State v. Knuff

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

v. Knuff, Slip Opinion No. 2024-Ohio-902.]

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. 2024-OHIO-902

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

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

may be cited as State v. Knuff, Slip Opinion No. 2024-Ohio-902.]

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

(No. 2019-1323—Submitted May 2, 2023—Decided March 14, 2024.)

APPEAL from the Court of Common Pleas of Cuyahoga County,

No. CR-17-618285-A.

__________________

DETERS, J.

{¶ 1} This is an appeal of right in a capital case. Thomas E. Knuff Jr. was

convicted on two counts of aggravated murder with death specifications for killing

John Mann and Regina Capobianco. We affirm his convictions and the imposition

of the death sentences.

SUPREME COURT OF OHIO

I. BACKGROUND

A. The Murders

{¶ 2} Knuff was scheduled to be released from prison on April 11, 2017,

after serving a sentence of 15 and a half years. See State v. Knuff, 8th Dist.

Cuyahoga No. 80971, 2002-Ohio-6049. A few days before April 11, Alicia Stoner,

a former prison employee with whom Knuff had had a relationship while he was

incarcerated, offered to pick him up upon his release. Knuff had declined her offer,

saying he had already arranged for a ride with “John and his old lady.”

{¶ 3} Shortly after his release, Knuff began staying at Village Motel in

Strongsville in a room paid for by Stoner. On May 10, Knuff told his parole officer,

Marc Fisher, that he would sometimes visit Stoner at her house but that he was

living at the motel. When Fisher went to the motel, however, he learned that the

manager had not seen Knuff since May 5. When Fisher confronted Knuff about

being dishonest regarding his living arrangements, Knuff told Fisher that he was

living with John Mann at 6209 Nelwood Road in Parma Heights. Fisher told Knuff

to report to him the next day.

{¶ 4} That same day, May 10, Fisher spoke with Mann on the telephone.

Mann told Fisher that he lived alone, was not under court-ordered supervision, and

had no weapons or dangerous animals in his house, and he agreed to unannounced

home visits and warrantless searches. So Fisher granted Knuff permission to stay

with Mann, pending a home visit. Knuff reported to Fisher on May 11 as he had

been instructed and received a sanction for being dishonest about his living

arrangements.

{¶ 5} Contrary to Mann’s statements to Fisher, Mann was not living alone

when he allowed Knuff to move into his residence; Regina Capobianco also had

been living at 6209 Nelwood Road, since 2016. The relationship between Knuff

and Capobianco was a complicated one that predated Knuff’s 2017 release from

prison. In 2005, Capobianco began a lengthy pen-pal relationship with Knuff.

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Their relationship, which had developed into a romantic one, ended during Knuff’s

imprisonment because Capobianco had begun using his money to purchase drugs

for herself. When Knuff moved into the house at 6209 Nelwood Road, Capobianco

was still abusing drugs. She was also engaging in prostitution—sometimes at

Mann’s house. Residing with someone engaged in crimes such as drug use or

prostitution could have resulted in progressive sanctions against Knuff. So, a

conflict arose between Knuff and Capobianco, which came to a head on May 11.

{¶ 6} That night, around 8:00 p.m., Knuff sent a text message to Stoner

requesting money for a room for that night, saying, “[W]e have to get Regina out

[of the house] now.” Stoner sent Knuff $80 through Western Union. From 8:19

p.m. on May 11 until the afternoon of May 12, Stoner repeatedly called and sent

text messages to Knuff but received no response. She also called and sent text

messages to Mann between 12:27 a.m. and 10:22 a.m. on May 12 but could not

reach him.

{¶ 7} In the early afternoon of May 12, Knuff finally called Stoner,

sounding panicky and upset. He told her that he needed her to come to him but that

he couldn’t explain why at the time. Stoner picked Knuff up at a bar.

{¶ 8} Once Knuff was in her car, Stoner saw that one of his fingers was

bandaged. Knuff told her that drug dealers had come to Mann’s house because

Capobianco owed them money. He said the dealers beat Mann and took Mann’s

car. He explained that afterwards, a conversation between Mann and Capobianco

escalated and that Capobianco stabbed Mann. Then, Knuff told Stoner, the

situation between himself and Capobianco escalated and he stabbed Capobianco.

Knuff claimed that his finger had been injured when he put up a hand to block

Capobianco from stabbing him. He told Stoner that he remembered stabbing

Capobianco and then blacking out; when he came to, he grabbed Mann’s cellphone

and bus pass and left the house. When Stoner urged Knuff to call an ambulance for

Mann and Capobianco, Knuff responded, “No, they’re dead.”

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{¶ 9} In addition to the story he told Stoner, Knuff gave a variety of

explanations to different people regarding how he had injured his finger. He told

one person that he had been involved in a car chase while driving his son’s truck

and had hurt his finger on the vehicle. To others, he explained that a group of men

had jumped him in Cleveland and tried to stab him; he claimed to have been cut in

the process of disarming these attackers. Other explanations included that he had

been bitten by a dog, that he had cut his finger while trimming hedges, and that he

had been injured in a fight with some men who had supposedly attacked Mann

inside the Nelwood Road house.

{¶ 10} The latter story was one that he told his son Tommy. On the morning

of May 13, Knuff called Tommy and asked to be picked up. Tommy picked him

up from 6209 Nelwood Road. When Knuff got into the vehicle, Tommy asked him

about the bandage on his hand. Knuff then told Tommy there were two dead people

back at the house. When Tommy asked Knuff whether he was responsible for those

deaths, Knuff answered that he was.

{¶ 11} Knuff told Tommy that he had been cleaning the basement at 6209

Nelwood Road and when he went upstairs, he found two men stabbing Mann.

Knuff told Tommy that he had stepped into the fray and killed both of the men who

had been attacking Mann. Knuff told Tommy that he wanted to chop off the men’s

fingers and throw them into a sewer and then chop the bodies up to get rid of them.

{¶ 12} Two days later, on May 15, Tommy drove Knuff to a store where

Knuff bought super-strength glue for his injured finger and a box of large, plastic

trash bags known as “contractor bags.”

{¶ 13} The next day, Stoner gave Knuff a ride to another store where he

bought two hacksaws and two blades and shoplifted an X-Acto knife. Knuff told

Stoner that he was going to use the hacksaws to dismember the bodies.

{¶ 14} On May 17, Knuff took his son’s white SUV without permission.

That night, he broke into two Parma Heights businesses—Classic Hair Studio and

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January Term, 2024

Spa & Nails. He took a cash register from Classic Hair Studio and cash from Spa

& Nails. Surveillance video from Classic Hair Studio showed him entering the

business and driving away in a white SUV.

{¶ 15} On May 18, Ohio State Highway Patrol Sergeant Alan Dunbar

responded to an alert about a man on a highway holding a gun to his head. Sergeant

Dunbar found Knuff walking back and forth along the highway and heard him say,

“Just kill me, I don’t want to live anymore.” Knuff did not have a gun, however.

Sergeant Dunbar took him into custody without any issues. Knuff told Sergeant

Dunbar that undercover police officers had been chasing him while he was driving

his son’s SUV and that he had crashed the SUV and abandoned it. Sergeant Dunbar

observed that one of Knuff’s index fingers was severely injured, and he called for

an emergency medical transport. Knuff was taken to Medina General Hospital

where Sergeant Dunbar requested a psychiatric hold because Knuff had threatened

self-harm.

{¶ 16} At the hospital, Knuff was seen by Dr. Michelle Beskid, an

emergency-medicine physician. He told Dr. Beskid that he had injured his finger

while being chased by people. However, he told a physician’s assistant that he had

been wounded defending himself when his girlfriend tried to stab him.

{¶ 17} Knuff was sent to Akron General Medical Center for a psychiatric

evaluation and care for his injured finger. There, a nurse in the psychiatric unit

interviewed him. Knuff told the nurse that the previous week, a prostitute had

attacked and killed his roommate John with a knife in his home. Knuff told the

nurse that when he tried to intervene, the prostitute attacked him, lacerating his left

index finger and inflicting other cuts on his hand. Knuff told the nurse he had then

killed the prostitute in self-defense. Knuff’s finger was ultimately amputated.

{¶ 18} Meanwhile, Parma Heights Police Detective Adam Sloan was

investigating Capobianco’s disappearance. Toni Bender, Capobianco’s sister, told

him that Capobianco had been in communication with a recently released prisoner

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named Thomas Knuff Jr. Detective Sloan tried to locate Knuff, thinking that he

might have information about Capobianco. During his investigation, Detective

Sloan learned that Knuff had missed a scheduled court date and that there was an

outstanding warrant for his arrest.

{¶ 19} On May 31, 2017, law-enforcement officers from Brunswick Hills

and Parma Heights Police Departments arrested Knuff at a friend’s home where he

had been staying. When Detective Sloan asked Knuff about Capobianco, Knuff

answered the questions as though Mann and Capobianco were still alive. He told

the detective, “If you can’t find [Mann], I’d imagine they’re together.” He

suggested that Detective Sloan go to Canton and check with Capobianco’s friends,

“Earl” and “Allen.”

{¶ 20} A couple weeks after Knuff’s arrest, on June 15, Parma Heights

police officers responded to a report of a broken window at 6209 Nelwood Road.

One of the responding officers, Scott Jackson, noted a strong odor and the presence

of numerous flies when he approached the door of the residence, but officers found

no one inside the house.

{¶ 21} On June 20, Detective Sloan sent an email to local law-enforcement

agencies and the media identifying Capobianco as a missing person. When Officer

Jackson read the height of Capobianco—4 feet, 11 inches—he realized that her

body may have been concealed under the clutter of the house at 6209 Nelwood

Road. He suggested that officers return to the house to search it more thoroughly.

{¶ 22} A search was conducted the next day. In one of the bedrooms,

officers found several garbage bags piled around a bed. When they moved the bags,

they uncovered two decomposing bodies that were later identified as Mann and

Capobianco. Autopsies determined that both Mann’s and Capobianco’s cause of

death was homicide caused by sharp-force injuries to the neck and trunk.

{¶ 23} Sometime in late June 2017, Stoner gave Parma Heights police

detectives an undated letter that had been written by Knuff, which he had instructed

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January Term, 2024

her to deliver to his friend Robert Dlugo. Knuff wrote in the letter that he expected

to be returned to prison soon; he stated:

So now I’m really in a jam because before I get out, some evidence

will be discovered * * *, I’ll probably die in prison. * * * I need

someone I can trust to go start a fire at the house I was staying at.

* * * I have some trash bags in a back bedroom with clothes &

papers that when discovered, my life is over. I was in the process

of moving it all when I was arrested & now the only thing I can do

is torch it all.

Knuff stressed how important the task was. “[I]f they go thru [sic] them bags,” he

wrote, “it[’]s over for me bro.”

{¶ 24} In the letter, Knuff promised Dlugo that he would be “well taken

care of” and “won’t ever have to want” because Knuff still had “30,000 $ [sic] from

insurance money.” He offered Dlugo $500 immediately and stated that he would

split some insurance proceeds he had with Dlugo when he came home. He also

provided detailed instructions on how to accomplish the arson, describing the house

and pinpointing the location of the “most incriminating shit” in the back bedroom

(where he had left the bodies).

{¶ 25} On June 29 and 30, 2017, Detective Sloan and Detective Luke

Wittasek, also of the Parma Heights Police Department, conducted several

interviews with Knuff. In these interviews, Knuff consistently claimed that after

Capobianco stabbed Mann to death, she attacked Knuff and he killed her in self-

defense.

{¶ 26} In the police interviews, Knuff’s version of the events of May 11

was as follows: He had been trying to get Capobianco to move out of the house at

6209 Nelwood Road because he feared that he would be returned to prison for

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SUPREME COURT OF OHIO

violating parole if his parole officer found Capobianco there using drugs or

engaging in prostitution. On the evening of May 11, Capobianco had a prostitution

“date” scheduled. Knuff gave her $65 or $70 that he had gotten from Stoner so that

Capobianco could take her date to a motel. Capobianco left the house but later

called Knuff, telling him that she was returning with her date. Knuff then left the

house.

{¶ 27} According to Knuff, when he returned to the house, Capobianco was

screaming and cursing at Mann. Knuff approached the back door, heard Mann cry

in pain, and saw Capobianco assaulting Mann. At first, Knuff thought Capobianco

was punching Mann, but he then saw that she was stabbing him with a knife.

{¶ 28} Knuff claimed that he had entered the house, disarmed Capobianco,

and threw the knife aside. He stated that Capobianco then ran into the kitchen and

that while he was checking on Mann, Capobianco returned with another knife and

attacked him. Knuff said he got the second knife away from Capobianco, struggled

with her, and finally pinned her down. Knuff told the detectives that Capobianco

had been stabbed during the struggle.

{¶ 29} Knuff recounted to the detectives that he left the house after the

stabbings. Realizing that he might go back to prison because of the killings, Knuff

eventually decided he should clean up the crime scene. By his own admission, he

undertook a variety of tasks to clean the crime scene, including dragging the bodies

into a bedroom, covering the bodies, and trying to wipe away blood spatter.

B. Procedural History

{¶ 30} Knuff was indicted on 21 counts:

Count 1 Aggravated murder of Capobianco with prior calculation and design,

in violation of R.C. 2903.01(A), with four death-penalty

specifications: one course-of-conduct specification for the

purposeful killing of two or more persons, in violation of R.C.

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January Term, 2024

2929.04(A)(5), and three felony-murder specifications—one

predicated on aggravated burglary, one predicated on kidnapping,

and one predicated on aggravated robbery—all in violation of R.C.

2929.04(A)(7)

Count 2 Aggravated murder of Capobianco, in violation of R.C. 2903.01(B),

with four death-penalty specifications: one course-of-conduct

specification for the purposeful killing of two or more persons, in

violation of R.C. 2929.04(A)(5), and three felony-murder

specifications—one predicated on aggravated burglary, one

predicated on kidnapping, and one predicated on aggravated

robbery—all in violation of R.C. 2929.04(A)(7)

Count 3 Aggravated murder of Mann with prior calculation and design, in

violation of R.C. 2903.01(A), with four death-penalty specifications:

one course-of-conduct specification for the purposeful killing of two

or more persons, in violation of R.C. 2929.04(A)(5), and three

felony-murder specifications—one predicated on aggravated

burglary, one predicated on kidnapping, and one predicted on

aggravated robbery—all in violation of R.C. 2929.04(A)(7)

Count 4 Aggravated murder of Mann, in violation of R.C. 2903.01(B), with

four death-penalty specifications: one course-of-conduct

specification for the purposeful killing of two or more persons, in

violation of R.C. 2929.04(A)(5), and three felony-murder

specifications—one predicated on aggravated burglary, one

predicated on kidnapping, and one predicated on aggravated

robbery—all in violation of R.C. 2929.04(A)(7)

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Count 5 Aggravated burglary, in violation of R.C. 2911.11(A)(1), with a

notice-of-prior-conviction specification and a repeat-violent-

offender specification

Count 6 Aggravated robbery of Mann, in violation of R.C. 2911.01(A)(3),

with a notice-of-prior-conviction specification and a repeat-violent-

offender specification

Count 7 Grand theft (of Mann’s motor vehicle), in violation of R.C.

2913.02(A)(1)

Count 8 Theft (of Mann’s cellphone), in violation of R.C. 2913.02(A)(1)

Count 9 Kidnapping (of Capobianco), in violation of R.C. 2905.01(A)(3),

with a notice-of-prior-conviction specification and a repeat-violent-

offender specification

Count 10 Kidnapping (of Mann), in violation of R.C. 2905.01(A)(3), with a

notice-of-prior-conviction specification and a repeat-violent-

offender specification

Count 11 Gross abuse of a corpse (Capobianco), in violation of R.C.

2927.01(B)

Count 12 Gross abuse of a corpse (Mann), in violation of R.C. 2927.01(B)

Count 13 Breaking and entering (of Classic Hair Studio), in violation of R.C.

2911.13(A)

Count 14 Vandalism (of the property of Classic Hair Studio), in violation of

R.C. 2909.05(B)(1)(b)

Count 15 Theft (of a cash register containing cash/money from Classic Hair

Studio), in violation of R.C. 2913.02(A)(1)

Count 16 Breaking and entering (of the property of Spa & Nails), in violation

of R.C. 2911.13(A)

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Count 17 Vandalism (of the property of Spa & Nails), in violation of R.C.

2909.05(B)(1)(b)

Count 18 Theft (of money or services from Spa & Nails), in violation of R.C.

2913.02(A)(1)

Count 19 Attempted tampering with evidence, in violation of R.C. 2923.02

and 2921.12(A)(1)

Count 20 Conspiracy (to commit or promote or facilitate the commission of

aggravated arson), in violation of R.C. 2923.01(A)(1)

Count 21 Conspiracy (to commit or promote or facilitate the commission of

aggravated arson), in violation of R.C. 2923.01(A)(2)

{¶ 31} A jury found Knuff guilty on all counts except Count 6, aggravated

robbery, and the four felony-murder specifications predicated on aggravated

robbery. Knuff was found guilty of all the other specifications: three death-penalty

specifications for each aggravated-murder count, a notice-of-prior-conviction

specification and a repeat-violent-offender specification for the aggravated-

burglary count, and a notice-of-prior-conviction specification and a repeat-violent-

offender specification for each kidnapping count.

{¶ 32} The trial court merged Count 1 with Count 2 (aggravated murder of

Capobianco) and Count 3 with Count 4 (aggravated murder of Mann).

Additionally, Count 9 (kidnapping of Capobianco) was merged with Count 2, and

Count 10 (kidnapping of Mann) was merged with Count 4. The state elected to

proceed with sentencing on the aggravated-felony-murder counts (Counts 2 and 4).

The court also merged Counts 14 and 15 (vandalism and theft of the property of

Classic Hair Studio) with Count 13 (breaking and entering of Classic Hair Studio)

and Counts 17 and 18 (vandalism and theft of the property of Spa & Nails) with

Count 16 (breaking and entering of Spa & Nails). And it merged the two conspiracy

counts.

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{¶ 33} After hearing mitigating evidence, the jury recommended death

sentences on both aggravated-murder counts, and the trial-court judge sentenced

Knuff to death on each count. The judge imposed an aggregate prison term of 37

years for the noncapital counts.

{¶ 34} Knuff appealed to this court, presenting 24 propositions of law. We

affirm his convictions and death sentences, but we remand the cause for the limited

purpose of correcting the judgment entry’s imposition of court costs against Knuff.

II. ANALYSIS1

A. Proposition of Law No. I: Unrecorded Proceedings

{¶ 35} In his first proposition of law, Knuff contends that he suffered

material prejudice because the trial court improperly failed to record certain

“pretrial proceedings”—primarily pretrial conferences—but he also complains that

no record was made of the jury’s view of the crime scene.

{¶ 36} Knuff does not identify the pretrial conferences that he contends

were not recorded. However, the trial court’s docket reflects that frequently,

pretrial conferences (sometimes the docket refers to these conferences as

“pretrials”) and “status hearings” were conducted by the court. The docket also

indicates that numerous “attorney conferences” were held. (The trial court appears

to have used these three terms interchangeably.) The majority of these pretrials,

status hearings, and attorney conferences were not recorded. However, transcripts

do exist for pretrials that were held on August 9, 2017, March 5, 2018, and April 9,

2019, and for attorney conferences that were held on June 20 and December 11,

2018.

1. We consider Knuff’s propositions of law in approximately the order the alleged errors occurred

in the proceedings.

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{¶ 37} Crim.R. 42(D) requires trial courts to “conduct all pretrial and post-

trial conferences on the record.” The issue, then, is what follows from the trial

court’s failure to comply with Crim.R. 42(D).

{¶ 38} Knuff argues that the failure to comply is reversible error. He

compares this case to State v. Said, 71 Ohio St.3d 473, 644 N.E.2d 337 (1994), and

State v. Clinkscale, 122 Ohio St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862, in which

this court held that the failure to record some proceedings constitutes reversible

error. But those cases are distinguishable from this one.

{¶ 39} Said involved an unrecorded competency hearing for the five-year-

old alleged victim—a hearing that was “an indispensable tool.” Said at 476.

Failing to record the hearing was a “fundamental” error that “preclude[d] a proper

review of the application of [Evid.R. 807].” Id. at 475.

{¶ 40} The other case relied on by Knuff—Clinkscale—is significant

because even though it did not involve a death sentence, the defendant was charged

with a capital offense, id. at ¶ 11, and thus the case involved the principle that “the

court must conduct proceedings in capital cases with a strict level of care that

comports with their unique status,” id. at ¶ 23. As in Said, the conclusion in

Clinkscale was based on the critical nature of the unrecorded portion of the

proceeding—the dismissal of a juror during the jury’s deliberations, Clinkscale at

¶ 5. In Clinkscale, this court stressed that the unrecorded matters involved “the

dismissal and replacement of a deliberating juror,” and we said that the recording

of such matters was “of critical importance to protecting a defendant’s

constitutional rights.” Id. at ¶ 15; see also id. at ¶ 18. Additionally, the defendant

in Clinkscale had objected in the trial court to the lack of recording,

(unsuccessfully) attempted to reconstruct the proceeding for the record, and

suffered prejudice from the resulting inability to demonstrate whether the juror’s

dismissal had affected his constitutional rights. Id. at ¶ 16-18.

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{¶ 41} The state directs us to another case for guidance—State v. Palmer,

80 Ohio St.3d 543, 687 N.E.2d 685 (1997), a capital case in which we declined to

reverse the defendant’s conviction, despite the trial court’s failure to record

conferences it held with the attorneys at the bench and in chambers and its failure

to record a jury view. We held that

reversal of convictions and sentences on grounds of some

unrecorded bench and chambers conferences, off-the-record

discussions, or other unrecorded proceedings will not occur in

situations where the defendant has failed to demonstrate that (1) a

request was made at trial that the conferences be recorded or that

objections were made to the failures to record, (2) an effort was

made on appeal to comply with App.R. 9 and to reconstruct what

occurred or to establish its importance, and (3) material prejudice

resulted from the failure to record the proceedings at issue.

Id. at 554; accord State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d

127, ¶ 138. Although the defendant in Palmer tried to reconstruct the unrecorded

conferences, he could not show that his trial counsel had asked that they be

recorded. Even more importantly, the defendant “failed to affirmatively

demonstrate any material prejudice resulting from the unrecorded matters.” Palmer

at 554. “[O]ur cases clearly hold that prejudice will not be presumed from the mere

existence of * * * unrecorded bench and chambers conferences in capital cases.”

Id.; see also State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d

1038, ¶ 135.

{¶ 42} The unrecorded pretrials at issue here are akin to the “relatively

unimportant portions of [the] trial” that were at issue in Palmer, Clinkscale, 122

Ohio St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862, at ¶ 14. Furthermore, nothing

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in the record shows that Knuff’s trial counsel asked that any of these pretrials be

recorded. Nor has Knuff demonstrated any prejudice by the trial court’s failure to

record the pretrials. The failure to record the pretrials was not reversible error.

{¶ 43} Knuff also argues that the trial court erred in not recording the jury

view. The record indicates that the court reporter attended the jury view—at least,

the trial-court judge said she intended for the court reporter to attend—but the only

record of the jury view is the following notation in the transcript: “Thereupon, The

Court, Counsel, and Jury proceeded to a jury view.” This notation suggests that

defense counsel attended the jury view, but the transcript contains no indication

that defense counsel objected to its not being recorded. As with the pretrials, Knuff

has failed to demonstrate that he objected at trial to the court’s failure to record the

jury view and that material prejudice resulted from that failure.

{¶ 44} Thus, we reject Knuff’s first proposition of law.

B. Proposition of Law No. VI: Severance

{¶ 45} In his sixth proposition of law, Knuff contends that the trial court

erred by denying his motion to sever the breaking-and-entering and related

vandalism and theft charges (Counts 13 through 18) from the indictment for a

separate trial.

{¶ 46} “The law favors joining multiple offenses in a single trial under

Crim.R. 8(A) if the offenses charged ‘are of the same or similar character.’ ” State

v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). A defendant claiming error

in the denial of severance must affirmatively show that his rights were prejudiced

and that the trial court abused its discretion in refusing to grant separate trials. State

v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. But the state

may rebut the claim of prejudice by showing that it “could introduce evidence of

the joined offenses as ‘other acts’ under Evid.R. 404(B)” or that “ ‘evidence of each

crime joined at trial is simple and direct.’ ” State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 96, quoting Lott at 163.

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{¶ 47} Here, the evidence supporting Counts 13 through 18 was sufficiently

simple and direct to refute Knuff’s claim of prejudice. The counts were proved

principally by the testimony of the victimized shop owners, security-camera

footage, crime-scene photos, and Knuff’s admissions to police during his

interrogation on June 13, 2017. This evidence was separate and distinct from the

evidence that the state used to prove the murders and other crimes that Knuff

committed at the house at 6209 Nelwood Road. It is highly unlikely that the jury

was confused about which evidence applied to the break-ins and which applied to

the murders. See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d

166, ¶ 52.

{¶ 48} Accordingly, we reject Knuff’s sixth proposition of law.

C. Proposition of Law No. VII: Right to Self-Representation

{¶ 49} Knuff’s seventh proposition of law is that the trial court improperly

refused his request to represent himself without inquiring whether his waiver of

counsel was knowingly, voluntarily, and intelligently made.

{¶ 50} On April 17, 2019, eight days before jury selection began, Knuff’s

trial counsel informed the trial court: “[A]t this time I believe Mr. Knuff would like

to make a motion to the court.” Knuff stated:

First of all, let me say in no way am I trying to disrespect or

delay any proffer to the court. It’s something I have been

considering strongly over the last month-and-a-half, two months of

asking you to [let me] represent myself in this matter because, for

one, there is many things wrong with this case that I know are

wrong. It could be critical to the verdict one way or the other, and

there is key documentation that I believe I’m the only one that would

be able to pinpoint and say this is this and this is that to give me a

fair standing in this trial.

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And I know one of the problems has been like the counsel-

only block and trying to explain to my attorneys and * * * it’s a life-

or-death situation for me. I’m facing the death penalty. I know if

I’m given the time, even a month or two of working fast and

diligently, that I would be able to gather all the things that I know

are there and if I were to present them to you, you would see that

I’m not pulling your leg or wasting the court’s time. It’s very critical

stuff. I believe it’s key to my defense.

(Emphasis added.)

{¶ 51} The trial court immediately denied Knuff’s motion. The court

pointed out that the case had been on the docket for approximately two years and

that Knuff’s attorneys were two of the “most diligent and most experienced

attorneys this state has.” The judge added that she had talked to Knuff the prior

week and that Knuff “probably should have mentioned [it then] if [he] were really

serious about it.”

{¶ 52} In response, Knuff acknowledged that his request was tardy, saying

that he believed additional witnesses and evidence required investigation. He

relayed that he had told his attorneys that he “really didn’t want to do this on [his]

own but [that he] felt that [they] needed a little more time.” To this, the judge

replied, “[E]very defendant that is coming up for trial * * * has the exact same

argument * * *. It’s typically a trial delay tactic.” Accordingly, the judge denied

Knuff’s request as “untimely” and “disingenuous.”

{¶ 53} After the trial-court judge denied Knuff’s request, the prosecutor

offered to remove the counsel-only designation from any discovery documents that

Knuff wanted to review personally. The judge asked Knuff, “Does that help?” And

Knuff replied: “Yeah, that helps. Like I said—yes, your Honor.” That ended the

discussion, and the topic of self-representation was not raised again.

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{¶ 54} We have recognized that “a defendant in a state criminal trial has an

independent constitutional right of self-representation and * * * may proceed to

defend himself without counsel when he voluntarily, and knowingly and

intelligently elects to do so.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399

(1976), paragraph one of the syllabus, citing Faretta v. California, 422 U.S. 806,

95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But this right—called a Faretta right—must

be “ ‘timely and unequivocally asserted’ ” or else it is waived. State v. Cassano,

96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.3d 81, ¶ 38, quoting Jackson v. Ylst,

921 F.2d 882, 888 (9th Cir.1990).

{¶ 55} Assertions of the right to self-representation must also be balanced “

‘against considerations of judicial delay.’ ” United States v. Powell, 847 F.3d 760,

774 (6th Cir.2017), quoting United States v. Martin, 25 F.3d 293, 295-296 (6th

Cir.1994). In fact, “[e]ven a clear request made prior to trial may be denied when

it ‘is merely a tactic to secure a delay in the proceeding.’ ” Id., quoting Robards v.

Rees, 789 F.2d 379, 383 (6th Cir.1986).

{¶ 56} “If a trial court denies the right of self-representation, when properly

invoked, the denial is per se reversible error.” State v. Ahmed, 103 Ohio St.3d 27,

2004-Ohio-4190, 813 N.E.2d 637, ¶ 104. The contested issue here is whether Knuff

properly invoked his Faretta right.

{¶ 57} The state contends that Knuff did not unequivocally invoke his right

to self-representation and that he was seeking to delay the proceedings. But we

need not decide whether Knuff’s request for self-representation was unequivocal,

because we conclude that the request—which was made just eight days before jury

selection began—was untimely and was properly denied for that reason.

{¶ 58} “[A] request for self-representation can be denied when the request

is untimely.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d

1112, ¶ 76; accord Martinez v. Court of Appeal of California, Fourth Appellate

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Dist., 528 U.S. 152, 161, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (defendant must

make timely assertion of Faretta right).

{¶ 59} In Faretta, the defendant’s declaration that he wanted to represent

himself was made weeks before trial. 422 U.S. at 835, 95 S.Ct. 2525, 45 L.Ed.2d

562. The United States Supreme Court said, “In forcing Faretta, under these

circumstances, to accept against his will a state-appointed public defender, the

California courts deprived him of his constitutional right to conduct his own

defense.” (Emphasis added.) Id. at 836. Thus, “to the extent that Faretta addresses

timeliness, as a matter of clearly established law it can only be read to require a

court to grant a self-representation request when the request occurs weeks before

trial.” (Emphasis added.) Hill v. Curtin, 792 F.3d 670, 678 (6th Cir.2014) (en banc).

{¶ 60} Many courts have held that a motion for self-representation is timely

when it is made any time before the trial begins. See State v. Christian, 657 N.W.2d

186, 191-193 (Minn.2003) (motion timely when made before voir dire begins);

United States v. Johnson, 223 F.3d 665, 668 (7th Cir.2000) (motion timely when

made before jury empaneled) (citing cases from Tenth and Second Circuits); United

States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.1979) (motion timely when made

before “meaningful trial proceedings” have commenced). However, other courts

have held that a request is untimely if it is not made “within a reasonable time prior

to commencement of trial.” People v. Windham, 19 Cal.3d 121, 127-128, 560 P.2d

1187 (1977). Accord Lyons v. State, 106 Nev. 438, 445-446, 796 P.2d 210 (1990),

clarified on other grounds by Vanisi v. State, 117 Nev. 330, 341, 22 P.3d 1164

(2001).

{¶ 61} We have rejected a bright-line rule that a motion for self-

representation is timely when it is made “any time before trial.” Cassano, 96 Ohio

St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, at ¶ 40 (defendant’s request made three

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days before trial was untimely).2 Yet Knuff argues that a motion for self-

representation that is made eight days before trial, as his was, should be considered

timely because in each of the cases cited in Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914, 12 N.E.3d 1112, the court found timely a motion for self-representation

that was made even closer than eight days before trial. While Knuff’s assertion

regarding the cases cited in Neyland is true, courts have also found requests similar

to Knuff’s to be untimely. See United States v. Smith, 413 F.3d 1253, 1281 (10th

Cir.2005), overruled on other grounds by United States v. Hutchinson, 573 F.3d

1011 (10th Cir.2009); People v. Ruiz, 142 Cal.App.3d 780, 784, 790-791, 191

Cal.Rptr. 249 (1983).

{¶ 62} And other factors affect the timeliness determination: the need for a

continuance if the motion is granted, the number of previous defense-requested

continuances, the length of time the case has been pending, any previous

expressions of dissatisfaction with counsel by the defendant, and the complexity of

the case. In Smith, for instance, the Tenth Circuit deemed a motion for self-

representation untimely because it was asserted six days before trial in a complex

case that had been going on for nearly a year, that had previously been continued,

and that would require a lengthy continuance if the request were granted. Smith at

1281; see also, e.g., Lyons at 446 (request timely if made early enough to allow

defendant to prepare for trial without continuance). “The requirement of timeliness

is to avoid unjustifiable delay or disruption of orderly court proceedings.” Ruiz at

791.

2. Admittedly, in Cassano v. Shoop, the United States Court of Appeals for the Sixth Circuit rejected

our conclusion in Cassano that Cassano’s motion for self-representation was untimely. Shoop, 1

F.4th 458, 474-475 (6th Cir.2021). But Cassano is distinguishable from this case because Cassano’s

motion for self-representation that was made three days before trial was not his first such motion.

Indeed, the Sixth Circuit acknowledged that the request made three days before trial “might have

been untimely” had it been Cassano’s first request. Shoop at 475. Cassano is further distinguishable

because the trial court “contribut[ed] to Cassano’s purportedly untimely request” by telling him

months earlier that he had no right to represent himself. Shoop at 475.

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{¶ 63} Here, Knuff indicated that if he were allowed to represent himself,

he might need “a month or two” to “gather all the things that [he knew were] there.”

The indictment was filed on July 10, 2017, so the case had been pending 21 months

when Knuff moved to represent himself on April 17, 2019, eight days before the

trial was scheduled to begin. And Knuff had already been granted three

continuances. Knuff had not previously indicated any dissatisfaction with counsel

or even hinted at wishing to represent himself. Under these circumstances, we hold

that Knuff’s request to represent himself was untimely.

{¶ 64} Because Knuff’s motion to represent himself was untimely, the trial

court did not err by denying it without first inquiring into the knowing, intelligent,

and voluntary nature of Knuff’s attempted waiver of counsel. Accordingly, we

reject Knuff’s seventh proposition of law.

D. Proposition of Law No. VIII: Jury Selection

{¶ 65} Knuff argues in his eighth proposition of law that the trial court

unreasonably restricted his counsel’s voir dire questioning, thereby denying him a

meaningful, constitutionally adequate voir dire.

{¶ 66} During voir dire, defense counsel told several prospective jurors that

at the start of the penalty phase, Knuff would be entitled to a “presumption of a life

sentence.” Eventually, the state objected to defense counsel’s use of the word

“presumption” in the context of the penalty phase. The prosecutor explained that

he did not object to defense counsel’s telling prospective jurors that the state had

the burden of proof on the issue of a death sentence but that counsel’s use of the

word “presumption” was inconsistent with this court’s precedent. Defense counsel

agreed to use different language and continued questioning prospective jurors as

follows: “When we start this second phase, presume a death sentence can only be

imposed if the State of Ohio proves to you beyond a reasonable doubt that the

aggravating circumstances outweigh the mitigating factors.”

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{¶ 67} Later during voir dire, defense counsel said to a prospective juror:

“[I]t’s assumed that he should get a life sentence unless and until the government

can prove beyond a reasonable doubt that those aggravating circumstances

outweigh any mitigation.” The prosecutor objected. At sidebar, the trial court

asked defense counsel to “lay the options out” neutrally, “without saying we’re

starting with life options.” Defense counsel responded:

The life options are there no matter what. That’s all I’ve

said. * * * You have life options on the table. One of those is an

appropriate sentence that the legislature found for this crime. If they

prove beyond a reasonable doubt the aggravating circumstances

outweigh the mitigating factors, then it’s death. Otherwise, these

[life sentences] are just as appropriate penalties.

{¶ 68} The trial court said: “That’s fine. * * * Can we say it like that?”

Defense counsel replied that he could but that he preferred to “say it the way [he’d]

been saying it.” The trial-court judge said, “I like the way you said it just now.”

When defense counsel sought a yes or no ruling on his use of the “presumption”

language, the judge replied: “I’m telling you I like the new way that you’re saying

it” (i.e., without “presumption”).

{¶ 69} During further voir dire questioning, defense counsel told

prospective jurors that in the penalty phase, the jury would “start out with” a life

sentence and could return a death sentence only if the state carried its burden.

{¶ 70} A trial-court judge has discretion over the scope, length, and manner

of voir dire. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 40;

State v. Getsy, 84 Ohio St.3d 180, 190, 702 N.E.2d 866 (1998). However,

“[q]uestions on voir dire must be sufficient to identify prospective jurors who hold

views that would prevent or substantially impair them from performing the duties

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required of jurors.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836

N.E.2d 1173, ¶ 57, citing Morgan v. Illinois, 504 U.S. 719, 734-735, 112 S.Ct.

2222, 119 L.Ed.2d 492 (1992).

{¶ 71} Knuff contends that the trial court’s restriction on defense counsel’s

use of the word “presumption” during voir dire questioning was improper and

arbitrary. He argues that it was “critical for the defense to ensure that the jurors

understood the weighing process as a vehicle by which mercy can be expressed and

that a death sentence could only be imposed if the State carried its burden” of

establishing that the aggravating circumstances outweigh the mitigating factors.

{¶ 72} But the trial court did allow defense counsel to explain the state’s

burden to prospective jurors, even allowing counsel to say that a life sentence is

what they “start out with” when considering the sentence. Knuff does not expound

on why his counsel’s use of the specific phrase “presumption of life” during voir

dire questioning was necessary to convey this concept. Nor does he cite any

authority holding that defense counsel was entitled to use that phrase.

{¶ 73} Ultimately, the issue is whether the trial court, by barring defense

counsel from using the phrase “presumption of life” during voir dire prevented

counsel from engaging in questioning that was “sufficient to identify prospective

jurors who hold views that would prevent or substantially impair them from

performing the duties required of jurors,” Jackson, 107 Ohio St.3d 53, 2005-Ohio-

5981, 836 N.E.2d 1173, at ¶ 57. Counsel was not so prevented. Accordingly,

Knuff’s eighth proposition of law is rejected.

E. Proposition of Law No. IX: Challenges for Cause

{¶ 74} Knuff’s ninth proposition of law also focuses on voir dire. Knuff

contends that the trial court erroneously overruled his for-cause challenges to

prospective juror Nos. 5 and 20 and erroneously granted the state’s for-cause

challenges to five prospective jurors.

{¶ 75} As this court has explained:

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On a challenge for cause, the ultimate question is whether

the juror swore that he could set aside any opinion he might hold

and decide the case on the evidence, and whether the juror’s

protestation of impartiality should be believed. This determination

necessarily involves a judgment on credibility, so deference must be

paid to the trial judge who sees and hears the juror. Hence, a trial

court’s resolution of a challenge for cause will be upheld unless it is

unsupported by substantial testimony, so as to constitute an abuse of

discretion.

(Cleaned up.) State v. Madison, 160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d

867, ¶ 42. Knuff has not demonstrated that the trial court abused its discretion with

respect to any of the for-cause challenges.

1. The Trial Court Did Not Abuse Its Discretion in Overruling Knuff’s For-

Cause Challenges

a. Prospective juror No. 5

{¶ 76} On his juror questionnaire in response to the inquiry “What are your

general feelings about the death penalty, and why do you feel that way,” prospective

juror No. 5 wrote that he believes the death penalty is “a viable option, provided

that there is no doubt as to the guilt of the individual, and that the crime committed

was intentional, and meet[s] the requirements defined by law to justify [its] use.”

When asked during voir dire what he meant by that response, he explained that he

“would not exclude” the death penalty from consideration and that his decision

whether to vote to impose the death penalty “would depend on * * * the trial.”

Prospective juror No. 5 also checked a box on the questionnaire indicating his

agreement with the following statement: “I favor the death penalty, but would not

always vote for it in every case of aggravated murder. I would seriously weigh

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and consider the aggravating and mitigating factors to determine the appropriate

penalty in this case.” (Boldface sic.)

{¶ 77} When questioned during voir dire, prospective juror No. 5 agreed

that if the state failed to prove beyond a reasonable doubt that the aggravating

circumstances outweighed the mitigating factors in a case, he could impose a life

sentence without having any reservations or hesitations about doing so. The

prosecutor subsequently asked: “Even though the Defendant is found guilty, would

you still be fair and open-minded and consider any mitigation in terms of

conducting that weighing process * * *?” The prospective juror said he would. He

thereafter reaffirmed his willingness to impose a life sentence in some cases.

{¶ 78} Later, defense counsel asked the prospective juror about his

understanding of the process of weighing the aggravating circumstances against the

mitigating factors in a death-penalty case. Defense counsel explained that

mitigating factors are “[r]easons that would suggest to you * * * that a life sentence

is more appropriate than a death sentence,” including “the Defendant’s background,

upbringing, [and] childhood.” Defense counsel then asked the prospective juror

whether he could consider a defendant’s daily drug use in the fifth grade as a

mitigating factor. To this, the prospective juror responded: “I guess it would

depend to me on if he was in fifth grade and this happened what was done in the

last however many years since then. I mean, we all have stuff that happened to us

as kids.” Even though the prospective juror said that he would not consider

marijuana use as a youth “as an explanation” for committing the type of murders at

issue in this case and that he would not “weigh [it] heavily” as a mitigating factor,

he repeatedly stated that he would give that factor some weight in mitigation, and

he agreed that he would give that factor “fair consideration.” He relayed that other

aspects of a defendant’s childhood—such as the use of “[h]arder drugs” or being

the victim of child abuse—might carry more weight with him.

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{¶ 79} Defense counsel challenged prospective juror No. 5 for cause,

stating that the mitigation case may include evidence that Knuff had used drugs in

the fifth and sixth grades and that prospective juror No. 5 could not “adequately

weigh that specific mitigating factor.” Defense counsel argued, “I understand that

when pressed [prospective juror No. 5] did say, ‘Sure, I’ll consider it,’ ” but counsel

contended that “based on the totality of his answers and his demeanor, [prospective

juror No. 5] would merely acquiesce to listening to [that evidence] and not fairly

consider it.” (Emphasis added.)

{¶ 80} The trial court overruled the challenge, noting that the prospective

juror’s answers were “thoughtful and clear, [and] that he would consider all of those

options, including drug use in the fifth grade.” Defense counsel ultimately used a

peremptory challenge to have this prospective juror excused.

{¶ 81} The record discloses no basis for Knuff’s claim that prospective

juror No. 5 would not fairly weigh juvenile drug use as a mitigating factor in this

case. Knuff has failed to show that the trial court abused its discretion in denying

his challenge of prospective juror No. 5 for cause.

b. Prospective juror No. 20

{¶ 82} The defense initially asked that prospective juror No. 20 be excused

without any voir dire because he had served on a jury in a capital case in

approximately 1995 and had voted to sentence the defendant in that case to death.

Defense counsel argued that no matter what counsel said at trial, prospective juror

No. 20 would inevitably draw comparisons between this case and the earlier one

that would be “unfairly prejudicial to [Knuff] and/or the State”; counsel also

contended that prospective juror No. 20 would be inclined to vote for death in this

case because he had done so before.

{¶ 83} The trial court decided to examine the prospective juror. The trial

court asked prospective juror No. 20 whether he could serve on a capital-case jury

again “and be fair and impartial.” The prospective juror replied: “Oh, sure. Very

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January Term, 2024

much so.” He also confirmed that he could separate his views in this case from

those he had in the earlier case in which he had served as a juror. Extensive voir

dire from defense counsel and the state revealed that prospective juror No. 20

recalled very little of his prior capital-case jury service.

{¶ 84} Prospective juror No. 20 also stated that he could vote to impose a

life sentence and that he would consider all the evidence that would be presented

in mitigation. He expressed his belief that death is an appropriate penalty for

“gruesome” crimes but is not the only appropriate penalty.

{¶ 85} After the voir dire of prospective juror No. 20, defense counsel

renewed his challenge for cause. Counsel stated, “I don’t think it’s appropriate that

somebody that has been through this process and has already rendered a death

verdict * * * should be placed on another jury” in a capital case. The trial court

agreed with the state that the prospective juror’s voir dire responses indicated his

ability to be fair and impartial as a juror in this case and overruled the challenge.

{¶ 86} Prior jury service automatically disqualifies a prospective juror from

service only if the prospective juror served on the grand jury that found the

indictment, Crim.R. 24(C)(3), on a petit jury in the same case against the same

defendant, Crim.R. 24(C)(4), or on the jury in a civil action against the same

defendant for the same act, Crim.R. 24(C)(5). See also R.C. 2945.25(E), (F). The

trial court did not abuse its discretion in denying defense counsel’s for-cause

challenge to prospective juror No. 20.

2. The Trial Court Did Not Improperly Grant the State’s For-Cause Challenges

{¶ 87} Knuff also argues that the trial court improperly granted the state’s

for-cause challenges to prospective juror Nos. 7, 80, 93, 118, and 120—each of

whom indicated harboring reservations about the death penalty. We find no merit

in this argument.

{¶ 88} Excluding an impartial prospective juror for cause solely because the

prospective juror expresses reservations about imposing the death penalty is

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constitutionally impermissible. State v. Keith, 79 Ohio St.3d 514, 519-520, 684

N.E.2d 47 (1997), citing Witherspoon v. Illinois, 391 U.S. 510, 520-523, 88 S.Ct.

1770, 20 L.Ed.2d 776 (1968). Such a prospective juror may be excluded only if his

views “would prevent or substantially impair the performance of his duties as a

juror in accordance with his instructions and his oath.” Adams v. Texas, 448 U.S.

38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); see also State v. Rogers, 17 Ohio

St.3d 174, 478 N.E.2d 984 (1985), paragraph three of the syllabus, vacated on other

grounds, 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452 (1985).

{¶ 89} We will not disturb a trial court’s ruling on a challenge for cause

“unless it is manifestly arbitrary and unsupported by substantial testimony, so as to

constitute an abuse of discretion.” State v. Williams, 79 Ohio St.3d 1, 8, 679

N.Ed.2d 646 (1997).

a. Prospective juror No. 7

{¶ 90} In response to the inquiry on the jury questionnaire about her

“general feelings about the death penalty,” prospective juror No. 7 wrote: “We

don’t have the right to kill people. Life sentence. No parole.” And in response to

a question asking her to check whichever statement “most accurately state[d] [her]

opinion regarding the death penalty,” prospective juror No. 7 checked: “I would

never vote for the death penalty in any case. I am so strongly opposed to the death

penalty that I would always vote against the death penalty no matter what the

evidence is.” (Boldface sic.) Although she said during voir dire that she could

“follow the rules” when given instructions by a judge regarding how to apply the

law, she also revealed that no matter how heinous the crime, she could not vote to

impose the death penalty in a capital case and that she would not want to be put in

a position to have to vote that way on a jury if the law required her to do so.

{¶ 91} The trial court upheld the state’s challenge for cause of prospective

juror No. 7. The court observed that even though the prospective juror was saying

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that she would follow the law and the judge’s instructions, her body language was

saying something different. The trial court explained:

She was actually shaking her head no. She was physically

shaking her head no during the questioning portion of whether she

could sign her name on a death verdict. She was shaking her head

no, but saying that she would follow the law out of her mouth.

***

[S]he was shaking her head no when [counsel] talked to her

about whether she would be willing to sign a death verdict, so [the]

motion for cause is granted at this time.

{¶ 92} The trial court’s decision was supported by prospective juror No. 7’s

questionnaire and voir dire responses and the court’s own observations of her

demeanor. Under these circumstances, we conclude that the trial court did not

abuse its discretion in granting the state’s for-cause challenge to prospective juror

No. 7.

b. Prospective juror No. 80

{¶ 93} Prospective juror No. 80 indicated on his questionnaire that he would

not vote for the death penalty in any case, no matter what the evidence showed, and

that he would be unable to sign a verdict imposing a death sentence. During voir

dire, prospective juror No. 80 reiterated his feelings about the death penalty; he

stated that “probably” nothing the court could say would change his position. Much

like prospective juror No. 7, prospective juror No. 80 stated that he would follow

the law if he were selected as a juror. The trial court sua sponte excused prospective

juror No. 80 for cause. Defense counsel objected to the excusal because the

prospective juror had said that if selected as a juror, he would follow the law and

the court’s instructions despite his feelings about the death penalty.

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{¶ 94} Prospective juror No. 80 contradicted himself during voir dire—

saying first that he would always vote against imposing the death penalty, then

saying that he would follow the law, thereby raising a credibility issue for the trial

court. Knuff cites nothing in the record to show that the trial court abused its

discretion in excusing prospective juror No. 80 for cause.

c. Prospective juror No. 93

{¶ 95} Prospective juror No. 93 strongly opposed capital punishment. On

his questionnaire, he indicated that he would never vote for the death penalty in any

case. He wrote that he would fairly consider mitigating evidence “but only in

furtherance of a verdict other than the death penalty.” Finally, prospective juror

No. 93 indicated that he did not think he would be able to sign a death verdict.

{¶ 96} During voir dire, prospective juror No. 93 backed away from these

positions, saying that he “would have no problem applying the law” and that “[i]f

the law required [him] to find a certain way, [he was] going to follow the law.” He

stated that he would find it “very difficult” to sign a death verdict but that he

“suppose[d]” he could do so “out of respect for the system of law that we have.”

{¶ 97} Prospective juror No. 93 stated that while he could consider

imposing a death sentence in a case with few or no mitigating factors and in which

the aggravating circumstances were “overwhelming,” he “would be looking for

reasons to find those mitigating factors and to apply them in a way that allowed

[him] to not apply the death penalty.” Prospective juror No. 93 stated:

I’m not trying to suggest that I would be creating things, but if there

is information there that would allow me to reasonabl[y] find one

way or the other, * * * my general perspective on it is that I’m going

to lead [sic] towards the direction that would allow me to find a no

verdict on the death penalty.

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{¶ 98} The prosecutor tried to get prospective juror No. 93 to clarify his

position:

[PROSECUTOR]: * * * No one will ever tell you how

you’re going to weigh the aggravation against the mitigation. That’s

up to you. So knowing that, do you think that you would ever be

able to find or would you ever find that the aggravation outweighs

the mitigation knowing that that would then mean you have to

impose the death penalty?

[PROSPECTIVE] JUROR NO. 93: No.

{¶ 99} Defense counsel subsequently asked prospective juror No. 93

whether he could “fairly weigh” the aggravating circumstances against the

mitigating factors, and he replied that he “could engage in the [weighing] process.”

Defense counsel questioned him further: “If you found that the aggravating

circumstances outweighed the mitigating factors by proof beyond a reasonable

doubt, * * * would you return a verdict for the death penalty?” Prospective juror

No. 93 responded, “I would, but I’d be very unlikely to find that, I think.” The

prospective juror reaffirmed his commitment, however, to “engage in the process

of following the law.”

{¶ 100} The record supports this prospective juror’s excusal for cause

because his responses on the questionnaire and during voir dire indicated that his

views would “substantially impair the performance of his duties as a juror,” Adams,

448 U.S. at 45, 100 S.Ct. 2521, 65 L.Ed.2d 581. The trial court therefore did not

abuse its discretion when it excused prospective juror No. 93 for cause.

d. Prospective juror No. 118

{¶ 101} Prospective juror No. 118 wrote on her questionnaire that she was

“completely against” capital punishment, which she described as “barbaric,”

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“unjust,” and “immoral in every case,” even for “extremely heinous crimes.”

Further, she wrote that she “would not take into consideration evidence that might

suggest[] that the defendant ‘deserves’ the death penalty.” In response to the

question inquiring if she could sign her name to a death verdict, she wrote: “I could

not, in good conscious [sic], give any living being the death penalty.” And she

checked the statement indicating that she would never vote for the death penalty,

no matter what the evidence showed. Prospective juror No. 118 reiterated her views

during voir dire.

{¶ 102} Defense counsel asked prospective juror No. 118: “If Ohio law said

that we have a death penalty, would you follow the law if the Judge instructed you

to?” She answered: “If a judge absolutely told me to do something, I don’t want to

be arrested, but I would have really strong compunction against it.” She

acknowledged that she was unsure whether she could sign a death verdict and

whether she could engage in the process of weighing the aggravating circumstances

against the mitigating factors in a capital case.

{¶ 103} When defense counsel questioned prospective juror No. 118 about

whether she could “follow the law regarding the death penalty as [the trial court]

would give it to [her] and impose [the death penalty] if it was mandated under the

evidence,” she responded, “If I absolutely had to, if the Judge said that, I guess.”

But this prospective juror admitted that she would be compromising her beliefs in

that situation and she stated, “I wouldn’t want to do that.”

{¶ 104} The trial court excused prospective juror No. 118 for cause over

defense counsel’s objection. The court said that prospective juror No. 118

“seem[ed] to be adamantly opposed to the death penalty.” The court noted that

even though the prospective juror had stated a willingness to follow the law, the

court believed, based in part on the prospective juror’s body language and tone of

voice during voir dire, that those statements were “hesitant” and “forced.”

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{¶ 105} The record supports the trial court’s determination. The trial court

therefore did not abuse its discretion in excusing prospective juror No. 118 for

cause.

e. Prospective juror No. 120

{¶ 106} Prospective juror No. 120 was not categorically opposed to the

death penalty; she wrote on her questionnaire that it “should be used as a last

resort.” Despite that position, she checked “No” in answer to the question, “Do

you think that you would be able to sign your name to a verdict imposing the death

penalty?” However, she indicated that she would not vote against it in every case.

{¶ 107} During voir dire, she confirmed that she had not misunderstood the

question. She said, “I wouldn’t want to choose if someone lives or dies, to be

honest.” Twice she stated, “I don’t think I would be able to live with that.” Later,

she said that she would be able to follow the law, but she struggled with how she

could live with a decision to impose the death sentence. She ultimately told the

prosecutor that she did not feel that she could sign her name to a death verdict. But

after defense counsel explained the process of weighing the aggravating

circumstances against the mitigating factors to her, prospective juror No. 120 stated

that she could put aside her moral, religious, and philosophical beliefs and follow

the law.

{¶ 108} The state challenged prospective juror No. 120 for cause on the

ground that she had said she could not sign a death verdict. Defense counsel stated

that no such question had been asked. The trial court then resumed voir dire,

directly asking the prospective juror: “If the aggravating circumstances outweigh

the mitigating factors in this case, the law says that you must sign the verdict for

death. Could you do that?” The prospective juror replied: “I’m sorry. No.” The

trial court then excused her for cause.

{¶ 109} The trial court did not act unreasonably or arbitrarily by giving

credence to prospective juror No. 120’s statements that she could not sign a death

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verdict and therefore did not abuse its discretion in excusing prospective juror No.

120 for cause.

{¶ 110} Knuff has failed to show any abuse of discretion by the trial court

with respect to the challenges for cause. We therefore reject his ninth proposition

of law.

F. Proposition of Law No. X: Religious Freedom

{¶ 111} Knuff’s tenth proposition of law is that the practice of death-

qualifying prospective jurors violates the Free Exercise and Establishment Clauses

of the First Amendment to the United States Constitution to the extent that it

excludes prospective jurors whose opposition to capital punishment is based on

their religious beliefs. Knuff claims that 19 prospective jurors were excused for

cause because they opposed capital punishment on religious or moral grounds. He

further argues that his trial counsel rendered ineffective assistance by failing to

preserve his First Amendment claim with respect to the excusal of 16 of those

prospective jurors because his counsel failed to object to their being excused.

Finally, Knuff contends that death-qualification denies a defendant the right to be

tried to an impartial jury and to a jury drawn from a fair cross-section of the

community.

{¶ 112} We recently rejected the contention that death-qualification of

prospective jurors violates their First Amendment rights. See Madison, 160 Ohio

St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867, at ¶ 94-96. And the United States

Supreme Court rejected fair-cross-section and impartiality arguments in Lockhart

v. McCree, 476 U.S. 162, 168-184, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). We

find no reason to depart from the holdings in those cases.

{¶ 113} Given these precedents, defense counsel was not ineffective for

failing to press an unmeritorious First Amendment claim. We thus reject Knuff’s

tenth proposition of law.

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G. Proposition of Law No. II: Improper Character Evidence

{¶ 114} In his second proposition of law, Knuff contends that the state

introduced evidence that was irrelevant or of little relevance but was prejudicial

because it showed his bad character.

{¶ 115} Evidence of a person’s character is generally not admissible to

prove that the person acted in conformity therewith on a particular occasion.

Evid.R. 404(A). Likewise, “[e]vidence of other crimes, wrongs, or acts is not

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

therewith.” Former Evid.R. 404(B).3 132 Ohio St.3d XCVII, CXLVII (effective

July 1, 2012, through June 30, 2022). But Evid.R. 404(B) does allow “evidence of

the defendant’s other crimes, wrongs, or acts to be admitted for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident. The key is that the evidence must prove

something other than the defendant’s disposition to commit certain acts.” (Cleaned

up; emphasis sic.) State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161

N.E.3d 651, ¶ 22.

{¶ 116} When evidence is challenged as inadmissible other-acts evidence,

a trial court must perform a three-step analysis:

The first step is to consider whether the other acts evidence

is relevant to making any fact that is of consequence to the

determination of the action more or less probable than it would be

without the evidence. Evid.R. 401. The next step is to consider

3. The language of Evid.R. 404(B) was revised in 2022. Effective July 1, 2022, the rule reads:

(B) Other Crimes, Wrongs or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong or act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.

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whether evidence of the other crimes, wrongs, or acts is presented

to prove the character of the accused in order to show activity in

conformity therewith or whether the other acts evidence is presented

for a legitimate purpose, such as those stated in Evid.R. 404(B). The

third step is to consider whether the probative value of the other acts

evidence is substantially outweighed by the danger of unfair

prejudice. See Evid.R. 403.

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 19-

20; see also Hartman at ¶ 24-33.

1. Knuff’s Prior Imprisonment and Release on Parole

{¶ 117} Knuff complains that the state introduced evidence that he had

recently been released from prison and was on parole at the time of the murders.

During the trial, Knuff did not object to any of the testimony about which he now

complains, so we review this claim for plain error. To show plain error, Knuff must

demonstrate that “an error occurred, that the error was obvious, and that there is ‘a

reasonable probability that the error resulted in prejudice,’ meaning that the error

affected the outcome of the trial,” (emphasis added in Rogers) State v. McAlpin,

169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 66, quoting State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.

{¶ 118} Knuff cannot demonstrate error with respect to the testimony about

which he now complains. Evidence of Knuff’s prior imprisonment and recent

parole status was not admitted to prove his character and to show his conformity

with that character. Instead, that evidence was essential to telling the story of these

crimes.

{¶ 119} First, the evidence in question explained how Knuff became

involved with Mann and Capobianco: he became acquainted with Capobianco as a

pen pal while in prison and turned to Capobianco and her friend Mann for help

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obtaining a place to stay upon his release from prison. Second, the testimony of

Knuff’s parole officer, Fisher, also established why Knuff was living at the house

at 6209 Nelwood Road when Mann and Capobianco were murdered and why he

had tried to get Capobianco out of the house for her date on the night of May 11—

because any drug use or prostitution at that house could have resulted in revocation

of Knuff’s parole and his return to prison.

{¶ 120} Third, Knuff’s almost 16-year incarceration explained the intensity

of his desire not to return to prison. That desire was his stated reason for leaving

Mann’s and Capobianco’s bodies in the house instead of reporting the incident to

the police.

{¶ 121} Finally, Knuff’s prior incarceration and recent parole status were

relevant to the story of his relationship with Stoner, who was a major participant in

the events surrounding the murders and an important state witness. The state was

entitled to explain how Knuff and Stoner knew each other. Stoner’s relationship

with Knuff was also crucial to evaluating her credibility. Knuff and Stoner formed

their attachment while Knuff was in prison and Stoner was employed with the

Department of Rehabilitation and Correction (“DRC”). Stoner actually resigned

from her DRC job for the sake of her relationship with Knuff.

{¶ 122} Indeed, at trial, defense counsel recognized the relevance of

Knuff’s prior imprisonment and his relationship with Stoner, mentioning both

subjects in his guilt-phase opening statement. Knuff has not demonstrated that the

trial court plainly erred in allowing the challenged testimony.

2. Knuff’s Relationship with His Son

{¶ 123} Knuff asserts that evidence of his relationship with his son

constituted proof that he “was and is a bad father.” Knuff complains that the state

introduced evidence that he was absent from Tommy’s life while in prison; that he

did not contact Tommy during the 2015 and 2016 holidays; that he taught Tommy

how to make “prison alcohol”; that he took Tommy’s cellphone and car without

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Tommy’s permission and never apologized for doing so; and that Tommy suffered

emotionally as a result of dealing with Knuff between his release from prison and

his arrest for the murders of Mann and Capobianco. Again, the testimony

complained of was not objected to at trial, so the standard of review is plain error.

{¶ 124} No plain error is evident. As was true of Stoner, Tommy was an

important witness, so his relationship with Knuff was relevant. Tommy’s

testimony showed his deep love for his father, which helped the jurors determine

his credibility and explained his own conduct. By failing to object to Tommy’s

testimony on these matters at trial, Knuff has forfeited his claim in the absence of

plain error. E.g., McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459,

at ¶ 198.

3. Knuff’s Relationship with His Sister

{¶ 125} Knuff also argues that evidence of his relationship with his sister,

Melissa Walters, constituted proof that he “was and is a bad brother.” Walters

testified that her relationship with Knuff changed when their mother died and they

had a dispute over insurance proceeds. According to Walters, because Knuff was

still in prison when their mother died, he gave her his power of attorney (“POA”)

so she could “help him while he was there * * * [i]f he needed anything.” The day

after giving Walters his POA, Knuff revoked the POA because he and Walters had

had an argument and he no longer trusted her. This dispute so upset Walters that

she did not speak to her brother again until his release from prison in 2017.

{¶ 126} The state argues that this testimony from Walters “was relevant to

establish context with respect to the relationship between sister and brother,” but

the state fails to explain how this particular relationship proves anything relevant

to the case at hand. Thus, the testimonial evidence presented by Walters “fails the

first part of the Williams test: relevance,” State v. Tench, 156 Ohio St.3d 85, 2018-

Ohio-5205, 123 N.E.3d 955, ¶ 162.

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{¶ 127} However, defense counsel did not object to Walters’s testimony at

trial, and Knuff has not demonstrated the existence of a reasonable probability that

any error in allowing the testimony from his sister affected the outcome of the trial.

4. Knuff’s Use of the Word “Racist”

{¶ 128} Bryan Gardner, the psychiatric nurse who treated Knuff at Akron

General, testified that as part of the intake process, he asked Knuff to identify any

triggers that may cause him agitation. Over an objection by defense counsel,

Gardner testified that Knuff said his triggers were “[r]acist shit and people being

ignorant.”

{¶ 129} Defense counsel argued at trial that this response prejudiced Knuff

by making him appear to be a racist. The trial court overruled the objection, noting

that Knuff’s words were not racist or otherwise inflammatory in the context in

which they were used. The court interpreted Knuff’s statement as meaning, “I don’t

like racist people or ignorant people.”

{¶ 130} Knuff now renews his argument that the “racist shit” response

suggested that he “was and is a racist.” Although it is unclear to this court how

Gardner’s response regarding Knuff’s reported triggers and agitations was relevant

to the trial, Knuff’s claim of prejudice is unfounded. Knuff said “[r]acist shit” was

a trigger, (i.e., something that would upset him). A reasonable juror would not

interpret Knuff’s use of the word “racist” in this context as an avowal of racism.

Because no likelihood exists that Gardner’s testimony on this issue was prejudicial,

any error was harmless beyond a reasonable doubt.

5. Knuff’s Drug Use

{¶ 131} Knuff claims that testimony about his drug use should have been

excluded. Specifically, he complains that (1) Sergeant Dunbar testified that Knuff

had “some kind of glass pipe” in his hand when he confronted Knuff on the

highway, (2) Dr. Beskid testified that when Knuff was taken to Medina General,

his toxicology screen was positive for cocaine and THC, and Nurse Gardner from

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Akron General testified that Knuff was “pretty open” about his drug use, and (3)

Stoner testified that she knew Knuff had used drugs, including cocaine, in the past.

{¶ 132} Knuff did not object to any of this evidence at trial, so he has

forfeited all but plain error. Knuff has not shown the requisite prejudice to

demonstrate plain error. To begin with, considerable evidence was admitted at trial

of Knuff’s drug use, the admission of which Knuff is not claiming as error. Much

of that evidence was included in the police-interrogation videos in which Knuff

frequently and candidly acknowledged buying and using drugs. Indeed, he

frequently cited his drug use to the detectives as the reason for his claimed memory

lapses and his irrational behavior after the murders.

{¶ 133} Moreover, Knuff’s drug habit was relevant. Knuff admitted to the

police that he had stolen Mann’s car after the stabbings and traded it to a “dope

boy” for crack.

6. Knuff’s “Mental Issues”

{¶ 134} Knuff complains that some of the state’s evidence suggested he had

“mental issues.” Specifically, he complains about certain testimony presented by

Sergeant Dunbar and Nurse Gardner.

{¶ 135} Sergeant Dunbar testified on direct examination that when he

encountered Knuff on the highway, Knuff said something to the effect of, “I don’t

want to live, just kill me.” Sergeant Dunbar further testified that Knuff was “pink

slipped” so that he could be held for psychiatric evaluation given his threats to harm

himself. Nurse Gardner testified that he worked in the psychiatric unit at Akron

General, where Knuff was transferred for psychiatric evaluation. Knuff did not

object to any of this testimony at trial.

{¶ 136} No plain error is apparent by the admission of this testimonial

evidence. The state did not use the testimony to show Knuff’s character, and Knuff

does not explain how the information that he was hospitalized for having threatened

self-harm prejudiced him at trial.

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7. Witness Who Feared “Payback”

{¶ 137} Gregory Harrison, a rideshare driver who gave Knuff a ride late in

the evening on May 14, 2017, testified for the state at trial. Harrison testified that

he was initially hesitant to drive Knuff because Knuff had tattooed hands and

therefore seemed “[s]ketchy” to him.

{¶ 138} The prosecutor asked Harrison if he was nervous about testifying

at trial, and Harrison said he was. The prosecutor then asked: “Are you afraid as

you sit here today of any sort of payback?” Defense counsel’s objection to this

question was sustained, so Harrison did not answer. Defense counsel did not ask

for a curative instruction or to have the question stricken but instead asked for a

mistrial, which was denied.

{¶ 139} At sidebar, the prosecutor informed the court that before testifying,

Harrison had “indicate[d] that he [was] terrified because he [knew about Knuff’s]

botched escape plan and [he was] afraid that * * * Knuff [had] people on the outside

who would * * * not only help him escape but also * * * provide payback for

testifying witnesses.” The trial court noted that Harrison was visibly shaking during

his testimony.

{¶ 140} The trial court did not abuse its discretion in denying defense

counsel’s motion for a mistrial. Evidence of a witness’s fear of retaliation for

testifying bears on that witness’s credibility. See, e.g., State v. Young, 8th Dist.

Cuyahoga No. 110973, 2022-Ohio-3132, ¶ 80 (“Testimony that a witness fears

reprisal for testifying is admissible because it is relevant to the witness’s

credibility”); State v. Battle, 10th Dist. Franklin No. 18AP-728, 2019-Ohio-2931,

¶ 24; People v. Mendoza, 52 Cal.4th 1056, 1084, 132 Cal.Rptr.3d 808, 263 P.3d 1

(2011), quoting People v. Burgener, 29 Cal.4th 833, 869, 129 Cal.Rptr.2d 747, 62

P.3d 1 (2003) (“ ‘Evidence that a witness is afraid to testify or fears retaliation for

testifying is relevant to the credibility of that witness and is therefore admissible’ ”).

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8. References to the Television Show “Dexter”

{¶ 141} Knuff complains that references to the television show “Dexter”

during the trial amounted to the admission of improper character evidence.

{¶ 142} Detective Sloan testified without objection that during his

investigation, he learned that Knuff enjoyed the television series “Dexter.” He

explained: “Dexter is a main character from a television series[.] Dexter is actually

a blood stain analysis expert who was a serial killer who dismembers his victims.

I guess you could call him a vigilante serial killer.”

{¶ 143} Later, during Tommy’s testimony, the prosecutor asked: “When

[Knuff] initially told you what happened and started telling you about getting rid of

the body or the body parts, did he mention a TV show?” A defense objection to

this question was overruled. Tommy testified: “He would talk about the show

Dexter, but I don’t think he ever * * * made the connections between the two, why

he wanted to do it. * * * I just always thought that’s where he got the idea from

was talking about Dexter all the time.” Tommy testified that Knuff had talked about

the show often and that Knuff had said he liked the show a lot.

{¶ 144} Knuff argues that these references implied that he “is a serial killer

just like the main character” in that show. But while the relevance of the references

to “Dexter” during the testimonies of Sergeant Dunbar and Tommy is

questionable—the only connection seems to be Tommy’s speculation about where

Knuff got the idea about dismembering the bodies of Mann and Capobianco—the

references to the television show were not prejudicial to Knuff at trial. That Knuff

liked “Dexter” does not imply that he is a serial killer; indeed, it does not reflect on

his character at all. Any prejudice would stem not from his liking “Dexter” but

from his considering dismembering Mann’s and Capobianco’s bodies, which was

relevant to show his consciousness of guilt.

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{¶ 145} Knuff’s challenges to the trial court’s admission of character

evidence are not well-taken. Accordingly, we reject Knuff’s second proposition of

law.

H. Proposition of Law No. III: Reference to Polygraph Examination

{¶ 146} In his third proposition of law, Knuff complains that the trial court

denied his motion for a mistrial after the jury heard his video-recorded interrogation

containing a reference to the results of a polygraph examination.

{¶ 147} The complete interrogation was produced as state’s exhibit No.

1382 (which was not played at trial and is not in the record). Before trial, the

prosecution produced a version of state’s exhibit No. 1382 from which several

references to a polygraph examination had been redacted. The result was state’s

exhibit No. 1382-A, a video recording of the second part of the June 30, 2017 police

interrogation of Knuff, which was played in open court. The state neglected to

redact from this video the following statement that Detective Wittasek made to

Knuff: “This machine says that you had—had stabbed John.”4

{¶ 148} After state’s exhibit No. 1382-A was played for the jury, some off-

the-record discussion took place between counsel and the trial court, which appears

to have included an objection by defense counsel. The exhibit was then replayed

outside the jury’s presence, following which the trial court ordered that the

statement regarding the “machine” be redacted from the video.

{¶ 149} Defense counsel moved for a mistrial. The trial-court judge noted

that she had “been watching the jury very carefully” while the video played and

that she “did not note any change in anyone’s demeanor” when the contested

portion was played. She also remarked on the difficulty she had had in being able

to hear the word “machine,” stating that she did not even know it had been said

4. In his merit brief, Knuff misquotes the detective as saying, “[T]his machine says you killed John.”

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until it was pointed out to her by counsel. Defense counsel did not request, and the

trial court did not give, a curative instruction to the jury to disregard the challenged

statement. The state produced a new copy of the interview, state’s exhibit No.

1382-B, from which the offending statement had been redacted. State’s exhibit No.

1382-B was submitted to the jury instead of exhibit No. 1382-A.

{¶ 150} Knuff contends that the trial court erred in denying his motion for

a mistrial. “Mistrials need be declared only when the ends of justice so require and

a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127, 580

N.E.2d 1 (1991). “The granting or denial of a motion for mistrial rests in the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of

discretion.” State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001).

{¶ 151} As Knuff points out, polygraph results are inadmissible unless the

parties stipulate to their admission, State v. Souel, 53 Ohio St.2d 123, 132-133, 372

N.E.2d 1318 (1978). But Detective Wittasek did not expressly refer to a polygraph

examination or a lie-detector machine; he spoke only of a “machine.” The state

argues that this word choice did not clearly refer to a polygraph examination.

Indeed, the state proposes that the jury may have taken it as a reference to scientific

testing done by the medical examiner, inasmuch as the detectives had been

discussing the autopsy results with Knuff shortly before the statement was made

about the “machine.”

{¶ 152} Courts generally do not treat unclear references to polygraph

examinations as severely as express references; unclear references are seldom

deemed to create reversible error. In Henley v. Cason, 154 Fed.Appx. 445 (6th

Cir.2005), a prosecutor repeatedly referred to “testing” and “investigative

procedures,” and on appeal, the defendant argued that these references were “thinly

veiled references to a polygraph test.” Id. at 446. However, “the prosecutor never

used the term ‘polygraph test.’ ” Id. On federal habeas review, the court rejected

as “too attenuated” the inference that “the jury understood that a polygraph

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[examination had been] administered.” Id. Additionally, only “a handful” of such

references were made during the two-week trial. Id.; see also Neal v.

Commonwealth, 95 S.W.3d 843, 849 (Ky.2003) (“The word polygraph was never

mentioned,” and “the vague reference to an ‘expert interrogator’ ” did not affect the

jury’s deliberations). Compare People v. Mason, 274 Ill.App.3d 715, 724-725, 653

N.E.2d 1371 (1995) (Conviction reversed based on prosecutor’s “signal[ing] to the

jury that the defendant had failed a polygraph examination”: testimony by four state

witnesses established that the defendant had been taken to the police crime

laboratory, where he spoke with a “technician” or “examiner,” and after learning

“the results of those conversations,” changed his story, and the prosecutor referred

to these facts in his opening statement and closing argument).

{¶ 153} Here, the unidentified “machine” “said” that Knuff “had stabbed

John,” not that Knuff had lied. The reference Detective Wittasek made to “[t]his

machine” was brief and isolated. And the prosecutor said nothing during the trial

that could be construed as referring to a polygraph examination.

{¶ 154} Finally, the trial court observed that no juror had reacted to the

“machine” reference. See State v. Hawkins, 326 Md. 270, 278, 604 A.2d 489 (1992)

(explaining that the “[trial] judge has his finger on the pulse of the trial” and is in

the best position to discern “the reaction of the jurors” to inadmissible references

to a polygraph).

{¶ 155} Considering all the circumstances, the trial court did not abuse its

discretion in declining to declare a mistrial and finding that the statement about a

“machine” that was made in the videotaped interrogation of Knuff did not render a

fair trial impossible. We therefore reject Knuff’s third proposition of law.

I. Proposition of Law No. IV: Improper Opinion Testimony

{¶ 156} Knuff contends in his fourth proposition of law that he was denied

a fair trial because the state improperly elicited opinion testimony from its

witnesses about the credibility of other witnesses and about the credibility of Knuff

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(who did not testify at trial but whose out-of-court statements were admitted into

evidence).

{¶ 157} “ ‘In our system of justice it is the fact finder, not the so-called

expert or lay witnesses, who bears the burden of assessing the credibility and

veracity of witnesses.’ ” State v. Boston, 46 Ohio St.3d 108, 129, 545 N.E.2d 1220

(1989), quoting State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988)

(Brown, J., concurring). Witnesses, whether experts or laymen, may not testify

regarding their opinions on the credibility of other witnesses, because that infringes

on the domain of the trier of fact. See State v. Davis, 116 Ohio St.3d 404, 2008-

Ohio-2, 880 N.E.2d 31, ¶ 122-123 (a police officer’s opinion that an accused was

being untruthful when interviewed is inadmissible).

{¶ 158} Knuff contends that two of the state’s witnesses, Stoner and Parma

Heights Police Captain Steve Scharschmidt, improperly opined on the credibility

of other witnesses.

1. Alicia Stoner

{¶ 159} On redirect examination, Stoner testified that when the police

interviewed her on June 23, 2017, she told them that she believed Knuff’s account

of what had happened at 6209 Nelwood Road because she was unaware of any

contradictory information. But she testified that when she talked to the police

again, she told them that “the information that [Knuff had] provided didn’t seem

congruent or didn’t seem necessarily absolute.” Stoner testified, “As I started

thinking back over things, that’s where I doubted what he had told me.” Defense

counsel’s objections to this testimony were overruled.

{¶ 160} The state argues that Stoner’s testimony was admissible because

she never actually said that Knuff was lying; she said only that she had begun to

doubt what he had told her. This is a distinction without a difference. But we find

that any error in the trial court’s admitting Stoner’s testimony in this regard was

harmless beyond a reasonable doubt.

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{¶ 161} First, as the state points out, the record contains abundant, properly

admitted evidence showing that Knuff lied to several people about the killings of

Mann and Capobianco. Second, Stoner was merely a lay witness, not a police

officer or expert, and although it is true that the rule against witnesses opining on

the credibility of others applies equally to lay witnesses, a jury would be less likely

to give Stoner’s opinion any special weight.

2. Parma Heights Police Captain Steve Scharschmidt

{¶ 162} Knuff also claims that the state impermissibly elicited testimony

from Captain Scharschmidt about the truthfulness of Stoner and of Knuff’s son,

Tommy. Because defense counsel did not object to this testimony at trial, Knuff

has waived all but plain error.

{¶ 163} Captain Scharschmidt participated in the police interviews of

Stoner. On direct examination, the prosecutor asked him whether he had arranged

for Stoner to return for further questioning after her first interview. Captain

Scharschmidt’s answer included this statement: “We did feel that she was being

somewhat evasive and we weren’t getting the truth, so we did then talk to her

several times in the near future.”

{¶ 164} Knuff’s paraphrase in his merit brief of Captain Scharschmidt’s

testimony—“[Knuff] is lying and therefore he is guilty”—is misleading. Knuff

does not identify any testimony by Captain Scharschmidt in which the captain

stated or even implied that Knuff was lying or guilty. He said only that Stoner was

“evasive,” and he did not specify what Stoner had said that he thought was evasive.

{¶ 165} The state argues that Captain Scharschmidt’s testimony was

permissible because it explained why officers chose to speak to Stoner again later.

But the state fails to elucidate why any such explanation was needed.

{¶ 166} Nonetheless, the trial court’s admission of Captain Scharschmidt’s

testimony does not reach the level of plain error. Stoner herself testified that she

had not told officers the entire truth during her first interview. Captain

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Scharschmidt’s statement that Stoner had seemed “evasive” was cumulative of this

testimony and added little or nothing to the state’s case. Knuff has not

demonstrated that the outcome of the trial would have been different had Captain

Scharschmidt’s testimony been excluded.

{¶ 167} Knuff’s counsel did object to Captain Scharschmidt’s testimony

regarding Tommy’s truthfulness. The prosecutor asked the captain: “[W]ere there

times that [Tommy] was being less truthful than other times?” Defense counsel

objected to the question, but Captain Scharschmidt answered, “Yes,” before the

trial court sustained the objection. Defense counsel did not ask the court to strike

Captain Scharschmidt’s answer or give a curative instruction to the jury.

{¶ 168} In this instance, the error was harmless beyond a reasonable doubt.

As was true when he testified regarding Stoner’s interviews, when Captain

Scharschmidt testified regarding Tommy’s interviews, he did not identify any

particular statements that Tommy had made that he thought were “less truthful

than” other statements that he had made. And like Stoner, Tommy admitted on the

witness stand that he had lied to the police, so Captain Scharschmidt’s testimony

that at times Tommy was “less truthful than at other times” was cumulative.

3. Parma Heights Police Detective Luke Wittasek

{¶ 169} Knuff reiterates his complaint about Detective Wittasek’s

polygraph reference in the videotaped interrogation that was played for the jury (see

discussion of third proposition of law above), recasting it as “improper opinion

testimony regarding Knuff’s credibility.” We reject this claim. To the extent

Detective Wittasek’s statement can be characterized as opinion testimony, as

discussed above, the trial court did not abuse its discretion in denying defense

counsel’s motion for a mistrial after the statement was heard by the jury.

{¶ 170} Knuff’s fourth proposition of law is rejected.

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J. Proposition of Law No. V: Gruesome Autopsy Photos

{¶ 171} In his fifth proposition of law, Knuff contends that the admission

of gruesome autopsy photographs of the victims denied him a fair trial.

{¶ 172} Admission of photographs is within “the sound discretion of the

trial court.” State v. Johnson, 88 Ohio St.3d 95, 117, 723 N.E.2d 1054 (2000). A

photograph is not inadmissible merely because it is gruesome. State v. Kirkland,

160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 101.

“Properly authenticated photographs, even if gruesome, are

admissible in a capital prosecution if relevant and of probative

value in assisting the trier of fact to determine the issues or are

illustrative of testimony and other evidence, as long as the danger

of material prejudice to a defendant is outweighed by their

probative value and the photographs are not repetitive or

cumulative in number.”

Id., quoting State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), paragraph

seven of the syllabus.

{¶ 173} The trial court admitted 57 autopsy photographs: state’s exhibit

Nos. 5 through 33 (of Capobianco’s autopsy) and Nos. 39 through 66 (of Mann’s

autopsy). Of these, three photographs are clearly not gruesome: exhibit Nos. 5 and

38 depict closed body bags without revealing their contents and exhibit No. 15

shows Capobianco’s upper denture after it was removed and cleaned. Exhibit Nos.

6, 8, and 39 are also not gruesome: they show very little of the victims’ bodies,

although some discolored flesh can be seen in each.

{¶ 174} The remaining 51 photographs are gruesome, because they show

the extensive decomposition of Mann’s and Capobianco’s bodies. However, the

relevance of these photographs is clear: the fact of decomposition itself was

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relevant. It explained why the victims’ flesh showed some disruptions (breaks in

the skin that could have been caused by decomposition rather than a wound), why

the medical examiner was unable to determine whether the disruptions were stab

wounds, and why the medical examiner was unable to swab under the victims’

fingernails. The photographs illustrated the medical examiner’s testimony,

documented her handling of the bodies, and showed the victims’ numerous stab

wounds. See, e.g., State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837

N.E.2d 315, ¶ 145 (admission of gruesome autopsy photographs was not plain error

when they “depicted the victim’s wounds, illustrated the coroner’s testimony, and

helped prove [McKnight’s] intent”).

{¶ 175} The photographs at issue here were not repetitive or cumulative.

Each wound was generally depicted twice: once from a distance to show the

wound’s location on the body and once close-up to show its characteristics. And

each body was photographed several times from different angles. Thus, each

photograph has probative value that the others do not.

{¶ 176} Although 51 gruesome photographs were admitted into evidence,

each was relevant, and each possessed unique probative value. Against this

backdrop, we hold that the trial court did not abuse its discretion in deciding that

the probative value of each photograph outweighed any prejudicial effect and that

any repetition in the photographs did not materially prejudice Knuff.

{¶ 177} Accordingly, we reject Knuff’s fifth proposition of law.

K. Proposition of Law No. XVII: Jury Instructions

{¶ 178} In his 17th proposition of law, Knuff contends that the trial court

gave erroneous jury instructions. He complains that the trial court erroneously (1)

denied his request for a jury instruction on voluntary manslaughter as an “inferior

degree offense” of aggravated murder and murder, (2) instructed the jury that

attempted concealment of a crime may tend to indicate consciousness of guilt, and

(3) instructed the jury that Knuff, who claimed to have killed Capobianco in self-

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defense, may have had a duty to retreat. Knuff’s first two arguments lack merit.

The trial court’s duty-to-retreat instruction was erroneous, but under the

circumstances, we hold that the error was harmless.

1. Denial of Knuff’s Request for a Voluntary-Manslaughter Instruction

{¶ 179} Knuff contends that the jury should have been instructed on

voluntary manslaughter as an inferior-degree offense of aggravated murder.

According to Knuff, the trial court violated the Eighth and Fourteenth Amendments

to the United States Constitution by declining to give this instruction.

{¶ 180} In Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392

(1980), the United States Supreme Court struck down an Alabama law that

prohibited trial courts from instructing a jury on lesser included offenses in capital

cases. The Supreme Court explained:

[O]n the one hand, the unavailability * * * of convicting on a lesser

included offense may encourage the jury to convict for an

impermissible reason—its belief that the defendant is guilty of some

serious crime and should be punished. On the other hand, the

apparently mandatory nature of the death penalty may encourage it

to acquit for an equally impermissible reason—that, whatever his

crime, the defendant does not deserve death.

Id. at 642-643. The court concluded that the “level of uncertainty and unreliability”

introduced by the two possibilities “cannot be tolerated in a capital case.” Id. at

643.

{¶ 181} Knuff’s claim with respect to the Eighth Amendment fails because

although the jury was not instructed on voluntary manslaughter, it was instructed

on the lesser included offense of murder. “As long as the jury is instructed on some

lesser offense that is supported by the evidence, the Constitution is satisfied.”

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(Emphasis sic.) Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at

¶ 244.

{¶ 182} Nevertheless, “[r]equested jury instructions should ordinarily be

given if they are correct statements of law, if they are applicable to the facts in the

case, and if reasonable minds might reach the conclusion sought by the requested

instruction.” Id. at ¶ 240. We review a trial court’s refusal to give a requested jury

instruction for an abuse of discretion. State v. Wolons, 44 Ohio St.3d 64, 68, 541

N.E.2d 443 (1989).

{¶ 183} “[A] judge is to give instructions on lesser-included and inferior-

degree offenses only when the evidence would allow a jury to reasonably reject the

greater offense and find the defendant guilty on the lesser-included or inferior-

degree offenses.” State v. Lloyd, 171 Ohio St.3d 353, 2022-Ohio-4259, 218 N.E.3d

737, ¶ 26. Knuff contends that the jury should have been instructed on voluntary

manslaughter, which is an offense of inferior degree to aggravated murder, State v.

Tyler, 50 Ohio St.3d 24, 36, 553 N.E.2d 576 (1990). Voluntary manslaughter

occurs when a person knowingly causes the death of another “while under the

influence of sudden passion or in a sudden fit of rage, either of which is brought on

by serious provocation occasioned by the victim that is reasonably sufficient to

incite the [offender] into using deadly force.” R.C. 2903.03(A).

{¶ 184} Whether a voluntary-manslaughter instruction should be given

requires consideration of both an objective and a subjective factor. State v.

Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 153. The

objective factor requires determining whether a serious provocation occurred and

whether that provocation was “sufficient to arouse the passions of an ordinary

person beyond the power of his or her control.” State v. Shane, 63 Ohio St.3d 630,

635, 590 N.E.2d 272 (1992). And the subjective factor requires evaluating whether

“this actor, in this particular case, actually was under the influence of sudden

passion or in a sudden fit of rage.” Id. at 634.

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{¶ 185} Knuff was not entitled to a voluntary-manslaughter instruction,

because no evidence was presented to show that he actually was under the influence

of sudden passion or in a sudden fit of rage when he committed the murders for

which he was convicted. No evidence was presented at trial that he had become

enraged because Capobianco had assaulted him or that he had acted in a fit of rage

when he killed Mann and Capobianco. True, Knuff told police in his interrogations

that he was afraid of Capobianco. But “[f]ear alone is insufficient to demonstrate

the kind of emotional state necessary to constitute sudden passion or fit of rage.”

State v. Mack, 82 Ohio St.3d 198, 201, 694 N.E.2d 1328 (1998). Accord Thompson

at ¶ 157. Thus, the trial court did not abuse its discretion when it declined to give

a voluntary-manslaughter jury instruction.

2. Consciousness-of-Guilt Jury Instruction

{¶ 186} Knuff also argues that the trial court should not have instructed the

jury on consciousness of guilt. The court instructed the jury as follows: “Testimony

has been admitted indicating that the Defendant attempted to conceal a crime. You

are instructed that the Defendant’s actions in attempting to conceal a crime do not

raise a presumption of guilt, but may tend to indicate the Defendant’s consciousness

or awareness of guilt.” The court further instructed the jury that if it found that

Knuff had tried to conceal a crime and that he had been motivated by consciousness

of guilt, it could then consider that evidence in deciding whether Knuff was guilty

of the crimes with which he had been charged.

{¶ 187} At trial, Knuff’s counsel objected to this instruction without

explaining the basis for the objection. On appeal, Knuff asserts, without discussion

or analysis, that “the evidence in the record did not support a consciousness of guilt

instruction.” But the state did adduce evidence that Knuff attempted to conceal a

crime: he tried to clean up the crime scene; he lied repeatedly about how he had

injured his finger; and he wrote a letter asking his friend to burn down the house

where the murders had taken place, gave that letter to Stoner, and instructed her to

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deliver the letter to Dlugo. In light of this ample evidence, the trial court did not

abuse its discretion in giving the consciousness-of-guilt jury instruction.

3. Duty-to-Retreat Jury Instruction

{¶ 188} Next, Knuff takes issue with the trial court’s jury instruction

regarding self-defense. At trial, Knuff maintained that he had killed Capobianco in

self-defense. The trial court accordingly gave a self-defense instruction on Count

Nos. 1 and 2 (aggravated murder of Capobianco). Over defense counsel’s

objection, the trial court’s instruction included this language:

Duty to retreat. The Defendant had no duty to retreat unless

he was at fault in creating the situation giving rise to the death of

Regina Capobianco.

{¶ 189} Knuff contends that the duty-to-retreat instruction was in error. We

agree. But as discussed below, we conclude that the error was harmless beyond a

reasonable doubt.

a. The trial court’s duty-to-retreat jury instruction was in error

{¶ 190} R.C. 2901.05(B) codifies a person’s right to use force in self-

defense and places the burden on the state to “prove beyond a reasonable doubt that

the accused person did not use the force in self-defense.”

{¶ 191} The elements of a self-defense claim are

“(1) that the defendant was not at fault in creating the situation

giving rise to the affray; (2) that the defendant had a bona fide belief

that he [or she] was in imminent danger of death or great bodily

harm and that his [or her] only means of escape from such danger

was in the use of such force; and (3) that the defendant did not

violate any duty to retreat or avoid the danger.”

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(Brackets sic.) State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216

N.E.3d 653, ¶ 14, quoting State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240

(2002). Because each element must exist for a self-defense claim to prevail, the

state can defeat a self-defense claim by disproving any one of these elements

beyond a reasonable doubt. See State v. Walker, 8th Dist. Cuyahoga. No. 109328,

2021-Ohio-2037, ¶ 13 (citing cases); 3 Katz, Giannelli, Lipton & Crocker, Criminal

Law, Section 88:13, at 5 (3d Ed.2009, Supp.2022).

{¶ 192} Former R.C. 2901.09, Ohio’s “castle doctrine” statute, enacted in

2008, created an exception to the duty to retreat, State v. Carosiello, 7th Dist.

Columbiana No. 15 CO 0017, 2017-Ohio-8160, ¶ 18. When this case was tried,5

R.C. 2901.09(B) provided:

For purposes of any section of the Revised Code that sets

forth a criminal offense, a person who lawfully is in that person’s

residence has no duty to retreat before using force in self-defense,

defense of another, or defense of that person’s residence * * *.

2008 Sub.S.B. No. 184.

{¶ 193} The state concedes that the house at 6209 Nelwood Road was

Knuff’s residence. Its argument is that a defendant may not rely on the castle

doctrine if he was at fault in creating the situation in which he ultimately used

forced in self-defense. Therefore, the state reasons, the duty to retreat remains. To

5. Effective April 6, 2021, R.C. 2901.09 provides that a person does not have a duty to retreat before

using force in self-defense if the person using force “is in a place in which the person lawfully has

a right to be,” 2020 Am.S.B. No. 175—expanding the provision from a “castle doctrine” provision

to a “stand your ground” provision. This expansion took effect after Knuff’s trial, and, in any event,

it would not affect our analysis in the instant case.

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require a defendant who seeks to rely on the castle doctrine to prove that he was

not at fault in creating the situation would be to create a judge-made addition to the

statute—something we decline to do. Under the plain terms of R.C. 2901.09, Knuff

had no duty to retreat while in his residence. The trial court’s duty-to-retreat jury

instruction was given in error.

b. The trial court’s error in giving a duty-to-retreat jury instruction was harmless

{¶ 194} Having determined that the trial court erred when it instructed the

jury on the duty to retreat, we must evaluate whether the error was harmless. See

Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded”). We conclude that it was.

{¶ 195} The linchpin of Knuff’s self-defense claim was that he killed

Capobianco in self-defense after she killed Mann. The jury rejected this version of

events when it found that Knuff was guilty of Mann’s aggravated murder (a finding

that was untainted by the trial court’s erroneous duty-to-retreat jury instruction),

and at that point, Knuff’s self-defense claim collapsed and whether he had a duty

to retreat was irrelevant.

{¶ 196} Moreover, the trial court’s error was harmless for a second reason.

Fault (or the lack thereof) is, on its own, an element of a self-defense claim.

Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653, at ¶ 14. To

prevail on a self-defense claim, the defendant must not be at fault in creating the

situation. Id. Therefore, if the jury found beyond a reasonable doubt that Knuff

was at fault in creating the situation, it could not acquit Knuff on self-defense

grounds regardless of whether he had a duty to retreat. In other words, the addition

of “defendant-at-fault” language to the duty-to-retreat instruction merely duplicated

a necessary element of any self-defense claim. It could not prejudice Knuff.

{¶ 197} Thus, we conclude that the trial court’s error in giving the jury a

duty-to-retreat instruction was harmless beyond a reasonable doubt, and we reject

Knuff’s 17th proposition of law.

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L. Proposition of Law No. XVIII: Sufficiency and Weight of the Evidence

{¶ 198} In his 18th proposition of law, Knuff contends that the jury’s

finding of guilt for the aggravated-murder counts, felony-murder specifications,

and underlying felony offenses was based on insufficient evidence and that his

convictions for those offenses were against the manifest weight of the evidence.

We disagree.

1. Sufficiency of the Evidence

{¶ 199} A sufficiency-of-the-evidence challenge fails if “ ‘after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable

doubt.’ ” State v. Worley, 164 Ohio St.3d 589, 2021-Ohio-2207, 174 N.E.3d 754,

¶ 57, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus, superseded by constitutional amendment on other grounds as

stated in State v. Smith, 80 Ohio St.3d 89, 102 684 N.E.2d 668 (1997), fn. 4.

Viewed in the light most favorable to the prosecution, the evidence in this case is

sufficient to allow a reasonable jury to find Knuff guilty of committing the

aggravated murders of Mann and Capobianco.

{¶ 200} Knuff contends that his convictions on the aggravated-murder

counts requiring prior calculation and design (Counts 1 and 3) should be reversed

because there was insufficient evidence of prior calculation and design. As the state

points out, those counts were merged with Counts 2 and 4, charging felony murder,

and the state elected to proceed to sentencing on Counts 2 and 4, so Knuff was

never sentenced on Counts 1 and 3. Knuff’s claim regarding prior calculation and

design is therefore moot.

{¶ 201} Knuff further contends that the state failed to prove the felony

offenses underlying the felony-murder specifications: aggravated burglary,

aggravated robbery, and kidnapping.

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{¶ 202} As to aggravated burglary, Knuff contends that he cannot have been

guilty of that offense, because he had Mann’s permission to be on the premises at

6209 Nelwood Road. However, “a [person] who initially gains entry to one’s home

by consent may subsequently become a trespasser if consent is withdrawn. [And]

* * * a jury could justifiably infer from the facts that a victim terminated the

accused’s privilege to remain after commencement of an assault.” State v.

Holloway, 38 Ohio St.3d 239, 243, 527 N.E.2d 831 (1988), citing State v. Steffen,

31 Ohio St.3d 111, 509 N.E.2d 383 (1987); see also State v. Clinton, 153 Ohio

St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 184-185.

{¶ 203} Regarding the charge of aggravated robbery, the jury acquitted

Knuff of the aggravated-robbery count and all four death specifications predicated

on aggravated robbery. So Knuff’s insufficient-evidence claim with respect to the

aggravated-robbery count is moot.

{¶ 204} With regard to the kidnapping charges, Knuff contends that the

evidence of his having restrained Mann and Capobianco was insufficient because

the state failed to prove that there was any restraint other than what was incidental

to the murders. Knuff admitted to police that he held Capobianco down while

stabbing her, and the state cited that admission in support of the restraint element

necessary to prove the kidnapping charge and specification. With regard to the

charges related to Knuff’s kidnapping of Mann, the state argued: “To stab

somebody 15 times, you have to be restraining their liberty.”

{¶ 205} Knuff’s argument is not actually a sufficiency-of-the-evidence

argument; rather, it is a claim that aggravated murder and kidnapping are allied

offenses of similar import that should have been merged in this case. However,

this claim fails because “felony-murder under R.C. 2903.01(B) is not an allied

offense of similar import to the underlying felony,” State v. Keene, 81 Ohio St.3d

646, 668, 693 N.E.2d 246 (1998).

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{¶ 206} Finally, Knuff contends that the evidence was legally insufficient

to disprove the elements of self-defense. However, this court recently held that

“the state’s rebuttal of a defendant’s claim of self-defense” is not “subject to review

under the sufficiency-of-the-evidence standard.” Messenger, 171 Ohio St.3d 227,

2022-Ohio-4562, 216 N.E.3d 653, at ¶ 1.

2. Manifest Weight of the Evidence

{¶ 207} A verdict can be against the manifest weight of the evidence even

though legally sufficient evidence supports it. State v. Robinson, 162 Ohio St. 486,

487, 124 N.E.2d 148 (1955). The reviewing court must determine in view of the

entire record “ ‘whether in resolving conflicts in the evidence, the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’ ” State v. Group, 98 Ohio St.3d 248, 2002-

Ohio-7247, 781 N.E.2d 980, ¶ 77, quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1983). But a new trial is warranted only “ ‘in the exceptional

case in which the evidence weighs heavily against conviction.’ ” Id., quoting

Martin at 175.

{¶ 208} Although Knuff’s self-defense claim is not subject to review for

sufficiency of the evidence, “[t]he state’s * * * burden of disproving the defendant’s

self-defense claim beyond a reasonable doubt is subject to a manifest-weight review

on appeal,” Messenger at ¶ 27.

{¶ 209} Here, the jury did not lose its way and create a manifest miscarriage

of justice. To the contrary, the evidence (other than Knuff’s self-serving account)

strongly supports the jury’s rejection of Knuff’s self-defense claim and its finding

that he killed both Mann and Capobianco.

{¶ 210} Begin with the autopsies. Mann had downward-oriented stab

wounds in his neck, score marks on the top of his skull, and other head wounds.

His injuries support the inference that he and his killer were similar in stature.

Evidence from the autopsies (and the testimonies of Detective Sloan and the

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medical examiner), however, establishes a significant disparity in height between

Mann and Capobianco, with Mann being roughly a foot taller than Capobianco. In

contrast, Knuff, like Mann, was five feet, eleven inches tall. The jury could have

reasonably inferred that Knuff—not the diminutive Capobianco—was responsible

for Mann’s injuries. And Capobianco had two stab wounds in her back, which

tends to disprove that Knuff acted in self-defense when he was stabbing her.

{¶ 211} Knuff’s actions after the killings also strongly suggest his

consciousness of guilt. He cut the bloodstained living-room carpet into numerous

pieces and placed them in garbage bags. Evidence of smeared bloodstains on a wall

and the ceiling indicate that Knuff had wiped those areas in an attempt to clean up

the crime scene. An unusual late-evening water-usage spike on May 11 at 6209

Nelwood Road was documented by the Cleveland Division of Water. And two

bloodstained mops were found in the kitchen. Knuff admitted to police that he had

wiped the walls. He dragged the bodies into the bedroom and covered them. He

bought hacksaws for the stated purpose of cutting up the bodies (although he did

not follow through on this).

{¶ 212} Knuff refused to seek medical attention for his finger that was

severely wounded on the night of the murders. He tried to get his sister or Stoner

to stitch it up for him, but they both refused. He also lied repeatedly to his son and

to his friends about how he had injured his finger.

{¶ 213} Finally, he wrote to his friend Dlugo, urging him to burn down the

house at 6209 Nelwood Road to destroy evidence that he said would result in a life

sentence for him. He instructed Stoner to deliver the letter to Dlugo and to obtain

kerosene for Dlugo to use in burning the house down.

{¶ 214} This is not the rare case in which the jury lost its way and returned

a verdict against the manifest weight of the evidence. To the contrary, the jury’s

verdict was consistent with the evidence admitted at trial. We therefore reject

Knuff’s 18th proposition of law.

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M. Proposition of Law No. XII: Merger

{¶ 215} Knuff was convicted of three aggravating specifications for each

aggravated-murder count: one course-of-conduct specification, R.C.

2929.04(A)(5), and two felony-murder specifications, R.C. 2929.04(A)(7), one of

which was predicated on aggravated burglary and the other predicated on

kidnapping. In his 12th proposition of law, Knuff contends that the trial court erred

by failing to merge the three aggravating specifications into one for purposes of

sentencing.

{¶ 216} “Merger of capital specifications is required ‘where two or more

aggravating circumstances arise from the same act or indivisible course of

conduct.’ ” McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, at

¶ 191, quoting State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984),

paragraph five of the syllabus.

1. The Course-of-Conduct Specification Does Not Merge

{¶ 217} The course-of-conduct specification does not merge with either of

the felony-murder specifications. This court has “repeatedly held that

‘specifications for multiple-murder [i.e., course of conduct] and for felony-murder

represent distinct and separate aggravating circumstances,’ ” that those

specifications are “not duplicative,” and that they “do not merge.” State v. Perez,

124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 175, quoting Smith, 80

Ohio St.3d at 116, 684 N.E.2d 668. Accord McAlpin at ¶ 191.

2. The Aggravated-Burglary and Kidnapping Specifications Merge

{¶ 218} The question remains whether the aggravated-burglary and

kidnapping specifications merge. Knuff failed to request merger at trial, so our

review is limited to plain error. See, e.g., State v. Lynch, 98 Ohio St.3d 514, 2003-

Ohio-2284, 787 N.E.2d 1185, ¶ 137.

{¶ 219} To determine whether specifications for aggravating circumstances

merge, we use the same test that we use for determining whether two offenses

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merge as allied offenses of similar import. See, e.g., State v. Jackson, 149 Ohio

St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶ 128-129. Offenses do not merge if

“(1) the offenses are dissimilar in import or significance—in other words, each

offense caused separate, identifiable harm, (2) the offenses were committed

separately, or (3) the offenses were committed with separate animus or motivation.”

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.

{¶ 220} Under the facts of this case, none of the foregoing factors is present.

First, although aggravated burglary and kidnapping do not inherently cause the

same harm, in this case they did—the murders of Mann and Capobianco. Thus, the

aggravated burglary and kidnappings were not “dissimilar in import or

significance,” id.

{¶ 221} Second, the record contains no apparent evidence that the

kidnappings were committed separately from the aggravated burglary. Because

Knuff had permission to be in the house at 6209 Nelwood Road, an aggravated-

burglary charge can be sustained only on the theory that his permission to be there

automatically terminated once he assaulted Mann or Capobianco, converting his

presence into a trespass by force. See Holloway, 38 Ohio St.3d at 243, 527 N.E.2d

831. Likewise, as the state’s closing arguments in both phases of the trial

demonstrate, Knuff’s kidnapping convictions rest on the inference that he must

have restrained both Mann and Capobianco while he was killing them. Since both

the aggravated-burglary and the kidnapping counts rely on the same acts of assault

and murder, it cannot be said that the kidnappings and aggravated burglary were

committed separately.

{¶ 222} Finally, there is no evidence that the kidnappings and the

aggravated burglary were committed with distinct animus or motivation. Knuff’s

intention to murder Mann and Capobianco supplied the mens rea for the

aggravated-burglary charges and the motivation for restraining the victims while

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he killed them. Thus, the aggravated-burglary and kidnapping specifications

should have been merged.

{¶ 223} We have held that a reviewing court may apply the doctrine of

merger to correct a trial court’s erroneous failure to merge specifications. State v.

Cook, 65 Ohio St.3d 516, 528, 605 N.E.2d 70 (1992), citing Jenkins, 15 Ohio St.3d

164, 473 N.E.2d 264, at paragraph five of the syllabus. After merging the

specifications, “the reviewing court * * * may uphold the sentence if it determines

beyond a reasonable doubt that the remaining aggravating circumstances outweigh

the mitigating factors, and the jury’s consideration of duplicative specifications did

not affect its verdict.” Cook at 528.

{¶ 224} Reversal of Knuff’s sentence is unnecessary because we are able to

modify his sentence by merging the aggravated-burglary and kidnapping

specifications during our independent review, thus curing the trial court’s failure to

merge them at trial.

{¶ 225} We therefore reject Knuff’s 12th proposition of law.

N. Proposition of Law No. XVI: Sentencing Issues

{¶ 226} In his 16th proposition of law, Knuff contends that during the

penalty phase, the trial court admitted irrelevant or unfairly prejudicial and

inflammatory other-acts evidence about his alleged preparations to escape from jail.

{¶ 227} After the defense rested in the penalty phase, the state called a

rebuttal witness, Detective Joe Goudy of the Cuyahoga County Sheriff’s

Department, who investigates crimes committed in the county jail. (Knuff was

housed there during the trial.) Detective Goudy testified that on December 16,

2017, he searched Knuff’s cell for contraband and found three detailed, full-color

replicas of the sheriff’s stars worn by correctional staff, which were hand drawn on

white fabric stretched over pieces of cardboard shaped to look like sheriff’s badges.

Detective Goudy testified that some jail staff wear shirts with a sewn-on fabric star

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instead of a metal badge and that Knuff’s homemade stars would look similar to

the real ones “from a distance” or when viewed on a security-camera image.

{¶ 228} Detective Goudy also found a plastic eyeglass lens that had been

sharpened to a fine point, a brown bedsheet fashioned into a shirt resembling a

smock worn by nursing assistants in the jail, three homemade patches with the word

“sanitation” on them, several makeshift spools of thread, several fine-point colored

markers concealed in a hollow Bible, and a mask made from a shirtsleeve.

Photographs of the items were admitted into evidence.

{¶ 229} Defense counsel objected to the admission of this evidence. The

state argued that this evidence showed that Knuff was planning to escape from the

county jail and that these plans were relevant to refute Knuff’s repeated declarations

of “remorse” in his unsworn statement. The trial court overruled the objection and

instructed the jury not to consider the rebuttal testimony of Detective Goudy “as an

aggravating circumstance” but “only as [it] relates to the history, character, and

background of the defendant in mitigation.”

{¶ 230} Knuff argues that the jail-break-preparation evidence should have

been excluded as irrelevant because his preparations took place after the murders.

But he cites no authority in support of his claim that events that occurred after the

murders for which he was found guilty are inherently irrelevant to capital

sentencing.

{¶ 231} Knuff also argues that admitting the jail-break-preparation

evidence violated former Evid.R. 404(B): “Evidence of other crimes * * * is not

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

therewith.” But the jail-break-preparation evidence was not used to show that

Knuff had any particular character trait or that he took any action in conformity

with his character.

{¶ 232} Finally, Knuff contends that the jail-break-preparation evidence

“did not bear on any mitigating factors raised and presented by the defense.” See

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generally State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253 (1995), syllabus

(prosecution may introduce “evidence rebutting the existence of any * * *

mitigating factors first asserted by the defendant”), holding modified on other

grounds by State v. Wogenstahl, 75 Ohio St.3d 344, 356, 662 N.E.2d 311 (1996).

This is not so. As the state points out, in Knuff’s unsworn statement, he repeatedly

proclaimed his remorse—not for the murders, which he still denied being

responsible for, but for the effects of his actions on Stoner and on his son. He also

said he felt guilty because he had suggested to Mann that Mann remove Capobianco

from his home. He claimed he was sorry for letting the victims’ bodies stay

concealed in the house, an action he described as “horrific,” and for depriving the

victims’ families of being able to have a proper funeral for Mann and Capobianco.

And according to his statement, he felt bad that he had lied about stealing Mann’s

car.

{¶ 233} Preparing to break out of pretrial confinement may reasonably be

construed as trying to evade responsibility for one’s actions. Evading responsibility

tends to call into question the sincerity and depth of claimed remorse. See, e.g.,

State v. Wiles, 59 Ohio St.3d 71, 93-94, 571 N.E.2d 97 (1991) (remorse offset by

offender’s attempts to avoid responsibility, including fleeing the state); State v.

Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 274 (sincerity of

remorse questionable considering that offender concocted false story blaming

victim). Notably, the state did not argue that Knuff’s escape preparations were

aggravating circumstances, and the trial court instructed the jury not to consider

them as such. The trial court did not abuse its discretion when it admitted the jail-

break-preparation evidence so that the jury could determine what evidentiary

weight it deserved.

{¶ 234} We deny Knuff’s 16th proposition of law.

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O. Proposition of Law No. XI: Prosecutorial Misconduct

{¶ 235} In his 11th proposition of law, Knuff alleges that prosecutorial

misconduct in both the guilt and penalty phases denied him a fair trial. The conduct

Knuff complains of either did not amount to misconduct, was harmless beyond a

reasonable doubt, or—for the alleged misconduct that Knuff failed to object to at

trial—did not constitute plain error.

1. Guilt Phase

Irrelevant testimony

{¶ 236} Knuff argues that the state committed prosecutorial misconduct by

soliciting irrelevant testimony. He reiterates claims of evidentiary error that he

asserted in his second, third, and fourth propositions of law, which we resolved

above. “At bottom, these arguments are evidentiary claims.” State v. Mammone,

139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 114. “[I]t is not

prosecutorial misconduct to introduce evidence that the trial court has determined

to be admissible.” Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104,

at ¶ 187.

b. Improper arguments

{¶ 237} According to Knuff, the state committed prosecutorial misconduct

during closing arguments by disparaging defense counsel, revealing the

prosecutor’s personal opinions about Knuff’s credibility and character, and

including statements intended to inflame the jury’s passions.

{¶ 238} We assess prosecutorial misconduct in closing arguments by asking

“ ‘whether the remarks were improper and, if so, whether they prejudicially

affected [the] substantial rights of the defendant.’ ” State v. Hessler, 90 Ohio St.3d

108, 125, 734 N.E.2d 1237 (2000), quoting State v. Smith, 14 Ohio St.3d 13, 14,

470 N.E.2d 883 (1984). A conviction may be upheld in the face of a prosecutor’s

improper remarks when it is “clear beyond a reasonable doubt that the jury would

have returned a verdict of guilty” regardless of the comments. United States v.

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Hasting, 461 U.S. 499, 511-512, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (new trial

unwarranted despite prosecutor’s improper argument because of “overwhelming

evidence of guilt and the inconsistency of the scanty evidence tendered by the

defendants”).

{¶ 239} Applying this test to the comments that Knuff contends were

improperly made during the guilt phase of the trial, we determine that viewed as a

whole, the prosecutor’s closing argument “was fair, did not improperly appeal to

the jury’s emotion, and did not create prejudicial error,” Hessler at 125. We address

each of the allegedly improper comments below.

i. Improper comments that did not substantially prejudice Knuff

{¶ 240} Some of the prosecutor’s comments made during the guilt phase of

the trial were improper. However, in the face of the otherwise overwhelming

evidence of Knuff’s guilt, we find that the instances of prosecutorial misconduct

amount to harmless error.

{¶ 241} Comments about prosecutor’s experience. Knuff alleges that the

prosecutor improperly referred to her prosecutorial experience to sway the jury.

The prosecutor said: “Let me tell you, I’ve been doing this a long time. And the

state of Ohio doesn’t bring cases based on speculation, folks.” (Emphasis added.)

She later said: “There is prior calculation and design here. No one speculated when

we brought this case to you. We spent months preparing * * * for this case.”

(Emphasis added.) Both comments were objected to, and both objections were

overruled.

{¶ 242} These comments by the prosecutor were improper. A prosecutor

may not “invite[] the jury to substitute the prosecutor’s experience for its own

evaluation.” State v. Waddy, 63 Ohio St.3d 424, 435-436, 588 N.E.2d 819 (1992).

Accord Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, at ¶ 119.

{¶ 243} Appeals to consider Knuff’s character. Also improper was a theme

in the prosecutor’s guilt-phase closing arguments that Knuff manipulated and used

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Stoner and Tommy. Knuff’s counsel failed to object to some of these comments.

He did, however, object when the prosecutor said, “Because [Tommy] missed

[Knuff’s] call once while he was in college, [Knuff] doesn’t call him back. * * *

Doesn’t that tell you the character of a human being?” (Emphasis added.) Defense

counsel’s objection to these comments was overruled. But these comments were

improper, because in making them, the prosecutor expressly asked the jury to draw

an unfavorable inference about Knuff’s character.

{¶ 244} Comments describing Knuff’s behavior as selfish, narcissistic, and

antisocial. Another questionable comment from the prosecutor was that the jury

had “had a master class * * * in selfish, narcissistic, [and] antisocial behavior” just

by serving on the jury in Knuff’s trial. The trial court sustained defense counsel’s

objection to this comment, and the trial court later instructed the jury that closing

arguments were not evidence. Thus, any error “lacks prejudicial effect warranting

reversal.” State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88,

¶ 94.

{¶ 245} Questioning the reliability of Knuff’s statements. Also during the

guilt-phase closing arguments, the prosecutor posed a rhetorical question to the jury

about Knuff’s trustworthiness. The prosecutor went through each of the

explanations Knuff had given to people, including Stoner, Tommy, Walters, and

the investigating law-enforcement officers, about how he had injured his finger. At

the end of this recitation, the prosecutor stated: “Which [of Knuff’s statements] can

you rely on in the most important of your affairs? I submit to you zero.” A defense

objection was immediately overruled, and later, a motion for mistrial was denied.

{¶ 246} Although the prosecutor’s argument that Knuff’s statements were

unreliable was permissible, his use of the phrase “in the most important of your

affairs” was not. This language is included in the definition of “proof beyond a

reasonable doubt.” See R.C. 2901.05(E). The prosecutor’s application of that

definition to Knuff’s statements had the potential to confuse the jury. But we find

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that the statement was harmless beyond a reasonable doubt because the jury was

repeatedly instructed on the correct burden of proof.

{¶ 247} In sum, even though each of the foregoing comments made by the

prosecutor during the guilt phase of the trial were improper, the overwhelming

evidence of Knuff’s guilt is such that even if these comments had not been made,

it is “clear beyond a reasonable doubt that the jury would have returned a verdict

of guilty,” Hasting, 461 U.S. at 511, 103 S.Ct. 1974, 76 L.Ed.2d 96.

ii. Prosecutor’s comments that either were not improper or were not plain error

{¶ 248} The remainder of the prosecutor’s arguments and comments that

Knuff complains about either were not improper or Knuff failed to object to them

during the trial and has not established plain error.

{¶ 249} The television show “Dexter.” One of the challenged comments

involves references the prosecutor made to “Dexter,” a television show about a

serial killer. The prosecutor said, “Knuff buys a hacksaw. * * * Tells his kid about

‘Dexter.’ What kind of person does that? * * * Cut off their fingertips so they

couldn’t get DNA. That is a manipulative mind that has a goal to conceal the deaths

of these individuals.” Defense counsel did not object to these comments when they

were made at trial.

{¶ 250} Knuff asserts that these comments “characterize[d him] as

‘Dexter.’ ” The prosecutor’s comments focus on relevant evidence, e.g., that Knuff

talked about dismembering Mann’s and Capobianco’s bodies and that he had made

preparations to do that for the purpose of concealing their deaths. While the

reference to “Dexter” was irrelevant to this purpose, the state’s single passing

mention of that show did not deny Knuff a fair trial and does not amount to plain

error.

{¶ 251} Lack of remorse. The prosecutor referred to a letter Knuff had

written to his friend Krystal Paserk during his pretrial incarceration in which Knuff

discussed different ways of making money after his anticipated release and asked

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Paserk to “get in touch” with “Dateline and 48 Hours.” The prosecutor again used

rhetorical questions during guilt-phase closing arguments to make her point, asking

who would do such a thing. Answering her own question, she said, “Somebody

with no remorse for what they did. That’s who.” Knuff did not object to this

statement by the prosecutor, forfeiting his right to challenge the statement absent

plain error. See Crim.R. 52(B).

{¶ 252} Ordinarily, a capital defendant’s lack of remorse is irrelevant to the

issue of guilt. Madison, 160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867, at

¶ 186; Wiles, 59 Ohio St.3d at 87, 571 N.E.2d 97. But Knuff, in service of his self-

defense claim, made repeated statements to detectives about how much he liked the

victims and how guilty he felt for causing friction between the victims. Knuff’s

remorse thus “became an issue during the guilt phase of the trial as a result of the

strategy employed by the defense,” Wiles at 87. The prosecutor’s questioning the

sincerity of Knuff’s remorse to undermine his story was not improper. See id.

Accordingly, these comments by the prosecutor did not amount to plain error.

{¶ 253} Unsavory character traits. Knuff argues that the prosecutor

committed misconduct by ascribing the following negative character traits to him:

cowardice, deceitfulness, and manipulativeness. Each claim of misconduct fails.

{¶ 254} The prosecutor called Knuff a coward because he had covered

Capobianco’s face after the murder and because he had asked someone else (Dlugo)

to burn down the house where the bodies were located. Defense counsel did not

object to either of these references to Knuff’s cowardliness. Even if counsel had

objected, the court would not have erred in overruling the objection, because calling

a defendant a coward is “no worse than characterizations we have found

permissible in other [capital] cases,” State v. Clemons, 82 Ohio St.3d 438, 451, 696

N.E.2d 1009 (1998); see also State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772

(1998). In this case, using the term to describe Knuff’s actions was “a fair

commentary on the facts,” Clemons at 451. See State v. Tibbitts, 92 Ohio St.3d

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146, 168, 749 N.E.2d 226 (2001) (use of word “coward” to describe defendant

permissible to highlight prosecutor’s theory that defendant was unable to face

victim when he killed her).

{¶ 255} Knuff also complains that the prosecutor repeatedly called him a

liar. Once again, defense counsel did not object to these comments when they were

made at trial. Generally, a prosecutor’s calling the defendant a liar is improper.

State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 171. Yet

such comments have been permitted when based on evidence presented at trial. See

id. Here, the record contains abundant evidence of Knuff’s lying. And his

credibility, or lack thereof, was central to this case. See State v. Hancock, 108 Ohio

St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 98-99 (prosecutor was entitled to

characterize defendant as a liar because the characterization was supported by the

evidence and defendant’s credibility was central to his insanity defense). Thus, the

prosecutor’s characterization of Knuff as a liar was “fair comment based on the

evidence at trial,” Leonard at ¶ 171. No plain error occurred.

{¶ 256} Finally, the prosecutor repeatedly said that Knuff “manipulates”

people, such as his son Tommy and Stoner. Defense counsel did not object to the

prosecutor’s use of the word “manipulate.” What’s more, this court has previously

rejected a capital defendant’s claim that a prosecutor committed misconduct by

describing the defendant as manipulative. Hancock at ¶ 98-99.

{¶ 257} Use of Poetry as a Rhetorical Device. Knuff takes issue with the

prosecutor’s recitation of D.H. Lawrence’s poem “All Souls’ Day” during the

prosecutor’s guilt-phase closing arguments. But defense counsel did not object to

the recitation when it occurred at the trial. Immediately after the recitation, the

prosecutor said:

Ladies and gentlemen, the affairs of John Mann and Regina

Capobianco and the accounting of their deaths are at an end. What

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you do in the next couple of days is up to you. The effort and time

in evaluating all the evidence, the witness testimony, and the

exhibits is important. Apply reason and commonsense. The same

reason and commonsense that we asked of you when you took your

oath to truly try this case.

Keeping in mind that your destination, ladies and gentlemen,

is to arrive at the truth. Because only with the truth can John Mann

and Regina Capobianco rest in peace.

At this point, defense counsel objected, and the objection was overruled.

{¶ 258} Knuff contends that this line of argument was “an improper appeal

to the sympathies and passions of the jurors.” The use of poetry or literary allusion

as a rhetorical device during closing argument is not inherently improper. See, e.g.,

State v. Thompson, 266 Conn. 440, 463-465, 832 A.2d 626 (2003). Although

urging a jury to convict a defendant so that murder victims may “rest in peace”

might be an improper emotional appeal under certain circumstances, that is not

what was said here. The prosecutor asked the jury to “arrive at the truth”—not

“convict”—“[b]ecause only with the truth [could the victims] rest in peace.”

Further, an argument stressing evidence and reason as the pathway to the truth, as

the prosecutor’s argument did here, is not “inflammatory rhetoric” and is unlikely

“to provoke a thoughtless emotional response,” People v. Holmes, 12 Cal.5th 719,

789, 503 P.3d 668 (2022). This is true even when the argument is considered in

the context of a D.H. Lawrence poem.

{¶ 259} Sarcasm. During guilt-phase closing arguments, the prosecutor

employed sarcasm, which Knuff contends was improper. We disagree. The

comments in question were neither inflammatory nor abusive and were made in

response to sarcastic remarks that were made by Knuff’s own counsel. Thus, they

were permissible.

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{¶ 260} During defense counsel’s closing argument, counsel sarcastically

questioned the thoroughness of the crime-scene investigation by trumpeting a

discovery he made at 6209 Nelwood Road during trial preparation: a knife and a

piece of paper underneath a towel on an end table in the living room.

{¶ 261} In the state’s final closing, the prosecutor said: “You know,

[defense counsel,] our super sleuth over here, * * * thank God he went to the house.

* * * Because he had been there several times before and never once looked under

the towel.” Later, the prosecutor said: “You know, I take umbrage when * * * I

hear sometimes divine intervention or that God came upon the defense attorney that

day to just turn over that towel on that table. You take that for what it’s worth * * *.

I’m not going to speculate on that.” Defense counsel did not object to these

statements.

{¶ 262} Sarcastic remarks directed at opposing counsel can be

“inappropriate and improper.” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539,

140 N.E.3d 616, ¶ 383. Yet sarcasm is not necessarily misconduct.

“[I]nflammatory” and “purely abusive” comments are impermissible. State v.

Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988). But “[o]therwise, counsel

for both parties are afforded wide latitude during closing argument.” Id. That

“wide latitude * * * has been held to include some degree of both sarcasm and

invective.” People v. Banks, 237 Ill.2d 154, 183, 934 N.E.2d 435 (2010). And a

reviewing court must take defense counsel’s own “opening salvo” into account

when considering a prosecutor’s use of sarcasm. United States v. Young, 470 U.S.

1, 12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).

{¶ 263} Here, the prosecutor’s sarcasm was not used to denigrate defense

counsel personally but to minimize the significance of the evidence that counsel

had found. The remarks were neither inflammatory nor “purely abusive,” Brown

at 317, and they did not deprive Knuff of a fair trial. The prosecutor was also

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responding in kind to defense counsel’s own use of sarcasm. Therefore, the

prosecutor’s sarcastic remarks were not misconduct.

{¶ 264} No reversible prosecutorial misconduct occurred during the guilt

phase of Knuff’s trial. Each statement that Knuff cites as an example of

prosecutorial misconduct either did not prejudicially affect a substantial right, did

not amount to plain error, or did not constitute misconduct.

2. Penalty Phase

{¶ 265} With regard to the penalty phase of the trial, Knuff first argues that

the prosecutor mischaracterized the guilt-phase testimony relating to Knuff’s plan

to dismember the victims’ bodies. The prosecutor quoted guilt-phase testimony

from Stoner about Knuff’s intent to use hacksaws to dismember the bodies and

about Stoner’s belief that Knuff had partly dismembered the bodies. Contrary to

Knuff’s claim, the prosecutor did not mischaracterize the evidence or mislead the

jury. Knuff’s claim has no merit.

{¶ 266} Next, Knuff contends that it was misconduct for the prosecutor to

urge the jury to assign “great” or “heavy” weight to the aggravating circumstances

and “some,” “little,” or “minimal” weight to the mitigating circumstances. He

objected at trial when the prosecutor made “disparaging” remarks about the

unsworn statement that Knuff made in court, including telling the jury to give

Knuff’s statement no weight. Knuff’s arguments here are meritless. “Prosecutors

can urge the merits of their cause and legitimately argue that defense mitigation

evidence is worthy of little or no weight.” State v. Wilson, 74 Ohio St.3d 381, 399,

659 N.E.2d 292 (1996); see also McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567,

204 N.E.3d 459, at ¶ 241 (not misconduct for prosecutor to urge jury to give no

weight to defendant’s unsworn statement).

{¶ 267} Knuff also argues that the prosecutor “misinform[ed] the jury” and

made “misstatements of the law” when she told the jury: “You are to consider

mitigation that is evidence based. Evidence that was presented in this courtroom.

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* * * Not what’s in your belly, folks.” (Emphasis added.) An objection by defense

counsel was overruled. On appeal, Knuff seems to take particular issue with the

prosecutor’s words “Evidence that was presented in this courtroom.” But he offers

no explanation for his challenge to the prosecutor’s use of these words, nor does he

cite any authority to support his claim that the words were in any way prejudicial

to his receiving a fair trial. No error occurred here. The prosecutor’s statement—

that mitigation is based on evidence presented in court—is consistent with the

constitutional requirement that the sentencer must consider “any relevant

mitigating evidence,” (emphasis added) Eddings v. Oklahoma, 455 U.S. 104, 110,

113-114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

{¶ 268} Knuff also accuses the prosecutor of improperly admonishing the

jury to consider only the three mitigating factors that defense counsel listed in a

PowerPoint presentation during his penalty-phase closing arguments. An objection

by defense counsel was overruled. However, at defense counsel’s request, the trial

court instructed the jury that mitigation was not limited to the three mitigating

factors listed in the PowerPoint presentation but included everything that they

might consider to be mitigating. Knuff contends this curative instruction was

inadequate to cure the alleged error, but he does not explain why. We find that the

instruction was clear and definite and adequately cured any error.

{¶ 269} Knuff further complains that the prosecutor described the deaths of

Mann and Capobianco as “horrendous” and said, “We don’t act like this in a

civilized society, folks.” Neither statement was improper, however. A prosecutor

is free to comment on the nature and circumstances of an offense so long as she

does not cite the nature and circumstances of the offense as aggravating

circumstances. Wogenstahl, 75 Ohio St.3d at 355, 662 N.E.2d 311. And the

prosecutor did not do so here.

{¶ 270} Furthermore, we interpret the reference to “a civilized society” as

a call for the jury to recommend death to maintain community standards—not to

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satisfy a societal demand—and such a request is permissible. See State v. Williams,

23 Ohio St.3d 16, 20, 490 N.E.2d 906 (1986).

{¶ 271} Finally, Knuff criticizes as inflammatory the prosecutor’s

comments that Knuff’s unsworn statement was “pathetic,” “embarrassing,” and

“insulting to the intelligence of every person who heard it.” Defense counsel’s

objections to these comments were overruled. The prosecutor’s comments were

harsh, but in the context of Knuff’s unsworn statement, they do not go beyond the

wide latitude permitted to counsel in closing arguments.

{¶ 272} Thus, we reject Knuff’s 11th proposition of law.

P. Proposition of Law No. XIV: Ineffective Assistance of Counsel

{¶ 273} In his 14th proposition of law, Knuff contends that his trial counsel

rendered ineffective assistance, resulting in prejudice to Knuff in the guilt phase

and the penalty phase. To establish ineffective assistance of counsel, Knuff must

show (1) deficient performance by counsel, i.e., performance falling below an

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable

probability that but for counsel’s errors, the proceeding’s result would have been

different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052,

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