# State v. Ford (Slip Opinion) > Ohio Supreme Court · November 7, 2019 · 2019 Ohio 4539 URL: https://www.frixlaw.com/law-library/cases/4455533 ## Case - **Court:** Ohio Supreme Court - **Decided:** November 7, 2019 - **Citations:** 2019 Ohio 4539 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Stewart, J. - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4455533 ## Opinion text [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Ford, Slip Opinion No. 2019-Ohio-4539.] 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. 2019-OHIO-4539 THE STATE OF OHIO, APPELLEE, v. FORD, APPELLANT. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Ford, Slip Opinion No. 2019-Ohio-4539.] Criminal Law—Aggravated murder—Conviction affirmed—Death sentence vacated and cause remanded to trial court to properly determine whether defendant is intellectually disabled after considering the following three core elements: (1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70 or lower when adjusted for the standard error of measurement), (2) significant adaptive deficits in any of the three adaptive-skill sets (conceptual, social, and practical), and (3) the onset of these deficits while the defendant was a minor. (No. 2015-1309—Submitted January 8, 2019—Decided November 7, 2019.) APPEAL from the Court of Common Pleas of Summit County, No. 13-04-1008(A). __________________ SUPREME COURT OF OHIO STEWART, J. {¶ 1} This is an appeal of right from aggravated-murder convictions and a death sentence. A Summit County Common Pleas Court jury found appellant, Shawn Ford Jr., guilty of the aggravated murders of Jeffrey and Margaret Schobert and unanimously recommended a death sentence for Margaret’s murder. The trial court accepted the recommendation and sentenced Ford accordingly. {¶ 2} We affirm Ford’s convictions. However, we remand this case to the trial court to evaluate whether Ford is intellectually disabled in accordance with the criteria set forth in this opinion. I. Trial Evidence {¶ 3} Evidence introduced at trial showed that on March 23, 2013, Ford stabbed his girlfriend, Chelsea Schobert, after hitting her in the head with a brick. While Chelsea was in the hospital, her parents, Jeffrey and Margaret, were concerned for Chelsea’s safety and did not permit Ford to visit her. On April 2, Ford broke into the Schoberts’ home with Jamall Vaughn. Jeffrey was home and in bed. Margaret was at the hospital with Chelsea. Ford killed Jeffrey and then waited for Margaret to return home from the hospital. Margaret was killed when she came home. Ford stole Jeffrey’s car and other valuables from the Schoberts’ home. A. Chelsea’s Assault {¶ 4} Chelsea started dating Ford in August or September 2012. On Friday, March 22, 2013, Chelsea celebrated her 18th birthday with Ford, Zachary Keys, and Joshua Greathouse at Zachary’s Akron residence. They started drinking around 11:00 p.m., and everyone became highly intoxicated. {¶ 5} At some point, Ford and Chelsea went to a bedroom. According to Chelsea, Ford wanted to have sex, but she was not feeling well and asked him to wait. Ford pushed her onto the bed. Chelsea said “no” and got up. She told Ford, “I hate you.” Ford then hit Chelsea in the head. 2 January Term, 2019 {¶ 6} Zachary and Joshua were in the living room watching TV when Ford and Chelsea went into the bedroom. After 10 to 15 minutes, Zachary went to the bedroom after hearing a “thud.” He found Chelsea halfway off the bed with a gashed head. A brick with blood on it was nearby. Zachary asked Ford, “What the hell is going on here?” Ford left the bedroom. He returned with a knife and stabbed Chelsea in the neck and back. {¶ 7} Zachary stopped Ford from stabbing Chelsea again and told him to take her to the hospital. They took Chelsea to the car, and Ford drove her to the hospital. Chelsea suffered a spinal injury that left lasting effects. 1. Cover-up of the Assault {¶ 8} On Saturday, March 23, Ford told Zachary to tell the police that Chelsea had been assaulted by some guys at a party in Kent. He also told Joshua, “I want to make sure that you don’t talk about this.” {¶ 9} On March 25, Akron Detectives Bertina King and Richard Morrison went to the hospital to speak to Chelsea. Chelsea indicated that she did not know her attacker. The detectives also learned that there was a Global Positioning System (“GPS”) tracker on Chelsea’s car. The GPS showed that the car had been at Zachary’s residence on the night of March 22 and not in Kent. {¶ 10} Later on March 25, the detectives conducted a recorded interview with Ford. Ford stated that Chelsea indicated she had been attacked at a party in Kent. After being told about the GPS tracker, Ford told police that they were at Zachary’s house when Chelsea was attacked. Ford claimed that they were assaulted by someone Zachary owed money to and that the person hit Chelsea with a gun when she started cursing at him. {¶ 11} Ford, Zachary, and Chelsea each identified the same person, a man known as Ruiz, in a photo array. On March 27, the police arrested Ruiz and charged him with Chelsea’s assault. Ruiz denied his involvement and provided a good alibi. The police later determined that he was telling the truth. 3 SUPREME COURT OF OHIO 2. Ford Prohibited from Visiting Chelsea at the Hospital {¶ 12} Chelsea’s room was in a secured part of Akron Children’s Hospital, and she did not have a phone in her room. {¶ 13} Even though Ruiz had been arrested, the Schoberts did not permit Ford to visit Chelsea in the hospital. The Schoberts and law enforcement thought this was best for her safety. B. The Discovery of Jeffrey and Margaret Schobert {¶ 14} Around 8:00 or 9:00 p.m. on April 1, Jeffrey went home from the hospital while Margaret remained with Chelsea. Margaret left the hospital and went home at about 6:00 a.m. on April 2. Around 1:30 p.m. on April 2, Nickolas Gerring, a building contractor working on the Schoberts’ home, found Jeffrey’s and Margaret’s bodies in their bedroom. Gerring called 9-1-1. A New Franklin police officer responding to the scene found Jeffrey on the bed and Margaret on the floor next to it. Both of them had multiple, massive head wounds. A sledgehammer was lying on the bed next to Jeffrey. Jeffrey’s car was missing. C. The Murder Investigation Begins {¶ 15} George Staley from the Crime Scene Unit at the Ohio Bureau of Criminal Investigation (“BCI”) processed the crime scene. He found reddish stains—which later yielded positive results in a presumptive blood test—in the ground level of the house, near the doorway leading to the room between the kitchen and the garage. {¶ 16} Staley collected a knife that was lying on a living-room chair and a piece of what appeared to be part of a surgical glove that had a reddish stain on it. Other reddish stains were found on pieces of paper inside Margaret’s purse, which was on the dining-room table. {¶ 17} Police found blood spatter on the master-bedroom ceiling and on the dresser near the bed. The sledgehammer and a small piece of plastic on the bed were also collected. 4 January Term, 2019 {¶ 18} At the outset of the investigation, Detective Michael Hitchings, the lead investigator, learned that Chelsea had been attacked and that the Schoberts had been keeping Ford from seeing her in the hospital. {¶ 19} On the evening of April 2, Hitchings questioned Ford. Hitchings told Ford that the Schoberts had been killed. According to Hitchings, Ford reacted to the news with “a blank look.” Ford said he was not involved and did not know anything about the murders. But the police collected Ford’s Air Jordan shoes, because there appeared to be “some spots” on them. Ford was then taken to the Portage County jail where he was held on a warrant for lying about Chelsea’s assault. 1. Jeffrey’s Car and Other Evidence Found {¶ 20} On April 3, Hitchings learned that Ford had provided George Beech, a fellow inmate, with information about the murders, which Beech had passed on to the Portage County Sheriff. As a result of that information, Jeffrey’s car was found in Akron. Police officers searched the area around the car and found gloves, a knife, and a knit hat inside the storm drain in front of a home on Fried Street. {¶ 21} Hitchings spoke to a woman who lived at the house. He learned that her son was Ford’s friend. She let them search the house. The police encountered Jamall Vaughn in an upstairs bedroom. Hitchings also found a ceramic watch, later identified as Margaret’s, on the bedroom floor. 2. Ford Admits Killing the Schoberts {¶ 22} On the afternoon of April 3, Hitchings interviewed Ford again. Ford continued to deny involvement in the murders. Hitchings testified that Ford claimed he walked halfway there with Zachary and someone named Malik but turned around. Hitchings told Ford that the Schoberts’ and Chelsea’s blood was found on his Air Jordan shoes. Ford claimed that he had loaned his shoes to Zachary and then later got them back. According to Hitchings, Ford then admitted being at the Schoberts “one time and it was for the dad” but said he got upset and 5 SUPREME COURT OF OHIO left. Hitchings testified that Ford then said he was there for part of it but blamed the murders on Zachary and Malik, because they had the weapons. {¶ 23} That evening, Hitchings interviewed Vaughn. Following that interview, the police recovered cloth and latex gloves from a sewer drain on City View Avenue. {¶ 24} On April 4, Hitchings interviewed Ford again. He told Ford that Vaughn had been interviewed and discussed the evidence against Ford. According to Hitchings, Ford stated that it was Vaughn’s idea to do a “lick” at the Schoberts and that they walked from Akron to the Schoberts’ house. Hitchings testified that Ford blamed Vaughn for the murders at first. However, as the interview continued, Ford said that he was the only one that used the sledgehammer on Jeffrey and Margaret. But he said that Vaughn stabbed Jeffrey in the back. Ford also said that they took Jeffrey’s car. {¶ 25} On the evening of April 5, Ford made a recorded phone call from the Summit County jail to his brother. Hitchings testified that Ford discussed the murders during that call and indicated that he and Vaughn were the only two individuals involved in committing them. 3. Ford’s Statements to Heather Greathouse and Other Evidence {¶ 26} Heather Greathouse lived at her mother’s home in Akron with her brother, her boyfriend, and Ford. At trial, Heather testified that on the night before the murders, Ford told her he was going to “hit a lick,” which she said meant to break into a house and rob it. The next day, she found a pair of bloody pants on the floor and told her boyfriend to burn them. She testified that Ford brought back two rings and some money. Heather’s aunt threw one of the rings in a dumpster at the Family Dollar store. The police later recovered the burned jeans from Heather’s home and found the ring in the dumpster. {¶ 27} Heather also testified that Ford admitted stabbing Chelsea and hitting her in the head with a brick. Ford said he did it because “she wasn’t paying 6 January Term, 2019 attention to him.” According to Heather, Ford also said he would have killed Chelsea if Zachary had not stopped him. 4. Autopsy Results {¶ 28} Dr. Dorothy Dean, deputy medical examiner for Summit County, conducted the autopsies of Jeffrey and Margaret. She concluded that Jeffrey died from numerous blunt impacts to the head, having been struck at least 14 times. He was also stabbed three times, but none of those wounds were life-threatening. Margaret died from blunt impacts to the head, having been struck at least 19 times. Both victims’ injuries were consistent with being hit by a sledgehammer. 5. DNA and Forensic Evidence {¶ 29} Martin Lewis, a forensic scientist at BCI, testified that the small piece of plastic found on the Schoberts’ bed fit perfectly into the handle of the knife recovered from the storm drain on Fried Street. Lewis concluded that the plastic was at one time a piece of the larger knife handle. {¶ 30} Lindsey Pruneski, a forensic scientist at BCI, testified that stains on the sledgehammer, Ford’s shoes, the cloth and latex gloves found in the City View Avenue drain, and the knife and stocking cap found in the Fried Street drain tested positive in a presumptive blood test. A stain on the burned jeans also tested positive. {¶ 31} A forensic scientist in the DNA section at BCI stated that the DNA profiles from stains on Ford’s right shoe, the gloves found in the City View Avenue drain, the stocking cap, the knife blade and handle found in the Fried Street drain, and the burnt jeans were consistent with Jeffrey’s DNA profile. The forensic scientist determined that the expected frequency of occurrence of that DNA profile was 1 in 103.3 sextillion unrelated individuals. {¶ 32} The forensic scientist stated that the DNA profile from one of the stains on Ford’s left shoe was a mixture. The major DNA profile was consistent with Margaret’s, and the minor DNA profile was consistent with Ford’s. The 7 SUPREME COURT OF OHIO expected frequency of occurrence of Margaret’s DNA profile on Ford’s shoe was 1 in 3.163 quadrillion unrelated individuals. {¶ 33} The DNA profile on another stain on Ford’s left shoe was also a mixture. The major profile was consistent with Chelsea’s. The partial minor profile was consistent with Ford’s. The expected frequency of occurrence of Chelsea’s profile on Ford’s shoe was 1 in 1.712 quintillion unrelated individuals. {¶ 34} BCI’s forensic scientist stated that the DNA profiles from the stocking cap and the waistband of the burnt jeans were both mixtures consistent with contributions from Ford and two unknown individuals. The DNA profile on the outside of a light purple latex glove was also a mixture. The major profile was consistent with Ford. The expected frequency of occurrence of Ford’s DNA profile on the glove was 1 in 3.134 quintillion unrelated individuals. {¶ 35} Finally, the forensic scientist determined that Vaughn could not be excluded as the major source of DNA obtained from inside another latex glove. The expected frequency of occurrence of Vaughn’s partial major DNA profile inside the glove was 1 in 124.2 quintillion unrelated individuals. II. Procedural History {¶ 36} The state charged Ford with five counts of aggravated murder. In Count 1, he was charged with the aggravated murder of Jeffrey with prior calculation and design. In Count 2, he was charged with the aggravated murder of Jeffrey while committing an aggravated robbery. In Count 4, he was charged with the aggravated murder of Margaret with prior calculation and design, and in Count 5, with the aggravated murder of Margaret while committing an aggravated robbery. In Count 3, he was charged with the aggravated murder of Jeffrey or Margaret while committing aggravated burglary. {¶ 37} Each aggravated-murder count contained three death-penalty specifications: (1) committing or attempting to commit aggravated robbery as the principal offender in the commission of the aggravated murder or, if not the 8 January Term, 2019 principal offender, committing the aggravated murder with prior calculation and design, R.C. 2929.04(A)(7), (2) committing or attempting to commit aggravated burglary as the principal offender in the commission of the aggravated murder or, if not the principal offender, committing the aggravated murder with prior calculation and design, R.C. 2929.04(A)(7), and (3) a course of conduct involving multiple murders, R.C. 2929.04(A)(5). {¶ 38} In Counts 6 through 11, Ford was also charged with aggravated robbery, aggravated burglary, grand theft of a motor vehicle, petty theft, and the felonious assault of Chelsea. {¶ 39} Ford pled not guilty to all charges. The jury found Ford guilty of all counts and specifications. He was found guilty of the felony-murder specifications as to Counts 1, 2, 3, and 5 with a determination that he was the principal offender. And he was found guilty of the felony-murder specifications as to Count 4 with a determination that he committed the aggravated murder of Margaret with prior calculation and design. {¶ 40} The trial court merged for sentencing the aggravated-murder counts for Jeffrey’s death, and the jury returned a verdict of life imprisonment without the possibility of parole on Count 2. The trial court likewise merged for sentencing the aggravated-murder counts for Margaret’s death, and the jury returned a death sentence on Count 4. The trial judge sentenced Ford accordingly. Counts 6 through 10 were merged with the aggravated-murder counts. Ford was sentenced on Count 11 to eight years for the felonious assault of Chelsea. {¶ 41} Ford appeals his convictions and sentence and raises 23 propositions of law. We will address the issues in the approximate order that they arose during trial; however, we will first address the issue of whether the trial court properly determined that Ford is not intellectually disabled. 9 SUPREME COURT OF OHIO III. Intellectual Disability {¶ 42} In proposition of law No. III, Ford argues that the trial court erred in ruling that he is not intellectually disabled. This claim has merit, and we remand the matter to the trial court for further review to determine whether Ford is intellectually disabled. A. Standards for Assessing Intellectual Disability 1. Atkins and Lott {¶ 43} In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court of the United States held that the execution of intellectually disabled individuals violates the ban on cruel and unusual punishment found in the Eighth Amendment to the United States Constitution. {¶ 44} Atkins defined “mental retardation,” i.e. “intellectual disability,”1 by reference to two clinical definitions: one from the American Association on Mental Retardation’s Mental Retardation: Definition, Classification, and Systems of Support (9th Ed.1992) and the second from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th Ed.2000). But the Supreme Court left to the states “ ‘the task of developing appropriate ways to enforce’ ” the restriction on executing the intellectually disabled. Atkins at 317, quoting Ford v. Wainwright, 477 U.S. 399, 416, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). {¶ 45} In State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, we set forth a definition of intellectual disability for courts to follow. Lott required “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age of 18.” (Emphasis added.) Id. at ¶ 12. 1. The phrase “intellectual disability” will be used throughout this opinion including in place of the term “mental retardation.” 10 January Term, 2019 Lott also held that there is “a rebuttable presumption” that a defendant is not intellectually disabled if “his or her [intelligence quotient (“IQ”)] is above 70.” Id. 2. Diagnostic Standards {¶ 46} In 2010, the American Association on Intellectual and Developmental Disabilities (“AAIDD”) updated its medical diagnostic standards for defining intellectual disability in the 11th edition of its clinical manual, Intellectual Disability: Definition, Classification, and Systems of Supports (“AAIDD-11”). In 2013, the American Psychiatric Association updated its definition of intellectual disability in the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.2013) (“DSM-5”). Both updated definitions identified three core elements: (1) “intellectual-functioning deficits (indicated by an IQ score ‘approximately two standard deviations below the mean,’—i.e., a score of roughly 70—adjusted for ‘the standard error of measurement,’ AAIDD-11, at 27),” Moore v. Texas, __ U.S. __, 137 S.Ct. 1039, 1045, 197 L.Ed.2d 416 (2017) (“Moore I”), (2) significant adaptive-skill deficits in one or more activities of daily life, and (3) the onset of these deficits before the age of 18. AAIDD-11 at 27, DSM-5 at 33; see Hall v. Florida, 572 U.S. 701, 710, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). {¶ 47} In Hall and Moore I, the United States Supreme Court applied the updated medical diagnostic standards in striking down state-court decisions on intellectual disability. 3. Hall v. Florida {¶ 48} In Hall, the Supreme Court applied Atkins to invalidate a Florida law that precluded the presentation of additional evidence of intellectual disability when the offender scored above 70 on IQ tests. Hall at 723-724. Hall held that courts must consider the standard error of measurement (“SEM”), id. at 723, which reflects the imprecise nature of the IQ test and the fact that an individual’s IQ score may fluctuate for a variety of reasons, id. at 712-713. The Supreme Court instructed that states must “understand that an IQ test score represents a range rather than a 11 SUPREME COURT OF OHIO fixed number.” Id. at 723. Therefore, “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. 4. Moore v. Texas {¶ 49} In Moore I, __ U.S. at ___, 137 S.Ct. at 1053, 197 L.Ed.2d 416, the Supreme Court struck down a Texas Court of Criminal Appeals decision that relied on an outdated definition in assessing whether the defendant was intellectually disabled. {¶ 50} Moore claimed that he was intellectually disabled and therefore ineligible for the death penalty under the Eighth Amendment. Id. at __, 137 S.Ct. at 1045. A state habeas court agreed with him, applying a definition of “intellectual disability” based on then-current medical standards, including those for evaluating both IQ scores and adaptive-functioning measures. Id. at __, 137 S.Ct. at 1046. But the Texas Court of Criminal Appeals reversed, holding that Moore failed to prove significantly subaverage intellectual functioning because he had achieved IQ test scores of 74 and 78. Id. at __, 137 S.Ct. at 1047. Further, the Texas court concluded, Moore failed to prove “ ‘significant and related limitations in adaptive functioning’ ” based on additional restrictions imposed by Texas case law. Id. {¶ 51} The United States Supreme Court vacated the judgment and remanded the case. Moore I held that the Texas high court had “fastened” its intellectual-disability determination to an outdated definition of intellectual disability adopted in that state’s earlier court rulings and that this archaic definition “pervasively infected” the state-court analysis such that the decision of the state court could not stand. Id. at __, 137 S.Ct. at 1053. Moore I explained that the Texas court’s analysis of Moore’s IQ scores was “irreconcilable with Hall” because it failed to account for the SEM. Id. at ___, 137 S.Ct. at 1049. Moore had a score of 74 on one test, but when adjusted for the SEM, he had a range of 69 to 79. Id. 12 January Term, 2019 This meant that the lower end of the range fell below 70, and therefore, the Texas court was required under Hall to consider Moore’s adaptive functioning. Id. {¶ 52} Then, addressing the Texas court’s rejection of adaptive-functioning criteria, the Supreme Court expanded on Hall’s analysis, noting: “By rejecting the habeas court’s application of medical guidance and clinging to the standard it laid out in [an earlier case], the [Texas court] failed adequately to inform itself of the ‘medical community’s diagnostic framework * * *.’ ” (Emphasis added.) Moore I, __ U.S. at __, 137 S.Ct. at 1053, 197 L.Ed.2d 416, quoting Hall, 572 U.S. at 703, 134 S.Ct. 1986, 188 L.Ed.2d 1007. The Supreme Court remanded Moore’s case, and the Texas court was required to reconsider its decision in light of the new framework. Id. {¶ 53} In Moore I, the court noted that the DSM-5 stated that “deficits in only one of the three adaptive-skills domains suffice to show adaptive deficits.” (Emphasis added.) Id. at ___, 137 S.Ct. at 1050; see DSM-5 at 33, 38. The court also noted that “[i]n determining the significance of adaptive deficits, clinicians look to whether an individual’s adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical).” (Emphasis added.) Id. at ___, 137 S.Ct. at 1046; see AAIDD-11 at 43. {¶ 54} On remand, the Texas Court of Criminal Appeals reconsidered its decision that Moore did not have an intellectual disability but reached the same conclusion. The Supreme Court again reviewed the state court’s decision and reversed. See Moore v. Texas, __ U.S. __, 139 S.Ct. 666, __ L.Ed.2d __ (2019) (“Moore II”). {¶ 55} The Supreme Court emphasized that “the court of appeals again relied less upon adaptive deficits to which the trial court had referred than upon Moore’s apparent adaptive strengths.” (Emphasis sic.) Id. at __, 139 S.Ct. at 670. The Supreme Court faulted the state court for (1) emphasizing Moore’s capacity to 13 SUPREME COURT OF OHIO communicate, read, and write based in part on pro se papers Moore had filed in court without determining that Moore wrote the papers on his own, (2) relying upon adaptive improvements Moore made in prison, (3) concluding that Moore failed to show that his deficient social behavior was related to his mental disabilities rather than emotional problems, and (4) relying on “ ‘lay stereotypes of the intellectually disabled.’ ” Id. at ___, 139 S.Ct. at 670-672, quoting Moore I, __ U.S. __, 137 S.Ct. at 1052, 197 L.Ed.2d 416. Rather than remanding Moore’s case, the Supreme Court found that on the basis of the trial-court record, Moore had established that he is a person with intellectual disability. Id. at ___, 139 S.Ct. at 672. B. Relevant Factual Background 1. Pretrial Evaluations {¶ 56} Before trial, Dr. Robert Byrnes, a psychologist, examined Ford to determine whether he was competent to stand trial and whether he was intellectually disabled. {¶ 57} In his report, Dr. Byrnes stated that no records suggested that Ford has ever been diagnosed as intellectually disabled. In the summer of 2013, he administered the Wechsler Abbreviated Scale of Intelligence (“WASI”), and the results showed that Ford had a full-scale IQ score of 64. But Dr. Byrnes stated that “[t]hese results probably underestimate Mr. Ford’s intellectual ability because of variable attention and impulsive behavior during the testing.” Dr. Byrnes concluded that Ford was not intellectually disabled. {¶ 58} Dr. Arcangela Wood, a psychologist and director of a state-certified forensic center, also conducted a pretrial evaluation of Ford. She determined that Ford was sane at the time of the crimes. Dr. Wood administered the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”). Ford scored a full-scale IQ of 80 (95 percent confidence interval [“CI”] = 76-84), which placed his overall intellectual functioning in the “low average range of intelligence.” 14 January Term, 2019 2. Mitigation Testimony as to Ford’s Mental State {¶ 59} The defense hired Dr. Joy Stankowski, a psychiatrist, as a mitigation specialist. She interviewed Ford and examined his prior IQ test results but did not administer any new ones or determine whether he was intellectually disabled. During mitigation, she testified that “Shawn’s IQ over the years tested to be anywhere between 62 and 80.” {¶ 60} Following Dr. Stankowski’s mitigation testimony, defense counsel moved to dismiss the death specifications because Ford’s IQ scores ranged between 62 and 80. The trial court overruled the motion, but held a hearing to determine whether Ford was intellectually disabled, see Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, after the jury returned the death verdict. 3. Atkins Hearing {¶ 61} In preparation for the Atkins hearing, three experts evaluated whether Ford was intellectually disabled. Dr. Katie Connell, a forensic psychologist, was the court’s expert; Dr. James Karpawich, a clinical psychologist, was the defense expert; and Dr. Sylvia O’Bradovich, a forensic psychologist, was the state’s expert. a. Dr. Connell’s evaluation {¶ 62} Dr. Connell conducted a detailed evaluation of Ford’s school records. She reported that an evaluation conducted when Ford was six years old indicated that he did “not meet the mental retardation criteria.” The childhood evaluation attributed Ford’s learning difficulties to linguistic factors, found that he had a specific learning disability, and identified a speech or language impairment. {¶ 63} Dr. Connell reviewed Ford’s scores on five IQ tests: (1) Mental Processing Composite score of 78 on the Kaufman Assessment Battery for Children (“K-ABC”) in 2001 at age 6 or 7, (2) full-scale IQ score of 62 on the Wechsler Intelligence Scale for Children, Third Edition (“WISC-III”) in 2003 at age 9, (3) IQ composite score of 75 on the Kaufman Brief Intelligence Test, Second Edition 15 SUPREME COURT OF OHIO (“K-BIT2”) in 2006 at age 12, (4) full-scale IQ score of 64 on the WASI in 2013 at age 18, and (5) full-scale IQ score of 80 on the WAIS-IV in 2013 at age 19.2 {¶ 64} Dr. Connell did not deem the IQ score of 62 to be a reliable assessment of Ford’s intellectual functioning because the evaluator stated that he was extremely fidgety and distracted at the time of the test. Dr. Connell also discounted the IQ score of 64 because Dr. Byrnes had reported that “these results probably underestimate[d]” Ford’s intellectual ability. Dr. Connell also noted that Ford told her that during previous testing with Dr. Byrnes, “I don’t know if I tried or not. Very possible I didn’t try.” {¶ 65} Dr. Connell did not conduct additional IQ testing. She stated, “Available records provided three prior IQ test results, and even when considering measurement error and that one was an abbreviated measure, all were clearly above the range of scores found in individuals diagnosed with an intellectual disability.” (Emphasis added.) {¶ 66} Dr. Connell also discussed the “Flynn Effect.” She explained that “Flynn reported that mean IQ increases about .33 points per year and some researchers have suggested that any obtained IQ score should be adjusted [down] .33 points for each year the test was administered after the standardization was completed.” She stated that there continues to be debate about the Flynn Effect. Dr. Connell stated, “The Flynn effect would have the most relevance in terms of the K-ABC as this test was published in 1983 and administered to Mr. Ford in 2001. If a Flynn adjustment was applied to Mr. Ford’s prior K-ABC test results, his mental processing composite score would be approximately 72.” She added, “The Flynn effect would have little impact on his K-BIT2 score as this was published in 2004 and administered to Mr. Ford in 2006 or on his WAIS-IV score as this test 2. Dr. Connell rescored the WAIS-IV test results after noticing several errors in the raw test data. She stated that the corrected full-scale IQ score was 82. Dr. Connell added, “These obtained scores are consistent with Dr. Woods’s prior opinion that they fall in the low average range and are not consistent with an intellectual disability.” 16 January Term, 2019 was published in 2008 and administered to him in 2013.” Dr. Connell concluded that “even with considering the Flynn Effect, * * * none of Mr. Ford’s IQ test results are consistent with a diagnosis of intellectual disability.” {¶ 67} As to adaptive functioning, Dr. Connell reported that a formal adaptive-functioning measure was completed when Ford was administered the Vineland Adaptive Behavior Scales (“VBS”) in December 2003 when he was in third grade. Dr. Connell stated that these test results identified deficits in adaptive functioning. However, she noted that “the special education team determined that this was due to a specific learning disability and did not find that intellectual disability was the cause of his adaptive functioning limitations.” {¶ 68} Dr. Connell conducted the Vineland Adaptive Behavior Scales–II (“VBS-II”) test. She relied on information from her interviews and observations of Ford, an interview with his mother, and scores from his school achievement tests. Dr. Connell stated that none of the VBS-II scores indicated a significant deficit. {¶ 69} Dr. Connell used the standards set forth in the DSM-5 and the AAIDD-11 and concluded that Ford did not meet the diagnostic criteria for intellectual disability. b. Dr. Karpawich’s evaluation {¶ 70} Ford refused to participate in a psychological evaluation by Dr. Karpawich. Thus, his evaluation was based on a review of records and a meeting with Ford’s mother. {¶ 71} Dr. Karpawich reviewed Ford’s IQ test results, including his 2006 score of 75 on the K-BIT2. As to this score, Dr. Karpawich testified: With an IQ of 75, if you take into consideration the standard error of measurement to be a 90 percent confidence level, that is—actual IQ is between 69 and 83. So that would be a range rather than just 17 SUPREME COURT OF OHIO an IQ score by itself you need to take into consideration what is the range. Dr. Karpawich discounted the two IQ scores that fell below 70 because of Ford’s impulsive behavior and poor attention during both tests. {¶ 72} In summarizing his opinion as to a possible intellectual disability, Dr. Karpawich stated: “All [of Ford’s] IQ test results placed his intellectual functioning below average. However, he was not given the diagnosis of mental retardation/intellectual disability prior to the age of 18. His lowest IQ was 62 in 2003, but that evaluator noted that these results may ‘underestimate’ his ability.” He added that “[o]ther test scores during his childhood placed his intellectual function in the borderline range (although the standard error of measurement on some tests cautioned that his actual IQ could be at 70 or below).” {¶ 73} As to adaptive skills, Dr. Karpawich testified that Ford’s 2003 results on the VBS test were at “the cutoff between mild mental retardation and borderline intelligence.” During Dr. Karpawich’s evaluation, Ford’s mother completed an adaptive-behavior assessment. This standardized assessment of a person’s adaptive functioning is conducted by asking questions of an informant. Dr. Karpawich stated that Ford’s scores were below average in the areas of social behavior and social engagement and very poor for the social-adjustment factor. Dr. Karpawich testified: “[h]is scores were poor in the domains of conformity, trustworthiness, and disturbing interpersonal behavior” and “he’s always had significant issues and still in the area of what we call social behavior. * * * [T]hese things have been increasingly evident over the years with Shawn, and these would all be considered adaptive behaviors.” As to other adaptive behaviors, Ford tested “in the average range or above.” 18 January Term, 2019 {¶ 74} Dr. Karpawich stated that he applied the legal standard set forth in R.C. 5123.01(N)3 and Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, in diagnosing intellectual disability. He did not use the DSM standard, because “it has a lot of difficulties.” Dr. Karpawich concluded: “Based upon the available information, it is my opinion with reasonable scientific certainty, that there is insufficient information to conclude that the defendant fulfills the criteria for mental retardation/intellectual disability.” c. Dr. O’Bradovich’s evaluation {¶ 75} Dr. O’Bradovich’s office administered the WAIS-IV and Ford received an overall score of 79. He also received an overall composite score of 87 on the VBS-II, which is in the adequate range. Dr. O’Bradovich stated that Ford’s overall adaptive-behavior skills and his communication and socialization skills fell in the adequate range but his daily-living skills fell in the moderately low range. Dr. O’Bradovich determined that “[t]hese results are not indicative of significant deficits in adaptive functioning.” She concluded that Ford is not intellectually disabled. d. Decision and findings of the trial court {¶ 76} The trial court used the Lott test to determine whether Ford was intellectually disabled. Specifically, it evaluated whether the preponderance of the evidence demonstrates that Ford had “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, and (3) onset of these conditions before the age of 18.” (Emphasis added.) See Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 12. {¶ 77} The trial court determined that Ford’s IQ scores did not show that he had significantly subaverage intellectual functioning. The trial court agreed with 3. R.C. 5123.01(N) provides: “ ‘Intellectual disability’ means a disability characterized by having significantly subaverage general intellectual functioning existing concurrently with deficiencies in adaptive behavior, manifested during the developmental period.” 19 SUPREME COURT OF OHIO Dr. Connell’s findings that Ford’s IQ scores of 62 and 64 were not reliable measures of Ford’s intellectual functioning. {¶ 78} The trial court mentioned Dr. Karpawich’s finding that Ford’s IQ score of 75, when taking the SEM into consideration, resulted in an actual IQ score within a range between 69 and 83. However, the trial court did not discuss the significance of Dr. Karpawich’s finding that the low range of the IQ scores fell below 70. {¶ 79} As for adaptive deficits, the trial court stated: “All three experts who specifically evaluated defendant’s adaptive skills and functioning testified that while Mr. Ford had limits in certain areas of adaptive skills, he could not be characterized as having ‘significant limitations in two or more adaptive skills.’ ” (Emphasis added.) {¶ 80} The trial court concluded that Ford is not intellectually disabled, stating: “All of the evidence adduced at the Atkins hearing was consistent. None of the three experts was of the opinion that Mr. Ford has ever been intellectually disabled within the standards recognized by the American Psychiatric Association, the American Association on Intellectual and Developmental Disabilities, or State v. Lott [97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011].” C. Analysis 1. SEM {¶ 81} Ford argues that the trial court failed to account for the SEM when considering his IQ scores. Hall and Moore I require a trial court to consider the SEM when evaluating a defendant’s IQ scores. As Hall explains, “The SEM reflects the reality that an individual’s intellectual functioning cannot be reduced to a single numerical score.” Hall, 572 U.S. at 713, 134 S.Ct. 1986, 188 L.Ed.2d 1007. “[T]he SEM means that an individual’s score is best understood as a range of scores on either side of the recorded score.” Id. 20 January Term, 2019 {¶ 82} The trial court reviewed Ford’s reported IQ scores on the WISC-III, the K-BIT2, two WAIS-IV tests, and the WASI. These scores included a CI range. Its significance is that the SEM, “which varies by test, subgroup or age group, is used to quantify the variability that is attributable to the test itself and provides the basis for establishing a statistical CI within which the person’s true score is likely to fall.” (Emphasis sic.) AAIDD, User’s Guide to Accompany the 11th Edition of Intellectual Disability: Definition, Classification, and Systems of Supports 22 (11th Ed.2012). {¶ 83} Dr. Karpawich reported that Ford’s IQ score of 75 on the K-BIT2 had a 90 percent CI range of 69 to 83. As to these scores, the trial court stated, “Dr. Karpawich noted that although all of Mr. Ford’s IQ tests generated below average scores, his tests had never placed him in the intellectually disabled range.” (Footnote omitted.) {¶ 84} However, as discussed above, the United States Supreme Court has ruled that when test scores, adjusted for the test’s SEM, are below average, the scores are not enough to determine the question of disability. Moore I emphasizes additional scrutiny and “require[s] that courts continue the inquiry and consider other evidence of intellectual disability where an individual’s IQ score, adjusted for the test’s standard error, falls within the clinically established range for intellectual- functioning deficits.” Moore I, __ U.S. at __, 137 S.Ct. at 1050, 197 L.Ed.2d 416. The Supreme Court held that because Moore’s score yielded a range of 69 to 79, the state court “had to move on to consider Moore’s adaptive functioning.” Id. at ___, 137 S.Ct. at 1049. Here, the trial court erred in disregarding the SEM, thus failing to recognize the lower end of the range in determining whether Ford’s intellectual functioning was below average. {¶ 85} The concurring-dissenting opinion discounts Ford’s IQ scores because only one score established an IQ range of 69 to 83. It adds that this IQ test is “substantially outweighed” by the other tests and the unanimous view of all three 21 SUPREME COURT OF OHIO experts who determined that Ford is not intellectually disabled. Opinion concurring in part and dissenting in part at ¶ 453. However, Ford’s higher performance on other IQ tests did not allow the trial court to ignore an IQ score that falls at or below 70. See Moore at __, 137 S.Ct. at 1048, citing Hall, 572 U.S. at 721-724, 134 S.Ct. 1986, 188 L.Ed.2d 1007. As for the unanimity of expert opinion, the legal determination of intellectual disability is distinct from a medical diagnosis. “[T]his determination is informed by the views of medical experts,” but “[t]hese views do not dictate the court’s decision.” Hall at 721. 2. The Flynn Effect {¶ 86} Ford argues that the trial court erred when it failed to take the Flynn Effect into account when evaluating his IQ scores. {¶ 87} “The Flynn Effect * * * is a ‘ “generally recognized phenomenon” ’ in which the average IQ scores produced by any given IQ test tend to rise over time, often by approximately three points per ten years from the date the IQ test is initially standardized.” Black v. Carpenter, 866 F.3d 734, 738 (6th Cir.2017), fn. 1, quoting Ledford v. Head, N.D.Ga. No. 1:02-CV-1515-JEC 2008, WL 754486, *7, quoting testimony. Thus, “[t]he SEM is distinct from the Flynn Effect.” Id. at 739, fn. 2. {¶ 88} In discussing the Flynn Effect, Dr. Connell explained that it would have little impact on Ford’s IQ scores on the K-BIT2 and the WAIS-IV because these were newer versions of the test when Ford took them. Dr. Connell stated that the Flynn Effect would be most relevant to the K-ABC, because that test was published in 1983 and administered to Ford in 2001. She stated that his IQ score of 78 on the K-ABC would be approximately an IQ score of 72 if the Flynn Effect was applied. Dr. Connell concluded that “even with considering the Flynn Effect, * * * none of Mr. Ford’s IQ test results are consistent with a diagnosis of intellectual disability.” However, as stated above, there is no indication that Dr. Connell considered the SEM, which would have extended Ford’s IQ score on the K-ABC into a lower range. 22 January Term, 2019 {¶ 89} The trial court did not discuss the Flynn Effect when evaluating Ford’s IQ scores. Neither the Hall nor the Moore decisions mention the Flynn Effect or require its application. There is also no legal or scientific consensus that requires an across-the-board downward adjustment to offset the Flynn Effect. See Black at 746 (noting that Hall does not require that IQ scores be adjusted for the Flynn Effect); McManus v. Neal, 779 F.3d 634, 653 (7th Cir.2015) (nothing in Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, suggests that IQ scores must be adjusted by the Flynn Effect); Smith v. Duckworth, 824 F.3d 1233, 1246 (10th Cir.2016) (“Hall says nothing about the application of the Flynn Effect to IQ scores in evaluating a defendant’s intellectual disability”); but see Walker v. True, 399 F.3d 315, 322-323 (4th Cir.2005) (stating that on remand, the district court should consider the Flynn Effect evidence). {¶ 90} The AAIDD recommends that in “cases in which a test with aging norms is used as part of a diagnosis of [intellectual disability], a corrected Full Scale IQ upward of 3 points per decade for age of the norms is warranted.” AAIDD, User’s Guide at 23. Despite this recommendation, “Hall indicated that being informed by the medical community does not demand adherence to everything stated in the latest medical guide. But neither does our precedent license disregard of current medical standards.” Moore I, __ U.S. at __, 137 S.Ct. at 1049, 197 L.Ed.2d 416. {¶ 91} We have not held that trial courts must apply the Flynn Effect to adjust a defendant’s IQ score. But the Tenth District Court of Appeals has stated that “a trial court must consider evidence presented on the Flynn effect, but, consistent with its prerogative to determine the persuasiveness of the evidence, the trial court is not bound to, but may, conclude the Flynn effect is a factor in a defendant’s IQ score.” State v. Burke, 10th Dist. Franklin No. 04AP-1234, 2005- Ohio-7020, ¶ 51; see also State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 100 (based upon IQ scores and the Flynn Effect, trial court was 23 SUPREME COURT OF OHIO justified in inquiring into whether an evaluation of the defendant’s mental abilities was appropriate). {¶ 92} We hold that the trial court should have discussed evidence presented on the Flynn Effect, although it was in the trial court’s discretion whether to include it as a factor in the IQ scores. 3. The Currency of Lott {¶ 93} Finally, Ford argues that the trial court used an outdated test in finding that he did not have significant limitations in two or more adaptive skills. {¶ 94} In reviewing adaptive skills, the trial court stated that Dr. Karpawich noted that Ford has “always had ‘significant issues’ in the area of social behavior.” The trial court added: [Dr. Karpawich] indicated this area includes things like “being impulsive, not assuming responsibility, poor social judgment, not considering long-term consequences of his actions, reacting poorly when he becomes frustrated, not able to cope with stress, disrupting other people, acting out in the community. All these things have been increasingly evident over the years with Shawn, and these would all be considered adaptive behaviors.” Despite these findings, the trial court applied the test developed in Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, and determined that Ford “could not be characterized as having ‘significant limitations in two or more adaptive skills.’ ” {¶ 95} As discussed earlier, the current diagnostic standards require significant deficits in any of the three adaptive-skill sets (conceptual, social, and practical) in determining whether a defendant is intellectually disabled. See Moore I, __ U.S. at __, 137 S.Ct. at 1046, 197 L.Ed.2d 416; AAIDD-11 at 43; DSM-5 at 24 January Term, 2019 37. Thus, the trial court used the wrong standard in finding that Ford did have not significant limitations in his adaptive skills. {¶ 96} The concurring-dissenting opinion seeks to tweak Lott rather than overrule what is an improper standard for assessing intellectual disability. The opinion says that the evidence reflected the experts’ application of the current standards and that any problem with Lott was not prejudicial to Ford. Opinion concurring in part and dissenting in part at ¶ 451. In the context of a capital case, we decline to glean this finding from the record. Lott requires a finding of significant deficits in two or more adaptive-skill sets, but the current diagnostic standards require significant deficits in any of the three adaptive-skill sets. Dr. Karpawich applied the Lott test in conducting his diagnosis, and the trial court applied the Lott test in determining that Ford was not intellectually disabled. Under these circumstances, we have no confidence in the trial court’s determination based on its application of an improper standard. {¶ 97} Lott is outdated in requiring a finding of “significant limitations in two or more adaptive skills.” 97 Ohio St.3d 303, 2003-Ohio-6625, 779 N.E.2d 611, ¶ 12. Moreover, Lott’s holding that there is a rebuttable presumption that a defendant is not intellectually disabled if his or her IQ score is above 70 is no longer valid. IQ scores are imprecise and “should be read not as a single fixed number but as a range.” Hall, 572 U.S. at 712, 134 S.Ct. 1986, 188 L.Ed.2d 1007. {¶ 98} As it did in Lott, it is appropriate for this court to provide guidance to the trial court and other courts to apply going forward. The standard that was recently adopted by the Supreme Court of Kentucky in Woodall v. Commonwealth, 563 S.W.3d 1 (Ky.2018) (recognizing that Moore I likely invalidated Kentucky’s statutory definition of intellectual disability) provides such guidance. Id. at 6; see Ky.Rev.Stat.Ann. 532.130(2). {¶ 99} The Supreme Court of Kentucky stated: 25 SUPREME COURT OF OHIO In an attempt to provide guidance to courts confronting this issue, we shall attempt to fashion a rule. The U.S. Supreme Court in Moore favorably viewed what appears to be the “generally accepted, uncontroversial intellectual-disability diagnostic definition,” * * * “which identifies three core elements: (1) intellectual-functioning deficits (indicated by an IQ score ‘approximately two standard deviations below the mean’—i.e., a score of roughly 70—adjusted for the ‘standard error of measurement’ [AAIDD-11 at 27]; (2) adaptive deficits (‘the inability to learn basic skills and adjust behavior to changing circumstances,’ [Hall v. Florida, 572 U.S. ___, ___, 134 S.Ct. 1986, 1994, 188 L.Ed.2d 1007 (2014)]); and (3) the onset of these deficits while still a minor.” Woodall at 6-7, quoting Moore I, __ U.S. at __, 137 S.Ct. at 1045, 197 L.Ed.2d 4165; see also State v. Thurber, 308 Kan. 140, 420 P.3d 389, 450-452 (2018) (severing portions of Kansas statutes that ran afoul of Moore I and Hall). D. Conclusion {¶ 100} Accordingly, we remand this matter to the trial court to properly determine whether Ford is intellectually disabled. Lott’s holding that there is a rebuttable presumption that a defendant is not intellectually disabled if his or her IQ score is above 70 is no longer valid. For purposes of eligibility for the death penalty, a court determining whether a defendant is intellectually disabled must consider three core elements: (1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70 or lower when adjusted for the standard error of measurement, (2) significant adaptive deficits in any of the three adaptive-skill sets (conceptual, social, and practical), and (3) the onset of these deficits while the defendant was a 26 January Term, 2019 minor. The trial court may consider expert testimony and appoint experts if necessary in deciding this issue. The trial court shall make written findings and set forth its rationale for finding the defendant intellectually disabled or not intellectually disabled. IV. Remaining Issues {¶ 101} We now address Ford’s remaining propositions of law. For ease of discussion, we will address them out of turn. A. Joinder of Offenses at Trial {¶ 102} In proposition of law No. VII, Ford argues that the trial court erred by failing to grant the defense motion to sever the felonious-assault charge in Count 11 from the remaining charges. {¶ 103} “Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged * * * are of the same or similar character * * *.” Crim.R. 8(A). Crim.R. 8(A) also allows the joinder of offenses that “are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.” Permitting joinder “conserves resources by avoiding duplication inherent in multiple trials and minimizes the possibility of incongruous results that can occur in successive trials before different juries.” State v. Hamblin, 37 Ohio St.3d 153, 158, 524 N.E.2d 476 (1988). {¶ 104} “Notwithstanding the policy in favor of joinder,” Crim.R. 14 permits a defendant to request severance of the counts in an indictment “on the grounds that he or she is prejudiced by the joinder of multiple offenses.” State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 49. The defendant “has the burden of furnishing the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant’s right to a fair trial.” State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). But even 27 SUPREME COURT OF OHIO if the equities appear to support severance, the state can overcome a defendant’s claim of prejudicial joinder by showing either that (1) it could have introduced evidence of the joined offenses as other acts under Evid.R. 404(B) or (2) the “evidence of each crime joined at trial is simple and direct,” State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). {¶ 105} In his motion for severance, Ford argued that the offenses should be severed because there was no evidence that the incidents were part of a common scheme or plan or a course of criminal conduct and because the felonious assault and murders involved different dates, locations, and victims. The state argued that joinder was proper because the assault set a series of related events into motion and helped to prove Ford’s motive and intent to commit the murders. The trial court denied the motion, finding that “the events that occurred on March 23, 2013 were connected to the events which took place on April 2, 2013.” {¶ 106} We review a trial court’s ruling on a Crim.R. 14 motion for an abuse of discretion. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. A defendant who appeals the denial of relief bears a heavy burden: He must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant’s right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial. State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985), citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 28 January Term, 2019 “A decision is unreasonable if there is no sound reasoning process that would support that decision.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). {¶ 107} Ford fails to show that “no sound reasoning process” supported joinder, and thus he fails to establish an abuse of discretion. {¶ 108} First, it is reasonable for the trial court to agree with the state that the felonious assault of Chelsea set a series of related events into motion and helped to prove Ford’s motive and intent to commit the aggravated burglary and murders. Ford’s assault of Chelsea resulted in her hospitalization. Given the close proximity of the offenses and the relationship of the victims, Ford has failed to demonstrate that the trial court acted unreasonably. {¶ 109} Second, it was not unreasonable for the court to find that the evidence of the felonious assault would have been admissible under Evid.R. 404(B) as evidence of motive. Evid.R. 404(B) recognizes that evidence of other crimes may “be admissible for * * * proof of motive, opportunity, intent, preparation, [or] plan.” Evidence of the assault on Chelsea and her hospitalization was admissible as tending to show Ford’s motive, opportunity, and intent in committing the burglary and murders. Thus, even if these counts had been tried separately, the state would have been allowed to present evidence of other acts—the assault and hospitalization—to prove the opportunity and motive to commit the theft and ultimately the aggravated murders. See State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 34. {¶ 110} Third, the evidence of each crime was direct. Zachary, Joshua, Chelsea, King, and Heather testified mainly about Chelsea’s assault, hospitalization, and the subsequent investigation. The remainder of the testimony focused on the murders. Although the evidence presented to prove the murders was a bit more complex than the evidence presented to prove the assault, it was not confusing. See id. at ¶ 37; State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 29 SUPREME COURT OF OHIO N.E.3d 80, ¶ 64. Moreover, Ford admitted committing the assault and the murders. A jury is capable of segregating the proof of multiple charges when, as in this case, the evidence of each crime is uncomplicated. See State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 52. {¶ 111} Finally, Ford cites State v. Atkinson, 4 Ohio St.2d 19, 211 N.E.2d 665 (1965), in support of his argument that there was no overlap of evidence between the two counts and each count could have been tried without reference to the other. In Atkinson, the defendant was charged with one count of forging a check, one count of uttering the check, and one count of carrying a concealed weapon. Id. Because the checks and the concealed weapon, a blackjack, were found in the defendant’s car during a traffic stop, the prosecutor argued that the offenses arose out of the same investigation. Id. at 20. The trial court overruled the defendant’s objection to joinder. This court reversed, holding that there is “no proof or evidence * * * of any connection between the check counts and the blackjack count in the commission of any offense.” Id. at 21. Here, as discussed above, there is sound reasoning that connects the felonious assault of Chelsea and a week later, the aggravated burglary and the murder of her parents. It is reasonable that evidence of the felonious assault of Chelsea would have been admitted in the murder trial. More important, Ford has not met his burden to show that the trial court abused its discretion when it overruled his objection to joinder. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 166. {¶ 112} Based on the foregoing, we reject proposition of law No. VII. B. Limitations on Voir Dire {¶ 113} In proposition of law No. IV, Ford argues that the trial court improperly limited defense counsel from fully questioning prospective jurors about possible mitigating evidence during voir dire. He primarily argues that defense counsel should have been permitted to question prospective jurors about youth as a mitigating factor. 30 January Term, 2019 {¶ 114} We have repeatedly held that a trial court is under no obligation to allow counsel to question a prospective juror about specific mitigating factors. See State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 152; State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 59-60. {¶ 115} First, Ford argues that the trial court improperly sustained an objection to the questioning of prospective juror No. 47, when defense counsel asked: “Would you be willing to give meaningful consideration to things such as age?” However, the trial court had earlier asked the same question. During preliminary inquiry, the trial court informed juror No. 47 that jurors must meaningfully consider any mitigating evidence and mentioned that “one example of mitigating evidence might be the youth * * * of the defendant.” Juror No. 47 said she would be able to follow the law and give meaningful consideration to such evidence. Thus, we conclude that the trial court did not improperly disallow the question regarding age as it had already been asked. {¶ 116} Second, Ford complains about not being allowed to ask prospective juror No. 25 about whether he would give meaningful consideration to the defendant’s upbringing. The trial court initially sustained an objection to such questioning. But after defense counsel rephrased the question, juror No. 25 indicated that he would meaningfully consider such evidence. Accordingly, this claim lacks merit. {¶ 117} Third, Ford argues that the trial court erred by not allowing defense counsel to ask prospective juror No. 19: “Let’s say we introduced evidence that Shawn is a young guy, he was 18 when this happened. Does that have any effect on you?” The trial court sustained an objection to this question, stating: “The juror cannot be asked to engage in the process, at this point not having heard any evidence, or make commitments based on hypotheticals.” The trial court added: “The question at hand is whether the juror would meaningfully consider any mitigating evidence, whatever that may be. That’s the question.” 31 SUPREME COURT OF OHIO {¶ 118} The trial court did not err in precluding this question. See State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 64. Moreover, juror No. 19 was excused for other reasons before the trial-phase deliberations were completed. Thus, no possible error occurred. {¶ 119} Ford also argues that “in the limited circumstances” when defense counsel were permitted to mention age as a possible mitigating factor, they were “never allowed” to determine whether the jurors would consider it. But the voir dire questioning of the jurors who participated in the deliberations belies this claim. The trial court defined mitigation and informed each of the participating jurors that they must meaningfully consider any evidence that would mitigate against the imposition of the death penalty. The trial court and/or the defense counsel also informed each of those jurors that Ford’s youth was a mitigating factor and each of them indicated that they would consider such evidence. Therefore, this claim also lacks merit. {¶ 120} Based on the foregoing, we reject proposition of law No. IV. C. Voir Dire Misstatements {¶ 121} In proposition of law No. V, Ford argues that during voir dire, the trial court misstated the proper standard for voting on the death penalty and the prosecutor made various misstatements about the aggravating circumstances, mitigating evidence, and weighing process. 1. Trial Court’s Misstatements {¶ 122} Ford argues that, while individually questioning prospective jurors, the trial court advised them that they would have to unanimously find that the aggravating circumstances did not outweigh the mitigating factors before moving on to one of the life-sentence options. {¶ 123} During individual voir dire, the trial court informed three prospective jurors who later participated in deliberations that if the jury did not unanimously find beyond a reasonable doubt that the aggravating circumstances 32 January Term, 2019 outweigh the mitigating factors, the jury could not return a verdict for the death penalty. The trial court provided similar, but slightly different instructions to other prospective jurors who participated in deliberations. For example, prospective juror No. 39 was told: Now, if at the end of the mitigation part, the second trial, the jury decides beyond a reasonable doubt unanimously that the aggravating circumstances outweighed the mitigating factors or evidence, then the jury would be required to sign the verdict for the death penalty. *** Now, on the other hand, if * * * the jury decides * * * that the aggravating circumstances do not outweigh beyond a reasonable doubt the mitigating factors, then the jury could not impose or require a death penalty. (Emphasis added.) {¶ 124} Because Ford did not object to the trial court’s comments, we review these claims only for plain error. To prevail, Ford must show that an error occurred, that the error was plain, and that but for the error the outcome of the trial clearly would have been otherwise. State v. Mammone, 139 Ohio St.3d 467, 2014- Ohio-1942, 13 N.E.3d 1051, ¶ 69. {¶ 125} It is error to require a jury to unanimously reject a death verdict before considering one of the life-sentence options. State v. Brooks, 75 Ohio St.3d 148, 160, 661 N.E.2d 1030 (1996). But the trial court’s voir dire instructions did not do that. The instructions that the trial court gave prior to the jury’s mitigation- phase deliberations informed the jury that unanimity was not required before it considered life options. These mitigation-phase instructions cured any earlier 33 SUPREME COURT OF OHIO misunderstandings on this point during voir dire. See State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 237. We hold that no plain error occurred. 2. Prosecutor’s Misstatements {¶ 126} Ford argues that the prosecutor’s misstatements during voir dire resulted in a jury that could not properly consider mitigation and engage in the appropriate weighing process. However, except where noted, defense counsel failed to object to the prosecutor’s comments and thus forfeited all but plain error. {¶ 127} Ford argues that during voir dire the prosecutor improperly (1) referred to the aggravating circumstances as the “bad facts,” (2) called mitigation “background stuff,” (3) equated the weighing process to “how much it matters to you,” and (4) mentioned “I like that one” as a way to consider a mitigating factor and “[t]hat doesn’t mean a thing to me” as a way to reject it. {¶ 128} The prosecutor’s shorthand references to the aggravating circumstances, mitigating evidence, and the weighing process were casual and imprecise. But no plain error occurred. Moreover, any misstatements by the prosecutor were cured by the trial court’s instructions prior to the mitigation-phase deliberations. See Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 293; State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 147. {¶ 129} Defense counsel also objected during voir dire that the prosecutor referred to mitigation as an excuse. See State v. Getsy, 84 Ohio St.3d 180, 200, 702 N.E.2d 866 (1998) (mitigating factors do not justify or excuse crimes). But the trial court sustained objections to this line of questioning. Moreover, the trial court’s later instructions cured any possible error. Dean at ¶ 293. {¶ 130} Based on the foregoing, we reject proposition of law No. V. 34 January Term, 2019 D. Defense Jury Challenges {¶ 131} In proposition of law No. VI, Ford argues that the trial court erred by failing to excuse eight prospective jurors who were “obviously biased” and “predisposed to impose the death sentence.” {¶ 132} The United States Supreme Court and this court have long recognized that a defendant’s right to a fair and impartial jury extends to capital sentencing. Accordingly, “[a] prospective juror in a capital case may be excused for cause if his views on capital punishment would ‘ “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ ” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 38, quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). If a juror would “automatically vote for the death penalty in every case,” the juror cannot be fair and impartial because he or she “will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). “If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.” Id. {¶ 133} When a defendant challenges a prospective juror for cause, the trial court’s ruling “will not be disturbed on appeal unless it is manifestly arbitrary and unsupported by substantial testimony, so as to constitute an abuse of discretion.” State v. Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997). {¶ 134} We have also held that a “defendant in a criminal case cannot complain of error in the overruling of a challenge for cause if such ruling does not force him to exhaust his peremptory challenges.” State v. Eaton, 19 Ohio St.2d 145, 249 N.E.2d 897 (1969), paragraph one of the syllabus, death penalty vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750 (1972). Thus, “[i]f the trial court erroneously overrules a challenge for cause, the error is prejudicial 35 SUPREME COURT OF OHIO only if the accused eliminates the challenged venireman with a peremptory challenge and exhausts his peremptory challenges before the full jury is seated.” (Emphasis sic.) State v. Tyler, 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990). {¶ 135} Of the eight challenged prospective jurors, two (jurors Nos. 39 and 72) were seated and three (jurors Nos. 25, 36, and 45) were excused through peremptory challenges. The jury was seated before the remaining three prospective jurors (jurors Nos. 103, 106, and 134) could have been selected. Defense counsel used only five of Ford’s six peremptory challenges during jury selection. 1. Prospective Juror No. 39 {¶ 136} On the death-penalty questionnaire, juror No. 39 circled an answer stating that the death penalty was the “proper punishment in some cases, but not the proper punishment in some other cases.” She explained that “[e]very circumstance is different. And it depends on the evidence.” During individual voir dire, juror No. 39 stated that she believed in the death penalty, but added, “I don’t believe it should be handed down in every case.” She also indicated that she would meaningfully consider any mitigating evidence. {¶ 137} Juror No. 39 disclosed during questioning that her spouse was convicted of murder in Summit County in 2003 and was imprisoned. But she stated, “It is not going to affect my ability to be fair,” because “he was doing stuff he had no business doing.” She added, “And, to me, this—it sat him down to get himself together. That’s how I look at it.” Defense counsel challenged juror No. 39 for cause, arguing that her husband’s imprisonment “makes it difficult for her to be fair and impartial.” The trial court overruled this challenge. {¶ 138} Ford contends that juror No. 39 was an automatic-death-penalty juror because she stated, “I feel like if you are found guilty of a crime and that’s an option, then I agree with it.” He also argues that juror No. 39 should have been excused because her husband was in prison. We review this claim on the basis of 36 January Term, 2019 plain error, because Ford failed to exercise all of his peremptory challenges. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 72. {¶ 139} Juror No. 39 assured the court that she would follow the law and could consider a life sentence. Her responses on the death-penalty questionnaire showed that she took a moderate view of the death penalty. Juror No. 39 also said that her husband’s conviction and imprisonment would not influence her ability to be fair. See State v. Allen, 73 Ohio St.3d 626, 629, 653 N.E.2d 675 (1995) (prospective juror whose brother was a homicide victim was permitted to remain as a capital juror after assuring the court that she could set her feelings aside and remain impartial). We hold that the trial court committed no plain error by failing to excuse juror No. 39. 2. Prospective Juror No. 72 {¶ 140} On her death-penalty questionnaire, juror No. 72 stated, “I believe in the death penalty.” She also circled an answer stating that the death penalty was the “proper punishment in some cases, but not the proper punishment in some other cases.” During individual voir dire, juror No. 72 expressed her willingness to follow the law and meaningfully consider any mitigating evidence before concluding whether a death-penalty verdict should be returned. {¶ 141} First, Ford claims that the trial court erred by not excusing juror No. 72 because the state’s questioning diminished the value of mitigating evidence by calling it “excuses.” At trial, defense counsel argued that this juror was “irreparably harmed” by the prosecutor’s remarks, because they minimized any potential mitigating evidence. The trial court overruled the defense challenge, stating that juror No. 72 expressed her willingness to follow the law and meaningfully evaluate the mitigating evidence. The trial court added, “I don’t conclude that she has been tainted. The jury will be given instructions regarding this topic on multiple occasions.” Additionally, the trial court sustained objections to this line of questioning during voir dire. The trial court’s mitigation-phase 37 SUPREME COURT OF OHIO instructions also cured any earlier misstatements. Dean, 146 Ohio St.3d 106, 2015- Ohio-4347, 54 N.E.3d 80, at ¶ 293. {¶ 142} Second, Ford argues that juror No. 72 demonstrated that she was unduly biased by stating, “I think that there are some very sick individuals that can’t be rehabilitated.” Ford adds that when counsel asked a follow-up question suggesting that juror No. 72 would not be open to mitigation, she stated, “So what, is there a question there?” However, juror No. 72 stated that she would follow the law, would meaningfully consider mitigating evidence, and could impose a life sentence. “The fact that the defense counsel was able to elicit somewhat contradictory viewpoints from [this juror] during his examination does not, in and of itself, render the court’s judgment erroneous.” State v. Scott, 26 Ohio St.3d 92, 98, 497 N.E.2d 55 (1986) “[D]eference must be paid to the trial judge who sees and hears the juror.” Witt, 469 U.S. at 426, 105 S.Ct. 844, 83 L.Ed.2d 841. {¶ 143} Third, Ford argues that he was precluded from ascertaining juror No. 72’s views about the death penalty because he was not allowed to ask whether she believed in the notion that “if you take a life, you lose a life.” The trial court sustained an objection to such questioning, stating: “Well, the question is whether you could give meaningful consideration to any and all mitigating evidence.” Juror No. 72 replied that she could. {¶ 144} Crim.R. 24 and R.C. 2945.27 afford both the prosecution and defense the opportunity to conduct reasonable voir dire. Nevertheless, the scope of voir dire falls within the trial court’s sound discretion and varies depending on the circumstances of a given case. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 40. While restrictions on voir dire have generally been upheld, any limits on voir dire must be reasonable. Jackson, 107 Ohio St.3d 53, 2005-Ohio- 5981, 836 N.E.2d 1173, at ¶ 48. Moreover, we will not find prejudicial error in a trial court’s qualification of venirepersons as fair and impartial jurors unless the defendant can show a clear abuse of discretion. Id. 38 January Term, 2019 {¶ 145} The record belies Ford’s claim that the trial court unduly limited defense questioning about juror No. 72’s views about the death penalty. Defense counsel had earlier presented a hypothetical that mirrored the evidence in the Schoberts’ murders. Juror No. 72 was then asked if that was “a case where [she] would think that it’s automatic for the death penalty?” She responded that it was not necessarily an automatic-death-penalty case, because “there may be mitigating circumstances that * * * sway that decision.” Thus, we conclude that Ford fails to show that the trial court abused its discretion in sustaining the state’s objection to defense counsel’s later question about juror No. 72’s views. {¶ 146} Fourth, Ford invokes White v. Mitchell, 431 F.3d 517 (6th Cir.2005), in arguing that prospective juror No. 72’s contradictory statements show that she should have been excused for cause. Yet White is readily distinguishable. Despite cursory statements that she could follow the law, the juror in White repeatedly expressed doubt as to whether she could follow the law and stated that “she did not think it would be fair to the defendant for her to sit on the jury.” Id. at 541. White presented a “particularly egregious situation in which an individual desired to participate on a jury because she wanted to provide one of the twelve votes for death against a particular defendant.” Trimble v. Bobby, 804 F.3d 767, 779 (6th Cir.2015). The voir dire of prospective juror No. 72 in this case contains nothing comparable. {¶ 147} Ford also raises Wolfe v. Brigano, 232 F.3d 499 (6th Cir.2000), in arguing that the trial court erred by accepting the juror’s tentative promises to try to be fair and impartial. In Wolfe, one juror had an ongoing business relationship with the victim’s parents, another juror and her husband were friends with the victim’s parents whom they often visited, a third juror admitted that she would have difficulty putting aside what she had gleaned from media reports in deciding the case, and the fourth juror doubted that he would require the state to prove its case beyond a reasonable doubt. Id. at 502-503. The trial court overruled defense 39 SUPREME COURT OF OHIO challenges for cause against these jurors. The United States Court of Appeals for the Sixth Circuit reversed, holding that “it appear[ed] that the trial judge based his findings of impartiality exclusively upon each juror’s tentative statements that they would try to decide this case on the evidence presented at trial. Such statements, without more, are insufficient.” Id. at 503. {¶ 148} Unlike in Wolfe, the trial court here did not overrule a challenge for cause against juror No. 72 based only upon “tentative statements” that she would try to be fair and impartial. Juror No. 72 assured the court that she would follow the law before concluding whether a death-penalty verdict should be returned. She also knew little about the murders, and there is no evidence that she knew the victims or their family. Wolfe is dissimilar to the present case. {¶ 149} Finally, Ford argues that this court should not find waiver—that he loses the right to challenge a juror not being removed when he had a peremptory challenge he could have used to remove a juror—because there was only one peremptory challenge that he did not use. He claims that if he had used that peremptory challenge to remove either juror No. 39 or No. 72, he would still have been faced with one biased juror sitting on the case. But nothing shows that these jurors were unduly biased. Moreover, we have invoked the waiver rule in other cases in which defense counsel used five of their six peremptory challenges. See, e.g., State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2 864, ¶ 88. Thus, we also reject this claim here. {¶ 150} In conclusion, the trial court committed no plain error in overruling the challenge for bias against juror No. 72. 3. Prospective Juror Nos. 25, 36, and 45 {¶ 151} Of the remaining challenged jurors, the defense excused prospective juror Nos. 25, 36, and 45 with peremptory challenges. {¶ 152} Prospective juror No. 25 believed that the death penalty “fits” for someone like Jeffrey Dahmer. However, prospective juror No. 25 stated that he 40 January Term, 2019 would not automatically vote for the death penalty and would follow the court’s instructions before deciding on a sentence. See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 71. {¶ 153} Prospective juror No. 36 stated that the “circumstances of the crime should possibly dictate whether or not a death penalty sentence has occurred. For example, if it is a police officer, I think that’s automatic.” But prospective juror No. 36 stated that he did not believe the death penalty was appropriate in every case, he would follow the law, and he could impose a life sentence. Ford also argues that the trial court erred in failing to excuse prospective juror No. 36 because his answers during voir dire showed that he lacked the capability of doing the job as a juror. However, when “a prospective juror is being challenged for bias, ‘[d]eference must be paid to the trial judge who sees and hears the juror.’ ” State v. White, 82 Ohio St.3d 16, 20, 693 N.E.2d 772 (1998), quoting Witt, 469 U.S. at 426, 105 S.Ct. 844, 83 L.Ed.2d 841. {¶ 154} Prospective juror No. 45 believed that the death penalty is “one of the greatest deterrents to crime.” He added, “I believe if a man is found guilty, and beyond a shadow of a doubt, that he committed that crime with the intent to cause bodily harm or death, then the death penalty should be considered.” Under further questioning, prospective juror No. 45 told the court that he was not in favor of the death penalty in every case and would follow the court’s instructions. Ford challenged prospective juror No. 45, arguing that he should be excused because he has a “proof problem” and “the only time that death is not going to be appropriate punishment for him is when there is a problem with the State’s case in chief.” The trial court overruled the challenge. {¶ 155} Ford argues that prospective juror No. 45 should have been excused because of his confusion about the burden of proof. However, prospective juror No. 45 later clarified that he equated the term “beyond a shadow of a doubt” with “beyond a reasonable doubt.” But the trial court was able to see and hear 41 SUPREME COURT OF OHIO prospective juror No. 45, Witt at 426, and therefore had “the benefit of observing [the juror’s] demeanor and body language,” Williams, 79 Ohio St.3d at 8, 679 N.E.2d 646. Nothing in the record suggests that the trial court acted unreasonably by believing this juror’s statement that he would follow the instructions. {¶ 156} We hold that the trial court’s denial of automatic-death-penalty challenges of these prospective jurors did not constitute plain error. 4. Prospective Juror Nos. 103, 106, and 134 {¶ 157} Ford objects to the trial court’s failure to excuse prospective juror Nos. 103, 106, and 134, because he says they were automatic-death-penalty jurors. However, Ford could not have suffered any prejudice, because the jury was seated before any of them could have been selected as members of the jury. See Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 90. {¶ 158} Based on the foregoing, we reject proposition of law No. VI. E. Shackling {¶ 159} In proposition of law No. XV, Ford argues that the trial court erred when it ordered that he be shackled without holding a hearing. {¶ 160} No one should be tried while shackled, absent unusual circumstances. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 219, citing Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The use of restraints tends to erode the presumption of innocence that the justice system attaches to every defendant. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 79. But it is widely accepted that a prisoner may be shackled when there is a danger of violence or escape. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 82. The decision to require restraints is left to the sound discretion of the trial court, which is in a position to consider the defendant’s actions both inside and outside the courtroom as well as his demeanor while the court is in session. Id. 42 January Term, 2019 1. Rulings on Restraints {¶ 161} The trial court ordered that Ford be restrained at all proceedings because he had expressed a desire to hurt himself and in order to protect people in the courtroom in the event of a violent outburst. {¶ 162} In July 2013, Ford filed a pretrial motion requesting to appear at all proceedings without restraints. Later that month, the trial court overruled the motion, stating that Ford would be restrained at all proceedings but would “appear without visible restraints during his trial.” {¶ 163} After the trial court’s ruling on the motion to appear without restraints, Ford was placed on suicide watch at the jail. Dr. Byrnes, who examined Ford during a competency evaluation, sent a letter to the court in August stating that Ford’s “incarceration has been stressful. He has expressed suicidal ideation and suicidal precautions have been implemented in the jail.” At a pretrial hearing that month, Ford complained about being on suicide watch and forced to wear a padded gown. Defense counsel acknowledged that Ford mentioned “jumping over the railing after court and things like that.” When asked about these comments, Ford told the trial court, “I really will end up doing it. Like, if I got to be in [the mental-health unit] for * * * the rest of this week, I am going to do it. Like, I don’t care any more.” {¶ 164} At a pretrial hearing in November 2013, the trial court stated that “at any point where Mr. Ford could be seen by any member of a jury, he will be seen only in street clothes in accordance with the normal procedures. There will be restraints underneath those clothes, again, consistent with normal procedures.” {¶ 165} Nearly one year later, in October 2014, the trial court filed an updated ruling on Ford’s motion to appear without restraints, stating: 43 SUPREME COURT OF OHIO This case involves the alleged brutal and violent attacks by defendant on three different individuals, two of whom died as a result of the attacks. * * * * * * Given the violent nature of the crimes and the defendant expressing a desire to harm himself, the court found that extra security measures were necessary in this case. * * * *** As indicated in its July 26, 2013 journal entry, the defendant will be restrained during the jury trial of this case but his restraints will not be visible to the jury. The court finds that such restraints are necessary in part to prevent defendant from attempting suicide in the courthouse but also to protect spectators and others in the event of a violent outburst by defendant. 2. Analysis {¶ 166} Ford argues that the trial court should have conducted an evidentiary hearing before ordering him placed in restraints. But a hearing on the necessity of restraints was not required. See State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 108; Franklin, 97 Ohio St.3d 1, 2002-Ohio- 5304, 776 N.E.2d 26, at ¶ 82. Moreover, before the trial began, the trial court made findings that Ford’s threats to hurt himself and the violent nature of the crimes were the basis for ordering restraints. {¶ 167} Ford objects that the trial court’s order was unsupported by testimony from jail personnel or statements from defense counsel that Ford was a suicide risk or danger to others. However, the trial court had observed Ford’s demeanor in court. Dr. Byrnes reported that Ford expressed “suicidal ideation” and that “suicidal precautions [had] been implemented in the jail.” Defense counsel also acknowledged that Ford had made suicidal comments to them, and Ford told 44 January Term, 2019 the court that he meant those remarks. Thus, there was adequate information before the court to support its ruling. See Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 96. {¶ 168} Ford cites Neyland at ¶ 105 in arguing that the trial court should have considered lesser alternatives to the use of restraints. In Neyland, we held that the trial court should have considered whether there were lesser alternatives to the use of leg restraints to provide adequate courtroom security. Id. But we rejected the claim of improper shackling, stating: [T]he trial court used restraints that were not visible to the jury rather than shackles or other visible types of restraints. Even though the record is unclear, it appears that the trial court considered the presence of deputies and the use of leg restraints as the least form of restraint necessary to ensure courtroom security. (Emphasis sic.) Id. at ¶ 105. {¶ 169} Here, the trial court stated, “Given the violent nature of the crimes and the defendant expressing a desire to harm himself, the court found that extra security measures were necessary in this case.” (Emphasis added.) This implies that the trial court did consider lesser measures before ordering restraints. Even assuming that the trial court did not consider lesser measures, nothing in the record shows that the jurors saw Ford in restraints, so Ford suffered no prejudice. {¶ 170} Ford contends that it is not apparent from the record what kind of restraints he was wearing during the trial. Although the exact type of restraints were not identified, the trial court’s statements indicated that Ford would wear restraints underneath his clothing that were not visible to the jury. Nothing in the record shows that the jury ever observed Ford in restraints. Thus, we conclude that 45 SUPREME COURT OF OHIO he was not prejudiced. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 108. {¶ 171} Finally, Ford argues that it is unclear whether restraints limited his ability to interact with counsel during trial. However, the defense never asserted that restraints interfered with the attorney-client relationship. He has thus forfeited all but plain error. Id. at ¶ 106. Both of Ford’s hands were free throughout trial. Ford also does not complain that the restraints interfered with his ability to follow the proceedings and interact with counsel. See id. at ¶ 107. Accordingly, we conclude that no plain error occurred. {¶ 172} Based on the foregoing, we reject proposition of law No. XV. F. Admissibility of Defendant’s Statements to the Police {¶ 173} In proposition of law No. I, Ford argues that he was not properly advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that his statements were involuntary because of police coercion and the use of an informant to obtain them. He also argues that police testimony about information obtained from an informant violated his Sixth Amendment right to confrontation and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). 1. Factual Background {¶ 174} Before trial, Ford moved to suppress three statements that he made to the police on April 2, 3, and 4, 2013.4 At the suppression hearing, Detectives Morrison and Hitchings testified that they conducted videotaped interviews of Ford, and all three recordings were played during the hearing. At the completion of the hearing, the trial court denied Ford’s motion to suppress. 4. Ford was also interviewed about Chelsea’s attack. Ford was not advised of his Miranda rights before that interview because there was no indication at that time that Ford was involved in her assault. Ford does not challenge the voluntariness of those statements or the failure to read him his Miranda rights as to that interview. 46 January Term, 2019 a. April 2 interview {¶ 175} On April 2, 2013, Ford was interviewed at the Akron police department after the Schobert murders. Before questioning began, Morrison orally advised Ford of his Miranda rights as written on a pre-interview card, stating: You have the right to remain silent. Do you understand that? Anything you say can and will be used against you in a court of law. Do you understand that? You have the right to talk to a lawyer and have him or her present with you while you are being questioned. Do you understand that? If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. Do you understand that? You can decide anytime to exercise these rights and not answer any questions or make any statements. Do you understand that? Ford indicated that he understood each of these rights. {¶ 176} During the interview, Ford denied committing the murders. He stated that he had not been to the Schoberts’ house for two weeks. b. April 3 interview {¶ 177} On April 3, Hitchings was informed that Ford had given Beech, a fellow inmate, information about the whereabouts of evidence related to the murders. Based on that information, the police found Jeffrey’s car on an Akron street and gloves, a knife, and other evidence in a nearby storm drain. {¶ 178} Later that day, Hitchings and Morrison talked to Ford at the Portage County jail. Ford was in jail on a warrant for lying about Chelsea’s assault. Morrison advised Ford of his Miranda rights in the same manner as he had on the previous day. Once again, Ford indicated that he understood each of these rights. 47 SUPREME COURT OF OHIO {¶ 179} At the start of the interview, Morrison told Ford that they found the stolen car, that they had searched the sewers and found the gloves, and that they had his shoes with everybody’s blood on them. Ford replied that he did not kill anybody. Morrison told Ford that they already knew that Chelsea’s blood and the Schoberts’ blood were on his shoes. Morrison added, “It’s amazing when you know people at BCI how fast you can get this * * * tested.” {¶ 180} As Ford continued to deny the murders, Morrison said, “I was kind of hoping we could come here and get you ahead of the ball because right now the question is gonna come up very shortly, when they ask us how cooperative was he. Because when we go to grand jury, it’s gonna be a decision on agg. murders or death penalties.” {¶ 181} The police also told Ford that his conversations with Beech about the details of the murder had been videotaped. Morrison added that nothing the police were telling him was a lie. Ford denied that he told Beech that he committed the murders. Morrison then said, “You’re looking at automatic death penalty.” {¶ 182} Ford repeated that he did not kill the Schoberts. Morrison then said that they found his DNA on the latex gloves in the sewer. Ford said, “[T]his is life in jail.” Morrison responded, “You need to quit looking at it like there’s no possibility for you here. Because the possibility is here for you but it’s not gonna be there if you sit here and lie.” Hitchings then discussed the different life sentences for murder. {¶ 183} After more than 20 more minutes elapsed, Ford told Morrison that he broke into the Schoberts’ home with Zachary and Malik. He said that Zachary killed them both. He also stated that Zachary had had Jeffrey’s cell phone and used it to text Margaret. The text messages were used to gauge what time Margaret would return home. 48 January Term, 2019 c. April 4 interview {¶ 184} On April 4, the police reinterviewed Ford at the Portage County jail. Hitchings advised Ford of his Miranda rights in the same manner that Ford had been advised on the previous occasions. But Hitchings added, “Having those rights in mind that I’ve explained to you, do you wish to talk to us now?” Ford waived his rights and agreed to be interviewed. {¶ 185} During this interview, Ford admitted killing the Schoberts. 2. Analysis a. Sufficiency of Miranda warnings {¶ 186} A suspect in police custody “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda, 384 U.S. at 479, 86 S.Ct. 1602, 16 L.Ed.2d 694. {¶ 187} A suspect may then knowingly and intelligently waive these rights and agree to make a statement. Id. In the context of Miranda, the United States Supreme Court has explained the two aspects of waiver: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. 49 SUPREME COURT OF OHIO Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). {¶ 188} Ford argues that the police never secured a valid waiver of his Miranda rights, because they did not specifically ask him whether he wanted to waive his rights and speak to them before the interrogation began. However, a Miranda waiver need not be expressly made in order to be valid. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). A court may infer a waiver from a suspect’s behavior, viewed in light of the surrounding circumstances. See State v. Murphy, 91 Ohio St.3d 516, 518, 747 N.E.2d 765 (2001). {¶ 189} During the three days that he was questioned, Ford’s videotaped statements show that he was alert and sober when he was advised of his rights. He did not ask for a further explanation or protest that he did not understand his rights. He demonstrated his ability to express his thoughts and recall his actions. We are not persuaded that police used coercive tactics to obtain the waiver. See id. at 519. Finally, Ford’s argument does not apply to his third interview, because he was specifically asked whether he wanted to talk to the police after being advised of his rights. {¶ 190} Although not raised at the suppression hearing, the record shows that Ford’s IQ scores are low. However, deficient intelligence is but one factor in the totality of the circumstances that must be considered in determining the voluntariness of a confession. While a defendant’s mental condition is a significant factor in the voluntariness calculus, it “does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.’ ” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). 50 January Term, 2019 {¶ 191} We conclude that Ford was capable of voluntarily waiving his rights despite his low intelligence. See State v. Lynch, 98 Ohio St.3d 514, 2003- Ohio-2284, 787 N.E.2d 1185, ¶ 56 (voluntary confession from an accused with an IQ score of 72 and no records of a major mental disorder); State v. Bays, 87 Ohio St.3d 15, 23, 716 N.E.2d 1126 (1999) (voluntary confession from an accused with an IQ score of 71, but who had done well in school and finished the tenth grade); State v. Dailey, 53 Ohio St.3d 88, 91-92, 559 N.E.2d 459 (1990) (voluntary confession from an 18-year-old accused with an IQ score of 71). {¶ 192} Based upon the totality of the circumstances, we hold that Ford validly waived his Miranda rights. b. Voluntariness {¶ 193} Ford argues that his police statements were involuntary because of police coercion and the use of an informant to obtain them. (1) Police coercion {¶ 194} If a defendant challenges a confession as involuntary, the state must prove a knowing, intelligent, and voluntary waiver by a preponderance of evidence. See Miranda, 384 U.S. at 475, 86 S.Ct. 1602, 16 L.Ed.2d 694; Connelly, 479 U.S. at 168-169, 107 S.Ct. 515, 93 L.Ed.2d 473. Voluntariness of a confession is determined by “the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, death penalty vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). However, a waiver will not be deemed to be involuntary “unless there is evidence of police coercion, such as physical abuse, threats, or deprivation of food, medical treatment, or sleep.” (Emphasis sic.) State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 35. 51 SUPREME COURT OF OHIO {¶ 195} First, Ford argues that his statements were involuntarily obtained because the detectives lied to him about the evidence. The detectives did mislead Ford by telling him that BCI had tested the evidence and identified his DNA on the shoes and gloves and that his conversations with Beech had been recorded. {¶ 196} The tactic of lying to a suspect about the evidence is not in itself sufficient to render a confession involuntary. See Frazier v. Cupp, 394 U.S. 731, 737-739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (false statement that a codefendant had confessed did not make statement involuntary); Ledbetter v. Edwards, 35 F.3d 1062, 1066, 1070 (6th Cir.1994) (false statements that defendant’s fingerprints had been found at crime scene and that the victim and two witnesses had identified him did not render confession involuntary); Bays, 87 Ohio St.3d at 22-23, 716 N.E.2d 1126 (misleading defendant about the strength of the evidence against him did not make confession involuntary). However, the fact that the detectives misrepresented the evidence is a relevant factor in evaluating whether the totality of the circumstances renders the confession involuntary. Frazier at 739. {¶ 197} Second, Ford contends that the detectives coerced his confession by telling him that they would be asked to comment on Ford’s cooperativeness when the case was presented to the grand jury, because it would be a factor in deciding whether to charge him with aggravated murder or the death penalty. {¶ 198} “Officers may discuss the advantages of telling the truth, advise suspects that cooperation will be considered, or even suggest that a court may be lenient with a truthful defendant.” State v. Belton, 149 Ohio St.3d 165, 2016-Ohio- 1581, 74 N.E.3d 319, ¶ 111, citing Edwards, 49 Ohio St.2d at 41, 358 N.E.2d 1051. And “[a]dmonitions to tell the truth are considered to be neither threats nor promises.” State v. Loza, 71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994); see also State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 29. Finally, it is not unduly coercive for a law-enforcement officer to mention potential punishments. See State v. Western, 2015-Ohio-627, 29 N.E.3d 245, ¶ 38 (2d Dist.); 52 January Term, 2019 compare State v. Robinson, 9th Dist. Summit No. 16766, 1995 WL 9424, *4 (“While a correct statement of the law may not render a confession involuntary, a misstatement of the law may cause such a confession to be involuntary”). {¶ 199} Here, contrary to Ford’s claims, the detectives did not promise leniency if he confessed or threaten death if he did not. Instead, detectives presented him with the opportunity to clarify the facts of the case, so that the prosecutor could better determine whether an aggravated-murder charge was proper. See Western at ¶ 42 and 46. Moreover, detectives did not misstate the law in telling him that the death penalty was a potential punishment for the murders. See Bays, 87 Ohio St.3d at 23, 716 N.E.2d 1126. {¶ 200} Third, Ford complains that police told him that the possibility of a lesser sentence was available for him but not if he continued to lie to them. Hitchings was admonishing Ford simply to tell the truth, and such comments were not unduly coercive. See State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895 (1989); State v. Knight, 2d Dist. Clark No. 04-CA-35, 2008-Ohio-4926, ¶ 111 (officer’s assertion to a suspect that he or she is lying or that the suspect would not have another chance to tell his or her side of the story does not automatically render a confession involuntary). {¶ 201} Fourth, Ford complains that officers told him that he was looking at an “automatic” death penalty. Under R.C. 2929.03(D)(2) and (3), the death penalty is never automatic. See generally Woodson v. North Carolina, 428 U.S. 280, 301, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). A brief reference to the death penalty does not, by itself, render a subsequent confession involuntary when the statement merely illustrates the seriousness of the crime and the defendant’s will was not overborne as a result of the statement. State v. Garner, 260 Neb. 41, 50, 614 N.W.2d 319 (2000). The Supreme Court of California has held that “[a] constitutional violation arises ‘only where the confession results directly from the threat [capital] punishment will be imposed if the suspect is uncooperative, coupled 53 SUPREME COURT OF OHIO with a “promise [of] leniency in exchange for the suspect’s cooperation.” ’ ” (Emphasis added and brackets sic.) People v. Winbush, 2 Cal.5th 402, 453, 213 Cal.Rptr.3d 1, 387 P.3d 1187 (2017), quoting People v. Holloway, 33 Cal.4th 96, 116, 14 Cal.Rptr.3d 212, 91 P.3d 164 (2004), quoting People v. Ray, 13 Cal.4th 313, 340, 52 Cal.Rptr.2d 296, 914 P.2d 846 (1996). {¶ 202} After reviewing the video of Ford’s interview, we are not persuaded that the detectives’ references to the death penalty were threats or that their remarks resulted in Ford’s will being overborne. First, Ford continued to deny the murders after the “automatic death penalty” comment. The video shows that other officers consistently encouraged Ford to tell the truth and to be truthful about his involvement or any details he knew about the murders. Ford responded, “This is life in jail,” and later added, “[M]urder ain’t no way around it, that’s life regardless.” In other words, Ford expressed concern about life sentences and not the death penalty. Thus, we hold that the “automatic death penalty” comment did not render Ford’s subsequent confession involuntary. {¶ 203} As a final matter, Ford cites various cases to show that his statements were involuntary. However, these cases are readily distinguishable. See Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (suspect told he would be allowed to call his wife only if he cooperated and gave the police a statement); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (suspect questioned while in intensive-care unit, encumbered by tubes, needles, and breathing apparatus); Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (suspect threatened with the removal of state financial aid and of her children if she did not cooperate); United States v. Tingle, 658 F.2d 1332 (9th Cir.1981) (suspect coerced into confessing by threats that she would not see her child for a long time if she did not cooperate); Williams v. Brewer, 509 F.2d 227 (8th Cir.1974) (telling defendant of need to locate victim’s body and give her a Christian burial, after defendant’s attorney told law enforcement defendant should 54 January Term, 2019 not be questioned while he was being transported, violated right to counsel and rendered statements involuntary), aff’d, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). {¶ 204} Based on the totality of the circumstances, we conclude that Ford’s police statements were voluntarily made. (2) Ford’s statements to jailhouse informant {¶ 205} Ford argues that his statements were involuntary because they were coerced through the use of a government informant. {¶ 206} Ford and Beech were housed in the Portage County jail together. Beech was described as a “frequent visitor” in jail and was there on a burglary charge. Lt. Gregory Johnson, a Portage County Deputy Sheriff, testified that he was informed by a corrections officer on April 3 that Beech wanted to talk to him. Johnson testified that Beech told him, “There is an inmate I am housed with that’s been talking to me, and I think he was involved in a murder.” Beech then provided information that linked Ford to the Schobert murders. {¶ 207} Prior to speaking to Beech, Johnson testified that he had no information about Ford other than what he read in the Akron Beacon Journal. He stated that Beech had not been asked to provide information about Ford. After providing the information, Beech indicated to Johnson that “he would appreciate if [Johnson] could make sure that the Court knew of his * * * cooperation, that he had come forward on his own.” Johnson told Beech that he could not make any promises to him other than making sure that the prosecution and his attorney knew about his assistance. Johnson added that Beech had never been a source of information about other cases. {¶ 208} Hitchings testified that detectives never called any officials in Portage County about Ford or the Schobert murder case before being informed about Beech’s information. He added that he was not aware of any promises or inducements to obtain Beech’s assistance. Beech did not testify at trial. 55 SUPREME COURT OF OHIO {¶ 209} In Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473, the Supreme Court addressed the constitutional voluntariness of a statement made under circumstances not requiring Miranda warnings. The court held that coercive police activity is a necessary predicate to the finding that a statement is not “voluntary” within the meaning of the due-process clause. Id. at 167. Thus, the voluntariness analysis must focus on the crucial element of police overreaching. See People v. Manning, 182 Ill.2d 193, 208, 695 N.E.2d 423 (1998). {¶ 210} Nothing in the record shows that Beech was acting as a state agent when talking to Ford. Indeed, during the suppression hearing, defense counsel acknowledged that they had no information showing that Beech was an agent. And although Beech may have been seeking more lenient treatment in his own case, he requested these favors only after repeating Ford’s statements to the police. See Bell v. Bell, 512 F.3d 223, 233-234 (6th Cir.2008) (fact that an informant desired favorable treatment in return for his testimony does not, standing alone, demonstrate the existence of an implied agreement). There is no evidence of police overreaching. {¶ 211} We also reject Ford’s claim that Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), shows that his statements to Beech were involuntary. In Fulminante, the state used an inmate, who was a paid FBI informant, to elicit a confession from the defendant that was used to convict him. Id. at 283. On appeal, the Arizona Supreme Court had held that Fulminante’s confession was coerced. Id. at 284. The United States Supreme Court agreed with this conclusion. Id. at 287. Unlike in Fulminante, however, Beech was not acting as a state agent when talking to Ford. Accordingly, we hold that Ford’s statements to Beech were voluntary. c. Confrontation Clause {¶ 212} Ford argues that the trial court erred in permitting Hitchings to testify about Johnson’s conversation with Beech, because it was inadmissible 56 January Term, 2019 hearsay and violated his Sixth Amendment right to confrontation. However, Ford failed to object to Hitchings’s testimony at trial and thus has forfeited all but plain error. {¶ 213} Ford complains about the following segment of Hitchings’s testimony: [HITCHINGS]: We received a phone call from Lieutenant Greg Johnson from the Portage County Sheriff’s Office. He is in charge of their Detective Bureau. [MR. LOPRINZI (prosecutor)]: All right. And in regards to him calling, what was it that he was calling about? [HITCHINGS]: I mean, he had called and relayed some information to us. And as a result of some information, we ended up checking some areas in Akron, and we ended up locating a—our stolen vehicle. {¶ 214} Ford invokes Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, in arguing that this testimony violated the Confrontation Clause, found in the Sixth Amendment to the United States Constitution. In Crawford, the Supreme Court held that the admission of testimonial statements made by a witness who did not appear at trial violates the Confrontation Clause, unless the witness “was unavailable to testify, and the defendant had had a prior opportunity for cross- examination.” Id. at 53-54. Only testimonial hearsay implicates the Confrontation Clause. See id. at 59, fn. 9; State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio- 5735, 70 N.E.3d 508, ¶ 186. {¶ 215} Hitchings’s testimony was not hearsay because he was explaining the next investigative step in the case. Testimony offered to explain police conduct is admissible as nonhearsay if it satisfies three criteria: (1) “the conduct to be 57 SUPREME COURT OF OHIO explained [is] relevant, equivocal, and contemporaneous with the statements,” (2) the probative value of the statements is not substantially outweighed by the danger of undue prejudice, and (3) “the statements cannot connect the accused with the crimes charged.” State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. Hitchings’s testimony met these criteria. The testimony was relevant in explaining the next investigative step in the search for Jeffrey’s vehicle, it did not connect Ford with the crimes, and it was not unduly prejudicial. Accordingly, Hitchings’s testimony did not implicate Ford’s confrontation rights or violate Crawford. We hold that no plain error occurred. {¶ 216} Based on the foregoing, we reject proposition of law No. I. G. Impeachment of Heather Greathouse {¶ 217} In proposition of law No. X, Ford argues that the state improperly impeached Heather Greathouse with her prior recorded statement and improperly played that statement for the jury’s consideration. 1. Factual Background {¶ 218} Heather testified that in early April 2013, Ford was living with her in Akron. Heather did “not really” talk to Ford about Chelsea’s assault, and he never indicated any involvement in causing her injuries. Heather did not remember Ford being home on the evening of April 1, but she said Ford came home the next day. Heather indicated that she did “not really” talk to Ford that day and said that Ford never talked to her about what happened to the Schoberts. {¶ 219} Heather acknowledged giving a statement to detectives in April 2013 and said it was truthful when she made it. But she did not remember whether she talked to Ford about the Schoberts before making her statement. The prosecutor then asked the following questions: [MR. LOPRINZI (prosecutor)]: Do you remember reviewing your interview last night from back in April? 58 January Term, 2019 [HEATHER]: Yes. [LOPRINZI]: Okay. And do you recall telling the detectives that you had a conversation with Mr. Ford about the Schoberts? [HEATHER]: Yes. [LOPRINZI]: All right. What conversation did you have with * * * Mr. Ford about the Schoberts back in—prior to their death? [HEATHER]: I have no clue. {¶ 220} Outside the jury’s presence, the prosecutor stated his intention to impeach Heather, because he was “surprised” and “[i]t is a material issue in the case.” The prosecutor told the court that Heather informed detectives that “she had a conversation with Mr. Ford in which he had talked about killing [Chelsea’s] parents ever since Chelsea was injured because they were starting to piece things together.” The prosecutor added that detectives had talked to Heather the previous day and played her recorded interview to her and that she recalled what she said in her statement. Defense counsel objected, stating that Heather’s lack of memory was not grounds for turning her into a hostile witness. The trial court overruled that objection. {¶ 221} While still outside the jury’s presence, defense counsel objected that the prosecutors played the recorded interview in the courtroom where it was plainly audible to everyone. The defense stated that “it was unquestionably heard by Ms. Greathouse” and “this witness has now been irreparably tainted by having an opportunity to hear * * * a significant segment of her interview.” The defense argued that she was now an incompetent witness. The prosecutor responded that Heather had listened to the recording the previous night and it did not matter if she heard it again. Moreover, the prosecutor did not think Heather heard the recording 59 SUPREME COURT OF OHIO when it was played in court, because “I couldn’t hear it myself.” The trial court overruled the defense objection. {¶ 222} The prosecutor told the court that he was amenable to trying to refresh Heather’s recollection before proceeding to impeach her. But defense counsel objected that the prosecutor had improperly refreshed her recollection outside the presence of counsel and the court. Heather told the court that she heard only “bits and pieces” of the recording that was played in the courtroom and that what she heard did not refresh her memory. {¶ 223} Over defense objection, the state proceeded to impeach Heather by playing a portion of her videotaped interview with Hitchings for the jury. After the video was played, Heather said that she had not remembered what Ford told her about the Schoberts, because “[her] memory stinks.” However, Heather stated that her recollection might be refreshed as to her conversation with Ford about Chelsea. Over defense objection and outside the jury’s presence, Heather watched a segment of her videotaped interview to refresh her recollection. {¶ 224} When questioning resumed before the jury, Heather testified that her memory had been refreshed about her conversation with Ford about Chelsea. She testified that Ford told her he stabbed Chelsea, hit her in the head with a brick, and would have killed her if Zachary had not intervened. Heather also testified that Ford told her that he was going to “hit a lick” and she told him “not to go kill them people.” She said Ford was not home on the evening of April 1, but she saw him around noon the next day. She also identified the bloody pants that Ford “wore the night that he went and killed the Schoberts” and testified that she told her boyfriend to burn them. Heather added that Ford returned with two rings and some money. 2. Analysis {¶ 225} Ford argues that the trial court erred by allowing the prosecutor to impeach Heather by playing her videotaped interview before the jury. 60 January Term, 2019 {¶ 226} Under Evid.R. 607(A), “[t]he credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.” {¶ 227} Playing Heather’s videotaped statement before the jury violated Evid.R. 607(A). First, the state used a statement that did not contradict her in-court testimony. Second, Heather did not cause affirmative damage by testifying “I have no clue” when asked about Ford’s statement. Her response was neutral and provided no basis for impeachment. See State v. Keenan, 66 Ohio St.3d 402, 412, 613 N.E.2d 203 (1993); State v. Hubbard, 150 Ohio App.3d 623, 2002-Ohio-6904, 782 N.E.2d 674, ¶ 13 (7th Dist.) (“in determining affirmative damage, a response of ‘I don’t recall,’ which is a neutral response, is not enough for damage. * * * Instead, the statement must be contradictory or harm[ ] the state’s trial position”). {¶ 228} Furthermore, even if it had been proper for the state to impeach Heather’s testimony, a prior inconsistent statement is admissible under Evid.R. 607 only to impeach the declarant and not as substantive evidence offered to prove the truth of the matter asserted. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 128; State v. Dick, 27 Ohio St.2d 162, 165, 271 N.E.2d 797 (1971). There was no other basis for presenting Heather’s videotaped interview because it was otherwise objectionable hearsay. Accordingly, we conclude that Heather’s videotaped interview was improperly presented for the jury’s consideration [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4455533. Public record. Not legal advice.