State v. Hall

[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.

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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:

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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

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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

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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.

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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

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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

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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).

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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

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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.

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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

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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.

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{¶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.

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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

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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.

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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

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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

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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).

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{¶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

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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 court-

appointed 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

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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

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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

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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

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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.”

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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

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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

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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.

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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

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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.

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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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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).

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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-

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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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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,

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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

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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

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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

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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 . . .

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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

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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

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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

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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

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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

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{¶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

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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

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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

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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

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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

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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

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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.”

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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.

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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

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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

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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’

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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

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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.

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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

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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 prior-

calculation-and-design element needed to prove aggravated

murder. We limit our review accordingly.

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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

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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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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

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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

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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

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(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

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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

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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,

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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

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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

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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.”

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{¶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

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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

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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

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{¶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

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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.

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Consequently, the victim’s failure to identify appellant as the

individua

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