State v. Thomas (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Thomas, Slip Opinion No. 2017-Ohio-8011.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2017-OHIO-8011

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

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Thomas, Slip Opinion No. 2017-Ohio-8011.]

Criminal law—Aggravated murder—Convictions and death sentence reversed and

cause remanded.

(No. 2012-2026—Submitted January 10, 2017—Decided October 4, 2017.)

APPEAL from the Court of Common Pleas of Lake County,

No. 11CR 321.

_________________

O’DONNELL, J.

{¶ 1} Joseph L. Thomas appeals from his aggravated-murder and other

felony convictions and the death sentence imposed in connection with the 2010

aggravated murder of Annie M. McSween, and he presents 24 propositions of law

for our consideration. Because the tenth proposition of law—involving the

admission of irrelevant, prejudicial evidence—is well taken, we reverse the

convictions and sentence and remand this matter to the trial court for a new trial.

SUPREME COURT OF OHIO

Factual and Procedural History

{¶ 2} On November 25, 2010, Thanksgiving Day, McSween was working

as a bartender at Mario’s Lakeway Lounge in Mentor-on-the-Lake, located on

Andrews Road on a block bordered by Lakeshore Boulevard to the north and Park

Street to the east in Lake County, Ohio. Patrons Matthew Miller and Thomas

played pool there that evening, and Miller saw that Thomas wore a pocketknife

clipped to his jeans. Other witnesses observed that Thomas was upset with his

girlfriend, Linda Roncalli, because her van had broken down and she did not meet

him for a Thanksgiving dinner that he had prepared, and from her text messages,

Thomas thought she had broken up with him. As the night progressed, Thomas

asked McSween and another woman to dance, but they both declined; later, at

closing time, McSween had to ask him several times to leave the bar. After the

bar’s owner promised him more beer the next day, Thomas left without incident.

{¶ 3} The bar’s owner left about 2:30 a.m., and only two people remained

in the bar: McSween and Chalina Bolden, a woman who was asleep on a futon in

the office. On nights when she closed the bar, McSween would return home around

4:00 a.m.

{¶ 4} Between 3:50 and 4:00 a.m. that morning, Mark McCool, who lived

within 50 yards of the bar on Park Street, was smoking at an open window in his

home when he heard a woman’s scream coming from near the bar. He went outside,

walked north along Park Street, and looked toward the bar’s parking lot, but he did

not see or hear anything else.

{¶ 5} Margaret Huelsman and Brian Williams were watching a movie in a

house on Park Street that is adjacent to the bar’s parking lot when around 4:20 or

4:30 a.m. they heard thuds along the north wall and the front door began to open.

Assuming that someone was trying to break into the house, Huelsman shut and

locked the door, and Williams pulled a small knife from his belt buckle, looked out

the front door window, and asked Huelsman whether she knew a “guy with long

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hair.” (Thomas did not have long hair at the time, and McSween’s hair was about

shoulder length.) A short time later, Williams walked outside, and when he

returned, he told Huelsman that he had not seen anyone.

{¶ 6} Patrolman Scott Daubenmire pulled into the bar’s parking lot around

4:30 a.m. for a routine business check. He drove to the back, shining his lights

along the building and on boats being stored on an adjacent property, but he did not

see anything unusual except for a flat tire on a vehicle.

{¶ 7} Between 5:00 and 5:30 a.m., Robert Jenkins, who lived on Marine

Parkway about a half mile from the bar, was awakened by a flashing light on his

second-story bedroom wall. He initially thought it was lightning, but when he

looked out his window, he saw the silhouette of a tall, thin Caucasian man with

short hair standing over a fire in a barrel behind the home of Jenkins’s next-door

neighbor, Susan Gorsha. Joseph Thomas and Tim Miller, who both lived in

Gorsha’s house at that time, matched that description.

{¶ 8} Shortly after 8:40 a.m., the owner of a business adjacent to the bar

discovered McSween’s body, naked except for a pair of socks, in a wooded lot

about 150 feet northeast of the bar. Investigators found McSween’s car in the bar’s

parking lot with a slashed tire, her left shoe wedged between the driver’s-side front

tire and the wheel well, and her keychain on the ground near the tire. They found

small amounts of blood on the inside frame of the driver’s door, the outside of the

driver’s-side rear door, and the interior window of the driver’s-side rear door. They

also found McSween’s eyeglasses on the ground 15 to 20 feet from the car.

{¶ 9} About 92 feet northeast of McSween’s car, near an excavator stored

on the property, investigators discovered McSween’s right shoe, her underwear,

and a bracelet on the ground. There was a small amount of blood on the excavator’s

bucket, two large bloodstains on the ground, and a trail of blood leading toward the

Park Street house adjacent to the bar’s parking lot. Investigators observed

bloodstains on the windows, siding, and front door of that house and a pool of blood

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on the front stoop. They also saw drag marks leading from the front stoop through

the gravel driveway and into the grass toward the area where McSween’s body was

found.

{¶ 10} Investigators collected three partial footprint impressions from the

area near McSween’s car but did not retrieve any useful DNA or fingerprints from

the crime scene. DNA tests showed that all blood recovered from the scene—from

the house, the ground, the excavator, and McSween’s car—belonged to McSween.

{¶ 11} Two other vehicles parked near the bar had slashed tires, but

investigators found no identifiable fingerprints on either vehicle. In addition, the

cable and telephone lines to the bar and the thermostat wires running to an air-

conditioning unit had been cut on the rear roof of the bar, and the covers of two

boats being stored next to the bar parking lot had been cut open. Although

investigators found a latent fingerprint inside one of the boats, the record does not

reveal that it was analyzed. Patrolman Daubenmire saw footprints inside the boats,

but he believed they belonged to another officer who had entered the boats at the

crime scene.

{¶ 12} On the afternoon following the murder, a Mentor-on-the-Lake

resident found McSween’s cell phone in her driveway on the north side of

Lakeshore Boulevard, east of Andrews Road. The back of the phone and the battery

were missing, and the screen was cracked.

{¶ 13} An autopsy on McSween’s body performed by Dr. Daniel Galita

revealed that she died between 4:00 and 4:30 a.m. from blood loss caused by a stab

wound to her neck that severed her right carotid artery and right jugular vein.

McSween’s hyoid bone in her neck was fractured, consistent with manual

strangulation, and she had at least five nonlethal cut wounds to the front of her neck.

She had been punched in the face, breaking her upper jaw bone and caving in her

face, her nose and dentures were broken, and the bridge of her nose had been cut

with a knife. She had defensive wounds on her hands and evidence of blunt impacts

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to her torso and extremities, including a rib fracture, and she had brain

hemorrhaging from her head hitting a hard surface. Contusions and linear abrasions

appeared on her hips, face, torso, and extremities, consistent with having been

dragged over a rough surface. She had been forcefully penetrated, both vaginally

and anally, by a penis or smooth cylindrical object, but no semen or sperm was

found. The autopsy further revealed that she had been stabbed five times in the

back after her death.

{¶ 14} Dr. Galita opined that the stab wounds on McSween’s body were

caused by a single-edged knife with a blunt edge of 1/16th of an inch. He explained

that it was not possible to determine the exact length of the knife’s blade by looking

at the depth of the wounds, “[b]ecause in the soft tissue the length of the wound can

be shorter or longer than the real length of the blade,” but a blunt edge 1/16th of an

inch wide would be consistent with a four- to six-inch blade. However, he also

testified that although there is “some correlation” between the width of the blunt

edge and the length of the blade, a knife could have a longer, narrower blade or a

shorter, thicker blade and still have a blunt edge of 1/16th of an inch.

{¶ 15} Thomas’s former girlfriend, Linda Roncalli, had often observed him

wearing a blue pocketknife clipped to his pants; she described the blade as three to

four inches long, and she had last seen it in December 2010 or January 2011, before

he lost it. Christine Vanatta, another ex-girlfriend, had also seen Thomas with a

blue pocketknife with a blade three or four inches long four years before the murder.

Matthew Miller saw the top of a knife when he played pool with Thomas at the bar

on Thanksgiving, but he did not describe it as being blue or having any particular

length. There is no evidence that Thomas’s blue pocketknife had a blunt edge

1/16th of an inch wide, because it was never recovered.

{¶ 16} The autopsy also revealed that McSween had toxic levels of

amphetamine and hydrocodone as well as a lower level of a barbiturate in her body,

but Dr. Galita concluded that those drugs did not cause her death. Other evidence

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confirmed that she tried to obtain drugs to celebrate her 49th birthday—the day she

died. Investigators recovered a text message she sent to Alan Thom, her former

boyfriend, on the Sunday before her murder: “Its annie this is my new cell # i’ve

been working mega hours and i was hoping u could help me i have money . . . . .

plus friday is my birthday . . . . please call . . . . . . .” (Ellipses sic.) Detective David

Strauss interviewed Thom and learned that he sold methamphetamine and had sold

some to McSween in the past, but there is no evidence that he had supplied drugs

to her that week.

{¶ 17} The Lake County Crime Lab and the Ohio Bureau of Criminal

Identification and Investigation (“BCI”) tested swabs from McSween’s body and

her personal effects but found no DNA belonging to Thomas. A BCI analyst

determined that a small stain on McSween’s underwear contained a mixture of

McSween’s DNA and a partial DNA profile of an unknown male. A second small

stain on the underwear contained a mixture of McSween’s DNA and a partial

profile of a possibly different unknown male. The analyst concluded that the male

DNA in both samples did not belong to Thomas.

{¶ 18} Investigators determined that besides McSween, 37 people had been

at the bar on the night before and morning of the murder. By mid-December, the

investigation focused on locating one unidentified patron who frequented the bar

but was not known well by the others in the bar on the night of the murder. After

the police issued a press release describing that patron, Jackie Miller provided a tip

identifying him as Thomas, who lived in Susan Gorsha’s house on Marine Parkway

along with Gorsha, Jackie, her husband, Tim Miller, their seven-year-old son,

Anthony, and their two-year-old daughter. On the morning of the killing, Thomas

had told Jackie that there had been a murder at the bar and that he had been there

that night.

{¶ 19} Thomas voluntarily talked to police and acknowledged that he was

at the bar on the night of the murder and that he was among the last to leave. He

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said that he had walked to the bar around 10:00 or 11:00 p.m. on Thanksgiving

night, played pool, drank three beers and half of a shot, and left around 2:00 a.m.,

walking north on Andrews Road, east on Lakeshore Boulevard, and then south on

Marine Parkway—about a 15-minute walk. He told investigators that he arrived at

the Gorsha house around 2:15 a.m. and that Gorsha, who was asleep on the couch,

woke up and briefly spoke to him. Gorsha, however, had no clear memory of that

morning and did not recall seeing Thomas.

{¶ 20} Thomas also told investigators that Anthony Miller was still awake

playing on the computer when he returned home and that they stayed up playing

computer games until about 5:00 a.m.—Thomas on his laptop computer and

Anthony on his father’s desktop computer. Forensic computer evidence showed

some activity on Tim Miller’s desktop between 2:00 and 5:00 a.m. but did not show

activity on Thomas’s laptop during that time frame. Anthony remembered that he

and his parents had gotten home that night around 2:00 a.m., that Thomas had

returned 30 minutes to an hour later, and that they watched a movie together before

Anthony fell asleep.

{¶ 21} Thomas denied carrying a knife at the bar or fighting with his

girlfriend on Thanksgiving night. He also denied asking anyone to dance.

{¶ 22} Thomas voluntarily submitted to a polygraph examination

conducted by BCI in January 2011. The examiner asked four relevant questions:

whether Thomas knew who murdered McSween, whether he murdered her,

whether he stabbed her, and whether he did anything to cause her death. Thomas

answered each question in the negative, and the examiner determined that Thomas

“told the substantial truth during the test.” Two peer reviews and a rescoring of the

results reached the same conclusion.

{¶ 23} In April 2011, after the snow and ice had melted, investigators

searched for McSween’s clothing along the lakeshore near the crime scene. The

search was unsuccessful, but it prompted a nearby resident to provide a tip that led

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investigators to question Jenkins, who told them about the fire he saw on the

morning of the murder. Investigators then obtained Gorsha’s consent to remove

the burn barrel. Detective Strauss noticed a strong odor of accelerant or lighter

fluid when he looked inside the barrel, which contained the burned remnants of a

purse and clothing, including a brown sweater, a tank top, jeans, and a bra, along

with a melted mass of cosmetic items. A friend of McSween’s confirmed that these

items belonged to McSween and that she had worn the clothes to work on

Thanksgiving Day. The sweater and cosmetic items contained DNA consistent

with McSween’s DNA. However, nothing belonging to Thomas—none of his

clothing, no DNA, no blood evidence, and no fingerprints—was found in the barrel

or on McSween’s belongings.

{¶ 24} The police seized and examined the boots that Thomas wore on the

night of the killing, and testing revealed none of McSween’s blood or DNA on

them. The Lake County Crime Lab determined that Thomas’s right boot was a

possible source of a boot print found near McSween’s car, but investigators could

not state with certainty that it related to the murder, because it was found in a public

location and Thomas had smoked in the parking lot with other patrons that night.

{¶ 25} Officers executed search warrants for Thomas’s personal belongings

at the Gorsha residence and at Roncalli’s home. Among other things, they seized

five knives, but they did not find the murder weapon, any of McSween’s property,

or her DNA on any of Thomas’s possessions.

{¶ 26} BCI sent McSween’s underwear and vaginal swabs to LabCorp, a

private biomedical-testing company, for Y-STR (Y-chromosome short-tandem-

repeat) DNA testing, a technique that isolates male DNA. LabCorp found two

additional partial male DNA profiles. One profile (which included 3 of 17 Y-

chromosome markers) was found on McSween’s underwear, and another (which

included 6 markers) was found on a vaginal swab. According to LabCorp, the male

DNA from the underwear would be found in one in ten males and one in seven

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January Term, 2017

Caucasian males. The male DNA from the vaginal swab would be found in 1 in

926 males and 1 in 510 Caucasian males. LabCorp excluded the bar owner, other

patrons, and Tim Miller as the source of these partial profiles but it could not

exclude Thomas, and the police arrested him in June 2011 shortly after receiving

the LabCorp results. However, Dr. Stephen LaBonne of the Lake County Crime

Laboratory indicated that he would only attribute DNA to a source when there is

less than a 1 in 30 billion probability of a match.

{¶ 27} A grand jury indicted Thomas on 11 felony counts, including four

counts of aggravated murder. Count 1 charged Thomas with aggravated murder

with prior calculation and design (R.C. 2903.01(A)). Counts 2, 3, and 4 charged

Thomas with felony aggravated murder (R.C. 2903.01(B)), predicated on

kidnapping, rape, and aggravated robbery, respectively. Each aggravated-murder

count included six death-penalty specifications under R.C. 2929.04(A)(7), alleging

that Thomas committed the murder in the course of committing kidnapping, rape,

and aggravated robbery. The indictment also charged Thomas with three counts of

kidnapping (R.C. 2905.01(A)(2), (3), and (4)) (Counts 5, 6, and 7), one count of

rape (R.C. 2907.02(A)(2)) (Count 8), two counts of aggravated robbery (R.C.

2911.01(A)(1) and (3)) (Counts 9 and 10), and one count of tampering with

evidence (R.C. 2921.12(A)(1)) (Count 11). He pleaded not guilty to all counts and

specifications.

{¶ 28} At the state’s request, the trial court excluded all evidence of the

polygraph test and results. The state dismissed the fourth, fifth, and sixth capital

specifications related to Count 1 before the case was submitted to the jury. The

jury then returned guilty verdicts on all counts and the remaining death-penalty

specifications.

{¶ 29} The felony aggravated-murder charges were merged into the prior-

calculation-and-design aggravated-murder charge before the sentencing phase, and

for purposes of capital sentencing, the jury considered only Count 1 and the three

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remaining aggravating circumstances associated with that count. The jury

recommended a sentence of death, and the trial court accepted the recommendation

and imposed that sentence.

{¶ 30} On the noncapital convictions, the court merged allied offenses and

imposed an aggregate sentence of 33 years in prison for one count each of

kidnapping, rape, aggravated robbery, and tampering with evidence.

{¶ 31} Thomas appealed to this court as of right and presented 24

proportions of law. The tenth proposition of law, asserting that the trial court

committed plain error in admitting into evidence five knives that Thomas owned

which were unrelated to these crimes, is dispositive.

Law and Analysis

Plain Error Review

{¶ 32} Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

errors or defects affecting substantial rights” notwithstanding an accused’s failure

to meet his obligation to bring those errors to the attention of the trial court.

However, the accused bears the burden to demonstrate plain error on the record,

State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16,

and must show “an error, i.e., a deviation from a legal rule” that constitutes “an

‘obvious’ defect in the trial proceedings,” State v. Barnes, 94 Ohio St.3d 21, 27,

759 N.E.2d 1240 (2002).

{¶ 33} Even if the error is obvious, it must have affected substantial rights,

and “[w]e have interpreted this aspect of the rule to mean that the trial court’s error

must have affected the outcome of the trial.” Id. We recently clarified in State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is

“required to demonstrate a reasonable probability that the error resulted in

prejudice—the same deferential standard for reviewing ineffective assistance of

counsel claims.” (Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez

Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

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{¶ 34} If the accused shows that the trial court committed plain error

affecting the outcome of the proceeding, an appellate court is not required to correct

it; we have “admonish[ed] courts to notice plain error ‘with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of

justice.’ ” (Emphasis added.) Barnes at 27, quoting State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

Other Weapons Evidence

{¶ 35} Both Evid.R. 404(B) and R.C. 2945.59 “preclude admission of other

acts evidence to prove a character trait in order to demonstrate conduct in

conformity with that trait,” State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,

983 N.E.2d 1278, ¶ 16, or “to show the accused’s propensity or inclination to

commit crime,” id. at ¶ 15.

{¶ 36} Federal and Ohio courts have recognized the introduction of other

weapons evidence—i.e., irrelevant evidence of weapons unrelated to the charges—

as error. See, e.g., United States v. Goliday, 145 Fed.Appx. 502, 506 (6th Cir.2005)

(“when a defendant is not charged with a firearms violation and a firearm is not

relevant to the crimes charged, a district court abuses its discretion in admitting the

firearm”); United States v. Matsunaga, 158 Fed.Appx. 783, 785 (9th Cir.2005),

quoting United States v. Tarazon, 989 F.2d 1045, 1053 (9th Cir.1993) (“ ‘the

admission of a firearm is improper where the firearm does not relate to any charges

against the defendant’ ”); United States v. Warledo, 557 F.2d 721, 725 (10th

Cir.1977) (“The courts have quite uniformly condemned the introduction in

evidence of testimony concerning dangerous weapons, even though found in the

possession of a defendant, which have nothing to do with the crime charged”); State

v. Crosby, 186 Ohio App.3d 453, 2010-Ohio-1584, 928 N.E.2d 795, ¶ 16 (8th Dist.)

(evidence of another gun the defendant was known to have carried “does not link

defendant to the gun used to shoot the victim, and was therefore improperly

admitted”); State v. Robinson, 7th Dist. Jefferson No. 05 JE 8, 2007-Ohio-3501,

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¶ 55 (“Evidence that a person carries a gun is the type of ‘other acts’ evidence which

is generally inadmissible since it portrays the person as a violent individual who

regularly carried guns”); see also Major v. Commonwealth, 177 S.W.3d 700, 710

(Ky.2005) (“weapons, which have no relation to the crime, are inadmissible”).

{¶ 37} As the Supreme Court of Colorado has observed, “the fact that a

person collects knives or other weapons does not tend to make it more probable that

the person is experienced with the use of knives and intends to use a knife to cause

serious injury to others. * * * Possession and use are not equivalent.” Kaufman v.

People, 202 P.3d 542, 555 (Colo.2009). The court indicated that by presenting

other weapons evidence in that case, “the prosecution was engaging in the very

conduct that [Colorado Rule of Evidence] 404(b) was designed to prevent: parading

evidence before the jury merely to paint a picture of [the accused] as a bad person.”

Id.

{¶ 38} Error in admitting other weapons evidence falls generally into one

of two categories: harmless error or prejudicial error requiring reversal.

Harmless Error Cases

{¶ 39} Cases in which courts have deemed error in the admission of other

weapons evidence to be harmless generally involved overwhelming independent

evidence of guilt. That is the circumstance presented by the facts of two recent

cases decided by this court.

{¶ 40} In State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d

1112, we recognized that error in admitting other weapons evidence is harmless

“ ‘if there is substantial other evidence to support the guilty verdict.’ ” Id. at ¶ 158,

quoting State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 (1994). Thus, in

Neyland, we held that the erroneous admission of weapons and ammunition

unrelated to the charges was harmless error because the state had presented

overwhelming independent evidence of guilt—Neyland had made incriminating

statements to police and had been arrested in possession of the murder weapon. Id.

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at ¶ 15, 23-24, 159. Similarly, in State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-

2961, 911 N.E.2d 242, we concluded that any error in admitting other weapons was

harmless given the overwhelming evidence establishing the guilt of the accused,

including his admissions of guilt to police and others, forensic evidence, and his

arrest after a standoff with police in which he killed a hostage. Id. at ¶ 1, 8-11, 24,

111; see also State v. Bennett, 11th Dist. Ashtabula No. 2002-A-0020, 2005-Ohio-

1567, ¶ 47-48 (admission of knives unrelated to the charges harmless error in light

of overwhelming independent evidence of guilt).

Prejudicial Error Cases

{¶ 41} But the case involving Thomas is not a case of overwhelming

independent evidence of guilt. When the other weapons evidence “leads only to

inferences about matters that were not properly provable in this case, i.e., the

defendant’s dangerous character,” admission of that evidence prejudices the

accused and is reversible error. Walker v. United States, 490 F.2d 683, 684-685

(8th Cir.1974). Thus, in State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984), the

Supreme Court of Washington reversed Rupe’s death sentence based on the

admission during the penalty phase of “irrelevant and highly prejudicial” evidence

concerning his collection of guns—none of which were involved in the crime—

noting that a juror “might believe that defendant was a dangerous individual and

therefore deserved to die, just because he owned guns.” Id. at 708.

{¶ 42} Similarly, in Agatheas v. State, 77 So.3d 1232 (Fla.2011), the

Supreme Court of Florida explained that evidence of a weapon unconnected to the

crime charged is “completely irrelevant under our case law and basic evidentiary

principles,” id. at 1237, and its admission is presumptively harmful error because

of the danger the jury will consider the accused’s bad character or propensity to

crime as evidence of guilt, id. at 1239-1240. The court also noted the “confusing

and misleading effect” of admitting the unrelated weapon, which had been seized

from the accused five years after the crime, id. at 1240, so that “[b]y introducing a

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weapon entirely unconnected to the crime charged, the State further confused the

already unclear evidence regarding the murder weapon,” which had never been

recovered, id.

{¶ 43} In People v. Drake, 142 Mich.App. 357, 360, 370 N.W.2d 355

(1985), the Michigan Court of Appeals held that the trial court committed

prejudicial error in admitting two handguns that had not been used in the homicide

in that case, explaining that the other weapons evidence “could only have inflamed

the passions of the jury. This evidence added absolutely nothing to the case against

the defendant except to suggest to the jury that he was a bad man.” See also Tornero

v. United States, 94 A.3d 1, 15 (D.C.2014) (holding that it was prejudicial error to

admit a BB gun into evidence that was unrelated to the offense because of “the risk

that the jurors might too easily link the presence and [the accused’s] possession of

the BB gun to the shattering of [the victim’s] windshield, even in the absence of

any other evidence as to how this crime was committed” [emphasis sic]).

{¶ 44} And in State v. Heyder, 10th Dist. Franklin No. 13AP-298, 2014-

Ohio-1066, the accused challenged his convictions relating to the robbery of a store

owner at knifepoint. The appellate court reversed the convictions and held that the

admission of a knife unrelated to the charges was prejudicial error, because it

“could suggest that [the accused] is a dangerous person who carries a knife and that

he could have used a knife, albeit a different knife, during the robbery.” Id. at ¶ 19.

{¶ 45} Here, as in Heyder, the trial court committed prejudicial error by

admitting evidence of five knives that the state knew were not used in connection

with McSween’s murder and that the prosecutor relied on to describe Thomas as an

owner of “full Rambo combat knives” with the intent to have the jury infer that

Thomas is a dangerous person of violent character.

{¶ 46} In contrast to overwhelming evidence cases like Neyland, Trimble,

and Bennett, the evidence here is circumstantial and the case against Thomas does

not contain overwhelming independent evidence of guilt. The state did not

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establish a motive for him to kill McSween—its suggestion that Thomas murdered

her because he was upset with his girlfriend over her failure to show up for a

Thanksgiving dinner and because McSween had declined his request to dance is

not supported by “reason and experience,” Tot v. United States, 319 U.S. 463, 467,

63 S.Ct. 1241, 87 L.Ed. 1519 (1943). The state did not recover the murder weapon

or obtain a confession, and Thomas had no significant criminal history. There is

no corroborating, probative, scientific, or forensic evidence to connect Thomas

with DNA found on the victim; the LabCorp results indicating that Thomas could

not be excluded as a contributor of the partial male DNA profiles found on

McSween’s underwear and on a vaginal swab are neither definitive nor do they

identify the contributor, especially given the high probability that other Caucasian

men—one in seven and one in 510, respectively—would not be excluded as the

source of those profiles, and as the testimony from Dr. LaBonne explains, DNA

can be attributed to a source only when there is less than a 1 in 30 billion probability

of a match. Also, no blood, DNA, hair, semen, saliva, or fingerprints belonging to

Thomas was found at the crime scene, on the victim’s belongings, or on or in the

burn barrel, and there is no evidence that he had any visible scratches, swelling, or

injuries immediately after the murder. Investigators did not find any of the victim’s

belongings in his possession, nor was her blood or DNA found on his clothes or

shoes. Jenkins did not identify Thomas as the person standing beside the burn

barrel on the morning of the killing, and even if he had, the backyard was accessible

to others and the state did not establish that the remnants of clothing and the purse

had been there for five months. And the strong odor of accelerant detected when

officers retrieved the items from the barrel has never been explained.

{¶ 47} In addition, as in Agatheas, admitting evidence of weapons

unconnected to the charged crimes confused the evidence regarding whether the

blue pocketknife was in fact the murder weapon, especially given the expert

testimony from Dr. Galita about the length of the blade on the murder weapon

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compared with the testimony describing the length of the blade on the blue

pocketknife.

{¶ 48} The state further inflamed the jury by presenting and describing

these five knives as “full Rambo combat knives” in a case involving a brutal

physical assault resulting in strangulation, a broken upper jaw and dentures,

multiple rapes, severe stab wounds, and a severed carotid artery and jugular vein

resulting in death, especially when none of these knives had anything to do with

McSween’s murder. It is apparent that the state offered this evidence to portray

Thomas as a person of violent character who had acted in conformity with his

propensity to kill—a use of evidence prohibited by Evid.R. 404(B) and R.C.

2945.59. This evidence was not only inadmissible but also highly prejudicial, and

there is a reasonable probability the trial court’s error in admitting it affected the

outcome of the trial. Therefore, reversal is necessary to prevent a manifest

miscarriage of justice. This proposition of law is well taken.

Conclusion

{¶ 49} Similar to the conclusion reached by the Supreme Court of Colorado

in Kaufman, 202 P.3d at 555, we recognize that possessing a knife collection has

nothing to do with being able to handle knives. Thomas did not carry any of the

knives presented to the jury on the night that McSween was brutally assaulted,

strangled, raped, and murdered. Here, the prosecution engaged in the conduct

Evid.R. 404(B) is designed to prevent by offering these weapons as evidence that

Thomas acted in conformity with a character trait for violence. Thus, the trial court

committed plain error in admitting evidence that Thomas owned other knives

unrelated to the murder. This evidence painted Thomas as someone with bad

character and allowed the jury to convict him on the basis that he acted in

conformity with it, violating Evid.R. 404(B). Accordingly, we reverse Thomas’s

convictions and sentence of death and remand this matter to the trial court for a new

trial in accordance with Lockhart v. Nelson, 488 U.S. 33, 42, 109 S.Ct. 285, 102

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L.Ed.2d 265 (1988), and as we did in State v. Brewer, 121 Ohio St.3d 202, 2009-

Ohio-593, 903 N.E.2d 284, ¶ 26.

Judgment reversed

and cause remanded.

O’CONNOR, C.J., and O’NEILL, J., concur.

FRENCH, J., concurs in judgment only.

FISCHER, J., dissents, with an opinion joined by KENNEDY and DEWINE, JJ.

_________________

FISCHER, J., dissenting.

{¶ 50} I acknowledge that it is a close question whether the trial court erred

in admitting the evidence of the five knives seized from the possessions of

appellant, Joseph L. Thomas. However, I believe that the knife evidence did not

have any appreciable impact on the jury’s verdict. Therefore, I would reject

Thomas’s plain-error argument and I respectfully dissent from the majority’s

judgment.

I. FACTUAL BACKGROUND

{¶ 51} Annie McSween’s body was found on the morning of November 26,

2010, the Friday after Thanksgiving. Her hyoid bone was fractured, consistent with

manual strangulation, but she died from blood loss caused by a stab wound to her

neck that severed her right carotid artery and right jugular vein.

{¶ 52} The autopsy revealed other nonlethal injuries that may have been

caused by a knife. McSween had at least five cut wounds to the front of her neck.

She had several defensive wounds on her hands. She had been stabbed five times

in the back, most likely after her death. The medical examiner opined that the

perpetrator used a single-edged knife with a four- to six-inch blade.

{¶ 53} Matthew Miller, a bar patron who played pool with Thomas on

Thanksgiving night, testified that he saw Thomas wearing a knife clipped to his

jeans on Thanksgiving night. Thomas denied carrying a knife at the bar that night.

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Thomas’s then girlfriend, Linda Roncalli, however, testified that Thomas always

had a blue knife clipped to his pants when they were together, that she last saw it

around December 2010 or January 2011, and that Thomas later told her that he had

lost it. Another ex-girlfriend testified that years earlier, Thomas always carried a

blue pocketknife clipped to his pants when they went to bars. She said that the

blade of that knife was three to four inches long.

II. LEGAL ANALYSIS

A. Thomas’s Knives

{¶ 54} In his tenth proposition of law, Thomas argues that the trial court

erred and violated his due-process rights by admitting evidence of the five seized

knives, which were not used in McSween’s murder or the vandalism discovered at

the scene. Because he did not object to this evidence at trial, we review for plain

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

¶ 80.

{¶ 55} Investigators never located the knife used in the murder or the

vandalism, nor did they find the blue clip-on knife Thomas was seen carrying the

night of the murder. They did, however, seize three folding knives and two

sheathed knives from Thomas’s belongings at his then residence and at Roncalli’s

home. The state concedes that none of these knives was used in the murder or the

vandalism. Yet it introduced all five knives at trial, along with photographs of each.

The trial court admitted the knives and photographs, and it allowed testimony

concerning them, without an objection by defense counsel.

{¶ 56} The state referred to the five seized knives during its closing

argument and at one point held one up to the jury. The prosecutor said:

You recall when Special Agent Kollar took the stand and he

showed you the knives that the police seized from the Marine

Parkway place where Joe was living. He showed you this knife.

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And I asked him, I said, how long is the blade of this knife? Now,

I’m not suggesting in any way this is the murder weapon, but I’m

holding this up to show you, he said this is a four inch blade. So, it

was a knife similar, with a blade similar that caused the death of Ann

McSween. Something about this big. Didn’t take much.

{¶ 57} And later, the prosecutor argued:

Who owns and [sic] knives? Joe Thomas. And I know that

there are people out there who collect knives, but he’s got six knives.

There’s that blue knife that we never found that people described *

* *. When you asked him in his interviews what about a knife and

clip? I don’t have one like that. I only have this—I have this little

red one I used to carry when I was going out to help my friend at a

power line. A little red one. Did you see some of the knives he has?

I mean, some of those are full Rambo combat knives. This man is

obviously fixed [sic] and likes knives.

B. Plain-Error Analysis

{¶ 58} To prevail on his plain-error claim, Thomas must show that an error

occurred, was plain (i.e., obvious), and affected his substantial rights. State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). If he makes this three-part

showing, the court then must decide whether we will, in our discretion, correct the

error. Id.

{¶ 59} This court first must determine whether the trial court’s admission

of the evidence of the seized knives was erroneous. Thomas currently contends

that the knife evidence was inadmissible because it was irrelevant to the state’s

charges and unfairly prejudicial to his defense. “ ‘Relevant evidence’ means

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evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Evid.R. 401. Under Evid.R. 404(B), evidence

of “other acts” may be relevant to prove “motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident,” but such evidence

“is not admissible to prove the character of a person in order to show action in

conformity therewith.” Irrelevant evidence is not admissible. Evid.R. 402.

1. Relevance of the evidence

{¶ 60} It is a close question whether the evidence of the five seized knives

was relevant and therefore admissible. This court addressed a similar question in

State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 102-103,

a capital case in which the trial court admitted numerous firearms that were found

in Trimble’s basement, even though those weapons had not been used in the

murders. Although we ultimately held that Trimble’s ownership of the firearms

was relevant under Evid.R. 404(B) to rebut his claim that he accidentally shot one

of his victims, we did so only after rejecting three other arguments made by the

state. Id. at ¶ 105-110. We held that weapons not linked to the murders were

irrelevant to proving that Trimble acted with prior calculation and design, that he

had access to firearms, or that he was familiar with using firearms. Id. at ¶ 106-

108.

{¶ 61} We again addressed this issue in State v. Neyland, 139 Ohio St.3d

353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 153, another capital case, in which the

trial court admitted photographs of weapons and ammunition unrelated to the

charged offenses. Applying our analysis in Trimble, we concluded that weapons

and ammunition unrelated to the crimes “had no relevance in proving Neyland’s

prior calculation and design as charged in the aggravated-murder offenses.”

Neyland at ¶ 157.

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{¶ 62} Other Ohio courts also have found that weapons unrelated to the

crimes at issue were irrelevant under Evid.R. 401 and 404(B). In State v. Bennett,

11th Dist. Ashtabula No. 2002-A-0020, 2005-Ohio-1567, the trial court admitted

evidence of several knives that belonged to a defendant accused of stabbing his

victim, even though they had not been used in the crime and the murder weapon

had not been found. Id. at ¶ 2, 11, 15, 18, and 37. The court of appeals held that

the trial court erred in admitting the knives because the defendant’s collection of

and access to knives was irrelevant. Id. at ¶ 45-46. Likewise, in State v. Heyder,

10th Dist. Franklin No. 13AP-298, 2014-Ohio-1066, the court of appeals reversed

an aggravated-robbery conviction (premised on the defendant’s possession of a

knife during the robbery) because the trial court admitted evidence of a knife that

was not used in the robbery.

{¶ 63} Here, the evidence of the five seized knives arguably may not have

made the existence of any consequential fact more or less probable, and the knives

arguably may not have served a relevant purpose under Evid.R. 404(B) for the

state’s case. As the lead opinion notes, none of the knives introduced into evidence

was the actual murder weapon.

{¶ 64} However, I disagree with the lead opinion’s determination that the

trial court’s admission of the knife evidence was obviously erroneous. Evid.R. 401

specifies that evidence is relevant if it has “any tendency to make the existence of

any fact” of consequence more or less probable. A witness testified that Thomas

carried a blue pocketknife with a blade that was three- to four-inches long. The

medical examiner who conducted the autopsy opined that the perpetrator used a

knife with a four- to six-inch blade. The blue pocketknife therefore could have

been the murder weapon, and the fact that investigators were able to find Thomas’s

other knives but could not find the blue pocketknife has a tendency to make

Thomas’s disposal of the blue knife more probable.

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{¶ 65} Based on these facts, it is not clear that Ohio law would have

supported an effort by Thomas to exclude evidence of the five seized knives. I

therefore do not join in the lead opinion’s determination that the trial court

obviously erred in admitting the knife evidence.

2. The alleged error did not affect Thomas’s substantial rights

{¶ 66} Even assuming arguendo that the knife evidence was obviously

irrelevant, to qualify as correctible plain error, the defect “must have affected

‘substantial rights,’ ” which “mean[s] that the trial court’s error must have affected

the outcome of the trial.” Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. On this

question, this court has long held that plain error will not be corrected “unless, but

for the error, the outcome of the trial clearly would have been otherwise.”

(Emphasis added.) State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph two of the syllabus. More recently, this court articulated a different

standard under which a defendant need only “demonstrate a reasonable probability

that the error resulted in prejudice.” (Emphasis sic.) State v. Rogers, 143 Ohio

St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, citing United States v.

Dominguez-Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

In doing so, however, we did not expressly overrule Long. Indeed, we have

continued to apply Long’s clearly-would-have-been-otherwise standard since

Rogers was decided. See State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75

N.E.3d 1185, ¶ 67, cert. denied, __ U.S. __, 137 S.Ct. 2217, 198 L.Ed.2d 662

(2017). I believe that our statement in Rogers did not fully reflect Ohio law and

that we should follow our holding in Long, which has applied for nearly four

decades. Thus, rather than ask, as the lead opinion does, whether there is a

reasonable probability that the trial court’s admission of the knife evidence affected

the outcome of the trial, I would determine, pursuant to Long, whether, but for the

admission of the knife evidence, the outcome of the trial clearly would have been

otherwise.

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{¶ 67} Thomas has not shown that the outcome of the trial clearly would

have been otherwise had the evidence of the seized knives been excluded. Rather

than solely portraying Thomas as a bad person, as the lead opinion suggests, the

knife evidence theoretically benefited Thomas. Defense counsel smartly exploited

the evidence for Thomas’s benefit during cross-examination of two witnesses by

confirming that McSween’s DNA was not on any of the knives and that the knives

were not used in the vandalism. And during closing argument, defense counsel

emphasized that none of the seized knives was the murder weapon by noting that

“all of Joe’s knives ha[d] been tested and tested clean, no DNA.” The state’s

inability to produce the murder weapon weighed positively in the defense’s favor,

and if the evidence of the seized knives had not been introduced, the defense would

have lost an opportunity to emphasize this fact. Therefore, it is not clear that the

trial would have resulted in a finding of not guilty if the court had excluded the

knife evidence.

{¶ 68} In support of its conclusion that the trial court’s admission of the

knife evidence affected Thomas’s substantial rights, the lead opinion states that the

case against Thomas did not contain overwhelming independent evidence of guilt.

For example, the lead opinion faults the state for failing to establish a motive for

Thomas to kill McSween; however, although Thomas denied it, evidence showed

that he had fought with his girlfriend that night and seemed to believe that she had

broken up with him. Evidence introduced by the state also suggested that he

unsuccessfully asked other women—including McSween—to dance at the bar that

night.

{¶ 69} In fact, substantial and compelling evidence supported the jury’s

verdict. It is undisputed that Thomas and McSween were both present at the bar

within two hours before the murder. Thomas was seen that night in possession of

a knife with a blade that was consistent in size with the medical examiner’s

description of the murder weapon. About an hour after McSween’s death, a

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SUPREME COURT OF OHIO

neighbor saw a man matching Thomas’s general description standing by a fire in a

barrel behind Thomas’s residence. Investigators later found McSween’s half-

burned clothes in that same barrel. In light of this evidence, I would conclude that

we cannot say that the evidence of the seized knives had any appreciable impact on

the jury’s verdict. All of this evidence establishes Thomas’s guilt independent of

the admitted knife evidence.

{¶ 70} It may be that the majority considers the admission of the evidence

of Thomas’s knives to be reversible error because his convictions are based on

circumstantial evidence. But this court has held that murder convictions “can rest

solely on circumstantial evidence,” even in capital cases. State v. Lott, 51 Ohio

St.3d 160, 167, 555 N.E.2d 293 (1990). We have also explained that

“[c]ircumstantial evidence and direct evidence inherently possess the same

probative value and therefore should be subjected to the same standard of proof.”

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the

syllabus. Even though the evidence supporting Thomas’s guilt in this case was

circumstantial, it is sufficient to support his convictions. The outcome of the trial

would not clearly have resulted in a finding of not guilty if the trial court had

excluded the knife evidence.

{¶ 71} Defense counsel used the same evidence that the lead opinion relies

upon to reverse the jury’s verdict after a trial that took approximately three weeks

to instead strategically enhance their client’s case, by showing that the seized knives

could not be linked to McSween and that they were not used to carry out the crimes.

This court should not—but the lead opinion does today—conclude that the

admission of that exact same evidence, tactically used by defense counsel to

affirmatively highlight the absence of any direct evidence—and particularly the

absence of a murder weapon that belonged to Thomas—is so clearly and highly

prejudicial as to constitute plain error.

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III. CONCLUSION

{¶ 72} Assuming arguendo that the trial court committed error in admitting

the evidence of the five seized knives, that error did not constitute plain error

because the trial would not clearly have resulted in a finding of not guilty if the

court had acted otherwise. I would reject Thomas’s plain-error claim based on the

admission of the knife evidence, and I would accordingly address the remaining

issues raised by Thomas in his appeal.

KENNEDY and DEWINE, JJ., concur in the foregoing opinion.

_________________

Charles E. Coulson, Lake County Prosecuting Attorney, and Alana A.

Rezaee, Charles F. Cichocki, Patrick J. Condon, and Karen A. Sheppert, Assistant

Prosecuting Attorneys, for appellee.

John P. Parker; and Law Office of Timothy Farrell Sweeney and Timothy

F. Sweeney, for appellant.

___________________

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