committing” the aggravated murder of Daniel Bailey. R.C. 2903.01(B).

{¶ 55} However, “the term Virile’ does not indicate * * * that the lulling must occur at the same instant as the [predicate felony], or that the killing must have been caused by the [felony].” State v. Cooper (1977), 52 Ohio St.2d 163, 179-180, 6 O.O.3d 377, 370 N.E.2d 725. Nor does it mean that the felony must have been the motive for the killing. State v. Williams (1996), 74 Ohio St.3d 569, 577, 660 N.E.2d 724; State v. McNeill (1998), 83 Ohio St.3d 438, 441, 700 N.E.2d 596.

{¶ 56} Rather, “while” means that “the killing must be directly associated with the [felony] as part of one continuous occurrence * * *.” Cooper, 52 Ohio St.2d at 179-180, 6 O.O.3d 377, 370 N.E.2d 725. See, also, State v. Cooey (1989), 46 Ohio St.3d 20, 23, 544 N.E.2d 895. “[T]he term ‘while’ means that the death must occur as part of acts leading up to, or occurring during, or immediately subsequent to the [relevant felony].” Williams, 74 Ohio St.3d at 577, 660 N.E.2d 724. “The sequence of events” may be “examined in light of time, place, and causal connection” to determine whether it “amounts to ‘one continuous occurrence.’ ” McNeill, 83 Ohio St.3d at 441, 700 N.E.2d 596, quoting Cooey, 46 Ohio St.3d at 23, 544 N.E.2d 895.

{¶ 57} The evidence presented in this case supports a finding that Daniel’s murder occurred sometime between 5:00 and 6:00 a.m., on August 15, 2003. Dr. Janet Brockwell, the Guernsey County Coroner, observed the autopsy performed by Dr. Lee and estimated Daniel’s time of death at between 4:00 and 6:00 a.m. Johnson had been sleeping on Lisa Wilson’s couch at 3:30 a.m., but had left by 5:30 a.m. Wilson testified that David Jones told her that “he had gotten up about 5:00, ten minutes [sic] after [Wilson] had left at 3:30.” According to Wilson, Jones “said he heard him rummaging through a bag in the kitchen and then he left.” Based on this information, the jury could have found that Johnson left Wilson’s house shortly before the time of Daniel’s murder.

{¶ 58} The rape occurred sometime after 8:20 a.m. The aggravated robbery began at about the same time, when Johnson demanded $1,000 from Tina while threatening her with the knife. Thus, two to three hours elapsed between Daniel’s kidnapping and death, and the rape and aggravated robbery of his mother, Tina.

{¶ 59} However, the relationship between the victims and the situs of the crimes connect these offenses. The aggravated murder, the kidnapping, the rape, and the beginning of the aggravated robbery all occurred at Tina’s home, where Johnson knew that Daniel would be alone and knew he could overpower and kill him. He did so and then waited for Tina to arrive home from work. He used Daniel’s disappearance, in addition to the knife, as a means to commit the rape and the robbery.

{¶ 60} Thus, when viewed “in light of time, place, and causal connection,” McNeill, 83 Ohio St.3d at 441, 700 N.E.2d 596, the jury could have found that the aggravated murder “occur[red] as part of acts leading up to” the rape and aggravated robbery. Williams, 74 Ohio St.3d at 577, 660 N.E.2d 724. Based on this analysis, we conclude that the kidnapping, the aggravated murder, the rape, and the aggravated robbery constitute one continuous occurrence.

{¶ 61} In proposition 15, Johnson also challenges the jury instructions for the felony-murder charge in Count 1 and the specification appended to Count 2. Both the charge and specification alleged that Johnson committed the murder “while” committing or “while” fleeing after committing other felonies. The trial court instructed the jury in this regard that the term “while” means that “the death must occur as part of acts leading up to or occurring during or immediately after the commission of kidnapping, rape, aggravated robbery and the death was directly associated with the commission of the kidnapping, rape or aggravated robbery or flight immediately after the commission of those crimes.” (Emphasis added.)

{¶ 62} Because the court instructed the jury in the disjunctive, Johnson argues that it cannot be determined whether the jury found Daniel’s murder to be directly associated not only with Daniel’s kidnapping but also with the rape and robbery of Tina. For this reason, he urges the court to vacate his conviction of the felony-murder offense and specification.

{¶ 63} Our examination of the record, however, reveals that Johnson did not object to the instructions, and we therefore review his claim under the plain-error standard. We conclude that no plain error exists with regard to the instructions given to the jury on this issue.

{¶ 64} We rejected a similar argument in State v. Skatzes, 104 Ohio St.3d 195, 2004-0hio-6391, 819 N.E.2d 215, ¶ 51-53, in which the trial court had instructed the jury on the five purposes listed in the kidnapping statute, R.C. 2905.01(A), but did not instruct the jury to reach a unanimous verdict as to which of those purposes was the basis for each of three kidnapping charges. Upon review, we determined that when the jury unanimously reaches a verdict, the individual jurors need not agree on which of the alternative bases support their individual findings. Id. at ¶ 55, following Schad v. Arizona (1991), 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555.

{¶ 65} Similarly, in this case, we know that the jurors unanimously convicted Johnson of kidnapping, rape, and aggravated robbery, any one of which satisfies the necessary element for both felony murder and the specification. We also know — by virtue of the jury’s guilty verdicts on Count 1 and on the Count 2 specification — that the jury concluded that Johnson committed the murder while committing or while fleeing after committing at least one of those felony offenses. It was not necessary for the jurors to agree unanimously that the murder occurred while all three of those offenses were being committed or while Johnson was fleeing afterwards. We therefore conclude that no plain error occurred in the use of the word “or” in the instructions for the felony-murder count and the second specification.

{¶ 66} Accordingly, we overrule this proposition of law.

Righb-to-Counsel Issues

A. Defendant’s Request for New Counsel

{¶ 67} At a pretrial hearing on March 10, 2004, Johnson asked the trial court to replace his appointed counsel. In his first proposition of law, Johnson contends that the trial court denied him the right to effective assistance of counsel by failing to inquire sufficiently into the basis for his request.

{¶ 68} In State v. Deal (1969), 17 Ohio St.2d 17, 46 O.O.2d 154, 244 N.E.2d 742, we held that a court has a duty to inquire into such a request: “Where, during the course of his trial for a serious crime, an indigent accused questions the effectiveness and adequacy of assigned counsel * * *, it is the duty of the trial judge to inquire into the complaint and make such inquiry a part of the record.” Id., syllabus. However, as one Ohio appellate court has rightly explained, the “limited judicial duty arises only if the allegations are sufficiently specific; vague or general objections do not trigger the duty to investigate further.” State v. Carter (1998), 128 Ohio App.3d 419, 423, 715 N.E.2d 223, citing Deal, 17 Ohio St.2d at 19, 46 O.O.2d 154, 244 N.E.2d 742.

{¶ 69} The record before us reveals the following in regard to Johnson’s request for new counsel:

{¶ 70} On February 11, 2004, Johnson’s trial counsel referred during a pretrial hearing to an article in the Sunday, February 8, 2004, issue of the Daily Jeffersonian, which purported that Johnson, from jail, had asked Daniel’s grandmother whether she would “like to know what the little boy’s last words were.” Based on this report, and other related articles appearing in both the Jeffersonian and the Zanesville Times Recorder, defense counsel moved for a change of venue, which the court denied. The court did delay the starting date of the trial for several weeks, however, and also imposed a limited gag order on the news media.

{¶ 71} At a pretrial hearing on March 10, 2004, Johnson asked that his attorneys be removed from the case. He elaborated: “I feel as though I’m not being represented properly to the best of my [sic] ability. I can represent myself better than I’m being represented. I have questions to address to the Court but I’m not allowed to from my attorneys.” The judge asked Johnson’s counsel to respond. Johnson’s lead counsel, Jack Blakeslee, stated that in his opinion, Johnson wanted new counsel because “basically he doesn’t like to hear what we tell him.”

{¶ 72} The judge asked Johnson to speak, and Johnson responded, “I have questions I would like to address [to] the Court but I’m told I am — [.]” The trial judge interrupted Johnson to caution that anything he said could be used against him at trial, then allowed him to resume. Johnson said: “What I would like to say * * * is okay hopefully the newspaper is here today so they can actually print something I actually said in court — [.]” Blakeslee interrupted: “I’m going to object to this. I’m telling the defendant to keep your mouth shut.”

{¶ 73} The trial judge cautioned Johnson to “proceed with care” and stated: “If you wish to address the Court you may * * * write a letter to the Judge.” Johnson said he had been “told not to do that,” and the judge said, “Well, then you should follow the advice of your counsel.”

{¶ 74} Johnson said, “I still would like to address the Court pertaining to questions — [.]” The judge replied, “Your attorney has objected to that and I’m going to honor that objection at this time * * Johnson continued to insist on asking his questions. Blakeslee said, “I’m objecting to it’s being [sic] going in the newspaper. * * * It’s going to be out there.” The defendant said, “Exactly. * * * The newspaper printed something I didn’t say.” The judge noted that he had taken care to guard against “an atmosphere of what was perceived to be prejudicial pretrial publicity to [Johnson].”

{¶ 75} Johnson said, “[Y]eah, but what I would like to know is how can the newspaper just print something I didn’t say.” The judge declined to answer that question, but said, “If you want to address these matters you may bring them to my attention in proper form.”

{¶ 76} At his next court appearance, on March 30, 2004, Johnson did not renew his request for new counsel. Instead, defense attorney Andrew Warhola stated: “Mr. Johnson has advised me that he will not be speaking during any of these proceedings, that he wants me to speak on his behalf.”

{¶ 77} The record does not support Johnson’s claim that the court failed to inquire into his complaints. The court gave him an opportunity to present any complaints against counsel in open court, on the record, or in the form of a letter to the judge. The limited inquiry by the court afforded Johnson an opportunity to address his concern to the court regarding potential prejudice from pretrial publicity. When given the opportunity to speak, however, Johnson asked only, “[H]ow can the newspaper just print something I didn’t say[?]”

{¶ 78} This complaint did not entitle Johnson to a change of counsel or to broader inquiry by the court. Accordingly, we overrule this proposition.

B. Waiver of Counsel

{¶ 79} During a brief portion of the guilt phase of the trial, Johnson waived counsel and represented himself. In his 18th proposition of law, Johnson contends that because the trial court failed to advise him sufficiently of the dangers and disadvantages of self-representation, his waiver should be declared invalid as not having been knowingly, intelligently, and voluntarily made.

{¶ 80} Two attorneys represented Johnson throughout the state’s case-in-chief. When the state rested, Johnson’s counsel also rested. At that point, however, contrary to counsel’s advice, Johnson expressed a desire to testify on his own behalf, which caused defense counsel to ask the court to inquire into Johnson’s competence to stand trial or make a statement. The court engaged in a colloquy with Johnson during which Johnson correctly recited the charges against him and affirmed his understanding that a death sentence could be imposed. Johnson then renewed his earlier request that his counsel be relieved.

{¶ 81} Upon reflection, Johnson decided not to testify, but announced his intent to call Tina Bailey as a defense witness during the guilt phase of the trial. One of Johnson’s lawyers told the court that Johnson was calling Tina to testify against the lawyers’ advice. The following colloquy then occurred:

{¶ 82} “Q. [trial judge] Mr. Johnson, will you be proceeding as your own—

{¶ 83} “A. Yes, sir.

{¶ 84} “Q. You’re proceeding pro se then?

(¶ 85} “A. Yes, sir.

{¶ 86} “Q. And you understand you will be subject to the same rules of procedure and evidence that would apply to any other person?

{¶ 87} “A. Yes, sir.”

{¶ 88} At that point in the proceedings, Johnson represented himself, but the trial judge, over Johnson’s protests, designated his trial counsel as standby counsel. Johnson called Tina as a defense witness, questioned her, and then made a brief closing argument to the jury. However, defense counsel also continued to assist Johnson: they made motions for a mistrial and for a competency evaluation and discussed jury instructions with the trial judge and the prosecutor. The trial court also let defense counsel argue to the jury at the close of the guilt phase after Johnson did. Johnson’s attorneys then resumed their full representation of him during the penalty phase of the trial.

{¶ 89} A criminal defendant has the constitutional right to represent himself at trial. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. However, “the Constitution * * * require[s] that any waiver of the right to counsel be knowing, voluntary, and intelligent * * * Iowa v. Tovar (2004), 541 U.S. 77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209. “In order to establish an effective waiver of [the] right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.” State v. Gibson (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph two of the syllabus. And Crim.R. 44(A) provides that a defendant is entitled to counsel “unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel.”

{¶ 90} Johnson contends on appeal that the warnings the trial court gave him failed to comply with Crim.R. 44(A), as construed in State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227. There we held: “In the case of a ‘serious offense’ * * * when a criminal defendant elects to proceed pro se, the trial court must demonstrate substantial compliance with Crim.R. 44(A) by making a sufficient inquiry to determine whether the defendant fully understood and intelligently relinquished his or her right to counsel.” Id., paragraph two of the syllabus.

{¶ 91} We said further in that case that the trial court “did not adequately explain the nature of the charges, the statutory offenses included within them, the range of allowable punishments, possible defenses, mitigation, or other facts essential to a broad understanding of the whole matter.” Id. at ¶ 43, citing Von Moltke v. Gillies (1948), 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (plurality opinion). Johnson contends, likewise, that the trial court in this case failed to explain “the nature of the charges, the statutory offenses included within them, the range of allowable punishments, possible defenses, mitigation, or other facts essential to a broad understanding of the whole matter.”

{¶ 92} In considering Johnson’s contentions, we note that this case is factually distinguishable from Martin. First, the defendant in Martin conducted his entire defense by himself. Id. at ¶ 19. Johnson, in contrast, had representation throughout his trial until he waived his right to counsel at the close of the state’s case. Hence, “it may be proper to presume that the defense counsel who represented [defendant] * * * had discussed all relevant aspects of the case with him.” Maynard v. Meachum (C.A.1, 1976), 545 F.2d 273, 279.

{¶ 93} United States ex rel. Konigsberg v. Vincent (C.A.2, 1975), 526 F.2d 131, illustrates the importance of this distinction. After 12 days of trial, the defendant, “no stranger to the federal courts,” 526 F.2d at 132, fired his lawyer, waived counsel, and represented himself. The trial court directed that counsel sit at counsel table and assist, id. at 133, and the defendant “conferred] repeatedly with his lawyers throughout the trial.” Id. at 134.

{¶ 94} Konigsberg argued that this constituted an invalid waiver of counsel “because the [trial] judge failed to explore the consequences with him on the record.” Id. However, the Second Circuit held “that the specific ‘factual background’ may in some instances excuse the judge’s failure to give ‘explicit warning and advice’ regarding the waiver of counsel.” Id., quoting United States v. Rosenthal (C.A.2, 1972), 470 F.2d 837, 845. The court noted, “Konigsberg had been continuously represented prior to and during trial. He made his decision to represent himself with full knowledge of his right to counsel and of the importance of having counsel. Whatever might be the need in other situations, Konigsberg’s involvement with the courts was such that there was no need for [the judge] to explain all this to him.” Id.

{¶ 95} Here, as in Konigsberg, Johnson “had been continuously represented prior to and during trial,” and he had experience in the courts due to his prior criminal history.

{¶ 96} We also distinguish Martin because, in that case, we deemed the trial court’s warnings inadequate due to Martin’s confusion regarding self-representation and the trial court’s failure to explain it to him. Martin disclaimed any desire to “act as [his] own lawyer”; rather, he wanted to be co-counsel. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 9. Under those circumstances, we held, the trial court should have advised him “that he had no right to be ‘co-counsel’ and that his only choices were to proceed pro se or with counsel.” Id. at ¶ 44. We held that absent such a warning, Martin did not knowingly, intelligently, and voluntarily waive counsel.

{¶ 97} In contrast, Johnson displayed no confusion about what he wanted or what self-representation meant. Moreover, the record establishes that he knew the nature of the charges against him and that he was facing a potential death sentence.

{¶ 98} Based on the foregoing, the trial court made a sufficient inquiry to determine that Johnson knowingly, intelligently, and voluntarily waived his right to counsel, and, thereby, it substantially complied with Crim.R. 44.

{¶ 99} We agree with Johnson that the court erred when it did not obtain a written waiver of counsel from him, as directed by Crim.R. 44(C). However, because the trial court substantially complied with Crim.R. 44, “the failure to file a written waiver is harmless error.” Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 39.

{¶ 100} Johnson also contends that the trial court insufficiently warned him of the dangers of self-representation, and we acknowledge that Faretta holds that a defendant electing to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing.’ ” 422 U.S. at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562, quoting Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268.

{¶ 101} However, the United States Supreme Court “ha[s] not * * * prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election * * * will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” Tovar, 541 U.S. at 88, 124 S.Ct. 1379, 158 L.Ed.2d 209.

{¶ 102} The Sixth Amendment does not require extensive warnings in every case. In Faretta, for instance, the trial judge gave this warning: “You are going to follow the procedure. You are going to have to ask the questions right. If there is an objection to the form of the question and it is properly taken, it is going to be sustained. We are going to treat you like a gentleman. We are going to respect you. We are going to give you every chance, but you are going to play with the same ground rules that anybody plays. And you don’t know those ground rules. You wouldn’t know those ground rules any more than any other lawyer will know those ground rules until he gets out and tries a lot of cases. And you haven’t done it.” Faretta, 422 U.S. at 808, 95 S.Ct. 2525, 45 L.Ed.2d 562, fn. 2.

{¶ 103} In Faretta, the Supreme Court held the foregoing warning sufficient and the defendant’s waiver of counsel valid: “Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will. The trial judge had warned Faretta that he thought it was a mistake not to accept the assistance of counsel, and that Faretta would be required to follow all the ‘ground rules’ of trial procedure.” Id. at 835-836, 95 S.Ct. 2525, 45 L.Ed.2d 562.

{¶ 104} Similarly, in this case, the trial court warned Johnson that he would be “subject to the same rules of procedure and evidence that would apply to any other person.” Johnson acknowledged that he understood that. Further, because Johnson had witnessed various pretrial hearings, the voir dire process, and four days of trial testimony before attempting to waive counsel, the court knew that Johnson understood “that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one’s story.” Maynard, 545 F.2d at 279.

{¶ 105} Under these circumstances, the trial court reasonably determined that Johnson had sufficient understanding of the case and the consequences of self-representation to make a voluntary, knowing, and intelligent choice to waive his right to counsel and represent himself.

{¶ 106} We therefore overrule Johnson’s 18th proposition of law.

C. Ineffective Assistance

{¶ 107} In his fifth and 19th propositions of law, Johnson raises several issues regarding ineffective assistance of trial counsel.

{¶ 108} In his fifth proposition of law, Johnson contends that his trial counsel rendered ineffective assistance by failing to challenge two veniremen, for cause, in response to their answers to defense counsel’s questions regarding their ability to consider a life sentence as the penalty for the murder of a child.

{¶ 109} In questioning Barbara Grant, the following colloquy occurred between defense counsel and the prospective juror:

{¶ 110} “Q. [defense counsel] Would you have difficulty voting for a life sentence if you convicted a person of an intentional and deliberate murder of a child?

{¶ 111} “A. Deliberate? No.

{¶ 112} “Q. So you could vote for a life sentence?

{¶ 113} “A. Not if he deliberately killed a child, no.

{¶ 114} “Q. That’s what I asked. Let me rephrase the question. * * * I’ve been doing this for 30 years and it’s hard for me to get these questions out. So would you have difficulty voting for a life sentence if you convicted a person of an intentional and deliberate murder of a child?

{¶ 115} “A. No.

{¶ 116} “Q. So you could vote for a life sentence?

{¶ 117} “A. Yes, I could. Yes.” (Emphasis added.)

{¶ 118} Grant also said that she could consider mitigating factors, such as mental disease, drug use, child abuse, and parental abandonment.

{¶ 119} In order to establish that trial counsel’s failure to challenge Grant constitutes ineffective assistance, Johnson must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel’s errors, the proceeding’s result would have been different. Strickland v. Washington (1984), 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 142, 538 N.E.2d 373.

{¶ 120} Grant’s responses during voir dire do not suggest or create an inference of bias such that Johnson may claim that trial counsel’s failure to challenge Grant constitutes deficient performance. See State v. Davis (1991), 62 Ohio St.3d 326, 350, 581 N.E.2d 1362. Thus, counsel’s failure to challenge Grant does not constitute ineffective assistance of counsel.

{¶ 121} The other venireman challenged here by Johnson, Sara Danadik, stated that the death penalty would be appropriate for the intentional, premeditated murder of a child. However, the record does not show that she said she would automatically vote for such a penalty. In fact, she said she could consider a life sentence in such a case “[i]f the evidence and the circumstances warrant it.” As with Grant, Danadik’s voir dire responses do not support an inference of bias, and failure to challenge for cause does not amount to ineffective assistance of counsel.

{¶ 122} Accordingly, we overrule this proposition of law.

{¶ 123} In his 19th proposition of law, Johnson contends that his trial counsel rendered ineffective assistance before trial, during voir dire, at the guilt phase of the trial, during the competency hearing, and during the penalty phase of the trial.

A. Pretrial

{¶ 124} Prior to trial, defense counsel requested a competency evaluation of Johnson. The court granted the request, but counsel withdrew it before the evaluation took place. Counsel explained that they requested an evaluation because Johnson refused to cooperate in his defense. But because Johnson changed his mind and decided to cooperate, counsel no longer questioned his competence to stand trial.

{¶ 125} Johnson alleges that counsel rendered ineffective assistance by withdrawing the request, but he fails to explain why this constitutes deficient performance or how it became prejudicial. Thus, he fails to demonstrate ineffective assistance.

B. Voir Dire

{¶ 126} Johnson contends that counsel committed four errors during voir dire:

{¶ 127} First, Johnson alleges that counsel failed to object when the trial judge referred to the jury’s death-penalty recommendation as a “recommendation.” However, as these references were accurate, they are not objectionable. See, e.g., State v. Mitts (1998), 81 Ohio St.3d 223, 232-233, 690 N.E.2d 522.

{¶ 128} Second, Johnson characterizes counsel’s voir dire examination regarding mitigation as “superficial,” but he does not explain his reasoning. A reviewing court generally will not second-guess counsel’s judgments about what questions to ask on voir dire. See State v. Evans (1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042; State v. Coleman (1999), 85 Ohio St.3d 129, 135, 707 N.E.2d 476. Johnson’s allegation provides no basis for us to find ineffective assistance of counsel in this regard.

{¶ 129} Third, Johnson contends that his counsel failed to object to repeated comments that the jury needed to convict Johnson of the death specification in order to reach the mitigation phase, but he does not explain why these comments were objectionable or prejudicial. They are neither.

{¶ 130} Fourth, Johnson claims that his counsel failed to object when the court read a list of all seven statutory mitigating factors to the prospective jurors during voir dire. Cf. State v. DePew (1988), 38 Ohio St.3d 275, 289, 528 N.E.2d 542. However, even assuming that DePew applies to voir dire, Johnson fails to explain how the alleged error prejudiced him, particularly at such an early stage in the proceedings and when no such error occurred later in his trial or sentencing.

C. Guilt Phase

{¶ 131} Johnson alleges ineffective assistance, during the guilt phase, in seven instances:

{¶ 132} First, Johnson contends that his counsel rendered ineffective assistance by conceding in opening statement that Johnson killed Daniel Bailey. Counsel stated the following to the jury:

{¶ 133} “There is an aggravated murder here. There was purposely, prior calculation and design. Marvin Johnson did kill Daniel Bailey. The issue is whether or not this was during the commission of a kidnapping or was there a kidnapping committed in this case. * * * There is an aggravated murder in this case but we contend there were no death penalty specifications that were involved here. Indeed, we contend there was not a rape. We contend there was not an aggravated robbery. But if you find that there was a rape, that there was an aggravated robbery we contend that that still does not make this a death penalty eligible case.”

{¶ 134} Conceding guilt in a capital case does not necessarily constitute deficient performance. Florida v. Nixon (2004), 543 U.S. 175, 190-191, 125 S.Ct. 551, 160 L.Ed.2d 565; State v. Goodwin (1999), 84 Ohio St.3d 331, 338, 703 N.E.2d 1251. “Attorneys representing capital defendants face daunting challenges in developing trial strategies, not least because the defendant’s guilt is often clear. * * * In such cases, ‘avoiding execution [may be] the best and only realistic result possible.’ ” Florida v. Nixon, 543 U.S. at 191, 125 S.Ct. 551, 160 L.Ed.2d 565, quoting ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Section 10.9.1, Commentary (Rev.Ed. 2003), reprinted in 31 Hofstra L.Rev. (2003) 913, 1040.

{¶ 135} In this case, the record contains overwhelming evidence of Johnson’s culpability for Daniel’s murder, and Johnson at no point claimed innocence. We decline to second-guess trial counsel’s decision to concede guilt on the murder charge but to dispute each of the other felonies that formed the basis for the death-penalty specifications. Moreover, in light of the evidence against him, Johnson cannot demonstrate how the concession caused him prejudice or might have altered the trial’s outcome. See Goodwin, 84 Ohio St.3d at 338, 703 N.E.2d 1251. Therefore, counsel’s concession in opening does not constitute ineffective assistance of counsel in this case.

{¶ 136} Second, Johnson contends that his counsel rendered ineffective assistance by summarizing his criminal record during opening and by failing to object when Tina testified about his criminal history.

{¶ 137} During opening, Johnson’s counsel stated the following: “[Tina] knew that Marvin had a criminal past. She knew that in 1989 in Alabama he had been convicted of arson. She also knew that he used illegal drugs such as crack cocaine but with all those short comings she still permitted him to become a part of her family.” He then listed Johnson’s convictions and stated that while he served various prison sentences for these convictions, “Tina continues to maintain contact with him by telephone or letter, they continue their relationship during those hard times.”

{¶ 138} Counsel connected Johnson’s prior convictions with Tina’s willingness to support him, to maintain a relationship and to take him back upon his release from prison. This does not objectively fall below a reasonable standard of representation, particularly if defense counsel expected the state to raise his prior convictions later in trial. See State v. Bey (1999), 85 Ohio St.3d 487, 493, 709 N.E.2d 484. Moreover, in light of the overwhelming evidence of Johnson’s guilt, he cannot show that these statements prejudiced him. Thus, he did not receive ineffective assistance in this instance.

{¶ 139} Third, Johnson complains that his counsel failed to object to Tina’s testimony about Daniel’s honor-student status and his hobbies, failed on three occasions to object to hearsay, and failed to object to testimony about Johnson’s prior convictions. However, “failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel. To prevail on such a claim, a defendant must first show that there was a substantial violation of any of defense counsel’s essential duties to his client and, second, that he was materially prejudiced by counsel’s ineffectiveness.” State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831. Johnson does not explain how these alleged failures constituted a violation of his counsel’s duties or caused prejudice in light of the evidence against him.

{¶ 140} As the United States Court of Appeals for the Sixth Circuit has recently explained, “experienced trial counsel learn that objections to each potentially objectionable event could actually act to their party’s detriment. * * * In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel’s failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.” Lundgren v. Mitchell (C.A.6, 2006), 440 F.3d 754, 774. Accord State v. Campbell (1994), 69 Ohio St.3d 38, 52-53, 630 N.E.2d 339.

{¶ 141} Our review of the trial transcript reveals no such failure by Johnson’s trial counsel, and we overrule his claim of ineffective assistance based on these incidents.

{¶ 142} Fourth, Johnson complains that when the state concluded direct examination of each witness, defense counsel failed to ask to review the witnesses’ statements, pursuant to Crim.R. 16(B)(1)(g). “[T]he burden of proving ineffectiveness is on the defendant.” State v. Lott (1990), 51 Ohio St.3d 160, 175, 555 N.E.2d 293, citing State v. Smith (1985), 17 Ohio St.3d 98, 100, 17 OBR 219, 477 N.E.2d 1128. However, Johnson fails to show prejudice because he does not explain whether any of the witness statements would have been discoverable or proven useful for impeachment during the trial. Hence, he fails to show ineffective assistance of counsel on this point.

{¶ 143} Fifth, Johnson contends that his counsel indicated to the trial judge that Johnson could not be truthful. This allegation concerns Johnson’s desire to testify during the guilt phase of his trial, and defense counsel’s statement to the court — outside the presence of the jury — that ethically, he could not question Johnson on direct examination because he did not know what Johnson intended to say or whether Johnson’s testimony would be truthful.

{¶ 144} Johnson claims prejudice from his counsel’s statement because it implied that he intended to commit perjury. However, the record shows that counsel specifically disavowed knowing what Johnson intended to say and therefore represented to the court his reasons for not wishing to have Johnson testify. Johnson is unable to demonstrate ineffective assistance in this instance.

{¶ 145} Johnson also claims that his counsel violated the attorney-client privilege when he stated that he did not know what Johnson intended to say, but fads to cite authority for that proposition and gives no explanation of how the statement violated the privilege or amounted to ineffective assistance of counsel.

{¶ 146} Sixth, Johnson contends that his counsel should have objected to an allegedly erroneous jury instruction defining “purposely” for the two aggravated-murder charges and the rape charge. The trial court’s instruction included both the specific-intention portion of the definition of purpose and the gist-of-the-offense portion of the definition from R.C. 2901.22(A). As we discuss in connection with his 12th proposition of law, however, no prejudice resulted from this instruction, because the jury found that Johnson had killed Daniel with prior calculation and design, and the jury therefore necessarily found that he had acted with specific intent. As for the rape charge, “the act itself is all that must be intended.” State v. Wilkins (1980), 64 Ohio St.2d 382, 386, 18 O.O.3d 528, 415 N.E.2d 303. No prejudicial error flowed from counsel’s failure to object to the instruction.

{¶ 147} Johnson also argues that counsel should have sought an instruction on the capital specification, the appropriate findings the jurors were to make, and an instruction defining the term “while.” As we discussed in the 15th proposition of law, the court did define the term “while.” For the remainder of the alleged errors, Johnson does not set forth what specific instructions counsel should have requested or how they caused him prejudice in light of the evidence against him. Our review does not reveal any ineffective assistance of counsel in this regard.

D. Competency Hearing

{¶ 148} Johnson contends that when the trial court ordered a competency hearing after the guilt phase, defense counsel should have requested the appointment of a defense psychiatrist, pursuant to Ake v. Oklahoma (1985), 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53. That failure, he claims, resulted in his inability to present evidence at that competency hearing.

{¶ 149} Johnson’s position is untenable for two reasons. First, though we agree with Johnson that Ake “requires that a State provide access to a psychiatrist’s assistance” on the issue of his competence, id., 470 U.S. at 74, 105 S.Ct. 1087, 84 L.Ed.2d 53, Ake did not entitle Johnson to a psychiatrist of his choice. Id. at 83, 105 S.Ct. 1087, 84 L.Ed.2d 53. The trial court directed the Forensic Diagnostic Center to evaluate Johnson’s competence, and a psychologist from that facility found Johnson to be competent.

{¶ 150} Second, the record reveals that defense counsel did request the appointment of a forensic psychologist by motion on October 6, 2003, and, in response to that motion, the court appointed Dr. Richard E. Jackson on October 20, 2003, more than six months before the competency hearing occurred. Because Johnson alleges nothing regarding Dr. Jackson’s competence, and because Johnson stated on the record that he did not want to undergo the court-ordered competency evaluation at the close of the guilt phase, his defense counsel committed no error with regard to Johnson’s rights under Ake. Therefore, the clai