Ohio courts maintained the authority to try a suspected killer and his death sentence stands even if the evidence could not determine whether his victim was killed in Ohio or Indiana, the Ohio Supreme Court ruled today.

In a 5-2 vote, the Supreme Court rejected Jeffrey Wogenstahl’s claim that R.C. 2901.11(D), an Ohio law subjecting him to a trial in Hamilton County, was unconstitutional. The Court upheld Wogenstahl’s death sentence for the 1991 murder and kidnapping of 10-year-old Amber Garrett of Harrison, Ohio, whose stabbed and beaten body was found just across the state border in Bright, Indiana.

The majority opinion written by Justice Sharon L. Kennedy stated that although the evidence does not support the prosecution’s theory that Amber was murdered in Wogenstahl’s Ohio apartment, the evidence also does not prove that the girl was murdered in Indiana. A witness saw Amber alive as Wogenstahl drove past her heading into Indiana. However, Justice Kennedy wrote, the sighting does not mean Amber was unharmed at that time, nor does it mean that the fatal blow wasn’t suffered in Ohio, allowing Ohio courts to try Wogenstahl.

In a dissenting opinion, Chief Justice Maureen O’Connor wrote that based on the timeline of events established by the prosecution it can be reasonably determined the girl was murdered in Indiana and therefore Ohio courts could not exercise jurisdiction  to try Wogenstahl for aggravated murder. The chief justice noted that if Wogenstahl’s conviction and death sentence were vacated, his Ohio convictions for the other crimes would stand, and Indiana, which also has the death penalty, is not barred from trying Wogenstahl for murder.

Although she joined Justice Kennedy’s opinion, Justice Judith L. French concurred separately, writing that the constitutionality of the Ohio law is questionable and the parties should have been asked to argue the legality of the statute  before ruling on Wogenstahl’s death sentence.

Court Rejects Second Appeal
In 1993, a Hamilton County jury found Wogenstahl guilty of aggravated murder, kidnapping, and aggravated burglary. He was sentenced to death. The First District Court of Appeals in 1994 and the Ohio Supreme Court in 1996 upheld his convictions and death sentence.

After an execution date was set, Wogenstahl filed a motion in 2015 to stay his execution and reopen his appeal, alleging the trial court lacked jurisdiction to try him. The Supreme Court agreed to hear his appeal and noted that in the original trial, county prosecutors took the position that the kidnapping occurred in Ohio and it was unnecessary that the state prove the murder happened here.

The question whether the trial court had jurisdiction to hear the case was not raised, and now Wogenstahl argues that if the court did not have jurisdiction, his constitutional rights to a fair trial and due process were violated.

Victim Lived in Border Town
Amber Garrett lived in Harrison with her mother, Peggy, and four siblings. On Nov. 23, 1991, Peggy asked Amber’s older brother, 16-year-old Eric, to babysit the younger children while she went to meet a friend at a nearby bar. Later that night, Peggy and her friend met up with Wogenstahl, who Peggy had known for about six weeks and was at her home early in the afternoon asking about her plans for the evening.

Wogenstahl and the two women smoked marijuana together in his car, and the three stayed at a bar until about 3 a.m. when the women went to a Waffle House. Wogenstahl went to the Garrett’s apartment and told Eric that Peggy needed him to meet her at a friend’s house about three blocks away. Eric left the home, locked the door, and went with Wogenstahl, who dropped him off about a block from the address and promised to wait for Eric. Instead, Eric discovered Peggy had not been at the address all night and Wogenstahl had driven off. Eric walked home to find the apartment door closed, but unlocked, and discovered Amber was not in her room.

Harrison sits on the Ohio-Indiana border. The state border runs down the middle of State Street and is the dividing line with West Harrison, Indiana. State Street curves and crosses fully into Indiana, where it becomes Jamison Road and leads to the town of Bright. Amber’s body was found along Jamison Road, about four miles from Harrison.

Witness Report Seeing Wogenstahl and His Car
At 3:15 a.m., an employee of the United Dairy Farmers store on State Street in Harrison saw a car drive past toward Bright. Headlights from another vehicle allowed her a view into the car, where she saw a man driving and a young girl in the front seat. The employee testified it appeared that the girl was getting up, stretching, then laying her head on the car door to go back to sleep.

A resident of Jamison Road who got up to use the bathroom saw a call pull off to the side near his house for about five minutes. He testified he was partially asleep and not sure of the time. Three motorists driving from Bright toward Harrison around 3:40 a.m. testified they saw a car parked on the side of Jamison Road, and one said he saw a man standing by the car and another saw a man standing near the car’s open trunk. Around 3:45 or 4 a.m., the dairy store employee saw the car again driving from Bright. She said the driver parked at a self-serve car wash across the street, then came into the dairy store alone to buy cigarettes. She observed what appeared to be blood and dirt under his fingernails.

The dairy store employee and two motorists later identified the driver as Wogenstahl, and all of them identified the car as the one he was driving that night. When Peggy reported Amber missing, authorities searched for three days before finding her body in an overgrown area not far from where the witnesses spotted the car on Jamison Road.

The cause of death was multiple stab wounds and blunt trauma to the head. The deputy coroner testified that the stab wounds alone would have been fatal, as would the head trauma alone. The head wounds were consistent with having been caused by a car jack handle, and the police found a jack with a missing handle in Wogenstahl’s car. Because Amber’s feet were clean and unscratched, while the rest of her body had thorn scratches, the coroner concluded Amber had been carried to the area where her body was found.

At the trial, prosecutors for the state did not offer a theory as to where Amber had been murdered, and in his closing arguments the prosecutor described Amber dying under the juniper tree where she was found, but did not state that was where the murder occurred.

Law Allowing Ohio Jurisdiction Challenged
Wogenstahl challenges the state’s use of R.C. 2901.11 to try him for aggravated murder in Ohio. At the time of the murder and until 2005 that statute read:

“(A) A person is subject to criminal prosecution and punishment in this state if any of the following occur:
(1) The person commits an offense under the laws of this state, any element of which takes place in this state.
(B) In homicide, the element referred to in division (A)(1) of this section is either the act that causes death, or the physical contact that causes death, or the death itself. If any part of the body of a homicide victim is found in this state, the death is presumed to have occurred in this state.”

The opinion noted that the Supreme Court addressed the law in its 2004 State v. Yarbrough decision in which Terrell Yarbrough kidnapped two college students in Steubenville, Ohio, drove them across the state line into Pennsylvania, and shot them to death. The Court reversed Yarbrough’s aggravated murder conviction, finding that R.C. 2901.11 did not apply because there was no dispute the fatal shots occurred in Pennsylvania. The Court upheld all the other Ohio charges against Yarbrough.

R.C. 2901.11(D), which is the same now as it was when Amber was killed, grants an Ohio trial court jurisdiction if the evidence establishes that the murder occurred in Ohio or if the evidence is insufficient to determine with confidence in which state the murder occurred.

The Court’s review of the trial evidence and arguments revealed neither side proved its theory about where the murder occurred.

Conflicting Arguments, About Murder Location
In its attempt to uphold Wogenstahl’s conviction, the state argued that Wogenstahl’s apartment was the crime scene and his bathroom was “littered with blood smears and stains.” The opinion stated that investigators recovered two towels with small bloodstains that Wogenstahl argued were used to clean up a cat that knocked out a tooth when it fell from the shower-curtain rod. Testing on one towel found the blood was human, but not from Amber, and the other towel was inconclusive as to whether it contained human or animal blood.

The state also relied on testimony from Bruce Wheeler, a jailhouse informant, who alleged Wogenstahl confessed to him. Wheeler’s account places the scene of the murder in Wogenstahl’s car, and alleges he killed Amber after she fought off his attempts to rape her. His account conflicts with much of the other evidence presented at the trial, but the state did assert that a blood drop on the handle inside of Wogenstahl’s car gave Ohio jurisdiction. The opinion noted investigators could not conclude that the drop was Amber’s blood and the stain could have been up to 10 years old. Also, the Court pointed out the blood does not prove in which state the vehicle was situated when the murder happened. Because Amber had been stabbed 11 times, the Court found the single blood drop did not support a claim that the murder happened at the apartment.

“Moreover, the timeline established by the evidence further erodes the state’s theory that Wogenstahl took Amber back to his apartment after abducting her. Even viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could not have concluded that Amber was killed in Wogenstahl’s apartment,” the opinion stated.

No Proof of Indiana Murder
Wogenstahl, who did not admit to killing Amber, pointed to the dairy store employee’s statement that she saw amber Alive at 3:15 a.m. in a car headed further into Indiana, and at no point south of the store does the Indiana side of State Street veer back into Ohio before becoming Jamison Road, which is entirely in Indiana.

Justice Kennedy identified two problems with his argument. First, there are side streets to State Street that do lead into Ohio, and Wogenstahl could have turned onto one of them before returning to Indiana. More important, she wrote, the Ohio law would allow jurisdiction “if the fatal act occurred in Ohio, even if death ultimately occurred in another jurisdiction.”

“The UDF employee’s testimony may establish that Amber was alive at 3:15, but it does not show that she was unharmed. The fatal injuries may have been inflicted earlier. Therefore, Wogenstahl has not shown that Ohio does not have jurisdiction,” the opinion stated.

Wogenstahl also argued that in the Court’s 1996 opinion affirming his death sentence the Court found the murder occurred in Indiana because the opinion stated: “Appellant physically restrained Amber and bound her arms in the clothing she was wearing. A knife was held to Amber’s neck. She was transported in appellant’s vehicle across the Ohio-Indiana border.”

The Court noted the sentence in isolation appears to suggest Amber was alive when the pair crossed the state line, but the next sentence stated: “At some point, appellant killed Amber when he realized that he could not return her to the apartment without being identified as the perpetrator of the aggravated burglary and/or kidnapping offenses.” The Court wrote that it took no position on the sequence of events in its earlier opinion.

“We find that it cannot be determined whether Amber was murdered in Ohio or Indiana. Therefore, under R.C. 2901.11(D), the offense is conclusively presumed to have taken place in Ohio,” the Court concluded.

Justices Terrence O’Donnell and French joined the opinion. Judge Donna J. Carr, sitting on assignment for Justice Patrick F. Fischer, and Judge Eilleen T. Gallagher, sitting for Justice R. Patrick DeWine, also joined Justice Kennedy’s opinion.

Concurrence Questions Law
Justice French wrote that there is a reasonable question as to whether R.C. 2901.11(D) is constitutional, noting that it may violate the due process clause of the U.S. Constitution’s Fourteenth Amendment. She asserted that U.S. Supreme Court cases have found a law that relieves the state of proving a key element of an offense or switches the burden of proof to the suspect violates the due process clause.

Justice French noted that in the Ohio Supreme Court’s 2012 State v. Hampton decision the Court held that venue, where the crime occurred, is an element of the crime that must be proved beyond a reasonable doubt.

“The foregoing should not be read to suggest any final conclusion as to the constitutionality of the statute, only that the issue is worthy of consideration. And because counsel for the defendant failed to raise the issue, I believe that the court should have asked the parties to brief the constitutionality of R.C. 2901.11(D),” she wrote.

By presuming at this time that the law is constitutional, she wrote she agrees with the majority’s opinion.

Not Proven Beyond a Reasonable Doubt that Murder Occurred in Ohio
Chief Justice O’Connor wrote that the case bears a “remarkable resemblance” to Yarbrough where the Court unanimously ruled the murder must be tried in another state.

“As we stated in Yarbrough, one expects diligence by those participating in the prosecution of a defendant subject to the ultimate penalty of death; failing to ensure that this state has jurisdiction in such a case is a tremendous error and is a disservice to the citizens of Ohio and the victims of violent crime,” she wrote.

Based on the timeline of events established by the testimony of the witnesses, the chief justice wrote that it could reasonably be determined that Amber was murdered in Indiana.

“Rather than draw the obvious conclusion from the evidence, the majority holds that Ohio had jurisdiction based on the supposition that ‘[t]he fatal injuries may have been inflicted earlier’ than 3:15 a.m., when Amber was seen alive in Wogenstahl’s car in Indiana,” she wrote. “But the evidence does not support this conjecture, and, in fact, the evidence presented at trial does not allow for this possibility.”

She concluded that because Ohio lacked jurisdiction to try Wogenstahl for murder, the aggravated murder conviction is void, the death sentence should be vacated, and he should be tried in Indiana for murder.

Justice William M. O’Neill joined the dissent.

1995-0042. State v. Wogenstahl, Slip Opinion No. 2017-Ohio-6873.

View oral argument video of this case.

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