State v. Grate (Slip Opinion)

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

v. Grate, Slip Opinion No. 2020-Ohio-5584.]

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. 2020-OHIO-5584

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

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

may be cited as State v. Grate, Slip Opinion No. 2020-Ohio-5584.]

Criminal law—Aggravated murder—Findings of guilt and death sentence affirmed.

(No. 2018-0968—Submitted July 7, 2020—Decided December 10, 2020.)

APPEAL from the Court of Common Pleas of Ashland County,

No. 16-CRI-187.

________________

FRENCH, J.

I. INTRODUCTION

{¶ 1} This is an appeal of right from two aggravated-murder convictions

and death sentences. An Ashland County jury found appellant, Shawn Grate, guilty

of the aggravated murder of E.G. and S.S. In total, Grate was convicted of 23

counts, including some related to a third victim, L.S., who survived. Both

aggravated-murder counts included death-penalty specifications for a course of

conduct involving multiple murders. The count charging Grate with E.G.’s murder

also included an aggravated-murder-during-a-kidnapping death-penalty

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specification. The count charging Grate with S.S.’s murder also included a death-

penalty specification for aggravated murder during a kidnapping, rape or

aggravated robbery. The jury recommended sentences of death, and the trial court

sentenced Grate accordingly.

II. TRIAL EVIDENCE

A. Grate Moves to Ashland County

{¶ 2} Grate moved from Richland County to Ashland County in June 2016.

He constructed a makeshift fort in a secluded area in some woods near Mifflin, a

village within Ashland County.

{¶ 3} Around June 2016, Grate broke into two campers in nearby Charles

Mill Park. He stole a television, DVD player, chain saw, blankets, and food from

one of the campers. He then took some of this property to the other camper and

stayed there while the owners were gone.

{¶ 4} In mid-July, Grate broke into the Mifflin Flea Market and stole food,

money, Tasers, and other property.

{¶ 5} Around July 22, Grate broke into a vacant house at 363 Covert Court

in Ashland. The house had electricity but no water. During a police interview with

Grate after he had been arrested, Grate stated that “[t]he tv was there” and that he

“went and bought a VCR * * * and a DVD player, kind of made [it] a home.” Grate

worked for a short time at Save-a-Lot.

{¶ 6} During July and August 2016, Grate regularly had meals at the

Salvation Army Kroc Center in Ashland. He met L.S. there. L.S. introduced Grate

to E.G. L.S. and E.G. lived in neighboring apartment buildings.

B. E.G.’s Disappearance

{¶ 7} E.G. did not have a job; she lived alone and suffered from paranoid

schizophrenia with mania. Cindy Lynn Swanger, a peer-to-peer counselor, spoke

to E.G. several times a week. Swanger said that prior to August 16, E.G. was

“pretty excited about something,” and Swanger thought that E.G. had met someone.

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E.G. called Swanger on August 16 and seemed anxious to talk, but they did not

have an opportunity to speak in person.

{¶ 8} On August 16, E.G. went shopping in Ashland, and she was last

observed walking along Main Street during the afternoon. Approximately two

weeks after E.G.’s disappearance, she was reported missing.

C. S.S.’s Disappearance

{¶ 9} On September 8, 2016, S.S. drove from her home in Greenwich, a

village located in Huron County, to Ashland to shop. Around 8:30 p.m., S.S.

stopped at a BP station in Ashland because of a flat tire. She called her son, who

arranged for Wayne Bright, S.S.’s acquaintance, to change the tire.

{¶ 10} Grate and S.S. happened to meet at the BP station. Bright met them

when he arrived. Around 10:00 p.m., Bright and Grate finished changing the tire,

then Bright departed. S.S.’s son talked to her after the tire was changed, and S.S.

told him that she was getting coffee and then would be going home. Nathaniel

Keck, a BP employee, saw Grate and S.S. go to the register together where she

bought Grate a cup of coffee. Keck said S.S. was “just chipper, in a good mood.”

Keck watched them leave the store together.

{¶ 11} When S.S. failed to return home, her family began searching for her.

On September 11, family members were informed that her car had been found in a

residential area in Ashland. S.S.’s cell phone was on the floorboard and her driver’s

license, which she normally kept in her wallet, was between the seats. And even

though S.S. was short, the driver’s seat was pushed all the way back.

{¶ 12} S.S.’s car was found parked in front of Joanna Smith’s home. Smith

remembered seeing it parked there in the evening sometime around September 11.

She saw a man exit the vehicle and walk down the street. At trial, Smith identified

Grate as the man she had seen.

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D. L.S.’s Abduction and Rape

{¶ 13} During the summer of 2016, Grate and L.S. took long walks around

Ashland a couple times a week, talking about the Bible and life. Grate wanted a

romantic relationship with L.S., but she told him she was not interested in being

more than friends.

{¶ 14} On September 11, after taking a walk, Grate told L.S. he had a bag

of clothes to give her. L.S. also wanted to show him specific Bible passages. They

went to the house on Covert Court where Grate was staying, and he showed her the

clothes. L.S. sat on the bed and started showing him Bible passages. Grate then

pulled the Bible out of her hands and said, “[Y]ou are not going anywhere.”

{¶ 15} L.S. tried to push Grate away, but he punched her in the head and

face and started choking her. L.S. stopped struggling and went motionless. Grate

let go of her neck and started removing her clothes.

{¶ 16} L.S. stated that she was sexually assaulted “[e]very way

imaginable.” Grate tied her up at least three times “in weird positions, sometimes

together, sometimes to the bed.” He put pills in her mouth and told her they were

muscle relaxers. He forcibly committed anal, oral, and vaginal rape on her. Grate

videotaped the rapes on a cell phone.

{¶ 17} On L.S.’s second night of captivity, Grate slept next to her in the

first-floor bedroom after tying her hands and legs together. Around 6:00 a.m. on

September 13, L.S. woke up and Grate was asleep. She loosened her bindings and

scooted off the bed. She then called 9-1-1 for help. Shortly thereafter, the police

arrived, entered the house, and arrested Grate.

E. Police Search the House

{¶ 18} Following Grate’s arrest, the police searched the house. Items of

clothing had been attached to a mattress and a chair in the first-floor bedroom,

seemingly to serve as bindings. Three devices that police suspected Grate had used

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for sexual purposes were found. The police also found S.S.’s Ohio Direction card,

debit card, and car keys in the bedroom.

{¶ 19} E.G.’s naked and bound body was found under clothing and bedding

in the second-floor closet. A bed in the second-floor bedroom had items of clothing

attached to the bed frame that were suspected to have been used as bindings.

{¶ 20} S.S.’s partially nude body was found under a pile of trash in the

basement. A ligature or binding was around her neck. Another suspected sexual

device was also found in the basement.

F. Grate Makes Multiple Confessions

{¶ 21} Between September 13 and October 17, 2016, Grate provided

multiple confessions to the police about the murders, rapes, and kidnappings.

1. E.G.

{¶ 22} E.G. was last seen on August 16, 2016. According to Grate, he

visited L.S.’s apartment, but she did not answer the door. On his way out of the

apartment complex, E.G. saw Grate and invited him to her apartment. Grate and

E.G. talked and played a game of Yahtzee. Afterwards, they went to the house on

Covert Court, ate barbecued chicken, and E.G. returned to her apartment. Around

11:00 p.m., E.G. called Grate and asked if he wanted to play Yahtzee and talk some

more. Grate agreed. They met at the YMCA and walked to the Covert Court house.

{¶ 23} Grate said that they talked when they got to his house. E.G.

mentioned that she wanted to look around the house. They went to an upstairs

bedroom, where Grate strangled her. He denied having sex with her. Grate

removed all of E.G.’s clothing after killing her, and “hogtied” her “just in case * * *

she did wake up.” Grate put her body in an upstairs closet and covered the body

and the outside of the closet doorway with stuffed animals and clothing. He sealed

the door frame with duct tape.

{¶ 24} Grate provided varying accounts about the circumstances

surrounding the murder. During one interview, Grate stated that E.G. had “talked

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about killing herself.” Grate wanted to see how much E.G. really wanted to die and

started strangling her. He said that “she got all serious, when [he] went to calm her

down, she just lost it, and [he] panicked.” Grate also stated that when he and E.G.

were upstairs, E.G. took her shirt off and “she just kind of like, you know, [tried]

to put moves on [him].” Grate later stated that E.G.’s shirt and bra accidentally

came off while he was strangling her.

{¶ 25} During another interview, Grate said, “With [E.G.] * * * it should

have never happened.” He stated that while he was strangling her, E.G. said,

“[F]orgive him Lord for he don’t know what he does.” Grate said, “[Y]ou do want

to live and * * * tried to hug her.” Grate said that E.G. responded, “[G]et off me,

* * * you tried to hurt me.” According to Grate, “she just kept going on and on and

it’s like Jesus, save me and it’s like you’re not saved.” He added, “My compassion

wanted to just free her from this world [and] * * * unfortunately I know she’s going

to go through many, many years of torment.” Grate said that because “it was like

way too late,” he finished strangling her.

{¶ 26} In a separate interview, Grate expressed his disdain for E.G. He said,

“If you ever ask [E.G.,] * * * everybody has to be sad for her.” He added, “[S]he’s

mentioned * * * not wanting to be alive before. * * * She should have been * * *

put in some institution a long time ago or something.” Grate denied using any of

the suspected sexual devices on any of his victims while they were alive.

{¶ 27} Grate also said that he entered E.G.’s apartment about a week after

killing her. He destroyed the Yahtzee score sheet with his name on it and stole

other small items.

2. S.S.

{¶ 28} Grate admitted raping and murdering S.S. after meeting her at the

BP station. Grate stated that he offered to change her tire but she lacked the proper

tools. Grate asked S.S. if she wanted to “hang out sometime,” and she agreed and

asked Grate “what [he] was doing that evening.” After the tire was changed, they

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drove to the Covert Court house, went inside, and “ended up kissing.” Grate said

she then “wanted to play that innocent thing, so [he] then, [he] kind of just snapped

on her.”

{¶ 29} Grate forced S.S. to have oral sex and videotaped it on his cell phone.

S.S. attempted to spray him with mace that she had. Grate then strangled her. After

killing S.S., Grate “wrapped her up,” dragged her body into the basement, and

covered it with trash.

{¶ 30} Grate stated that he was upset with S.S.’s interaction with Bright at

the BP station. He referred to Bright as one of her “sugar daddies.” Grate told the

police:

I just seen how she just played this dude about changing her tire and,

you know, call me sometime and all this, do you know what I mean,

because she was waiting on this guy to come and change the tire,

which I wanted to change the tire with his tools and stuff when she

was talking to him, do you know what I mean, it’s like whatever, do

you know what I mean, I’m used to that type of lie.

Q: So did you feel she had already sealed her fate when you

watched her be manipulative to that man?

A: No, when she lied to me.

***

Q: So her fate was sealed when she lied?

A: Well, she had a chance to leave, I don’t know, she could

have fought, she just, she, she was closer to the door than me. She

had her, I don’t know, [her] keys were sitting here and her mace

were on her keys. I walked over here, right, she could have ran out,

instead she just grabs her mace and the keys, she, she could have left

and she maced me.

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{¶ 31} During another interview, Grate described S.S. as “just another

sneaky woman.” Grate said that S.S. “told on herself about getting * * * [an]

assistance check each month.”

{¶ 32} Grate admitted taking $43 from S.S’s purse and driving S.S.’s car

after killing her.

3. Grate demonstrates how he strangled E.G. and S.S.

{¶ 33} During the police interviews, Grate consented to a videotaped

demonstration showing how he strangled E.G. and S.S. Grate used Detective Brian

Evans to show how he grabbed both women from behind and placed his hands and

arms around their necks to strangle them.

4. L.S.

{¶ 34} Grate confessed to abducting L.S. and then orally, vaginally, and

anally raping her. He stated that the restraints on the bed were for L.S. and admitted

to tying her down. He admitted to taking L.S.’s keys, going to her apartment, and

stealing some money. He claimed that he loved L.S. and wanted to marry her.

G. DNA Testing

{¶ 35} Emily Feldenkris, a forensic scientist from the Ohio Bureau of

Criminal Investigation, testified that DNA profiles from vaginal swabs obtained

from L.S. provided a mixture of DNA with profiles consistent with L.S. and Grate.

Her report stated that Grate’s DNA identified on the swab was “rarer than 1 in 1

trillion (sperm fraction, not attributed to [L.S.]),” meaning that Feldenkris “would

have to test over a trillion individuals to expect to find that DNA profile.”

{¶ 36} Feldenkris also testified that DNA profiles from the suspected sexual

devices were consistent with Grate’s DNA profile. L.S., E.G., and S.S. were

excluded as contributors to the DNA on those devices.

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H. Autopsy Results

{¶ 37} Dr. Todd Barr, the deputy medical examiner for Summit County,

conducted the autopsies of E.G. and S.S. Dr. Barr testified that E.G.’s body was in

“an advanced state of decomposition.” He stated that E.G.’s hands had been tied

behind her back, fabric was tied around her neck and ankles, and her legs had been

secured behind her back. Dr. Barr opined that E.G. was asphyxiated by having

pressure applied to the carotid arteries and jugular veins.

{¶ 38} Dr. Barr testified that a scarf was wrapped several times around

S.S.’s neck. Dr. Barr could not determine whether S.S. had been sexually assaulted.

Dr. Barr concluded that the cause of S.S.’s death was “[c]ervical compression and

the mechanism [was] asphyxia.”

III. PROCEDURAL HISTORY

{¶ 39} The state charged Grate with 23 counts, including four aggravated-

murder counts. In Count 1, he was charged with the aggravated murder of E.G.

with prior calculation and design. In Count 2, he was charged with the aggravated

murder of E.G. while committing the offense of kidnapping. In Count 7, he was

charged with the aggravated murder of S.S. with prior calculation and design, and

in Count 8, he was charged with the aggravated murder of S.S. while committing

the offense or offenses of kidnapping, rape or aggravated robbery.

{¶ 40} Each aggravated-murder count included a death-penalty

specification for a course of conduct involving multiple murders pursuant to R.C.

2929.04(A)(5). Counts 1 and 2 (E.G.) included a death-penalty specification for

committing or attempting to commit kidnapping as the principal offender in the

aggravated murder “or, if not the principal offender, committ[ing] the [a]ggravated

[m]urder with prior calculation and design” pursuant to R.C. 2929.04(A)(7). And

Counts 7 and 8 (S.S.) included a death-penalty specification for committing or

attempting to commit the offense or offenses of kidnapping, rape or aggravated

robbery as the principal offender in the aggravated murder, or if not the principal

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offender, committing the aggravated murder with prior calculation and design

pursuant to R.C. 2929.04(A)(7).

{¶ 41} In Counts 3 through 6, Grate was charged with kidnapping, gross

abuse of a corpse, burglary, and tampering with evidence as to E.G. Counts 9 and

10 charged Grate with kidnapping S.S. to engage in sexual activity and kidnapping

her to terrorize or inflict serious physical harm. Both counts included sexual-

motivation and sexually-violent-predator specifications. Counts 11 through 14 also

pertained to S.S. and charged Grate with rape, aggravated robbery, gross abuse of

a corpse, and using her automobile without her authorization. Count 11 also

included a sexually-violent-predator specification.

{¶ 42} In Counts 15 through 20, Grate was charged with kidnapping, rape

by vaginal intercourse, rape by fellatio, rape by anal intercourse, robbery, and

burglary as to L.S. The kidnapping count included sexual-motivation and sexually-

violent-predator specifications. And each of the rape counts included a sexually-

violent-predator specification.

{¶ 43} In Counts 21 and 22, Grate was charged with burglarizing two

campers at Charles Mill Lake Park. In Count 23, he was charged with breaking and

entering into the Mifflin Flea Market.

{¶ 44} Grate pleaded not guilty to all charges. On the eighth day of the trial,

Grate changed his pleas to guilty as to Counts 4 through 6, Count 11 and the

underlying specification, and Counts 13 through 23 and the underlying

specifications. After a plea colloquy, the trial court found that Grate “knowingly,

voluntarily, and intelligently waived his Constitutional Rights as to th[ose] charges

and specifications.” The trial court accepted Grate’s pleas of guilty and stayed

sentencing for those counts until the end of the trial.

{¶ 45} The trial resumed, and the jury found Grate guilty as to the remaining

counts and specifications, with the exception of the sexually-violent-predator

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specifications attached to Counts 9 and 10, for which Grate had elected to be tried

by the bench. The trial court found Grate guilty of those specifications.

{¶ 46} The trial court found that the aggravated-murder counts for E.G.’s

death—Counts 1 and 2—merged, and the state elected to proceed with Count 1, for

which the jury had recommended that a sentence of death be imposed. The trial

court likewise found that the aggravated-murder counts for S.S.’s death—Counts 7

and 8—merged, and the state elected to proceed with Count 7, for which the jury

also recommended that a sentence of death be imposed. The trial court agreed with

the jury’s sentencing recommendations for Counts 1 and 7 and sentenced Grate to

death. As to the noncapital offenses, the trial court sentenced Grate to an aggregate

prison term of 90 years to life, with the 90 years being a mandatory minimum term.

{¶ 47} Grate appeals his convictions and sentence and raises 12

propositions of law. We will address each issue in the approximate order that they

arose during trial.

IV. ISSUES ON APPEAL

A. Failure to Request Change of Venue

{¶ 48} In proposition of law No. I, Grate argues that defense counsel were

ineffective for failing to request a change of venue.

{¶ 49} Reversal of a conviction for ineffective assistance of counsel

requires that the defendant show that counsel’s performance was deficient and that

the deficient performance prejudiced the defendant so as to deprive him of a fair

trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs

two and three of the syllabus.

{¶ 50} Trial courts have a duty to protect criminal defendants from

inherently prejudicial publicity that renders a jury’s deliberations unfair. Sheppard

v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Even so,

pretrial publicity—even pervasive, adverse publicity—“does not inevitably lead to

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an unfair trial.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791,

49 L.Ed.2d 683 (1976). “[T]he best test of whether prejudicial pretrial publicity has

prevented obtaining a fair and impartial jury from the locality” is “a careful and

searching voir dire.” State v. Bayless, 48 Ohio St.2d 73, 98, 357 N.E.2d 1035

(1976), vacated on other grounds, Bayless v. Ohio, 438 U.S. 911, 98 S.Ct. 3135,

57 L.Ed.2d 1155 (1978). Any decision to change venue rests largely within the

discretion of the trial court. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539,

140 N.E.3d 616, ¶ 402.

{¶ 51} Defense counsel did not request a change of venue at any point

during Grate’s trial. The trial court called more than 400 prospective jurors and

asked them to complete a detailed questionnaire. Voir dire then proceeded in two

stages. First, the trial court and counsel questioned jurors about their exposure to

pretrial publicity. Second, the jurors who had not yet been excused were

individually questioned about their views on the death penalty and any further

pretrial publicity to which they may have been exposed.

{¶ 52} After the trial court and counsel identified 48 qualified prospective

jurors during individual voir dire, the trial court asked counsel, “Is there any need

to continue this process tomorrow?” The parties indicated that there was no need

to continue. Thereafter, 12 jurors and 5 alternates were empaneled.

{¶ 53} Most of those seated jurors had heard or read something about the

facts of the case. But each seated juror affirmed that he or she could set that

information aside and decide the case solely on the evidence presented in court.

{¶ 54} It is possible that counsel made a reasonable, strategic decision to

conduct the trial in Ashland County. See Ford, 158 Ohio St.3d 139, 2019-Ohio-

4539, 140 N.E.3d 616, at ¶ 401; State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-

5048, 873 N.E.2d 1263, ¶ 234. It is not necessary for us to decide that question,

however, because Grate cannot establish that he was prejudiced as a result of the

trial occurring in Ashland County.

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{¶ 55} As a general rule, a “defendant claiming that pretrial publicity has

denied him a fair trial must show that one or more jurors were actually biased.”

State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 29,

clarified on other grounds, State v. Downour, 126 Ohio St.3d 508, 2010-Ohio-

4503, 935 N.E.2d 828. However, in “certain rare cases,” pretrial publicity can be

so damaging that prejudice may be conclusively presumed even without a showing

of actual bias. State v. Mammone 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d

1051, ¶ 56. To prevail on a claim of presumed prejudice, the defendant must make

“ ‘ “a clear and manifest showing * * * that pretrial publicity was so pervasive and

prejudicial that an attempt to seat a jury would be a vain act.” ’ ” (Ellipsis added in

Mammone.) Id., quoting State v. Warner, 55 Ohio St.3d 31, 46, 564 N.E.2d 18

(1990), quoting State v. Herring, 21 Ohio App.3d 18, 486 N.E.2d 119 (9th

Dist.1984), syllabus.

{¶ 56} Grate argues that Ashland County is a smaller community, where

prospective jurors might feel closer to the victims and more likely to vote for a

death sentence. And he argues that pretrial publicity was so extensive in Ashland

County that prejudice should be presumed.

{¶ 57} But the record includes no evidence of the amount or quality of

pretrial media or social-media coverage of the case. Grate is essentially asking this

court to presume that the coverage was extensive and prejudicial to him. That is

insufficient to meet Grate’s burden to establish prejudice under the deferential

standard set forth in Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.

See State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 116.

{¶ 58} Grate also argues that four specific seated jurors—juror Nos. 3, 6,

23, and 52—were actually biased against him. Grate cannot establish actual bias

simply by pointing out that those jurors acknowledged that they had been exposed

to some degree of media coverage. Mammone, 139 Ohio St.3d 467, 2014-Ohio-

1942, 13 N.E.3d 1051, at ¶ 71. A juror will be considered unbiased “ ‘if the juror

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can lay aside his impression or opinion and render a verdict based on the evidence

presented in court.’ ” Id., quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639,

6 L.Ed.2d 751 (1961).

{¶ 59} Juror Nos. 3 and 52 both recounted exposure to some media

coverage involving Grate. On her questionnaire, juror No. 3 stated that she

understood that Grate “brought women back to where he was staying and offered a

place to stay or drugs, and once they were there he trapped them and killed them.”

Juror No. 52 stated that he had read in the newspaper that Grate “confessed to

something, and it [was his] understanding it was not related to this specific trial

today, and so naturally, [he] thought if [Grate] confessed to something, he’s guilty,

must be guilty.” But both jurors assured the court that they could set aside what

they had heard and decide the case based on the evidence presented in court. The

trial court was in the best position to judge each juror’s demeanor and ability to be

fair and decide whether to credit the juror’s assurance that he or she would set aside

any prior knowledge and preconceived notions of guilt. State v. Trimble, 122 Ohio

St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 64.

{¶ 60} Grate objects to juror Nos. 23 and 6 because they each recognized

one of Grate’s victims. Juror No. 23 told the court during the trial that she had seen

L.S. at the Kroc Center, although she had “not spoken to [L.S.] or had any

interaction with her.” And juror No. 6 wrote a letter to the court on the third day

of trial stating that she recognized S.S. and that she had seen a newspaper headline

about Grate asking someone for a date. Under questioning, juror No. 6 clarified

that the meeting with S.S. was a chance encounter 10 years earlier. Juror No. 6

added that her daughter-in-law had texted her the headline and she “immediately

deleted it.” Both jurors assured the court that they could remain fair and impartial

despite these brief and inconsequential encounters with the victims. Under these

circumstances, defense counsel were neither deficient for failing to ask juror No.

23 more questions nor ineffective for not moving to excuse juror No. 6 for cause.

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{¶ 61} Grate also argues that counsel were ineffective for failing to

challenge the trial court’s decision not to sequester the jury throughout the trial.

The decision to sequester a jury lies within the sound discretion of the trial court.

Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, at ¶ 41. Here, the

trial court routinely admonished the jury not to discuss the case or read any news

accounts about the matter. See generally State v. Maurer, 15 Ohio St.3d 239, 252-

253, 473 N.E.2d 768 (1984). Under these circumstances, defense counsel could

have reasonably concluded that it was unnecessary to request jury sequestration

during the entire trial.

{¶ 62} We reject proposition of law No. I.

B. Joint Motion for Gag Order

{¶ 63} In proposition of law No. II, Grate argues that defense counsel were

ineffective in filing a joint motion with the state for a gag order on the parties at the

same time that the trial court allowed multiple media outlets pretrial access to the

court.

{¶ 64} Defense counsel and the state filed a joint motion requesting that the

trial court

(1) enter a gag order prohibiting the parties and their counsel from

any further communication with the press regarding the merits or

allegations of this case and (2) command the Ashland County

Sheriff to prohibit [Grate] from communicating, in any fashion, with

any member of the public or news media regarding the pending case.

Based upon the joint nature of this motion, the parties hereby waive

oral hearing.

In an accompanying memorandum of law, the parties stated that “[n]ews reports

indicate that [Grate], while incarcerated in the Ashland County Jail, has been

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writing letters to news media outlets discussing the alleged crimes and providing

information and viewpoints that may potentially affect the jury pool and may

potentially discuss or disclose inadmissible evidence.” The trial court granted the

motion and issued the gag order.

{¶ 65} “[T]rial courts have a wide discretion in being able to protect the

judicial process from influences that pose a danger to effective justice.” Journal

Publishing Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir.1986). This includes the

authority to issue gag orders. Orders imposing restrictions on attorneys, parties,

and witnesses are entitled to considerably more deference than a prior restraint on

the press. In re T.R., 52 Ohio St.3d 6, 21, 556 N.E.2d 439 (1990) (recognizing that

gag orders imposed upon parties and their counsel are “considered a less restrictive

alternative to restrictions imposed directly on the media”); see also In re Contempt

of Scaldini, 8th Dist. Cuyahoga No. 90889, 2008-Ohio-6154, ¶ 12.

{¶ 66} Grate argues that defense counsel were ineffective in requesting the

gag order because the order prevented counsel from shielding the jury pool from

negative information. On the contrary, a primary purpose of the order was to shield

the jury pool by limiting both parties from disclosing information about the case to

the media. Moreover, as argued by the state in its merit brief, under Prof.Cond.R.

3.6, attorneys are prohibited from extrajudicial public commentary that “will have

a substantial likelihood of materially prejudicing an adjudicative proceeding.” See

Prof.Cond.R. 3.6, Comment 3. The gag order simply reinforced this ethical

requirement.

{¶ 67} Further, Grate complains that counsel were ineffective by waiving

an oral hearing on the motion for a gag order. But a hearing was unnecessary, since

the state and defense agreed that a gag order was appropriate.

{¶ 68} Grate also complains that defense counsel made no attempt to limit

media access. But he fails to explain how defense counsel could have successfully

prevented media access. Because prior restraints on speech and publication may

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infringe on First Amendment rights, justification for prior restraint of the media

must be shown by “(a) the nature and extent of pretrial news coverage; (b) whether

other measures would be likely to mitigate the effects of unrestrained pretrial

publicity; and (c) how effectively a restraining order would operate to prevent the

threatened danger.” Nebraska Press Assn., 427 U.S. at 562, 96 S.Ct. 2791, 49

L.Ed.2d 683. Grate fails to provide any basis under this standard to support his

argument that the trial court could have limited media coverage here without

violating the public’s First Amendment right of access to Grate’s trial. See

generally Globe Newspaper Co. v. Norfolk Cty. Superior Court, 457 U.S. 596, 603-

606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Press-Enterprise Co. v. Riverside Cty.

Superior Court, 478 U.S. 1, 14, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986).

{¶ 69} Finally, Grate fails to show how the gag order is related to his

ineffective-assistance-of-counsel claim regarding counsel’s failure to request a

change of venue. Grate’s ineffective-assistance-of-counsel claims about the gag

order are speculative and lack merit.

{¶ 70} Based on the foregoing, we reject proposition of law No. II.

C. Withdrawal of Not-Guilty-by-Reason-of-Insanity Plea

{¶ 71} In proposition of law No. IX, Grate argues that defense counsel were

ineffective for withdrawing his plea of not guilty by reason of insanity (“NGRI”)

outside his presence and when evidence supported that plea. Grate also argues that

the withdrawal of his plea in his absence was plain error.

1. Relevant background

{¶ 72} On December 27, 2016, defense counsel filed a written plea of

NGRI, in accordance with Crim.R. 11(A).1 Counsel also asked the trial court to

appoint an examiner to evaluate Grate’s competency to stand trial and his mental

condition at the time of the offenses.

1. Crim.R. 11(A) provides: “A plea of not guilty by reason of insanity shall be made in writing by

either the defendant or defendant’s attorney.”

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{¶ 73} Dr. Brian P. O’Reilly, a clinical psychologist, evaluated Grate. On

February 20, 2017, Dr. O’Reilly opined that Grate was not experiencing a severe

mental defect when he committed the crimes with which he was charged. Dr.

O’Reilly noted that Grate said he understood his actions were wrong and illegal.

{¶ 74} The defense hired Dr. John Fabian, a clinical psychologist, to

examine Grate for competency and to evaluate him for purposes of an NGRI plea.

After evaluating Grate, Dr. Fabian informed defense counsel that he did not believe

Grate qualified for an insanity defense.

{¶ 75} At a video hearing on April 7, 2017, defense counsel informed the

court that they would be submitting Grate’s signed statement in which he was

withdrawing his NGRI plea. Grate was not present at that hearing. According to a

sheriff’s deputy, Grate had “refused to come out of his cell. He said it’s just a

competency hearing, he does not need to be here. His attorney can take care of it.”

One of Grate’s defense attorneys stated that he was comfortable proceeding in

Grate’s absence, adding:

I was over to have a conference with the Defendant, Shawn Grate,

on Monday, April the 3rd. He has signed, along with Rolf and

myself, a motion statement that we are withdrawing the plea of not

guilty by reason of insanity. I explained that to him. He was able

to read it and he also executed that form.

2. Analysis

{¶ 76} R.C. 2901.01(A)(14) provides the definition of legal insanity. A

person is not guilty by reason of insanity only if the person proves that “at the time

of the commission of the offense, the person did not know, as a result of a severe

mental disease or defect, the wrongfulness of the person’s acts.” Id. NGRI is an

affirmative defense that a defendant must prove by a preponderance of the

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evidence. State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, 940 N.E.2d

634, ¶ 70 (10th Dist.). The proper standard for determining whether a defendant

has successfully demonstrated this defense and thus is entitled to an NGRI

instruction is whether he has introduced sufficient evidence, which if believed,

would raise a question in the mind of a reasonable person concerning the existence

of the issue. Id.

{¶ 77} Grate argues that defense counsel were obligated to pursue an NGRI

plea because it was a viable defense and the “only possible verdict to pursue.” Grate

contends that his multiple confessions and cooperation with investigators, his

demonstrations showing how he strangled the victims, and his lack of concern when

the trial court advised him of the minimum sentence that could result from his guilty

pleas showed that he feared no punishment and failed to understand the criminal

nature of his conduct. He also cites L.S.’s testimony that Grate told her that he had

“directions from God” and “God [was] leading” his actions.

{¶ 78} Grate fails to mention that Drs. O’Reilly and Fabian determined that

he was not insane. Dr. O’Reilly explained that Grate’s behavior was the product of

normal criminal motives, not a major mental illness. Dr. O’Reilly said that Grate

understood that his behavior was wrong and illegal.

{¶ 79} Defense counsel could reasonably have decided to withdraw the

NGRI plea based on expert findings that Grate was not insane. See State v. Purcell,

107 Ohio App.3d 501, 506, 669 N.E.2d 60 (1st Dist.1995) (counsel was not

ineffective in failing to pursue an NGRI defense when such a defense was not

supported by expert testimony); State v. Anaya, 191 Ohio App.3d 602, 2010-Ohio-

6045, 947 N.E.2d 212, ¶ 34 (6th Dist.) (when circumstances indicated that entering

an NGRI plea would be unsuccessful, counsel’s decision not to enter that plea is

not unreasonable). The record contains a comprehensive evaluation finding Grate

legally sane and does not contain evidence that at the time of the offenses, Grate

was suffering from a severe mental disease or defect that prevented him from

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knowing the wrongfulness of his acts. Having reviewed Dr. O’Reilly’s report and

having obtained Grate’s permission, it was not unreasonable for defense counsel to

withdraw Grate’s NGRI plea. See State v. Coleman, 2d Dist. Montgomery No.

24955, 2014-Ohio-856, ¶ 37-38.

{¶ 80} Grate also argues that defense counsel failed to request a continuance

so that Dr. Fabian would have had time to complete his mental-health examination

on Grate. He contends that if Dr. Fabian had been allowed more time to complete

Grate’s mental-health evaluation, Dr. Fabian might have made a psychiatric

diagnosis supporting an NGRI plea. This argument is speculative. Based on the

information available to him, Dr. Fabian did not believe that Grate qualified for an

NGRI plea.

{¶ 81} Although Dr. Fabian did request further interpretation of results

from a magnetic-resonance imaging (“MRI”) test that had been conducted, he did

not connect that additional analysis to a possible NGRI plea and he said that

additional imaging would not likely change his diagnosis. Grate has not shown that

additional neuroimaging would have supported his NGRI plea.

{¶ 82} This ineffective-assistance-of-counsel claim lacks merit.

3. Grate’s absence at the hearing

{¶ 83} A defendant has a fundamental right to be present at all critical stages

of his criminal trial. Article I, Section 10, Ohio Constitution; Crim.R. 43(A). A

defendant’s absence, however, does not necessarily result in prejudicial or

constitutional error. “[T]he presence of a defendant is a condition of due process

to the extent that a fair and just hearing would be thwarted by his absence, and to

that extent only.” (Emphasis added.) Snyder v. Massachusetts, 291 U.S. 97, 107-

108, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Frazier, 115 Ohio St.3d 139, 2007-Ohio-

5048, 873 N.E.2d 1263, at ¶ 139.

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January Term, 2020

{¶ 84} Grate argues that defense counsel were ineffective by withdrawing

the NGRI plea in his absence. He contends that Crim.R. 43 required his in-court

presence unless he had waived this right in writing or on the record.

{¶ 85} Crim.R. 43(A)(1) provides, “In all prosecutions, the defendant’s

voluntary absence after the trial has commenced in the defendant’s presence shall

not prevent continuing the trial to and including the verdict.” Grate voluntarily

made himself absent from the hearing by refusing to leave his cell and attend the

video hearing. See State v. Logan, 10th Dist. Franklin No. 87AP-633, 1988 WL

41132, *4 (Apr. 28, 1988) (defendant’s refusal to leave his cell and attend his trial

and sentencing hearing constituted disruptive behavior that allowed the trial to

proceed in his absence). Moreover, defense counsel had permission to waive

Grate’s right to be present at this stage of the trial. See Beasley, 153 Ohio St.3d

497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 143 (counsel permitted to waive

defendant’s presence during certain portions of the trial).

{¶ 86} We hold that defense counsel were not ineffective by withdrawing

Grate’s NGRI plea in his absence. We reject proposition of law No. IX.

D. Failure to Obtain Additional Neuroimaging

{¶ 87} In proposition of law No. III, Grate argues that defense counsel were

ineffective for failing to request a continuance to conduct additional neuroimaging

after Dr. Fabian requested that information to complete his mitigation report.

1. Relevant background information

{¶ 88} Before trial, defense counsel asked Dr. Douglas Scharre, an Ohio

State University (“OSU”) neurologist, to conduct neurological testing on Grate for

mitigation purposes. The trial court authorized an expenditure of $10,000 for that

testing, and an MRI was conducted. Afterwards, Dr. Scharre informed defense

counsel that he lacked the training and experience needed to interpret the diffuse-

tensor-imaging (“DTI”) and functional-MRI-neuroimaging (“fMRI”) results from

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the MRI. Dr. Fabian informed defense counsel that a company called Mindset

Consulting Group could conduct and interpret the DTI and fMRI neuroimaging.

{¶ 89} At an April 20, 2018 hearing, defense counsel requested approval

for up to $14,500 for Mindset to conduct and interpret the DTI and fMRI testing,

citing Dr. Fabian’s statement that it might provide evidence of a neurocognitive

disorder. When requesting the testing, Dr. Fabian noted that although the testing

might give him more insight into Grate’s psychological condition, it would not

necessarily change his diagnoses. He also acknowledged that this is “more of your

space age standard of the art, obviously expensive, neuroimaging.”

{¶ 90} During the hearing, the trial court referred to an e-mail from Mindset

stating that it would need to conduct a preliminary analysis of data on Grate. Using

the e-mail from Mindset as a point of reference, Dr. Fabian informed the court that

it would take at least a week or two to conduct the preliminary analysis and another

week to process the data and draft a report. The trial court granted defense

counsel’s request for the additional funds.

{¶ 91} On April 30, 2018, defense counsel informed the court that the

preliminary analysis had not been completed because OSU Medical Center would

not let Mindset use its MRI machine. Mindset represented that it could do the

preliminary analysis using the MRI machine at Cleveland Clinic. However, Grate

would have to be transported to Cleveland so that he could be scanned on that

machine. Defense counsel stated that Grate could undergo an MRI at the Cleveland

Clinic within 24 hours.

{¶ 92} Before authorizing additional funding, the trial court ordered a video

hearing “to determine whether the testing and analysis proposed by Mindset * * *

meets the necessary reliability standards of Daubert and Evid.R. 702.” See Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993) (under Fed.R.Evid. 702, “the trial judge must ensure that any

and all scientific testimony or evidence admitted is not only relevant, but reliable”);

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January Term, 2020

see also Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72,

¶ 24-26. Mindset stated that it would need $3,000 to prepare for a Daubert hearing

and an additional $2,000 in witness fees. The trial court authorized “the

expenditure of up to $2,000” for a qualified representative of Mindset to testify

about “the scientific reliability and veracity of Mindset’s * * * proposed testing and

analysis” at the hearing.

{¶ 93} At the Daubert hearing, defense counsel informed the court that a

Mindset representative would not appear because its fee could not be paid. Defense

counsel presented no other evidence at the hearing. Because defense counsel had

not established that Mindset’s testing was scientifically reliable, the trial court

excluded from evidence any information provided by Mindset.

{¶ 94} On May 10, 2018, Dr. Fabian completed a 79-page forensic-

psychological evaluation on Grate. Dr. Fabian noted that he had informed defense

counsel that he believed the case was moving too quickly and that defense counsel

needed more time to connect with Grate’s family members. He also noted that he

had requested a continuance and that neuroimaging data could provide relevant and

helpful evidence for the jury to consider at mitigation.

{¶ 95} During Grate’s mitigation hearing, Dr. Fabian testified on Grate’s

behalf, but his written report was not submitted. Defense counsel asked Dr. Fabian

if he had any concerns about mitigation with regard to Grate. The prosecutor

objected stating, “If I am correct, he’s about to discuss his request to Defense

Counsel for a continuance, et cetera, that he put in the report regarding a lack of

time to properly investigate.” The trial court sustained the objection, telling defense

counsel, “If he needed more time, you should have been asking for more time * * *.

I am not going to allow evidence that he could not do the job that he was hired to

do.” Thereafter, defense counsel asked the following series of questions:

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Q: Dr. Fabian, are you aware of neuroimaging data that was

done in this case?

A. Yes.

Q: And have the findings of the neuroimaging data been

discussed with you?

A: The initial findings of—I would say half of the imaging,

but the rest of the imaging, no.

Q: And why did that not happen?

Mr. Tunnell: Objection.

The Court: Sustained.

Defense counsel presented neither Dr. Scharre’s testimony nor the MRI results

during mitigation.

2. Analysis

{¶ 96} Grate argues that defense counsel were ineffective by failing to

request a continuance because Dr. Fabian stated that only “half” of the MRI

imaging had been finished and that he would need additional time to incorporate

the findings from further testing into his final report. Grate also contends that a

continuance was needed so that Mindset could conduct DTI and fMRI testing to

support Dr. Fabian’s possible diagnoses.

{¶ 97} As we discussed earlier, the trial court exercises a gatekeeping

function in the admissibility of scientific evidence. See Daubert, 509 U.S. at 589-

590, 113 S.Ct. 2786, 125 L.Ed.2d 469; Caputo, 115 Ohio St.3d 351, 2007-Ohio-

5023, 875 N.E.2d 72, at ¶ 24-26. Grate did not present any additional evidence

supporting the reliability of the proposed tests at the Daubert hearing. See id. at

589. Accordingly, the trial court’s ruling that any testimony about DTI and fMRI

imaging would not be admissible did not constitute an abuse of discretion. See

Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9

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January Term, 2020

(trial court’s decision on admissibility of expert testimony not disturbed absent an

abuse of discretion).

{¶ 98} As for the ineffective-assistance-of-counsel claim, defense counsel

failed to present testimony about DTI and fMRI imaging because Mindset’s experts

did not appear at the hearing. But their nonappearance was not defense counsel’s

fault. And once the trial court ruled that testimony about DTI and fMRI imaging

would not be admissible, it was reasonable for defense counsel to forgo requesting

a continuance.

{¶ 99} Grate argues that a defense motion for a continuance was necessary

to ensure that Dr. Fabian was a competent, well-prepared expert when he testified

during the mitigation phase. The record belies this claim. Dr. Fabian provided

lengthy testimony explaining that Grate suffered from complex trauma and

personality disorders rooted in his “childhood dysfunction.” Dr. Fabian also

testified, “I thought there may be some evidence of a mild Neuro Cognizance

Disorder due to early childhood concussions,” and he believed that Grate’s “brain

[was] not working right.”

{¶ 100} Grate also complains about defense counsel’s refusal to request a

separate mental-health evaluation as part of a presentence investigation. R.C.

2929.03(D)(1) provides that “[a] presentence investigation or mental examination

shall not be made except upon request of the defendant. Copies of any reports

prepared under this division shall be furnished to the court, to the trial jury if the

defendant was tried by a jury, to the prosecutor, and to the offender or the offender’s

counsel for use under this division.” (Emphasis added.) Thus, counsel could have

reasonably decided not to request a presentence investigation, since it would have

exposed the jury to derogatory information, including Grate’s criminal record.

{¶ 101} In his reply brief, Grate contends that defense counsel’s “muddled”

and “confused” presentation of mitigating evidence violates the principles set out

in the American Bar Association (“ABA”) standards. Standard 4-4.1(c) provides:

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“Defense counsel’s investigative efforts should commence promptly and should

explore appropriate avenues that reasonably might lead to information relevant to

the merits of the matter, consequences of the criminal proceedings, and potential

dispositions and penalties.” ABA Criminal Justice Standards for the Defense

Function 4-4.1(c), 23 (4th Ed.2015), https://mow.fd.org/sites/mow.fd.org/

files/training/2018_CLE/mit/ABA%20criminal%20justice%20standards%20for%

20defense.pdf (accessed Oct. 6, 2020) [https://perma.cc/XC2T-RHUU]. Defense

counsel did not violate this standard. Defense counsel requested that the trial court

approve DTI and fMRI imaging, and the court denied that request after an expert

witness from Mindset failed to appear for the Daubert hearing. See 509 U.S. 579,

113 S.Ct. 2786, 125 L.Ed.2d 469.

{¶ 102} Even assuming that counsel’s performance was deficient, Grate has

not demonstrated that the outcome of the mitigation hearing would be different but

for any of these alleged errors. In view of all the evidence, it is improbable that a

continuance, additional neuroimaging, or a better presentation of the mitigating

evidence would have changed his sentence. See State v. Powell, 132 Ohio St.3d

233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 219.

{¶ 103} We reject proposition of law No. III.

E. Failure to Argue Merger

{¶ 104} In proposition of law No. V, Grate argues that defense counsel were

ineffective for failing to argue that the kidnapping and rape offenses involving L.S.

should have merged for sentencing purposes and that the kidnapping and rape

offenses involving S.S. should have merged for sentencing purposes.2 He also

contends that insufficient evidence exists to sustain a conviction for Count 15

(kidnapping of L.S.) and that his conviction for that count is against the manifest

2. Grate also seems to argue that Count 3, which pertained to the kidnapping of E.G., should have

merged with the “corresponding rape conviction.” But Grate had never been charged with raping

E.G.

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January Term, 2020

weight of the evidence. Grate also argues that the trial court committed plain error

by accepting his guilty plea for that offense.

1. Relevant facts

{¶ 105} Prior to sentencing, the trial court merged Count 9 (kidnapping of

S.S. for the purpose to engage in sexual activity with her) with Count 10

(kidnapping of S.S. for the purpose to terrorize or inflict serious physical harm to

her). The trial court held that Count 9 did not merge with Count 11 (rape of S.S.).

The trial court also held that Count 15 (kidnapping of L.S.) did not merge with

Count 16 (rape of L.S. by vaginal intercourse), Count 17 (rape of L.S. by fellatio)

or Count 18 (rape of L.S. by anal intercourse). Defense counsel declined to make

any argument as to the merger of the kidnapping and rape offenses. In holding that

the kidnapping and rape offenses did not merge, the trial court found that the

offenses were committed with a separate animus because “the rapes occurred over

a significant period of time where the individual was otherwise being held without

rape occurring, and kidnapping is a separate offense apart from the rape.”

2. Analysis

{¶ 106} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

892, we held that if a defendant’s conduct supports multiple offenses, the defendant

may be convicted of all the offenses if any one of the following is true: “(1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the

offenses were committed separately, or (3) the conduct shows that the offenses

were committed with separate animus.” Id. at paragraph three of the syllabus.

{¶ 107} In State v. Logan, 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979),

we provided guidelines for determining whether kidnapping and another offense

are allied offenses that should merge prior to sentencing: When “the restraint or

movement of the victim is merely incidental to a separate underlying crime, there

exists no separate animus to sustain separate convictions.” Id. at syllabus. But

when “the restraint is prolonged, the confinement is secretive, or the movement is

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substantial so as to demonstrate a significance independent of the other offense,

there exists a separate animus as to each offense sufficient to support separate

convictions.” Id. Similarly, when “the asportation or restraint of the victim

subjects the victim to a substantial increase in risk of harm separate and apart from

that involved in the underlying crime, there exists a separate animus as to each

offense sufficient to support separate convictions.” Id.

{¶ 108} Although Logan predates Ruff, the Logan guidelines are still

relevant to determining whether rape and kidnapping convictions merge. See State

v. Hackett, 7th Dist. Mahoning No. 17 MA 0106, 2019-Ohio-3726, ¶ 30; State v.

Armengau, 2017-Ohio-4452, 93 N.E.3d 284, ¶ 125 (10th Dist.); State v. Asadi-

Ousley, 2017-Ohio-7252, 102 N.E.3d 52, ¶ 47 (8th Dist.).

a. Kidnapping and rape of L.S.

{¶ 109} Grate argues that defense counsel should have sought merger of the

kidnapping and rape offenses of L.S. because “she voluntarily walked” into the

house in which Grate was staying and because “all of the rapes, assaults, sexual

assault, and other crimes occurred in the bedroom” and no asportation occurred.

{¶ 110} Grate lured L.S. to the Covert Court house by telling her that he

had clothing to give her and then raped her shortly thereafter. In doing so, he

kidnapped L.S. by an act of deception, which was significantly independent from

the asportation incidental to the rapes. See State v. Ware, 63 Ohio St.2d 84, 87, 406

N.E.2d 1112 (1980). Grate also raped, sexually assaulted, and tied L.S. to his bed

and chair over a two-day period. L.S.’s restraint was prolonged, secretive, and

involved extreme restraints. Thus, a separate animus existed for L.S.’s kidnapping

and each rape that subsequently occurred. See State v. D.E.M., 10th Dist. Franklin

No. 15AP-589, 2016-Ohio-5638, ¶ 145-146. Accordingly, defense counsel were

not deficient under Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, by

failing to argue merger of these offenses.

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{¶ 111} To the extent Grate also argues that his conviction for kidnapping

L.S. was not supported by sufficient evidence or that his conviction was against the

manifest weight of the evidence, his argument fails because he pleaded guilty to

this offense. A guilty plea “waives [a defendant’s] right to present manifest-weight-

of-the-evidence or sufficiency-of-the-evidence attacks against his convictions.”

State v. Dalton, 2d Dist. Montgomery No. 24953, 2012-Ohio-3386, ¶ 7, citing State

v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51. Moreover, no plain

error occurred. As we discussed above, Grate admitted to luring L.S. to the Covert

Court house, which was an act of asportation by deception. See Ware, 63 Ohio

St.2d at 87, 406 N.E.2d 1112. We reject this claim.

b. Kidnapping and rape of S.S.

{¶ 112} Grate also contends that defense counsel should have asked the trial

court to merge the kidnapping and rape offenses against S.S., but he presents no

argument to support that claim.

{¶ 113} Grate invited S.S. to the Covert Court house after helping to change

her tire. While at the house, Grate forced S.S. to have oral sex and videotaped it.

S.S. attempted to escape by spraying mace in Grate’s face, but Grate stopped her.

After that, Grate killed her. Grate stated that they were at his house for about an

hour and a half before he raped and killed her.

{¶ 114} These facts support a finding that Grate forced S.S. to remain at the

Covert Court house for a prolonged period as he raped her and prevented her from

escaping. Therefore, a separate animus existed for S.S.’s kidnapping and rape, and

defense counsel were not deficient for failing to request the merger of the rape and

kidnapping offenses of S.S. See State v. Dean, 2018-Ohio-1740, 112 N.E.3d 32,

¶ 69 (6th Dist.) (kidnapping was not incidental to rape when the victim was held

for over an hour); State v. Wade, 10th Dist. Franklin No. 10AP-159, 2010-Ohio-

6395, ¶ 74, rev’d on other grounds, In re Cases Held for Decision in State v.

Williams, 130 Ohio St.3d 254, 2011-Ohio-5348, 957 N.E.2d 289 (“the kidnapping

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was not merely incidental to the rape, which lasted five or ten minutes, but also

involved prolonged restraint of 20 to 30 minutes”).

{¶ 115} Based on the foregoing, we reject proposition of law No. V.

F. Cumulative Ineffective Assistance of Counsel and Cumulative Error

{¶ 116} In proposition of law No. IV, Grate raises various claims that

defense counsel provided ineffective assistance during both phases of Grate’s trial.

He also argues that the cumulative errors and omissions that occurred throughout

Grate’s trial violated his constitutional rights.

{¶ 117} This claim repeats several ineffectiveness claims raised elsewhere,

including withdrawal of the NGRI plea (proposition of law No. IX), failure to raise

merger (proposition of law No. V), and failure to question or challenge juror Nos.

6, 23, and 52 (proposition of law No. I). But, as we explained above, all these

ineffective-assistance-of-counsel claims lack merit. We discuss the remaining

claims in the section addressing proposition of law No. IV below.

1. Change of plea

{¶ 118} Grate argues that trial counsel provided ineffective assistance by

advising him to plead guilty to the noncapital offenses in the middle of the trial.

{¶ 119} On May 2, 2018, the eighth day of trial, defense counsel informed

the court that Grate was changing his pleas from not guilty to guilty as to the

noncapital charges and specifications in Counts 4 through 6, Count 11, and Counts

13 through 23. Defense counsel explained:

The suggestion from [Grate] came up yesterday. * * * [H]e

was pretty much confronted with the fact that they would be playing

the videos, especially concerning [L.S.], and he indicated at that

time that there is no reason that he cannot plead to a bunch of these

counts and keep the videos from being exposed to the public, in

deference to the family, not only [L.S.].

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{¶ 120} The following colloquy ensued during the subsequent

plea inquiry:

THE COURT: Mr. Grate, did you have a discussion with

your attorneys, about the timing of deciding to do this today, since

a lot of these charges relate to a specific individual, is irrelevant to

the other two?

MR. GRATE: Yes, I have.

THE COURT: And you are aware this is something that

could have happened before this trial commenced, and evidence that

may not be relevant to the remaining charges was produced?

MR. GRATE: I believe that we talked about it.

THE COURT: Okay. And what made you decide today, at

this point, after all of that evidence is in, that now you want to enter

a plea to the specific charges?

MR. GRATE: Just rubbing it in her face more than it already

is.

THE COURT: Is this a decision that you came to on your

own?

MR. GRATE: Yes.

THE COURT: And then you advised your attorneys, at this

point, you wanted to enter pleas to these charges?

MR. GRATE: Yes, Your Honor.

THE COURT: They did not solicit that position from you?

MR. GRATE: No.

THE COURT: Okay. And that is a decision that you came

to voluntarily?

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MR. GRATE: Yes.

(Capitalization sic.)

{¶ 121} A defendant has the ultimate authority to decide whether to plead

guilty. Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).

A defendant who claims ineffective assistance related to his decision to plead guilty

must show that there is a reasonable probability that but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial. State v.

Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 89, citing Hill v.

Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

{¶ 122} The record contradicts Grate’s claim that defense counsel advised

him to plead guilty in the middle of his trial. The plea inquiry shows that Grate

wanted to change his plea from not guilty to guilty to preclude the introduction of

a cell-phone video showing him raping L.S. and to avoid “rubbing it in her face

more than it already is.” Grate assured the court that his plea was voluntary.

{¶ 123} Grate also contends that defense counsel blamed him during a

sidebar discussion for the decision to plead guilty during the middle of the trial.

But, as the record shows, defense counsel merely informed the court that Grate was

changing his plea and explained the timing of that decision. Further, Grate fails to

show how he could have been prejudiced by defense counsel’s sidebar discussion,

which occurred outside the hearing of the jurors. Accordingly, this ineffectiveness

claim lacks merit.

2. Failure to object to other-acts evidence

{¶ 124} Grate argues that defense counsel provided ineffective assistance

for failing to object to numerous items of other-acts evidence.

{¶ 125} Evid.R. 404(A)(1) is a general prohibition on using evidence of a

person’s character to prove that he acted “in conformity therewith on a particular

occasion.” Evid.R. 404(B) provides:

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Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.

{¶ 126} In State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983

N.E.2d 1278, ¶ 20, reconsideration granted, 133 Ohio St.3d 1512, 2012-Ohio-

6209, 979 N.E.2d 1290 (court of appeals ordered to address remaining assignments

of error), we established a three-step analysis for determining the admissibility of

other-acts evidence. The trial court must consider (1) whether the other-acts

evidence is relevant in accordance with Evid.R. 401, i.e., whether it makes “any

fact that is of consequence to the determination of the action more or less probable

than it would be without the evidence,” (2) whether the evidence is presented to

prove the character of the accused in order to show conduct in conformity therewith

or whether the other-acts evidence is presented for a legitimate other purpose, such

as those stated in Evid.R. 404(B), and (3) whether the probative value of the other-

acts evidence is substantially outweighed by the danger of unfair prejudice as set

forth in Evid.R. 403.

{¶ 127} Before the trial began, the prosecutor notified defense counsel and

the court that it might introduce evidence of other crimes, wrongs, or acts. Defense

counsel did not oppose the state’s notice or object to any of the other-acts evidence

when it was introduced at trial.

a. Theft of a safe

{¶ 128} Detective Kim Mager from the Ashland Police Department

testified that the police found a basket with a screwdriver and a bent hammer inside

the house on Covert Court. She testified that these items were significant because

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they corroborated Grate’s statements during his interview with Mager. According

to Mager, Grate told her that he had stolen a safe and attempted to pry it open with

a screwdriver and a hammer. Grate also told her that the hammer “was bent as a

result of him trying to get inside of the safe.”

{¶ 129} In its brief, the state does not specifically address the admissibility

of statements about Grate’s theft of the safe. Rather, the state argues that “[i]n the

context of the principal charges, Grate’s admissions to low-level criminal behavior

were de minimus,” adding that such evidence was intended to “maintain the context

and flow of Grate’s statements to police without additional redactions over brief

and fleeting statements about low-level criminal-behavior.”

{¶ 130} None of the testimony about Grate’s theft of the safe has any

bearing on the charged offenses or satisfies the requirements for admissibility under

Evid.R. 404(B). Thus, defense counsel were deficient for failing to object to this

irrelevant testimony.

b. Tubes for “love roses” used for drugs

{¶ 131} Mager testified that police found glass tubes, each of which held an

individual rose, in Grate’s bedroom and S.S.’s car. Mager testified that these tubes

are called “love roses, and they are for dope, and you can see the tubes holding the

roses inside of the box.”

{¶ 132} In its notice of other-acts evidence, the state argued that the “love

roses” were admissible because Grate got them from Eagle Gas Station (which had

closed), they were found in his bedroom and in S.S.’s car, and he had planned to

burn down the house on Covert Court and move into the closed Eagle Gas Station.

The state claimed that the evidence demonstrated Grate’s identity because it

connected him to multiple crime scenes and demonstrated his plan and preparation

to take up residence in the gas station.

{¶ 133} The proponent of the other-acts evidence must do more than simply

point to a permissible purpose and assert that the evidence is relevant to it. State v.

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Hartman, __ Ohio St.3d __, 2020-Ohio-4440, __ N.E.3d __, ¶ 23. Crim.R. 404(B)

is concerned with the chain of reasoning that links the evidence to the purpose for

which it is offered. Id. Here, nothing connects the drug-related evidence with the

charged offenses. And the state’s speculation about Grate’s purpose in possessing

the “love roses” is not supported by the evidence. See State v. Tench, 156 Ohio

St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 154. Thus, defense counsel were

deficient by failing to object to that evidence.

c. Phone calls to marijuana dealer

{¶ 134} The state also introduced statements that Grate made to police in

which he admitted that he had called a marijuana “middle man” at some point

during the offenses. During an interrogation, Mager asked Grate about three “either

texts or calls * * * to one guy” and asked, “[I]s that anything that I need to worry

about?” Grate replied that it was “[p]robably a weed guy” who was “just the middle

man.”

{¶ 135} In its notice of other-acts evidence, the state said that after Grate

broke into L.S.’s apartment and stole money, he spent it at a Circle K convenience

store and called his marijuana dealer to “further dispose of her money.” The state

averred that these calls demonstrate proof of motive, intent, preparation, plan,

knowledge, and the absence of mistake.

{¶ 136} Admission of other-acts evidence requires substantial proof that the

defendant committed those acts. Hartman at ¶ 28, citing State v. Carter, 26 Ohio

St.2d 79, 83, 269 N.E.2d 115 (1971). Beyond the fact that Grate contacted “a weed

guy,” the state presented no evidence linking the stolen money from L.S.’s

apartment with the purchase of marijuana. Indeed, the evidence showed that after

Grate broke into L.S.’s apartment, he went to the Circle K and purchased cigarettes

and food. The state fails to link the phone calls in question to a motive for robbing

L.S. Defense counsel were also deficient by failing to object to Grate’s statements

about calling “a weed guy.”

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d. Lack of prejudice

{¶ 137} Grate has identified several instances in which defense counsel

should have objected to other-acts evidence. But defense counsel’s deficient

performance did not result in prejudice that deprived Grate of a fair trial considering

the other overwhelming evidence of his guilt, including his confessions, L.S.’s

testimony, the videos of S.S.’s rape, and his apprehension at the crime scene. See

State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 41.

e. Failure to object to additional other-acts evidence

{¶ 138} Grate also argues that defense counsel failed to object to other-acts

evidence that he (1) broke into an abandoned warehouse, (2) broke into the house

at Covert Court, and (3) stole property from a donation box.

{¶ 139} Grate told investigators that he spent three nights in an abandoned

warehouse before breaking into the house on Covert Court. Grate admitted to

stealing clothes and stuffed animals from donation boxes while he was living at the

Covert Court house. Some of these items were piled in front of the door of the

room where E.G.’s body was hidden. Grate also lured L.S. to his house by telling

her that he wanted to give her some of these clothes.

{¶ 140} This was proper common-plan evidence. Common-plan evidence

typically involves events that are “inextricably related” to the crime charged and

form the “immediate background” of that crime. Hartman, __ Ohio St.3d __, 2020-

Ohio-4440, __ N.E.3d __, at ¶ 41; see also State v. Curry, 43 Ohio St.2d at 73, 330

N.E.2d 720. The other acts are either part of the “same transaction” as the crime

charged or part of a “sequence of events” leading up to the crime in question.

Hartman at ¶ 41. Such evidence plays an integral part in providing a complete

picture of the alleged crime. State v. Thompson, 66 Ohio St.2d 496, 498, 422

N.E.2d 855 (1981).

{¶ 141} The evidence of the break-ins and thefts overlapped in time and

place with the charged offenses. Such evidence was necessary to explain the

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sequence of events to help the jury understand Grate’s arrival at the Covert Court

house and the presence of toys and women’s clothing in the house. See State v.

Carter, 8th Dist. Cuyahoga No. 90796, 2009-Ohio-226, ¶ 40-41. Grate fails to

show that defense counsel were deficient by failing to object to such evidence.

3. Agreement to provide the prosecutor with Dr. Fabian’s report

{¶ 142} Grate contends that defense counsel were ineffective for agreeing

to provide the prosecutor with Dr. Fabian’s supplemental report before it was even

written. But Crim.R. 16(K) requires that each party provide any expert reports to

the opposing party. Id. (“Failure to disclose the written report to opposing counsel

shall preclude the expert’s testimony at trial”). Grate fails to explain how defense

counsel were ineffective by agreeing to comply with this requirement. This

ineffective-assistance-of-counsel claim lacks merit.

4. Waiving opening statements, failing to make a motion under Crim.R. 29,

and failing to present trial-phase evidence

a. Waiver of opening statements

{¶ 143} Grate argues that defense counsel’s waiver of trial-phase and

mitigation-phase opening statements mirrors their failure to make objections and

their general lack of participation during trial.

{¶ 144} Defense counsel’s failure to make an opening statement is not per

se ineffective assistance of counsel. State v. Myers, 154 Ohio St.3d 405, 2018-

Ohio-1903, 114 N.E.3d 1138, ¶ 189, citing Moss v. Hofbauer, 286 F.3d 851, 863

(6th Cir.2002). We have recognized that “[r]eserving an opening statement at the

beginning of trial has the advantage of not disclosing the defense’s trial strategy

before the prosecution presents its case.” Id. And if the defense ultimately decides

not to put on evidence, an opening statement is unnecessary. Id., citing Moss at

863.

{¶ 145} Grate fails to explain how the absence of opening statements

prejudiced him. The defense strategy during the trial phase was to attack perceived

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weaknesses in the state’s evidence. And the defense presented forceful testimony

in the mitigation phase from Dr. Fabian and Barbara Charter, Grate’s half-sister.

Accordingly, Grate’s conclusory allegations fail to support a finding that opening

statements in the trial phase, the mitigation phase or both would have created the

reasonable probability of a different outcome in his trial. Id. at ¶ 191.

b. Failure to make a Crim.R. 29 motion for acquittal

{¶ 146} Grate argues that defense counsel were ineffective because they did

not make a motion pursuant to Crim.R. 29 for acquittal at the end of the state’s case.

A motion for acquittal may be granted only when, construing the evidence most

strongly in favor of the state, the evidence is insufficient to sustain a conviction.

State v. Scott, 6th Dist. Sandusky No. S-02-026, 2003-Ohio-2797, ¶ 20; see also

Crim.R. 29. Counsel’s failure to make a Crim.R. 29 motion for acquittal is not

ineffective assistance when such a motion would have been futile. See Scott at ¶ 20;

Thomas v. United States, 951 F.2d 902, 905 (8th Cir.1991). Here, the state

presented overwhelming evidence linking Grate to the crimes charged. Defense

counsel were not deficient by failing to make a Crim.R. 29 motion when such a

motion would have been futile.

c. Failure to present trial-phase evidence

{¶ 147} Grate argues that defense counsel were ineffective by failing to

introduce any trial-phase evidence. “Generally, counsel’s decision whether to call

a witness falls within the rubric of trial strategy and will not be second-guessed by

a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.3d 749

(2001). Moreover, “ ‘[a]ttorneys need not pursue every conceivable avenue; they

are entitled to be selective.’ ” State v. Murphy, 91 Ohio St.3d 516, 542, 747 N.E.2d

765 (2001), quoting United States v. Davenport, 986 F.2d 1047, 1049 (7th

Cir.1993). Although the defense did not introduce any trial-phase evidence, Grate

fails to state what evidence defense counsel should have introduced during the trial

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phase or how that evidence would have made any difference in the outcome of the

case. This ineffective-assistance-of-counsel claim lacks merit.

5. Failure to cross-examine witnesses

{¶ 148} Grate argues that defense counsel were ineffective for failing to

cross-examine the majority of the state’s witnesses. “Trial counsel need not cross-

examine every witness * * *. The strategic decision not to cross-examine witnesses

is firmly committed to the trial counsel’s judgment * * *.” State v. Otte, 74 Ohio

St.3d 555, 565, 660 N.E.2d 711 (1996). The record does not show that counsel’s

decision was unreasonable. Many of the witnesses that were not cross-examined

testified about facts that were not in dispute. See State v. Dean, 146 Ohio St.3d

106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 272.

{¶ 149} Further, with one exception, Grate does not explain what

information counsel failed to elicit during cross-examination. Grate complains that

“[a]t one point during [Detective Mager’s] direct examination, [she] implied that

Grate’s belief he would marry [L.S.] suggested a disconnect from reality.” But

defense counsel could have reasonably concluded that further questioning about

Grate’s feelings for L.S. would serve no useful purpose. Grate also fails to explain

how he was prejudiced by defense counsel’s failure to cross-examine Mager

further.

6. Failure to object to the prosecutor’s improper mitigation-phase argument

{¶ 150} Grate argues that defense counsel were ineffective for failing to

object to the prosecutor’s mitigation-phase argument that there were four

aggravating circumstances. Although the prosecutor made a misstatement, the trial

court informed the prosecutor of his misstatement. The prosecutor then correctly

told the jury that there are “two counts and two specifications of each count.” Under

these circumstances, Grate suffered no prejudice from defense counsel’s failure to

make a timely objection.

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7. Failure to question alternate juror and lack of legal knowledge of Hurst v.

Florida

{¶ 151} Grate argues that defense counsel were ineffective by agreeing to

replace juror No. 94 with alternate juror No. 131 without first questioning juror No.

131. But defense counsel had questioned juror No. 131 during voir dire and did not

challenge that juror for cause. Grate fails to explain how questioning juror No. 131

further would have benefited him. We have “consistently declined to ‘second-

guess trial strategy decisions’ or impose ‘hindsight views about how current

counsel might have voir dired the jury differently.’ ” State v. Mundt, 115 Ohio

St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 63, quoting State v. Mason, 82 Ohio

St.3d 144, 157, 694 N.E.2d 932 (1998). Thus, this claim lacks merit.

{¶ 152} Grate also contends that defense counsel lacked knowledge of

Hurst v. Florida, 577 U.S. 92, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). In Hurst,

the United States Supreme Court held that Florida’s capital-sentencing scheme

violated the Sixth Amendment because it allowed a judge, rather than a jury, to

make the findings necessary to impose the death penalty. Id. at 98-99. But in State

v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 42-43, we held

that Ohio’s death-penalty scheme is different from Florida’s former scheme and

does not violate the Sixth Amendment. Grate has not pointed to evidence in the

record showing that defense counsel lacked knowledge of Hurst. But even if

counsel lacked knowledge of Hurst, that fact alone fails to support an ineffective-

assistance-of-counsel claim. This claim is also rejected.

8. Presenting inadequate mitigating evidence

{¶ 153} Grate argues that defense counsel were ineffective for presenting

only two witnesses during mitigation.

{¶ 154} “Defense counsel has a duty to investigate the circumstances of his

client’s case and explore all matters relevant to the merits of the case and the

penalty, including the defendant’s background, education, employment record,

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mental and emotional stability, and family relationships.” Goodwin v. Johnson,

632 F.3d 301, 318 (6th Cir.2011). Failure to reasonably investigate the defendant’s

background and present mitigating evidence to the jury at sentencing may constitute

ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521-522, 123

S.Ct. 2527, 156 L.Ed.2d 471 (2003). Grate has the burden of demonstrating that

his counsel rendered ineffective assistance by failing to conduct an adequate

investigation. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d

955, ¶ 104.

{¶ 155} Grate complains that defense counsel called only Dr. Fabian and

Barbara Charter, his half-sister, as mitigation witnesses. Dr. Fabian provided

lengthy testimony explaining that Grate suffered from complex trauma and

personality disorders rooted in his “childhood dysfunction.” Charter described

Grate’s upbringing, chaotic childhood, and lack of a loving and nurturing

environment. Through this testimony, defense counsel provided the jury with

substantial mitigating evidence on Grate’s behalf. Moreover, the record does not

show that defense counsel failed to investigate the possibility of presenting

additional mitigating evidence. See Dean, 146 Ohio St.3d 106, 2015-Ohio-4347,

54 N.E.3d 80, at ¶ 286.

{¶ 156} Therefore, Grate has not shown that his counsel performed

deficiently in the presentation of evidence during the mitigation phase.

9. Not properly responding to objections

{¶ 157} Grate argues that defense counsel failed to adequately respond to

prosecutorial hearsay objections made during Dr. Fabian’s and Charter’s testimony.

He argues that defense counsel should have invoked Evid.R. 101(C)(3) in response

to the state’s objections to some of Charter’s testimony. That rule provides that the

Ohio Rules of Evidence do not apply to sentencing proceedings, but it does not

exclude application of those rules to mitigation proceedings.

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{¶ 158} R.C. 2929.04(C) gives defendants great latitude in presenting

evidence during the mitigation phase of a capital trial. Yet the Rules of Evidence,

including the hearsay rules, still apply to mitigation-phase hearings. See State v.

Williams, 73 Ohio St.3d 153, 159, 652 N.E.2d 721 (1995); State v. Jalowiec, 91

Ohio St.3d 220, 233, 744 N.E.2d 163 (2001); State v. Hale, 119 Ohio St.3d 118,

2008-Ohio-3426, 892 N.E.2d 864, ¶ 128.

{¶ 159} Charter testified that their mother had been sexually abused and that

the home that they had been living in caught on fire. Although the trial court

excluded the testimony because Charter lacked first-hand knowledge of the

information, Grate’s counsel argued that the testimony was admissible.

Accordingly, Grate cannot show that defense counsel were deficient. See State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 212.

{¶ 160} Grate also complains that his counsel failed to respond adequately

when the prosecutor objected to Charter’s testimony that Jim Crates, the mitigation

specialist, had difficulty contacting Grate’s family members. But the trial court

allowed the question after defense counsel rephrased it. Thus, counsel were not

ineffective because the information was presented.

{¶ 161} Grate argues that defense counsel “sat mute” and failed to object

when the prosecutor cross-examined Dr. Fabian about an appellate opinion that

criticized his performance in another capital case. At the trial court’s prompting,

though, Grate’s counsel objected to the line of questioning. And trial court

sustained the objection. Grate fails to show that he was prejudiced by counsel’s

lapse.

{¶ 162} Finally, Grate argues that defense counsel failed to object to a

limiting instruction from the trial court informing the jurors that “any statements

made to Dr. Fabian by other individuals is hearsay. They are not evidence in this

case.” But again, Grate’s counsel argued that the testimony was admissible.

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Therefore, Grate cannot show that defense counsel were deficient. See Maxwell,

139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 212.

10. Ineffective trial-phase closing argument

{¶ 163} Grate challenges several aspects of his counsel’s trial-phase closing

argument. He first argues that his counsel’s closing argument was overly brief. We

reject this claim because counsel are afforded wide latitude during closing

arguments. The length of a closing argument ordinarily involves questions of

discretion and strategy. “Debatable trial tactics generally do not constitute a

deprivation of effective counsel.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-

4215, 954 N.E.2d 596, ¶ 192.

{¶ 164} Grate also contends that defense counsel were ineffective for

asserting during closing argument that the murders were not aggravated. Defense

counsel argued that Grate did not commit aggravated murder during a kidnapping

because E.G. and S.S. went to the Covert Court house on their own volition.

Counsel also argued that Grate did not murder S.S. during a robbery because she

was robbed after the murder. Given the overwhelming evidence of Grate’s guilt,

even if counsel’s performance was deficient, Grate cannot show that he was

prejudiced. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547,

¶ 61.

{¶ 165} Next, Grate asserts that defense counsel made an absurd argument,

suggesting that some of the sexual conduct was consensual. Defense counsel

argued that Grate and S.S. “supposedly kissed and made out and there was no

evidence as a real plan to dispose of a body or flee the scene.” But this was part of

a defense argument that Grate was not guilty of committing the aggravated murder

of S.S. by prior calculation and design. Grate cannot show that he was prejudiced

by such argument.

{¶ 166} Finally, Grate contends that defense counsel were deficient in

characterizing him as a “[s]tand-up guy” who

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admitted the strangulation when he was wrong, and was an honest

person in the interview, and co-counsel and myself and [Grate] know

fully well that [Grate] will not walk out of this courtroom a free man,

and we ask for a fair and impartial verdict based on the law and the

evidence that you and each of you determine it to be.

Counsel’s characterization of Grate coupled with the candid acknowledgement of

his responsibility appears to have been aimed at building rapport with the jury. See

Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 225. Defense

counsel’s argument does not reflect deficient performance.

11. Ineffective mitigation-phase closing argument

{¶ 167} Grate maintains that defense counsel presented an ineffective

closing argument during mitigation.

{¶ 168} He argues that defense counsel were ineffective in arguing that

Grate could have killed the victims in a more violent manner. Defense counsel

stated that each victim died of strangulation, adding that “[t]here was no wound

* * * by firearm or bladed weapon or as a club-type weapon.” But Grate fails to

show how this matter-of-fact recitation of the victims’ cause of death prejudiced

him.

{¶ 169} Grate also objects to defense counsel’s emphasis on his multiple

confessions and cooperation with police. But evidence that a defendant confessed

and cooperated with the authorities is a proper mitigating factor. See, e.g., State v.

Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 166.

{¶ 170} Next, Grate complains that defense counsel were ineffective

because they blamed S.S. for her own death by arguing that Grate “snapped on her

because he thought that she was talking like a goodie-goodie girl and he saw her as

a slut, and applied the cervical compression to her.” Counsel then asked the jury,

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“Are those what you consider to be [acts] of a normal human being?” It is

questionable whether defense counsel’s graphic characterization of Grate’s

motivation for killing S.S. was appropriate or helpful. Nonetheless, defense

counsel’s remarks focused on highlighting a mitigating feature of Grate’s actions—

e.g., mental imbalance. See Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873

N.E.2d 1263, at ¶ 231. This argument was a tactical decision and did not constitute

ineffective assistance. See id.

{¶ 171} Grate also argues that defense counsel improperly asked the jurors,

“Why would you not keep or store those bodies like you would trophies from some

big time African safari hunt?” This comment was inappropriate and unhelpful. In

view of overwhelming evidence that the aggravating circumstances outweighed the

mitigating factors, though, Grate cannot show that the comment resulted in

prejudice that deprived him of a fair trial. See Clinton, 153 Ohio St.3d 422, 2017-

Ohio-9423, 108 N.E.3d 1, at ¶ 41.

12. Failure to prepare a sworn or unsworn statement during mitigation

{¶ 172} Grate argues that defense counsel were ineffective by failing to

prepare him to make a sworn or unsworn statement during mitigation.

{¶ 173} Grate, “not counsel, had the choice whether to testify or give an

unsworn statement.” (Emphasis added.) State v. Brooks, 75 Ohio St.3d 148, 157,

661 N.E.2d 1030 (1996). And regardless, “the decision to give an unsworn

statement is a tactical one, a call best made by those at the trial who can judge the

tenor of the trial and the mood of the jury.” Id.

{¶ 174} The record does not show what defense counsel told Grate or

recommended about making a sworn or unsworn statement. Moreover, Grate does

not explain what information he could have provided that might have made a

difference in the outcome of his trial. Thus, Grate has not demonstrated that

counsel were ineffective in failing to prepare him to make a statement during

mitigation. Accordingly, we also reject this claim.

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13. Cumulative error

{¶ 175} Grate argues that cumulative errors and omissions violated his

constitutional rights. Under the cumulative-error doctrine, “a conviction will be

reversed when the cumulative effect of errors in a trial deprives a defendant of a

fair trial even though each of the numerous instances of trial-court error does not

individually constitute cause for reversal.” Powell, 132 Ohio St.3d 233, 2012-

Ohio-2577, 971 N.E.2d 865, at ¶ 223.

{¶ 176} As we explained above, defense counsel were deficient at several

points in Grate’s trial. But none of these errors rose to the level of reversible error.

Errors “cannot become prejudicial by sheer weight of numbers.” State v. Hill, 75

Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). Grate also fails to explain how the

cumulative effect of defense counsel’s errors deprived him of a fair trial. In view

of the overwhelming evidence of Grate’s guilt, we conclude that the cumulative

effect of counsel’s errors did not deprive him of a fair trial. See State v. McKelton,

148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 322.

{¶ 177} Based on the foregoing, we reject proposition of law No. IV.

G. Hearsay Objections and Charter’s Mitigation Testimony

{¶ 178} In proposition of law No. VI, Grate recasts some of his ineffective-

assistance-of-counsel claims from proposition of law No. IV as a complaint that the

trial court improperly sustained hearsay objections to (1) Charter’s testimony that

Crates, the mitigation specialist, had difficulty contacting Grate’s family members

and (2) Charter’s testimony about their mother’s history of being sexually abused.

Grate again argues that “it is improper for a trial court to use Ohio’s Rules of

Evidence to exclude mitigation evidence in the [mitigation] phase of a death penalty

trial.” But as we explained above, the Rules of Evidence, including the hearsay

rules, apply to mitigation-phase hearings. See Hale, 119 Ohio St.3d 118, 2008-

Ohio-3426, 892 N.E.2d 864, at ¶ 128; Jalowiec, 91 Ohio St.3d at 233, 744 N.E.2d

163.

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{¶ 179} The United States Supreme Court has carved out an exception to

evidentiary rules during mitigation-phase hearings in extreme circumstances when

the exclusion of certain evidence would violate the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. Green v. Georgia, 442

U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); State v. Sheppard, 84 Ohio St.3d

230, 237-238, 703 N.E.2d 286 (1998).

{¶ 180} In Green, the trial court excluded, as hearsay, testimony during the

mitigation phase that a codefendant had confided to killing the victim and that

Green had not participated in the murder. The Supreme Court reversed the trial

court’s judgment, holding that the evidence was highly relevant to one of the

mitigating factors. Id. at 97.

{¶ 181} Charter’s testimony does not compare to the evidence that had been

excluded in Green. First, after defense counsel rephrased the question, Charter was

allowed to testify that Crates had difficulty getting other family members to talk to

him. Second, Charter’s excluded testimony about their mother’s childhood sexual

abuse was largely cumulative to Dr. Fabian’s testimony about Grate’s family’s

history. Dr. Fabian later testified that Grate’s mother “got married * * * at age 14

* * * [and] she escaped a lot of her own abuse.” (Emphasis added.)

{¶ 182} Finally, even if any of this mitigation-phase testimony was

improperly excluded, our independent review of the record regarding Grate’s death

sentence cures that error. See State v. Sanders, 92 Ohio St.3d 245, 267, 750 N.E.2d

90 (2001) (a trial court’s error excluding proffered testimony during a mitigation

phase is cured during this court’s independent review of a death sentence).

{¶ 183} We reject proposition of law No. VI.

H. Dr. Fabian’s Testimony as Substantive Evidence

{¶ 184} In proposition of law No. VII, Grate argues that the trial court erred

by not allowing Dr. Fabian to testify that other family members thought his mother

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was “mean” and by instructing the jury that any statement that had been made to

Dr. Fabian by other individuals was based on hearsay.

{¶ 185} Dr. Fabian testified about Grate’s relationship with his mother. He

stated that Grate was afraid of his mother while he was growing up and always

described her as “miserable.” Dr. Fabian stated that Grate’s fear of his mother and

his belief that she was always miserable was a “focal point of at least [Dr. Fabian’s]

evaluation with [Grate], and maybe [an] explanation as to these offenses.” Defense

counsel asked Dr. Fabian these follow-up questions:

Q: And did the information that you obtained from Shawn,

was that corroborated or consistent with getting information from

other people?

A: Yes, I would say so.

Q: Okay.

A: Especially from folks that I talked to like aunts or

cousins, or a sister about the mother just being mean, cold—

{¶ 186} Following this testimony, the prosecutor asked for “a limiting

instruction on hearsay, other than [Grates].” Over defense counsel’s objection, the

trial court instructed the jurors that “any statements made to Dr. Fabian by other

individuals [was] hearsay,” not evidence, and could be considered only to the extent

that it had been used by Dr. Fabian to support his professional opinion. Again,

Grate’s argument is predicated on his belief that the Rules of Evidence do not apply

to the mitigation phase of the trial. As we discussed in our analysis of propositions

of law Nos. IV and VI, we reject that argument as incorrect.

{¶ 187} The admissibility of expert testimony is within the discretion of the

trial court. Evid.R. 104(A). Such decisions will not be disturbed absent abuse of

discretion. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 616, 687 N.E.2d 735

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(1998) (lead opinion). “Abuse of discretion” suggests unreasonableness,

arbitrariness, or unconscionability. Calderon v. Sharkey, 70 Ohio St.2d 218, 222,

436 N.E.2d 1008 (1982). Without those elements, it is not the role of this court to

substitute its judgment for that of the trial court.

{¶ 188} Evid.R. 703 governs the admissibility of expert opinions and

provides that “[t]he facts or data in the particular case upon which an expert bases

an opinion or inference may be those perceived by the expert or admitted in

evidence at the hearing.” While Evid.R. 703 permits an expert to testify as to his

opinion based on the facts or data perceived by him, the rule does not grant blanket

admissibility to those underlying facts or data if they are not otherwise admissible

under the Rules of Evidence. Lorence v. Goeller, 9th Dist. Lorain No. Civ.A

04CA008556, 2005-Ohio-2678, ¶ 44.

{¶ 189} Dr. Fabian’s opinion of Grate’s relationship with his mother was

based, in part, on the hearsay accounts of other family members that Grate’s mother

was “mean” and “cold.” These foundational facts were admissible to inform the

jurors of the bases for Dr. Fabian’s opinion. But the statements from Grate’s other

family members were not admissible as substantive evidence because they were

hearsay. Thus, the trial court did not abuse its discretion in excluding this

testimony. Moreover, the trial court’s instructions were correct. See State v.

Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91, ¶ 57 (trial courts

should ensure that jurors are instructed as to the limits of an expert’s testimony).

{¶ 190} We reject proposition of law No. VII.

I. Replacement With Alternate Juror Before Mitigation

{¶ 191} In proposition of law No. XII, Grate argues that the trial court

committed a structural error when it replaced a juror with an alternate juror before

the mitigation phase began without inquiry or allowing counsel an opportunity to

conduct an inquiry.

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{¶ 192} Before the start of the mitigation phase, juror No. 94 informed the

court that he had a concert to attend and would lose “$1,000 out-of-pocket” if he

was required to remain as a juror during the mitigation phase. After the court and

counsel discussed different options, defense counsel moved to excuse juror No. 94.

The trial court discharged juror No. 94 and substituted alternate juror No. 131 in

his place. Defense counsel did not question juror No. 94 or alternate juror No. 131

before the dismissal and seating the alternate.

1. Structural-error analysis does not apply

{¶ 193} Grate argues that the court’s decision to replace the juror after the

trial phase but before the mitigation phase began constituted structural error. We

disagree.

{¶ 194} A structural error is one that “affect[s] the framework within which

the trial proceeds, rather than simply an error in the trial process itself.” Arizona v.

Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural

errors “permeate ‘[t]he entire conduct of the trial from beginning to end.’ ”

(Brackets added in Perry.) State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802

N.E.2d 643, ¶ 17, quoting Fulminante at 309. Most constitutional errors are not

structural. Fulminante at 306-307. An error is structural only when it “render[s] a

criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or

innocence.” Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35

(1999).

{¶ 195} The Supreme Court of the United States has found an error to be

structural, and thus subject to automatic reversal, in only a very limited class of

cases. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437,

71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106

S.Ct. 617, 88 L.Ed.2d 598 (1986) (lead opinion) (racial discrimination in selection

of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122

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(1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104

S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508

U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt

instruction to jury).

{¶ 196} Grate provides no legal authority in support of his structural-error

argument. Crim.R. 24(G) and R.C. 2945.29 govern the removal and replacement

of jurors during criminal trials. Replacing a juror with an alternate juror, as

occurred here, does not invoke a structural-error analysis. See State v. Jennings,

2017-Ohio-8224, 100 N.E.3d 93, ¶ 9-13 (8th Dist.) (rejecting claim that replacing

a juror during deliberations was structural error).

2. Doctrine of invited error applies

{¶ 197} The doctrine of invited error also applies to Grate’s claim because

defense counsel moved to replace juror No. 94. That doctrine specifies that a

litigant may not “take advantage of an error which he himself invited or induced.”

Hal Artz Lincoln–Mercury, Inc. v. Ford Motor Co., Lincoln–Mercury Div., 28 Ohio

St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. Thus, Grate may

not complain of an error that he induced.

3. The trial court did not err in replacing juror No. 94 with alternate juror

No. 131

{¶ 198} Even if Grate had not invited the trial court’s action, he provides no

legal authority to support his claim that the trial court erred in replacing juror No.

94 with alternate juror No. 131.

{¶ 199} Crim.R. 24(G)(1) provides that “[a]lternate jurors in the order in

which they are called shall replace jurors who, prior to the time the jury retires to

consider its verdict, become or are found to be unable or disqualified to perform

their duties.” (Emphasis added.) The procedure for replacing jurors with alternates

is the same in capital cases. Crim.R. 24(G)(2). Crim.R. 24(G)(2) specifically

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contemplates that the trial court may need to replace a seated juror with an alternate

juror after the trial phase of a capital trial.

{¶ 200} The trial court has discretion to determine when a seated juror

should be replaced by an alternate juror before deliberations begin. See State v.

Shields, 15 Ohio App.3d 112, 119, 472 N.E.2d 1110 (8th Dist.1984). Moreover,

Crim.R. 24(G) does not require a trial court to conduct an evidentiary hearing to

corroborate a juror’s unavailability before being excused. See Jennings, 2017-

Ohio-8224, 100 N.E.3d 93, at ¶ 19.

{¶ 201} Grate also argues that an alternate juror should not be allowed to

replace a sitting juror after the trial-phase verdict but before the mitigation phase

has begun. As stated above, Crim.R. 24(G)(2) permits a trial court to replace a

juror after the trial phase of a criminal trial. And even before Crim.R. 24 was

amended to specifically permit this practice, we rejected an argument similar to the

one made by Grate in State v. Hutton, 53 Ohio St.3d 36, 559 N.E.2d 432 (1990),

paragraph three of the syllabus (former Crim.R. 24(F)—which is now Crim.R.

24(G)—was not violated when an alternate juror was substituted for another juror

in a capital trial after the trial-phase verdict, but before deliberations began in the

mitigation phase). Nevertheless, Grate argues that the trial court approached the

issue nonchalantly and that defense counsel did not sufficiently address the issue.

{¶ 202} Grate mischaracterizes the level of involvement of both the court

and his counsel. The record shows that the court and counsel discussed different

options before defense counsel moved to excuse juror No. 94. And Grate fails to

explain what additional questioning his counsel or the trial court could have asked

before juror No. 131 replaced juror No. 94. As discussed in this opinion’s rejection

of Grate’s proposition of law No. IV, defense counsel questioned alternate juror

No. 131 during voir dire and found no reason to challenge that juror.

{¶ 203} We reject proposition of law No. XII.

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J. Consecutive Sentences

{¶ 204} In proposition of law No. X, Grate argues that when a defendant

has received a death sentence, a trial court errs by imposing consecutive sentences

to “protect the public from future crime.” Because Grate failed to object to the

imposition of consecutive sentences at sentencing, he has forfeited this issue, absent

plain error. See Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at

¶ 152.

{¶ 205} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive

sentences, the trial court must find on the record that consecutive sentences are

“necessary to protect the public from future crime or to punish the offender and that

consecutive sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public.” The court must also

find that at least one or more of the aggravating factors in R.C. 2929.14(C)(4)(a)

through (c) are present.

{¶ 206} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16

N.E.3d 659, ¶ 37, we held that the trial court must make the requisite findings

before imposing consecutive sentences “at the sentencing hearing and incorporate

its findings into its sentencing entry, but it has no obligation to state reasons to

support its findings.”

{¶ 207} The trial court imposed consecutive sentences for Counts 1

(aggravated murder of E.G.), 7 (aggravated murder of S.S.), 9 (kidnapping of S.S.),

11 (rape of S.S.), 15 (kidnapping of L.S.), 16 (rape by vaginal intercourse of S.S.),

17 (rape by fellatio with S.S.), and 18 (rape by anal intercourse with S.S.), for a

“mandatory 90 years to life, with two death sentences.” There is no dispute that

the trial court made the findings required by R.C. 2929.14(C)(4) at Grate’s

sentencing hearing and incorporated those findings into the judgment entry,

including a finding that consecutive sentences were necessary to protect the public

from future crime.

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{¶ 208} Grate argues that in light of his death sentence, it is “nonsensical

and a violation of [Ohio’s] sentencing statute” for the trial court to find that

consecutive sentences are necessary to protect the public from future crimes. Both

claims lack merit.

{¶ 209} No Ohio sentencing statute prohibits the imposition of consecutive

sentences in capital cases, and Grate fails to provide any legal basis to support his

argument that a court cannot impose consecutive sentences if it also imposes the

death sentence.

{¶ 210} We reject proposition of law No. X.

K. Proportionality

{¶ 211} In proposition of law No. VIII, Grate cites R.C. 2905.05(A) and

argues that his death sentence is unconstitutional because the trial court did not

evaluate it for proportionality in relation to other heinous crimes. But R.C.

2929.05(A) does not require a trial court to engage in a proportionality review; it

requires an appellate court to review every death sentence for proportionality. R.C.

2929.03(F), which prescribes the requirements for a trial court’s sentencing opinion

in a capital case, says nothing about the trial court conducting a proportionality

analysis. Instead, we review Grate’s sentence for proportionality as part of our

independent sentence evaluation under R.C. 2929.05(A). See State v. Steffen, 31

Ohio St.3d 111, 122-123, 509 N.E.2d 383 (1987).

{¶ 212} We reject proposition of law No. VIII.

L. Violation of Hurst v. Florida

{¶ 213} In proposition of law No. XI, Grate argues that Ohio’s capital-

sentencing procedures violate the right to a jury trial under the Sixth Amendment

to the United States Constitution, as construed in Hurst, 577 U.S. 92, 136 S.Ct. 616,

193 L.Ed.2d 504. Grate acknowledges that we rejected this claim in Mason, 153

Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, at ¶ 42-43, but asks us to overrule

Mason. Because Grate cites no authority in support of his request and makes no

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arguments that compel us to overrule Mason, we decline to revisit that holding. Id.

at ¶ 41-42.

{¶ 214} We reject proposition of law No. XI.

V. INDEPENDENT SENTENCE EVALUATION

{¶ 215} Having considered Grate’s propositions of law, we must now

independently review Grate’s death sentence for appropriateness and

proportionality and independently determine whether the aggravating

circumstances of which Grate was convicted outweigh the mitigating factors

pursuant to R.C. 2929.05(A).

A. Aggravating Circumstances

{¶ 216} Grate was convicted of two death specifications as to Count 1

(E.G.) and two death specifications as to Count 7 (S.S.). The jury found that Grate

killed E.G. and S.S. as “part of a course of conduct involving the purposeful killing

of * * * two or more persons,” R.C. 2929.04(A)(5). The jury found that he

committed E.G.’s aggravated murder while committing the offense of kidnapping,

R.C. 2929.04(A)(7). And the jury found that he committed S.S.’s aggravated

murder while committing the offense or offenses of kidnapping, rape or aggravated

robbery, R.C. 2929.04(A)(7).

{¶ 217} The evidence at trial supports Grate’s conviction under R.C.

2929.04(A)(5) and (A)(7) with respect to each of the two counts of aggravated

murder. On August 16, 2016, Grate lured E.G. to where he was living on Covert

Court, strangled her, and hid her body in an upstairs closet. On September 8, 2016,

Grate invited S.S. to the same house, raped and strangled her, and hid her body in

the basement. He also stole S.S.’s car.

{¶ 218} The discovery of the bodies in the closet and basement at the Covert

Court house, Grate’s apprehension at the crime scene, his multiple confessions, his

cell-phone videos of S.S.’s rape, and the coroner’s testimony established Grate’s

guilt of the death-penalty specifications for the two aggravated murders. The

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murders were directly linked in time, location, and method of death. See State v.

Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 52 (factors such

as time, location, a common scheme, or a common psychological thread may

establish the factual link necessary to prove a course-of-conduct specification).

B. Mitigating Factors

{¶ 219} Against these aggravating circumstances, we must weigh the

mitigating factors contained in R.C. 2929.04(B). In mitigation, Grate presented

testimony from his half-sister and Dr. Fabian. Grate also made a statement in

allocution before sentencing.

1. Barbara Charter’s testimony

{¶ 220} Charter, Grate’s older half-sister, provided background information

about Grate’s family and upbringing. Charter’s parents, Teresa McFarland and

Edward Meadows, were originally from Kentucky. McFarland and Meadows

married when Meadows was 21 and McFarland was 14. Charter described her

father as a “draft dodger” who wanted to get married and have a child to avoid

being drafted and fighting in the Vietnam War. Charter was born in June 1969.

They moved to Canada and then lived in Ypsilanti, Michigan. Charter stated that

McFarland was an alcoholic and that Meadows physically abused McFarland.

Charter’s parents were divorced when she was two and a half years old. Meadows

returned to Kentucky.

{¶ 221} When Charter was three years old, she and her mother settled in

Marion, Ohio. McFarland worked at Baja Boats and was a dancer at a Marion bar,

where she met Terry Grate, Grate’s father. McFarland married Terry in 1974, and

they had two sons: Jason in 1974 and Grate in 1976. Charter described McFarland’s

second marriage as “off and on.” Grate’s parents divorced “around 1980.”

{¶ 222} Charter stated that McFarland was young and did not give the

children a lot of attention, because “she wasn’t connected to us.” Charter’s first

recollection of Grate was an event that occurred when he was around two years old.

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He squirted mustard on a brand new carpet after telling his mother that he was

hungry and wanted a sandwich but she told him that he had to wait to eat.

{¶ 223} Charter stated that McFarland “would go out a lot and partied with

her friends and we would not see her until Sunday night.” Charter assumed

responsibilities for “being the mother of the house” when she was 12 years old.

Charter took care of Grate and his brother until she was about 16.

{¶ 224} Charter stated that Grate had a lot of problems in school and that

he had learning disabilities. He was held back in kindergarten and first grade, and

testing showed that he had dyslexia. Grate was a very good baseball player, but he

broke his arm playing baseball when he was 14. A large tumor was found in his

arm and part of Grate’s hip was later removed to replace bone in his arm. Grate

never played baseball again.

{¶ 225} Charter married when she was 17 and moved out of the house.

Charter stated that “everything kind of turned to chaos after [she] moved out.”

When Grate was 11, McFarland moved to Kentucky with a man she later married.

Grate spent the next four years living with his father. McFarland later tried to get

Grate to live with her and her current husband, but Grate refused.

{¶ 226} Charter stated that she and her brothers did not live in a “loving

house,” and that “there was no family time, or * * * no loving, nurturing time,

environment.” She has not talked to McFarland for a couple of years, explaining

that her personal relationship with her mother is nonexistent and toxic. Charter

described McFarland’s relationship with Grate as “a controlling relationship. Who

was going to control who, that is how [she] had always seen it. * * * [A]nd it was

a battle in the household, and that was apparent at a young age between the two of

them.”

{¶ 227} During cross-examination, Charter stated that she had not seen

Grate since 2004 and had lost contact with Jason in 2005.

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2. Dr. Fabian’s testimony

{¶ 228} Dr. Fabian characterized Grate’s upbringing as “a quite

tumultuous, chaotic family life, [that was] dysfunctional.” Grate’s mother “escaped

a lot of her own abuse, got married at a young age, [and was] pregnant at a young

age.”

{¶ 229} Grate had an “unstable childhood.” Grate lived with his mother for

nine years before she moved to Kentucky without him. Grate and his brother lived

with his father for a few years. Grate reunited with his mother for a period of time

when she returned to the area. Dr. Fabian stated that Grate’s mother was a bartender

and a “Go-Go Dancer.”

{¶ 230} According to Dr. Fabian, Grate called his mother “crazy and

mentally ill.” Grate said there was a lack of consistency with her, stating that she

would bring men into their home “to find the guy that was going to be a meal

ticket.” Grate reported “early fantasies of wanting to kill his mother.” He was

always afraid of his mother and called her “miserable.” Grate thought she “lived a

life of misery and [he] wanted to take her out of that misery.” Dr. Fabian added:

Even developmentally as a kid, he had fantasies or thoughts

of doing that. So it seems that there was a love and hate split towards

his mother, and [he] had a desire to want to be with her, but also a

rejection and a hatred towards her.

So that would be a focal point of at least my evaluation with

him, and maybe explanation as to these offenses.

Dr. Fabian stated that the “miserable theme” appeared to link Grate’s feelings for

his mother with E.G.’s murder. He stated that Grate wanted to “take his mother out

of her own misery, and I think in some way, shape or form, that theme is carried

out in some of his offenses.”

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{¶ 231} Dr. Fabian stated that “there was a lot of trauma and destruction in

[Grate’s] relationships with women,” which “carries over from his early lack of

connection with his mom.” According to Dr. Fabian, Grate’s romantic

relationships also seemed dysfunctional. “Some of them had domestic violence,

they were destructive in nature.” Grate showed “a lack of intimacy or ability to

form proper physical, sexual, [and] emotional attachments with women.”

{¶ 232} Dr. Fabian diagnosed Grate with a persistent mild depressive

disorder, which is a long-term condition. Grate has learning disabilities, which

often leads to low self-esteem in children. Indeed, Dr. Fabian learned from Grate’s

family that “he had low self-esteem as a youth and was kind of a depressed kid.”

Grate had also been diagnosed with unspecified bipolar and related disorders and

attention-deficit/hyperactivity disorder (“ADHD”). Dr. Fabian stated that there

was “evidence of complex trauma, which is significant trauma that has a foundation

interpersonally between a child and a parent, where there is either abuse or neglect.”

He opined that Grate had suffered from “neglect and emotional detachment” rather

than physical or sexual abuse.

{¶ 233} Grate was also diagnosed with a language-based learning disorder,

which is a neurodevelopmental disorder involving a flawed or compromised brain

function. Dr. Fabian stated that Grate was “reading and functioning academically

somewhere around 10 or 11 years of age, and he did not have that good of skill set,

academically.”

{¶ 234} Dr. Fabian stated that Grate has “a full scale IQ of 83, and that is in

the below average to borderline range of intelligence.” Further testing showed a

score of 76 for verbal comprehension, which is in the “5th percentile”; a score of

100 on perceptual spatial reasoning, which is average; a score of 80 on the “working

memory area,” which is in the “9th percentile”; and a score of 89 on “[p]rocessing

speed,” which is in the “25th percentile,” and is considered to be in the “average

range.”

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{¶ 235} Dr. Fabian believed that Grate has a mild “Neuro Cognizance

Disorder” due to a traumatic brain injury. Grate had some early childhood

concussions. This would affect “areas of executive functioning, kind of how we

reason and problem solve, basically the frontal lobe of the brain.” Dr. Fabian

added, “I will say that [in] my opinion, his brain is not working right, basically, I

think that we have an analogy of a car of four wheels, we have a three-wheeled car

driving on the road.”

{¶ 236} Dr. Fabian also diagnosed Grate with a cannabis-use disorder.

Grate was smoking up to “a quarter ounce per week.” Dr. Fabian believed that

Grate used cannabis “to deal with his emotions, his depression, and even maybe his

energy, his highs, and just to deal with life in a maladaptive matter.”

{¶ 237} Finally, Dr. Fabian diagnosed Grate with a “personality disorder,

* * * mixed and severe.” He stated that Grate had the “characteristics of [an]

antisocial personality.” This includes having difficulty with following rules, being

impulsive and reckless, and having a disregard for himself and others.

{¶ 238} Dr. Fabian stated that around the age of 20, Grate had been treated

for mental illness. He was treated at the Marion General Hospital for depression

and prescribed Zoloft, an antidepressant. He was also treated at an outpatient clinic

in 2016 for depression.

{¶ 239} Dr. Fabian believed that Grate exhibited an attachment disorder

“during these offenses.” He stated: “[Grate’s] mother told me that she thought that

she had her own Reactive Attachment Disorder as a youth * * *. And that she never

attached to anyone, and I think that carried over certainly to how she raised him,

and especially him being off and on with his father, as well.” Dr. Fabian further

explained that Grate had an “inability to connect properly with other people” and

harbored “rage and hate towards his mother.” Dr. Fabian opined that Grate’s rage

towards his mother contributed to his criminal acts towards the victims here. Dr.

Fabian also opined that Grate’s need to be in control, “which he never had with his

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mother,” was interconnected to his actions by “taking control and putting [the

victims] out of their misery that he always wanted to do with his mother. There is

a theme there.”

{¶ 240} During cross-examination, Dr. Fabian acknowledged that he had

found no hospital records diagnosing Grate with a concussion. Dr. Fabian said,

“There is evidence of self-report, family report, but not medically.” He stated that

Grate knew what he was doing was illegal. Grate also expressed a hope to Dr.

Fabian that he would kill more people in prison.

3. Statement in allocution

{¶ 241} Prior to sentencing, Grate made the following statement:

All right. Well, it is * * * a good day, mainly for you all of

you guys and myself, and the hopes that we can move on from all of

this, I don’t know exactly * * * I cannot say that I am normal. But

I know right from wrong, and mainly, if I caused any hate, bitterness

in any of you, I need to work on that, and ask that you maybe forgive

me, and find in your heart someday, I know not today, but someday,

and move on from this life and may justice be served today.

That is most important for [E.G.], [S.S.], and [L.S.].

Thank you for all of your time and this mess. I am sorry for

all human beings having to hear this, okay. I am sorry, I cannot

change nothing, believe me, I would, not for me but for you guys.

Thank you, Your Honor.

C. Sentence Evaluation

{¶ 242} We find nothing mitigating in the nature or the circumstances of

the offenses. Grate lured E.G. to the Covert Court house, strangled her, and hid her

body in an upstairs closet. A few weeks later, Grate lured S.S. to Covert Court,

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where he raped and strangled her. He hid her body in the basement and stole her

car. These are horrific crimes that lack any mitigating features.

{¶ 243} The statutory mitigating factors under R.C. 2929.04(B) include

R.C. 2929.04(B)(1) (victim inducement), (B)(2) (duress, coercion, or strong

provocation), (B)(3) (mental disease or defect), (B)(4) (youth of the offender),

(B)(5) (lack of a significant prior criminal record), (B)(6) (the offender was an

accomplice and not the principal offender), and (B)(7) (any other relevant factors).

{¶ 244} The first six of these statutory factors do not apply here. We give

some weight to other mitigating evidence under R.C. 2929.04(B)(7). This evidence

includes Grate’s confessions and cooperation with police. See State v. Kirkland,

140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 159. It also includes his

drug problems. Although there is no testimony that drugs reduced his ability to

control his actions at the time of the murders, Grate told Dr. Fabian that he was

smoking up to “a quarter ounce” of cannabis every week. See Powell, 132 Ohio

St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 278.

{¶ 245} We give considerable weight to Grate’s mental-health problems

under R.C. 2929.04(B)(7). Grate’s I.Q. of 83 falls within the below-average to

borderline range of intelligence. He has also been diagnosed with a long-term mild

depressive condition, a bipolar and related disorders, ADHD, a language-based

learning disorder, a neuro cognizance disorder, and a personality disorder. See

Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, at ¶ 296; State v.

Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 300.

{¶ 246} In addition, we give weight to Grate’s chaotic background and

upbringing under R.C. 2929.04(B)(7). Charter’s testimony shows that Grate was

raised in a dysfunctional household, in which emotional abuse was prevalent. Dr.

Fabian’s evaluation disclosed that Grate had a particularly difficult relationship

with his mother, who was often away from home on weekends and who brought

different men home frequently. See Kirkland at ¶ 157. But we have seldom given

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decisive weight to this factor. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892

N.E.2d 864, at ¶ 265.

{¶ 247} Dr. Fabian linked Grate’s feelings of misery toward his mother, and

his fantasy of murdering her, with similar feelings that caused him to murder E.G.

and S.S. But we find nothing that is mitigating in this connection. And Grate

acknowledged during allocution that he knew right from wrong when he strangled

E.G. and S.S.

{¶ 248} Upon independent weighing, we conclude that the aggravating

circumstances as to each aggravated-murder count clearly outweigh the mitigating

factors beyond a reasonable doubt. With respect to E.G.’s murder, the convictions

on the specifications for course of conduct and aggravated murder during a

kidnapping strongly outweigh the mitigating factors. With respect to S.S., the

convictions on the specifications for course of conduct and aggravated murder

during a kidnapping, rape or aggravated robbery overwhelm the mitigating factors.

His mitigating evidence is weak in comparison.

{¶ 249} Finally, we must determine whether the sentence is “excessive or

disproportionate to the penalty imposed in similar cases.” R.C. 2929.05(A). We

conclude that the death sentence is both appropriate and proportionate when

compared to other course-of-conduct murders for which the death penalty has been

imposed. See, e.g, State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25

N.E.3d 1023, ¶ 257, overruled on other grounds, State v. Bates, 159 Ohio St.3d

156, 2020-Ohio-634, 149 N.E.3d 475; Trimble, 122 Ohio St.3d 297, 2009-Ohio-

2961, 911 N.E.2d 242, at ¶ 329; State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-

6548, 819 N.E.2d 1047, ¶ 182.

{¶ 250} We also conclude that the death sentence is both appropriate and

proportionate when compared to other kidnapping-murder cases, see, e.g., Martin,

151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, at ¶ 169, State v. McKnight,

107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 334, and Trimble at ¶ 331;

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rape-murder cases, see, e.g., State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677,

984 N.E.2d 948, ¶ 266, State v. Cooey, 46 Ohio St.3d 20, 42, 544 N.E.2d 895

(1989), and State v. Benner, 40 Ohio St.3d 301, 319-320, 533 N.E.2d 701 (1988);

and robbery-murder cases, see, e.g., Hale, 119 Ohio St.3d 118, 2008-Ohio-3426,

892 N.E.2d 864, at ¶ 278, Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873

N.E.2d 1263, at ¶ 270, and Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857

N.E.2d 547, at ¶ 168.

VI. CONCLUSION

{¶ 251} We find no reversible error in the proceedings below. We affirm

the convictions and the sentence of death.

Judgment affirmed.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, and STEWART, JJ.,

concur.

DONNELLY, J., concurs, with an opinion.

_________________

DONNELLY, J., concurring.

{¶ 252} I concur in the court’s opinion and judgment affirming appellant

Shawn Grate’s aggravated-murder convictions and death sentences. I agree that

the overwhelming evidence of Grate’s guilt negates any possibility of prejudice in

an ineffective-assistance-of-counsel claim stemming from the trial phase of the

lower-court proceedings. I am less confident that Grate was not prejudiced by his

counsel’s deficient performance in the mitigation phase.

{¶ 253} The alleged instances of counsel being ineffective in this case are

very concerning. The failings by Grate’s defense counsel were more than plentiful;

some were so blatant that they inspired the trial judge to intervene to prompt

counsel to lodge the most basic of objections. But the ineffective-assistance-of-

counsel claims that I find to be particularly significant are related to counsel’s

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failure to present adequate psychiatric and neurological evidence in the mitigation

phase of Grate’s capital proceedings.

{¶ 254} During the mitigation phase of capital proceedings, the focus is on

the defendant as an individual and on the circumstances surrounding the offenses

rather than on the proof of his guilt. Woodson v. North Carolina, 428 U.S. 280,

304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Gregg v. Georgia, 428 U.S. 153, 197,

96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Unlike the yes-or-no process of determining

a capital defendant’s guilt, the process of determining whether to impose the

ultimate penalty of death requires the jury to weigh any aggravating factors against

any mitigating factors. Gregg at 193. Even with overwhelming proof supporting

the existence of any aggravating factors, a single mitigating factor could potentially

tip the scales against a jury’s decision to impose the death penalty. See Eddings v.

Oklahoma, 455 U.S. 104, 116-117, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Roberts v.

Louisiana, 431 U.S. 633, 637, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977). Accordingly,

it is imperative that a jury be able to consider all relevant evidence in support of

any mitigating factor. See Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49

L.Ed.2d 929 (1976) (plurality opinion); Eddings at 112. .

{¶ 255} Defense counsel failed to ensure the timely analysis of Grate’s

neuroimaging results and failed to ensure that the expert was able to finish Grate’s

mitigation report, leaving the jury with an incomplete view of Grate’s mental

health. Counsel’s failure to provide the jury with Grate’s potential mental-health

diagnoses could be particularly problematic given that mental-health diagnoses are

“entitled to significant weight in mitigation.” State v. Johnson, 144 Ohio St.3d 518,

2015-Ohio-4903, 45 N.E.3d 208, ¶ 132. However, speculation is not evidence and

there is not enough information in the record before this court to conclude whether

Grate has satisfied the prejudice prong of the ineffective-assistance-of-counsel

analysis set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). Information outside the record is necessary to determine

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whether counsel’s failure to present particular evidence had a prejudicial impact on

the outcome of Grate’s mitigation phase of his capital proceedings. See State v.

Cooperrider, 4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983). If such evidence

exists, it would be entirely appropriate to submit it in a postconviction petition as

support for an ineffective-assistance-of-counsel claim. See, e.g., Porter v.

McCollum, 558 U.S. 30, 31, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (evidence that

was not presented during the mitigation phase of a defendant’s capital trial raised

the reasonable probability that the defendant’s sentence would have been different

had the sentencing judge and jury heard the significant mitigation evidence that

defendant’s counsel neither uncovered nor presented).

{¶ 256} If there is any information outside the record to support an

argument that Grate was prejudiced by defense counsel’s deficient performance, I

would certainly hope that such information would be brought to the appropriate

court’s attention in a postconviction petition.

_________________

Christopher R. Tunnell, Ashland County Prosecuting Attorney; and Dave

Yost, Attorney General, and Stephan E. Maher and Brenda S. Leikala, Senior

Assistant Attorneys General, for appellee.

Donald Hicks and Donald Gallick, for appellant.

_________________

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