State v. Nicholson

[This opinion has been published in Ohio Official Reports at 176 Ohio St.3d 181.]

THE STATE OF OHIO, APPELLEE, v. NICHOLSON, APPELLANT.

[Cite as State v. Nicholson, 2024-Ohio-604.]

Criminal law—Aggravated murder—Convictions and death sentences affirmed.

(No. 2019-1787—Submitted January 11, 2023—Decided February 22, 2024.)

APPEAL from the Court of Common Pleas of Cuyahoga County,

No. CR-18-634069-A.

__________________

FISCHER, J.

{¶ 1} In September 2018, appellant, Matthew Nicholson, shot to death 17-

year-old M.L. and 19-year-old Giselle Lopez as M.L. and Giselle fled their home.

A Cuyahoga County jury rejected Nicholson’s claim that he shot M.L. and Giselle

in self-defense and found him guilty of two counts of aggravated murder. On the

jury’s recommendation, the trial court sentenced Nicholson to death.

{¶ 2} We affirm Nicholson’s convictions and death sentences.

I. FACTS

A. Nicholson murders M.L. and Giselle

{¶ 3} In September 2018, Nicholson lived with America Polanco and two

of her children, M.L. and Giselle, at their home on East 86th Street in Garfield

Heights. On the evening of September 5, Polanco, Nicholson, and M.L. were at

home. M.L. was in his second-floor bedroom, and Polanco and Nicholson were in

their first-floor master bedroom. Nicholson attacked Polanco after she received a

text message from her former boyfriend, Terricko Marshall. Nicholson grabbed

Polanco by her neck, threw her onto the bed, and began strangling her.

{¶ 4} According to Polanco, Nicholson forced her to unlock her cellphone;

then he called Marshall. Nicholson told Marshall that if Polanco and Marshall were

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having an affair, “bad things [were] going to happen here because [he was] a big

dude.”

{¶ 5} Polanco testified that Nicholson yelled at her, “Your son is coming

down here. I’ll kill him and I’ll kill your daughter too.” M.L. then arrived at the

master-bedroom door, “crying and screaming: ‘Mommy, you okay?’ ” According

to Polanco, Nicholson opened the door, grabbed M.L., “push[ed] him in[to] the

kitchen,” and then pinned him to the floor.

{¶ 6} When Polanco tried to intercede, Nicholson grabbed her and threw

her against a wall, giving M.L. a chance to get up. M.L. called 9-1-1 and then called

Giselle, telling her not to enter the house. When Nicholson realized that M.L. had

called 9-1-1, he said to M.L., “I told you don’t you ever call the police.”

{¶ 7} Nicholson then obtained his gun from the master bedroom and

returned to the kitchen, where Polanco confronted him near a side door. Nicholson

pushed past Polanco and fired 13 shots at M.L. and Giselle, who were less than ten

feet away outside the house.

{¶ 8} Around 9:35 p.m., a 9-1-1 dispatcher received two anonymous calls.

The dispatcher noted that the first caller was on East 86th Street, near Polanco’s

address.

{¶ 9} Within minutes of the first 9-1-1 call, Garfield Heights Police Officer

Robert Jarzembak responded to a report of shots being fired on East 86th Street.

Officer Jarzembak testified that he approached Polanco’s house with his body

camera activated. He saw two people lying motionless in the driveway, between a

vehicle and the side door of the house. A third person, Polanco, “was kneeling near

them and crying hysterically.” Officers later identified the victims as M.L. and

Giselle. Officer Jarzembak testified that when he arrived, M.L. was dead and

Giselle was semiconscious.

{¶ 10} Garfield Heights Police Officer Berri Cramer spoke to Polanco,

whom she described as being “highly upset [and] very distraught.” Officer Cramer

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learned that Nicholson was still inside the house, “had lots of guns in the house,”

was “highly trained,” and worked for “Homeland Security.” Polanco told Officer

Cramer that Nicholson had threatened to kill any law-enforcement officer who tried

to enter the house. Polanco showed Officer Cramer bruises on her arms and face

that she said were caused by Nicholson.

{¶ 11} Police created a perimeter around the house, and Garfield Heights

Police Lieutenant Todd Vargo, a trained negotiator, called Nicholson’s cellphone.

Nicholson had been talking on the phone with his mother, Angel Nicholson.

Lieutenant Vargo participated in a three-way conversation with Nicholson and

Angel. The conversation with Nicholson lasted about four hours, until Nicholson

surrendered. Lieutenant Vargo’s body camera recorded about three hours of the

conversation.

{¶ 12} Lieutenant Vargo testified that his discussion with Nicholson was

“kind of a revolving conversation covering three or four basic subjects,” including

Nicholson’s remorse, his state of mind during the shootings, the events leading up

to the shootings, and Vargo’s steering Nicholson away from suicide and toward

surrendering.

{¶ 13} Nicholson admitted to Lieutenant Vargo that he had shot M.L. and

Giselle. Nicholson said that he “blacked the fuck out” during the incident, that he

was not a “nut” or a “psycho,” that he “snapped,” and that he must “answer for it.”

Nicholson mentioned “the texting, the relationship, the lies, [and] the kids being

disrespectful,” but he admitted: “It doesn’t justify gunning somebody down. I did

it because that’s what I know. * * * Maybe if I knew Jiu Jitsu, I’d try to chop their

ass up.”

{¶ 14} During the call, Nicholson described his version of the altercation.

He said it started when M.L. came downstairs and tried to “break in the bedroom

door.” (Lieutenant Vargo testified that Nicholson did not specifically identify M.L.

as the subject of this assertion, but Lieutenant Vargo “assumed [the person being

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referred to] was” M.L.) Nicholson said that he opened the door and found M.L. “in

attack mode,” meaning M.L.’s “fists [went] up” and “[M.L. was] bobbing back and

forth.” According to Nicholson, “[that] started it.” Nicholson told Lieutenant

Vargo that he had reached his “breaking point” and stated, “I can’t express how

sorry I am. I can’t express it. I can’t express it.” Nicholson said that the argument

between him and Polanco that night and M.L.’s and Giselle’s disrespect toward him

in general had led to the shooting.

{¶ 15} When Nicholson surrendered, he told Lieutenant Vargo that the gun

he had used to shoot M.L. and Giselle was in the basement.

B. The investigation

{¶ 16} Police conducted an initial search of the East 86th Street property on

September 6. Outside the house, they found a bloodstained gym shoe, a backpack

with bullet holes in it, bullet fragments, and 13 expended shell casings.

{¶ 17} The shell casings, stamped “Winchester 45 Auto,” were located on

the driveway, near the side door of the house. A crime-scene investigator from the

Ohio Bureau of Criminal Investigation (“BCI”) determined that most of the casings

had come to rest within ten feet of the side door.

{¶ 18} Investigators noted damage to doorways and doors inside the house.

They found on top of a desk in the basement ten notes handwritten by Nicholson.

All were read into the record. In one note, Nicholson wrote: “I am sorry * * * [there

is o]nly so much a man can take.” Another note read: “[Polanco], I tried. You

continu[al]ly let your kids disrespect me. Why?” A third note read: “I literally

snapped. I’m not crazy. I’m not an extremist.” Other notes were addressed to

Nicholson’s parents, his employer, and the responding officers. Investigators also

found ammunition, police duty belts, and uniforms in the basement.

{¶ 19} Roberto Lopez, Polanco’s oldest son, testified that he and Carlos

Nieves went to Polanco’s house on September 13 and that Estomarys Santos was

there with Polanco when they arrived. Roberto went there to remove Nicholson’s

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belongings so that Polanco would feel more comfortable. According to Roberto,

he found a holstered gun in the master-bedroom closet and put the gun in the trunk

of Nicholson’s car.

{¶ 20} Also on September 13, Lieutenant Robert Petrick and Detectives

Peter Stroe and Mark Menary of the Garfield Heights Police Department conducted

a search of Nicholson’s car. The detectives inventoried the contents of the car, and

Lieutenant Petrick took digital photographs of the search. Garfield Heights Police

Detective Carl Biegacki indicated in his testimony that Polanco told him prior to

the vehicle search that she and Roberto had put Nicholson’s belongings into the car.

{¶ 21} Some of the photographs taken during that search were overwritten

and never recovered. The missing photographs included pictures of “all four sides

of the car, [and] every * * * piece of evidence * * * inside the trunk, then outside

the trunk.”

{¶ 22} At trial, the state introduced Polanco’s and Nicholson’s cellphone

records to establish how they communicated and to corroborate Polanco’s

testimony about Nicholson’s physical abuse. The state also presented text

messages between Nicholson and his mother and between Polanco and Marshall.

{¶ 23} Dr. Todd Barr, a deputy medical examiner for Cuyahoga County,

conducted M.L.’s and Giselle’s autopsies. Regarding M.L., Dr. Barr testified that

he found eight gunshot wounds to his body, six of which were penetrating (i.e.,

without a corresponding exit wound) and two of which were perforating (i.e., with

an entrance wound and an exit wound). The bullet that caused one of the six

penetrating wounds had entered M.L.’s upper right arm, exited near his right

armpit, and reentered M.L. through the right side of his chest. Dr. Barr recovered

that bullet from the soft tissue of the right side of M.L.’s chest. The other five

penetrating wounds were on both sides of M.L.’s lower back. The two perforating

bullet wounds entered M.L.’s left hip/flank and traveled back to front, left to right,

and upward before exiting M.L.’s abdomen.

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{¶ 24} Dr. Barr testified that the bullets destroyed parts of M.L.’s liver,

adrenal gland, colon, abdomen, and one of his kidneys and that several blunt-force

injuries, abrasions, scratches, and lacerations were also present on M.L.’s body.

Dr. Barr testified that the cause of M.L.’s death was multiple gunshot wounds to

his torso and right arm.

{¶ 25} Dr. Barr testified that Giselle had sustained four gunshot wounds.

The bullets entered Giselle’s “left upper arm, and then * * * the lower back, and

left buttocks and left lower back, and left buttocks.” Dr. Barr observed that

Giselle’s left arm had an entrance wound and an exit wound and that her chest had

a reentrance wound. He recovered three bullets from Giselle’s body. A fourth

bullet was recovered during an exploratory laparotomy performed prior to the

autopsy. He concluded that the cause of Giselle’s death was multiple gunshot

wounds to her torso and left arm.

{¶ 26} Investigators also learned that Nicholson had threatened to hurt

Polanco or her children multiple times previously. Through text messages obtained

from Polanco’s cellphone, the jury heard about Nicholson’s specific threats and

violence against Polanco. During her testimony, Polanco provided details about

Nicholson’s physical abuse and identified photographs of injuries to her that

Nicholson had caused.

C. Nicholson’s trial-phase defense

{¶ 27} Nicholson testified in his own defense. His testimony was the only

defense evidence presented during the trial phase.

{¶ 28} Nicholson was 30 years old at the time of trial. He testified that he

met Polanco when they were both working at Lincoln Electric. Marshall also

worked at Lincoln Electric, and Polanco was ending her relationship with him

around the time she met Nicholson.

{¶ 29} Nicholson testified that Polanco had approached him because she

knew that he had a “background in law enforcement” and wanted his advice on

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preventing Marshall from coming to her house. He explained that he became

acquainted with Polanco’s family while helping Polanco secure her house after her

breakup with Marshall.

{¶ 30} Nicholson testified that after he met Polanco’s children, he initially

had a good relationship with them and was “fond of all of them.” He testified that

before he moved into Polanco’s house, she told him not to bring up with the

children their age difference (Polanco was more than 15 years older than

Nicholson) because she was uncertain of how they would react. For this reason,

Nicholson “was pretty careful about where [he] left [his] belongings, like [his] I.D.

and [his] wallet.” However, at some point, he noticed that his wallet was not where

he had left it and that its contents were out of order. Nicholson testified that he

believed this was how and when M.L. and Giselle discovered his age and that the

level of respect they showed him changed on learning his age.

{¶ 31} Nicholson worked in security during his relationship with Polanco

and regularly carried a firearm as part of his duties. For his most recent job with

Paragon Systems, he was issued a Glock .40-caliber handgun. He testified that

when he was not working, he usually left his work gun and duty belt in the trunk of

his car. Nicholson testified that he occasionally forgot to bring his gun to work and

that on two occasions, he asked Giselle to retrieve it from his bedroom closet.

{¶ 32} Nicholson testified that on the day of the murders, he went to work

at 6:00 a.m. and worked a 12-hour shift. He and Polanco communicated throughout

the day. When he arrived home around 7:00 p.m., Polanco and M.L. were already

there. According to Nicholson, later that night, he and Polanco were sitting on their

bed watching television when her cellphone “beeped,” indicating the receipt of a

text message. Nicholson testified that Polanco “suddenly turned the screen of her

phone off and set it down in her lap.” He surmised that “she was concealing the

text message.”

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{¶ 33} Nicholson testified that soon thereafter, Polanco told him that the

text was from Marshall. Nicholson was angry that Polanco had tried to conceal the

message. According to Nicholson, when Marshall returned a call he had made to

Marshall using Polanco’s cellphone, Polanco handed the cellphone to him and he

asked Marshall whether anything was “going on” between Marshall and Polanco.

Nicholson testified that Marshall then laughed and said that nothing was going on.

Nicholson testified, however, that Marshall “continued chuckling” as he explained

that nothing was going on, “[s]o [he] knew that it was bullshit.”

{¶ 34} According to Nicholson, after he hung up on Marshall, he told

Polanco that he was leaving because she had destroyed his trust in her. Nicholson

testified that Polanco then “tried to come toward [him]” and that he told her to

“[s]tay the fuck away from [him].” According to Nicholson, M.L. then “started

pounding on the door” and tried to open it. Nicholson denied that he assaulted

Polanco in the bedroom that night. When asked about a photograph of injuries to

Polanco’s face from the night of the shootings, Nicholson denied that it showed any

injuries. But he agreed that another photograph from that night showed a bruise

near Polanco’s wrist that was caused when he grabbed her arm after M.L. tried to

intervene.

{¶ 35} Nicholson testified that the fight between him and M.L. began in the

hallway outside the bedroom door. Nicholson said that when M.L. “started

swinging on [him],” Polanco “came up behind [Nicholson] and wrapped her arms

around [him].” He testified that M.L. “hit [him] maybe two or three times,”

including once on the chin, which Nicholson said “hurt” him and “pissed [him]

off.” Nicholson testified that he tackled M.L. in an attempt to restrain him.

Eventually, the fight moved to the kitchen. Nicholson testified that at some point,

“we * * * all kind of stood there [and] caught our breath.”

{¶ 36} According to Nicholson, Polanco then walked out of the kitchen and

came back behind him and wrapped her arms around him while M.L. stood and

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looked at him. Nicholson asked Polanco, “What are you doing?” and told her to

“[g]et the hell off,” but Polanco “continued squeezing” him. Nicholson testified

that he asked Polanco multiple times during the altercation to move her car so that

he could leave.

{¶ 37} Nicholson testified that he pushed Polanco off him, which made

M.L. “irate.” Then M.L. and Nicholson “went back at it.” Nicholson tried to

restrain M.L. but noticed that Polanco had picked up a knife, so he “grabbed her

wrist and tried to hit her hand up against the refrigerator * * * [a]nd she dropped

it.”

{¶ 38} Nicholson then saw that M.L. was using a cellphone, so he walked

toward M.L. and said, “Who you texting? Are you texting [Marshall]?” Nicholson

testified that after he told M.L., “[Y]ou should be happy because your mom and

[Marshall] might be getting back together,” Polanco and M.L. smiled at each other.

{¶ 39} Nicholson testified that Giselle then arrived home. According to

Nicholson, he told Giselle to back her truck out of the driveway, but she refused,

so he “went back in the [bed]room * * * and * * * started grabbing clothes to

change into, because [he] was still in [his] pajamas, so [he] could leave.” And while

he was in the bedroom, Polanco came to the door and told him, “You’re going to

pay, motherfucker, for everything you did to me.” Nicholson testified,

And when she did that, she ran back out of the room, back to

the end of the hallway. And I ran to the doorway of the bedroom, to

see what she was doing.

And [Polanco] told [M.L.] and Giselle: He’s about to kill us.

And when she did that, Giselle said: Where’s his gun?

And [Polanco] reached back into the living room, and she

had keys in her hand. And I didn’t know whose keys they were.

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And [Polanco] said: His gun is in the back of his [car]. Hurry up

before he gets another one.

When she said that, * * * [M.L.] ran past her, ran down the

steps, and I ran out of the room to try to tackle him.

And as he did that, [Polanco] had my keys in her hand. I

didn’t know that they were my keys right then, but she put them up,

she held them up, and she thumbed something on the key fob.

And it wasn’t until I ran out of the room and tried to tackle

[M.L.] and he ran out of the house that I looked at those keys and

seen my [car] emblem on the back of them. And it didn’t dawn on

me what she had done until I ran into the bathroom and I looked out

the window and I seen [M.L.] in the back of the trunk of my car.

{¶ 40} Nicholson testified that he saw M.L. remove his holstered service

gun from the trunk of his car and try to pull it from the holster. According to

Nicholson, he tried to lock the side door of the house, but Giselle held it open; then

he tried to lock himself inside the bedroom, but the door would not stay closed

because, according to him, “when [M.L.] forced it open, he had messed up the

lock.” Nicholson testified that he grabbed his personal gun and asked Polanco to

lock the door. But “she backed up into the living room” and kept looking back and

forth between Nicholson and the door as if she expected M.L. “to come back in at

any second.”

{¶ 41} Nicholson testified that as he walked back toward the kitchen, he

“held [his] gun up in case one of [his] own stepkids came around the corner, pointed

[his] own gun at [him].” When he reached the side door, Polanco “attack[ed]” him

and began “hitting” him “in the side of the head” and “in the face” with a can of

Lysol. According to Nicholson, Polanco “sprayed” him “all over [his] body, all

over [his] face,” but he was able to see M.L. and Giselle “standing there trying to

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get [his] gun out of [the] holster.” Nicholson testified that he told them to drop the

gun “at least twice” but that Giselle “got the gun out of the holster” and turned

toward him. At that point, he “shot.” But Nicholson could not recall how many

shots he fired. He testified that he “tried [his] best to shoot low.” He saw Giselle

fall onto a car in the driveway and then saw both M.L. and Giselle “on the ground.”

Nicholson testified that he did not call the police, because he knew they were

coming.

{¶ 42} According to Nicholson, after the shootings, he saw Polanco pick up

his holster and service gun from the driveway and put them back into the trunk of

his car. Nicholson then retreated to the basement, where he spent the next three to

four hours writing notes and talking on the phone to his mother and Lieutenant

Vargo.

{¶ 43} During his conversation with Lieutenant Vargo, Nicholson talked

about having blacked out, and at some point he stated: “I may have to pay for it, I

may have to go to jail. I hope God has their souls right now. Who the F am I to do

that? I’m not God. I’m nobody. I know what I did. I’ve got what, 30 years a

piece?” At trial, Nicholson testified that he had said those things to get his mother

to “understand the gravity of the situation.” Nicholson testified that before he left

the house, he told Detective Biegacki that Polanco had put his service gun and

holster back into the trunk of his car and that he told Detective Biegacki to retrieve

it.

II. PROCEDURAL HISTORY

{¶ 44} Nicholson was indicted on two counts of aggravated murder in

violation of R.C. 2903.01(A) (prior calculation and design) (Counts One and Two).

Each of the aggravated-murder counts included one capital specification under

R.C. 2929.04(A)(5) (course of conduct).

{¶ 45} Nicholson was also charged with the attempted murder of Polanco

(Count Three), the murders of Giselle and M.L. (Counts Four and Five,

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respectively), the felonious assaults of M.L. and Giselle (Counts Six and Seven,

respectively), and the attempted felonious assault of Polanco (Count Eight). Each

count included one- and three-year firearm specifications. See R.C. 2941.141(A);

R.C. 2941.145(A).

{¶ 46} Nicholson pleaded not guilty, and his case proceeded to a jury trial.

The jury found Nicholson guilty of all counts and specifications, except for the

count and specifications for the attempted murder of Polanco.

{¶ 47} Before the mitigation phase, the trial court determined that the

counts pertaining to M.L. were allied offenses of similar import and therefore

merged those counts for sentencing purposes. It did the same regarding the counts

pertaining to Giselle. The court also merged the firearm specifications, leaving a

single three-year firearm specification for sentencing purposes. The state elected

to proceed with sentencing on Counts 1 and 2, the aggravated-murder counts.

{¶ 48} During the mitigation phase, seven witnesses testified on

Nicholson’s behalf. The state introduced testimony from two witnesses. The jury

recommended that the trial court sentence Nicholson to death. The trial court

accepted the jury’s recommendation and sentenced Nicholson to death on both

aggravated-murder counts. The court sentenced Nicholson to a consecutive, three-

year prison term for the firearm specification and a concurrent, three-year prison

term for the attempted felonious assault of Polanco.

III. ANALYSIS

A. Sufficiency and manifest weight of the evidence

{¶ 49} In his first proposition of law, Nicholson argues that the evidence

submitted at trial does not prove that he purposely and with prior calculation and

design caused the deaths of M.L. and Giselle. See R.C. 2903.01(A). Although

Nicholson concedes that the state presented evidence sufficient to prove that he

purposely killed M.L. and Giselle, he contends that the evidence was insufficient

to show that he planned, with advance reasoning, to kill them. He submits that the

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state’s claim that he had previously threatened the victims was not supported by the

evidence. And he claims that the state failed to prove beyond a reasonable doubt

that he was not acting in self-defense when he killed M.L. and Giselle.

{¶ 50} Further, Nicholson argues that the jury’s verdicts on the aggravated-

murder counts were against the manifest weight of the evidence.

1. The evidence was sufficient to convict Nicholson of aggravated murder with

prior calculation and design

{¶ 51} “In reviewing whether evidence is sufficient to establish the prior-

calculation-and-design element of aggravated murder, a court must consider

whether the evidence, when viewed in the light most favorable to the prosecution,

supports a finding that [the] defendant acted with advance reasoning and purpose

to kill.” State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d 1161, ¶ 2

(lead opinion), citing State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82

N.E.3d 1124, ¶ 18. “Evidence of an act committed on the spur of the moment or

after momentary consideration is not evidence of a premeditated decision or a

studied consideration of the method and the means to cause a death.” Walker at

¶ 18.

{¶ 52} “There is no bright-line test for determining whether a defendant’s

actions show a premeditated decision or studied consideration to kill—each case

turns on its own facts.” Jones at ¶ 17. We have identified three factors that,

although “not dispositive,” are “pertinent considerations” for determining whether

there was sufficient evidence of prior calculation and design. Id. These factors are:

“(1) Did the accused and victim know each other, and if so, was that relationship

strained? (2) Did the accused give thought or preparation to choosing the murder

weapon or murder site? (3) Was the act drawn out or ‘an almost instantaneous

eruption of events?’ ” State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997),

quoting State v. Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976).

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a. Evidence of strain between Nicholson and the victims

{¶ 53} The evidence demonstrated that Nicholson had strained relationships

with Polanco, M.L., and Giselle. Nicholson believed that his relationship with M.L.

and Giselle became strained around the time he moved into their house. He testified

that Polanco had asked him to keep his age secret from her children and that he

took pains to keep his personal identification hidden from them. He testified that

after M.L. and Giselle found out how old he was, “their respect level for [him]

changed.” This strain and tension persisted until the murders.

{¶ 54} Polanco’s oldest son, Roberto, testified that when he visited his

mother’s home in June 2017 and in 2018, the situation in the house felt “uneasy.”

According to Roberto, his siblings and Nicholson did not get along with each other.

M.L. and Giselle would get upset because Nicholson would “leave the laundry in

the basement around, * * * play music loud, and he would also just be kind of

disrespectful.” But Roberto never witnessed any physical altercations or arguments

between Nicholson and Polanco or M.L.

{¶ 55} Nevertheless, the evidence showed that Nicholson threatened

Polanco, M.L., and Giselle multiple times during their relationship. Polanco

testified that she had tried to talk to Nicholson about moving out but that he “got

really angry” and told her that if she and the children ever left or if he left the house,

they would “regret it.” According to Polanco, it seemed that Nicholson was jealous

of her children’s relationship with her and that he was trying to drive a wedge

between her and them. At one point, Nicholson had told Polanco that he “hate[d]

[her] kids.”

{¶ 56} Polanco’s friends and neighbors were aware that Nicholson had

threatened Polanco and her children multiple times. Constance Allshouse, a

neighbor, testified that Polanco spoke to her about Nicholson’s behavior multiple

times a week and that she had advised Polanco to contact the police. Allshouse

also told Polanco that if her children ever felt unsafe, they could come over to

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Allshouse’s house. Shondell Smith, Polanco’s coworker, testified that Polanco had

confided in him that she was afraid that Nicholson was tracking her car’s

movements. Smith believed that Polanco’s relationship with Nicholson was

“toxic,” so he offered Polanco refuge at his home if she ever needed it.

{¶ 57} Polanco testified that she had been afraid that if she called the police

about Nicholson’s outbursts, he would make good on his threats. According to

Polanco, Nicholson had told her that he was “prepared for anybody” if she ever

contacted the police about him. Regarding Nicholson’s words “prepared for

anybody,” Polanco believed that Nicholson had meant that he was prepared “[w]ith

guns.”

{¶ 58} Polanco testified that during one argument with Nicholson, he was

yelling at and grabbing her when Giselle came to the door and asked her whether

she was “okay.” She testified that when Nicholson heard Giselle, he “got really

angry,” grabbed his gun, and said, “ ‘Tell your daughter to shut up, to go in her

room, or I [am] going to kill her.’ And he point[ed] to the wall, through [to] her

bedroom.” The evidence of Nicholson’s multiple threats of gun violence showed

that a strained relationship existed between Nicholson and M.L. and Giselle before

the murders.

b. Nicholson gave thought to his choice of weapon and the location of the

murders

{¶ 59} Second, the evidence shows that Nicholson gave thought to the

details of the murders. See Taylor, 78 Ohio St.3d at 19, 676 N.E.2d 82. When M.L.

called 9-1-1, Nicholson returned to his bedroom, where he kept his personal gun.

He chose to take that gun, loaded, back to the kitchen and pursue M.L. and Giselle

(the latter of whom he had not interacted with that night) as they ran from the house.

He then pulled the trigger 13 times. This evidence, when viewed in the light most

favorable to the state, supports the conclusion that Nicholson’s decision to shoot

M.L. and Giselle was not made after mere “momentary consideration,” Walker, 150

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Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 18. Despite Nicholson’s

assertions, “sufficient time, reflection, and activity were involved to satisfy the

elements of proof that the shootings were done with prior calculation and design,”

State v. Jackson, 92 Ohio St.3d 436, 441, 751 N.E.2d 946 (2001).

c. The murders were not an instantaneous eruption of events

{¶ 60} Nicholson emphasizes that in his estimation, less than 40 seconds

elapsed between when he left the kitchen to retrieve his gun and the moment he

shot M.L. and Giselle. Although Nicholson acknowledges that there is no specific

amount of time that must pass before a defendant may be properly found to have

engaged in prior calculation and design, he urges this court to find that less than 40

seconds of planning is categorically insufficient to make that finding.

{¶ 61} We reject this claim. Nicholson’s decision to leave the kitchen to go

to his bedroom to retrieve a loaded gun and then fire 13 shots at the victims’ backs

shows more than a “momentary impulse,” State v. Conway, 108 Ohio St.3d 214,

2006-Ohio-791, 842 N.E.2d 996, ¶ 46. Even if Nicholson’s actions took less than

a minute, they evinced his “determin[ation] to complete a specific course of action”

and allowed the jury to infer “that he had adopted a plan to kill,” id.

d. Nicholson’s other arguments

{¶ 62} Nicholson contends that the evidence of his prior threats does not

support a finding of prior calculation and design but instead establishes, at most, a

“planned contingency to kill.” He cites two cases in support of this argument: State

v. Reed, 65 Ohio St.2d 117, 418 N.E.2d 1359 (1981), and State v. Noggle, 140 Ohio

App.3d 733, 749 N.E.2d 309 (3d Dist.2000). Those cases, however, are factually

distinguishable.

{¶ 63} In Reed, we reversed an aggravated-murder conviction for the killing

of a police officer, because there was insufficient evidence of prior calculation and

design. Reed at 117, 124. Our holding in Reed hinged on the fact that Reed’s

single, month-old threat to kill “any police officer who got in the way of a crime he

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might commit” was, without more, insufficient to “show that [Reed] designed a

scheme in order to implement a calculated decision to kill.” Id. at 121.

{¶ 64} Similarly, in Noggle, the state had presented no evidence of prior

threats from Noggle to the victim. During deliberations, the jury asked the trial

court whether “prior calculation and design” meant that Noggle and his codefendant

had “ ‘one hundred percent plann[ed]’ ” to shoot the victim or whether it could

mean “ ‘that they were prepared to kill him if the situation called for it?’ ” Noggle

at 748. The trial court responded that “either/or would be sufficient to satisfy the

mens rea element of proof that the murder was committed with prior calculation

and design.” Id. The Third District Court of Appeals reversed, agreeing with

Noggle that “merely being prepared to kill if the situation calls for it does not

amount to prior calculation and design that is necessary to sustain a conviction

pursuant to R.C. 2929.04(A)(7).” Id.

{¶ 65} Here, the evidence shows that Nicholson threatened to kill M.L. and

Giselle immediately before the shooting. Nicholson had an opportunity to abandon

his professed plan to kill them if they called the police, yet he took deliberate steps

to shoot the two unarmed teenagers in their backs. Thus, the jury’s finding that

Nicholson acted with prior calculation and design was supported by sufficient

evidence.

2. Sufficiency and self-defense

{¶ 66} Nicholson argues that the state failed to prove, beyond a reasonable

doubt, that he did not act in self-defense.

{¶ 67} On March 28, 2019, 2018 Am.Sub.H.B. No. 228 (“H.B. 228”) took

effect, amending Ohio’s self-defense statute. The amendments took effect after the

offenses in this case occurred but about six months before Nicholson’s trial began.

See State v. Brooks, 170 Ohio St.3d 1, 2022-Ohio-2478, 208 N.E.3d 751, ¶ 13. The

self-defense statute, R.C. 2901.05, as amended, applied to Nicholson’s trial. See

Brooks at ¶ 21, 23. Before the amendments, a defendant claiming self-defense had

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the burden of proving the elements of self-defense by a preponderance of the

evidence. State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d

653, ¶ 15, citing former R.C. 2901.05(A), 2008 Sub.S.B. No. 184. Following the

enactment of H.B. 228, a defendant claiming self-defense no longer has the burden

of proving its elements by a preponderance of the evidence; under H.B. 228, the

burden of proof is allocated as follows:

If, at the trial of a person who is accused of an offense that involved

the person’s use of force against another, there is evidence presented

that tends to support that the accused person used the force in self-

defense, * * * the prosecution must prove beyond a reasonable

doubt that the accused person did not use the force in self-defense

* * *.

R.C. 2901.05(B)(1). Thus, under the applicable version of the statute, the state’s

burden to prove that Nicholson did not act in self-defense was triggered when he

produced legally sufficient evidence of self-defense. See Messenger at ¶ 19.

{¶ 68} The trial court instructed the jury on self-defense, so it had

necessarily concluded that Nicholson met his burden of production and triggered

the state’s duty to overcome that evidence beyond a reasonable doubt. See id. In

support of his argument, Nicholson contends that the evidence demonstrated that

M.L. “was at fault in creating the situation giving rise to the affray.” However, the

evidence must be viewed in the light most favorable to the state. See Walker, 150

Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 12. Applying this standard,

the evidence showed that Nicholson created the situation giving rise to the affray

by attacking Polanco and M.L. before Nicholson got his gun and used it to murder

M.L. and Giselle. We hold that the state satisfied its burden of proving that

Nicholson was not acting in self-defense when he killed M.L. and Giselle.

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3. Nicholson’s convictions are not against the manifest weight of the evidence

{¶ 69} Nicholson argues that his aggravated-murder convictions are against

the manifest weight of the evidence. His challenge to the jury’s verdicts is based

primarily on his view that Polanco’s testimony was not credible.

a. Standard of review

{¶ 70} This court has “carefully distinguished the terms ‘sufficiency’ and

‘weight’ in criminal cases, declaring that ‘manifest weight’ and ‘legal sufficiency’

are ‘both quantitatively and qualitatively different.’ ” Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 10, quoting State v. Thompkins, 78

Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. A verdict

can be against the manifest weight of the evidence even though legally sufficient

evidence supports it. State v. Robinson, 162 Ohio St. 486, 487, 124 N.E.2d 148

(1955), superseded by constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997).

{¶ 71} For a manifest-weight challenge, “ ‘[t]he court, reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury

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, 485 N.E.2d 717 (1st Dist.1983). The

central question 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 sic.) State v. Getsy, 84 Ohio St.3d 180, 193-194, 702 N.E.2d

866 (1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132

(1978), syllabus, superseded by constitutional amendment on other grounds as

stated in Smith, 80 Ohio St.3d 89, 684 N.E.2d 668. A manifest-weight challenge

should be sustained “ ‘only in the exceptional case in which the evidence weighs

heavily against the conviction.’ ” Thompkins at 387, quoting Martin at 175.

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b. Manifest weight and self-defense

{¶ 72} “The state’s new burden of disproving the defendant’s self-defense

claim beyond a reasonable doubt is subject to a manifest-weight review on appeal.”

Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653, at ¶ 27.

{¶ 73} Nicholson testified that he retrieved his personal gun only after he

saw M.L. and Giselle remove his service gun from the trunk of his car. He said that

he began firing his personal gun when Giselle “got the [other] gun out of the holster

* * * [and] it looked like she had turned toward [him].”

{¶ 74} The jury did not clearly lose its way in disbelieving Nicholson’s

testimony, given that the physical evidence showed that M.L. and Giselle were each

shot multiple times in their backs when they were about four feet from the side door

and that M.L. died immediately and Giselle died soon thereafter. And M.L. fell on

top of Giselle, pinning her body beneath his.

{¶ 75} The evidence described above collectively represents substantial

evidence on which the jury could properly conclude beyond a reasonable doubt that

Nicholson purposely and with prior calculation and design caused the deaths of

M.L. and Giselle and did not act in self-defense. We reject Nicholson’s argument

that the jury’s rejection of his self-defense claim was against the manifest weight

of the evidence.

c. Manifest weight and prior calculation and design

{¶ 76} Nicholson argues that his case is in “stark contrast” to other cases in

which this court has affirmed aggravated-murder convictions premised on prior

calculation and design even when the defendant “quickly conceived,” State v.

Coley, 93 Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001), of his plan to kill.

Nicholson contends that he formed his intent to kill less than 40 seconds before the

shootings, that 40 seconds is materially distinguishable from “a few minutes,” and

that the jury thus lost its way when it found him guilty of aggravated murder. We

disagree.

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{¶ 77} The jury did not lose its way in disbelieving Nicholson’s self-serving

evidence that he formed his intent to kill less than 40 seconds before he shot M.L.

and Giselle. Substantial evidence showed that Nicholson threatened to harm them

multiple times before the murders. And after assaulting Polanco and M.L.,

Nicholson left the kitchen for a single purpose—to obtain a firearm to escalate the

situation. See State v. Ivery, 9th Dist. Summit No. 28551, 2020-Ohio-3349, ¶ 11

(defendant’s conduct in arming himself with a weapon following a confrontation

and then using the weapon in a later confrontation escalated by the defendant

constituted prior calculation and design); State v. Smith, 1st Dist. Hamilton No. C-

190507, 2020-Ohio-4976, ¶ 53-55 (although evidence showed that the victim

arguably attacked the defendant following a brief pause in an altercation between

them, the defendant escalated the situation by drawing a firearm).

{¶ 78} We have “consistently held that a defendant can conceive and

execute a plan to kill, even if formulated within a few minutes, when there is

evidence that the defendant’s actions ‘went beyond a momentary impulse and show

that he was determined to complete a course of action.’ ” Jones, 166 Ohio St.3d

85, 2021-Ohio-3311, 182 N.E.3d 1161, at ¶ 26, quoting Conway, 108 Ohio St.3d

214, 2006-Ohio-791, 842 N.E.2d 996, at ¶ 46.

{¶ 79} Nicholson has failed to demonstrate that the jury lost its way by

finding that he acted with prior calculation and design.

{¶ 80} We reject Nicholson’s first proposition of law.

B. Other crimes, wrongs, or acts

{¶ 81} In his second proposition of law, Nicholson asserts that the trial court

erroneously allowed testimony and other evidence pertaining to his character and

“prior bad acts.” Principally, he claims that the state impermissibly elicited

testimony and other evidence about his threats and violence against Polanco, M.L.,

or Giselle. The state counters that the evidence was admissible to establish

Nicholson’s motive, intent, and lack of mistake.

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1. Applicable legal standards

{¶ 82} Evid.R. 404(A) generally prohibits using evidence of a person’s

character to prove that the person “act[ed] in conformity therewith on a particular

occasion.” But Evid.R. 404(B) allows the admission of evidence of a defendant’s

other crimes, wrongs, or acts when “(1) there is substantial proof that the alleged

other acts were committed by the defendant, and (2) the evidence tends to prove

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Waldron v. Voorhies, 626 F.Supp.2d 739, 751 (N.D.Ohio

2009), citing State v. Broom, 40 Ohio St.3d 277, 282, 533 N.E.2d 682 (1988).

{¶ 83} We have explained that courts should engage in a three-step analysis

when determining whether “other acts” evidence is admissible and consider:

(1) whether the other-acts evidence is relevant under Evid.R. 401, i.e., whether it

tends to make the existence of any fact of consequence to the determination of the

action more or less probable than it would be without the evidence; (2) whether the

evidence is presented to prove a person’s character in order to show that his conduct

was in conformity therewith or whether it is presented for a legitimate other

purpose, such as those stated in Evid.R. 404(B); and (3) whether the probative value

of the evidence is substantially outweighed by the danger of unfair prejudice under

Evid.R. 403. See State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983

N.E.2d 1278, ¶ 19-20.

2. Relevant facts

{¶ 84} Nicholson argues that multiple witnesses provided improper other-

acts testimony against him, including: (1) Polanco, who testified that he threatened

and perpetrated violence against her and M.L. and Giselle, (2) Smith, Polanco’s

coworker, in whom Polanco had confided information about her relationship with

Nicholson, and (3) Allshouse, Polanco’s neighbor and friend, who Polanco sought

out soon after Nicholson shot M.L. and Giselle.

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{¶ 85} Before trial, Nicholson filed a general motion to exclude other-acts

evidence. The state opposed the motion, arguing that the evidence of Nicholson’s

prior bad acts was admissible to prove his motive, intent, and absence of mistake.

After a hearing, the trial court denied Nicholson’s motion.

a. Polanco’s testimony

{¶ 86} Polanco testified about several threats Nicholson made against M.L.,

Giselle, and herself before the incident. She detailed Nicholson’s physical abuse

and identified photographs of injuries she claimed Nicholson had caused. The trial

court overruled Nicholson’s relevancy and Evid.R. 404(B) objections to the

photographs. However, the trial court ordered the state to remove labels from the

photographs indicating the dates the photographs were taken.

{¶ 87} Polanco testified that in February 2015, Nicholson “started getting

aggressive.” She testified that Nicholson had verbally abused her by calling her

names such as “bitch” and that he had aggressively grabbed her and thrown her

onto the bed. She told the jury that he had threatened to kill her and her children

and any “neighbors and any police” who came to the house. Polanco testified that,

generally, Nicholson was “prepared for anybody.”

{¶ 88} During Polanco’s testimony, the trial court provided the following

limiting instruction to the jury regarding other-acts evidence:

Commission of crimes other than the offenses with which

the defendant is charged in this trial is received only for a limited

purpose. It is not received and may not be considered to prove the

character of the defendant in order to show that he acted in

conformity or in accordance with that character.

If you find that the evidence of other incidents is true and

that the defendant committed them, you may consider that evidence

only for the purpose of deciding whether it proves the defendant’s

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motive, opportunity, intent, or purpose, preparation, or plan to

commit the offense charged in this trial.

That evidence cannot be considered for any other purpose.

{¶ 89} We note that the trial in this case took place prior to this court’s

decision in State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d

651. In Hartman, we cautioned against using this type of “boilerplate” limiting

instruction, which simply lists the permissible uses of other-acts evidence under

Evid.R. 404(B). Hartman at ¶ 68-70. We explained that “[g]oing forward, courts

should explain, in plain language, the purposes for which the other acts may and

may not be considered” and not simply list the uses of such evidence that are

permitted under the rule. Id. at ¶ 70.

{¶ 90} Polanco testified about photographs she had taken of a large bruise

on her leg, which she said Nicholson caused by squeezing her leg with his hands.

She did not recall when she had taken the photographs, but metadata from

Polanco’s cellphone revealed that the photographs were taken in April 2015.

{¶ 91} Polanco testified about another incident when Nicholson became

irate when he could not use the washing machine because Giselle had left her damp

clothes in it. According to Polanco, Nicholson confronted Giselle that evening

about the laundry and called Giselle a “little whore” and a “[b]itch.” Then he

“grabbed [Giselle’s] laptop and threw it and threw [a] table against her, which hurt

[Giselle’s] feet,” and he then threw something at the living-room wall and punched

a wall. Polanco testified that Nicholson “grabbed [her], because [she defied] him,

[saying] please don’t touch the kids.” According to Polanco, after this incident, she

“told [her] kids, “ ‘[We] have to leave, we have to do it in the right way,’ ” because

she did not want Nicholson to hurt them.

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b. Smith’s testimony

{¶ 92} Immediately before Smith testified, defense counsel objected to his

testimony on Evid.R. 404(B) grounds. The trial court overruled the objection.

{¶ 93} Smith testified that he became friends with Polanco at work and that

he also knew Marshall and Nicholson through work. Smith testified that Polanco

had often confided in him about her relationship with Nicholson, which Smith

viewed as “kind of toxic.” Smith testified that he had offered to help Polanco move

on from her bad relationship with Nicholson and to help her obtain and learn to use

a gun.

{¶ 94} According to Smith, Polanco had believed that Nicholson had

installed a tracking device on her car. Smith told Polanco how to look for a tracking

device and offered her refuge at his home. According to Smith, Polanco refused

his offers because she did not want to bring any of her problems to his home. Over

a defense objection, Smith testified that he had advised Polanco to secretly record

her conversations with Nicholson and that he was aware “that some of the

equipment that she used to record the conversations [was] destroyed.”

{¶ 95} Smith told the jury that he had advised Polanco to have her children

sleep at someone else’s house. He felt that Nicholson had “some type of jealousy”

toward Polanco’s children, and he knew that Nicholson was unhappy with

Polanco’s buying M.L. and Giselle cars at their young ages. Smith testified that he

was watching the news in the early morning following the murders and saw

“breaking news” about a shooting on East 86th Street. He testified that he “instantly

* * * knew it was [Polanco’s] home” and that he immediately woke up his wife and

told her, “It happened * * * he shot her children.”

c. Allshouse’s testimony

{¶ 96} Allshouse testified that she met Nicholson six to eight months after

he moved in with Polanco. Allshouse never saw Nicholson interact with Polanco’s

children. However, she testified that Polanco eventually confided in her regarding

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the troubles with Nicholson. Allshouse told the jury that she had advised Polanco

to alienate Nicholson so that he would move out. Allshouse also testified that she

had offered her home as a safe haven to Polanco if she ever felt unsafe at home with

Nicholson.

3. Analysis

a. State’s justifications for the other-acts evidence

{¶ 97} The state argued at trial and now argues on appeal that the evidence

about Nicholson’s threats and violent behavior toward Polanco and M.L. and

Giselle was probative of his motive, intent, and absence of mistake. We conclude

that the evidence was properly admitted to show Nicholson’s motive and intent.

{¶ 98} At trial, the state argued that the prior threats and violence proved

that this case was “primarily about domestic violence. It’s a culmination of years

of abuse and psychological torture that the Defendant inflicted upon [Polanco] and

her children.” The state further argued, “This case cannot be tried in a vacuum. It

would not be fair, it would not be accurate for us to stand up in closing arguments

and say that, one day, for absolutely no reason that anyone can discern, Matthew

Nicholson picked up a gun and killed [M.L.] and Giselle.” The state also asserts

that the evidence tended to prove that Nicholson had created the “strained

relationships at the heart of the murders” and “demonstrated that the issues in

Polanco’s household between herself, Nicholson, and her children caused so much

concern that multiple people offered them safe places to stay if needed.”

b. Motive

{¶ 99} We recently clarified that “[i]n the Evid.R. 404(B) context, the

relevance examination asks whether the proffered evidence is relevant to the

particular purpose for which it is offered, as well as whether it is relevant to an issue

that is actually in dispute.” (Emphasis added.) State v. Smith, 162 Ohio St.3d 353,

2020-Ohio-4441, 165 N.E.3d 1123, ¶ 37. Nicholson’s motive for killing M.L. and

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Giselle was, in fact, “actually in dispute,” because he testified that he shot them in

self-defense.

{¶ 100} The challenged other-acts evidence tended to show that Nicholson

viewed M.L. and Giselle as competitors for Polanco’s attention. Nicholson’s

threats to kill M.L. and Giselle, coupled with the instances of physical abuse against

Polanco and her children, demonstrate that he was emotionally consumed by

jealousy and contempt for them. Though some of the incidents of threats and

violence were more recent than others, the relative recency of the incidents affects

the persuasiveness of the evidence, not its admissibility. See State v. White, 2015-

Ohio-3512, 37 N.E.3d 1271, ¶ 35-38 (2d Dist.).

{¶ 101} Smith’s and Allshouse’s testimonies corroborated Polanco’s

testimony about Nicholson’s specific threats to kill her and M.L. and Giselle if they

ever called the police. This testimony was probative of Nicholson’s motive to kill.

See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 64.

The evidence of prior threats and violence tended to show that Nicholson’s hostility

toward M.L. and Giselle was deep, long-standing, and sufficient to drive him to

kill. Indeed, in his reply brief, Nicholson “concedes that the other acts evidence

related to [his] prior alleged contingent death threats to kill the Polanco family may

have probative value as to motive.” We hold that the trial court did not abuse its

discretion when it admitted the other-acts evidence.

c. Intent

{¶ 102} The challenged evidence’s relevance to the state’s burden to prove

Nicholson’s intent cannot be overstated. And because Nicholson claimed he shot

M.L. and Giselle in self-defense, the testimonies of Polanco, Smith, and Allshouse

were directly relevant to rebut that claim. Moreover, on direct examination,

Nicholson stated, “I never wanted to shoot any fucking body,” which placed

Nicholson’s intent into dispute and permitted the introduction of the other-acts

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evidence for nonpropensity purposes. The probative value of this evidence was

strong, and the trial court acted well within its discretion in admitting the evidence.

{¶ 103} In sum, the evidence of Nicholson’s prior threats and physical

violence, including the testimonies of Smith and Allshouse, was properly admitted

at trial. For these reasons, we reject Nicholson’s second proposition of law.

C. Loss or destruction of material evidence

{¶ 104} In his third proposition of law, Nicholson contends that the state

denied him due process by losing photographs taken of the September 13 search of

his car. Had the photographs been properly preserved, Nicholson argues, he would

have been able to prove that he shot M.L. and Giselle in self-defense. The state

counters that Nicholson’s claim fails because he cannot show that the photographs

were materially exculpatory.

{¶ 105} Nicholson also maintains that his counsel were ineffective for not

requesting that the trial court exclude all the evidence and testimony regarding the

search of his vehicle and the recovery of his service gun or that the court “dismiss

all counts related to [his] self-defense claim.”

1. Relevant facts

{¶ 106} On September 6, 2018, the day after the murders, Garfield Heights

Police Officers Robert Pitts and David Simia searched the vehicles in the driveway

of Polanco’s house, including Nicholson’s car. The officers testified that at the

time of that search, the trunk of Nicholson’s car contained nothing of evidentiary

value.

{¶ 107} On cross-examination, Officer Pitts testified that “[w]ithin the last

month or two,” “[t]he prosecutors” told him that they “needed a little bit more

information as to specifically what [he] did [on the night of the shooting], rather

than the report that [he] wrote.” Pitts wrote a second report, dated August 13, 2019,

in which he failed to mention that the vehicles were searched twice in September

2018—on September 6 and September 13. At trial, Officer Pitts opined that the

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omission of the vehicle searches from his two reports—which were written almost

a year apart—was due to a “lapse in judgment at the end of a long day.”

{¶ 108} Also, between September 11 and 13, 2018, Paragon Systems

contacted the Garfield Heights Police Department in an effort to locate Nicholson’s

service gun. Detective Stroe testified that he had spoken to Polanco about the gun

and that she told him that Nicholson’s belongings, including his service gun, were

moved to Nicholson’s car after Giselle’s and M.L.’s funerals. Polanco testified at

trial that Nicholson had usually kept his service gun in the bedroom closet. But no

gun was recovered from the master-bedroom closet on September 6, when

Polanco’s house was first searched.

{¶ 109} Roberto testified that he, Polanco, Nieves, and Santos went to

Polanco’s house on September 13, 2018, the day police conducted the second

search of Nicholson’s vehicle. He testified that he had wanted to “get [Nicholson’s

belongings] out of the house, for [his] mom to feel more comfortable.” When

removing Nicholson’s belongings from the house, Roberto found a holstered gun

in the closet in Polanco’s bedroom, which he took to Nicholson’s car and “ just

threw * * * in the trunk.”

{¶ 110} Lieutenant Petrick testified that when he searched Nicholson’s car

on September 13, he saw that it was filled with Nicholson’s property, including

model cars, muscle-powder containers, gun belts, jackets, and bags of clothing.

Lieutenant Petrick initially stated at trial that he could not recall whether he had

found a handgun in Nicholson’s car, but after looking at a photograph of a Glock

semiautomatic handgun (state’s exhibit No. 295), he remembered that he had found

the gun in the trunk.

{¶ 111} Lieutenant Petrick photographed the second vehicle search on

September 13, but many of the photographs were subsequently overwritten. On

cross-examination, Lieutenant Petrick admitted that his name is not on the log of

persons who were at the crime scene on September 5, but he could not explain the

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omission. On redirect examination, Lieutenant Petrick reiterated that although

police did not recover any photographs taken of the gun during the search of the

trunk of Nicholson’s car on September 13, he had seen a gun in the trunk that day.

{¶ 112} Law enforcement did not learn that the photographs had been lost

until about three weeks before the jury heard evidence at trial.

2. Standard of review

{¶ 113} “The Due Process Clause of the Fourteenth Amendment to the

United States Constitution protects a criminal defendant from being convicted

when the state either fails to preserve materially exculpatory evidence or destroys,

in bad faith, potentially useful evidence.” State v. McClain, 2016-Ohio-838, 60

N.E.3d 783, ¶ 21 (2d Dist.). Evidence is constitutionally material when it

“possesses ‘an exculpatory value that was apparent before the evidence was

destroyed, and [is] of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.’ ” (Brackets added in

Powell.) State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865,

¶ 74, quoting California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81

L.Ed.2d 413 (1984). Under Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct.

333, 102 L.Ed. 281 (1988), in order to obtain relief for the destruction of potentially

useful evidence, the defendant must show “bad faith on the part of the police * * *

[in] fail[ing] to preserve” the evidence. The term “bad faith” “ ‘ “imports a

dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty

through some ulterior motive or ill will partaking of nature of fraud. It also

embraces actual intent to mislead or deceive another.” ’ ” Powell at ¶ 81, quoting

Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983),

quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962),

paragraph two of the syllabus, overruled on other grounds by Zoppo v. Homestead

Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994).

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{¶ 114} Because Nicholson did not object, move to dismiss the indictment,

or request a mistrial based on the loss of the photographs, he has forfeited all but

plain-error review of the issue. To prevail under the plain-error standard, a

defendant must show that an error occurred, that it was obvious, and that it affected

his substantial rights. Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759

N.E.2d 1240 (2002) (an error affects substantial rights only when it affects the

outcome of the trial). “Notice of plain error under Crim.R. 52(B) is to be taken

with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus.

3. The lost photographs were not materially exculpatory

{¶ 115} Nicholson bears the burden of proving that the overwritten

photographs “(1) possess[ed] ‘an exculpatory value that was apparent before [they

were] destroyed’ and (2) [were] ‘of such a nature that [he] would be unable to

obtain comparable evidence by other reasonably available means,’ ” McClain at

¶ 21, quoting Trombetta at 489. As to the first query, Nicholson contends that “the

[s]tate has not established that the exculpatory nature of the photographs was

unknown at the time these photographs were forever lost because it did not establish

when these photographs were permanently gone.” (Boldface and emphasis sic.)

But the state is not required to make that showing; the burden of proof falls squarely

on Nicholson. See McClain at ¶ 23.

{¶ 116} Moreover, Nicholson has not adequately explained why it would

matter if the photographs proved that his service gun was found in his car on

September 13, because that fact is not in dispute. Any photographs taken during

the September 13 search would not support Nicholson’s claim that his service gun

was in the trunk of his car on September 5, when the shootings occurred. And even

if Nicholson’s service gun was in his car on September 5, the jury could still have

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reasonably rejected his claim of self-defense, given that he shot each unarmed

victim in the back multiple times.

4. No evidence of bad faith

{¶ 117} “Unless a defendant can show that the state acted in bad faith, the

state’s failure to preserve potentially useful evidence does not violate a defendant’s

due process rights.” State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878

N.E.2d 1, syllabus, following Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d

281.

{¶ 118} Nicholson argues that the Garfield Heights Police Department’s

“cavalier attitude” toward evidence in this case equates to bad faith, especially

considering that the record contains an order for the state to properly preserve and

catalog all physical evidence. As evidence of the officers’ bad faith, he points to

the following: (1) Lieutenant Vargo’s incomplete body-camera footage,

(2) omissions in police reports of the events of September 5 and 6, 2018, and (3) the

officers’ failure to retain Nicholson’s service gun as evidence “even after finding

[it] in the trunk of the vehicle that was parked merely a few feet from where [M.L.

and Giselle] fell.” But “ ‘[t]he term “bad faith” generally implies something more

than bad judgment or negligence.’ ” Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,

971 N.E.2d 865, at ¶ 81, quoting State v. Tate, 5th Dist. Fairfield No. 07 CA 55,

2008-Ohio-3759, ¶ 13.

{¶ 119} Nicholson argues that this court must necessarily infer bad faith

because the missing evidence was related “specifically—and only—to [his] service

weapon and the trunk of [his] vehicle” and was “potentially useful” to his self-

defense claim. But we have never held that bad faith can be inferred based simply

on the state’s failure to preserve potentially useful evidence. Nicholson has not

presented any evidence of police conduct amounting to bad faith.

{¶ 120} Further, Nicholson did not move to suppress any evidence or to

dismiss the case based on the missing photographs; therefore, he has forfeited all

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but plain error. Here, the overwritten photographs had no inherent evidentiary

value. The photographs were taken more than a week after the murders occurred

and could not have shed any light on the question whether Nicholson’s service gun

was in the trunk of his car at the time of the murders.

{¶ 121} Moreover, testimony, crime-scene photographs, and body-camera

footage all showed that M.L. and Giselle were shot and killed when they were

trying to escape. Based on the location of their bodies when police officers first

arrived on the scene, the jury could have reasonably inferred that M.L. and Giselle

were shot before they reached Nicholson’s car. If so, the jury would have rejected

Nicholson’s self-defense claim even if he had presented the missing photographs.

Accordingly, Nicholson cannot show that the state’s destruction of the photographs

affected his substantial rights.

5. Ineffective assistance of counsel

{¶ 122} Defense counsel were not ineffective for failing to file a motion to

suppress the fruits of the second search of Nicholson’s vehicle or failing to move

for dismissal of the counts related to his self-defense claim. The state’s evidence

established that Nicholson fought with Polanco and M.L. and then shot M.L. and

Giselle in their backs as they fled their home. The presentation of additional

photographs of the second search of Nicholson’s vehicle would not undermine

these facts or support Nicholson’s self-defense claim.

{¶ 123} We therefore reject Nicholson’s third proposition of law.

D. Gruesome body-camera videos and photographs

{¶ 124} In his fourth proposition of law, Nicholson argues that the trial

court erred in admitting gruesome autopsy photographs of M.L. and Giselle,

portions of the crime-scene body-camera footage of Garfield Heights Police

Officers Cramer, Jarzembak, and Spencer Sabelli, and photographs depicting blood

spatter, pools of blood, spent shell casings, and M.L.’s and Giselle’s personal

belongings. Defense counsel failed to object to this evidence during trial, with the

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exception of state’s exhibit No. 323A, which was footage from Officer Sabelli’s

body camera. Therefore, Nicholson has forfeited all but plain error regarding most

of his gruesome-evidence claims. See State v. Trimble, 122 Ohio St.3d 297, 2009-

Ohio-2961, 911 N.E.2d 242, ¶ 132; State v. Mammone, 139 Ohio St.3d 467, 2014-

Ohio-1942, 13 N.E.3d 1051, ¶ 69.

{¶ 125} The admissibility of crime-scene photographs and video recordings

is generally governed by Evid.R. 401 (defining “relevant evidence”), Evid.R. 402

(relevant evidence is generally admissible), and Evid.R. 403 (relevant evidence

must be excluded “if its probative value is substantially outweighed by the danger

of unfair prejudice, of confusion of the issues, or of misleading the jury”). The

admission of gruesome photographs is left to the trial court’s sound discretion.

State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 69. To be

admissible, “the probative value of each photograph must outweigh the danger of

prejudice to the defendant and, additionally, not be repetitive or cumulative in

nature.” State v. Morales, 32 Ohio St.3d 252, 258, 513 N.E.2d 267 (1987); see also

State v. Thompson, 33 Ohio St.3d 1, 9, 514 N.E.2d 407 (1987). We have “strongly

caution[ed] judicious use” of gruesome photographs in capital cases. Morales at

259.

1. Body-camera recordings

a. State’s exhibit No. 323A: Officer Sabelli’s body-camera footage

{¶ 126} Defense counsel argued at trial that the video recording from

Officer Sabelli’s body camera was not probative of the elements of the charged

offenses and was “unfairly prejudicial.” The trial court overruled that objection,

and the video was played in open court. Nicholson now argues that the trial court

abused its discretion by admitting the recording. See State v. Franklin, 62 Ohio

St.3d 118, 126, 580 N.E.2d 1 (1991).

{¶ 127} Officer Sabelli’s body-camera footage shows his arrival at the

scene, approach to Polanco’s house, confirmation of Nicholson’s location, initial

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communication with Polanco, safety check of the backyard, and participation in

moving M.L.’s and Giselle’s bodies to the front yard.

{¶ 128} The footage also shows Officer Sabelli trying to speak to M.L. and

performing cardiopulmonary resuscitation (“CPR”) on him for about five minutes.

At one point, the video shows Giselle twisting and moaning in pain. Jurors could

also hear an officer in the background stating that Nicholson “was beating

[Polanco] up and her kids came home,” that “he opened fire on them,” and that

Polanco had “marks all over her.” Later, the officer is heard stating that Nicholson

had said that he would shoot any officers who responded to the scene.

{¶ 129} The video is mostly black-and-white, but portions are in color.

Most of the video is uneventful. The portion depicting Officer Sabelli

administering CPR on M.L. is the most dramatic and lasts about five minutes—the

longest of the portions of the video specifically challenged by Nicholson. The

video shows part of M.L.’s torso up close, including the exit wounds in his chest.

Combined with the audio, the footage of the CPR efforts is emotionally taxing to

watch because Polanco is audibly distraught in the background.

{¶ 130} To be admissible, body-camera footage must be relevant and have

“probative value in assisting the trier of fact to determine the issues or [be]

illustrative of testimony and other evidence, as long as the danger of material

prejudice * * * is outweighed by [the] probative value [of the evidence] and the

[evidence is] not repetitive or cumulative in number,” State v. Maurer, 15 Ohio

St.3d 239, 473 N.E.2d 768 (1984), paragraph seven of the syllabus. The state is

entitled to offer evidence showing the cause of death, even if the cause of death is

uncontested, to give the jury an “appreciation of the nature and circumstances of

the crimes.” State v. Evans, 63 Ohio St.3d 231, 251, 586 N.E.2d 1042 (1992).

{¶ 131} On balance, Officer Sabelli’s body-camera footage was relevant

and highly probative of the nature and circumstances of the murders. The footage

depicted the scene as it was found by the earliest responding officers, including the

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vital statuses and location of the murder victims. We have previously held that

“[t]he number of shots fired, the places where the bullets entered the body, and the

resulting wounds are all probative evidence of a purpose to cause death.” Maurer

at 265. Although the most emotionally taxing portion of the video lasts about five

minutes, it is neither gruesome nor repetitive. Accordingly, the probative value of

the footage substantially outweighs any unfairly prejudicial effect. Thus, we affirm

the trial court’s decision to admit Officer Sabelli’s body-camera video footage.

b. Admission of two additional body-camera videos was not plain error

{¶ 132} Officers Jarzembak’s and Cramer’s body-camera videos were

probative evidence of where M.L. and Giselle fell after they were shot in relation

to the side door of the house where Nicholson stood when he fired the shots.

Because Nicholson claimed that he had acted in self-defense, it was necessary for

the state to prove where M.L. and Giselle were when Nicholson shot them. These

body-camera videos are evidence that the bullets entered M.L.’s and Giselle’s backs

and show that M.L. and Giselle were moving away from Nicholson when he shot

them. Therefore, the videos provided significant probative value to the state’s case,

including its burden to disprove at least one element of Nicholson’s self-defense

claim.

{¶ 133} Nicholson contends that because all three officers testified about

the crime scene and other evidence was admitted describing the scene, the body-

camera videos were prejudicially repetitive and cumulative. We disagree.

Although Officers Jarzembak and Cramer were two of the first officers to respond

to the scene (Officer Sabelli arrived soon thereafter), their movements were not

identical and their body-camera videos depicted different viewpoints of the scene.

Officer Cramer was primarily concerned that night with gathering information from

Polanco and Nicholson’s parents, whereas Officer Jarzembak helped move the

victims’ bodies away from the house, communicated information to command, and

spoke to Polanco’s neighbors.

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{¶ 134} Because Officers Jarzembak’s and Cramer’s body-camera videos

were not identical and provided critical details of the crime scene, Nicholson has

not shown that the trial court erred in admitting them. Moreover, Nicholson has

not shown that he was prejudiced by their admission; indeed, it is difficult to see

how the exclusion of the body-camera videos would have led to a different outcome

in the case, given the substantial evidence brought forth against Nicholson.

2. Crime-scene photographs

{¶ 135} Nicholson also challenges the admission of photographs taken by

BCI investigators that showed “blood splatter, pools of blood, many spent shell

casings, and the personal belongings of Giselle and [M.L.] str[e]wn around in the

driveway.” The state responds that the probative value of those photographs was

significant given Nicholson’s self-defense claim, because the photographs show the

exact location where M.L. and Giselle were shot and killed.

{¶ 136} BCI investigator Justin Soroka took 144 photographs of the

outside-the-house crime-scene area. Of the 144 crime-scene photographs, at least

28 depict the outside of the house and its grounds with no blood present. Blood

spots and pools of blood are visible in at least 46 of the photographs. And several

photographs depict evidentiary items that were collected from the outside crime-

scene area.

{¶ 137} We stated in a prior capital case that gruesome photographs are

those that depict “actual bodies or body parts,” because “photos of blood stains or

fire damage to property do not have a shock value equivalent to the photograph of

a corpse.” State v. DePew, 38 Ohio St.3d 275, 281, 528 N.E.2d 542 (1988). Here,

the photographs of the blood spatter and pooling on the driveway were not

gruesome, so as to potentially bar their admission. Indeed, the photographs helped

to “illustrate[] the testimony of detectives who described the crime scene” and

“g[i]ve the jury an ‘appreciation of the nature and circumstances of the crimes,’ ”

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State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 97, quoting

Evans, 63 Ohio St.3d at 251, 586 N.E.2d 1042.

{¶ 138} The trial court did not err in admitting the photographs of M.L.’s

and Giselle’s clothing and possessions, because those photographs do not qualify

as gruesome. Moreover, Nicholson fired 13 shots at M.L. and Giselle, and the state

was entitled to provide photographic evidence of the location of each bullet casing

and its proximity to the side door of the house. Because that evidence went directly

to rebutting Nicholson’s self-defense claim, the probative value of each photograph

substantially outweighed any possible unfair prejudice to Nicholson. See State v.

Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165 N.E.3d 1198, ¶ 103.

{¶ 139} Finally, Nicholson argues that multiple crime-scene photographs

should not have been admitted, because the defense did not contest the cause and

manner of death. We have criticized the admission of excessive crime-scene and

autopsy photographs in a murder trial, because gruesome photographs expose the

jurors to horrific images and might serve no useful purpose except to inflame the

passions of the jurors. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140

N.E.3d 616, ¶ 257. And we have observed that “[a] few crime-scene photos

showing the body along with the coroner’s testimony will often suffice.” Id.

Although the state presented more than “a few” crime-scene photographs during

Nicholson’s trial, none of them depict the bodies and thus they are not gruesome.

{¶ 140} However, more than 100 photographs of the outside-the-house

crime scene were admitted during the trial phase, and any argument by the state

that these photographs were not repetitive or cumulative in nature is unpersuasive.

Multiple photographs illustrate different perspectives or different items of

evidence, but the jury was practically shown each image twice because the

photographer took a set of photographs of the exterior grounds without evidence-

identification markers in place and then retook the same images after putting the

markers in place.

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{¶ 141} In conclusion, while some of the crime-scene photographs were

repetitive or cumulative, we hold that their admission could not have affected the

outcome of the proceedings.

3. Giselle’s autopsy photographs

{¶ 142} Nicholson argues that the trial court erred in admitting photographs

from Giselle’s autopsy during the testimony of Dr. Barr, the deputy medical

examiner who conducted the autopsies.

{¶ 143} Dr. Barr testified that when a person is taken from a crime scene by

ambulance, the medical personnel may put medical devices on the person’s body,

such as electrocardiogram and defibrillator pads, and that there may be evidence of

intravenous injections on the body. On receipt of a body by the medical examiner’s

office, photographs are taken of the closed body bag and at multiple steps when the

bag is open and when any medical-therapy devices are removed.

{¶ 144} The state presented two autopsy photographs of Giselle’s face: one

taken after the medical-therapy devices had been removed and another taken after

her face had been cleaned. Neither photograph is gruesome, nor are they

cumulative. These photographs served to illustrate the procedure employed by the

medical examiner’s office when it receives a body for autopsy, and they were

properly admitted.

{¶ 145} In addition, the state introduced seven photographs documenting

the wounds caused by the bullet that entered Giselle’s left shoulder/upper arm. The

entrance wound was depicted in two photographs, one of which was a close-up of

the wound. That bullet exited Giselle’s left arm and reentered her left chest area,

and the photographs illustrated the path taken by the bullet. Another photograph of

Giselle’s left-shoulder area showed all three wounds associated with that bullet,

with a rod inserted through Giselle’s left-shoulder area and into her left chest to

show the path of the bullet. These seven photographs are not especially gruesome,

and their probative value is high. The photographs depict the path of the bullet that

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entered Giselle’s left-shoulder area (from left to right and downward), illustrating

Dr. Barr’s testimony and the severity of the wounds caused by a single bullet.

{¶ 146} Giselle was struck by three other bullets. One photograph showed

the entrance wounds caused by all three of those bullets. Two photographs showed

the second entrance wound, which was to Giselle’s right lower back, with one of

those photographs showing all three entrance wounds with attention called to the

second entrance wound, and the other being a close-up of that wound. According

to Dr. Barr, the close-up photograph of the second entrance wound depicted “the

eccentric abrasion pattern * * * with the defect more towards the top part.” The

state presented two close-up photographs of the third entrance wound, which was

to Giselle’s mid lower back, with one of those photographs showing all three

entrance wounds with attention called to the third entrance wound, and the other

being a close-up of that wound. And the fourth entrance wound, which was to

Giselle’s left buttocks, was illustrated by two additional photographs, one showing

all three entrance wounds with attention called to the fourth entrance wound, and

the other being a close-up of that wound. The gruesomeness of these photographs

is minimal because the wounds depicted in them had been cleaned. Moreover, the

probative value of each photograph is significant, and the photographs are not

repetitive.

{¶ 147} The state presented a photograph of Giselle’s chest and abdomen,

showing “sutures * * * from the exploratory laparotomy that was done in the

hospital as a life-saving measure” and an incision showing “where one of the bullets

that entered in the back ended up in the front.” That photograph also depicted the

exit wound to Giselle’s chest caused by the bullet that had entered her left-shoulder

area. Dr. Barr described another photograph that exhibited the “left lower quadrant

of her abdomen * * * [where] one of the bullets that entered into the back * * * was

recovered from the anterior abdominal wall.” Four additional photographs showed

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abrasions on Giselle’s left arm and elbow, right knee, and left foot, with one of the

photographs being a close-up of the right knee.

{¶ 148} Autopsy photographs depicting a victim’s injuries “[are] probative

of the manner of death and [the defendant’s] specific intent to kill.” State v. Shine,

2018-Ohio-1972, 113 N.E.3d 160, ¶ 87 (8th Dist.), citing State v. Craig, 110 Ohio

St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 93. We have upheld the admission

of gruesome photographs when the photographs “supported the coroner’s

testimony and provided a perspective of the victims’ wounds.” State v. Lang, 129

Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 142.

{¶ 149} We hold that the trial court did not err in admitting the photographs

of Giselle’s autopsy.

4. M.L.’s autopsy photographs

{¶ 150} Nicholson also argues that the trial court plainly erred when it

admitted 29 photographs from M.L.’s autopsy. Dr. Barr determined that M.L. was

struck by eight separate bullets, one of which entered, exited, and then reentered

his body. Dr. Barr also observed “several blunt force injuries, abrasions, scratches,

[and] lacerations * * * ” on M.L.’s body.

{¶ 151} Three of the photographs document the arrival and receipt of

M.L.’s body by Dr. Barr’s office. Under DePew, 38 Ohio St.3d at 281, 528 N.E.2d

542, at least one of these photographs is arguably gruesome because it depicts the

front of M.L.’s entire body with multiple gunshot wounds before it was cleaned.

However, the photographs were shown to the jury only once during Dr. Barr’s

direct examination, to illustrate his testimony regarding the autopsy procedure.

And the trial court’s admission of M.L.’s autopsy photographs could not have

affected the jury’s verdicts regarding Nicholson’s guilt or its recommendation of a

death sentence. We hold that in light of the overwhelming evidence of Nicholson’s

guilt, the trial court did not commit plain error by admitting the photograph.

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{¶ 152} The state presented two close-up photographs of M.L.’s head, one

showing medical equipment in place and the other showing his head after the

equipment was removed. The photographs are neither gruesome nor repetitive.

And such photographs are relevant and probative for purposes of providing a one-

time illustration of the treatment of a body on receipt by the medical examiner’s

office.

{¶ 153} Two photographs that combined to show the seven entrance

wounds to M.L.’s torso were shown to the jury. These photographs are neither

gruesome nor repetitive, and they provided the jury with a macro view of M.L.’s

injuries. Therefore, we hold that the trial court properly admitted them into

evidence.

{¶ 154} The state presented five photographs of an entrance wound to

M.L.’s right upper arm that Dr. Barr labeled as “anatomic diagnosis number I” and

other wounds caused by the bullet that caused the entrance wound. Dr. Barr

testified that the entrance wound was caused by a bullet that went into M.L.’s right

arm while the arm was “in position by his side,” “exited his skin on the inside of

his arm,” and then “reentered into his right chest.” Only one of these five autopsy

photographs—state’s exhibit No. 611—is arguably gruesome. And because all five

served to illustrate Dr. Barr’s testimony about the cause and manner of M.L.’s

death, the court did not err by admitting them. See Lang, 129 Ohio St.3d 512, 2011-

Ohio-4215, 954 N.E.2d 596, at ¶ 142.

{¶ 155} The state also introduced a photograph of M.L.’s upper-chest area

showing a small lump where a bullet came to rest inside his body and a photograph

of the wound caused when Dr. Barr removed the bullet. These photographs are not

gruesome, and the trial court did not err by admitting them. Two other bullets

entered M.L.’s body in the right-lower-back area, and the resulting wounds were

illustrated at trial by two photographs. The photographs show each wound up close,

and they are not gruesome. The state introduced two additional photographs to

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depict the exit wounds caused by those bullets, which are arguably gruesome

because they depict two gaping wounds and bruising and blood, in detail. But the

photographs illustrated Dr. Barr’s testimony, and we find no plain error in their

admission.

{¶ 156} The rest of the photographs from M.L.’s autopsy show the

remaining bullet wounds to his body. Dr. Barr described M.L.’s injuries from each

bullet, and the corresponding photographs show the entrance wounds. None of

these photographs are gruesome or repetitive, and they illustrate Dr. Barr’s

testimony. We conclude that the trial court did not err in admitting them into

evidence.

{¶ 157} For the foregoing reasons, we reject Nicholson’s fourth proposition

of law.

E. Denial of request for jury instruction on voluntary manslaughter

{¶ 158} In his fifth proposition of law, Nicholson argues that he was entitled

to a jury instruction on voluntary manslaughter because the evidence submitted at

trial sufficiently established that Polanco and M.L. had provoked him into “acting

under the influence of sudden passion or a fit of rage.” He contends that the trial

court’s refusal to instruct the jury on the elements of voluntary manslaughter

violated his rights to due process and a fair trial under the United States and Ohio

Constitutions.

{¶ 159} We reject Nicholson’s argument. The trial court did not abuse its

discretion when it denied Nicholson’s request for a jury instruction on voluntary

manslaughter. There was no objective evidence presented on which a jury could

have reasonably found that Nicholson had acted under the influence of “sudden

passion” or was in a “sudden fit of rage,” R.C. 2903.03(A), brought about by serious

provocation by the victims.

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1. Relevant facts

{¶ 160} At trial, defense counsel argued that a voluntary-manslaughter jury

instruction was appropriate based on Nicholson’s statements to Lieutenant Vargo

immediately after the murders. According to defense counsel, Nicholson’s

statements to Lieutenant Vargo showed that Nicholson had “snapped, he blacked

out, he didn’t know what the F happened. And * * * his emotions were elevated,

* * * he was angry, * * * upset, and me[t] all the elements of manslaughter.” The

state opposed Nicholson’s request, arguing that instructions on voluntary

manslaughter and self-defense are incompatible because “voluntary manslaughter

requires rage and self-defense requires fear.”

{¶ 161} The trial court denied defense counsel’s request for the court to

instruct the jury on voluntary manslaughter.

2. Applicable legal standards

{¶ 162} “Requested jury instructions should ordinarily be given if they are

correct statements of law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction.”

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240, citing

Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991).

However, a criminal defendant is not automatically entitled to an instruction on a

lesser or inferior-degree offense. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961,

911 N.E.2d 242, at ¶ 192; see also Conway, 108 Ohio St.3d 214, 2006-Ohio-791,

842 N.E.2d 996, at ¶ 134. Rather, there must be sufficient evidence to permit the

jury to reasonably reject the greater offense and find the defendant guilty on the

lesser or inferior-degree offense. Trimble at ¶ 192; Conway at ¶ 134. In making

this determination, a trial court must evaluate the evidence “in the light most

favorable to the defendant, without weighing the persuasiveness of the evidence.”

State v. Shane, 63 Ohio St.3d 630, 637, 590 N.E.2d 272 (1992). We review a trial

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court’s refusal to give a requested jury instruction for abuse of discretion. Adams

at ¶ 240.

{¶ 163} A voluntary-manslaughter conviction requires proof beyond a

reasonable doubt that the defendant, “while under the influence of sudden passion

or in a sudden fit of rage, either of which [was] brought on by serious provocation

occasioned by the victim that [was] reasonably sufficient to incite the person into

using deadly force, knowingly cause[d] the death of another.” R.C. 2903.03(A).

Construing R.C. 2903.03(A), we have held that “[f]or provocation to be reasonably

sufficient, it must be sufficient to arouse the passions of an ordinary person beyond

the power of his or her control.” Shane at 635. “If this objective standard is met,

the inquiry shifts to a subjective standard, to determine whether the defendant in

the particular case ‘actually was under the influence of sudden passion or in a

sudden fit of rage.’ ” State v. Mack, 82 Ohio St.3d 198, 201, 694 N.E.2d 1328

(1998), quoting Shane at 634.

3. Analysis

{¶ 164} Nicholson was not entitled to a jury instruction on voluntary

manslaughter, because the evidence submitted at trial did not demonstrate a

provocation “sufficient to arouse the passions of an ordinary person beyond the

power of his or her control,” Shane at 635. To be sure, “words alone will not

constitute reasonably sufficient provocation to incite the use of deadly force in most

situations.” Id. at 637.

{¶ 165} Nicholson asserts that his “emotions” caused by Polanco’s deceit

and M.L.’s attempts to defend Polanco “compounded on each other throughout the

course of the evening” to establish provocation sufficient to incite him into using

deadly force. But Nicholson testified that he repeatedly asked Polanco to move her

car so that he could leave the residence, thereby attempting to portray himself as

the more mature and calmer participant in the altercation. Under these

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circumstances, the trial court did not abuse its discretion in denying Nicholson’s

request for a jury instruction on voluntary manslaughter.

{¶ 166} Nicholson also points to his testimony that M.L. came to the

bedroom door during his argument with Polanco in “attack mode” and then “hit

[him] maybe two or three times,” which “hurt” and “pissed [him] off,” as objective

evidence of serious provocation sufficient to have incited him to use deadly force.

He further testified: “[W]hen [M.L.] started swinging on me, [Polanco] came up

behind me and wrapped her arms around me. And that’s when our fight between

me and him ensued.” But Nicholson’s having been punched once or twice by M.L.,

who was younger and smaller than Nicholson, did not constitute sufficient

provocation to justify the use of deadly force. See State v. Koballa, 8th Dist.

Cuyahoga No. 82013, 2003-Ohio-3535, ¶ 9; State v. Evans, 4th Dist. Scioto No.

05CA3002, 2006-Ohio-2564, ¶ 64 (“hitting another person does not constitute

sufficient provocation to bring about a sudden passion or fit of rage”); State v.

Howard, 9th Dist. Summit No. 26897, 2014-Ohio-1334, ¶ 25 (“being grabbed on

the arm and experiencing a cut in the process would not arouse the passions of an

ordinary man beyond the power of his control such that he would be aroused to use

deadly force”).

{¶ 167} Moreover, we have found questionable the argument that the

sufficient-provocation element can be satisfied by the defendant’s having learned

during a telephone call of a romantic partner’s infidelity, particularly when there

was an adequate cooling-down period. See State v. Huertas, 51 Ohio St.3d 22, 32,

553 N.E.2d 1058 (1990). To be sure, a voluntary-manslaughter instruction is not

warranted when the defendant had sufficient opportunity to cool down following a

deception by a romantic partner. And here, Nicholson testified that when the fight

moved to the kitchen, there was a moment when M.L., Polanco, and he “all kind of

stood there, [and] caught [their] breath.”

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{¶ 168} Thus, we conclude that the facts did not warrant a jury instruction

on voluntary manslaughter and that the trial court did not abuse its discretion in

failing to provide one. We reject Nicholson’s fifth proposition of law.

F. Inadequate jury instruction on self-defense

{¶ 169} In his sixth proposition of law, Nicholson asserts that the trial court

failed to adequately instruct the jury that an initial aggressor’s right to use force in

self-defense may be revived if the initial aggressor withdraws from the conflict in

good faith. Because defense counsel did not object to the trial court’s self-defense

jury instruction, Nicholson has forfeited all but plain-error review of this claim. See

State v. Hartman, 93 Ohio St.3d 274, 292, 754 N.E.2d 1150 (2001); Crim.R. 52(B).

{¶ 170} At the close of the trial phase, the court instructed the jury:

The defendant is allowed to use deadly force in self-defense.

If you find that the evidence was presented that tends to support the

finding that the defendant used deadly force in self-defense, the

[s]tate must prove beyond a reasonable doubt that the defendant did

not use deadly force in self-defense.

Self-defense means that, (A), the defendant was not at fault

in creating the situation giving rise to the deaths of [M.L.] and

Giselle Lopez.

And, (B), the defendant had reasonable grounds to believe

and an honest belief, even if mistaken, that he was in imminent or

immediate danger of death or great bodily harm.

And, (C), the defendant did not violate any duty to retreat to

avoid the danger.

And, (D), the defendant used reasonable force.

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Deadly force means any force that carries with it a

substantial risk that it will proximately result in the death of a

person.

Substantial risk means a strong possibility, as contrasted

with a remote or even a significant possibility, that a certain result

may occur or that certain circumstances may exist.

Duty to retreat. The defendant had no duty to retreat unless

he was at fault in creating the situation giving rise to the deaths of

[M.L.] and Giselle Lopez.

In deciding whether the defendant had reasonable grounds

to believe and an honest belief that he was in imminent or immediate

danger of death or great bodily harm, you must put yourself in the

position of the defendant with his character, his knowledge, or lack

of knowledge, and under the circumstances and condition that

surrounded him at that time.

You must consider the conduct of [M.L.] and Giselle Lopez

in deciding—and decide whether their acts and words caused the

defendant to reasonably and honestly believe that he was in danger

of death or great bodily harm.

If the defendant used more force than reasonably necessary

and if the force used is greatly disproportionate to the apparent

danger, then the defense of self-defense is not available.

If you find that the [s]tate proved beyond a reasonable doubt

all the essential elements of aggravated murder or any of the lesser

included offenses and that the [s]tate proved beyond a reasonable

doubt that the self-defense does not apply, you must find the

defendant guilty according to your findings.

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If you find that the [s]tate failed to prove beyond a

reasonable doubt any one of the elements of aggravated murder or

any of the lesser included offenses, that being murder and felonious

assault, or if you find that the [s]tate failed to prove beyond a

reasonable doubt that self-defense does not apply, you must find the

defendant not guilty according to your findings.

(Emphasis added.)

{¶ 171} Nicholson contends that the trial court’s instructions “implied[]

* * * the [s]tate could satisfy its burden of proof merely by disproving one of the

four common law self-defense elements enumerated by the trial court.” Nicholson

fails to identify an error in this respect. In fact, in his merit brief, Nicholson

acknowledges that “Ohio’s trial and appellate courts have interpreted the self-

defense statute, R.C. 2901.05(B)(1), as placing the burden on the prosecution to

disprove at least one of the common law elements of self-defense beyond a

reasonable doubt.”

{¶ 172} Nicholson also contends that the court’s instructions were plainly

erroneous because, in his view, they were “extremely vague and broad” as to the

duty-to-retreat element of self-defense. He maintains that the court should have

instructed the jury that “[t]he right to use self-defense is restored to the initial

aggressor when the initial aggressor withdraws from the conflict in good faith

and/or communicates (expressly or impliedly) to the other person his or her

intention to withdraw, yet the other person nonetheless continues to use (or

threatens the use of) unlawful physical force.”

{¶ 173} The trial court’s failure to provide this instruction to the jury does

not amount to error, much less plain error under Crim.R. 52(B). The evidence does

not support the conclusion that Nicholson withdrew from the conflict in good faith.

Nor is there any evidence that Nicholson communicated to anyone any intention to

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withdraw. Rather, the record shows that Nicholson withdrew only to retrieve his

personal gun. Thus, an additional instruction on the revival of the right to use force

in self-defense for an initial aggressor was not warranted. For that same reason,

Nicholson’s counsel were not ineffective for failing to request the instruction.

{¶ 174} Accordingly, we reject Nicholson’s sixth proposition of law.

G. Victim-impact evidence

{¶ 175} In his seventh proposition of law, Nicholson argues that the trial

court erroneously admitted victim-impact testimony during the trial phase through

multiple witnesses and that the inadmissible evidence had a prejudicial carryover

effect in the mitigation phase. For the following reasons, we disagree that the

challenged testimony was improper victim-impact evidence.

1. Background

a. Henry Billingslea’s testimony

{¶ 176} After a pretrial hearing, the trial court granted Nicholson’s motion

in limine to “prohibit victim-impact evidence.” During the trial phase, the state

presented the testimony of 18-year-old Henry Billingslea, who was a close friend

of M.L. throughout high school. Defense counsel objected on the basis that

Billingslea’s testimony was impermissible victim-impact evidence, but the trial

court overruled the objection.

{¶ 177} Billingslea was a freshman at Ohio University at the time of trial.

He testified that he met M.L. when they were freshmen at Garfield Heights High

School and that most days they would “[w]ork out, go to school, leave school, go

eat, [and] play video games.” Over a defense objection, Billingslea testified that

M.L. “was nice to everybody [and] [r]espectful to all his teachers, mom, dad,

everybody. He never had a problem with anybody. He was the nicest kid I ever

met.” Billingslea testified that Polanco had been protective of M.L. and that

Polanco and M.L. had loved each other like “[a]ny mom and son.”

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{¶ 178} Billingslea said that M.L. “got along well” with Giselle, whom he

described as “smart [and] quiet.” Giselle sometimes gave Billingslea and M.L. a

ride home from school or the boys’ baseball practice. Billingslea testified that M.L.

and Giselle’s relationship had been “[g]ood” and “[b]etter than most brothers and

sisters * * * [because] [t]hey didn’t argue or nothing. She was nice to him; he was

nice to her.”

{¶ 179} Billingslea, who had sometimes picked M.L. up to go places or had

dropped him off at home, met Nicholson after Nicholson moved into the house.

When asked to describe the nature of his interactions with Nicholson, Billingslea

testified that they were “[b]rief, [as in] just [a] head nod.” Billingslea reported that

for the first year or two after Nicholson moved in with Polanco, M.L. and Nicholson

interacted with each other very little and eventually acted “like they didn’t even

live together.” At first, M.L. and Nicholson would say “hi” and “bye” to each other,

but after a couple years, even those communications stopped. The last time

Billingslea and M.L. interacted with each other was around 8:00 p.m. on September

4, 2018; while M.L. played video games in his room, he and Billingslea had a video

chat on FaceTime.

{¶ 180} Over a defense objection, Billingslea testified that he had gone to

M.L.’s funeral and that “the whole school almost” had attended. And Billingslea

also testified over objection that M.L. had been a private person who did not divulge

many details about his life. To illustrate, Billingslea explained that he learned only

after M.L. died that M.L. had had a girlfriend. A couple days after M.L. and Giselle

died, Billingslea went to their house and found it in disarray. While there,

Billingslea saw a hole in the wall in the family room.

b. Kristin Bailey’s testimony

{¶ 181} Kristin Bailey testified about Giselle, who had been Bailey’s best

friend. Bailey and Giselle met during their freshman year at Garfield Heights High

School, and they remained close friends through their graduation in 2017. Bailey

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thought of Giselle “like a sister.” Over a defense objection, Bailey testified that

Giselle was “very sweet, caring, loving, always laughing. She [was] just so kind—

so kindhearted. Everybody loved her. And she was so loyal and trustworthy as

well.” Bailey testified that she and Giselle were admitted into the National Honor

Society during their junior year.

{¶ 182} Bailey said that beginning in 2016, she started visiting Giselle’s

house “[a] couple times, every couple weeks.” She had occasionally seen Giselle

and Nicholson interact, and she testified that they “typically did not really speak to

each other” aside from small talk. Bailey said that she and Giselle had discussed

Nicholson. Bailey also testified that she had seen “holes that were patched, re-

plastered on various walls” in the kitchen and living room of the house.

c. Other alleged victim-impact testimony

{¶ 183} Citing excerpts of the testimony of multiple other state’s witnesses,

Nicholson contends that the trial phase was replete with improper victim-impact

evidence that prejudiced his defense. Except where noted below, Nicholson failed

to contemporaneously object to the testimony and has forfeited all but plain-error

review regarding this claim. See State v. Smith, 89 Ohio St.3d 323, 332, 731 N.E.2d

645 (2000); Crim.R. 52(B).

{¶ 184} For example, Polanco testified during direct examination about

Giselle’s last words and then broke down and was unable to compose herself. The

trial court noted that she had had difficulty breathing following her testimony and

was taken to a hospital. The trial court decided to postpone the rest of Polanco’s

testimony; the defense did not object. The trial court explained to the jury that

Polanco had been excused for the day and would conclude her testimony later. She

finished testifying a few days later.

{¶ 185} During his testimony, Lieutenant Petrick became emotional when

describing a bullet that had struck Giselle’s backpack and a textbook inside it.

While he was describing the backpack, he blurted out, “You know, I have a

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daughter that’s in nursing school right now.” Defense counsel argued that

Lieutenant Petrick had “bec[o]me emotional” and had brought up the irrelevant

information about his daughter “in order to get the jurors to sympathize with what’s

going on.” The trial court instructed the jury “to disregard the last statement by the

detective.” When asked what he had found in the backpack, Lieutenant Petrick

testified that he had found a book that had “a nice dent, right in [it].” The trial court

sustained a defense objection to that testimony.

{¶ 186} At sidebar, defense counsel objected to this line of questioning,

arguing that Lieutenant Petrick had performed no “analysis or testing” and could

not testify as to the condition of the contents of the backpack before the incident.

The trial court sustained that objection and another objection to the use of the word

“defect” in describing the backpack’s contents.

{¶ 187} Other witnesses testified during the trial phase about M.L. and

Giselle. Multiple witnesses testified that M.L. and Giselle had been “good kids” or

“respectful” or “polite.” One of Polanco’s neighbors, Victor Sanuk, testified that

M.L. and Giselle had been

[v]ery polite, very friendly. * * * [T]hey were very well

disciplined. * * * When they came home from school—I guess they

* * * knew to stay home. Hardly ever would see them go out and

party or anything like that.

It was a situation where they [would] go home, do their

schoolwork. When they got old enough to work, they would go to

their employment, come home.

I believe that they had like a curfew, they had to be home at

a certain time, because you [would] never see them come home late.

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{¶ 188} Marshall described Giselle as having been an “intelligent young

lady” who had “made dean’s list [and been at the] top of her class” when she

graduated from high school. He said that she had started taking college classes.

Carlos Nieves, a friend of Roberto Lopez (Polanco’s oldest child), testified that

Giselle had been “always by her mom’s side.”

{¶ 189} Multiple state’s witnesses provided details about M.L.’s character

and life. Another witness testified that M.L. and Giselle had been “good kids [who]

* * * were always well behaved.” During its trial-phase closing argument, the state

continued this theme, stating that M.L. and Giselle had been “good kids” who “went

to school [and] weren’t running around.”

2. State’s position

{¶ 190} The state contends that “most, if not all” of the challenged evidence

was not true victim-impact evidence. The state argues that Billingslea’s testimony

was not improper, because it was relevant to the jury’s understanding of the

relationship between M.L. and Nicholson, which was, in turn, relevant to

Nicholson’s decision to murder M.L. In the state’s view, Billingslea’s testimony

that he had been best friends with M.L. and had known Polanco and Giselle well

provided necessary context regarding his “understanding of [M.L.’s] poor

relationship with Nicholson.” Without his testimony, the state contends, “the trier

of fact would have been in a position of potentially thinking that M.L. was distant

from everyone he lived with, instead of just Nicholson.”

{¶ 191} Regarding Bailey’s testimony, the state likewise argues it was not

victim-impact evidence, because it was relevant to establishing the close

relationship between her and Giselle. The state contends that Bailey’s testimony

about her relationship with Giselle was necessary to “validate and qualify [her]

testimony about Giselle’s relationship with Nicholson.”

{¶ 192} The state argues that nothing in the record suggests that any juror

became outwardly emotional at any point during the trial. The state also notes that

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although Polanco and Lieutenant Petrick displayed emotion when they testified, the

trial court took immediate action to ameliorate any prejudice to Nicholson. First,

when Polanco became overwhelmed with emotion while recounting the events

leading up to the deaths of M.L. and Giselle, the trial court called a recess and

ultimately excused Polanco for the rest of that day. The state emphasizes that

defense counsel did not object to the trial court’s handling of this testimony. And

second, regarding Lieutenant Petrick’s inappropriate, emotionally laden statement

about his own daughter being in nursing school, the court instructed the jury to

“disregard the last statement by the detective.” Also, the trial court sustained

defense counsel’s objection to Lieutenant Petrick’s testimony that he had found a

book in Giselle’s backpack that had “a nice dent, right in [it].” At sidebar, the trial

court sustained defense counsel’s objection to the state’s line of questioning

because Lieutenant Petrick had performed no “analysis or testing” and could not

testify regarding the condition of the backpack’s contents before the incident. The

trial court sustained another defense objection to the use of the word “defect” in

describing the backpack’s contents. The state contends that no prejudice resulted

to Nicholson as a result of Polanco’s and Petrick’s emotional outbursts.

3. Analysis

a. Applicable law

{¶ 193} “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, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 113. In

a capital trial, the court may admit victim-impact evidence during the trial phase

“only when the evidence [is] relevant to the facts attendant to the offense.” Id.; see

also Evid.R. 401.

{¶ 194} “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 and rational determination regarding the

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defendant’s guilt and/or the appropriate punishment.” Graham at ¶ 123. Factors

relevant in making that determination include (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.” Id. at ¶ 126. This is not an

exhaustive list. Id.

b. Alleged victim-impact evidence during the trial phase

{¶ 195} As discussed in our consideration of Nicholson’s first proposition

of law, a primary dispute in this appeal is whether the evidence showed that

Nicholson’s relationship with M.L. and Giselle was strained. Billingslea and

Bailey each provided probative evidence regarding the relationships between

Nicholson and M.L. and Giselle leading up to M.L.’s and Giselle’s deaths,

including how long they had known each victim; whether they had been to

Polanco’s house; what, if anything, they had seen at Polanco’s house; and whether

they had witnessed any domestic abuse or tension between Nicholson and the

victims. Moreover, neither witness testified about the penalty to be imposed, and

the record does not indicate that either witness became emotional while testifying.

See State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 79.

Thus, we reject the contention that the testimonies of Billingslea or Bailey were

inadmissible victim-impact evidence. See id. at ¶ 80.

{¶ 196} We also reject Nicholson’s argument concerning the emotional

testimonies of Polanco and Lieutenant Petrick. Defense counsel did not object to

the trial court’s decision to stop Polanco’s direct examination when she became

upset or to its allowing her to complete her testimony at a later date. In a prior

capital case, we found no plain error when the victim’s son had become distraught

when trying to testify about the impact that the victim’s death had on him. State v.

Reynolds, 80 Ohio St.3d 670, 678-679, 687 N.E.2d 1358 (1998). And we found no

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reversible error in that case even though the prosecutor had “incorporated the

victim-impact testimony into his closing argument.” Id. at 678. Here, the record

does not show that any juror was emotionally affected by Polanco’s distress during

her testimony. In addition, the trial court instructed the jury to disregard Lieutenant

Petrick’s testimony about his own daughter. We reject Nicholson’s contention that

he was deprived of a fair trial because of either of the emotional displays.

{¶ 197} Nicholson emphasizes that several witnesses testified that M.L. and

Giselle had been “good kids” or “respectful” or “polite.” Under Graham, 164 Ohio

St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, at ¶ 126, one of the factors for

determining whether testimony was impermissible victim-impact evidence is

whether it was lengthy. But none of the testimony cited by Nicholson was lengthy.

The statements that Nicholson challenges as being inadmissible victim-impact

evidence were brief, served to establish the existence of the victims, and provided

the jury with a backdrop against which to view the relationships between Nicholson

and each of the victims. None of this challenged testimony was overly emotional

or directed at the penalty to be imposed, and it thus does not fit within the definition

of victim-impact evidence.

{¶ 198} None of the other factors articulated in Graham help Nicholson

either. He does not claim that any witnesses other than Polanco or Lieutenant

Petrick used “emotionally charged language,” id., and he cannot point to record

evidence showing that any “witnesses, jurors, [or] audience members showed

physical signs of emotion during the testimony,” id.

{¶ 199} We also reject Nicholson’s argument that the state, in its opening

statement and closing arguments, highlighted improper victim-impact evidence

with the goal of swaying the jury. The trial court instructed the jury that counsels’

opening statements and closing arguments are not evidence. To the extent that the

state may have referred to personal characteristics of M.L. and Giselle during its

opening statement or closing arguments, the court’s instructions cured any error.

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See State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001) (we presume

that the jury followed the court’s curative instructions, including instructions to

disregard testimony).

c. Carryover effect on mitigation phase

{¶ 200} Nicholson asserts that the admission of the allegedly improper

victim-impact evidence during the trial phase prejudiced him during the mitigation

phase. But even assuming that this evidence was inadmissible, we cannot conclude

that Nicholson’s sentence would clearly have been different but for the admission

of the evidence. See State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, 207

N.E.3d 677, ¶ 106-110.

4. Conclusion

{¶ 201} In sum, Nicholson has not demonstrated that the trial court erred in

admitting any of the evidence challenged under this proposition of law. The

challenged testimony was relevant evidence regarding Nicholson’s relationships

with M.L. and Giselle and was not overly emotional or improperly directed at the

penalty to be imposed.

{¶ 202} For these reasons, we reject Nicholson’s seventh proposition of

law.

H. Inadequate voir dire

{¶ 203} Nicholson’s eighth proposition of law raises several challenges to

the trial court’s voir dire procedure, which he argues was constitutionally

inadequate.

1. Denial of alternating questioning

{¶ 204} First, Nicholson contends that his counsel were always last (after

the trial court and the state) to question potential jurors. He argues that this

procedure denied him a “fair and impartial jury” because pro-death-penalty jurors

had been rehabilitated by the time his counsel had a chance to question them and

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were so “locked in” to their positions following the rehabilitation that his counsel’s

voir dire efforts were futile.

{¶ 205} The few courts that have confronted this issue have rejected the

claim that defendants have a right to alternating voir dire. See, e.g., State v. Joseph,

3d Dist. Allen No. 1-91-11, 1993 WL 531858, *40 (Dec. 23, 1993), aff’d, 73 Ohio

St.3d 450, 653 N.E.2d 285 (1995); State v. Treesh, 11th Dist. Lake No. 95-L-057,

1998 Ohio App. LEXIS 4886, *145 (Oct. 16, 1988). We agree with that conclusion

and reject Nicholson’s argument.

2. “Follow the law” questions

{¶ 206} Nicholson also argues that the trial court erroneously relied on

prospective jurors’ responses to general follow-the-law questions to retain potential

jurors who should have been excluded for cause under Morgan v. Illinois, 504 U.S.

719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). He identifies multiple prospective

jurors who he says were improperly qualified by general and “superficial” follow-

the-law questions during death-qualification voir dire. The state counters that

Nicholson’s argument “is based on a misreading of Morgan” and that he fails to

explain how the follow-the-law questions prejudiced him.

{¶ 207} When deciding a motion to exclude a potential juror for cause,

“[t]he ultimate question is whether the ‘juror sw[ore] that he could set aside any

opinion he might hold and decide the case on the evidence, and [whether] the juror’s

protestation of impartiality [should be] believed.’ ” (Brackets added in White.)

White v. Mitchell, 431 F.3d 517, 538 (6th Cir.2005), quoting Patton v. Yount, 467

U.S. 1025, 1037, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); see also State v. Perez,

124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 140. In considering

jurors’ believability, we defer to the trial judge who saw and heard them.

Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 83. To

prevail, Nicholson must show that the trial court abused its discretion. See State v.

Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997).

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{¶ 208} As a threshold matter, Nicholson misconstrues Morgan. That case

does not stand for the proposition that it is improper to use “follow the law”

questions to explore whether a prospective juror is able to serve impartially.

However, it is significant that the voir dire procedure analyzed in Morgan was

unlike the procedure for Nicholson’s voir dire. In Morgan, the trial court had been

the only questioner of the prospective jurors, and it denied Morgan’s request that

the court ask them the following question: “If you found * * * Morgan guilty,

would you automatically vote to impose the death penalty no matter what the facts

are?” Id. at 723. Thus, the issue presented in Morgan was limited to whether a

trial court must allow a capital defendant to question prospective jurors about

whether they would automatically impose the death penalty following a guilty

verdict. Id. at 734-736. And we hold that Morgan does not prohibit the use of so-

called “follow the law” questions during voir dire. See id.

{¶ 209} Here, for instance, prospective juror No. 16 circled “7” in response

to question No. 35 on the juror questionnaire, which asked prospective jurors to

rate their “feelings about the death penalty” on a scale of 1 to 10, with “10” meaning

“strongly support.” Prospective juror No. 16 also wrote on the questionnaire: “I

support the death penalty for premeditated murder.” On the next question, he

checked the line indicating, “I have some doubts or reservations about the death

penalty, but I would not vote against the death penalty in every case. I would

seriously weigh and consider the aggravating and mitigating factors to determine

the appropriate penalty.” (Boldface sic.) And in response to a question on the juror

questionnaire regarding whether he held “any religious, moral feelings or

philosophical beliefs that would affect [his] ability to vote for the death penalty as

a judgment in this case,” prospective juror No. 16 checked “No.” But he wrote on

the questionnaire: “If someone commits murder they should be prepared to give up

their own life.” During voir dire, prospective juror No. 16 confirmed that that

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statement accurately captured his feelings regarding aggravated murder and the

death penalty.

{¶ 210} When asked about his general feelings about the death penalty,

prospective juror No. 16 responded that it is “necessary in some cases.” He

explained that “some cases” meant “[m]urder cases, or something very violent.”

But he unequivocally declined to state that he supported the death penalty in all

murder cases, instead stating that it “would depend on all the mitigating factors.”

When the state asked prospective juror No. 16 whether he would be able to

“consider [mitigating] evidence in the second phase,” he responded, “Certainly.”

He also stated that he would be able to consider Nicholson’s history, character, and

background during the mitigation phase, if it came to that. When the state asked

prospective juror No. 16 whether he had “any reservations or hesitations about any

part of that process,” he responded, “Not really.”

{¶ 211} Defense counsel also focused on prospective juror No. 16’s

statement on the juror questionnaire that he supported the death penalty for

premeditated murder. But prospective juror No. 16 explained that he did not

“believe you have to [impose the death penalty for premeditated murder], but [that]

it depends on hashing out all the evidence.” (Emphasis added.) He also indicated

that he would give no weight to the victims’ ages, and he consistently stated that he

would consider mitigating evidence. Nicholson has not identified any error with

respect to the voir dire of prospective juror No. 16.

{¶ 212} Nicholson also points to prospective juror No. 43’s voir dire as an

alleged example of how the trial court and the prosecutor rehabilitated a prospective

juror through “follow the law” questions. In response to a question on the juror

questionnaire asking the prospective jurors to rate their “feelings about the death

penalty” on a scale of 1 to 10, prospective juror No. 43 underlined “10.” But in the

space underneath that question, she wrote, “If someone asked me on the street, I’d

say I strongly support it. Asking me here and the reality of making that kind of a

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decision, I’m not sure where I would place myself on the above scale. I’m just a

human too. I believe in the death penalty because I believe the bible is from God.

* * * I have some doubts or reservations about the death penalty but I favor the

death penalty and would not always vote for it in every case of aggravated murder.”

{¶ 213} Here, again, Nicholson fails to demonstrate any error regarding voir

dire. Prospective juror No. 43 did not give automatic-death-penalty answers in her

questionnaire. The law does not prohibit asking prospective jurors whether they

can follow the law under these circumstances.

{¶ 214} Nicholson has not pointed to any follow-the-law questions that

were asked in this case that would be disallowed under Morgan, 504 U.S. 719, 112

S.Ct. 2222, 119 L.Ed.2d 492. We conclude that the trial court did not abuse its

discretion in permitting the questions. We therefore reject Nicholson’s argument

to the contrary.

3. Denial of motion for mistrial

{¶ 215} Next, Nicholson contends that the prospective jurors were confused

by the death-penalty process and failed to understand core terms that apply to

capital cases and that the trial court erred when it denied his motion for a mistrial

following prospective juror No. 53’s individual voir dire. The state correctly argues

that there is no requirement that jurors be provided with definitions of key terms at

the beginning of a capital trial, and in any event, Nicholson was not prejudiced by

any potential juror confusion in this regard.

{¶ 216} “[P]rospective jurors often have difficulty articulating their views

during voir dire.” Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, 165 N.E.3d

1198, at ¶ 67. Most jurors are “unfamiliar[] with courtroom proceedings,” and a

typical venire will “run[] the spectrum in terms of education and experience.”

White, 431 F.3d at 537. Moreover, throughout a trial, the court is tasked with

explaining legal concepts and relevant terminology to the jury, and the parties may

ask the court to provide further jury instructions. See Crim.R. 30.

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{¶ 217} Nicholson fails to identify any error in the voir dire process in this

case. The prospective jurors filled out extensive questionnaires, which counsel

could rely on when conducting individual voir dire. The trial court also provided

the venire with initial jury instructions and definitions before individual voir dire.

The instructions defined key terms like “indictment,” “specification,” “trial phase,”

“aggravating circumstances,” and “mitigating factors.” Further, the trial court

permitted individual, sequestered voir dire with each prospective juror, followed by

a general voir dire examination in open court. The individual voir dire provided

ample opportunity for prospective jurors to ask for additional explanation of any

concepts or to clear up any confusion.

{¶ 218} We hold that the trial court did not abuse its discretion by denying

Nicholson’s motion for a mistrial based on juror confusion.

4. Inadvertent misinformation given to the jury pool

{¶ 219} Nicholson argues that the state and the trial court prejudiced him

by misstating how many counts of aggravated murder the indictment contained.

{¶ 220} Nicholson was indicted on two counts of aggravated murder and

two counts of murder (one each for both M.L. and Giselle). However, at multiple

points during voir dire, both the trial court and the prosecutors misinformed

prospective jurors that Nicholson had been charged with four counts of aggravated

murder. It is not obvious how this misinformation could have prejudiced

Nicholson, and he makes little attempt to explain how he was prejudiced.

{¶ 221} We reject Nicholson’s eighth proposition of law and hold that he

had a constitutionally adequate voir dire.

I. Discovery violation

{¶ 222} In his ninth proposition of law, Nicholson contends that the trial

court deprived him of a fair trial when it allowed two witnesses who were not timely

disclosed to the defense, Santos and Nieves, to testify about the discovery of

Nicholson’s service gun in the trunk of his car on September 13, 2018. Nicholson

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submits that the testimony unfairly undermined his credibility and his self-defense

claim. He also argues that defense counsel were ineffective “for failing to properly

maintain[] objections to these two witnesses.” The state counters that even if the

testimony were inadmissible (a point the state does not concede), Nicholson cannot

show prejudice.

1. Relevant background

{¶ 223} The state filed its Crim.R. 16(I) witness list on September 5, 2019,

and filed its supplemental witnesses list on September 13. Neither list included

Santos or Nieves. On September 24, the state filed a second supplemental witness

list that included Santos’s name but not her contact information. It also filed a

supplemental discovery response that, among other things, provided defense

counsel with Santos’s witness statement. The state did not disclose Nieves as a

potential witness until September 26; the record does not indicate whether Nieves

provided a statement to police before he testified.

{¶ 224} Immediately after the state’s opening statement, at sidebar, defense

counsel objected to the state’s late disclosure of the witnesses who would testify to

the location of Nicholson’s service gun on September 13, 2018. The trial court

instructed defense counsel to raise any objections to the witnesses at the time of

their testimony.

{¶ 225} At the end of the same day, defense counsel asked the court to

disallow the testimonies of Santos and Nieves because the state had given notice of

its intent to call Santos only “within the past few days” and the defense had not had

an opportunity to have its investigator speak to her. The trial court denied

Nicholson’s request to disallow the testimony. Defense counsel’s investigator

ultimately interviewed Santos, and the state had provided defense counsel with

Santos’s statement. Santos and Nieves testified without further objection.

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2. Standard of review

{¶ 226} As a preliminary matter, the state argues that Nicholson did not

properly object to the testimony of either witness on Crim.R. 16 grounds and that

he has thus forfeited all but plain-error review of this claim. The trial transcript,

however, shows that defense counsel expressly objected to the testimony of both

witnesses based on an alleged discovery violation and requested that “they not be

allowed to testify at this point in time.” (Emphasis added.) However, the day

before Santos was to testify, defense counsel had their defense investigator

interview Santos, and defense counsel did not object again before she testified.

Likewise, defense counsel did not object on discovery grounds when Nieves

testified.

{¶ 227} By not renewing his objections to the testimonies of Santos and

Nieves on discovery grounds when they took the stand, Nicholson forfeited all but

plain-error review of the issue. See State v. Stembridge, 9th Dist. Summit No.

23812, 2008-Ohio-1054, ¶ 12 (“Because defense counsel did not bring the alleged

discovery violation to the trial court’s attention when [the challenged witness] took

the stand to testify, Defendant has forfeited any error, unless allowing [the witness]

to testify under the circumstances of this case rises to the level of plain error”); see

also State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504,

¶ 47-48; Crim.R. 52(B).

3. Trial court did not plainly err in allowing the testimony

{¶ 228} Nicholson gives three reasons why the trial court erred in allowing

Santos and Nieves to testify. First, he argues that “[g]iven [Polanco’s] inconsistent

statements regarding the location of the service weapon and the apparent bias of

[Polanco] and Roberto” regarding when it was placed into the trunk of his car,

Santos’s and Nieves’s testimony were “critical” to the state’s “intended purpose of

directly countering * * * [his] self-defense claim and generally discrediting his

description of the events.” Second, he notes that there was no body-camera footage

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of the vehicle searches and that photographs from the second search of his vehicle

were overwritten before defense counsel could see them. Third, he argues that

police returned his service gun to his employer without first submitting it for

scientific analysis or giving the defense an opportunity to view or test it.

{¶ 229} Although Nicholson accurately describes gaps in the investigation,

he concedes in his reply brief that “earlier knowledge of the testimony the [s]tate

intended to elicit from [Santos and Nieves] (as well as [Polanco] and Lopez)

regarding the location of the service weapon probably would not have changed Mr.

Nicholson’s theory of defense.”

{¶ 230} In light of this concession, and notwithstanding the gaps in the

investigation, Nicholson has not identified any error in the admission of the

testimony or adequately explained how the belated disclosures affected the

outcome of his trial.

{¶ 231} We reject Nicholson’s ninth proposition of law.

J. Readmission of trial-phase evidence

{¶ 232} In his tenth proposition of law, Nicholson argues that the trial court

abused its discretion when it readmitted “nearly all [the] culpability phase evidence

during the mitigation phase” of his trial. To prevail under this proposition,

Nicholson must show that the trial court abused its discretion by readmitting the

evidence. See Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at

¶ 241.

1. Relevant facts

{¶ 233} Before the start of the mitigation phase, the trial court readmitted

all the evidence that was admitted in the trial phase, except for the following:

photographs of Polanco taken at the hospital following the offenses, a cellphone-

analysis report, Polanco’s hospital records, and some other physical exhibits.

{¶ 234} The trial court then instructed the jury:

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Some of the evidence and testimony that you considered in

the trial phase of this case may not be considered in the sentencing

phase. For purposes of this proceeding you are to consider only that

evidence admitted in the trial phase that is relevant to the

aggravating circumstances of which the defendant has been found

guilty and to any of the mitigating factors. You will also consider

all the evidence admitted during the sentencing phase.

The court further instructed: “When you consider the nature and circumstances of

the offense, you may only consider them if they have any mitigating value. You

may not consider the nature and circumstances of the crime as an aggravating

circumstance.” Just before releasing the jury for its deliberations, the court told the

jury: “All the evidence that’s been admitted will be back with you. So if there’s

some exhibits that may be referred to but you don’t have, it’s not an oversight.

Either they weren’t offered or they were not admitted.” Regarding the aggravating

circumstance of engaging in a course of conduct to murder or attempt to murder

two or more people, the court instructed the jury that “any link that ties the two

homicides together” is relevant.

2. Analysis

{¶ 235} R.C. 2929.03(D)(1) provides that during the mitigation phase of a

capital proceeding, the jury shall consider, among other things, “any evidence

raised at trial that is relevant to the aggravating circumstances the offender was

found guilty of committing * * * [and] shall hear testimony and other evidence that

is relevant to the nature and circumstances of the aggravating circumstances the

offender was found guilty of committing.” Nicholson argues that pursuant to R.C.

2929.03(D)(1), “the [s]tate could reintroduce only the minimal evidence proving

the aggravated circumstances that moved this case into the mitigation phase: for

Counts One and Two, the course of conduct specification under

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R.C. 2929.04(A)(5).” (Emphasis added.) But see DePew, 38 Ohio St.3d at 282-

283, 528 N.E.2d 542 (holding that R.C. 2929.03(D)(1) does not limit the

reintroduction during the mitigation phase of evidence that is relevant to the

aggravating circumstances).

{¶ 236} Citing State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74

N.E.3d 319, Nicholson argues that the trial court erroneously allowed the state to

admit “nature and circumstances” evidence, which he says is “only admissible to

the extent the defense offers the evidence” during the mitigation phase.

Nicholson’s reliance on Belton is misplaced. In Belton, we observed that

R.C. 2929.04(B) and (C)—not R.C. 2929.03(D)—prohibit referring to “the nature

and circumstances of the offense as a factor to be considered in mitigation unless

and until offered by defendant.” (Emphasis deleted.) Belton at ¶ 92. And as we

recently explained: “In DePew, we * * * observed that not only is repetition of trial-

phase evidence for the mitigation phase required by the statute but it is also logical

given ‘the prosecution’s obligation to demonstrate, by proof beyond a reasonable

doubt, that the aggravating circumstances the defendant was found guilty of

committing are sufficient to outweigh the factors in mitigation.’ ” State v. McAlpin,

169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 142, quoting DePew at

283.

{¶ 237} Nicholson also claims that the trial court should not have

readmitted videos and photographs of M.L. and Giselle, crime-scene videos and

photographs, Polanco’s text messages with Nicholson and Giselle (state’s exhibit

Nos. 341B-BB, 341GG, and 341OO), prior-acts-related photographs and metadata

(state’s exhibit Nos. 341ZZ through JJJ), text messages between Nicholson and his

mother (state’s exhibit Nos. 410A, 410B, and 410C), Nicholson’s May 14, 2019

phone call from jail (state’s exhibit Nos. 408 and 423), cellphone-extraction reports

(state’s exhibit Nos. 424 and 425) and related data (state’s exhibit Nos. 552, 578,

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and 579), utility bills (state’s exhibit Nos. 426 and 427), “and the majority of the

testimonial evidence.”

{¶ 238} Citing State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855

N.E.2d 48, ¶ 132-133, the state responds by asserting that it is not per se error for a

trial court to readmit much or all of the trial-phase evidence in a capital case. But

Ketterer does not have the broad import that the state suggests. Ketterer tried his

aggravated-murder case to a three-judge panel, and we held that the panel did not

commit plain error when it allowed the state to reintroduce at the mitigation phase

all of the trial-phase evidence. Id. at ¶ 134, quoting State v. Davis, 63 Ohio St.3d

44, 48, 584 N.E.2d 1192 (1992) (noting that “a panel of judges is presumed to

‘consider only relevant, competent and admissible evidence in its deliberations’ ”).

Because Nicholson had a jury trial, Ketterer is inapplicable here.

{¶ 239} The trial court readmitted only the evidence that it deemed relevant

to the aggravating circumstances. In particular, the body-camera videos and crime-

scene photographs were relevant to the course-of-conduct aggravating

circumstance, as explained above in our analysis of Nicholson’s fourth proposition

of law. See also Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, at

¶ 355. Therefore, the trial court’s readmission of the crime-scene photographs and

body-camera footage of the scene was not an abuse of discretion. See State v.

LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 90 (finding “no

error in the trial court’s admission of the photographs and demonstrative exhibits

depicting the weapon used [because] * * * [t]hese items bore some relevance to the

nature and circumstances surrounding the R.C. 2929.04(A)(5) course-of-conduct

specification of which the jury found [the defendant] guilty”).

{¶ 240} The trial court also readmitted several text messages of Polanco,

Nicholson, and Giselle and between Nicholson and his mother. State’s exhibit Nos.

341B-BB, 341GG, and 341OO were admitted during the trial phase to show

Nicholson’s motive, intent, and lack of mistake. The text messages bore some

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relevance to the course-of-conduct specification, in that the messages refer to M.L.

and serve as evidence of Nicholson’s strained relationship with M.L. and Giselle.

And the text messages between Nicholson and his mother were arguably relevant

during the mitigation phase in that they tended to show the unconditional love

between Nicholson and his mother. Thus, we hold that it was not error for the trial

court to readmit state’s exhibit Nos. 341B-BB, 341GG, 341OO, 410A, 410B, and

410C.

{¶ 241} Nicholson also maintains that the trial court abused its discretion in

readmitting the “photographs and metadata” extracted from Polanco’s cellphone.

State’s exhibit No. 341JJJ is a photograph of the bruise that Nicholson caused when

he attacked Giselle after a disagreement about laundry. That photograph was

relevant to the course-of-conduct aggravating circumstance, and thus it was not

error for the court to readmit it for the mitigation phase.

{¶ 242} As to state’s exhibit Nos. 341ZZ through 341FFF, Polanco testified

that the photographs depicted injuries inflicted by Nicholson. The metadata for the

photographs was used at trial to establish the dates on which the photographs were

taken. These photographs and metadata were irrelevant to the mitigation phase,

because the jury had acquitted Nicholson of the attempted murder of Polanco.

Therefore, the trial court should not have readmitted state’s exhibit Nos. 341ZZ

through 341FFF. However, we hold that the “error was harmless in light of the

remaining evidence adduced during the mitigation phase,” State v. Johnson, 144

Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 75.

{¶ 243} Nicholson further argues that the trial court erred when it

readmitted two utility bills that the state had presented during the trial phase. We

agree that the utility bills should not have been readmitted, because they bore no

relevance to Nicholson’s conduct in killing M.L. and Giselle. But Nicholson has

not shown that he was prejudiced by the readmission of that evidence.

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{¶ 244} Nicholson also argues that the trial court erred when it readmitted

a recording of a May 14, 2019 jail phone call between Nicholson and his older

brother, Robert Nicholson Jr. During the call, Robert stated that Nicholson was

one of the “most calculating” people he knew. According to Nicholson, what

Robert meant by that statement was that “everything [he does] has a reason.”

{¶ 245} This recording had no relevance to the course-of-conduct

aggravating circumstance, and the trial court erred in readmitting it for the

mitigation phase. However, the trial court “explicitly instructed the jury on what it

could and could not consider as aggravating circumstances and also instructed the

jury that it must not consider the nature and circumstances of the murders unless

they were mitigating,” McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d

459, at ¶ 207. Given the court’s instructions, there is no realistic chance that the

readmission of the May 14, 2019 jail phone call affected the outcome of

Nicholson’s sentencing. Therefore, we reject Nicholson’s tenth proposition of law.

K. Erroneous weighing

1. Aggravating circumstances

{¶ 246} In his 11th proposition of law, Nicholson argues that both the jury

and the trial court improperly weighed the aggravating circumstances against the

mitigating factors and thereby erroneously discounted his mitigation evidence.

{¶ 247} Despite his being convicted of two counts of aggravated murder

and two course-of-conduct aggravating circumstances, Nicholson urges this court

to afford significantly less weight to the aggravating circumstances because “once

[he] decided to kill, the sheer proximity of M.L. to Giselle alone facilitated the two

deaths.” While it is possible that Nicholson aimed his gun only at M.L., there is no

evidence in the record to establish that fact. And to suggest in the absence of such

evidence that Giselle’s death was purely a matter of her being in the wrong place

at the wrong time is unconvincing. Nicholson was employed as a security guard

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by Paragon Systems on the date of the offenses and was well-trained on how to use

firearms.

{¶ 248} Accordingly, we reject Nicholson’s argument that the course-of-

conduct aggravating circumstances should be given less weight.

2. Weight of mitigation evidence

{¶ 249} Nicholson argues that the jury and the trial court gave his mitigating

evidence substantially less weight than it should have. He complains that the trial

court erroneously gave little or no weight to his lack of prior criminal convictions

under R.C. 2929.04(B)(5). He argues that any evidence of prior threats or violence

toward Polanco or others should not have been considered, because he was never

charged with a crime regarding those matters. However, the lack of a significant

history of prior criminal convictions is only one of the mitigating factors the court

must weigh against the aggravating circumstances. And this court’s independent

sentence review will cure any error in the trial court’s weighing process.

{¶ 250} Accordingly, we reject Nicholson’s 11th proposition of law.

L. Proportionality review

{¶ 251} In his 12th proposition of law, Nicholson argues that his death

sentences are excessive and disproportionate to the penalty imposed in similar cases

and therefore violate the Eighth and Fourteenth Amendments to the United States

Constitution and Article I, Sections 1, 2, 9, and 16 of the Ohio Constitution.

Nicholson’s argument relies on the reasoning set forth in the concurring opinion in

Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, at ¶ 220-229

(Donnelly, J., concurring). A concurring opinion does not represent a judgment of

the court, and the reasons advanced in support of finding Graham’s death sentence

inappropriate in that concurring opinion do not exist here. Thus, we find no merit

to Nicholson’s 12th proposition of law.

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M. Failure to instruct on specific mitigating factors

{¶ 252} In his 13th proposition of law, Nicholson argues that the trial court

erred during the mitigation phase when it failed to instruct the jury on the statutory

and nonstatutory mitigating factors that Nicholson raised during both phases of the

trial. Although the trial court granted Nicholson’s pretrial motion requesting jury

instructions on specific mitigating factors, Nicholson contends that the court erred

by failing to give the instructions during the mitigation phase.

{¶ 253} Defense counsel failed to identify at trial any specific mitigating

factors under R.C. 2929.04(B)(1) through (6) that were established by Nicholson’s

evidence. Indeed, Nicholson seems to concede that defense counsel relied

exclusively on the catchall mitigation factor under R.C. 2929.04(B)(7) to argue for

a life sentence. He contends that “[s]imply arguing it under the R.C. 2929.04(B)(7)

catchall does not cure the error” and that the trial court plainly erred when it did not

instruct the jury on multiple mitigating factors within R.C. 2929.04(B)(1)

through (6). Because defense counsel did not object to the instructions given to the

jury or request any specific instructions based on Nicholson’s mitigating evidence,

Nicholson has forfeited this claim, absent plain error. See Smith, 89 Ohio St.3d at

332, 731 N.E.2d 645; Crim.R. 52(B).

{¶ 254} During the mitigation phase, the trial court instructed the jury that

mitigating factors “weigh in favor of” a life sentence and diminish the

appropriateness of a death sentence. The court stated:

Mitigating factors include, but are not limited to, the nature

and circumstances of the offense, the history, character, and

background of the defendant, and any other factors that weigh in

favor of a sentence other than death.

This means you are not limited to the specific mitigating

factors that have been described to you. You should consider any

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other mitigating factors that weigh in favor of a sentence other than

death.

Any one of these mitigating factors standing alone is

sufficient to support a sentence of life imprisonment if the

aggravating circumstances are not sufficient to outweigh the

mitigating factors beyond a reasonable doubt.

{¶ 255} The jury instructions correctly stated the law, and without a defense

objection or a request for specific instructions, the trial court was under no

obligation to include specific references to the factors under R.C. 2929.04(B)(1)

through (6). “[W]here the defendant does not raise a particular mitigating factor,

that factor need not be considered in the opinions of the trial court and the appellate

court or in the process of weighing mitigating factors against the aggravating

circumstances.” DePew, 38 Ohio St.3d at 289, 528 N.E.2d 542.

{¶ 256} Nicholson has not established that any error occurred when the trial

court instructed the jurors during the mitigation phase, much less plain error under

Crim.R. 52(B). Accordingly, we reject Nicholson’s 13th proposition of law.

N. Challenges to the trial court’s sentencing opinion

{¶ 257} In his 14th proposition of law, Nicholson argues that in its

sentencing opinion, the trial court violated the Eighth and Fourteenth Amendments

to the United States Constitution and Article I, Sections 1, 2, and 16 of the Ohio

Constitution by affording insufficient or no weight to his mitigating evidence. He

further contends that the trial court “misapplie[d] the weighing process” in its

sentencing opinion.

{¶ 258} Under R.C. 2929.03(F), a trial court must state in a separate opinion

specific findings as to the existence of any of the mitigating factors

set forth in division (B) of section 2929.04 of the Revised Code, the

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existence of any other mitigating factors, the aggravating

circumstances the offender was found guilty of committing, and the

reasons why the aggravating circumstances the offender was found

guilty of committing were sufficient to outweigh the mitigating

factors.

{¶ 259} In crafting a written opinion under this statute, a trial court retains

wide discretion over how much, if any, weight to give a defendant’s mitigating

evidence. State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754,

¶ 90. To demonstrate error, Nicholson must show that the trial court’s “attitude

was unreasonable, arbitrary, or unconscionable.” Id.; see also Ford, 158 Ohio St.3d

139, 2019-Ohio-4539, 140 N.E.3d 616, at ¶ 437 (“The assessment and weight to be

given to mitigating evidence are matters for the trial court’s determination”).

{¶ 260} Nicholson contends that the jury’s verdict finding him guilty of

murdering M.L. and Giselle with prior calculation and design and as part of a course

of conduct under R.C. 2929.04(A)(5) was not supported by sufficient evidence or

was against the manifest weight of the evidence. We have already rejected these

arguments in our ruling on Nicholson’s first proposition of law.

{¶ 261} Nicholson also maintains that the trial court improperly assigned

weight to (1) the nature and circumstances of the offense, (2) his history,

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