State v. Tench

• Decision Date: 26 December 2018
• Docket Number: No. 2016-0899,2016-0899
• Citation: 123 N.E.3d 955,156 Ohio St.3d 85,2018 Ohio 5205
• Parties: The STATE of Ohio, Appellee, v. TENCH, Appellant.
• Court: Ohio Supreme Court

156 Ohio St.3d 85

123 N.E.3d 955

2018 Ohio 5205

The STATE of Ohio, Appellee,

v.TENCH, Appellant.

No. 2016-0899

Supreme Court of Ohio.

Submitted July 31, 2018

Decided December 26, 2018

S. Forrest Thompson, Medina County Prosecuting Attorney, and Vincent V. Vigluicci, Assistant Prosecuting Attorney, for appellee.

Nathan A. Ray and George C. Pappas, Akron, for appellant.

DeGenaro, J.{¶ 1} Appellant, James D. Tench ("Tench"), murdered his mother, Mary Tench, during the night of November 11 or early morning of November 12, 2013, by means of multiple blows to her head and body with a blunt object. A jury found Tench guilty of aggravated murder with three death specifications (and of other offenses), and he was sentenced to death. Tench appeals as of right from his convictions and death sentence. For the reasons set forth below, we dismiss his conviction for aggravated robbery and the felony-murder specifications that are predicated on aggravated robbery, and we affirm the judgment of the trial court in all other respects, including the sentence of death.

I. Facts and Procedural History

{¶ 2} Tench and his mother lived at 758 Camden Lane, Brunswick. Mary worked as a nurse's assistant at Ennis Court, a combined assisted-living facility and nursing home in Lakewood. Tench worked at an Old Carolina Barbecue restaurant in Strongsville beginning in January 2013, eventually becoming the assistant general manager. In September 2013, he transferred to another Old Carolina Barbecue restaurant, in Fairlawn.

{¶ 3} In June or July of 2013, Tench began dating Christina Kyker. He told her he earned $15 per hour at the restaurant, although in fact his salary was $11 per hour. Nevertheless, he gave her expensive gifts, including jewelry, and never seemed short of money. Between July and September 2013, Tench purchased—but never paid for—$1,355.70 worth of jewelry on a credit card he had fraudulently obtained the previous year with the Social Security number of his recently deceased father.

{¶ 4} Tench owned a Ford F-150 pickup; in the fall of 2013, to economize on fuel, he bought a small Hyundai but kept the truck. His mother drove a silver Ford Escape SUV.

{¶ 5} One day during the summer of 2013, one of the Tenches' neighbors, Noreta Dean, saw Tench leave the house, shout, "Fuck you, bitch," and then get into his truck and drive off at high speed. Mary was in the garage at the time; no one else appeared to be at the Tench residence.

{¶ 6} Mary had a Discover credit card that allowed her to write cash-advance checks. On August 24, 2013, Tench wrote a $300 Discover check to himself on his mother's account and deposited it in his own bank account. Tench later admitted on the witness stand that he had not had permission to do this.

{¶ 7} In August 2013, Mary made a fraud report to Discover Financial Services, stating that her son may have engaged in unauthorized transactions involving her Discover checks. However, after the company issued her a new account number, she withdrew the claim.

{¶ 8} In October, Tench's thefts accelerated. Between October 6 and 18, he wrote five checks to himself on Mary's First Merit checking account, forged her signature to each, and deposited them in his own bank account. The forged checks totaled $1,150. On October 31, he forged a second Discover check in the amount of $900 and deposited that in his account.

{¶ 9} Meanwhile, Tench's relationship with Mary became increasingly tense. One day in October, Christina Kyker was having breakfast with Tench and his mother at their residence. Mary told her that Tench had been using Mary's credit cards to buy Kyker things. According to Kyker, Mary started taking out envelopes as she discussed the matter and Tench kept grabbing the envelopes and telling her to stop. However, Mary continued.

{¶ 10} Finally, Tench grabbed Mary by the arm. Kyker described this action as "sudden," "forceful," and "aggressive." According to Kyker, Mary "froze for a minute and looked scared." Then she rose from the table and walked away crying. Kyker followed Tench upstairs and urged him to apologize to his mother. After calming down, Tench did apologize.

{¶ 11} In mid-October, Tench told an Old Carolina Barbecue employee, Sarah Morgan, about an argument he had had with his mother. During this conversation, Tench said he hated his mother. He spoke in an angry and stern voice, giving Morgan the impression that he meant what he was saying. She reported Tench's comment to his supervisor, Juan Parrilla. Parrilla's understanding from Morgan's description was that Tench had said he hated his mother and wished she were dead. Parrilla summoned Tench into his office and admonished him for saying this. According to Parrilla, Tench laughed and replied, "Well, she might as well be." Around the same time, Tench remarked to Old Carolina Barbecue franchise director Jonathan Casey that his mother was driving him crazy and "he couldn't stay there anymore."

{¶ 12} On October 28, Tench committed an armed robbery of the Old Carolina Barbecue in Strongsville, where he had formerly worked. Wearing a mask and carrying what he later said was a toy gun, he forced two employees into walk-in coolers and forced the manager to give him the code to open the safe. Tench later told Strongsville police that he had deposited the robbery proceeds into his mother's First Merit account.

{¶ 13} On November 1, Mary printed from First Merit's website copies of the five First Merit checks Tench had forged in October; police later found these copies in her bedroom. On a newspaper dated November 1, 2013, she wrote her son's name. She also wrote the numbers, dates, and amounts of the forged checks and added up the total.

{¶ 14} On November 4, Mary made another fraud report to Discover Financial Services. According to Discover's business records, she stated that her son had taken a cash-advance check from her mail (she was referring to the check that Tench forged on October 31) and that she intended to file a police report. Discover sent a confidential e-mail to Mary the next day, but that e-mail was deleted by someone using Tench's cell phone.

{¶ 15} On November 7, Tench forged another check on Mary's First Merit account in the amount of $100.

{¶ 16} The record of this case contains a handwritten document dated November 8, 2013, which was referred to at trial as "the promissory note." The note reads: "I James David Tench intend on paying Mary Tench a minimum of $50.00 every paycheck. Starting 11-15-13." It is signed by Tench. A handwriting expert testified at trial that the phrase "Starting 11-15-13" was written by Mary and the rest of the note was written by Tench.

{¶ 17} On November 9, Tench went to Home Depot. There he bought two rolls of Nashua No. 394 duct tape, a pair of gloves, a tarpaulin, a bucket, and a set of ratchet straps. He then went to Huntington National Bank, where he had opened an account the week before, with the $100 check he had forged on November 7. He took $50 in cash and deposited the remaining $50 into his account.

A. The Events of November 11 and Morning of November 12, 2013

{¶ 18} On November 11, Mary worked the 3:00-to-11:00-p.m. shift at Ennis Court. She left for work around 2:00 p.m. A few minutes later, someone used the computer in Mary's bedroom to look at aerial images of Brunswick, including the area near the industrial park where Mary's body would later be found.

{¶ 19} At 3:00 p.m., Christina Kyker left work; Tench was waiting for her there. After driving separately to Kyker's home in Euclid, they went to a shopping mall in Mentor, where they spent a few hours. Between 7:00 and 7:30 p.m., they went back to Euclid and watched television with Kyker's family. Kyker, her parents, and her brother all noticed that Tench was unusually quiet and something seemed to be bothering him.

{¶ 20} At approximately 9:30 p.m., Tench left. Snow was expected, and he expressed concern about the roads. Still, Tench, who visited Kyker frequently, had never left her house so early before, even in bad weather. Usually he stayed until midnight or later and sometimes slept overnight on the couch.

{¶ 21} Mary clocked out of work at 11:13 p.m. Cell-phone records introduced at trial show that Tench called Mary three times after 11:00 p.m., finally reaching her at 11:15. The records show that Mary's phone was used to call Tench's phone at 11:51 p.m.; Tench did not answer. Using the cell-phone records, FBI special agent Jacob Kunkle (an expert in cell-phone-record analysis) later determined that the 11:51 call from Mary's phone bounced off a cell tower near her house, suggesting that she was back in Brunswick and possibly home by 11:51.

{¶ 22} At 1:22 a.m., Tench phoned Kyker, who was asleep and did not answer. He then phoned her brother. Kyker's brother woke her up to take the call. According to Kyker, Tench was "freaking out" because his mother had not come home yet. Tench told her that he had driven to Mary's workplace twice to look for her, once in his car and once in his truck. Tench told Kyker that he was going to try calling his mother's workplace again. In fact, he had never called his mother's workplace, nor did he do so at any time that night. After the call, Tench and Kyker texted back and forth until about 1:50 a.m., and he called her again at 2:00 a.m.

{¶ 23} Between 1:45 and 2:00 a.m., Timothy Slowey, who lived near the Tenches and could see their house from his front yard, was smoking a cigarette outside his house before leaving for work. He testified that he saw Tench's truck pull out of the garage. This was unusual, he said, because Mary's SUV was "always" in the garage; Tench habitually parked in the driveway, and Slowey had never seen his truck in the garage. Slowey did not see Mary's vehicle anywhere that morning.

{¶ 24} Tench's cell-phone records show that between 2:02 and 2:14 a.m., Tench made three calls to Mary's cell phone. These were his first attempts to call his mother since their last conversation at 11:15 p.m.

{¶ 25} At 2:21...