[Cite as State v. Hall,
2025-Ohio-3199.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
MEIGS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case
No. 22CA12
v. :
JAQUAN HALL, : DECISION AND
JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Kort Gatterdam and Michael B. Rogers, Columbus, Ohio, for
appellant.1
James Keith Stanley, Meigs County Prosecuting Attorney, Pomeroy,
Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-29-25
ABELE, J.
{¶1} This is an appeal from a Meigs County Common Pleas
Court judgment of conviction and sentence. A jury found Jaquan
Hall, defendant below and appellant herein, guilty of the
following offenses: (1) aggravated murder, in violation of R.C.
2903.01(A), with a firearm specification; (2) murder, in
Different counsel represented appellant during the trial
1
court proceedings.
MEIGS, 22CA12
2
violation of R.C. 2903.02(A), with a firearm specification; (3)
complicity to aggravated murder or murder, in violation of R.C.
2923.03(A)(2); and (4) conspiracy, in violation of R.C.
2923.01(A)(2). The trial court merged the offenses and
sentenced appellant to a mandatory three-year prison term for
the firearm specification and to life without parole for the
aggravated-murder offense.
{¶2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN REFUSING TO CHANGE
VENUE. SAID ERROR DEPRIVED APPELLANT OF HIS
STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A
FAIR AND IMPARTIAL JURY AND DUE PROCESS OF
LAW.”
SECOND ASSIGNMENT OF ERROR:
“APPELLANT WAS DEPRIVED OF HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR AND
IMPARTIAL JURY UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS WHEN THE ONLY AFRICAN-AMERICAN JUROR WILLING TO SIT WAS IMPROPERLY
REMOVED FOR CAUSE.”
THIRD ASSIGNMENT OF ERROR:
MEIGS, 22CA12
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“THE TRIAL COURT DEPRIVED APPELLANT OF HIS
RIGHT TO DUE PROCESS AND A FAIR TRIAL UNDER
THE OHIO AND UNITED STATES CONSTITUTIONS
WHEN THE COURT ALLOWED THE MOTHER OF THE
VICTIM TO WEAR A ‘JUSTICE FOR [K.R.]’ T-
SHIRT DURING INDIVIDUAL VOIR DIRE IN
CHAMBERS.”
FOURTH ASSIGNMENT OF ERROR:
“APPELLANT’S RIGHTS GUARANTEED BY THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND MIRANDA V. ARIZONA,
384 U.S. 436 (1966) WERE VIOLATED WHEN
EVIDENCE OF APPELLANT’S POST-MIRANDA SILENCE
WAS ADMITTED INTO EVIDENCE BY THE STATE.”
FIFTH ASSIGNMENT OF ERROR:
“THE PROSECUTION PRESENTED IMPROPER VICTIM-IMPACT EVIDENCE THAT INFLAMED THE JURY AND
AFFECTED THE OUTCOME OF APPELLANT’S TRIAL
CONTRARY TO APPELLANT’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A
FAIR TRIAL.”
SIXTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN IT
ENTERED A JUDGMENT OF CONVICTION BASED ON
INSUFFICIENT EVIDENCE AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION
MEIGS, 22CA12
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OF APPELLANT’S RIGHTS UNDER THE UNITED
STATES AND OHIO CONSTITUTIONS.”
SEVENTH ASSIGNMENT OF ERROR:
“APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF
APPELLANT’S RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTION 10 AND 16, ARTICLE
I OF THE OHIO CONSTITUTION.”
EIGHTH ASSIGNMENT OF ERROR:
“PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT
OF HIS RIGHTS TO DUE PROCESS AND TO TRIAL BY
AN IMPARTIAL JURY CONTRARY TO THE FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND CORRESPONDING
PROVISIONS OF THE OHIO CONSTITUTION.”
{¶3} Appellant also raises the following supplemental
assignment of error:
“APPELLANT’S CONVICTION FOR CONSPIRACY MUST
BE REVERSED FOR FAILING TO ALLEGE AN OVERT
ACT IN LIGHT OF THIS COURT’S HOLDING IN
STATE V. NELSON.”
BACKGROUND
{¶4} On April 4, 2021, around 4:45 a.m., Dave Berry awoke
to the sounds of shouting and two shotgun blasts. He
immediately called 9-1-1 to report the shotgun blasts and to
MEIGS, 22CA12
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request law enforcement officers to respond to investigate.
Berry then went outside and heard his neighbor, K.R., state that
he needed to go to the hospital. Berry found K.R. lying in a
fetal position on the ground outside of Berry’s house, and K.R.
was saturated with blood. Berry observed that K.R. had two
shotgun blasts to the back of his shoulders. Berry returned
inside to call 9-1-1 and after the 9-1-1 dispatcher assured
Berry that help was on the way, Berry returned to K.R. to find
out what had happened. When Berry asked K.R. who had shot him,
K.R. responded he did not know him, but identified the person as
“some black guy.” Berry remained with K.R. until emergency
responders arrived.
{¶5} When the emergency responders arrived, medic Steven
Vincent noticed two fist-sized holes across K.R.’s back. The
medics placed K.R. in the ambulance and attempted life-saving
measures. At the same time, law enforcement officers began to
search the scene for clues to identify the person or persons
responsible for K.R.’s death.
MEIGS, 22CA12
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{¶6} Before the emergency squad had departed, Meigs County
Sheriff’s Sergeant Donald Mohler spotted in the roadway two
shotgun shells and a pair of black shorts. To prevent these
items from being damaged from the emergency squad’s vehicle,
Sergeant Mohler removed these items from the roadway and marked
the location of each item with a pen. After the emergency squad
left, he returned each item to its original location for
photographing.
{¶7} Tragically, en route to the hospital K.R. started to
succumb to the mortal wounds that had been inflicted, and
medical personnel were unable to save K.R.’s life. An autopsy
later revealed that K.R. had sustained a shotgun wound to the
back of his head, two shotgun wounds to his upper back, a
gunshot wound to his lower back, a gunshot wound to his left
buttock, and two gunshot wounds to his right thigh.
{¶8} As officers continued to search the scene, Meigs
County Sheriff’s Deputy Scott Spiker noticed a Crown Royal bag
sitting on his cruiser’s hood. The bag contained an empty box
MEIGS, 22CA12
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of 12-gauge shotgun shells. Neither Deputy Spiker nor any of
the other officers knew how the bag ended up on the cruiser.
{¶9} The investigation continued, and on June 17, 2021, a
Meigs County Grand Jury returned an indictment that charged
appellant with (1) aggravated murder, in violation of R.C.
2903.01(A); (2) murder, in violation of R.C. 2903.02(A); (3)
complicity to aggravated murder or murder, in violation of R.C.
2923.03(A)(2); and (4) conspiracy, in violation of R.C.
2923.01(A)(2). The indictment also included firearm
specifications for the aggravated-murder and murder offenses.
Appellant entered a not guilty plea to each count.
{¶10} Officers later identified two other individuals
involved in K.R.’s death: Keontae Nelson and Richard Walker.
Both were indicted. Walker eventually agreed to plead guilty in
exchange for testifying truthfully at Nelson’s and appellant’s
trials.
Jury Selection
{¶11} On September 19, 2022, the jury-selection process
began. On the first day of individual voir dire, after the
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parties had questioned the third prospective juror, appellant’s
counsel observed that the victim’s parents had been present
during individual voir dire and noticed that the victim’s
mother’s “Justice for [K.R.]” shirt. He stated that the shirt
was inappropriate and prospective jurors should not be permitted
to see the mother’s shirt. The prosecutor, however, did not
believe the shirt inappropriate. The trial court agreed.
However, the court later reconsidered and instructed the parents
not to wear the shirts inside the courtroom.
{¶12} During voir dire, many of the questions concerned
prospective jurors’ exposure to pretrial publicity. Most
prospective jurors had heard about K.R.’s death. A few,
however, had not heard anything at all about K.R. or his death,
until they entered the courtroom to report for jury duty. For
example, one prospective juror stated that she did not “know
anything about any of it” and did not know that a homicide had
happened until the day that she reported for jury duty. Another
prospective juror likewise stated that she did not know anything
about the case. The trial court excused any prospective juror
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who indicated that pretrial publicity would influence the
juror’s ability to be fair and impartial.
{¶13} Additional questions involved prospective jurors’
knowledge of community sentiment as a result of exposure to
signs, bumper stickers, and shirts that stated, “Justice for
[K.R.].” Many prospective jurors had seen the signs placed
throughout the community. Some reactions to the signs included
uncertainty as to the meaning of the signs. Other prospective
jurors thought that the signs displayed disdain for law
enforcement officers allegedly dragging their feet, while others
thought that the signs intended to show support for the victim’s
family. In any event, the court excused any prospective juror
who indicated that the signs or community sentiment would
influence the juror’s ability to be fair and impartial.
{¶14} Some race-based questions also arose. Appellant’s
counsel noted that appellant, who is black, likely would be
judged before an all-white jury. One prospective juror
questioned whether appellant could receive a fair trial in Meigs
County. This prospective juror further stated, however, that he
MEIGS, 22CA12
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is not racist and that appellant could receive a fair trial if
all 12 jurors were “just like [him].” After the parties
finished questioning this prospective juror, appellant asked the
court to change the venue for the trial. The trial court denied
the motion as premature.
{¶15} Appellant later again asked the court to change the
venue because none of the prospective jurors questioned up to
that point had been a “person of color.” He expressed concerns
regarding the lack of any African Americans who had been
summoned and the familiarity among jurors, the prosecution, and
court staff. He asked the court to move the case “to another
county where there would be more diversity, where there would be
a large population, where people wouldn’t know one another.” He
also stated that the victim had a reputation in the community as
a “local football hero” and his family was well-known.
Appellant additionally asserted that the “Justice for [K.R.]”
signs placed throughout the community were designed to influence
the jury pool and to ensure a conviction. He stated that, given
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these circumstances, the court would not be able to provide
appellant with a fair trial.
{¶16} The trial court denied appellant’s motion to change
venue. The court stated that, in small counties, familiarity
among community members is common and does not necessitate
changing venue. The court thus continued the voir dire process
to attempt to seat a fair and impartial jury.
{¶17} One prospective juror, L.G.,2 is an African American
whose son had been friends with the victim. L.G. indicated that
the victim had been to her home “quite a bit.” She explained,
however, that she frequently worked and never had been home when
the victim was there.
{¶18} L.G. also stated that she had seen appellant in the
past. She did not recall when she saw him, but she had been
2 We note that the trial court had informed the prospective
jurors that answers provided during individual voir dire would
be kept private. Thus, although appellant’s brief freely uses
jurors’ actual names, this opinion uses initials or abbreviated
last names when the first initial is unknown (the trial court
record does not contain a list that refers to prospective jurors
by numbers).
MEIGS, 22CA12
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with some friends when they stopped to talk to another group of
people. Appellant was among this group of people.
{¶19} The prosecutor asked the court to excuse L.G. based
upon her connection to the victim. Appellant’s counsel objected
and noted that L.G. had been “the only African American juror”
who has been through voir dire. Appellant’s counsel pointed out
that, even though the victim had been in L.G.’s home, she had
never met him. Counsel further observed that L.G. indicated
that she could be fair and impartial.
{¶20} The prosecutor countered that the court had dismissed
prospective jurors who had less of a connection to the victim or
his family.
{¶21} The court decided to excuse L.G. and explained its
rationale as follows:
And I’m as concerned as anything about her brother,
who, you know, if her brother is. . .she probably has
very strong feelings about the judicial system because
of her brother. Uh, as well as her obvious connection
with people that, um, have relationships . . . that had
relationships with [the victim] and/or with Mr. Hall,
uh, prior to [the victim]’s death and that’s as close as
we’ve ever had with, uh, most of these people have just
been connected to, uh, work with either, uh, the victim’s
MEIGS, 22CA12
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mother or that work with the victim’s father and we have
dismissed all of those people for cause. So, I’d like
to keep her, but I think she’s just too close to too
many situations.
{¶22} After questioning all of the remaining prospective
jurors, the State exercised one of its peremptory challenges,
and appellant exercised three of his four peremptory challenges.
The parties then had selected a panel of 12 jurors.
{¶23} The parties next questioned the first four alternates.
Appellant exercised a peremptory challenge to excuse one of the
four alternates. The court called the next alternate juror, and
both parties waived any challenges. Having selected 12 jurors
and 4 alternate jurors, the parties proceeded to give opening
statements.
The Prosecution’s Opening Statement
{¶24} The prosecutor informed the jury that the State
expected the evidence would show that early in the
investigation, officers decided to contact area hospitals to ask
whether, on the date of the victim’s death, anyone had presented
with a gunshot wound. Officers eventually discovered that a few
MEIGS, 22CA12
14
hours after the victim had been shot, a person had presented to
a Charleston, West Virginia hospital with a gunshot wound to the
upper arm. The injured person checked in to the hospital using
the name Johnson Ball and indicated that he was from New York.
This individual reported that he had been shot while attending a
party somewhere in Charleston.
{¶25} Hospital staff contacted the Charleston Police
Department pursuant to standard operating procedures when a
person presents with a gunshot wound. At the time, Charleston
police were unaware that a murder had occurred in Meigs County.
When officers arrived to speak with the injured person, they
attempted to verify his identity but were unable to verify
Johnson Ball’s name and date of birth. The officers advised the
injured person that they could not verify his identity, and this
person eventually admitted that his name was Jaquan Hall.
Appellant informed officers that he did not wish to share any
additional information about the shooting and did not want to
cooperate with them. Appellant advised officers that he was a
victim.
MEIGS, 22CA12
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Motion for Mistrial
{¶26} After the State finished its opening statement,
appellant asked the court to declare a mistrial. Appellant
asserted that during the State’s opening statement, the
prosecutor “told the jury that [appellant] exercised his right
to remain silent and to not cooperate with the police while he
was at the hospital in Charleston, West Virginia.” Appellant
argued that the State may not comment on a defendant’s decision
to exercise the right to remain silent or a defendant’s choice
not to speak to police. He claimed that the prosecutor’s
statement was an improper comment on his right to remain silent.
Appellant contended that the prosecutor’s comments were so
prejudicial that the court should declare a mistrial.
{¶27} The prosecutor, however, denied that he had improperly
commented on appellant’s right to remain silent. The prosecutor
asserted that, when appellant was in the Charleston hospital,
the officers had not been questioning him in connection with any
homicide, but attempted to investigate appellant’s statement
that he had been shot. The prosecutor thus stated that the
MEIGS, 22CA12
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officers were not questioning appellant as a suspect, but as an
alleged victim of a shooting. The prosecutor claimed that
nothing prohibited “the State from indicating that [appellant]
failed to cooperate or refused to cooperate with a case in which
he was the alleged victim.” The prosecutor argued that an
alleged victim’s refusal to speak with officers is not an
improper comment on an accused’s right to remain silent.
{¶28} Appellant did not agree that the statement related
only to the officers’ investigation into whether appellant had
been a victim. He stated that the prosecutor presented the
evidence in relation to the investigation into the victim’s
murder. He further stated that if the prosecutor did not intend
for the jury to consider appellant’s refusal to cooperate as
evidence of his guilt, then the prosecutor would have not had a
reason to mention it. Appellant’s counsel argued that the State
could not reference any unwillingness to cooperate that
appellant may have displayed to law enforcement, even if it was
as a victim.
MEIGS, 22CA12
17
{¶29} The trial court overruled appellant’s motion for a
mistrial and pointed out that it instructed the jury that
opening statements are not evidence, and further noted that, at
the time appellant advised Charleston police that he did not
wish to cooperate, the officers did not know about the victim’s
murder and had talked to appellant to investigate the gunshot
wound. The court indicated that, after appellant finished his
opening statement, it would instruct the jury that the State
could not use appellant’s silence as evidence of guilt. The
court also cautioned the State to refrain from mentioning
appellant’s lack of cooperation with law enforcement officers.
The court concluded that these solutions remedied appellant’s
concern.
Appellant’s Opening Statement
{¶30} Appellant’s counsel asserted that appellant did not
murder the victim. He stated that appellant and the victim knew
each other and suggested that if appellant had shot the victim,
the victim would have identified appellant as the person who
shot him, rather than stating that “some black guy” shot him.
MEIGS, 22CA12
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Appellant’s counsel indicated that if appellant had been present
at the crime scene, then the victim would have identified
appellant when the neighbor asked the victim who shot him.
{¶31} Appellant’s counsel additionally asked the jury to
question the testimony that they would hear from one of
appellant’s alleged accomplices, Richard Walker.
{¶32} Defense counsel further asserted that the State lacked
sufficient physical evidence to prove that appellant shot the
victim. He agreed that although the State possessed DNA
evidence that placed appellant at the scene, the State did not
have any DNA or fingerprint evidence that would show that
appellant used a weapon to shoot the victim. Defense counsel
argued that appellant’s mere presence was not sufficient
evidence to convict him.
Trial
{¶33} At trial, the State presented evidence that appellant,
Nelson, and Walker drove to the victim’s house with the intent
to murder him. Appellant reportedly was upset with the victim
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for telling law enforcement officers that appellant was selling
marijuana.
{¶34} To support its case, the State introduced, inter alia,
the following testimony and evidence. Officers discovered a
pair of shorts at the murder scene, and DNA collected from this
pair of shorts matched appellant’s DNA. Additionally, on the
hood of a patrol cruiser that had been parked at the scene,
officers found a Crown Royal bag that contained shotgun shells.
The bag on the outside had appellant’s and Nelson’s DNA.
{¶35} Officers later learned that on April 4, 2021,
appellant had appeared at a West Virginia hospital with a
gunshot wound. Appellant did not want to cooperate with
officers who inquired about the source of his gunshot wound, but
did tell them that he had been shot while at a party in
Charleston, West Virginia. Officers could not corroborate
appellant’s statement.
{¶36} In August 2021, a bullet that had lodged in
appellant’s arm began to protrude and required appellant to
obtain medical treatment to remove the bullet. Subsequent
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testing indicated that the bullet removed from appellant’s arm
was fired from the same weapon as the one used to shoot the
victim.
{¶37} Other evidence included copies of a letter that
appellant purportedly had written while he was in jail awaiting
trial. In the letter, appellant urged the recipient to tell a
story about the murder that would save appellant from receiving
a life sentence. The letter instructed the recipient to talk to
appellant’s lawyer and tell the lawyer that appellant did not
shoot the victim. One page of the letter also contained a
written phrase that stated, in all capital letters, “burn
notice.”
{¶38} The State additionally presented testimony from
Danielle Runyon, appellant’s ex-girlfriend. Runyon also had an
on-and-off relationship with the victim. After she heard about
the victim’s murder, she called appellant. Runyon was unable to
reach appellant and began to “suspect that he was involved.”
Around 3 p.m. that same day, she finally connected with
appellant, and he acted “like nothing was going on.” Runyon
MEIGS, 22CA12
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told appellant about the victim’s murder, and “he had nothing to
say about it.” Runyon thus thought that appellant might have
been involved in the victim’s murder. She stated that appellant
“would’ve been the first person” that she thought would be
responsible for the murder. Runyon explained that appellant was
aware that she had been “messing around with [the victim].”
{¶39} Richard Walker testified that about a week before the
victim’s death, appellant had been talking about killing the
victim. Appellant believed that the victim had been “telling
on” appellant for selling marijuana.
{¶40} Walker testified that around midnight on April 4,
2021, the night of the murder, he and Nelson rode with appellant
to the victim’s house. Once they arrived at the victim’s house,
appellant parked the car in an empty parking lot across the
street and they retrieved weapons from the trunk. Appellant
carried a 12-gauge shotgun, Nelson carried a .45-caliber Hi-
Point gun, and Walker carried an inoperable pink and black gun.
Armed with these weapons, they walked across the street to the
victim’s house.
MEIGS, 22CA12
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{¶41} When the trio reached the victim’s house, Nelson
knocked on the door, while appellant and Walker stood to the
right side. The victim opened the door, and Nelson asked if he
could use the victim’s phone. The victim stated, “yes, I guess
so.” Appellant then hit the victim “with the butt edge of the
shotgun.” Walker did not recall where appellant hit the victim,
but the hit caused the victim to stumble back. Appellant,
Nelson, and Walker then entered the house.
{¶42} Walker held the victim at gunpoint, and appellant and
Nelson searched the house for marijuana, drugs, and money. The
victim told the group that he did not have “anything.” Still,
appellant and Nelson found the victim’s wallet and took the
money that it contained. They also took the victim’s cell
phone. After they were done, appellant told Nelson, “you know
what to do.” Nelson then shot the victim three to four times.
Nelson also accidentally shot appellant in the arm.
{¶43} After he was shot, the victim fell down the stairs.
Walker and Nelson ran to the car. Walker then heard two loud
gunshots. Appellant returned to the car and “said let’s go[;] I
MEIGS, 22CA12
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got shot.” Walker drove the car back to Charleston. Along the
way, Nelson discarded the victim’s phone and wallet. When they
returned to Charleston, they went to appellant’s uncle’s house
to inform appellant’s uncle that appellant had been shot.
{¶44} After Walker’s testimony, the State rested. Appellant
did not present any evidence in his defense.
{¶45} Subsequently, the jury found appellant guilty of all
offenses as charged in the indictment. The parties agreed that
the offenses merged for sentencing purposes, and the court
sentenced appellant to a mandatory three-year prison term for
the firearm specification and to life without parole for the
aggravated murder offense. This appeal followed.
I
Fair Trial Issues
{¶46} In his first three assignments of error, appellant
assigns various errors that allegedly deprived him of a fair
trial. In his first and second assignments of error, appellant
charges that the trial court deprived him of due process and his
right to a fair and impartial jury by (1) failing to transfer
MEIGS, 22CA12
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the venue of the trial and (2) dismissing for cause the only
African American prospective juror. In his third assignment of
error, appellant contends that the trial court deprived him of
due process and a fair trial by allowing the victim’s mother to
wear a “Justice for [K.R.]” shirt during the first day of
individual voir dire. The same constitutional principles guide
our review of these three assignments of error. We thus first
set forth those principles.
A
Constitutional Principles
{¶47} The Fifth Amendment to the United States Constitution
provides that no person shall “be deprived of life, liberty, or
property, without due process of law.” U.S. Const., amend. V.
“‘A fair trial in a fair tribunal is a basic requirement of due
process,’” Irvin v. Dowd, 366 U.S. 717, 722 (1961), quoting In
re Murchison,
349 U.S. 133, 136 (1955), as well as “a
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fundamental liberty secured by the Fourteenth Amendment,”3
Estelle v. Williams, 425 U.S. 501, 503 (1976). “Fairness . . .
requires an absence of actual bias in the trial of cases.” In
re Murchison,
349 U.S. 133, 136 (1955).
{¶48} Additionally, the Sixth Amendment to the United States
Constitution guarantees criminal defendants the right to a trial
“by an impartial jury of the State and district wherein the
crime shall have been committed.”4 U.S. Const., amend. VI;
accord Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551 (1976).
At its core, the right to a trial by an impartial jury
“guarantees to the criminally accused a fair trial by a panel of
impartial, ‘indifferent’ jurors.” Irvin,
366 U.S. at 722,
citing In re Oliver,
333 U.S. 257 (1948), and Tumey v. Ohio,
273
U.S. 510 (1927).
3 The Fourteenth Amendment provides that a state may not
“deprive any person of life, liberty, or property, without due
process of law.” U.S. Const., amend. XIV.
4 The Sixth Amendment applies to the states via the
Fourteenth Amendment. See, e.g., Ramos v. Louisiana, 590 U.S.
83, 93 (2020).
MEIGS, 22CA12
26
{¶49} With these principles in mind, we consider appellant’s
first three assignments of error.
B
First Assignment of Error
{¶50} In his first assignment of error, appellant asserts
that the trial court erred by overruling his motion to change
the venue of the trial. He contends that pervasive, adverse
pretrial publicity created a presumption that the jury was
prejudiced against him. Appellant claims that “the entire
county was inundated with news of the most infamous crime in
recent Meigs County history on the television, in the
newspapers, on social media, and in front yards” and that a
“battery of adverse publicity . . . besieged Meigs County for an
entire year before [appellant]’s trial.” Appellant further
asserts that the trial court should not have believed any of the
jurors’ attestations that, despite the pretrial publicity, they
could be fair and impartial.
{¶51} Appellant additionally contends that he, as a black
man facing trial for the death of a white man, could not receive
MEIGS, 22CA12
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a fair trial in Meigs County, a predominantly white county. He
observes that a few prospective jurors made comments regarding
appellant’s race, with more than one asking whether appellant
could receive a fair trial in Meigs County.
{¶52} The State argues that the trial court did not abuse
its discretion by overruling appellant’s motion for a change of
venue. The State asserts that appellant has not shown that “the
pretrial publicity in this case was so pervasive” as to warrant
a prejudice presumption.
{¶53} The State further argues that appellant has not shown
that any juror actually was biased against him. The State
contends that “[h]undreds of jurors sat through individual voir
dire over the course of multiple days to ensure a fair jury was
selected, and a fair jury was in fact selected.” The State
notes that the trial court routinely excused jurors who knew
“too much about the case or who were too close to anyone
involved in the case or too close to their family members” and
kept as prospective jurors the individuals who had “no or
limited knowledge of the case.” The State further contends that
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each juror who was “seated in this case affirmed that he or she
would be fair and impartial despite what they may have already
heard or saw regarding the case.”
{¶54} The State also observes that appellant did not renew
his request for a change of venue after the jury had been
selected and that he did not exercise all of his peremptory
challenges. The State contends that, by failing to do so,
appellant indicated that he was satisfied that the empaneled
jurors would be fair and impartial and cannot assert error on
appeal.
1
Standard of Review
{¶55} Appellate courts ordinarily will not disturb a trial
court’s ruling concerning a motion for change of venue absent an
abuse of discretion. State v. Clinton, 2017-Ohio-9423, ¶ 60;
State v. Roberts,
2006-Ohio-3665, ¶ 116. An abuse of discretion
implies that a court’s attitude was unreasonable, arbitrary or
unconscionable. State v. Beasley,
2018-Ohio-16, ¶ 12, citing
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983). “A
MEIGS, 22CA12
29
decision is unreasonable if there is no sound reasoning process
that would support that decision.” State v. Ford, 2019-Ohio-
4539, ¶ 106, quoting AAAA Ents., Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). “[A]n
‘arbitrary’ decision is one made ‘without consideration of or
regard for facts [or] circumstances.’” State v. Beasley, 2018-
Ohio-16, ¶ 12, quoting Black’s Law Dictionary (10th Ed.2014),
and citing Dayton ex rel. Scandrick v. McGee,
67 Ohio St.2d 356,
359 (1981), quoting Black’s (5th Ed.1979) (“arbitrary” means
“‘without adequate determining principle; . . . not governed by
any fixed rules or standard’”). An unconscionable decision is
one “showing no regard for conscience” or “affronting the sense
of justice, decency, or reasonableness.” Black’s (11th ed.
2019). An unconscionable decision also may be characterized as
“[s]hockingly unjust or unfair.”
Id. Moreover, when reviewing
for an abuse of discretion, appellate courts must not substitute
their judgment for that of the trial court. E.g., State v.
Grate,
2020-Ohio-5584, ¶ 187; In re Jane Doe 1,
57 Ohio St.3d
135, 137-138 (1991).
MEIGS, 22CA12
30
{¶56} The abuse-of-discretion standard of review does not
apply, however, if a defendant fails to object to the jury pool
at trial. See State v. Gordon, 2018-Ohio-259, ¶ 22 (plain-
error, not abuse-of-discretion, standard of review applied when
defendant failed to seek severance under Crim.R. 14 or to object
to joint trials). Instead, failing to object to the jury pool
at trial means that the defendant forfeits “all but plain error”
on appeal. State v. Graham,
2020-Ohio-6700, ¶ 31 (“defense
counsel failed to object to the jury pool at trial and thus
forfeited all but plain error”).
{¶57} Likewise, a defendant who failed to exhaust the
allotted peremptory challenges forfeits all but plain error.
State v. Trimble, 2009-Ohio-2961, ¶ 61 (defendant forfeited
argument that trial court erred by overruling motion to change
venue due to “his failure to exhaust his peremptory
challenges”); State v. Hale,
2008-Ohio-3426, ¶ 89, quoting State
v. Carter,
21 Ohio St.2d 212, 214 (1970) (because defendant
“‘did not exhaust his peremptories,’” he “‘acquiesced in the
jury that was finally selected’”); State v. Lynch, 2003-Ohio-
MEIGS, 22CA12
31
2284, ¶ 37 (“The absence of defense challenges for pretrial
publicity and the failure to exhaust defense peremptory
challenges indicate that the defense was not particularly
troubled by the jury’s exposure to pretrial publicity once voir
dire was completed.”).
{¶58} In the case at bar, after the parties completed voir
dire, they had selected 12 petit jurors and 4 alternate jurors.
After the jury was seated, appellant did not raise any further
concerns that he would be unable to receive a fair trial in
Meigs County. Moreover, he did not exhaust all of his allotted
peremptory challenges. Additionally, toward the end of voir
dire, appellant’s counsel agreed that the court should attempt
to seat a jury using the prospective jurors who remained. Under
these circumstances, we believe that appellant failed to
preserve his argument that the trial court abused its discretion
by failing to change the venue of the trial. We therefore will
review this assignment of error using the plain-error standard
of review.
MEIGS, 22CA12
32
{¶59} Appellate courts have discretion to consider “[p]lain
errors or defects affecting substantial rights.” Crim.R. 52(B);
e.g., State v. Jones, 2020-Ohio-3051, ¶ 17, quoting State v.
Rogers,
2015-Ohio-2459, ¶ 23 (“An appellate court has discretion
to notice plain error and therefore ‘is not required to correct
it.’”). A party asserting plain error must demonstrate the
following: (1) an error occurred; (2) the error was obvious;
and (3) a reasonable probability that the error affected the
outcome of the proceeding. State v. Echols,
2024-Ohio-5088, ¶
50. However, even when a defendant demonstrates that a plain
error or defect affected the defendant’s substantial rights, the
Ohio Supreme Court repeatedly has emphasized that courts should
“notice plain error ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of
justice.’” State v. Barnes,
94 Ohio St.3d 21, 27 (2002),
quoting State v. Long,
53 Ohio St.2d 91 (1978), paragraph three
of the syllabus; e.g., State v. Bailey,
2022-Ohio-4407, ¶ 14
(“the plain-error doctrine is warranted only under exceptional
circumstances to prevent injustice”).
MEIGS, 22CA12
33
{¶60} As we explain below, we do not believe that the record
establishes that the trial court plainly erred by maintaining
the venue of the trial in Meigs County.
2
Pretrial Publicity
{¶61} A panel of impartial, indifferent jurors is a
necessary predicate to a fair trial. See Irvin, 366 U.S. at
722. Thus, “when it appears that a fair and impartial trial
cannot be held in the court in which the action is pending,” a
criminal defendant may request the trial court to transfer the
action to an appropriate tribunal. See Crim.R. 18(B); accord
R.C. 2901.12(K); State v. Mammone,
2014-Ohio-1942, ¶ 53.
{¶62} Pretrial publicity may impair a jury’s ability to be
fair and impartial. Mammone at ¶ 53. Trial courts thus have “a
‘duty to protect’ criminal defendants from ‘inherently
prejudicial publicity’ that renders a jury’s deliberations
unfair.” Id. at ¶ 54, quoting Sheppard v. Maxwell,
384 U.S.
333, 363 (1966).
MEIGS, 22CA12
34
{¶63} Pretrial publicity does not, however, automatically
establish that a fair and impartial trial cannot be held in the
court in which the action is pending. State v. Frazier, 2007-
Ohio-5048, ¶ 235; accord Skilling v. United States, 561 U.S.
358, 380 (2010), quoting Murphy v. Florida,
421 U.S. 794, 798–
799 (1975) (“our decisions, however, ‘cannot be made to stand
for the proposition that juror exposure to . . . news accounts
of the crime . . . alone presumptively deprives the defendant of
due process’”). “Prominence does not necessarily produce
prejudice, and juror impartiality . . . does not require
ignorance.” (Emphasis in original.) Skilling,
561 U.S. at 381;
see Irvin,
366 U.S. at 722 (jurors need not be “totally ignorant
of the facts and issues involved”); Reynolds v. United States,
98 U.S. 145, 155-156 (1898) (“[E]very case of public interest is
almost, as a matter of necessity, brought to the attention of
all the intelligent people in the vicinity, and scarcely any one
can be found among those best fitted for jurors who has not read
or heard of it, and who has not some impression or some opinion
in respect to its merits.”). Accordingly, “even pervasive,
MEIGS, 22CA12
35
adverse [pretrial] publicity does not inevitably lead to an
unfair trial.” Nebraska Press Assn., 427 U.S. at 554.
{¶64} “‘[T]he best test of whether prejudicial pretrial
publicity has prevented obtaining a fair and impartial jury from
the locality’ is ‘a careful and searching voir dire.’” Mammone,
2014-Ohio-1942, at ¶ 55, quoting State v. Bayless,
48 Ohio St.2d
73, 98 (1976). Thus, a trial court ordinarily should make “‘a
good faith effort . . . to impanel a jury before . . .
grant[ing] a motion for change of venue.’” State v. Warner,
55
Ohio St.3d 31, 46 (1990), quoting State v. Herring,
21 Ohio
App.3d 18 (9th Dist.1984), syllabus.
{¶65} In rare cases, however, courts should presume that
pretrial publicity prejudiced the jury against the defendant.
See Roberts, 2006-Ohio-3665, at ¶ 117, citing State v. Treesh,
90 Ohio St.3d 460, 464 (2001). To prevail on a claim of
presumed prejudice, a defendant must make “‘a clear and manifest
showing . . . that pretrial publicity was so pervasive and
prejudicial that an attempt to seat a jury would be a vain
act.’” Warner,
55 Ohio St.3d at 46, quoting Herring at
MEIGS, 22CA12
36
syllabus. Notably, this presumption “attends only the extreme
case.” Skilling, 561 U.S. at 381; accord Clinton, 2017-Ohio-
9423, at ¶ 64.
{¶66} When a defendant claims that a trial court erred by
denying a motion for a change of venue based on pretrial
publicity, a reviewing court first must “determine whether the
record shows pretrial publicity of such a degree and kind as to
trigger a presumption that the jury was prejudiced against the
defendant.” Mammone, 2014-Ohio-1942, at ¶ 57. If the record
fails to show this presumption, the court next must “determine
whether the defendant has established that any juror was
actually prejudiced against him.”
Id.
{¶67} In the case sub judice, as we explain below, nothing
in the record suggests that the trial court obviously erred by
failing to determine that pervasive pretrial publicity had
tainted the jury pool so as to warrant a prejudice presumption.
Additionally, the record does not indicate that any juror
actually was prejudiced against appellant. We therefore do not
MEIGS, 22CA12
37
believe that the trial court plainly erred by failing to
transfer the venue of the trial.
a
Presumed Prejudice
{¶68} The United States Supreme Court has presumed that
pretrial publicity resulted in prejudice in rare cases. For
example, the court applied the presumption when, before a
defendant’s arraignment, the defendant confessed to the crime
while being filmed for a televised broadcast. Rideau v.
Louisiana, 373 U.S. 723 (1963). The televised confession aired
three times,
id. at 725, fn. 2, and showed the defendant, “in
jail, flanked by the sheriff and two state troopers, admitting
in detail the commission of the robbery, kidnapping, and murder,
in response to leading questions by the sheriff,”
id. at 725.
Tens of thousands of community members “had been exposed
repeatedly and in depth to the spectacle of [the defendant]
personally confessing in detail to the crimes with which he was
later to be charged.”
Id. at 726.
MEIGS, 22CA12
38
{¶69} After his arraignment, the defendant asked the trial
court to change the venue for the trial. The trial court denied
the motion, and a jury later convicted the defendant of murder
and sentenced him to death.
{¶70} The state supreme court later affirmed the defendant’s
conviction, and the defendant successfully sought review in the
United States Supreme Court. The Court reversed the state
supreme court’s judgment. The Court found that the televised
“spectacle . . . in a very real sense was [the defendant]’s
trial—at which he pleaded guilty to murder.” Id. The Court
determined that “[a]ny subsequent court proceedings in a
community so pervasively exposed to such a spectacle could be
but a hollow formality.”
Id. The Court thus concluded that due
process “required a trial before a jury drawn from a community
of people who had not seen and heard [the defendant]’s
televised” confession.
Id. at 727.
{¶71} The Court also applied the prejudice presumption when
“a barrage” of media reporting, Irvin, 366 U.S. at 725, had led
two-thirds of the seated jurors to form an opinion that the
MEIGS, 22CA12
39
defendant was guilty, id. at 728. In Irvin, during the months
before the defendant’s murder trial, the “barrage” of publicity
“unleashed against him” included “curbstone opinions, not only
as to [the defendant’s] guilt but even as to what punishment he
should receive.”
Id. at 725. A “roving reporter” “solicited
and recorded” these opinions, and they “later were broadcast
over the local stations.”
Id.
Furthermore, news reporting
revealed the details of [the defendant’s] background,
including a reference to crimes committed when a
juvenile, his convictions for arson almost 20 years
previously, for burglary and by a court-martial on AWOL
charges during the war. He was accused of being a parole
violator. The headlines announced his police line-up
identification, that he faced a lie detector test, had
been placed at the scene of the crime and that the six
murders were solved but petitioner refused to confess.
Finally, they announced his confession to the six
murders and the fact of his indictment for four of them
in Indiana. They reported [the defendant’s] offer to
plead guilty if promised a 99-year sentence, but also
the determination, on the other hand, of the prosecutor
to secure the death penalty, and that petitioner had
confessed to 24 burglaries (the modus operandi of these
robberies was compared to that of the murders and the
similarity noted). One story dramatically relayed the
promise of a sheriff to devote his life to securing [the
defendant’s] execution by the State of Kentucky, where
petitioner is alleged to have committed one of the six
MEIGS, 22CA12
40
murders, if Indiana failed to do so. Another
characterized petitioner as remorseless and without
conscience but also as having been found sane by a courtappointed panel of doctors. In many of the stories [the
defendant] was described as the ‘confessed slayer of
six,’ a parole violator and fraudulent-check artist. .
. . On the day before the trial the newspapers carried
the story that [the defendant] had orally admitted the
murder of Kerr (the victim in this case) as well as ‘the
robbery-murder of Mrs. Mary Holland; the murder of Mrs.
Wilhelmina Sailer in Posey County, and the slaughter of
three members of the Duncan family in Henderson County,
Ky.’”
Id. at 725-726.
{¶72} The Court determined that this extensive pretrial
publicity prejudiced the jury pool and that the trial court
should have transferred the venue to another county. The Court
explained, “With his life at stake, it is not requiring too much
that [the defendant] be tried in an atmosphere undisturbed by so
huge a wave of public passion and by a jury other than one in
which two-thirds of the members admit, before hearing any
testimony, to possessing a belief in his guilt.” Id. at 728.
{¶73} Additionally, the Court presumed that publicity caused
prejudice when the trial atmosphere resembled a “carnival,”
Sheppard v. Maxwell, 384 U.S. 333, 358 (1966), and when the
MEIGS, 22CA12
41
“media’s overzealous reporting efforts,” Estes v. Texas, 381
U.S. 532, 538 (1965), “utterly corrupted” the trial atmosphere,
Murphy v. Florida,
421 U.S. 794, 798–799 (1975), citing
Sheppard
at 353 (“bedlam reigned at the courthouse during the trial and
newsmen took over practically the entire courtroom,” which
thrust jurors “into the role of celebrities”).
{¶74} In the case sub judice, the record does not
demonstrate a degree of pretrial publicity sufficient to trigger
a presumption that the jury was prejudiced against appellant.
We first observe that although appellant’s counsel referred to
published media reports regarding the murder—both shortly after
it occurred and after appellant’s arrest—the record does not
contain any copies of these published media reports or otherwise
establish that Meigs County citizens were inundated with news
stories about the case. Nothing in the record suggests that the
media had unleashed a barrage of pretrial publicity, the trial
resembled a “carnival atmosphere,” or the media had “utterly
corrupted” the trial atmosphere.
MEIGS, 22CA12
42
{¶75} Moreover, unlike the damaging publicity that inheres
when a news organization broadcasts a defendant’s televised
confession, in the case at bar, appellant has not presented
evidence that the news media or individuals on social media
saturated the community with similar incriminating information.
See Skilling, 561 U.S. at 382 (rejecting the defendant’s
argument that pretrial publicity prejudiced jury when, “although
news stories about Skilling were not kind, they contained no
confession or other blatantly prejudicial information of the
type readers or viewers could not reasonably be expected to shut
from sight”). Thus, “[n]o evidence of the smoking-gun variety
invited prejudgment of his culpability.”
Id. at 383, quoting
United States v. Chagra,
669 F.2d 241, 251–252, n. 11 (C.A.5
1982) (“‘A jury may have difficulty in disbelieving or
forgetting a defendant’s opinion of his own guilt but have no
difficulty in rejecting the opinions of others because they may
not be well-founded.’”). Additionally, nothing in the record
shows that the media presented “the kind of vivid, unforgettable
information” that the United States Supreme Court has
MEIGS, 22CA12
43
“recognized as particularly likely to produce prejudice . . .”
Id. at 384.
{¶76} Furthermore, the voir dire transcript does not
indicate that the jury pool was exposed to extensive adverse,
pretrial publicity. During voir dire, many prospective jurors
stated that they had heard at least some information about the
case. The vast majority of them, however, had not heard a
substantial amount of pretrial publicity. Most of the
prospective jurors who had heard some pretrial publicity had not
heard more than a couple of news stories about the case, and
those stories simply reported that a murder occurred and that an
arrest had been made.
{¶77} In addition, many prospective jurors who had exposure
to pretrial publicity—whether in traditional news media or
social media—stated that they had not formed any opinions based
upon the news reports. Thus, “[a]lthough most prospective
jurors had heard or read something about the facts of the case,
knowing something about media accounts of the crimes is not
dispositive.” Clinton, 2017-Ohio-9423, at ¶ 66, citing State v.
MEIGS, 22CA12
44
Thompson, 2014-Ohio-4751, ¶ 102; see also Mu’Min v. Virginia,
500 U.S. 415, 427–30 (1991) (“substantial” amount of pretrial
publicity was not sufficient to warrant a prejudice
presumption). Indeed, neither the Ohio Supreme Court nor the
United States Supreme Court has extended the prejudice
presumption to “‘even the most highly publicized cases that are
covered step-by-step and scoop-by-scoop in evening newscasts and
front page stories.’” State v. Martin,
2017-Ohio-7556, ¶ 35,
quoting 6 LaFave, Israel, King & Kerr, Criminal Procedure,
Section 23.2(a), at 307-308 (4th Ed.2015), and citing Rideau,
373 U.S. 723; see also State v. Lundgren,
73 Ohio St.3d 474, 478
(1995) (rejecting argument that trial court should have presumed
prejudice and changed venue when the discovery of five dead
bodies “resulted in massive, inflammatory, statewide publicity,”
including approximately 350 printed news articles with more than
90 front-page news articles and almost 350 televised news
broadcasts).
{¶78} Additionally, appellant’s counsel questioned jurors
whether they had seen “Justice for [K.R.]” signs throughout the
MEIGS, 22CA12
45
community. A few prospective jurors stated that they were
prevalent throughout the community, while a few others had not
seen them. Most jurors did not interpret the signs as a call to
find appellant guilty. Instead, some prospective jurors
interpreted the signs as being critical of law enforcement or
simply as a call for the victim’s family to have a resolution.
Other prospective jurors stated that they were curious about the
signs but did not know what message they were intended to
convey.
{¶79} Moreover, we again note that defense counsel did not
exercise all of his allotted peremptory challenges.
Additionally, after the jury had been seated, appellant did not
renew his motion to change venue based on pretrial publicity.
His failure to do so suggests that defense counsel was satisfied
with the jurors who had been selected. See Lynch, 2003-Ohio-
2284, at ¶ 37.
{¶80} Thus, appellant has not established that this case is
the rare case that warrants a presumption of prejudice, and the
MEIGS, 22CA12
46
trial court did not obviously err by failing to conclude that
pretrial publicity warranted this presumption.
b
Actual Prejudice
{¶81} Having determined that appellant has not established
that the prejudice presumption applies, we next consider whether
appellant has shown that one or more jurors actually were
prejudiced against him. See Martin, 2017-Ohio-7556, at ¶ 44.
{¶82} In the case at bar, the record does not suggest that
pretrial publicity actually prejudiced any juror against
appellant. The State and defense counsel questioned each
prospective juror to discover whether prospective jurors had
heard any media coverage about the case and whether they had
formed any preconceived ideas about appellant’s guilt. The
court excused prospective jurors who appeared unable to set
aside any outside information and to decide the case based
solely upon the evidence presented at trial. Moreover, unless
other cause existed, the court did not excuse jurors who stated
that they could be fair and impartial and decide the case based
MEIGS, 22CA12
47
solely upon the evidence presented at trial. Mammone, 2014-
Ohio-1942, at ¶ 71, quoting Irvin, 366 U.S. at 723 (a juror is
unbiased “‘if the juror can lay aside his impression or opinion
and render a verdict based on the evidence presented in
court’”). “The trial court was in the best position to judge
each juror’s demeanor and ability to be fair and decide whether
to credit the juror’s assurance that [the juror] would set aside
any prior knowledge and preconceived notions of guilt.” Grate,
2020-Ohio-5584, at ¶ 59, citing State v. Trimble, 2009-Ohio-
2961, ¶ 64; see also Patton v. Yount,
467 U.S. 1025, 1031
(1984), quoting Irvin,
366 U.S. at 723 (trial court’s findings
of juror impartiality may “be overturned only for ‘manifest
error’”).
{¶83} We again note that appellant did not exercise all of
his peremptory challenges. Had appellant thought that any of
the jurors selected to hear the case actually harbored prejudice
as a result of pretrial publicity, he could have exercised his
remaining peremptory challenge. Appellant’s failure to
challenge the remaining jurors constitutes “strong evidence that
MEIGS, 22CA12
48
he was convinced the [other] jurors were not biased and had not
formed any opinions as to his guilt.” Skilling, 561 U.S. at
396, quoting Beck v. Washington,
369 U.S. 541, 557–558 (1962).
{¶84} Appellant further claims that “[e]very single person
on the jury stated during voir dire that they knew information
about the case from an outside source in some way.” The record
does not, however, contain a list of the 12 jurors who
ultimately were seated. The verdict form contains the signature
of all 12 jurors, but only 7 of those signatures are legible.
{¶85} Furthermore, the transcript of the final stage of the
jury-selection process does not clearly identify the 12 jurors
who ultimately were seated. Additionally, the record plainly
shows that appellant exercised peremptory challenges to excuse
three of the jurors who he claimed were seated as jurors: Ka.,
Th., and Mc. Thus, the record does not support appellant’s
implication that Ka., Th., and Mc. were seated as jurors.
Moreover, without a list of all 12 jurors, this court cannot
accurately evaluate appellant’s assertion that all 12 jurors had
heard about the case from an outside source. See Ewert v.
MEIGS, 22CA12
49
Holzer Clinic, Inc., 2013-Ohio-5609, ¶ 18 (4th Dist.) (an
appellant “has the burden of providing this court with a record
of the facts, testimony, and evidentiary matters necessary to
support [an] assignment of error”). Even if all 12 jurors had
heard about the case from an outside source, however, having
knowledge about the case does not equate to being prejudiced
against a defendant. See, e.g., Thompson,
2014-Ohio-4751, at ¶
102 (“jurors need not be totally ignorant about the facts of a
case”).
{¶86} We also observe that the record indicates that at
least five of the prospective jurors did not have any pre-
existing knowledge about the case: L., P., G., Am., and St.
{¶87} L. stated that although she saw the “Justice for
[K.R.]” signs, the signs did not make any impression on her
because she was unaware that a murder had occurred until
learning about it during voir dire.
{¶88} P. stated that she did not know anything about the
case. She saw the “Justice for [K.R.]” signs but did not know
what they meant.
MEIGS, 22CA12
50
{¶89} G. likewise did not know anything about the case. She
saw the signs and thought that “people wanted to make sure
[K.R.] got justice.” Until being called for jury duty, however,
she did not know who K.R. was or that a person named K.R. had
been murdered.
{¶90} Am. also had not heard any information about the case.
He saw the “Justice for [K.R.]” signs but did not know who K.R.
was.
{¶91} St. explained that she did not know anything about the
case. She saw the signs, but she did not know what they meant
and did not know that a murder had occurred until she reported
for jury duty.
{¶92} Other prospective jurors had little knowledge about
the case. Ta. heard about the murder shortly after it happened
but did not have any other knowledge about the case. He saw the
“Justice for [K.R.]” signs, and they did not cause him to form
any preconceived notions. He emphasized that “everybody is
innocent until proven guilty.” Ta. recognized that the
prevalence of the signs in the community suggested that K.R. had
MEIGS, 22CA12
51
an impact on the community. He further stated, however, that
knowing about K.R.’s community impact would not affect his
ability to be impartial.
{¶93} W. heard about the murder after it had occurred and
also heard when a person had been arrested. He saw the signs
but indicated that he had become oblivious to them given the
length of time.
{¶94} Ha. knew little about the case. He heard that a
murder had occurred, and he later heard a news story when
officers had arrested an individual. Other than that, he did
not know anything about the case and did not have an opinion
whether appellant had “done something wrong.”
{¶95} Hy. knew that K.R. had been shot and that officers had
arrested a suspect. She did not know anything else about the
case. She saw the signs and thought that they were aimed at
“awareness.”
{¶96} Ha.1 heard about a shooting on the news. He saw the
“Justice for [K.R.]” signs, but they did not cause him to form
any impressions.
MEIGS, 22CA12
52
{¶97} Lu. had discussed the case “in passing.” He knew that
a crime had occurred and that K.R. was the name of the victim.
He later read in a news article that appellant is from
Charleston.
{¶98} Another prospective juror read news articles when they
were published and recalled reading that K.R. had been murdered.
She saw the signs and thought “that it was nice that people
still care to have that out.” She believed that the signs
intended to convey that the family will not forget about it and
would like to have justice served. This prospective juror felt
that community pressure existed to obtain a conviction, but she
stated that she did not feel pressure. She further indicated
that if the State did not prove its case beyond a reasonable
doubt, she would not hesitate to find appellant not guilty.
{¶99} In short, nothing in the voir dire testimony indicates
that the jurors who remained displayed any conduct or made any
comments to suggest that they actually were prejudiced against
appellant. Appellant thus has failed to establish “that actual
MEIGS, 22CA12
53
bias infected the jury that tried him.” Skilling, 561 U.S. at
398.
3
Racial Makeup
{¶100} Appellant also contends that he could not receive a
fair trial in Meigs County due to a dearth of African American
citizens and undercurrents of racism detected during voir dire.
{¶101} Although appellant does not cite authority to support
this argument, we observe that “[t]he Sixth Amendment to the
United States Constitution does not require that petit juries
‘mirror the community and reflect the various distinctive groups
in the population.’” State v. Jackson, 2005-Ohio-5981, ¶ 64,
quoting Taylor v. Louisiana,
419 U.S. 522, 538 (1975).
Consequently, “[d]efendants are not entitled to a jury of any
particular composition.”
Taylor at 538. The selection of jury
panels must not, however, “systematically exclude distinctive
groups in the community and thereby fail to be reasonably
representative thereof.”
Id.
MEIGS, 22CA12
54
{¶102} In the case at bar, even if Meigs County is
predominantly white, as appellant alleges, appellant has not
shown that African Americans were systemically excluded.
Furthermore, a lack of African Americans does not, on its own,
“create a presumption that discrimination has occurred.” State
v. Glenn, 28 Ohio St.3d 451, 454 (1986) (“The mere fact that
only one black appeared in the array of prospective jurors
neither indicates that minorities were systematically excluded,
nor does it create a presumption that discrimination has
occurred.”).
{¶103} Regarding appellant’s claim that some prospective
jurors expressed concerns about racism, we note that the record
indicates that the trial court excused any jurors who displayed
racist tendencies. Moreover, nothing indicates that “the entire
jury pool was tainted simply because [some] prospective jurors
made racist comments.” Graham, 2020-Ohio-6700, at ¶ 47; see
also State v. Hairston,
2007-Ohio-4159, ¶ 14 (4th Dist.)
(appellant failed to establish that prospective jurors’ racist
comments “biased or prejudiced the empaneled jurors”).
MEIGS, 22CA12
55
{¶104} Additionally, we again note that appellant did not
exercise all of his peremptory challenges. His failure to do so
suggests that he was satisfied with the empaneled jurors and did
not harbor concerns that any of the empaneled jurors were
racists.
{¶105} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
C
Second Assignment of Error
{¶106} In his second assignment of error, appellant argues
that the trial court deprived him of his right to a fair and
impartial jury under the Ohio and United States constitutions by
removing for cause L.G., “the only African-American juror
willing to sit” on the jury. Appellant contends that the
court’s explanation for dismissing L.G. was unreasonable and
arbitrary. Appellant observes that the court stated that L.G.
“probably has very strong feelings about the judicial system
because of her brother,” who is a convicted felon. Appellant
asserts that the trial court did not “apply this principle
MEIGS, 22CA12
56
evenly across the entire jury venire.” Appellant notes that
five days before dismissing L.G., the court allowed another
juror, O., to sit on the jury even though the juror’s brother
also was a convicted felon. Appellant complains that the court
did not, however, express any misgivings about allowing O. to
sit on the jury. Appellant states that “[w]hen a court
dismisses one juror for a supposed deficiency but allows another
with the same deficiency to be seated, that is the definition of
arbitrary.”
{¶107} Appellant also recognizes that the court (1) referred
to L.G.’s “obvious connection with people” who had relationships
with appellant or the victim and (2) pointed out that the victim
may have been in L.G.’s house. Appellant notes that the court
further stated that “[L.G.] may have seen [appellant] at one
point speaking with her friends.” Appellant nevertheless
asserts that the juror’s limited connections with the victim and
appellant were insufficient to show that she would not be fair
and impartial. Appellant observes that L.G. stated that she
MEIGS, 22CA12
57
could be fair and impartial. Appellant thus claims that the
trial court abused its discretion by dismissing her.
{¶108} The State contends that the trial court did not abuse
its discretion by excusing L.G. for cause. The State maintains
that the trial court acted reasonably by dismissing the juror
given her family’s connection to the victim and her previous
observation of appellant with a group of friends. The State
further argues that the trial court did not act arbitrarily.
The State points out that the court had “dismissed dozens of
prospective jurors who had less of a connection to the victim or
[a]ppellant for any number of reasons, including particularly
those who knew some about the case, knew the victim, worked with
the victim’s mother, or even who merely had a spouse who worked
with the victim’s mother.”
1
Standard of Review
{¶109} A reviewing court will not disturb a trial court’s
ruling regarding a challenge for cause “‘unless it is manifestly
arbitrary and unsupported by substantial testimony, so as to
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58
constitute an abuse of discretion.’” State v. Jackson, 2005-
Ohio-5981, ¶ 38, quoting State v. Williams, 79 Ohio St.3d 1, 8
(1997); accord State v. Thompson,
2014-Ohio-4751, ¶ 83 (trial
courts have discretion to determine whether a prospective juror
should be disqualified for cause). Thus, reviewing courts will
not reverse a trial court’s decision regarding a challenge for
cause unless the trial court abused its discretion. State v.
Madison,
2020-Ohio-3735, ¶ 20 (“a trial court’s resolution of a
challenge for cause will be upheld unless it is unsupported by
substantial testimony, so as to constitute an abuse of
discretion”).
2
Challenges for Cause
{¶110} Crim.R. 24(C) and R.C. 2945.25 contain a list of
reasons for challenging a juror for cause. Crim.R. 24(C)(9) and
R.C. 2945.25(B) allow a juror to be challenged for cause if the
juror “is possessed of a state of mind evincing enmity or bias
toward the defendant or the state.” The rule and the statute
further provide, however that “no person summoned as a juror
MEIGS, 22CA12
59
shall be disqualified by reason of a previously formed or
expressed opinion with reference to the guilt or innocence of
the accused” if the examination of the juror or other evidence
satisfies the court “that the juror will render an impartial
verdict according to the law and the evidence submitted to the
jury at the trial.” Crim.R. 24(C)(9); R.C. 2945.25(B). Both
the rule and the statute also contain catchall provisions that
allow a juror to be challenged for cause if the juror is
otherwise “unsuitable for any other cause to serve as a juror.”
Crim.R. 24(C)(14); R.C. 2945.25(O); accord State v. Thompson,
2014-Ohio-4751, ¶ 83.
{¶111} A trial court that is evaluating a challenge for cause
should consider whether the juror can set aside any personal
opinions and decide the case based solely on the evidence
presented at trial. See State v. Madison, 2020-Ohio-3735, ¶ 42.
The court also must assess the juror’s credibility and decide
whether to believe any attestations of impartiality. See
id.
Indeed, the trial court’s duty is “to determine which statements
of the prospective juror reflect that individual’s true state of
MEIGS, 22CA12
60
mind and ability to follow the law.” State v. Williams, 79 Ohio
St.3d 1, 7–8 (1997). For this reason, a reviewing court
generally must defer “‘to the trial judge who sees and hears the
juror.’”
Id. at 8, quoting Wainwright v. Witt,
469 U.S. 412,
426 (1985).
{¶112} In the case at bar, we do not believe that the trial
court abused its discretion by dismissing L.G. for cause. When
explaining the rationale for dismissing L.G., the trial court
cited L.G.’s connections to appellant and the victim. L.G.
disclosed that her son and nephews were friends with the victim
and that the victim had visited her home “quite a bit.” L.G.
further explained that she never met the victim because she was
at work during the times that he had been visiting her home.
The prosecutor asked L.G., given her son’s and nephews’
friendship with the victim, how they would react if she were
selected for the jury and voted to acquit appellant. L.G.
stated that she did not have any concerns that her family would
react in a negative manner, as long as she “told the truth.”
MEIGS, 22CA12
61
{¶113} L.G. also stated that she had seen appellant on a
prior occasion, although she does not recall when she saw him.
L.G. explained that she had been in a vehicle with some friends,
and they stopped to talk to a group of people. Appellant was in
that group of people. L.G. did not, however, speak to
appellant.
{¶114} We recognize that “[w]hether a prospective juror knew
the victim of an offense or had previously seen the accused is
not, per se, a basis for dismissal for cause.” State v.
Sheppard, 84 Ohio St.3d 230, 235 (1998). The trial court
nevertheless reasonably could have concluded that L.G.’s
connections raised questions about whether she would be fair and
impartial, despite her attestations that she would. Moreover,
as the State notes, the court also had dismissed other
prospective jurors who otherwise had tangential or direct
relationships with the victim’s family.
{¶115} In further explaining its decision to dismiss L.G.,
the court observed that the Meigs County Common Pleas Court had
convicted L.G.’s brother of a felony and, at the time of voir
MEIGS, 22CA12
62
dire, he remained imprisoned. L.G. denied that her brother’s
experience would cause her to feel prejudiced against the State
or law enforcement. She stated, “Right is right and wrong is
wrong.” The trial court believed, however, that this previous
experience with the judicial system might influence L.G.’s
feelings.
{¶116} The court thus concluded that the foregoing collection
of factors rendered L.G. unsuitable to serve impartially,
despite her assurances to the contrary. We again note that the
trial court’s duties are to assess the credibility of
prospective jurors and to determine whether to believe a juror’s
statement that the juror will be fair and impartial. The trial
court judge actually saw and heard L.G.’s responses to questions
and notably remarked that L.G. has known the judge “her whole
life.” We, as a court reviewing a written record, thus are
unable to conclude that the trial court abused its discretion by
deciding to excuse L.G. for cause.
{¶117} Appellant also appears to suggest that the juror’s
race may have been a factor in the court’s decision to excuse
MEIGS, 22CA12
63
her for cause. Appellant states that L.G. was the only viable
African American prospective juror called in a predominantly
white county. Nothing in the record indicates that the trial
court’s decision to excuse L.G. was based on race, however.
Moreover, appellant specifically states that he does not ask
this court to review the court’s dismissal of L.G. under Batson
v. Kentucky, 476 U.S. 79 (1986).5
{¶118} Additionally, even if we presume that the trial court
erred by excusing L.G., appellant has not shown how this alleged
error prejudiced him. Crim.R. 52(A) provides: “Any error,
defect, irregularity, or variance which does not affect
5 “The Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution prohibits purposeful
discrimination in the form of a prosecutor’s use of a peremptory
challenge to excuse a prospective juror based on his or her race
or gender.” State v. Stalder, 2023-Ohio-2359, ¶ 16. “Under
Batson, once a prima facie case of discrimination has been shown
by a defendant, the State must provide race-neutral reasons for
its peremptory strikes. The trial judge must determine whether
the prosecutor’s stated reasons were the actual reasons or
instead were a pretext for discrimination.” Flowers v.
Mississippi,
588 U.S. 284, 298 (2019). However, “Batson applies
only to prospective jurors removed by peremptory challenge.”
State v. Adams,
2015-Ohio-3954, ¶ 158.
MEIGS, 22CA12
64
substantial rights shall be disregarded.” In other words, the
error must have been prejudicial, i.e., it must have affected
the outcome of the trial. State v. Fisher, 2003–Ohio–2761, ¶
7.
{¶119} In the case sub judice, appellant has not explained
how L.G.’s dismissal affected the outcome of the trial. Any
argument that L.G. would have voted to acquit would be pure
speculation. See State v. Coonrod, 2012-Ohio-6302, ¶ 31 (4th
Dist.) (assertion that excused juror would have voted to acquit
was speculative); See State v. Brown,
2012-Ohio-1848, ¶ 53 (2nd
Dist.) (observing that appellant’s claim that juror excused
during deliberations was “likely favorable” to him was “wholly
speculative”). Therefore, even if the trial court somehow erred
when it excused L.G., appellant fails to demonstrate how the
error is anything other than harmless error.
{¶120} Furthermore, appellant has not shown that the
empaneled jury harbored any prejudice toward him or failed to be
fair and impartial. We again observe that appellant waived his
MEIGS, 22CA12
65
final peremptory challenges and thus indicated his satisfaction
with the empaneled jurors.
{¶121} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error.
D
Third Assignment of Error
{¶122} In his third assignment of error, appellant argues
that the trial court deprived him of his due process right to a
fair trial by allowing the victim’s mother to wear, on the first
day of individual voir dire, a shirt that read, “Justice for
[K.R.].” Appellant contends that this shirt created an
impression of guilt and prejudiced the jury against him. He
asserts that the shirt served as a stark reminder of the
community’s sentiment and the victim’s family’s grief.
Appellant claims that the mother’s shirt could have influenced
the jurors to sympathize with the victim’s family and,
consequently, to convict appellant based on emotion rather than
evidence.
MEIGS, 22CA12
66
{¶123} Appellant submits that the presence of the shirt
during voir dire was particularly prejudicial because it could
have affected the jurors’ ability to remain impartial before the
trial even began. He states that one of the petit jurors saw
the victim’s mother wearing the shirt and that this juror “was
no doubt affected by the shirt and sympathetic to [the victim’s
mother’s] grief and desire for justice for her son.” Appellant
claims that “[j]urors decided [a]ppellant was guilty because
they sympathized with the grieving mother wearing the Justice
for [K.R.] t-shirt, not because of the evidence presented by
[a]ppellee.”
{¶124} The State does not agree that the shirt affected the
jury’s impartiality. The State maintains that nothing in the
record suggests that the shirt had any actual impact on the
jury’s ability to remain fair and impartial. The State disputes
appellant’s assertion that the shirt affected the petit juror.
The State observes that the juror “ultimately indicated he could
be fair and impartial” and states that if the shirt had affected
this juror to the extent that the juror “could not be fair and
MEIGS, 22CA12
67
impartial,” then a reasonable belief is that the juror would
have informed the court that he could not be fair and impartial,
like “many others had.” The State further contends that the
victim’s mother’s shirt “in no way urged jurors to assuage [her]
grief with a conviction” and notes that the victim’s parents
ultimately agreed not to wear the shirts during trial.
{¶125} We first observe that “[t]he impact of emotional
outbursts at trial by witnesses or spectators cannot be judged
by an appellate court on a cold record.” Whether the jury was
“‘disturbed, alarmed, shocked or deeply moved’” are questions
that “‘necessarily depend on facts which no record can
reflect.’” State v. Hill, 75 Ohio St.3d 195, 204 (1996),
quoting State v. Bradley,
3 Ohio St.2d 38, 40 (1965). For this
reason, whether a murder trial spectator’s conduct, which may
include emotional outbursts, improperly influenced the jury
against the defendant “‘so as to deprive the accused of a fair
trial [is a question] of fact to be resolved by the trial
court.’” State v. Clinton,
2017-Ohio-9423, ¶ 220, quoting
Bradley,
3 Ohio St.2d 38, at syllabus. Thus, reviewing courts
MEIGS, 22CA12
68
should not disturb the trial court’s factual finding “‘in the
absence of evidence contrary to that determination clearly and
affirmatively appearing on the face of the record.’” Id.,
quoting Bradley,
3 Ohio St.2d 38 at syllabus.
{¶126} In Clinton, 2017-Ohio-9423, for example, the court
determined that a murder victim’s brother’s emotional showing
during individual voir dire did not deprive the defendant of a
fair trial. In that case, the defendant stood charged with
multiple offenses, including the aggravated murders of a young
mother and her two young children. During individual voir dire,
the murdered mother’s brother was glaring at the defendant and
wearing a shirt that listed the victims’ names. The trial court
advised the brother and other family members who had been
wearing the shirt that they could not wear them while in the
courtroom. Rather than forcing the family members to leave for
the day, the court stated that they could wear the shirts inside
out.
{¶127} The defendant’s counsel also asked the trial court to
instruct the brother not to glare at the defendant while the
MEIGS, 22CA12
69
jurors were present. The trial court indicated that it had
spoken to the brother and asked him to refrain from glaring at
the defendant.
{¶128} Later that day, the defendant’s counsel pointed out
that, when the trial court informed the family members that they
could not wear the shirt, the brother “literally stood up in the
courtroom and took off the shirt and turned it inside-out and
put it back on.” Id. at ¶ 216. The defendant’s counsel further
stated that when the brother started glaring at the defendant,
the defendant stated, “‘I don’t want to be in here. I don’t
want to be subjected to this.’” Id.
{¶129} After his conviction, the defendant appealed and
argued, in part, that the trial court erred by failing to hold a
hearing to determine whether the brother’s conduct caused any of
the jurors to be biased against him. The defendant claimed that
one of the prospective jurors, while being questioned, had
witnessed the brother’s conduct and later was seated as a petit
juror. Id. at ¶ 219.
MEIGS, 22CA12
70
{¶130} The Ohio Supreme Court did not agree with the
defendant. The court noted that the “brother’s behavior
occurred during voir dire” and that “the trial court took
corrective action to ensure” that the brother’s behavior did not
continue. Id. at ¶ 221. The court also observed that the
defendant’s counsel failed to challenge the prospective juror
who was present in the courtroom during the brother’s conduct
and who later was seated on the jury; and the defendant’s
counsel did not challenge any other juror who may have witnessed
the brother’s conduct. Id. The court stated that the
defendant’s failure to challenge these jurors “indicate[d] that
the defense was satisfied with the trial court’s corrective
action.” Id.
{¶131} The court additionally recognized that the brother’s
conduct occurred during voir dire—i.e., before a jury was
empaneled—and that the record did not indicate whether the
prospective juror who had been seated as a petit juror had even
observed the brother’s behavior. Id. at ¶ 225. The court thus
MEIGS, 22CA12
71
found that “it would be speculative to conclude that [the
defendant] was denied a fair trial.” Id.
{¶132} Similarly, in the case at bar, the record shows that
the victim’s mother wore the shirt during the first day of
individual voir dire. After the parties finished questioning
the third prospective juror, appellant objected to the mother’s
shirt. The trial court initially overruled his objection.
After examining two other prospective jurors, the court advised
the victim’s parents that they should not wear the shirts. The
record does not indicate whether the mother immediately
complied, but it also does not indicate that the mother failed
to abide by the trial court’s request. Thus, the record
suggests that the mother wore the shirt, at most, only during
the first day of individual voir dire.
{¶133} Although appellant claims that a petit juror saw the
shirt and that it had influenced him, we observe that during
voir dire, when the prosecutor asked the juror whether he had
seen any “Justice for [K.R.]” shirts, the juror stated that he
had not noticed any. Appellant’s counsel also questioned this
MEIGS, 22CA12
72
juror and did not ask him any questions regarding the victim’s
mother wearing the shirt or if seeing her wearing the shirt
would influence his decision. Instead, appellant’s counsel
asked this juror if he would have “any reservation in reaching a
not guilty verdict if the State failed to meet its burden of
proof in this case.” The juror responded that if he believed
that “the State did not prove beyond a shadow of a doubt,” then
he would “say not guilty.” The juror stated that he would not
have any worries about “community sentiment.”
{¶134} After the parties had finished questioning this juror,
neither one asked the court to excuse the juror for cause.
Furthermore, if this juror was in fact one of the petit jurors,6
appellant could have chosen to exercise his remaining peremptory
challenge to excuse the juror if he believed that the victim’s
mother’s shirt had influenced the juror.
{¶135} Moreover, appellant’s reliance on State v. Montgomery,
2022-Ohio-2211, is misplaced. In that case, before trial, the
6 As we noted earlier, the record does not contain a list of
the petit jurors.
MEIGS, 22CA12
73
trial court introduced the victim as the state’s representative.
And, during trial, the court permitted the victim to sit at the
prosecutor’s table. The error in Montgomery thus occurred
during the trial, not during individual voir dire. In
Montgomery, every petit juror had witnessed the victim seated at
the prosecution’s table. In the case at bar, by contrast,
appellant has not pointed to anything in the record to establish
that any petit jurors saw the victim’s mother wearing the shirt.
Indeed, one of the jurors stated that he had not seen any
“Justice for [K.R.]” shirts at all–not even the mother’s shirt–
even though the mother had been wearing the shirt during this
particular juror’s individual voir dire questioning.
{¶136} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error.
II
Fourth Assignment of Error
{¶137} In his fourth assignment of error, appellant asserts
that the trial court violated his Fifth Amendment privilege
against self-incrimination by allowing the State to introduce
MEIGS, 22CA12
74
evidence that allegedly improperly commented on his pre-arrest
and post-arrest silence. Appellant cites three instances when
the State allegedly improperly commented on his pre-arrest right
to remain silent: (1) during opening statement, the prosecutor
referred to appellant’s declaration–made to police officers
while hospitalized in Charleston, West Virginia, as a purported
victim of a shooting–that he did not want to cooperate with law
enforcement officers who were investigating the cause of
appellant’s gunshot wound; (2) Ohio Bureau of Criminal
Investigation Special Agent Jonathan Jenkins testified that
appellant did not want to cooperate with the Charleston officers
who were investigating the cause of his gunshot wound; and (3)
Meigs County Sheriff’s Deputy Joe Barnhart testified that
appellant did not appear for a meeting that officers had
arranged.
{¶138} Appellant cites one instance when the State introduced
testimony that allegedly improperly commented on his post-arrest
right to remain silent: Deputy Spiker testified that he
retrieved appellant from jail and reminded appellant that his
MEIGS, 22CA12
75
Miranda rights still applied. Appellant asserts that because
Deputy “Spiker reported no further statements by [appellant],
the jury was left with the impression that [appellant] refused
to waive his constitutional rights and must have had something
to hide.”
{¶139} The State contends that neither its opening
statement’s reference to appellant’s assertion made while
hospitalized nor Agent Jenkins’s testimony regarding that
assertion violated appellant’s privilege against self-
incrimination. The State submits that when the Charleston
police spoke with appellant while he was hospitalized,
appellant’s Fifth Amendment privilege against self-incrimination
had not yet attached. The State observes that the Charleston
police spoke with appellant as a purported victim of a shooting,
not as a suspect in the victim’s murder. The State contends
that because the officers did not speak with appellant as a
criminal suspect, appellant was not entitled to Miranda warnings
or to protection from the self-incrimination privilege. The
State thus argues that it did not violate appellant’s privilege
MEIGS, 22CA12
76
against self-incrimination by (1) referring, in its opening
statement, to appellant’s statement that he did not wish to
cooperate with the Charleston police or (2) eliciting Agent
Jenkins’s testimony that appellant stated that he did not want
to cooperate with the officers who were investigating
appellant’s shooting.
{¶140} The State also disputes appellant’s argument that
Deputy Barnhart’s testimony that a scheduled meeting with
appellant did not occur violated appellant’s privilege against
self-incrimination. The State asserts that Deputy Barnhart’s
testimony simply explained officers’ investigative steps and did
not improperly comment on appellant’s privilege against self-
incrimination. The State thus contends that it did not use the
deputy’s statement as substantive evidence.
{¶141} The State further argues that the deputy’s statement
did not necessarily indicate that appellant had failed to appear
or canceled the meeting; instead, the deputy stated that the
meeting “did not ever happen.” The State also observes that the
trial court sustained appellant’s objection to Deputy Barnhart’s
MEIGS, 22CA12
77
testimony and gave the jury a curative instruction. The State
contends, however, that rather than sustaining appellant’s
objection and instructing the jury to disregard the testimony,
the court should have concluded that the deputy’s testimony
simply described “the course of his investigation, which is
permissible testimony.”
{¶142} The State additionally disputes appellant’s assertion
that Deputy Spiker’s testimony that he re-advised appellant of
his Miranda rights violated appellant’s privilege against self-
incrimination.
A
Privilege Against Self Incrimination
{¶143} The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against himself.”7
“The privilege against self-incrimination . . . is a fundamental
trial right of criminal defendants.” United States v. Verdugo–
7 The self-incrimination clause of the Fifth Amendment
applies to the states via the Fourteenth Amendment. Malloy v.
Hogan, 378 U.S. 1, 6 (1964).
MEIGS, 22CA12
78
Urquidez, 494 U.S. 259, 264 (1990). The privilege protects a
person from (1) “being involuntarily called as a witness against
himself in a criminal prosecution” and (2) “answer[ing] official
questions put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in
future criminal proceedings.” Lefkowitz v. Turley,
414 U.S. 70,
77 (1973); accord Vega v. Tekoh,
597 U.S. 134, 141 (2022); State
v. Gideon,
2020-Ohio-6961, ¶ 8. The Fifth Amendment also
“forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is
evidence of guilt.” (Footnote omitted.) Griffin v. California,
380 U.S. 609, 615 (1965). “The object of the Amendment is “‘to
insure that a person should not be compelled, when acting as a
witness in any investigation, to give testimony which might tend
to show that he himself had committed a crime.’” Lefkowitz,
414
U.S. at 77, quoting Counselman v. Hitchcock,
142 U.S. 547, 562
(1892).
{¶144} A person does not, however, have an “‘“absolute right
to invoke the Fifth Amendment.”’” State v. Arnold, 2016-Ohio-
MEIGS, 22CA12
79
1595, ¶ 43, quoting State v. Arnold, 2014-Ohio-1134, ¶ 22 (3d
Dist.), quoting In re High Fructose Corn Syrup Antitrust
Litigation,
293 F.Supp.2d 854, 859 (C.D.Ill.2003). Instead, the
privilege against self-incrimination is limited “to instances
where the witness has reasonable cause to apprehend danger from
a direct answer.” Hoffman v. United States,
341 U.S. 479, 486
(1951); accord Ohio v. Reiner,
532 U.S. 17, 20–21 (2001); see
also Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt
Cty.,
542 U.S. 177, 189 (2004) (“To qualify for the Fifth
Amendment privilege, a communication must be testimonial,
incriminating, and compelled.”); see generally Davis v.
Washington,
547 U.S. 813, 832 (2006) (recognizing that a
witness’s statement given to officers who were making initial
inquiries at an alleged crime scene may be testimonial for
purposes of the Confrontation Clause). A witness has reasonable
cause to apprehend danger from a direct answer when “the
implications of the question, in the setting in which it is
asked, [manifest] that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous
MEIGS, 22CA12
80
because injurious disclosure could result.” Hoffman, 341 U.S.
at 486–87.
{¶145} In order to safeguard a suspect’s Fifth Amendment
privilege against self-incrimination, law enforcement officers
seeking to perform a custodial interrogation first must warn the
suspect “that he has the right to remain silent, that anything
he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior to any
questioning if he so desires.” Miranda v. Arizona, 384 U.S.
436, 479 (1966). If a person, after receiving Miranda warnings,
invokes the right to remain silent, the State may not, as a
matter of fundamental fairness under the Due Process Clause, use
the person’s silence as evidence of guilt. See Wainwright v.
Greenfield,
474 U.S. 284, 292 (1986) (“[I]t is fundamentally
unfair to promise an arrested person that his silence will not
be used against him and thereafter to breach that promise by
using the silence to impeach his trial testimony.”); Doyle v.
Ohio,
426 U.S. 610, 619 (1976) (“[T]he use for impeachment
MEIGS, 22CA12
81
purposes of [a defendant’s] silence, at the time of arrest and
after receiving Miranda warnings, violated the Due Process
Clause of the Fourteenth Amendment.”); compare Jenkins v.
Anderson, 447 U.S. 231, 240 (1980) (impeaching defendant by
using evidence of his pre-arrest, pre-Miranda silence was not
fundamentally unfair and did not violate due process under the
Fourteenth Amendment when “no governmental action induced
petitioner to remain silent”).
{¶146} Moreover, the Ohio Supreme Court held that the State
may not use evidence of an accused’s pre-arrest, pre-Miranda
silence as substantive evidence of guilt. See State v. Leach,
2004-Ohio-2147, ¶ 37. In Leach, a law enforcement officer
testified that he called the defendant to inform him that one of
the alleged victims indicated that the defendant wished to speak
with police. The defendant advised the officer that he would
meet the officer later that same day. The defendant, however,
did not keep the appointment. Instead, the defendant called the
officer’s phone number and left a message that he wished to
speak with an attorney before talking to the police.
MEIGS, 22CA12
82
{¶147} The Ohio Supreme Court determined that allowing the
officer to testify that the defendant had invoked his right to
an attorney violated “the policies behind the Fifth Amendment.”
Id. at ¶ 30. In doing so, the court noted that the United
States Supreme Court had not yet considered whether admitting
evidence of an accused’s pre-arrest, pre-Miranda silence
violates the Fifth Amendment. The court thus looked to the
federal appellate courts for guidance. The court found a Sixth
Circuit case, Combs v. Coyle, 205 F.3d 269, 272 (6th Cir. 2000),
“[m]ost relevant.” In Combs, the appellate court concluded that
using the defendant’s statement that he made to an officer at
the crime scene (i.e., “[t]alk to my lawyer”) as substantive
evidence of his guilt violated his privilege against self-
incrimination.
{¶148} Ten years after Leach, however, the Sixth Circuit
recognized that, since its Combs decision, the United States
Supreme Court ruled in Salinas v. Texas, 570 U.S. 178, 183
(2013) (plurality opinion), that “prosecutors may use a
defendant’s pre-arrest silence as substantive evidence of his
MEIGS, 22CA12
83
guilt if the defendant did not expressly invoke his right to
remain silent.” Abby v. Howe, 742 F.3d 221, 228, (6th Cir.
2014), citing
Salinas at 183. The Abby court thus concluded
that because the defendant had not invoked his right to remain
silent, “the prosecutor’s comments regarding [the defendant]’s
pre-arrest silence would be permissible under Salinas.”
Id.
{¶149} In Salinas, the defendant claimed that introducing
evidence of his pre-arrest silence violated his privilege
against self-incrimination. In that case, the prosecutor
introduced evidence that the defendant, during a non-custodial
interview, had refused to answer questions posed by officers who
were investigating a murder with which the defendant later was
charged. A three-justice plurality concluded that the defendant
could not assert that using his pre-arrest silence violated his
privilege against self-incrimination because he had failed to
invoke the privilege during the police interview.
{¶150} Some Ohio appellate courts since have concluded that
Salinas allows the State to use a defendant’s pre-arrest, pre-
Miranda silence as substantive evidence of guilt without
MEIGS, 22CA12
84
violating the privilege against self-incrimination, “if the
defendant fails to expressly invoke the privilege.” State v.
Speis, 2023-Ohio-1422, ¶ 17 (12th Dist. ), citing Salinas;
accord State v. Bender,
2024-Ohio-1750, ¶ 48 (3d Dist.); see
also State v. Lowery,
2023-Ohio-4444, ¶ 14 (2nd Dist.), quoting
Salinas,
570 U.S. at 189 (“‘[P]opular misconceptions
notwithstanding, the Fifth Amendment guarantees that no one may
be ‘compelled in any criminal case to be a witness against
himself’; it does not establish an unqualified ‘right to remain
silent.’ A witness’ constitutional right to refuse to answer
questions depends on his reasons for doing so, and courts need
to know those reasons to evaluate the merits of a Fifth
Amendment claim.’”).
{¶151} In the case at bar, we need not decide whether Salinas
governs and allowed the State to comment upon and introduce
evidence regarding appellant’s pre-arrest, pre-Miranda silence
in the absence of an express invocation of his privilege against
MEIGS, 22CA12
85
self-incrimination.8 Instead, we presume “that prosecutorial
comment on the defendant’s pre-custodial silence violates the
Fifth Amendment.” United States v. Zarauskas, 814 F.3d 509,
515–16, (1st Cir. 2016); see State v. Slusarczyk, 2024-Ohio-
4790, ¶ 31 (8th Dist.) (testimony that, before his arrest, the
defendant “voluntarily came into the police station, began to
fill out a general statement form, crumpled up the form, and
then left” violated the defendant’s privilege against self-
incrimination); State v. Pence,
2013-Ohio-1388, ¶ 17 (12th
Dist.) (introducing testimony violated the defendant’s privilege
against self-incrimination when detective testified that, before
the defendant had been arrested or given Miranda warnings, the
defendant’s attorney, not the defendant, returned a phone call
placed to the defendant, and the defendant never gave officers a
statement); State v. Trusty,
2013-Ohio-3548, ¶ 19 and 24 (1st
Dist.) (the State’s substantive use of the defendant’s pre-
8 Moreover, we observe that the Ohio Supreme Court has not
overruled Leach.
MEIGS, 22CA12
86
arrest, pre-Miranda silence violated the defendant’s privilege
against self-incrimination; the State introduced testimony
during its case-in-chief that, after an officer contacted the
defendant to request an interview, an attorney contacted the
officer to notify the officer that the defendant “was going to
exercise his constitutional right to remain silent”); State v.
Estepp, 2007-Ohio-2596, ¶ 32 (2d Dist.) (detective’s testimony
that defendant failed to return phone calls and cancelled police
interviews violated defendant’s right not to incriminate
himself). But see State v. Register,
2025-Ohio-106, ¶ 40 (8th
Dist.) (testimony that the defendant volunteered, but failed, to
bring police officers a written statement and photographs
depicting sexual conduct between a mother and her son did not
violate the defendant’s privilege against self-incrimination
when testimony concerned the defendant’s actions before “being
accused or charged with a crime”). The question then becomes
whether the error merits reversal. Zarauskas,
814 F.3d at 516;
see also Neder v. United States,
527 U.S. 1, 18 (1999), quoting
R. Traynor, The Riddle of Harmless Error 50 (1970) (“‘Reversal
MEIGS, 22CA12
87
for error, regardless of its effect on the judgment, encourages
litigants to abuse the judicial process and bestirs the public
to ridicule it.’”).
B
Pre-arrest Silence
1
Appellant’s Statement That He Did Not Want to Cooperate
{¶152} During the State’s opening statement, the prosecutor
stated, “They had a person claiming to be a victim of a
shooting, but that person did not want to cooperate, so there
was nothing else for them to do.” Although appellant did not
contemporaneously object during the State’s opening statement,
after the prosecutor completed his opening statement, appellant
requested a mistrial and asserted that the prosecutor improperly
commented on appellant’s “right to remain silent and to not
cooperate with the police while he was at the hospital in
Charleston, West Virginia.” The State argued that nothing
prohibited it from stating that appellant did not want to
cooperate with the officers who had questioned him not as a
MEIGS, 22CA12
88
criminal suspect but as an alleged crime victim. The trial
court did not immediately rule on appellant’s motion for a
mistrial and instead delayed ruling on it until the next day to
allow the court sufficient time to research the issue.
{¶153} The next day, the trial court overruled appellant’s
motion for a mistrial. The court cautioned the State, however,
not to mention appellant’s “lack of cooperation with any law
enforcement in regards to this case, unless or until he takes
the stand.” After defense counsel finished his opening
statement, the trial court also instructed the jury that
appellant “has the absolute right not to be forced to testify
against himself” and that “[i]f he elects not to testify at
trial, his silence cannot be used against him in any attempt to
prove his [guilt].”
{¶154} Agent Jenkins testified that an individual, later
identified as appellant, had presented to the Charleston Area
Medical Center with a gunshot wound to his upper right arm.
Agent Jenkins indicated that this individual “gave a fake name
and . . . didn’t want to . . . be interviewed.” At that point,
MEIGS, 22CA12
89
the prosecutor interjected that he was “going to stop [the
testimony] right there.” The prosecutor asked the court for
permission to approach the bench, but the record does not
contain any information about what the parties may have
discussed at the bench. The trial transcript indicates that the
prosecutor next asked the agent to explain any other information
gathered from appellant’s hospital stay.
{¶155} Appellant did not contemporaneously object to the
prosecutor’s comment during opening statement or to Agent’s
Jenkins’s testimony. We thus review these two alleged errors
for plain error.
{¶156} We again note that appellate courts have discretion to
consider “[p]lain errors or defects affecting substantial
rights.” Crim.R. 52(B); e.g., State v. Jones, 2020-Ohio-3051, ¶
17, quoting State v. Rogers,
2015-Ohio-2459, ¶ 23 (“An appellate
court has discretion to notice plain error and therefore ‘is not
required to correct it.’”). A party asserting plain error must
demonstrate the following: (1) an error occurred; (2) the error
was obvious; and (3) a reasonable probability that the error
MEIGS, 22CA12
90
affected the outcome of the proceeding. State v. Echols, 2024-
Ohio-5088, ¶ 50.
{¶157} In the case at bar, even if the prosecutor’s comment
was an obvious error, any error did not affect the outcome of
the proceedings. First, as indicated above, defense counsel
moved for a mistrial based upon the prosecutor’s comment, and
the trial court later gave the jury a curative instruction to
inform the jurors that appellant’s silence could not be used to
prove his guilt. Additionally, the prosecutor’s comment was a
brief reference to appellant’s statement that he did not want to
cooperate with the Charleston police and did not suggest that
appellant’s statement indicated his guilt. See generally State
v. Treesh, 90 Ohio St.3d 460, 480 (2001), citing Meeks v.
Havener,
545 F.2d 9, 10 (6th Cir. 1976) (“A single comment by a
police officer as to a suspect’s silence without any suggestion
that the jury infer guilt from the silence constitutes harmless
error.”);
Meeks at 10 (an officer’s statement that the defendant
informed the officer that “he would not care to speak of this
case” constituted harmless error when neither the officer nor
MEIGS, 22CA12
91
the prosecution, during closing argument, used the defendant’s
comment “to suggest that the jury draw an implication of guilt
from silence”). Moreover, as we explain in our discussion of
appellant’s sixth assignment of error, the record otherwise
contains overwhelming evidence to support appellant’s
conviction. Thus, even absent the prosecutor’s comment, the
result of the trial would not have been different.
{¶158} Likewise, even if Agent Jenkins’s testimony was an
obvious error, any error did not affect the outcome of the
proceedings. The agent’s testimony was a brief reference to
appellant’s statement that he did not want to cooperate with the
Charleston police and did not suggest that appellant’s statement
indicated his guilt. See generally Treesh; Meeks at 10.
Furthermore, nothing indicates that the result of the trial
would have been different if Agent Jenkins had not testified
that appellant did not wish to be interviewed.
{¶159} Consequently, we do not agree with appellant that any
error that may have occurred requires a reversal.
2
MEIGS, 22CA12
92
Deputy Barnhart’s Testimony
{¶160} When responding to the prosecutor’s question about
investigative steps, Deputy Barnhart stated that “we had set a
meeting for [appellant] to come in and talk to us. Um, which
did not ever happen.” Appellant objected, and the trial court
sustained the objection. The court also instructed the jury “to
disregard any statement made by anybody, law enforcement,
witness, or anybody else, about, us, where or not [appellant],
uh, took part in the investigation.” The court advised the jury
that appellant “had the absolutely [sic] right to remain silent
and in no way make any statements to law enforcement” and
instructed the jury “to disregard that statement for any
purpose.”
{¶161} Because appellant objected when Deputy Barnhart
testified that a meeting that officers had arranged with
appellant did not occur, we review this claimed error for
harmless error. See Neder v. United States, 527 U.S. 1, 18
(1999) (“The erroneous admission of evidence in violation of the
Fifth Amendment’s guarantee against self-incrimination . . .
MEIGS, 22CA12
93
[is] subject to harmless-error analysis.”); State v. Powell,
2012–Ohio–2577, ¶ 162 (a violation of a defendant’s privilege
against self-incrimination is subject to harmless-error review).
An error is harmless if the record demonstrates “beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error[.]” Neder v, 527 U.S. at 18;
id. at 19, quoting Chapman v. California,
386 U.S. 18, 22 (1967)
(harmless errors are “‘small errors or defects that have little,
if any, likelihood of having changed the result of the trial’”);
State v. Smith,
49 Ohio St.3d 137, 143 (1990) (“Unless there is
a reasonable possibility that the improperly admitted evidence
contributed to the conviction, reversal is not required”); see
also Crim.R. 52(A) (“Any error, defect, irregularity, or
variance which does not affect substantial rights shall be
disregarded.”); State v. Graham,
2020-Ohio-6700, ¶ 55 (under the
harmless-error standard, “the state bears the burden of
demonstrating that the error did not affect the substantial
rights of the defendant”).
MEIGS, 22CA12
94
{¶162} The State’s use of a defendant’s pre-arrest silence
constitutes harmless error when any comments were not extensive,
the State did not emphasize that the defendant’s pre-arrest
silence constituted evidence of guilt, and the evidence
otherwise overwhelmingly establishes the defendant’s guilt. See
State v. Wiley, 2022-Ohio-2131, ¶ 46 (8th Dist.) (the State’s
use of the defendant’s pre-arrest silence was harmless error
when “the prosecutor’s questions were not extensive, the state
did not stress to the jury that [the defendant]’s prearrest
silence demonstrated guilt, and there was other overwhelming
evidence of [the defendant]’s guilt, including [the defendant]’s
admissions that he shot [the victim] in the back as he ran away,
he is a drug dealer, and all of the items the police found in
his backpack, including the gun, were his”); see also State v.
Powell,
2012-Ohio-2577, ¶ 162 (improper comment on a defendant’s
privilege against self-incrimination constitutes harmless error
when the “improper comments were brief and isolated”).
Conversely, the State’s use of a defendant’s pre-arrest silence
constitutes reversible error when the State’s case against the
MEIGS, 22CA12
95
defendant “contain[s] no physical evidence and rest[s] solely on
the credibility of the state’s witnesses.” Leach, 2004-Ohio-
2147, at ¶ 29.
{¶163} In the case at bar, we believe that Deputy Barnhart’s
testimony that a scheduled meeting with appellant did not occur
constituted harmless error. First, we observe that the deputy’s
testimony does not indicate why the meeting did not occur, and
thus, whether the testimony actually comments on appellant’s
privilege against self-incrimination is questionable. Even if
the deputy’s testimony was, however, an improper comment on
appellant’s privilege against self-incrimination, that comment
was not specific or direct, meaning that the deputy did not
state that the officers had scheduled a meeting with appellant
and that he failed to appear. Furthermore, even if the jury
inferred that the meeting did not occur because appellant failed
to appear, we observe that, after the deputy testified that the
meeting did not occur, appellant objected, and the trial court
instructed the jury to disregard the testimony. See Powell,
2012-Ohio-2577, at ¶ 162 (prosecutor’s improper comment on the
MEIGS, 22CA12
96
defendant’s privilege against self-incrimination constituted
harmless error when, inter alia, “the trial court immediately
sustained a defense objection to the prosecutor’s argument and
ordered the jury to disregard it”). We presume that the jury
followed the court’s curative instruction. See State v. Loza,
71 Ohio St.3d 61, 75 (1994); State v. Zuern,
32 Ohio St.3d 56,
61 (1987). We also note that neither the State’s opening
statement nor closing argument commented upon the meeting’s
nonoccurrence or suggested that the nonoccurrence was indicative
of appellant’s guilt. Additionally, as we explain in our
discussion of appellant’s sixth assignment of error, the
evidence of appellant’s guilt otherwise is overwhelming.
Therefore, the record establishes beyond a reasonable doubt that
a rational jury would have found appellant guilty even without
the deputy’s statement that a scheduled meeting did not occur.9
9 We note that the State contends that the trial court
should have allowed the testimony as testimony regarding the
course of the officers’ investigation. See Leach, 2004-Ohio-
2147, at ¶ 32. Given our discussion above, however, we do not
address this argument.
MEIGS, 22CA12
97
C
Post-arrest Silence
{¶164} Deputy Spiker testified that he retrieved appellant
from jail and drove him to the hospital for medical attention.
The deputy indicated that appellant had a “bullet [that] had
begun working itself out of the arm.” The deputy stated that
during his interaction with appellant, the deputy advised
appellant that “his Miranda Rights . . . still apply and that
anything that he said could be used against him in [c]ourt.”
After this statement, the prosecutor asked the deputy to
identify a photograph that depicted appellant’s right arm with
“a bullet projectile type sticking out of the skin about
halfway.” Appellant claims that the absence of testimony
between the deputy’s response and the State’s next question
suggested to the jury that appellant exercised his right to
remain silent after receiving Miranda warnings.
{¶165} The prosecution’s use of a defendant’s post-arrest,
post-Miranda silence to impeach the defendant or as substantive
evidence of the defendant’s guilt violates a defendant’s due
MEIGS, 22CA12
98
process rights. See Vega v. Tekoh, 597 U.S. 134, 146–47 (2022);
Wainwright v. Greenfield,
474 U.S. 284, 291 (1986); Doyle v.
Ohio,
426 U.S. 610, 617–619 (1976). The rationale for this rule
is based upon the prophylactic rule set forth in Miranda that
informs a defendant that the defendant has the right to remain
silent and the right to an attorney. Using a defendant’s post-
Miranda silence would be contrary to the Miranda warnings and
allow the State to take advantage of a defendant who chooses to
remain silent when the Miranda warnings specifically gave the
defendant the right to do so. See Wainwright at 291 (“breaching
the implied assurance of the Miranda warnings is an affront to
the fundamental fairness that the Due Process Clause requires”);
Doyle at 618 (although “the Miranda warnings contain no express
assurance that silence will carry no penalty, such assurance is
implicit to any person who receives the warnings”).
{¶166} In the case at bar, Deputy Spiker’s testimony did not
improperly comment on appellant’s decision to remain silent
after the deputy re-advised appellant of his Miranda rights.
After the deputy stated that he re-advised appellant of his
MEIGS, 22CA12
99
Miranda rights, the deputy did not state that appellant then
chose to remain silent. Instead, the prosecutor changed the
line of questioning and asked the deputy to identify some
photographs that depicted the bullet protruding from appellant’s
arm. Thus, the State did not use appellant’s post-arrest, post-
Miranda silence as substantive evidence of the defendant’s
guilt.
{¶167} Even if the deputy’s testimony suggested that
appellant remained silent and thus constituted an improper
comment, we note that appellant did not contemporaneously object
to the deputy’s testimony. Appellant’s failure to object at a
time when the trial court could have corrected any error means
that he forfeited all but plain error for purposes of appeal.
Nothing in the record suggests that the outcome of the trial
would have been different if Deputy Spiker had not stated that
he re-advised appellant of his Miranda rights. Moreover, the
record does not establish that the case at bar is one of the
rare cases in which failing to recognize the alleged error would
result in a manifest miscarriage of justice.
MEIGS, 22CA12
100
{¶168} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fourth assignment of error.
III
Fifth Assignment of Error
{¶169} In his fifth assignment of error, appellant argues
that the trial court deprived him of due process and a fair
trial by allowing the State to introduce allegedly improper
victim-impact evidence. Appellant asserts that this evidence
started during the prosecution’s opening statement, when the
prosecutor stated the following:
[The victim] was a young man who was only twenty five
(25) years old, um, he was in the prime of his life. He
graduated from Wahama High School. He excelled in
football there and that helped him continue with his
education at the University of Charleston, where he
played football and graduated with a degree in Business
Marketing. He lived here in Pomeroy at 108 Legion
Terrace. Uh, he was working with his father and his
concrete business, and his plan one day was to take over
that concrete business from his father once his father
retired.
{¶170} Appellant contends that the victim-impact evidence
continued during Agent Jenkins’s testimony, when he stated that
the victim was “tough” and had the “will to live.” Agent
MEIGS, 22CA12
101
Jenkins further testified that the victim was “very well-liked”
in the community, and an “all-star athlete, uh, just one of
those guys that everyone liked, everybody wanted to know,
everybody wanted to be around.”
{¶171} Appellant asserts that neither the prosecution’s
opening statement nor Agent Jenkins’s testimony was “relevant to
any of the issues before the jury.” Instead, appellant contends
that the information served to remind the jury that the victim
“was a good person,” his death was tragic, and his family wanted
justice. Appellant claims that the prosecution’s opening
statement and Agent Jenkins’s testimony made the jury biased
against him and made “it unlikely that they could fairly
consider whether [appellant] was actually guilty.” Appellant
contends that the “evidence was substantially outweighed by
unfair prejudice under Evid.R. 403(A), and should have been
excluded.”
{¶172} Appellant further observes that his trial counsel did
not object to the prosecution’s opening statement or to Agent
Jenkins’s testimony. He nevertheless asks this court to review
MEIGS, 22CA12
102
this assignment of error for plain error or to consider whether
trial counsel provided ineffective assistance of counsel by
failing to object.
{¶173} The State does not agree that it presented improper
victim-impact evidence. The State first asserts that its
opening statement was not evidence and that it offered relevant
information regarding the victim to provide background about the
case, not to impermissibly appeal to the jury’s emotions. The
State contends that the opening statement simply offered
personal characteristics of the victim and did not comment on
any emotional impact on the victim’s family.
{¶174} The State further argues that its opening statement
“did not serve to remind the jury what a good person the victim
was, how tragic it was that he died, or how the victim’s parents
wanted justice.” The State asserts that its opening statement
did not “seek to direct the jury away from the facts of the case
and towards feelings of sympathy to the victim’s family and
anger towards Appellant.” The State also disagrees with
appellant that the trial court should have excluded the comments
MEIGS, 22CA12
103
made during opening statement. The State again asserts that
opening statements are not evidence and that Evid.R. 403(A) thus
does not apply to opening statements.
{¶175} The State additionally disputes appellant’s argument
that Agent Jenkins’s testimony contained improper victim-impact
evidence. The State contends that the agent’s testimony did not
relate to the emotional impact of the crime on the victim’s
family. The State argues that Agent Jenkins’s testimony was
relevant to show the victim’s path from his home to his
neighbor’s home and to illustrate the investigative steps law
enforcement officers took to try to identify a suspect who may
have had a motive for the murder. The State asserts that the
agent’s testimony “did not seek to direct the jury away from the
facts of the case and towards feelings of sympathy to the
victim’s family and anger towards [a]ppellant.”
A
Standard of Review
{¶176} We first observe that appellant failed to
contemporaneously object to the prosecutor’s opening statement
MEIGS, 22CA12
104
and to Agent Jenkins’s testimony. He therefore forfeited all
but plain error for purposes of appeal. We again observe that
to establish that plain error occurred, appellant must show that
“an error occurred, that the error was obvious, and that there
is ‘a reasonable probability that the error resulted in
prejudice,’ meaning that the error affected the outcome of the
trial.” State v. McAlpin, 2022-Ohio-1567, ¶ 66, quoting State
v. Rogers,
2015-Ohio-2459, ¶ 22. As we explain below, we do not
believe that the trial court erred by allowing improper victim-
impact testimony. Furthermore, even if the trial court
obviously erred by allowing improper victim-impact evidence, the
error did not affect the outcome of the trial.
B
Victim-impact Evidence
{¶177} “Victim-impact evidence includes evidence relating to
the victim’s personal characteristics and the impact that the
crimes had on the victim’s family.” State v. Graham, 2020-Ohio-
6700, ¶ 113; accord McAlpin at ¶ 113. “Victim-impact testimony
is admissible during the guilt phase of the proceedings only
MEIGS, 22CA12
105
when it is relevant to the commission of the offense and it is
not overly emotional.” Graham at ¶ 136; accord State v. Gross,
2002-Ohio-5524, ¶ 62 (victim-impact testimony is relevant and
admissible during the guilt phase of a death-penalty trial when
the testimony concerns the circumstances surrounding the
commission of the murder); State v. Beuke,
38 Ohio St.3d 29, 40
(1988) (“victim-background evidence may be relevant to
establishing facts of consequence or otherwise necessary to
prove an element of the crime”); see also State v. Fautenberry,
72 Ohio St.3d 435, 440 (1995) (“[e]vidence relating to the facts
attendant to the offense, however, is clearly admissible during
the guilt phase.”); Evid.R. 401 (defining relevant evidence as
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence”).
{¶178} “Testimony is overly emotional when it is likely to
inflame the passions of the jurors and elicit a purely emotional
response that would inhibit the jurors from making an objective
MEIGS, 22CA12
106
and rational determination regarding the defendant’s guilt
and/or the appropriate punishment.” Graham, 2020-Ohio-6700, at
¶ 123. Courts that are deciding whether testimony is overly
emotional may consider the following factors: (1) “‘the length
of the victim-impact testimony’”; (2) “‘whether witnesses,
jurors, and audience members showed physical signs of emotion
during the testimony’”; (3) “‘the detail and depth of the
victim-impact testimony with regard to the murder victim[s]’”;
and (4) “‘whether the victim-impact witness used emotionally
charged language.’” McAlpin,
2022-Ohio-1567, at ¶ 114, quoting
Graham at ¶ 126; accord State v. Nicholson,
2024-Ohio-604, ¶
194.
{¶179} Even if victim-impact evidence is relevant and not
overly emotional, however, Evid.R. 403(A) prohibits its
admission if the “probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of the issues, or
of misleading the jury.” Victim-impact evidence carries a risk
of prejudice because it “serves to inflame the passion of the
jury with evidence collateral to the principal issue at bar.”
MEIGS, 22CA12
107
State v. White, 15 Ohio St. 2d 146, 151 (1968). Additionally,
the improper admission of victim-impact evidence “increases the
likelihood that arbitrary factors will influence the jury’s
decisions, which increases the possibility that a reversal will
be required.” Graham,
2020-Ohio-6700, at ¶ 136.
{¶180} Moreover, “[i]n the event that evidence is introduced
that is so unduly prejudicial that it renders the trial
fundamentally unfair, the Due Process Clause of the Fourteenth
Amendment provides a mechanism for relief.” Payne v. Tennessee,
501 U.S. 808, 825 (1991). Courts “have defined the category of
infractions that violate ‘fundamental fairness’ very narrowly,”
however. Dowling v. United States,
493 U.S. 342, 352 (1990).
{¶181} In the case at bar, an obvious error did not occur
when the prosecutor introduced the case to the jury by citing
background information about the victim. The prosecutor’s brief
description of the victim in his opening statement simply
pointed out the victim’s age and provided context that explained
that he had been living in Meigs County before his death. See
State v. Williams, 2003-Ohio-4164, ¶43, quoting State v.
MEIGS, 22CA12
108
Lorraine, 66 Ohio St.3d 414, 420 (1993) (“the ‘circumstances of
the victims are relevant to the crime as a whole. The victims
cannot be separated from the crime.”); State v. McKnight, 2005-
Ohio-6046, ¶ 102 (trial court did not plainly err by allowing
prosecutor to comment, during opening statement, upon the
victim’s age and college attendance); see id. at ¶ 103 (plain
error did not result from prosecutor’s “brief and not overly
emotional” statements during closing argument that described the
victim “as a nice, kind-hearted, and helpful person to point out
the likelihood that [the victim] provided a ride to [the
defendant] on the night she disappeared”).
{¶182} To the extent that the prosecutor improperly commented
upon victim-impact evidence, we note that the trial court
instructed the jury that opening statements are not evidence,
and this instruction “cured any error,” Nicholson, 2024-Ohio-
604, at ¶ 199, citing State v. Treesh, 90 Ohio St.3d 460, 480
(2001). Furthermore, nothing suggests that allowing the
prosecutor to begin the opening statement with a short
description of the victim was so extremely unfair that allowing
MEIGS, 22CA12
109
the comment violated fundamental notions of justice so as to
violate appellant’s due process rights. Consequently, we do not
believe that the trial court plainly erred by failing to
interrupt the State’s opening statement to instruct the jury to
disregard the statement relating to the victim’s background.
Nothing in the State’s opening statement was laden with emotion
or sought solely to appeal to the jury’s sympathies.
{¶183} Moreover, Agent Jenkins’s testimony that the victim
was “very well-liked” in the community, and an “all-star
athlete, uh, just one of those guys that everyone liked,
everybody wanted to know, everybody wanted to be around” helped
explain the circumstances that led officers to a suspect.
Before the agent testified about the victim’s background and
relationships, he had stated that “in any murder investigation,
especially when [officers] don’t automatically know who the
suspect is” officers “try to gain as much knowledge about that
victim as [they] can.” Agent Jenkins stated that this inquiry
involves considering the victim’s activities, friends, family,
spouse, children, and any other significant individuals. He
MEIGS, 22CA12
110
explained that once an officer gathers background information
about a victim, then the officer “can start piecing together
what might have been going on in [the victim]’s life” and what
motivated a person to kill the victim.
{¶184} Agent Jenkins’s testimony thus did not serve as
victim-impact evidence. Instead, the agent stated that
exploring the victim’s background and relationships helped him
understand whether anyone had a motive to kill him. See State
v. Allard, 75 Ohio St.3d 482, 500 (1996) (“testimony concerning
[the victim]’s plan to remarry was relevant to [the defendant]’s
motive to commit the murders”); see generally State v. Maxwell,
2014-Ohio-1019, ¶ 137 (testimony about the victim’s “family and
her divorce provided background information about [the victim]’s
relationship with [the defendant] and the witnesses who
testified” and was not prejudicial victim-impact testimony when
it was not overly emotional).
{¶185} Additionally, even if Agent Jenkins’s testimony that
the victim was “tough” and had the “will to live” did not relate
to the facts and circumstances of the crime or to officers’
MEIGS, 22CA12
111
investigation, the agent’s testimony was brief and not overly
emotional. See Nicholson, 2024-Ohio-604, at ¶ 197 (testimony
that the victims “had been ‘good kids’ or ‘respectful’ or
‘polite’” did not constitute improper victim-impact testimony
when testimony was “brief, served to establish the existence of
the victims, and provided the jury with a backdrop against which
to view the relationships between [the defendant] and each of
the victims”); State v. Wilks,
2018-Ohio-1562, ¶ 78 (testimony
that the victim “‘had a beautiful heart,’” “‘was smart, caring,
funny,’” “‘loved to make people laugh,’” “‘commanded
attention,’” and was “‘the best thing since sliced bread’” did
not constitute improper victim-impact testimony when it was
brief, not overly emotional, and did not mention the effect that
the victim’s death had on the families). Compare Graham, 2020-
Ohio-6700, at ¶105, ¶ 117, ¶ 133, and ¶ 134 (trial court erred
by allowing victim’s father’s testimony, spanning 10 pages of
the transcript, about the victim’s “life and the impact his
death has had upon [the] father, especially when that testimony
provided the jury with no relevant facts attendant to the
MEIGS, 22CA12
112
offense and the jury had already received evidence that [the
victim] had been a living person,” but the testimony was not
overly emotional, so the error was not prejudicial); McKnight at
¶ 99 (father’s statement that “his daughter’s disappearance was
‘like somebody hit [him] in the stomach with a sledgehammer’ was
of questionable relevance”).
{¶186} We therefore do not believe that the trial court
plainly erred by allowing Agent Jenkins’s testimony regarding
the victim’s “tough[ness],” “will to live,” background, or
reputation in the community.
{¶187} To the extent appellant alternatively asserts that
trial counsel rendered ineffective assistance of counsel by
failing to object to the State’s opening statement or to Agent
Jenkins’s testimony, appellant cannot establish that counsel’s
failure to object was anything other than legitimate trial
strategy.10 See State v. Conway, 2006-Ohio-2815, ¶ 103 (trial
10We include the legal principles that apply to an
ineffective-assistance-of-counsel claim in our discussion of
appellant’s seventh assignment of error.
MEIGS, 22CA12
113
counsel’s “failure to make objections is not alone enough to
sustain a claim of ineffective assistance of counsel”); accord
State v. Sowell, 2016-Ohio-8025, ¶ 144 (rejecting argument that
failing to preserve error is inherently prejudicial and stating,
“[i]t is not enough that an alleged error resulted in a
disadvantage for an accused”). And even if counsel’s failure to
object was deficient, appellant cannot establish prejudice. See
State v. Fears,
86 Ohio St.3d 329, 347 (1999) (defendant must
“show that any particular failure to object substantially
violated [an] essential duty [and] was prejudicial”); accord
State v. Holloway,
38 Ohio St.3d 239, 244 (1988) (stating that
failure to object insufficient on its own to establish
ineffective assistance of counsel; instead, a defendant still
must demonstrate that counsel substantially violated an
essential duty and that counsel’s performance materially
prejudiced the defense).
{¶188} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fifth assignment of error.
IV
MEIGS, 22CA12
114
Sixth Assignment of Error
{¶189} In his sixth assignment of error, appellant argues
that the record does not contain sufficient evidence to support
his conviction and that his conviction is against the manifest
weight of the evidence. Appellant claims that the State failed
to prove beyond a reasonable doubt that he “purposely cause[d]
the death of another.”11 Appellant contends that (1) the
accomplice testimony of Richard Walker that implicated appellant
was not credible, (2) the State failed to establish a proper
chain of custody for several items of physical evidence and
otherwise failed to establish that law enforcement officers
followed proper protocols when collecting and logging evidence,
and (3) the State did not properly authenticate the letters that
appellant purportedly wrote while in jail.
{¶190} As we explain below, we believe that the record
contains sufficient evidence to support appellant’s conviction
11We recognize that appellant has not challenged the priorcalculation-and-design element needed to prove aggravated
murder. We limit our review accordingly.
MEIGS, 22CA12
115
and that his conviction is not against the manifest weight of
the evidence.
A
Sufficiency and Manifest Weight of the Evidence
{¶191} Initially, we observe that “sufficiency” and “manifest
weight” present two distinct legal concepts. Eastley v.
Volkman, 2012-Ohio-2179, ¶ 23 (“sufficiency of the evidence is
quantitatively and qualitatively different from the weight of
the evidence”); State v. Thompkins,
78 Ohio St.3d 380 (1997),
syllabus. A claim of insufficient evidence invokes a due
process concern and raises the question whether the evidence is
legally sufficient to support the verdict as a matter of law.
Thompkins,
78 Ohio St.3d at 386; see Jackson v. Virginia,
443
U.S. 307, 316 (1979) (stating that one of the essential
guarantees of the due process protections under the Fourteenth
Amendment is “that no person shall be made to suffer the onus of
a criminal conviction except upon sufficient proof—defined as
evidence necessary to convince a trier of fact beyond a
MEIGS, 22CA12
116
reasonable doubt of the existence of every element of the
offense”). Appellate review of a sufficiency-of-the-evidence
challenge is de novo. Thompkins at 386 (“‘Whether the evidence
is legally sufficient to sustain a verdict is a question of
law.’”); accord State v. Bertram,
2023-Ohio-1456, ¶ 8 (“A
challenge to the sufficiency of the evidence is reviewed de
novo.”); see Painter and Pollis, Ohio Appellate
Practice, Appendix G (2023) (sufficiency challenge “trigger[s]
de novo review”).
{¶192} When reviewing the sufficiency of the evidence, an
appellate court’s inquiry focuses primarily upon the adequacy of
the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable
doubt. Thompkins at syllabus. The “critical inquiry” on appeal
“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.” (Emphasis in original.) Jackson, 443 U.S.
at 318-319; e.g., State v. Dean,
2015-Ohio-4347, ¶ 150; State v.
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117
Jenks, 61 Ohio St.3d 259, 273 (1991), superseded by state
constitutional amendment on other grounds as stated in State v.
Smith,
80 Ohio St.3d 89, 102 (1997), fn. 4. Furthermore, the
sufficiency-of-the-evidence inquiry does not permit a reviewing
court to assess “whether the state’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would
support a conviction.” Thompkins,
78 Ohio St.3d at 390 (Cook,
J., concurring); accord State v. Pountney,
2018-Ohio-22, ¶ 19.
{¶193} Thus, when reviewing a sufficiency-of-the-evidence
claim, an appellate court must construe the evidence in a light
most favorable to the prosecution. E.g., State v. Hill, 75 Ohio
St.3d 195, 205 (1996); State v. Grant,
67 Ohio St.3d 465, 477
(1993). A reviewing court will not overturn a conviction on a
sufficiency-of-the-evidence claim unless reasonable minds could
not reach the conclusion that the trier of fact did. State v.
Tibbetts,
92 Ohio St.3d 146, 162 (2001); State v. Treesh,
90
Ohio St.3d 460, 484 (2001); see also In re Z.C.,
2023-Ohio-4703,
¶ 13, quoting Bryan-Wollman v. Domonko,
2007-Ohio-4918, ¶ 3,
quoting
Thompkins at 386, 678 N.E.2d 541, quoting Black’s at
MEIGS, 22CA12
118
1433 (“‘When applying a sufficiency-of-the-evidence standard, a
court of appeals should affirm a trial court when “‘the evidence
is legally sufficient to support the jury verdict as a matter of
law.’”’”); Burks v. United States, 437 U.S. 1, 16 (1978)
(reversal for insufficient evidence “means that the government’s
case was so lacking that it should not have even been submitted
to the jury” [emphasis sic]).
{¶194} “Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence,
that court may nevertheless conclude that the judgment is
against the weight of the evidence.” Thompkins, 78 Ohio St.3d
at 387. Appellate review under the manifest-weight-of-the-
evidence standard is deferential. See Z.C. at ¶ 15 (“the phrase
‘some competent, credible evidence’ can be helpful in describing
the reviewing court’s deferential role in the manifest-weight
analysis”); Black’s (12th ed. 2024) (the phrase “manifest weight
of the evidence” “denotes a deferential standard of review under
which a verdict will be reversed or disregarded only if another
MEIGS, 22CA12
119
outcome is obviously correct and the verdict is clearly
unsupported by the evidence”).
{¶195} A manifest-weight challenge involves an inquiry into
the persuasiveness of the evidence. See State v. Martin, 2022-
Ohio-4175, ¶ 26, quoting Eastley, 2012-Ohio-2179, at ¶ 19 (“The
term ‘“manifest weight of the evidence” . . . relates to
persuasion.’”); State v. Wilson,
2007-Ohio-2202, ¶ 25 (manifest-
weight inquiry asks “whose evidence is more persuasive”). A
court that is considering a manifest-weight challenge must
“‘review the entire record, weigh the evidence and all
reasonable inferences, and consider the credibility of
witnesses.’” State v. Beasley,
2018-Ohio-493, ¶ 208, quoting
State v. McKelton,
2016-Ohio-5735, ¶ 328. In conducting this
review, “the appellate court sits as a ‘thirteenth juror’” and
may disagree with the jury’s resolution of the conflicting
testimony. Tibbs v. Florida,
457 U.S. 31, 42 (1982); accord
Thompkins,
78 Ohio St.3d at 387. The reviewing court must bear
in mind, however, that credibility generally is an issue for the
trier of fact to resolve. State v. Issa,
93 Ohio St.3d 49, 67
MEIGS, 22CA12
120
(2001); State v. Murphy, 2008-Ohio-1744, ¶ 31 (4th Dist.).
“‘Because the trier of fact sees and hears the witnesses and is
particularly competent to decide “whether, and to what extent,
to credit the testimony of particular witnesses,” we must afford
substantial deference to its determinations of credibility.’”
Barberton v. Jenney,
2010-Ohio-2420, ¶ 20, quoting State v.
Konya,
2006-Ohio-6312, ¶ 6 (2d Dist.), quoting State v. Lawson,
1997 WL 476684 (2d Dist. Aug. 22, 1997). As the Eastley court
explained:
“‘[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment must be made in favor of the
judgment and the finding of facts. . . .
If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it
that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the verdict
and judgment.’”
Id. at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10
Ohio St.3d 77, 80 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d,
Appellate Review, § 60, at 191-192 (1978); accord Z.C., 2023-
Ohio-4703, at ¶ 14, quoting
Eastley at ¶ 21 (when “weighing the
MEIGS, 22CA12
121
evidence, the court of appeals must always be mindful of the
presumption in favor of the finder of fact”).
{¶196} Thus, an appellate court will “leave the issues of
weight and credibility of the evidence to the fact finder, as
long as there is a rational basis in the record for [its]
decision.” State v. Picklesimer, 2012-Ohio-1282, ¶ 24 (4th
Dist.); accord State v. Howard,
2007-Ohio-6331, ¶ 6 (4th Dist.)
(“We will not intercede as long as the trier of fact has some
factual and rational basis for its determination of credibility
and weight.”); see also Tibbs v. Florida,
457 U.S. 31, 45 (1982)
(suggesting that a verdict is not against the weight of the
evidence when the evidence “rationally supports [the] verdict”).
{¶197} Accordingly, if the prosecution presented substantial,
credible evidence upon which the trier of fact reasonably could
conclude, beyond a reasonable doubt, that the essential elements
of the offense had been established, the judgment of conviction
is not against the manifest weight of the evidence. E.g., State
v. Eley, 56 Ohio St.2d 169 (1978); see also
Eastley at ¶ 12,
quoting Thompkins,
78 Ohio St.3d at 387, quoting Black’s (6th
MEIGS, 22CA12
122
ed.1990) (judgment not against the manifest weight of evidence
when “‘“the greater amount of credible evidence”’” supports it);
see also State v. Leonard, 2004-Ohio-6235, ¶ 81, quoting State
v. Getsy,
84 Ohio St.3d 180, 193-194 (1998), citing Eley at
syllabus (“The question to be answered when a manifest-weight
issue is raised is whether ‘there is substantial evidence upon
which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.’” [emphasis in
original.]). A court may reverse a judgment of conviction only
if it appears that the fact finder, when it resolved the
conflicts in evidence, “‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’”
Thompkins at 387, quoting
State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist.1983). A
reviewing court should find a conviction against the manifest
weight of the evidence only in the “‘exceptional case in which
the evidence weighs heavily against the conviction.’”
Id.,
quoting Martin,
20 Ohio App.3d at 175; accord State v. Clinton,
MEIGS, 22CA12
123
2017-Ohio-9423, ¶ 166; State v. Lindsey,
87 Ohio St.3d 479, 483
(2000).
B
Walker's Testimony
{¶198} Appellant first questions the credibility of Walker’s
testimony that appellant shot the victim. Appellant argues that
Walker’s testimony that appellant shot the victim is not worthy
of belief because, if appellant had been present at the crime
scene, as Walker claimed, then the victim would have identified
appellant when the victim’s neighbor asked the victim who shot
him. He claims that the victim instead identified the assailant
as “some black guy.” Appellant states that the victim’s
statement that “some black guy” shot him is not sufficient
evidence to convict him of purposely killing the victim and that
the jury lost its way by crediting Walker’s testimony.
{¶199} Appellant also contends that Walker’s testimony is not
worthy of belief because (1) Walker entered into a plea bargain
with the State that allowed him to escape a life sentence in
MEIGS, 22CA12
124
exchange for his testimony, and (2) he admitted that he had
given law enforcement officers multiple stories.
{¶200} Appellant also asserts that the physical evidence, or
lack thereof, does not corroborate Walker’s testimony.
1
“Some black guy”
{¶201} Appellant first contends that the State’s “entire
case” rested on Walker’s testimony and that the jury should not
have believed Walker’s testimony. Appellant observes that,
before the victim died, the victim identified the person who
shot him as “some black guy.” Appellant asserts that the
evidence shows that appellant and the victim knew each other.
He thus suggests that if appellant truly had hit the victim with
the butt of the shotgun, as Walker claimed, then appellant would
have identified appellant as the “black guy” who shot him.
Appellant argues that the victim’s failure to identify appellant
as the person who hit him or shot him indicates that Walker did
not tell the truth about appellant’s involvement. He claims
that the victim identifying the assailant as “some black guy” is
MEIGS, 22CA12
125
thus insufficient to convict appellant and that the jury lost
its way by crediting Walker’s testimony.
{¶202} Appellant additionally claims that a reasonable juror
could not have believed Walker’s testimony that, when the victim
opened the door, appellant hit the victim and caused him to
stumble back into the house. Appellant questions whether
appellant, “lurking out of sight along the side of the door,”
could have “muster[ed] enough force to knock a college football
player off-balance.” He states, “If [appellant] was close
enough to hit [the victim] with the butt of a shotgun, why
didn’t [the victim] tell anybody?” Appellant disputes the
State’s assertion that the victim did not know that appellant
“was the one who hit him with the butt of the shotgun because
[appellant] was hiding along the side of the door when [the
victim] answered and was hit.” Appellant claims that the record
contradicts the State’s suggestion and contends that Walker
testified that appellant hit the victim in his chest in a manner
that caused the victim to “stumble[] back.”
MEIGS, 22CA12
126
{¶203} The State does not agree with appellant that the
victim’s failure to name appellant as the person who shot him
shows that the jury lost its way when crediting Walker’s
testimony that appellant shot the victim. The State contends
that the evidence established that Nelson, an African American
male, shot the victim and that the victim did not know Nelson.
The State argues that the evidence further showed that, after
Nelson shot the victim, appellant “approached [the victim] from
behind and shot him with a shotgun multiple times in the back.”
The State asserts that the victim most likely did not see who
shot him in the back. According to the State, therefore, the
victim’s statement that “some black guy” shot him likely
referred to Nelson.
{¶204} The State further argues that the victim’s failure to
specify appellant as one of the persons who shot him could be
due to “any number of reasons.” The State suggests that the
victim may not have seen who hit him with the butt of the
shotgun “because Nelson knocked on the door and [appellant] was
hiding along the side of the door when [the victim] answered and
MEIGS, 22CA12
127
was hit.” The State also points out that the victim had
sustained gunshot and shotgun wounds that proved to be fatal and
was struggling to survive when he advised his neighbor that
“some black guy” shot him. The State asserts that, given the
victim’s dire situation, his lack of specificity about who shot
him and who ransacked his house was perfectly reasonable.
{¶205} Regarding appellant’s argument that the victim
identifying the assailant as “some black guy” is insufficient
evidence to convict appellant, we observe that the State’s case
did not rest solely upon the victim’s statement that “some black
guy” shot him. Instead, the State presented other evidence to
suggest that appellant was the individual who shot the victim in
the back with the shotgun. Walker testified that, after Nelson
shot the victim, he and Nelson ran to the car, and appellant
stayed behind. Walker then heard two shotgun blasts. Appellant
did not have any shotgun wounds, and the only other person in
the vicinity who displayed evidence of being shot with a shotgun
was the victim. The circumstantial evidence thus indicates that
MEIGS, 22CA12
128
appellant was the individual who shot the victim with the
shotgun.
{¶206} Additionally, the State presented evidence that
appellant wrote letters that suggested he had attempted to
concoct a story to attempt to prove that he did not shoot the
victim. Appellant also sustained a gunshot wound to his arm,
and the bullet removed from his arm matched the bullet retrieved
from the victim’s body. We therefore do not agree with
appellant that the State’s case rested solely upon the victim
identifying the individual who shot him as “some black guy.”
{¶207} Moreover, if the victim was shot from behind, then, as
the State asserts, the victim most likely did not see who shot
him in the back with the shotgun. His identification of “some
black guy” who shot him may have referred to Nelson. The victim
did not know Nelson, and Walker testified that Nelson shot the
victim with a .45-caliber weapon. The victim’s statement that
“some black guy” shot him thus may have referred to Nelson’s act
of shooting the victim with the .45-caliber weapon.
MEIGS, 22CA12
129
{¶208} With respect to appellant’s assertion that Walker
testified that appellant hit the victim in the chest, we observe
that the record does not support appellant’s assertion.
Instead, the prosecutor asked Walker if he recalled where
appellant hit the victim with the butt of the shotgun. Walker
stated, “I guess like his chest.” The prosecutor pressed Walker
for a more definitive answer and asked him whether he knew where
appellant hit the victim. Walker stated that he did not. He
clarified that he saw appellant hit the victim but did not
recall which part of the victim’s body appellant hit. Walker
did, however, recall that, after appellant hit the victim, the
victim “stumbled back” into his house.
{¶209} Furthermore, none of the evidence presented at trial
indicates whether the victim even had an opportunity to view
appellant’s face to be able to identify him by name. During his
testimony, Walker did not (1) explain why the victim failed to
identify appellant by name or (2) give any indication that the
victim had the opportunity to see appellant’s face. Walker
stated that Nelson knocked on the door and asked the victim if
MEIGS, 22CA12
130
he could use the phone. Before knocking on the door, Walker and
appellant had been standing toward the right side of the door,
potentially out of the victim’s line of sight. When the victim
opened the door, appellant hit him with the butt end of the
shotgun. The record does not indicate that the victim saw
appellant’s face before appellant hit him with the butt of the
shotgun or that he had the opportunity to view appellant’s face.
Even if he had, as the State observes, after the victim was
shot, he was struggling for his life. Thus, any failure to
specifically identify appellant as the individual who hit him
with the butt of the shotgun would be eminently understandable.
{¶210} Moreover, as the State notes, the shotgun wounds
indicate that the assailant shot the victim in the back. Thus,
the victim most likely did not have any opportunity to turn
around and see who shot him with the shotgun. Plus, the
shooting occurred in the dark of night, and neither party
presented any evidence regarding the lighting conditions at the
time of the victim’s shooting to suggest that he would have been
able to identify appellant if he had seen his face.
MEIGS, 22CA12
131
Consequently, the victim’s failure to identify appellant as the
individual who shot him, or to otherwise state that appellant
was present, does not suggest that the jury clearly lost its way
by crediting Walker’s testimony.
2
Walker’s Plea Bargain and Lies
{¶211} Appellant next claims that Walker’s testimony was not
credible because he “had a very clear reason to lie to [the]
jury and minimize his own culpability in the murder of [the
victim].” Appellant notes that Walker agreed to cooperate with
the State and, in exchange, received a prison sentence of 15 to
21½ years.
{¶212} Appellant further argues that lies besieged Walker’s
testimony and made his testimony unworthy of belief. Appellant
contends that Walker’s testimony shows that “he is good at
lying” and that he even admitted that he told lies. Appellant
states that Walker gave officers several stories about what
transpired, yet the prosecution urged the jury to believe that
MEIGS, 22CA12
132
Walker told the truth at trial. He asserts that the jury lost
its way by crediting Walker’s testimony.
{¶213} We again note that the trier of fact sits in the best
position to determine whether a witness is credible and whether
the witness’s testimony is reliable. See Seasons Coal Co., 10
Ohio St.3d at 80. The trier of fact has “the benefit of
actually seeing the witnesses testify,” observing facial
expressions and body language, hearing voice inflections, and
discerning “qualities such as hesitancy, equivocation, or candor
(or the lack of it).” State v. Fell,
2012-Ohio-616 (6th Dist.),
¶ 14; accord State v. Pinkerman,
2024-Ohio-1150, ¶ 26 (4th
Dist.). Thus, when assessing a witness’s credibility, the trier
of fact “should consider the demeanor of the witness and the
manner in which he testifies, his connection or relationship
with the prosecution or the defendant, and his interest, if any,
in the outcome.” State v. Antill,
176 Ohio St. 61, 67 (1964);
see also Ohio Jury Instructions, CR § 207.05 (Rev. Dec. 10,
2011) (instructing jurors to consider the following factors when
determining the credibility of each witness: “the appearance of
MEIGS, 22CA12
133
each witness upon the stand; the witness’ manner of testifying;
the reasonableness of the testimony; the opportunity the witness
had to see, hear, and know the things about which the witness
testified; and the witness’ accuracy of memory, frankness or
lack of it, intelligence, interest, and bias, if any, together
with all the facts and circumstances surrounding the
testimony”).
{¶214} Appellate courts do not share the trier of fact’s same
perspective and cannot replicate “[t]he intimate and evanescent
nature of observed testimony.” Fell, 2012-Ohio-616, at ¶ 14
(6th Dist.). For this reason, appellate courts largely defer to
the trier of fact’s credibility determinations so long as all of
the evidence in the record “reveals no inconsistencies or other
conflicts in the evidence” to suggest that the jury clearly lost
its way by finding a defendant guilty, see State v. Montgomery,
2016-Ohio-5487, ¶ 79.
{¶215} In the case sub judice, we do not agree with appellant
that the jury lost its way be crediting Walker’s testimony.
Defense counsel made the jury well aware of Walker’s plea
MEIGS, 22CA12
134
agreement and, during cross examination, thoroughly tested
Walker’s credibility by pointing out that Walker had given law
enforcement officers multiple stories before settling on the one
that he told at trial. During closing arguments, defense
counsel further urged the jury not to believe Walker’s
testimony.
{¶216} Additionally, the trial court instructed the jurors
that their job was to assess the credibility of the witnesses
who testified. The court informed the jurors to evaluate the
truthfulness of witness testimony by considering (1) each
witness’s appearance and mannerisms, (2) the reasonableness of
the witness’s testimony, (3) the witness’s knowledge of the
facts, or opportunity to perceive the facts, stated in the
witness’s testimony, (4) the accuracy of the witness’s memory,
(5) the witness’s frankness or lack of it, (6) the witness’s
intelligence, (7) the witness’s interest or bias, if any, and
(8) all of the facts and circumstances surrounding the witness’s
testimony. The court also advised the jurors that they could
MEIGS, 22CA12
135
“believe or disbelieve all or any part of the testimony of any
witness.”
{¶217} The court further instructed the jurors that an
accomplice’s testimony, like Walker’s, may be subject to “grave
suspicion.” The jury thus had the opportunity to weigh the
competing concerns regarding Walker’s testimony, and we do not
find anything in the record to suggest that the jury clearly
lost its way by crediting Walker’s testimony. See State v.
Webster, 2021-Ohio-3218, ¶ 74 (10th Dist.) (jury may believe
witnesses’ testimony even if those witnesses admitted their
involvement in the offenses and entered into plea agreements
with the State). Furthermore, even if Walker’s testimony
suffered from any credibility problems, appellant has not shown
that this case is an “‘“exceptional case in which the evidence
weighs heavily against the conviction,”’” State v. Clinton,
2017-Ohio-9423, ¶ 176, quoting Thompkins,
78 Ohio St.3d at 387,
quoting Martin,
20 Ohio App.3d at 175.
3
Lack of Corroborating, Physical Evidence
MEIGS, 22CA12
136
{¶218} Appellant next contends that the jury lost its way by
crediting Walker’s testimony when no physical evidence
corroborated his testimony. Appellant submits that if Walker
had been telling the truth when he testified that appellant
ransacked the victim’s house after hitting him with the butt of
the shotgun, then officers would have discovered appellant’s
fingerprints in the victim’s house. Appellant states that the
lack of fingerprint evidence to place him inside the victim’s
home indicates that Walker did not tell the truth. He
additionally submits that officers did not discover any gunshot
residue on appellant’s person or vehicle and that the absence of
this type of physical evidence supports his contention that he
did not shoot the victim.
{¶219} In the case at bar, even if officers did not locate
appellant’s fingerprints inside the victim’s home or gunshot
residue on his person, “no rule of law” requires “a witness’s
testimony [to] be corroborated by physical evidence such as
fingerprints, for example, or the weapon allegedly used by the
accused.” State v. Nix, 2004-Ohio-5502, ¶ 67 (1st Dist.); see
MEIGS, 22CA12
137
State v. Whitt, 2025-Ohio-424, ¶ 24 (3rd Dist.) (“the absence of
a fingerprint analysis in a case does not render a conviction
against the manifest weight of the evidence”); see also State v.
Williams,
2019-Ohio-10, ¶ 22 (8th Dist.) (“[p]hysical evidence
is not required to sustain a conviction.”); State v. Jeffries,
2018-Ohio-2160, ¶ 72 (1st Dist.) (concluding that “the state is
not required to present corroborating DNA test results or other
corroborating physical evidence to meet its burden of proof,
even in a rape case.”); State v. Martin,
2016-Ohio-802, ¶ 22
(1st Dist.) (“[w]hile the absence of DNA evidence is probative,
it is not dispositive.”); State v. Peeples,
2014-Ohio-4064, ¶ 21
(10th Dist.) (“a lack of physical evidence, standing alone, does
not render appellant’s conviction against the manifest weight of
the evidence”). Rather, “the testimony of one witness, if
believed by the jury, is enough to support a conviction.” State
v. Strong,
2011-Ohio-1024, ¶ 42 (10th Dist.); see also State v.
J.M.,
2015-Ohio-5574, ¶ 17 (10th Dist.) (testimony identifying
the defendant as the assailant was sufficient to support the
defendant’s conviction even without conclusive DNA evidence);
MEIGS, 22CA12
138
State v. Garner, 2008-Ohio-944, ¶ 13 (10th Dist.) (“the state
was not required to provide physical evidence placing appellant
at the scene of the crime, nor was it required to establish any
connection between appellant and the victims. The state could
have carried its burden of proof solely through identification
testimony.”); State v. Jackson,
2009-Ohio-6407, ¶ 16 (7th
Dist.) (“If [the witness’s] testimony is believed then the lack
of fingerprints, DNA, footprints or any other type of physical
evidence does not render the conviction against the manifest
weight of the evidence.”). Thus, even if the State did not
present physical evidence to corroborate Walker’s testimony,
Walker’s testimony is sufficient evidence to place appellant at
the scene and to implicate appellant in the victim’s murder.
See, e.g., Strong,
2011-Ohio-1024, at ¶ 42 (10th Dist.).
{¶220} Moreover, at the crime scene, officers discovered a
pair of shorts with appellant’s DNA on them, along with a Crown
Royal bag that contained Nelson’s and appellant’s DNA. In
addition, as we noted above, appellant had sustained a gunshot
wound on the same date as the victim’s murder, and the bullet
MEIGS, 22CA12
139
removed from appellant’s arm matched the bullet recovered from
the victim’s body. Thus, a logical inference is that appellant
was present at the crime scene.
{¶221} Furthermore, while appellant sat in jail awaiting
trial, he sent a letter that attempted to convince his
codefendant to concoct a story to help appellant avoid a life
sentence. Appellant also wrote “BURN NOTICE” on this letter,
which suggests that he was conscious that the letter contained
damaging information.
{¶222} For all of the foregoing reasons, we do not agree with
appellant’s argument that an absence of fingerprint or other
physical evidence shows that the jury clearly lost its way by
crediting Walker’s testimony.
C
Authentication and Chain of Custody
{¶223} Appellant next contends that the State’s physical
evidence was unreliable due to authentication and chain-of-
custody issues.
MEIGS, 22CA12
140
{¶224} A proponent of evidence must authenticate or identify
the evidence before a court may admit the item into evidence.
Dickinson, Ohio Trial Practice § 22:2 (2024 ed.), citing 7
Wigmore, Evidence § 2128–69 (3d ed.). “The requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims.” Evid.R. 901(A). The proponent need only establish a
prima facie showing “of authenticity, not a full argument on
admissibility.” State ex rel. Montgomery v. Villa, 101 Ohio
App.3d 478, 484 (10th Dist. 1995), quoting United States v.
Reilly,
33 F.3d 1396, 1404 (3d Cir. 1994). “This low threshold
standard does not require conclusive proof of authenticity, but
only sufficient foundational evidence for the trier of fact to
conclude that the [evidence] is what its proponent claims it to
be.” (Emphasis in original.) State v. Easter,
75 Ohio App.3d
22, 25 (4th Dist.1991), citing 1 Weissenberger, Ohio Evidence
(1991) 4-5, § 901.2. Once a proponent satisfies the
authentication threshold for admitting the evidence, “[t]he
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ultimate decision on the weight to be given to that piece of
evidence is left to the trier of fact.” State v. Brown, 2002-
Ohio-5207, ¶ 35 (7th Dist.).
{¶225} “‘Chain of custody is a part of the authentication and
identification mandate set forth in Evid.R. 901, and the state
has the burden of establishing the chain of custody of a
specific piece of evidence.’” State v. Corder, 2012-Ohio-1995,
¶ 15 (4th Dist.), quoting State v. Brown,
107 Ohio App.3d 194,
200 (3d Dist. 1995). The State need not, however, “prove a
perfect, unbroken chain of custody.” State v. Keene,
81 Ohio
St.3d 646, 662 (1998). Thus, “[a] strict chain of custody is
not always required in order for physical evidence to be
admissible.” State v. Wilkins,
64 Ohio St.2d 382, 389 (1980).
Instead, “[a]s long as it is reasonably certain that no
tampering or substitution occurred regarding the particular item
of evidence, the state need not negate all possibilities of
tampering or substitution.” State v. Barzacchini,
96 Ohio
App.3d 440, 458 (6th Dist. 1994), citing State v. Moore,
47 Ohio
App.2d 181, 183 (9th Dist.1973). Any breaks in the chain of
MEIGS, 22CA12
142
custody “go to the weight to be afforded the evidence, not to
the admission of the evidence.” (Emphasis in original.) State
v. Gross, 2002-Ohio-5524, ¶ 57 (arguments that an officer failed
to change gloves and that a second round of testing found
previously undiscovered genetic material on evidence at issue
related to the weight, not the admission, of the evidence); see
also State v. Richey,
64 Ohio St.3d 353, 360 (1992), overruled
on other grounds, State v. McGuire,
80 Ohio St.3d 390, 402–404
(1997) (“The possibility of contamination goes to the weight of
the evidence, not its admissibility”).
1
Crown Royal Bag
{¶226} Appellant first asserts that the jury clearly lost its
way by according any weight to the DNA evidence discovered on
the Crown Royal bag. He contends that the State completely
failed to establish a chain of custody for the Crown Royal bag.
He observes that no one could identify how the Crown Royal bag
ended up on a law enforcement officer’s cruiser.
MEIGS, 22CA12
143
{¶227} Appellant further argues that even if the evidence
obtained from the Crown Royal bag was admissible, the existence
of appellant’s DNA on the outside of the bag does not establish
that he was present at the scene when the victim was shot or
that he otherwise participated in the murder. Appellant claims
that if he had shot the victim with a shotgun, then his DNA
would have been on the box of shells inside the bag, not simply
on the outside of the bag. He further notes that the State’s
DNA expert testified that appellant’s “DNA could have gotten on
the outside of the Crown Royal Bag from Nelson . . .
transferring [appellant]’s DNA.”
{¶228} The State contends that it properly authenticated the
Crown Royal bag and that any breaks in the chain of custody go
to weight, not admissibility. The State argues that nothing
required it to present evidence showing how the Crown Royal bag
ended up on the law enforcement officer’s cruiser. The State
observes that, in appellant’s codefendant’s appeal, this court
concluded that the lack of evidence regarding who may have
placed the Crown Royal bag on the law enforcement officer’s
MEIGS, 22CA12
144
cruiser did not render the evidence discovered on the Crown
Royal bag inadmissible. See State v. Nelson, 2023-Ohio-3566, ¶¶
26-27 (4th Dist.).
{¶229} The State further disputes appellant’s argument that
if he had shot the victim with a shotgun, then his DNA would
have been discovered on the box of shells inside the Crown Royal
bag. The State claims that appellant’s argument “illustrates a
misunderstanding as to how touch DNA is found and how DNA is
left on items. Just because a person touches an item, there is
no guarantee that DNA, or a sufficient amount of DNA for
testing, would be left behind.”
{¶230} In the case at bar, we do not agree with appellant
that the jury clearly lost its way by according weight to the
DNA evidence discovered on the Crown Royal bag. The State
properly authenticated the Crown Royal bag and established that
no tampering or substitution occurred from the time that
officers discovered it through the date of the trial. Even
though no one saw anyone place the bag on Deputy Spiker’s
cruiser, multiple witnesses stated that officers discovered the
MEIGS, 22CA12
145
bag sitting on Deputy Spiker’s cruiser. Contrary to appellant’s
belief, nothing required the State to prove the bag’s “chain of
custody” before officers discovered it.
{¶231} Furthermore, appellant does not cite any authority for
his novel proposition that the State must prove how an item came
to be at a crime scene. As we noted in Nelson, nothing requires
the State to prove an item’s “chain of custody” before officers
discovered it at a crime scene, “an onerous and impossible”
burden, 2023-Ohio-3566, ¶ 26 (4th Dist.). We further observed
that “when law enforcement arrived at the scene, they had no way
of knowing how various evidentiary items came to be strewn about
in the various locations in which they were found.”
Id.
{¶232} Additionally, we pointed out that “Nelson’s counsel
could and did argue against the jury giving it much weight.”
Id. Likewise, in the case before us, appellant’s trial counsel
could and did argue that the jury should not give the Crown
Royal bag much weight:
But they ignored the fact that there was a mystery
surrounding this crown royal bag. Where did it come from?
How did it get on Spiker’s vehicle? Did you hear any
MEIGS, 22CA12
146
testimony about them trying to find out where that crown
royal bag came from? Was there any investigation as to
where it came from, how it got there, interviewing
witnesses, interviewing individuals around the crime
scene as to where that crown royal bag came from?
{¶233} Consequently, appellant’s trial counsel made the
jurors well aware of his belief that they should afford the DNA
evidence found on the Crown Royal bag little weight. Although
we do not know what weight the jury gave this evidence, nothing
suggests that the jury clearly lost its way if it did, in fact,
favorably weigh this evidence when deciding to convict
appellant.
{¶234} Appellant further contends that even if the bag was
admissible,12 the bag does not prove that appellant was at the
crime scene or that he shot the victim with a shotgun. He
observes that his DNA was not located on the drawstring of the
bag or on the box of shotgun shells found inside the bag.
Appellant contends that if he had shot the victim with a
12We note that appellant has not raised an assignment of
error that asserts that the trial court erred by admitting into
evidence the Crown Royal bag.
MEIGS, 22CA12
147
shotgun, then “his DNA would have been on the box of shells in
the bag, not just the outside.”
{¶235} Assuming, arguendo, that this one piece of evidence
does not prove that appellant was at the crime scene or that he
shot the victim with a shotgun, appellant’s focus on one piece
of evidence does not establish that the jury clearly lost its
way and committed a manifest miscarriage of justice. A
manifest-weight review requires a court to consider all of the
evidence admitted at trial, not one piece of evidence in
isolation. See Beasley, 2018-Ohio-493, at ¶ 208, quoting
McKelton,
2016-Ohio-5735, at ¶ 328 (a court that is considering
a manifest-weight challenge must “‘review the entire record,
weigh the evidence and all reasonable inferences, and consider
the credibility of witnesses’”); see also State v. Payne, 2019-
Ohio-4218, ¶ 17 (9th Dist.) (“a challenge to the manifest weight
of the evidence nonetheless requires this [c]ourt to not just
review selected portions of evidence in isolation, but to
instead review the entire record [emphasis sic.]); State v.
Johnson,
2007-Ohio-3332, ¶ 23 (7th Dist.) (“A review of the
MEIGS, 22CA12
148
manifest weight of the evidence involves all of the evidence and
the reasonable inferences to be drawn from this evidence, and
not just one piece of evidence in isolation.”). Even without
the DNA evidence found on the Crown Royal bag, as we explain
below, the record otherwise contains substantial evidence to
support appellant’s conviction.
2
Mishandled Evidence
{¶236} Appellant also argues that “all of the [S]tate’s
evidence was improperly handled.” Appellant points out that
Meigs County Sheriff’s Deputy Thomas Dillard admitted that he
had not been fully trained regarding evidence-logging procedures
and that not all of the evidence had been checked in properly.
Appellant states that Deputy Dillard’s testimony “casts doubt on
every piece of evidence collected and used by the State at
trial” and that the jury lost its way by relying on the State’s
evidence.
{¶237} Appellant additionally faults Sergeant Mohler for
removing two shotgun rounds and a pair of shorts from the
MEIGS, 22CA12
149
roadway and then placing ink pens in their place without
photographing the evidence or marking them with cones. He
asserts that the sergeant “destroyed the integrity of the crime
scene because there was no way to tell where the items
originally were found.”
{¶238} Appellant also criticizes officers for not recalling
specific details about the evidence-collection procedure and for
some inconsistencies between the officers’ testimony. For
example, appellant states that Sergeant Mohler testified that he
secured the shotgun rounds and shorts in Meigs County Sheriff’s
Deputy Marty Hutton’s vehicle, but Deputy Hutton did not recall
these items being placed in his car. Appellant also contends
that Deputy Myers testified that he obtained the shotgun rounds
and shorts from Sergeant Mohler, but Ohio Bureau of Criminal
Investigation Special Agent Austin testified that he gave the
evidence to Meigs County Sheriff’s Deputy Jimmy Riley.
Appellant asserts that “[t]his haphazard notation and collection
of evidence spoiled that evidence, and no reasonable juror would
afford any weight to it at all.”
MEIGS, 22CA12
150
{¶239} The State argues that nothing suggests that Deputy
Dillard’s lack of training or Sergeant Mohler’s evidence-
collection procedure rendered the State’s evidence unworthy of
belief. The State observes that the jury heard evidence
regarding Deputy Dillard’s lack of training and Sergeant
Mohler’s evidence-collection procedure and could assign it
appropriate weight.
{¶240} We do not find any merit to appellant’s argument that
the jury lost its way by relying on the State’s evidence. As
with his argument regarding the Crown Royal bag, in his closing
argument, defense counsel asserted that the jury should not
trust the State’s evidence due to evidence-collection and chain-
of-custody issues:
Think for a moment about how all the evidence in
this case was handled. It wasn’t handled very well, was
it? You got things at the crime scene that weren’t
documented that were moved, you got things going out of
the evidence locker without any documentation, you got
the crown royal bag and the mystery surrounding it, all
of those things that in a case like this, you’re supposed
to be specific about and definite about and careful with
was handled with I’m . . . I’m just the new trainee and
I didn’t know, no one trained me. Those logs, the chain
of custody logs, all of them, all over the place. But
MEIGS, 22CA12
151
nothing really at that crime scene indicates that Jaquan
Hall did anything in this case.
{¶241} Consequently, appellant’s trial counsel made the
jurors well aware of his belief that the State’s evidence bore
little weight. Nothing suggests that the jury clearly lost its
way by crediting the State’s evidence when deciding to convict
appellant.
D
Letters
{¶242} Appellant next argues that the jury lost its way by
relying on letters that the State claimed appellant had written.
Appellant asserts that the State failed to properly authenticate
the letters and that Agent Jenkins’s testimony that Nelson told
the agent that appellant sent the letters to him was hearsay.
Appellant further contends, without elaboration, that allowing
Agent Jenkins to testify that Nelson stated that appellant sent
the letters to Nelson “violat[ed] Bruton v. U.S., 391 U.S. 123
(1968).” Appellant additionally claims that the trial court
improperly allowed Meigs County Sheriff’s Sergeant Frank Stewart
MEIGS, 22CA12
152
to testify about the origin of the letters without an adequate
foundation or establishing a chain of custody.
{¶243} The State contends that “multiple witnesses testified
about the letters” and established that “the letters were what
they purported to be—letters written by Appellant—which is the
requirement for authentication.” The State asserts that it need
not prove that anyone saw appellant write the letters or that
the handwriting belonged to appellant. The State argues that it
proved that appellant wrote the letters “based upon how they
were obtained and the contents of the letters.”
1
Hearsay
{¶244} We first summarily reject appellant’s argument that
Agent Jenkins’s testimony violated Bruton v. United States.
This summary argument tucked inside an assignment of error
regarding the manifest weight of the evidence is outside the
scope of the assignment of error. Because appellant has not
raised this issue as a separate assignment of error, we decline
to address it. See State v. Harlow, 2014-Ohio-864, ¶ 10 (4th
MEIGS, 22CA12
153
Dist.) (appellate courts “sustain or overrule only assignments
of error and not mere arguments”).
2
Authentication
{¶245} Evid.R. 901(B)(4) states that a proponent may
authenticate evidence by showing that the “[a]ppearance,
contents, substance, internal patterns, or other distinctive
characteristics” of the evidence, “taken in conjunction with
circumstances,” support a finding that the matter in question is
what its proponent claims. Thus, “‘a letter may be
authenticated by evidence of its distinctive contents such as
facts contained in the missive that only the writer may know.’”
Brown, 2002–Ohio–5207, at ¶ 39 (7th Dist.), quoting State v.
Chamberlain, 1991 WL 144181, *4 (8th Dist. July 25, 1991); see
State v. Schulman,
2020-Ohio-4146, ¶ 38 (10th Dist.), quoting
Staff Note, Evid.R. 901(B)(4) (a letter may be connected to a
defendant “‘by the very fact that the matters set forth in the
letter . . . were known peculiarly to a particular person,” or
“‘by its linguistic patterns and characteristics’”); State v.
MEIGS, 22CA12
154
Hernandez, 1991 WL 44362, *5 (7th Dist. Mar. 29, 1991) (“A
letter may be related to a particular person by the fact that
the matters set forth in the letter were known peculiarly to a
particular person.”). Indeed, “a document may be properly
authenticated and admissible against a particular criminal
defendant even when the author of the document is unknown, if
the circumstances demonstrate that, for instance, the document
must have been authored by the defendant or a co-conspirator.”
(Citations omitted.) Brown, 2002–Ohio–5207, at ¶ 40 (7th
Dist.). Whether a defendant in fact authored a letter and the
weight to afford the evidence are questions for the trier of
fact. See State v. Giles,
2021-Ohio-2865, ¶ 35 (6th Dist.) (the
weight of the evidence is separate determination from the
authentication requirement and is reserved for the trier of
fact).
{¶246} In the case at bar, we do not agree with appellant
that the State did not present adequate evidence to prove that
he wrote the letters or that the letters were not entitled to
any weight. As we explain below, both Agent Jenkins and
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155
Sergeant Stewart testified that the letters contained
distinctive contents that suggested appellant wrote the letters.
a
Agent Jenkins
{¶247} Agent Jenkins stated that he received an email from
the Washington County jail that contained two attachments: (1)
an envelope addressed to Trevon Jones with a return address for
the Washington County Jail that included appellant’s last name
and first initial; and (2) a letter. The prosecutor asked Agent
Jenkins if he could identify any information on the envelope or
in the letter that led him to believe that the letter originated
from appellant. He responded, “Absolutely,” and then
identified the following information that suggested appellant
wrote the letter. The envelope contained appellant’s last name
and first initial, along with the initials, “BNT,” which the
agent knew to be “some type of music company” that appellant
started. The letter contained details about the crime and
indicated that the author had knowledge about those details.
The letter stated that the murder “was not planned,” but was a
MEIGS, 22CA12
156
“bad drug deal.” The author indicated that the victim shot the
author, and the victim “and someone fought for his gun.” The
letter also named the victim and listed the offenses with which
appellant had been charged: “murder, aggravated murder,
complicity to murder, conspiracy.” The letter further contained
the author’s explanation for the events that led to the victim’s
death. It stated, “Quan never went inside. [The victim] shot
him.” The letter continued to suggest that Nelson shot the
victim. The letter indicated that a shotgun had been used, but
the author did not “remember who shot the [shotgun].”
{¶248} The agent additionally identified what he believed to
be code words in the letter, such as, “get little bro with guy.”
Agent Jenkins stated that officers believed “little bro” was the
third individual involved in the victim’s death (i.e., Richard
Walker), and “guy” referred to appellant’s attorney. The letter
instructed “little bro” to “lay low,” meaning do not talk to the
police.
{¶249} Agent Jenkins further explained that officers at the
jail discovered the letter shortly after Nelson’s arrest, and
MEIGS, 22CA12
157
the author instructed the recipient to “figure out who his
lawyer is.” The agent interpreted the letter to refer to
discovering the identity of Nelson’s lawyer.
{¶250} The letter also contained the words “burn notice,”
written in large capital letters, “with a line over top of burn
notice and a line below burn notice.” Agent Jenkins stated that
this phrase clearly indicated that the recipient of the letter
should “set fire to it.”
{¶251} Agent Jenkins thus gave the jury adequate information
to conclude that appellant wrote the letter. Appellant’s last
name and first initial appeared on the envelope, and the return
address was the Washington County jail, where appellant had been
housed while awaiting trial. See State v. Townsend, 2005-Ohio-
6945, ¶ 55 (7th Dist.) (“the court can consider the envelope and
contents” when ascertaining the authenticity of a letter and
“the return address can be relevant to the determination of
authenticity”). The contents of the letter further suggested
that appellant wrote the letter: it contained details of the
crime, the victim’s name, appellant’s name, and code names for
MEIGS, 22CA12
158
appellant’s codefendant and attorney. See State v. Gaines,
2003-Ohio-6855, ¶ 12 (8th Dist.) (letters “were very clearly
written by” the defendant when the letters used the defendant’s
first name or an abbreviated first name and referred to “a
number of other facts that were peculiar to [the defendant]”);
see generally Giles,
2021-Ohio-2865, at ¶ 26-37 (6th Dist.)
(letter properly authenticated when evidence showed that the
defendant authored the letter using his street name, addressed
it to his codefendant using the codefendant’s street name, and
the letter included details about the defendant’s trial).
Furthermore, the trial court admitted into evidence the envelope
and the letter so that the jury could examine it more closely to
decide whether appellant wrote the letter.
{¶252} Based upon all of the facts and circumstances, the
jury quite reasonably could have determined that appellant wrote
the letter.
b
Sergeant Stewart
MEIGS, 22CA12
159
{¶253} Sergeant Stewart testified that Nelson’s mother gave
him some letters that he believed appellant had authored. The
sergeant recited the contents of the letters as follows:
I need you to give this to little K. You all sit together
until everything is done and burn this. Then the first
paragraph there starts this doesn’t need to be delayed
no more. It’s fucked the amount of stress this has been
on me, my mom, my family in general. Today you’re going
to have to call this lawyer and speak to him or his
secretary. 304-485-0990, George Cosenza, top lawyer in
the state. Nothing you should be scared of. They just
need you to tell them what happened. Don’t tell the
cop, tell George. We went up there for some weed, when
you and dude from UC went into the house, the white boy
thought that he was trying to rob him, so he grabbed his
gun and made ya’ll start emptying ya’ll’s pockets.
Thought ya’ll took money. When his dog started barking,
he opened the door, you was standing by the door and saw
it was Quan. Next thing he let off a shot and Quan hit
the ground. You fought for the gun then shot him. You
went to grab me from lying near the front of the garage
and helped me back to the car. You turned around and
didn’t see the dude from UC, thought he was still in the
house. When you got back to the car, you heard two loud
shots and that’s when me and you left. We left dude up
there and headed back to Charleston. You dropped me off
on the west side near the Woo, Quan was out of it the
whole time, bleeding bad. You went home and you didn’t
know if I went to the hospital or not. You just don’t
want Quan to go down for something that he didn’t do.
And we’ll go back up here to the left side of this
letter. It says rewrite this word for word, our story
has to match up. They know he shot me . . . they know he
shot me first, they know I didn’t shot him. I just need
MEIGS, 22CA12
160
a witness. Do this now on the extra piece of paper.
And page two, write i[t] as when me and dude from UC
made us start emptying our pockets and then it says write
this. Went up there for some weed. When me and dude
from UC went into the house, the white boy thought we
was trying to rob him. He thought one of us took his
money. His dog started barking and then opened the door.
I was standing by the door and saw it was Quan. He let
a shot off and then Quan hit the ground. I fought him
for his gun and shot him. I went to go help Quan and we
headed to the car. I didn’t see dude from UC, he must
have been in the house or something. When we got close
to the car, I heard two loud shots. That’s when me and
Quan left dude up there. When we got back to Charleston,
I dropped Quan off on the west side and went home. I
just don’t want Quan to go down for something he didn’t
do. And then next to the last paragraph it says write
this with an arrow pointed over. The dude from UC looked
like he was six, two, low tapper haircut, looked like he
worked out, wore a black Nike jumpsuit. He was in the
car when you got picked up. Don’t remember what time
picked you up from the bottom of the hill, dude was
probably two hundred pounds, I think that’s what that
says. Uh, says nigga, I’m facing twenty five (25) to
life. You don’t come through for a nigga, that’s some
real pussy shit. Boy, you’re not facing no jail time,
no prison time, all you have to do is call this number
and tell him you need a lawyer. Tell him that story
word for word, rewrite it so you don’t forget. Nigga,
there is nothing to be scared of. I just need a witness
and by November I’m going to have to say something.
Don’t put me in this situation where I’m going to have
to name drop. If you get your lawyer now and tell him
today, they won’t come and arrest you. I done told my
family already, so they know. My cousin might come see
you, but probably not. I need this done now though. .
. . I need this done now though, boy. Not next week,
MEIGS, 22CA12
161
not next month. I’m facing life, you can give me one
day, dude. Call this number now until you get ahold of
someone and rewrite this letter. Burn everything but
your paper. Keep your letter. There can’t be no fuck
ups, shit has to hold water. Word for word. Don’t fuck
up, everything else is on hold, write this down and talk
to George. Hi, my name is Keontae Nelson. I need a
lawyer for a murder case. My friend, say my name in
[parentheses], is locked up right now and I don’t want
to see him spend the rest of his life behind bars.
Basically, this happened then tell him the story. Any
questions you don’t know, say you can’t remember right
now. Don’t make shit up. . . . [W]ent up there for some
smoke with little K and a dude from UC, K and the dude
went into the house. I heard someone yell chill, chill
then I went up to the door. [The victim] seen me and
shot me for some reason. I later found out that dude
was trying to take some money. I guess he might have
assumed I was in on it. I hit the ground and rolled out
into the street. Keontae helped me up and we went to
the car and left dude from UC up there. I remember
waking up in Charleston and had Keontae drop me off at
my brother in law’s house. He left and I went to the
hospital. This is my story. Keep it to the script.
Everything has to match. Rewrite your story, call George
now. This is what I’m saying in November. Then the
final page says burn.
{¶254} Sergeant Stewart identified multiple parts of the
letter that led him to believe that appellant had authored it.
For instance, the letter contained the name and phone number of
appellant’s attorney. The letter also contained appellant’s
name and nickname in a manner that suggested he had authored the
MEIGS, 22CA12
162
letter. At one point, the letter purports to be written from
Nelson’s perspective, and then, the author of the letter writes
in parentheses, “say my name” (meaning appellant’s name) “is
locked up.” The previous sentence had stated, again from
Nelson’s perspective, that he was appellant’s codefendant. The
letter also referred to the author in the first person as going
to the hospital, and appellant had gone to the hospital to seek
treatment for his gunshot wound.
{¶255} The letter further implored Nelson to ensure that his
story matched the author’s story. The letter emphasized
appellant’s lack of fault and instructed the recipient to
rewrite the story word for word to match the author’s version.
This story appeared to blame the “dude from UC” for the victim’s
death. The sergeant stated that officers believed that the
“dude from UC” referred to Richard Walker and that “UC” meant
the University of Charleston. The letter also included a
description of Walker and stressed the urgency of contacting the
appellant’s lawyer to provide testimony to help save appellant
MEIGS, 22CA12
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from a life sentence. The letter concluded with instructions to
burn the letter after reading it.
{¶256} We find nothing in the sergeant’s testimony to
indicate that the jury should have disregarded the letter or
determined that the State had not sufficiently established that
appellant wrote it. As we noted above, the letter’s contents
contained multiple indicators that appellant wrote it and wanted
Nelson to tell a story that would prevent appellant from serving
a life sentence in prison. See Gaines, 2003-Ohio-6855, at ¶ 12
(8th Dist.); see generally Giles,
2021-Ohio-2865, at ¶ 26-37
(6th Dist.); State v. Williams,
2021-Ohio-443, ¶ 47, 54 (5th
Dist.) (letter properly authenticated when evidence showed that
an unsigned note used the “first person to refer to the
defendant in the trial, who could only be [the defendant],” and
discussed the details of the defendant’s trial and the events
that occurred on the day of the shooting).
{¶257} Moreover, during closing arguments, defense counsel
did not appear to dispute that appellant wrote the letters. He
instead suggested that the letters indicated that appellant was
MEIGS, 22CA12
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not guilty and that he was “a scared kid sitting in jail charged
with a murder he didn’t commit.” Defense counsel proposed that
appellant had been “[r]eaching out in fear . . . and telling
those people you better come forward and help me and tell the
damn truth about it.”
{¶258} Furthermore, both Agent Jenkins and Sergeant Stewart
explained how they obtained the letters. Agent Jenkins stated
that a corrections officer from the jail sent him via email a
letter and an envelope. Sergeant Stewart explained that he
obtained the letter from Nelson’s mother. Even if the officers
did not obtain the letters directly from appellant, appellant
has not cited any authority that indicates that law enforcement
officers must obtain evidence directly from a defendant in order
to link the evidence to the defendant. The jury heard all of
the evidence that explained how the officers came to be in
possession of the letters, along with the contents of the
letters, which strongly indicated that appellant wrote the
letters.
MEIGS, 22CA12
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{¶259} Based upon the foregoing, we do not believe that the
jury clearly lost its way by choosing to believe that appellant
wrote the letters.
E
Conclusion
{¶260} In sum, our review of the record does not support
appellant’s argument that the record fails to contain sufficient
evidence to support his conviction or that his conviction is
against the manifest weight of the evidence. The State
presented substantial evidence to establish, beyond a reasonable
doubt, that appellant purposely caused the victim’s death. For
instance, the State’s evidence shows, inter alia, the following:
(1) appellant’s DNA was located at the crime scene; (2) a few
hours after the victim’s murder, appellant appeared at a
hospital with a gunshot wound; (3) at the hospital, appellant
gave personnel a false name and stated that he had been shot at
a party he had attended in Charleston, West Virginia; (4)
Charleston police were unable to find any evidence to
corroborate appellant’s statement that he had been shot while
MEIGS, 22CA12
166
attending a party; (4) the bullet recovered from appellant’s
wound matched a bullet recovered from the victim; (5) appellant
wrote incriminating letters that implored one of his
codefendants to testify that appellant did not shoot the victim
and to blame the victim’s murder on the “dude from UC,” i.e.,
Walker; (6) Walker testified that appellant planned to kill the
victim; (7) Walker stated that on the date of the victim’s
murder, he, Nelson, and appellant drove to the victim’s home;
(8) once at the victim’s home, appellant retrieved a shotgun
from the vehicle; (9) Nelson shot the victim with the .45-
caliber weapon and also accidentally shot appellant; (10) after
Nelson shot the victim, Walker and Nelson ran to the car, while
appellant remained behind; and (11) Walker testified that
appellant fired two shotgun blasts.
{¶261} Even if the State’s evidence had some gaps, some
witnesses had credibility issues, or the evidence collection was
not perfect, these gaps, credibility issues, and imperfections
do not indicate that this case is an “‘“exceptional case in
which the evidence weighs heavily against the conviction,”’”
MEIGS, 22CA12
167
State v. McKelton, 2016-Ohio-5735, ¶ 330, quoting Thompkins, 78
Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175,
485
N.E.2d 717; see generally United States v. Hasting,
461 U.S.
499, 508 (1983) (“there can be no such thing as an error-free,
perfect trial”).
{¶262} Accordingly, based upon the foregoing reasons, we
overrule appellant’s sixth assignment of error.
V
Seventh Assignment of Error
{¶263} In his seventh assignment of error, appellant argues
that he did not receive the effective assistance of counsel. He
asserts that trial counsel was ineffective for failing to (1)
file a written motion for a change of venue, (2) preserve an
argument that the jury was not composed of a fair cross section
of the community, (3) object to references to appellant’s
incarceration, (4) object to narrative testimony and allegedly
improper opinion testimony, and (5) object to the trial court’s
questioning of jurors and witnesses. As explained below, we do
not find any merit to appellant’s arguments.
MEIGS, 22CA12
168
A
Ineffectiveness Standard
{¶264} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provide that
defendants in all criminal proceedings shall have the assistance
of counsel for their defense. The United States Supreme Court
has generally interpreted this provision to mean a criminal
defendant is entitled to the “reasonably effective assistance”
of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984);
accord Hinton v. Alabama,
571 U.S. 263, 272 (2014) (the Sixth
Amendment right to counsel means “that defendants are entitled
to be represented by an attorney who meets at least a minimal
standard of competence”).
{¶265} To establish constitutionally ineffective assistance
of counsel, a defendant must show that (1) trial counsel’s
performance was deficient and (2) the deficient performance
prejudiced the defense and deprived the defendant of a fair
trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 2018-
Ohio-1903, ¶ 183; State v. Powell,
2012-Ohio-2577, ¶ 85.
MEIGS, 22CA12
169
“Failure to establish either element is fatal to the claim.”
State v. Jones, 2008-Ohio-968, ¶ 14 (4th Dist.). Therefore, if
one element is dispositive, a court need not analyze both. See
State v. Madrigal,
87 Ohio St.3d 378, 389 (2000) (a defendant’s
failure to satisfy one of the ineffective-assistance-of-counsel
elements “negates a court’s need to consider the other”); see
also Strickland,
466 U.S. at 700 (“Failure to make the required
showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim.”).
{¶266} The deficient performance part of an ineffectiveness
claim “is necessarily linked to the practice and expectations of
the legal community: ‘The proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.’” Padilla v. Kentucky, 559 U.S. 356, 366
(2010), quoting Strickland,
466 U.S. at 688; accord Hinton,
571
U.S. at 273. Prevailing professional norms dictate that “a
lawyer must have ‘full authority to manage the conduct of the
trial.’” State v. Pasqualone,
2009-Ohio-315, ¶ 24, quoting
Taylor v. Illinois,
484 U.S. 400, 418 (1988).
MEIGS, 22CA12
170
{¶267} Furthermore, “‘[i]n any case presenting an
ineffectiveness claim, the performance inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances.’” Hinton, 571 U.S. at 273, quoting Strickland,
466 U.S. at 688. Accordingly, “[i]n order to show deficient
performance, the defendant must prove that counsel’s performance
fell below an objective level of reasonable representation.”
State v. Conway,
2006-Ohio-2815, ¶ 95.
{¶268} Moreover, when considering whether trial counsel’s
representation amounts to deficient performance, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Thus, “the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.”
Id.
Additionally, “[a] properly licensed attorney is presumed to
execute his duties in an ethical and competent manner.” State
v. Taylor,
2008-Ohio-482, ¶ 10 (4th Dist.), citing State v.
Smith,
17 Ohio St.3d 98, 100 (1985). Therefore, a defendant
MEIGS, 22CA12
171
bears the burden to show ineffectiveness by demonstrating that
counsel’s errors were “so serious” that counsel failed to
function “as the ‘counsel’ guaranteed . . . by the Sixth
Amendment.” Strickland, 466 U.S. at 687; e.g., State v. Gondor,
2006-Ohio-6679, ¶ 62; State v. Hamblin,
37 Ohio St.3d 153, 156
(1988).
{¶269} To establish prejudice, a defendant must demonstrate
that a reasonable probability exists that “‘but for counsel’s
errors, the result of the proceeding would have been
different.’” Hinton, 571 U.S. at 275, quoting Strickland,
466
U.S. at 694; e.g., State v. Short,
2011-Ohio-3641, ¶ 113; State
v. Bradley,
42 Ohio St.3d 136 (1989), paragraph three of the
syllabus; accord State v. Spaulding,
2016-Ohio-8126, ¶ 91
(prejudice component requires a “but for” analysis). “‘A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.’” Cullen v. Pinholster,
563 U.S.
170, 189 (2011), quoting Strickland,
466 U.S. at 694. This
reasonable-probability standard requires a “substantial”
likelihood of a different result and not simply a “conceivable”
MEIGS, 22CA12
172
likelihood of a different result. Harrington v. Richter, 562
U.S. 86, 111 (2011) (“In assessing prejudice under Strickland,
the question is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if
counsel acted differently.”). Furthermore, courts ordinarily
may not simply presume the existence of prejudice but instead
must require a defendant to affirmatively establish prejudice.
State v. Clark,
2003-Ohio-1707, ¶ 22 (4th Dist.); State v.
Tucker,
2002 WL 507529 (4th Dist. Apr. 2, 2002); accord State v.
Powell,
2012-Ohio-2577, ¶ 86 (purely speculative argument cannot
serve as the basis for ineffectiveness claim).
B
Motion to Change Venue
{¶270} Appellant first argues that trial counsel was
ineffective for failing to file a written motion to support his
oral motion to change venue. He asserts that trial counsel
should have submitted a written motion that included “news
articles, social media posts, pictures of shirts and bumper
MEIGS, 22CA12
173
stickers[,] and other evidence.” Appellant suggests that if
defense counsel had submitted written evidence of pretrial
publicity, then a reasonable probability exists that the trial
court would have determined that pretrial publicity was so
pervasive and prejudicial that an attempt to seat a jury would
be a vain act. We do not agree.
{¶271} In the case at bar, defense counsel’s voir dire
questioning ensured that the trial court was well aware of
pretrial publicity. The prosecutor and defense counsel
specifically asked prospective jurors about their exposure to
the different types of pretrial publicity that had appeared in
the community, including news broadcasts, social media posts,
and “Justice for [K.R.]” signs, bumper stickers, and shirts.
These questions thus made the trial court well aware of the
pretrial publicity that existed in the community. Even if
defense counsel did not submit written proof of the pretrial
publicity, defense counsel’s failure to do so was not
objectively unreasonable given counsel’s targeted questions
regarding pretrial publicity.
MEIGS, 22CA12
174
{¶272} Additionally, even if counsel’s performance was
deficient, appellant has not established a reasonable
probability that the trial court would have presumed prejudice
and changed venue if counsel had submitted written evidence of
pretrial publicity. See State v. Cunningham, 2004-Ohio-7007, ¶
97 (concluding that defendant failed to establish that defense
counsel provided ineffective assistance of counsel by failing to
submit written evidence of pretrial publicity when voir dire
questioning made trial court “well aware of the extent of media
coverage and pretrial publicity”). Thus, counsel’s failure to
document the pretrial publicity through the use of newspaper
articles, social media posts, and the like did not prejudice
appellant. See State v. Davis,
2008-Ohio-2, ¶ 50 (“The trial
court was well aware of the extent of pretrial publicity because
many prospective jurors acknowledged that they had heard
something about the case. Thus, [the defendant] has failed to
show how trial counsel’s failure to submit newspaper clippings
and other media stories was prejudicial.”); State v. Froman,
2022-Ohio-2726, ¶ 77 (12th Dist.) (“the trial court was aware of
MEIGS, 22CA12
175
the pretrial publicity about [the defendant]’s case, and the
mere fact that trial counsel failed to submit some published
articles about the case in support of [the defendant]’s motion
for a change of venue does not, by itself, amount to ineffective
assistance”); State v. McKnight, 2008-Ohio-2435, ¶ 31 (4th
Dist.), citing State v. Moreland,
2000 WL 5933, *8 (2d Dist.
Jan. 7, 2000) (“counsel’s failure to include every piece of
publicity surrounding a case does not amount to ineffective
assistance of counsel when the trial court is well aware of the
level of publicity).
{¶273} We also note that fully evaluating the impact of
submitting written evidence of pretrial publicity depends upon
evidence that is not in the record. “On direct appeal, we are
restricted to facts that are apparent in the record.” State v.
Russell, 2009-Ohio-5145, ¶ 26 (4th Dist.), citing State v.
Davis, 2007–Ohio–3944, ¶ 19 (4th Dist.). “A reviewing court
cannot add matter to the record before it, which was not a part
of the trial court’s proceedings.” State v. Ishmail,
54 Ohio
St.2d 402 (1978), paragraph one of the syllabus. Thus,
MEIGS, 22CA12
176
ineffectiveness claims that depend upon evidence outside the
trial record are not appropriate to consider on direct appeal.
Instead, a postconviction action, rather than a direct appeal,
is the proper mechanism for asserting an ineffectiveness claim
that is based on evidence dehors the record. See State v.
Blanton, 2022-Ohio-3985, ¶ 41, citing State v. Smith,
17 Ohio
St.3d 98, 101, fn. 1 (1985) (“claims that rely on evidence
outside the record may be heard on postconviction review”);
State v. Cooperrider,
4 Ohio St.3d 226, 228 (1983)
(postconviction procedure appropriate when ineffectiveness
claims “are based on facts not appearing in the record”); State
v. Burchfield,
2025-Ohio-867, ¶ 14 (4th Dist.) (considering
evidence outside of the record “is not appropriate in a direct
appeal”); State v. Weathersbee,
2019-Ohio-5307, ¶ 29 (11th Dist.
) (an ineffective-assistance claim that is based on evidence
dehors the record cannot be reviewed on direct appeal); State v.
Curtis, 2008–Ohio–916, ¶ 8 (8th Dist.) (“The law is well-settled
that when allegations of ineffective assistance of counsel hinge
MEIGS, 22CA12
177
on facts not appearing in the record, the proper remedy is a
petition for postconviction relief rather than direct appeal.”).
{¶274} Consequently, we cannot conclude that trial counsel
was ineffective for failing to file a written motion to change
venue with documents to illustrate the extent of pretrial
publicity.
C
Fair Cross Section
{¶275} Next, appellant contends that trial counsel was
ineffective for failing to assert that trying his case in Meigs
County would violate the fair-cross-section requirement under
the Sixth Amendment to the United States Constitution.
Appellant argues that trial counsel should have raised this
issue before trial and requested an evidentiary hearing.
Appellant claims that a hearing would have allowed counsel to
present evidence regarding the demographics of Meigs County and
to establish that African American citizens were systemically
excluded.
MEIGS, 22CA12
178
{¶276} The State asserts that nothing in the record indicates
the “systematic exclusion of African Americans in the jury-
selection process.”
{¶277} Appellant counters that the lack of evidence in the
record means that this court cannot determine whether African
Americans were systemically excluded. Appellant observes that
the State claims that including two African Americans in the
jury venire was “not unfair or unreasonable given the Meigs
County population.” Appellant responds: “That unsupported claim
is exactly the problem; we do not know because defense counsel
failed to file a proper motion and attach proper documentation.
Appellee is simply speculating.”
{¶278} “[T]he selection of a petit jury from a representative
cross section of the community is an essential component of the
Sixth Amendment right to a jury trial.” Taylor v. Louisiana,
419 U.S. 522, 528 (1975). Thus, “the Sixth Amendment affords
the defendant in a criminal trial the opportunity to have the
jury drawn from venires representative of the community.”
Id.
at 537. To establish a violation of the fair-cross-section
MEIGS, 22CA12
179
requirement, a defendant must demonstrate all of the following:
(1) “the group alleged to be excluded is a ‘distinctive’ group
in the community”; (2) “the representation of this group in
venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community”; and (3) “this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process.” Duren v. Missouri, 439 U.S. 357, 364 (1979); accord
Berghuis v. Smith,
559 U.S. 314, 327 (2010). The second part of
this test requires the defendant to “demonstrate the percentage
of the community made up of the group alleged to be
underrepresented, for this is the conceptual benchmark for the
Sixth Amendment fair-cross-section requirement.” Duren,
439
U.S. at 364. Under the third part of the test, a defendant
“must do more than show that his particular panel was
unrepresentative.” State v. Jones,
91 Ohio St.3d 335, 339–41
(2001); State v. McNeill,
83 Ohio St.3d 438, 444 (1998)
(“underrepresentation on a single venire is not systematic
exclusion” [emphasis in original]).
MEIGS, 22CA12
180
{¶279} In the case at bar, even if defense counsel performed
deficiently by failing to properly preserve the issue, appellant
cannot demonstrate a reasonable probability that the trial court
would have found a violation of the fair-cross-section
requirement. Had appellant’s counsel raised the issue, the
trial court likely would have concluded that appellant satisfied
the first part of the Duren test: “For purposes of [a] fair-
cross-section analysis, African-Americans are a distinctive
group.” State v. Jones, 91 Ohio St.3d 335, 340 (2001).
{¶280} A reasonable probability does not, however, exist that
the trial court would have concluded that appellant established
the second and third parts of the Duren test. Appellant has not
pointed to any evidence that documents (1) the percentage of
African Americans in Meigs County or (2) the systematic
exclusion of African Americans from the jury-selection process
used in Meigs County. See State v. Jones, 2024-Ohio-4538, ¶ 61
(3d Dist.), citing State v. Purvis-Mitchell,
2018-Ohio-4032, ¶
77 (4th Dist.) (both rejecting ineffectiveness claims based upon
failure to properly raise fair-cross-section issue when the
MEIGS, 22CA12
181
record did not contain any evidence to support allegations that
African Americans were underrepresented or systemically
excluded); see generally Duren, 439 U.S. at 366 (finding
systemic exclusion when “discrepancy between the percentage of
women in jury venires and the percentage of women in the
community” occurred “not just occasionally, but in every weekly
venire for a period of nearly a year”).
{¶281} Furthermore, to the extent that appellant’s argument
relies on evidence outside the record, we again note that on
direct appeal, this court is limited to the record and cannot
add any material to it. See State v. Harris, 2002-Ohio-2411, ¶
31 (7th Dist.) (stating that ineffectiveness claim based upon
failure to preserve fair-cross-section issue that relies upon
evidence outside of the record may be an appropriate matter to
raise in a postconviction petition).
{¶282} Consequently, based upon the record before us, we
cannot conclude that trial counsel was ineffective for failing
to properly preserve the fair-cross-section issue.
D
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182
Failure to Object to Jail References
{¶283} Appellant next argues that trial counsel was
ineffective for failing to object to the following testimony
regarding his pretrial incarceration: (1) appellant’s ex-
girlfriend testified that appellant called her from jail; (2)
Deputy Spiker testified that he retrieved appellant from jail to
take him to the hospital to have the bullet removed from his
arm; and (3) Sergeant Stewart testified that he received letters
that appellant sent from jail. He contends that counsel’s
failure to object to these statements eroded his presumption of
innocence and prejudiced the jury against him. Appellant claims
that the references to his pretrial incarceration “left the jury
with the impression he must be guilty if he was still locked up”
and “gave the jury the impression that he was a dangerous person
who needed to be locked up because he was guilty of the crime
for which he was on trial.”
{¶284} The State argues that defense counsel was not
ineffective for failing to object to the foregoing references to
appellant’s pretrial incarceration. The State contends that
MEIGS, 22CA12
183
Deputy Spiker’s testimony that he retrieved appellant from jail
and drove him to the hospital helped explain why appellant did
not drive himself to the hospital. The State asserts that
testimony that appellant sent letters from jail helped
authenticate the letters and establish a chain of custody for
the letters. The State further argues that appellant cannot
establish a reasonable probability that the outcome of the trial
would have been different if trial counsel had objected to the
foregoing testimony.
{¶285} We initially observe that trial counsel’s “failure to
make objections is not alone enough to sustain a claim of
ineffective assistance of counsel.” State v. Conway, 2006-Ohio-
2815, ¶ 103; accord State v. Sowell, 2016-Ohio-8025, ¶ 144
(rejecting argument that failing to preserve error is inherently
prejudicial and stating, “[i]t is not enough that an alleged
error resulted in a disadvantage for an accused”). Instead, a
defendant still must “show that any particular failure to object
substantially violated an[] essential duty [and] was
prejudicial.” State v. Fears,
86 Ohio St.3d 329, 347 (1999);
MEIGS, 22CA12
184
accord State v. Holloway, 38 Ohio St.3d 239, 244 (1988) (stating
that failure to object insufficient on its own to establish
ineffective assistance of counsel; instead, a defendant still
must demonstrate that counsel substantially violated an
essential duty and that counsel’s performance materially
prejudiced the defense).
{¶286} Additionally, trial counsel’s decision to object, or
not to object, may be a legitimate trial strategy or tactical
decision for the reason that “‘each potentially objectionable
event could actually act to [the defendant]’s detriment.’”
State v. Johnson, 2006-Ohio-6404, ¶ 140, quoting Lundgren v.
Mitchell,
440 F.3d 754, 774 (C.A. 6, 2006). Thus,
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.
Id., quoting Lundgren,
440 F.3d at 774; cf. United States v.
Cronic,
466 U.S. 648, 656 (1984) (describing the right to the
MEIGS, 22CA12
185
effective assistance of counsel as “the right of the accused to
require the prosecution’s case to survive the crucible of
meaningful adversarial testing”). We further recognize,
however, that testimony regarding a defendant’s incarceration
generally is not proper and is “potentially prejudicial because
[it] erode[s] the presumption of innocence, for the same reason
that wearing prison or jail clothing does.” State v. Stoermer,
2018-Ohio-4522, ¶ 35 (2d Dist.).
{¶287} In the case at bar, defense counsel may have
determined that not objecting to each reference to appellant’s
pretrial incarceration was a reasonable strategy designed to
minimize the impact of the testimony. See State v. Jones, 2015-
Ohio-4116, ¶ 68 (2d Dist.) (“Not objecting to testimony is a
reasonable trial strategy that counsel may use to avoid
attracting a jury’s attention to a matter.”).
{¶288} Furthermore, even if counsel had objected, appellant
has not established a reasonable probability that the outcome of
the trial would have been different. If the jury had not heard
testimony that appellant was in jail before trial, as we
MEIGS, 22CA12
186
explained in our discussion of appellant’s sixth assignment of
error, the remaining evidence constitutes ample evidence of
appellant’s guilt. Thus, any deficient performance did not
prejudice appellant.
{¶289} Moreover, “[e]ven if defense counsel did not perform
as perfectly as appellant would have preferred, the Sixth
Amendment right to counsel does not guarantee an error-free,
perfect trial, but simply, a fair trial, i.e., one whose result
was reliable.” State v. Carroll, 2016-Ohio-7218, ¶ 35 (4th
Dist.), citing In re Smith,
2001 WL 1627641 (4th Dist. Dec. 12,
2001), quoting United States v. Hasting,
461 U.S. 499, 508–509
(1983) (“‘there can be no such thing as an error-free, perfect
trial, and . . . the Constitution does not guarantee such a
trial.’”); cf. Cronic,
466 U.S. at 659 (explaining that trial is
unfair “if counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing”).
{¶290} Consequently, we do not agree with appellant that
trial counsel was ineffective for failing to object to testimony
regarding his pretrial incarceration.
MEIGS, 22CA12
187
E
Failure to Object to Narrative and Opinion Testimony
{¶291} Appellant next contends that trial counsel was
ineffective for failing to object to narrative and opinion
testimony. He argues that his ex-girlfriend offered irrelevant
and speculative testimony when she stated that (1) after she
spoke with appellant after the murder, “her first instinct was
that [appellant] did it” and (2) she “assumed” that appellant
knew that she had been “messing around with” the victim.
{¶292} Appellant further asserts that Agent Jenkins testified
in “narrative form for pages and pages before defense counsel
finally uttered an objection, which was sustained but not
stricken.” Appellant claims that “Agent Jenkins basically
reiterated the entire investigation, even where he did not have
firsthand knowledge.” Appellant argues that Agent Jenkins
“repeated irrelevant but prejudicial victim impact hearsay from
[the victim]’s parents about how well liked in the community he
was, how he was a star athlete, and how everyone wanted to be
around him.” He additionally complains that Agent Jenkins
MEIGS, 22CA12
188
summarized Runyon and appellant’s relationship even though he
lacked firsthand knowledge.
{¶293} Appellant next contends that the trial court
improperly allowed Agent Jenkins to offer his lay opinion
regarding appellant’s reasons for writing the letter.
{¶294} Appellant additionally claims that Deputy Barnhart
offered speculative and improper lay opinion testimony.
Appellant argues that Deputy Barnhart repeated hearsay from
appellant’s “mother and sister that [appellant] went to Maryland
after the incident, which in his opinion made [appellant] a
suspect.”
{¶295} Appellant also states that the deputy offered improper
opinion testimony when he stated that people do not normally
turn off their phone “for a set period and then turn it back
on,” but instead turn their phones off “when they have something
to hide.”
{¶296} In addition, appellant contends that Sergeant Stewart
offered improper opinion testimony when he testified that
appellant authored the letters.
MEIGS, 22CA12
189
{¶297} Appellant asserts that the foregoing allegedly
improper testimony “allowed the prosecution to bolster other
witnesses with testimony from those who had no foundation” and
who “relied on hearsay and speculation.” He contends that these
witnesses testified “to the ultimate issue for the jury.”
Appellant thus contends that trial counsel performed deficiently
by failing to object to the testimony and that this failure to
object prejudiced his right to a fair trial.
1
Narrative Testimony
{¶298} In the case at bar, we initially observe that
appellant does not cite any authority to suggest that narrative
testimony is inadmissible or that defense counsel provides
ineffective assistance of counsel by failing to object to
narrative testimony or by failing to ask the court to strike
narrative testimony. Appellant’s failure to cite legal
authority means that we could summarily reject this argument.
See In re Application of Columbus S. Power Co., 2011-Ohio-2638,
¶ 14 (failure to cite legal authority or present argument that a
MEIGS, 22CA12
190
legal authority applies is grounds to reject a claim); Robinette
v. Bryant, 2015-Ohio-119, ¶ 33 (4th Dist.) (court has
“discretion to disregard any assignment of error that fails to
present any citations to cases or statutes in support”); see
also State v. Holloway,
2024-Ohio-3189, ¶ 37 (8th Dist.) (court
may summarily reject an argument when defendant fails to support
it “with any legal authority demonstrating error”); Frye v.
Holzer Clinic, Inc.,
2008-Ohio-2194, ¶ 12 (4th Dist.) (court
“may disregard any assignment of error that fails to present any
citations to case law or statutes in support of its
assertions”).
{¶299} We further observe that defense counsel did object to
Agent Jenkins’s testimony on the basis that it constituted
narrative testimony rather than responses to specific questions.
The trial court then instructed Agent Jenkins to wait for the
prosecutor to ask questions rather than testifying in narrative
format. Thus, appellant cannot claim that counsel was deficient
for failing to object to this testimony when the record
establishes that counsel did.
MEIGS, 22CA12
191
{¶300} We also observe that “[t]rial courts have considerable
discretion under Evid.R. 611(A) with respect to the method and
mode by which evidence is introduced in a proceeding.” State v.
Williams, 1998 WL 290240, *5 (4th Dist. May 18, 1998). Evid.R.
611(A) explicitly gives trial courts “reasonable control over
the mode and order of interrogating witnesses and presenting
evidence so as to . . . make the interrogation and presentation
effective for the ascertainment of the truth. . .” Trial courts
thus have discretion “‘to control the form of examination to the
end that the facts may be clearly and expeditiously presented”
and “‘may permit either’” narrative testimony or testimony in
response to specific questions. Seventh Urban, Inc. v. Ann’s
Wig Shop.,
1980 WL 354666, *4 (8th Dist. Apr. 24, 1980), quoting
McCormick, Evidence, § 5 at 8 (2d Ed. 1972); see Giannelli, Ohio
Evidence, § 611.3 (4th ed.) (“Testimony may be elicited by
specific interrogation (question and answer) or by free
narrative”); United States v. Beckton,
740 F.3d 303, 306 (4th
Cir. 2014) (“[q]uestions of trial management are
quintessentially” within trial courts’ “province”).
MEIGS, 22CA12
192
{¶301} Because trial courts have discretion to allow
narrative testimony, appellant cannot establish that defense
counsel’s decision not to ask the court to strike Agent
Jenkins’s narrative testimony was objectively unreasonable.
{¶302} Furthermore, even if counsel performed deficiently by
failing to ask the court to strike Agent Jenkins’s narrative
testimony, appellant cannot establish a reasonable probability
that the outcome of the trial would have been different if
counsel had made this request. If the trial court had decided
to strike the testimony, then the State may have obtained the
same essential testimony by engaging in a question-and-answer
format.
{¶303} We therefore do not believe that appellant can
establish that trial counsel was ineffective for failing to
object to, or to ask the court to strike, Agent Jenkins’s
narrative testimony.
2
Opinion Testimony
MEIGS, 22CA12
193
{¶304} Appellant additionally asserts that trial counsel was
ineffective for failing to object to improper lay opinion
testimony.
{¶305} As with his argument regarding narrative testimony,
appellant fails to cite any authority to support his argument
that Runyon, Agent Jenkins, Deputy Barnhart, or Sergeant Stewart
gave improper opinion testimony or that defense counsel provides
ineffective assistance of counsel by failing to object to
testimony of a similar nature. Appellant’s failure to cite
legal authority means that we could summarily reject this
argument. Nevertheless, in the interest of justice, we briefly
address it.
{¶306} Evid.R. 701 permits a nonexpert witness to offer
“testimony in the form of opinions or inferences” if those
opinions or inferences “are (1) rationally based on the
perception of the witness and (2) helpful to a clear
understanding of the witness’ testimony or the determination of
a fact in issue.” If a lay witness’s opinion is not “rationally
based upon first-hand perceptions by the witness,” “the opinion
MEIGS, 22CA12
194
is speculation, and as such cannot be ‘helpful to a . . .
determination of a fact in issue.’” State v. Hall, 2004-Ohio-
663, ¶ 8 (2d Dist.), quoting Evid.R. 701.
{¶307} In the case at bar, even if trial counsel performed
deficiently by failing to object to the allegedly improper
opinion testimony, appellant cannot establish a reasonable
probability that the outcome of the trial would have been
different if counsel had objected. Even if the trial court had
agreed that the witnesses offered improper lay opinion testimony
and had instructed the jury to disregard that testimony, as we
explained in our discussion of appellant’s sixth assignment of
error, the record otherwise contains ample evidence to establish
appellant’s guilt. Thus, trial counsel’s failure to object did
not prejudice appellant. Appellant thus cannot establish that
trial counsel failed to provide the effective assistance of
counsel by failing to object to the allegedly improper opinion
testimony.
3
Failure to Object to the Court Asking Questions
MEIGS, 22CA12
195
{¶308} Appellant further argues that trial counsel was
ineffective for failing to object to questions that the court
asked Deputy Dillard. Appellant observes that the court asked
Dillard “whether any of the evidence Dillard took out of the
evidence locker for trial . . . appeared to have been tampered,
destroyed, or mutilated or changed in any way.” Dillard stated
that it had not. Appellant claims that the court’s question and
Dillard’s answer “made the very important and critical point for
the State, a point the prosecution had not brought out prior to
the trial court’s question. It established that the evidence
was as it was when it was collected.” Appellant asserts that
“[t]he trial court destroyed [appellant’s] defense by obtaining
crucial testimony that the evidence was not tampered, destroyed,
mutilated or changed.” He thus contends that trial counsel
should have objected and asked the court to strike the deputy’s
testimony.
{¶309} Evid.R. 614(B) allows a trial court to “interrogate
witnesses, in an impartial manner, whether called by itself or
by a party.” The rule “‘exists because the trial court has an
MEIGS, 22CA12
196
“obligation to control proceedings, to clarify ambiguities, and
to take steps to insure substantial justice.”’” State v.
Skerkavich, 2019-Ohio-4973, ¶ 13 (8th Dist.), quoting State v.
Stadmire,
2003-Ohio-873, ¶ 26 (8th Dist.), quoting State v. Kay,
12 Ohio App.2d 38, 49 (8th Dist. 1967). Under this rule, “a
trial court is permitted to question witnesses called by a party
as long as the questions are relevant and the questioning is
done impartially.” In re Myers,
2004-Ohio-539, ¶ 8 (3d Dist.).
{¶310} Additionally, under Evid.R. 611(A), the trial court
“has discretion to control the flow of the trial” and may ask
witnesses questions “in a search for truth.” State v. Prokos,
91 Ohio App.3d 39, 44 (4th Dist.1993), citing Evid.R. 614;
accord State v. Redon,
2009-Ohio-5966, ¶ 8 (8th Dist.).
Accordingly, “[t]he right to question a witness, pursuant to
Evid.R. 614(B), rests within the sound discretion of the trial
court.” State v. Vanloan,
2009-Ohio-4461, ¶ 8 (12th Dist.).
{¶311} In the case at bar, even if trial counsel performed
deficiently by failing to object to the trial court’s
questioning of Deputy Dillard, we do not agree with appellant
MEIGS, 22CA12
197
that this failure affected the outcome of the case. Defense
counsel argued to the jury that the State mishandled evidence
and that the jury should not rely upon the evidence. Moreover,
even without Deputy Dillard’s response to the court’s
questioning, the record still contains ample evidence of
appellant’s guilt. Therefore, appellant cannot establish that
trial counsel was ineffective for failing to object to the
court’s questions.
F
Conclusion
{¶312} Accordingly, based upon the foregoing reasons, we
overrule appellant’s seventh assignment of error.
VI
Eighth Assignment of Error
{¶313} In his eighth assignment of error, appellant argues
that the prosecutor committed misconduct that deprived him of
his constitutional rights to due process and to a trial by an
impartial jury. Appellant alleges that the prosecutor engaged
in misconduct by (1) introducing, during opening statements,
MEIGS, 22CA12
198
irrelevant and prejudicial victim-impact evidence; (2) vouching
for Walker’s credibility by (a) explaining the prosecutor’s
thought process when offering him a plea deal and (b) suggesting
that the crime scene evidence supported Walker’s story; (3)
arguing that Nelson (a) gave law enforcement officers
information that led to Walker’s arrest and (b) helped them with
the letters that appellant allegedly wrote while incarcerated;
and (4) by commenting on appellant’s privilege against self-
incrimination.
A
Prosecutorial Misconduct
{¶314} “Prosecutorial misconduct constitutes reversible error
only in rare instances.” State v. Edgington, 2006-Ohio-3712, ¶
18 (4th Dist.), citing State v. Keenan,
66 Ohio St.3d 402, 405
(1993). Accordingly, courts ordinarily will not reverse a
judgment on the basis of prosecutorial misconduct unless “the
prosecutor’s conduct ‘so infected the trial with unfairness as
to make the resulting conviction a denial of due process.’”
State v. Belton,
2016-Ohio-1581, ¶ 125, quoting Donnelly v.
MEIGS, 22CA12
199
DeChristoforo, 416 U.S. 637, 643 (1974). A prosecutor’s
improper conduct “‘so infect[s] the trial with unfairness as to
make the resulting conviction a denial of due process’” when “it
prejudicially affect[s] the defendant’s substantial rights.”
State v. Wilks,
2018-Ohio-1562, ¶ 172, citing State v. Maxwell,
2014-Ohio-1019, ¶ 243. Courts assess prejudice by examining
“the effect of the misconduct ‘. . . in the context of the
entire trial.’” Wilks at ¶ 172, quoting Keenan,
66 Ohio St.3d
at 410.
{¶315} We further note that “[t]he benchmark of the
prosecutorial misconduct analysis is ‘the fairness of the trial,
not the culpability of the prosecutor.’” State v. Obermiller,
2016-Ohio-1594, ¶ 99, quoting Smith v. Phillips,
455 U.S. 209,
219 (1982). Accordingly, “[n]ot every intemperate remark by
counsel can be a basis for reversal.” State v. Landrum,
53 Ohio
St.3d 107, 112 (1990). Instead, “[t]he test for prosecutorial
misconduct is whether the conduct complained of deprived the
defendant of a fair trial.” State v. Jackson,
92 Ohio St.3d
436, 441 (2001), citing State v. Apanovitch,
33 Ohio St.3d 19,
MEIGS, 22CA12
200
24 (1987). Therefore, “[t]he touchstone of the analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’”
State v. Garrett, 2022-Ohio-4218, ¶ 144, quoting Smith v.
Phillips,
455 U.S. 209, 219 (1982).
{¶316} In the case at bar, appellant recognizes that trial
counsel did not object to the prosecutor’s (1) opening statement
regarding the victim’s background, (2) statements allegedly
vouching for Walker’s credibility, or (3) comments regarding
Nelson’s involvement. He thus agrees that plain-error review
applies to these alleged instances of prosecutorial misconduct.
We therefore review these claims to determine whether the
prosecutor obviously engaged in misconduct so as to affect the
outcome of the trial. See State v. Whitaker, 2022-Ohio-2840, ¶
85 (defendant’s failure to contemporaneously object to alleged
prosecutorial misconduct forfeits all but plain error).
{¶317} Appellant did, however, object when he believed that
the prosecutor improperly commented upon appellant’s privilege
against self-incrimination. This prosecutorial misconduct claim
thus is not subject to plain-error review.
MEIGS, 22CA12
201
B
Victim-impact Evidence
{¶318} Appellant first argues that the prosecutor engaged in
misconduct by introducing victim-impact evidence during opening
statement. Appellant asserts that the prosecutor “should not
have commented on what type of person [the victim] was.” He
claims that the prosecutor’s comments about the victim’s
character served only to generate “sympathy” for the victim and
“anger” toward appellant.
{¶319} The State contends that opening statements are not
evidence and further asserts that the prosecutor’s opening
statement did not contain any improper victim-impact evidence.
{¶320} “Opening statements serve to inform the jury about the
nature of the case and to outline the facts that each party
intends to prove.” (Emphasis in original) State v. Nicholson,
2024-Ohio-604, ¶ 282. “Prosecutors have wide latitude in
opening statement but cannot use that opportunity to introduce
evidence.” State v. Fannon,
2018-Ohio-5242, ¶ 58 (4th Dist.).
The prosecution may, however, “refer to evidence it intends to
MEIGS, 22CA12
202
present during trial.” State v. Gilbert, 2005-Ohio-5536, ¶ 16
(10th Dist.). The prosecution thus may “summarize,” “describe,”
or “anticipate evidence,” but it “risks a mistrial when it
engages in an attempt to actually introduce evidence.”
Id.
{¶321} Moreover, “opening statements should not include
matters that attempt to influence or sway the jury by making
statements that counsel knows will not be supported by competent
or admissible evidence.” State v. Wuensch, 2017-Ohio-9272, ¶ 34
(8th Dist.), citing Maggio v. Cleveland,
151 Ohio St. 136, 140–
141 (1949). However, “unless . . . counsel ‘deliberately
attempt[ed] to influence and sway the jury by a recital of
matters foreign to the case,’ remarks made during opening
statements cannot form the basis of a misconduct claim.”
Nicholson,
2024-Ohio-604, at ¶ 282, quoting Maggio at paragraph
two of the syllabus.
{¶322} As we determined in our discussion of appellant’s
fifth assignment of error, the prosecutor’s opening statement
did not reference improper victim-impact testimony. For this
reason, we cannot state that the trial court obviously erred by
MEIGS, 22CA12
203
not sua sponte striking as prosecutorial misconduct the
prosecutor’s opening statement that gave the jury background
information about the victim.
{¶323} We further note that the trial court instructed the
jury that opening statements are not evidence. The court
informed the jury that each party begins with an opening
statement that “outlines what they expect their evidence will
be.” The court specifically advised the jury that opening
statements “will not be evidence.” The court continued to
explain that opening statements “are a preview of the claims of
each party designed to help [the jury] follow the evidence as it
is presented.”
{¶324} Under these circumstances, we cannot state that the
prosecutor committed misconduct during opening statement by
giving the jury context and background information about the
victim, especially when the State presented evidence to support
the assertions contained in its opening statement. See
Nicholson, 2024-Ohio-604, at ¶ 283 (concluding that defendant
failed to show plain error when the trial court had instructed
MEIGS, 22CA12
204
the jury that opening statements are not evidence and when the
evidence supported the assertions that the defendant claim
constituted misconduct).
C
Vouching for Witnesses
{¶325} Appellant also contends that the prosecutor improperly
vouched for Walker’s credibility. Appellant complains that the
prosecutor “inject[ed] himself and his credibility into the
case” when the prosecutor “emphasized” that offering Walker a
plea deal “was his decision” and that he would not have offered
Walker a deal if the prosecutor thought that Walker was lying.
{¶326} Appellant additionally asserts that the prosecutor’s
statement that he “consulted the victim’s parents and law
enforcement officers” before accepting Walker’s plea deal gave
Walker’s testimony credibility by suggesting that “others
approved” using Walker’s testimony at trial.
{¶327} Appellant further argues that the prosecutor committed
misconduct by stating that the prosecutor agreed to a plea
agreement with Walker because the crime scene evidence supported
MEIGS, 22CA12
205
Walker’s story. Appellant claims that the prosecutor’s
statements improperly bolstered Walker’s credibility.
{¶328} As a general matter, a prosecutor may not vouch for a
witness by expressing a personal belief or an opinion as to the
credibility of a witness. State v. Myers, 2018-Ohio-1903, ¶
145; State v. Williams,
79 Ohio St.3d 1, 12 (1997). Improper
vouching occurs when a prosecutor implies knowledge of facts
outside the record or places the prosecutor’s personal
credibility in issue. Myers,
2018-Ohio-1903, at ¶ 145; State v.
Jackson,
2005-Ohio-5981, ¶ 117; State v. Keene,
81 Ohio St.3d
646, 666 (1998). By preventing the prosecutor from giving the
jury the impression that evidence particularly known to the
prosecutor but kept from the jury “supports the charges against
the defendant,” the rule seeks to avoid jeopardizing a
“defendant’s right to be tried solely on the basis of the
evidence presented to the jury.” United States v. Young,
470
U.S. 1, 18 (1985). Moreover, the rule prohibits prosecutors
from expressing their own opinions to avoid inducing “the jury
MEIGS, 22CA12
206
to trust the Government’s judgment rather than its own view of
the evidence.” Id. at 18-19.
{¶329} Although prosecutors cannot express an opinion
regarding the credibility of witnesses or evidence, they may
argue that the fact finder should consider “‘the character,
quality, or consistency of particular evidence or witnesses . .
. when assessing credibility.’” State v. Hostacky, 2014-Ohio-
2975, ¶ 47 (8th Dist.), quoting State v. Cody, 2002-Ohio-7055, ¶
35 (8th Dist.). Thus, “[a] prosecutor does not improperly vouch
for a witness’s credibility by arguing, based upon the evidence,
that a witness was ‘a reliable witness to the simple events she
witnessed, that she lacked any motive to lie, [or] that her
testimony was not contradictory.’” State v. Reine, 2007-Ohio-
7221, ¶ 63 (4th Dist.), quoting State v. Green,
90 Ohio St.3d
352, 373–374 (2000). Additionally, “[a] prosecutor may argue
facts in evidence to support a witness’s credibility and may
respond to defense attacks on the witness’s credibility and
mental abilities.”
Id., citing Green,
90 Ohio St.3d at 374, and
State v. Woodard,
68 Ohio St.3d 70, 76 (1993).
MEIGS, 22CA12
207
{¶330} Furthermore, even if a prosecutor improperly vouches
for a witness, courts will uphold the conviction when the record
indicates “‘beyond a reasonable doubt that the jury would have
returned a verdict of guilty’” in the absence of the improper
remarks. State v. Knuff, 2024-Ohio-902, ¶ 238, quoting United
States v. Hasting,
461 U.S. 499, 511-512 (1983).
{¶331} In the case sub judice, we do not believe that
appellant has established that the prosecutor obviously vouched
for Walker or that any improper vouching affected his
substantial rights. During opening statement, the prosecutor
stated the following:
In order to obtain [Walker]’s cooperation, the
State had to claim a deal and that was my decision. I
made that decision in consultation with [the victim]’s
parents and with law enforcement. Um, the reason the
deal was made with [Walker] and not [Nelson] is because
the physical evidence at the scene supported [Walker]’s
story.
{¶332} The prosecutor’s statement that the crime scene
evidence supported Walker’s testimony did not constitute
improper vouching. The assertion did not imply knowledge of
facts outside the record or place the prosecutor’s own
MEIGS, 22CA12
208
credibility at issue. Instead, the prosecutor used facts in
evidence–the crime scene evidence–to argue that Walker’s
testimony was credible. See generally State v. Graham, 2020-
Ohio-6700, ¶ 97 (no improper vouching occurred when prosecutor
stated that witnesses eventually decided to tell the truth;
prosecutor simply “discussed the circumstances leading to [the
witnesses’] eventual decision to cooperate with police, and the
testimony at trial supported [the prosecutor’s] statements”);
id. at ¶ 99 (prosecutor did not improperly vouch for witnesses
when arguing that (1) the witnesses’ testimonies were consistent
with each other, (2) the victims’ testimonies corroborated the
witnesses’ testimony, and (3) the witnesses “were motivated to
tell the truth”).
{¶333} Moreover, even if the prosecutor’s comments that
Walker’s plea agreement was the prosecutor’s decision and that
he consulted the victim’s parents and law enforcement officers
constituted an obvious error that the trial court should have
sua sponte struck, see State v. Waddy, 63 Ohio St.3d 424, 435-
436 (1992) (prosecutor may not “invite[] the jury to substitute
MEIGS, 22CA12
209
the prosecutor’s experience for its own evaluation”), the record
does not suggest that these comments affected the outcome of the
trial. Rather, given the overwhelming evidence of appellant’s
guilt, as we discussed in appellant’s sixth assignment of error,
any improper comments did not affect appellant’s substantial
rights. See Knuff, 2024-Ohio-902, at ¶ 240 (prosecutorial
misconduct constitutes harmless error when the record contains
“overwhelming evidence of [the defendant]’s guilt”). Viewed in
the context of the entire trial, the prosecutor’s statements,
even if improper, did not “undermine the fundamental fairness of
the trial and contribute to a miscarriage of justice.” Young,
470 U.S. at 16; see United States v. Socony-Vacuum Oil Co.,
310
U.S. 150, 240 (1940) (when the record indicates that improper
“statements were minor aberrations in a prolonged trial and not
cumulative evidence of a proceeding dominated by passion and
prejudice, reversal would not promote the ends of justice”).
{¶334} Consequently, appellant has not established that we
must reverse his conviction based upon the argument that the
MEIGS, 22CA12
210
prosecutor engaged in misconduct by improperly vouching for
Walker.
D
Improper Argument
{¶335} Appellant next asserts that the prosecutor introduced
improper argument by referring to statements that his
nontestifying codefendant, Nelson, made during interviews with
law enforcement officers. Appellant contends that Bruton v.
United States, 391 U.S. 123 (1968), prohibits the prosecution
from introducing a nontestifying codefendant’s confession into
evidence, because admitting the nontestifying codefendant’s
confession would violate a defendant’s right to confront and
cross-examine the witnesses against him.
{¶336} Appellant observes that, during opening statements,
the prosecutor stated the following:
At that time, during those interviews, he was
denying that he was the person who shot [the victim].
Now Keontae has not agreed to testify in this case, and
I won’t anticipate that he will testify in this case, so
I can’t really tell you what he said about or did not
say about the Defendant, but he did say something
incredibly important during his fourth (4th) interview
MEIGS, 22CA12
211
that led to the arrest of a third suspect. Keontae
claimed that a young man by the name of Richard Walker
shot [the victim] with the forty five (45) caliber
handgun. Keontae did not state that he shot [the victim]
with a shotgun, and he did not state that Richard shot
[the victim] with a shotgun, but he did indicate that
Richard Walker is the one who shot [the victim] with the
forty five (45). Keontae’s story of how Richard Walker
allegedly shot [the victim], however, did not match the
physical evidence at the scene. Nonetheless, agents
obtained an arrest warrant for Richard Walker. Richard
Walker was arrested, and he also readily agreed to give
a statement.
{¶337} Appellant further asserts that, during closing
argument, the prosecutor stated the following:
[Agent Jenkins’s] investigation, along with the
Major Crimes Task Force, led to Keontae Nelson. Keontae
Nelson gave a total of five separate interviews. Five
interviews. Not just five statements at one time, five
separate interviews on five different dates. Not until
the fourth interview did he reveal any information about
Richard Walker. He was holding out as long as he could.
He did not want to give up Richard Walker’s name. It
took four interviews. When he gave up that name, Agent
Jenkins and agents from the Task Force tracked down
Richard Walker and they interviewed Richard Walker.
Prior to that, Keontae had made mention of letters that
he had received from the Defendant and Keontae’s mother,
upon request, provided those letters to law enforcement.
{¶338} Appellant contends that the prosecutor’s assertions
improperly “suggest[ed] that anything Nelson said or did would
MEIGS, 22CA12
212
be or was evidence when he did not testify.” He thus claims
that the State could not use this line of argument “as evidence
against [him]” and further complains that he did not have any
“way to confront or cross-examine this argument.”
{¶339} Appellant next argues that, during closing argument,
the prosecutor improperly referred to two witnesses who did not
testify at trial. The prosecutor stated the following:
[T]wo witnesses that the State had anticipated
calling were unavailable to testify. One was Amanda
Brumfield with the Middleport Police Department, who is
one of the first officers on scene. She was unable to
testify due to a medical situation. And Sergeant Fields
was unable to testify, um, he is with Charleston Police
Department and, if you recall during my opening
statement, I said that there would be a video that you
could watch, and that was his body cam, um, so we were
not able to get that into evidence without his testimony.
So, that’s why you didn’t see that.
{¶340} Appellant asserts that because these two witnesses did
not testify, “there was no evidence to reference, and it was
improper for the prosecutor to explain why the State did not
present their testimony.”
{¶341} The State argues that the prosecutor’s statements
regarding Nelson were not improper references to a nontestifying
MEIGS, 22CA12
213
codefendant’s confession. The State instead claims that the
statements related the testimony that the prosecution expected
from law enforcement officers regarding their investigative
efforts. The State asserts that nothing in the prosecutor’s
statements suggested that it would introduce evidence or
testimony obtained from Nelson.
{¶342} The State next claims that nothing that the prosecutor
stated regarding the two witnesses who ultimately did not
testify constituted prosecutorial misconduct. The State
indicates that, during its opening statement, the prosecutor
informed the jury that these two witnesses would testify and
related their expected testimony. Although the State admits
that, during closing argument, explaining the witnesses’ absence
may not have been necessary, it does not agree that discussing
their absence constituted prosecutorial misconduct.
{¶343} As we noted above, during opening statement, the
prosecution may “refer to evidence it intends to present during
trial,” but it “risks a mistrial when it engages in an attempt
MEIGS, 22CA12
214
to actually introduce evidence.” Gilbert, 2005-Ohio-5536, at ¶
16.
{¶344} “During closing arguments, the prosecution generally
has wide latitude to convincingly advance its strongest
arguments and positions.” State v. Gibson, 2003-Ohio-4910, ¶ 35
(4th Dist.), citing State v. Phillips,
74 Ohio St.3d 72, 90
(1995). The prosecution “may freely address what the evidence
has shown and what reasonable inferences may be drawn from that
evidence.” State v. Wuensch,
2017-Ohio-9272, ¶ 38 (8th Dist.).
The prosecution must, however, avoid going beyond the evidence
presented in order to obtain a conviction. E.g., State v.
Smith,
14 Ohio St.3d 13, 14 (1984) (stating that prosecutor has
a duty “to avoid efforts to obtain a conviction by going beyond
the evidence which is before the jury”). “[P]rosecutors must be
diligent in their efforts to stay within the boundaries of
acceptable argument and must refrain from the desire to make
outlandish remarks, misstate evidence, or confuse legal
concepts.” State v. Fears,
86 Ohio St.3d 329, 332 (1999).
MEIGS, 22CA12
215
{¶345} Additionally, a court that is reviewing claims of
prosecutorial misconduct during closing argument must not focus
on isolated comments but must examine the prosecution’s closing
argument in its entirety to determine whether the prosecutor’s
comments prejudiced the defendant. E.g., State v. Keenan, 66
Ohio St.3d 402, 410 (1993). “A conviction will be reversed only
where it is clear beyond a reasonable doubt that, absent the
prosecutor’s comments, the jury would not have found appellant
guilty.” State v. Benge,
75 Ohio St.3d 136, 141–42 (1996),
citing State v. Loza,
71 Ohio St.3d 61, 78 (1994).
{¶346} In the case at bar, we do not believe that appellant
established that the prosecution engaged in misconduct during
opening statement or closing argument. Contrary to appellant’s
belief, the prosecution’s opening statement did not refer to a
nontestifying codefendant’s confession. The prosecutor never
stated that Nelson, the nontestifying codefendant, confessed.
Furthermore, during opening statement, the prosecutor explained
that he would not be introducing Nelson’s actual statements.
Instead, the prosecutor referred to the information that law
MEIGS, 22CA12
216
enforcement officers–who would be testifying–learned from
interviewing Nelson. Thus, referring to the information that
officers gathered during their interviews with Nelson did not
violate appellant’s right to confront and cross-examine Nelson.
We additionally note that appellant had a full opportunity to
cross-examine the officers who testified about the interviews
with Nelson.
{¶347} We likewise disagree with appellant that, during
closing argument, the prosecutor committed misconduct by
explaining the reason for the absence of two witnesses who
ultimately did not testify. Even if the explanation was
unnecessary, appellant does not explain how any error affected
the outcome of the trial.
{¶348} Consequently, we do not agree with appellant that the
prosecutor committed misconduct by introducing improper
argument.
E
Miranda Violations
MEIGS, 22CA12
217
{¶349} Appellant also argues that the prosecutor engaged in
misconduct by introducing evidence that improperly commented
upon his privilege against self-incrimination.
{¶350} In appellant’s fourth assignment of error, we
determined that even if the State improperly commented on
appellant’s privilege against self-incrimination, appellant
cannot show that the State’s comments affected the outcome of
the case. See Crim.R. 52 (“Any error, defect, irregularity, or
variance which does not affect substantial rights shall be
disregarded”); State v. Jones, 2020-Ohio-3051, ¶ 18 (an error
impacts a defendant’s substantial rights if “it affected the
outcome of the trial”); see also Knuff,
2024-Ohio-902, at ¶ 240
(prosecutorial misconduct constitutes harmless error when the
record contains “overwhelming evidence of [a defendant]’s
guilt”); State v. Clark,
38 Ohio St.3d 252, 259 (1988)
(prosecutorial misconduct constitutes harmless error when
misconduct does not deprive a defendant of a fair trial). Thus,
appellant cannot establish that we must reverse his conviction
due to the prosecutor’s allegedly improper statements.
MEIGS, 22CA12
218
F
Cumulative Impact
{¶351} Appellant additionally contends that, even if each
instance of prosecutorial misconduct does not individually
warrant reversal, the cumulative effect of the prosecutor’s
misconduct deprived him of a fair trial. As we concluded above,
however, appellant has not identified any instances of
prosecutorial misconduct that deprived him of a fair trial. See
Nicholson, 2024-Ohio-604, at ¶ 316 (rejecting cumulative
prosecutorial misconduct argument when defendant failed to
identify any instances of misconduct). Moreover, the case at
bar is not one of the “rare” cases in which the prosecutor’s
conduct affected the outcome of the trial. See State v.
Garrett,
2022-Ohio-4218, ¶ 173 (“when the evidence is viewed in
context of the entire trial, it does not show that the
prosecutor’s conduct prejudicially affected [the defendant]’s
substantial rights”).
{¶352} Accordingly, based upon the foregoing reasons, we
overrule appellant’s eighth assignment of error.
MEIGS, 22CA12
219
VII
Supplemental Assignment of Error
{¶353} In his supplemental assignment of error, appellant
argues that the indictment charging him with conspiracy to
commit aggravated murder or murder is fatally defective because
it does not allege a substantial overt act performed in
furtherance of the conspiracy. Appellant notes that in State v.
Nelson, 2023-Ohio-3566 (4th Dist.), this court held that a
similarly worded indictment was insufficient to charge
conspiracy. He asserts that based upon our Nelson decision, we
should reverse and vacate his conspiracy conviction. The State
does not contest appellant’s supplemental assignment of error.
{¶354} We agree with appellant that his indictment suffers
from the same flaw as the indictment in Nelson. Accordingly,
based upon the authority of Nelson, we sustain appellant’s
supplemental assignment of error, reverse the trial court’s
judgment convicting appellant of conspiracy, and vacate
MEIGS, 22CA12
220
appellant’s conspiracy conviction.13 In all other respects, we
affirm the trial court’s judgment.
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART AND VACATED
IN PART.
13The trial court merged the offenses for sentencing
purposes and sentenced appellant on the aggravated-murder
offense. We therefore need not remand this matter to the trial
court for resentencing.
MEIGS, 22CA12
221
JUDGMENT ENTRY
It is ordered that the judgment be affirmed in part, reversed
in part and vacated in part. Appellee shall recover of appellant
the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Meigs County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted, it is continued for a period of 60 days
upon the bail previously posted. The purpose of said stay is to
allow appellant to file with the Ohio Supreme Court an application
for a stay during the pendency of the proceedings in that court.
The stay as herein continued will terminate at the expiration of
the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio
Supreme Court. Additionally, if the Ohio Supreme Court dismisses
the appeal prior to the expiration of said 60 days, the stay will
terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:____________________________
Peter B. Abele, Judge
MEIGS, 22CA12
222
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
