[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Wilks, Slip Opinion No. 2018-Ohio-1562.]




                                           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. 2018-OHIO-1562
              THE STATE OF OHIO, APPELLEE, v. WILKS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Wilks, Slip Opinion No. 2018-Ohio-1562.]
Criminal law—Aggravated murder—Convictions and death sentence affirmed.
    (No. 2014-1035—Submitted January 24, 2018—Decided April 24, 2018.)
 APPEAL from the Court of Common Pleas of Mahoning County, No. 13 CR 540.
                                  ___________________
        FRENCH, J.
        {¶ 1} Appellant, Willie Wilks Jr., was convicted of the aggravated murder
of Ororo Wilkins and the attempted murders of Alexander Morales Jr. and William
Wilkins Jr. A jury recommended, and the trial court imposed, a sentence of death.
In this appeal as of right, we affirm appellant’s convictions and death sentence.
                                  I. TRIAL EVIDENCE
                           A. Argument at appellant’s home
        {¶ 2} Evidence introduced at trial showed that around noon on May 21,
2013, Morales and William Wilkins (nicknamed “Mister”) drove to the
Youngstown home of Mary Aragon, Mister’s mother, to borrow money from her.
                            SUPREME COURT OF OHIO




But appellant, who was Aragon’s boyfriend, had both of her bank cards, so the three
of them went to appellant’s nearby home to get the cards.
       {¶ 3} Aragon knocked on the door and asked appellant for the cards; he
agreed to give them to her but did not bring them outside. Mister then knocked on
the door and asked appellant for the cards. Appellant told Mister that he would get
them and asked Mister to come to the corner of the house.
       {¶ 4} Appellant soon came outside and gave Mister one card but not the
other. Appellant then asked Mister to walk to the back of the house with him.
Mister observed appellant “fidgeting in his pants” as if he had a weapon. Mister
became angry, they exchanged words, and Mister tried to start a fight.
       {¶ 5} Appellant entered his house. He returned with a 9 mm handgun,
chased Mister down the street, and pointed the gun at him. Mister did not believe
that appellant would shoot him because people were around. Mister taunted
appellant and called him names. When appellant saw Morales, appellant put the
gun in his pocket. Morales introduced himself, and appellant said, “You better get
your boy.” Morales replied that they had come just to get the bank cards and did
not want any trouble. Appellant handed the second bank card to Morales, and
Morales, Mister, and Aragon left.
                     B. Mister’s phone call with appellant
       {¶ 6} Later that afternoon, Mister, Morales, and two other individuals
played basketball at a nearby playground. About 45 minutes after they started
playing, Mister placed a phone call to Aragon. Mister asked his mother, “Why
would you let [appellant] do that in front of [you]? Why would you be on his side?”
       {¶ 7} Appellant got on the phone with Mister, and they had a heated
discussion. Appellant told Mister that he was going to kill him. Appellant asked
Mister where he was, but Mister refused to tell him. Mister called appellant a name
and hung up.




                                        2
                               January Term, 2018




     C. Murder of Ororo and attempted murders of Morales and Mister
       {¶ 8} Later in the afternoon that same day, Mister and Morales drove to
Mister’s home, which was a short distance from Aragon’s home. Mister was living
with his girlfriend, Renea Jenkins, their three children, and Renea’s mother.
       {¶ 9} Upon arriving, Morales and Mister joined a gathering on the front
porch. Soon thereafter, Mister went inside the house to his upstairs bedroom and
Renea, her sister and brother, Shantwone and Antwone Jenkins, and Renea’s two
older children also went inside. Ororo Wilkins, Mister’s sister, remained seated on
the porch with Morales, who was holding Renea’s five-month-old daughter.
       {¶ 10} “[N]o more than ten minutes” after he and Mister arrived, Morales
saw a “dark-color blue/purplish * * * Dodge Intrepid” near the house. Appellant
exited the car, walked toward the porch, raised an “AK” rifle, and asked where
Mister was. Morales turned with the baby to go inside the house. Appellant shot
him in the back, and Morales dropped the baby and fell just inside the house.
Appellant then shot Ororo in the head when she went to pick up the baby. Morales
ran to the back of the house and collapsed in the kitchen.
       {¶ 11} Mister witnessed the events from his upstairs bedroom.            After
hearing a car “skidding,” he looked out the window and saw a car “like a purple
Intrepid” parked in front of the house. Two people were in the front seats, and
appellant was in the back. Appellant was wearing a hooded shirt with the hood up.
Mister saw appellant walk toward the front porch carrying “some kind of rifle” and
then saw appellant shooting toward the porch.
       {¶ 12} Mister screamed, and appellant looked up and fired at him.
Appellant’s hood came off, and Mister made eye contact with him. Mister was not
hit by the gunfire and went downstairs. But the car was gone when Mister got to
the porch.
       {¶ 13} Renea called 9-1-1. On the recording of the 9-1-1 call, Mister can
be heard repeatedly yelling, “He killed my sister” and “I watched him kill my




                                         3
                             SUPREME COURT OF OHIO




sister.” When police officers arrived at the scene, they found Mister holding
Ororo’s body in his arms, and Officer Jessica Shields heard him scream, “Willie
did this. I don’t know why Willie did this.” Officer Melvin Johnson found Morales
lying in the kitchen doorway. Morales told the officer that appellant did the
shooting.
       {¶ 14} Mister told Officer Shields that a black Dodge Stratus had squealed
to a halt outside the house, causing him to look out the window. He told her that
he then saw appellant jump out of the back seat with a big gun, which he thought
was an AK-47.
       {¶ 15} Investigators found a single 7.62 x 39 mm shell casing on the front
porch. There was also a bullet strike near the front-door window and a bullet strike
on the upper-story siding.
       {¶ 16} Police broadcast a BOLO (be-on-the-lookout) request for appellant
and for a dark-colored Intrepid and/or a silver minivan registered to his mother.
They later learned that appellant purchased a 2004 purple Dodge Stratus four days
before the shooting.
                              D. Appellant’s arrest
       {¶ 17} On May 22, 2013—the day after the shooting—the police received
a tip that appellant was driving a silver minivan. The minivan was spotted in
Youngstown that afternoon. Appellant was driving the minivan and was the only
person in the vehicle. The police followed appellant into a residential area, where
he abandoned the vehicle and fled. He was apprehended after a short chase on foot.
       {¶ 18} When the police searched appellant, they found a little over $2,000
in cash and one of Aragon’s bank cards. They found a fully loaded 9 mm handgun
in the van, and they recovered a 9 mm magazine near the van. Appellant’s hands
were swabbed for gunshot residue (“GSR”) at the police station.




                                         4
                                January Term, 2018




       {¶ 19} Police never recovered appellant’s purple Dodge Stratus.          And
although Mister later identified the other two occupants of the car in a police photo
array, the police were unable to find them.
                                E. Autopsy results
       {¶ 20} Dr. Joseph Ohr, the Mahoning County medical examiner, conducted
Ororo’s autopsy. He testified that Ororo died from a gunshot wound to the head.
The bullet entered the side of her head between her eye and ear and exited at the
back of her head. The exit wound was “five, six centimeters” by “two and a half
centimeters” in size. Dr. Ohr said that the damage to Ororo’s head was “consistent
with a very fast moving bullet, regardless of the caliber.”
       {¶ 21} Dr. Ohr also found a gunshot wound in the heel of Ororo’s left hand.
No soot was found that might have shown that the muzzle was near Ororo’s hand
when the gun was fired. Dr. Ohr said that it was possible that Ororo’s hand was
raised and that the same shot caused both wounds.
                               F. Forensic evidence
       {¶ 22} Martin Lewis, a forensic scientist in the trace-evidence section of the
Ohio Bureau of Criminal Investigation (“BCI”), examined the GSR collected from
appellant. He testified that “particles [were] highly indicative of gunshot primer
residue * * * on both of the samples.”
       {¶ 23} Joshua Barr, a forensic scientist in the firearms section of BCI,
examined the 7.62 x 39 mm cartridge. He testified that this cartridge is most
commonly fired by an SKS (a semiautomatic carbine) or an AK-47 rifle. The police
never recovered the murder weapon, however.
       {¶ 24} Barr also examined two lead fragments found at the scene, but they
were unsuitable for microscopic comparison. A lead fragment removed from
Morales was also unsuitable for testing.




                                           5
                             SUPREME COURT OF OHIO




                               II. CASE HISTORY
       {¶ 25} Appellant was indicted on nine counts.          Count 1 charged that
appellant, purposely and with prior calculation and design, committed the
aggravated murder of Ororo. Count 1 included a death-penalty specification for a
course of conduct involving the purposeful killing of, or attempt to kill, two or more
persons, under R.C. 2929.04(A)(5).
       {¶ 26} Count 2 charged appellant with the murder of Ororo, by improperly
discharging a firearm into a habitation. Counts 3 and 4 charged appellant with the
attempted murders of Morales and Mister, respectively. Counts 5 and 6 charged
appellant with felonious assault. Count 7 charged him with discharging a firearm
into an occupied structure.      Counts 1 through 7 each included a firearm
specification. Counts 8 and 9, charging appellant with having a weapon while
under a disability, were severed from the other counts and later dismissed.
       {¶ 27} Appellant pleaded not guilty to all the remaining charges. A jury
found appellant guilty of all charges and specifications.
       {¶ 28} Appellant was sentenced to death for the aggravated murder of
Ororo. He was also sentenced to 11 years in prison for each attempted-murder
count and 9 years for the firearm specifications, for a total of 31 years. The trial
court ordered the prison sentences to run consecutively to the death sentence.
       {¶ 29} Appellant now appeals his convictions and his death sentence,
raising 19 propositions of law. We address some of appellant’s propositions of law
out of order.
                                  III. ANALYSIS
         A. Failure to present exculpatory evidence to the grand jury
       {¶ 30} In proposition of law No. III, appellant argues that his constitutional
right to a fair grand-jury proceeding was violated because the state failed to present
exculpatory evidence to the grand jury. Appellant argues that the state should have
presented evidence that two witnesses said that the shooter was wearing dreadlocks




                                          6
                                January Term, 2018




(testimony that appellant did not wear dreadlocks was presented at trial) and his
video-recorded police statement denying all involvement in the case.
       {¶ 31} In United States v. Williams, 504 U.S. 36, 51-52, 112 S.Ct. 1735,
118 L.Ed.2d 352 (1992), the Supreme Court of the United States held that a
prosecutor has no duty to present exculpatory evidence to the grand jury. Williams
states that “requiring the prosecutor to present exculpatory as well as inculpatory
evidence would alter the grand jury’s historical role, transforming it from an
accusatory to an adjudicatory body.” Id. at 51. The court emphasized that “[i]t is
axiomatic that the grand jury sits not to determine guilt or innocence, but to assess
whether there is adequate basis for bringing a criminal charge.” Id.
       {¶ 32} Appellant argues that authoritative sources support a requirement on
the part of prosecutors to disclose exculpatory evidence to grand juries. He cites
materials published by the United States Department of Justice and the American
Bar Association (“ABA”). Section 9-11.233 of U.S. Department of Justice, United
States Attorneys’ Manual (1997) states:


       It is the policy of the Department of Justice * * * that when a
       prosecutor conducting a grand jury inquiry is personally aware of
       substantial evidence that directly negates the guilt of a subject of the
       investigation, the prosecutor must present or otherwise disclose such
       evidence to the grand jury before seeking an indictment * * *. While
       a failure to follow the Department’s policy should not result in
       dismissal of an indictment, appellate courts may refer violations of
       the policy to the Office of Professional Responsibility for review.


(Emphasis added.) Until 2015, Standard 3-3.6(b) of American Bar Association,
ABA Standards for Criminal Justice: Prosecution Function (3d Ed.1993) stated,
“No prosecutor should knowingly fail to disclose to the grand jury evidence which




                                          7
                            SUPREME COURT OF OHIO




tends to negate guilt or mitigate the offense.” But neither the Justice Department
manual nor the ABA criminal-justice standards are binding on Ohio’s grand-jury
process, and any failure to follow them here did not violate appellant’s
constitutional rights. In any event, we do not view the allegedly exculpatory
evidence as substantial.
       {¶ 33} Alternatively, appellant attempts to rely on recommendations made
by Ohio task forces established by this court. But none of the recommendations he
cites have become law, and they have no impact here.
       {¶ 34} We conclude that the prosecutor had no obligation, constitutional or
otherwise, to present allegedly exculpatory evidence to the grand jury.
       {¶ 35} We reject proposition of law No. III.
              B. Prosecutorial misconduct before the grand jury
       {¶ 36} In proposition of law No. IV, appellant argues that his constitutional
rights were violated because of prosecutorial misconduct allegedly committed
during the grand-jury proceedings.
                                1. Legal principles
       {¶ 37} We begin with the general principles that traditionally, the grand jury
has had “wide latitude to inquire into violations of criminal law” and that the
“technical procedural and evidentiary rules governing the conduct of criminal
trials” do not restrain its operation. United States v. Calandra, 414 U.S. 338, 343,
94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Additionally, a facially valid indictment is
not subject to challenge based on grounds of inadequate or incompetent evidence.
Id. at 345. A prosecutor may cast a wide net to find evidence to place before the
grand jury. Id. at 344.
                                     2. Analysis
       {¶ 38} First, appellant asserts that the prosecutor improperly elicited
hearsay. Detective Sergeant John Perdue testified before the grand jury that
“everybody in the neighborhood was saying that that was Mary’s boyfriend that




                                         8
                                 January Term, 2018




actually did the shooting.” Perdue added, “So once we get on the scene, we talked
to William and talked to Tonya and all of them, and they said it was Willie that
actually came out and did the shooting.” But it is well established that hearsay may
be presented to a grand jury. Costello v. United States, 350 U.S. 359, 362-364, 76
S.Ct. 406, 100 L.Ed. 397 (1956).
         {¶ 39} Second, appellant complains that the prosecutor provided
information about his prior criminal record. Detective Perdue testified before the
grand jury that appellant was arrested in 1990 for “[m]urder, but they reduced it
down to felonious assault.” The prosecutor added, “Actually, he pled guilty to
involuntary manslaughter and two counts of felonious assault, so back in 1990 he
tried to kill at least a few people and killed one.”
         {¶ 40} R.C. 2939.10 states, “The prosecuting attorney or assistant
prosecuting attorney may at all times appear before the grand jury to give
information relative to a matter cognizable by it, or advice upon a legal matter when
required.” The prosecutor’s role as the grand jury’s legal advisor may also “give
him leeway to make comments that would not be permitted of a trial attorney, who
acts strictly as an advocate and leaves the giving of legal advice to the trial judge.”
4 LaFave, Israel, King & Kerr, Criminal Procedure, Section 15.7(b), at 713-714
(4th Ed.2015).
         {¶ 41} The prosecutor, in her role as legal advisor, ensured that the grand
jury had correct information about the defendant’s criminal record. Nevertheless,
appellant claims that the prosecutor’s statement that “in 1990 he tried to kill at least
a few people and killed one” was misleading. But appellant fails to support that
claim.
         {¶ 42} Third, appellant argues that the prosecutor improperly became a
witness during the grand-jury proceedings. A grand juror inquired about the health
of the baby who was dropped during the shooting. Detective Perdue responded,
“Yeah, the baby was fine.” The prosecutor added that Ororo “was hit in the head”




                                           9
                             SUPREME COURT OF OHIO




and that she “dropped the baby.” The prosecutor’s remarks added some details to
Perdue’s testimony, but they were harmless.
       {¶ 43} Fourth, appellant asserts that the prosecutor’s discussion about a
shell casing amounted to expert testimony. Detective Perdue testified before the
grand jury that the casing was found on the porch and that witnesses had estimated
that appellant was “a good ten, fifteen feet from the porch” when he started
shooting. A grand juror asked whether the casing “flew that far”; Perdue answered
that it had, and the prosecutor added, “They can fly that far.” Perdue then testified
that the police did not find other casings, stating that “it was just hard to say where
they went.” The prosecutor added, “That’s the problem with casings. They fly,
and a lot of times we can’t find them and we know there’s at least three shots fired.”
The prosecutor was repeating Perdue’s testimony that casings can travel several
feet. The prosecutor did not become an expert witness by simply clarifying
Perdue’s comments.
       {¶ 44} Finally, appellant argues that the prosecutor misled the grand jury
and may have lied when discussing the identities of the car’s driver and other
passenger. Detective Perdue testified that there were “three guys in the Intrepid.
There was a driver and a passenger, and Wilks was in the back.” The questioning
continued:


       BY MS. DOHERTY [the prosecutor]:
                Q: But we don’t know who these other people are at this
       point?
                A: No, we don’t know who they are. We have an idea, but
       we’re not really—
                Q: Now that we have him, maybe we’ll get something.
       Okay?
                GRAND JUROR: Will they be chargeable?




                                          10
                                January Term, 2018




                MS. DOHERTY: Probably. Depending upon what their
        conduct was before and after. We just have to know who they are.
        Okay.


        {¶ 45} Appellant claims that this colloquy falsely indicated that the
prosecution and the police did not “know who these other people are.” According
to appellant, because Mister had identified the driver and passenger from a photo
array on the night of the shootings, the prosecutor and the police knew who they
were.
        {¶ 46} Nothing shows that the prosecutor lied to or misled the grand jury.
The prosecutor did not testify about the identities of the driver and other passenger.
Moreover, the prosecutor did not attempt to mislead the grand jury by informing it
that the driver and other passenger could “[p]robably” be charged once the police
learned their identities and conduct.
        {¶ 47} We reject proposition of law No. IV.
                C. Excusal of Spanish-speaking prospective juror
        {¶ 48} In proposition of law No. VI, appellant argues that the trial court
erred by excusing a Spanish-speaking prospective juror.
        {¶ 49} On his questionnaire, prospective juror No. 481 stated that he was
Hispanic. He added, “I don’t speak well Inglish [sic].” Other answers on his
questionnaire contained misspellings and poor grammar. He stated that he watched
Univision and other Spanish-language television programs. He did not indicate
where he was born but stated that he had lived in Illinois, Oklahoma, and Ohio over
the past ten years.
        {¶ 50} During voir dire, prospective juror No. 481 acknowledged that he
did not speak English very well. He added, “I’ve been a waiter for so many years
in different Mexican restaurants, but I just know about my work. And, you know,
for things like this, it’s kind of hard for me.” He also stated that he did not




                                         11
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understand all the words on the questionnaire when he completed it. Following this
short exchange, defense counsel stated, “We’re okay, Judge.” The trial court then
excused this prospective juror.
       {¶ 51} Under R.C. 2945.25(N), a person called for service as a juror in a
criminal case may be challenged if “English is not his native language, and his
knowledge of English is insufficient to permit him to understand the facts and law
in the case.” Accord Crim.R. 24(C)(13). The trial court has discretion to determine
whether a prospective juror should be disqualified for cause, and we will not reverse
unless the trial court has abused that discretion. Berk v. Matthews, 53 Ohio St.3d
161, 169, 559 N.E.2d 1301 (1990).
       {¶ 52} Here, defense counsel did not object to the trial court’s excusal of
prospective juror No. 481, so appellant has forfeited all but plain error. See State
v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 116. To prevail,
appellant must show that an error occurred, that the error was plain, and that the
error affected his substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002) (an error affects substantial rights only if it affected the
outcome of the trial); see Crim.R. 52(B). We take “[n]otice of plain error * * *
with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804
(1978), paragraph three of the syllabus.
       {¶ 53} When      examined     individually,   prospective   juror   No.    481
acknowledged that he did not speak English very well. Although he was not
specifically asked, his questionnaire indicated that his native language was Spanish.
He obtained his news and entertainment from Spanish-language television
programs or other Spanish-language sources on the Internet. He said that he did
not understand all the words on the questionnaire and that “for things like this, it’s
kind of hard for me.” Under these circumstances, the trial court committed no plain
error by excusing this prospective juror.




                                            12
                                 January Term, 2018




        {¶ 54} Appellant cites State v. Speer, 124 Ohio St.3d 564, 2010-Ohio-649,
925 N.E.2d 584, in arguing that the trial court’s excusal of prospective juror No.
481 violated the prospective juror’s access to the courts and the opportunity to serve
on juries.
        {¶ 55} Speer involved a hearing-impaired prospective juror. During voir
dire, the prospective juror informed the court that she could hear people’s voices
but could not understand spoken words without reading the speaker’s lips. Id. at ¶
11. The trial court denied a defense motion to excuse the prospective juror for
cause. The court stated that it would accommodate her impairment by permitting
her to sit where she could see the faces of the witnesses and by telling her to advise
the court if she missed anything.
        {¶ 56} As part of its case-in-chief, the state played a recording of a 9-1-1
call the defendant placed after the victim fell off a boat the defendant was
navigating. The recording played an important role in each side’s case: the
prosecution argued that the defendant’s tone and demeanor in the recording
suggested that he had acted recklessly, while the defense cited the recording as
evidence that the defendant was not under the influence of alcohol while operating
the boat. Id. at ¶ 12-15. The defendant was convicted of aggravated vehicular
homicide and involuntary manslaughter.
        {¶ 57} The court of appeals reversed Speer’s convictions, and we affirmed.
We held that the trial court abused its discretion in denying the defense challenge
for cause because the court’s accommodation of allowing the hearing-impaired
juror to read the transcript of the 9-1-1 recording was insufficient to enable the juror
to perceive whether in the 9-1-1 recording there was urgency in the defendant’s
voice, whether his speech was slurred, and whether he sounded deceptive or
hesitant. Id. at ¶ 28-29. We also articulated the test for determining whether an
impaired juror may serve on a jury. Id. at ¶ 30.




                                          13
                               SUPREME COURT OF OHIO




        {¶ 58} Citing Speer, appellant argues that the trial court should have more
thoroughly questioned prospective juror No. 481 to determine whether an
interpreter could have accommodated his lack of fluency. But unlike the hearing-
impaired juror in Speer, there was a statutory basis for excusing prospective juror
No. 481. The defense did not object to his excusal, and the trial court was not
required to accommodate this prospective juror’s language difficulty through an
interpreter or some other means before excusing him.
        {¶ 59} Finally, appellant argues that prospective juror No. 481 was denied
his right to equal protection by being excused. “[A] defendant in a criminal case
can raise the third-party equal protection claims of jurors excluded by the
prosecution because of their race.” Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct.
1364, 113 L.Ed.2d 411 (1991). The trial court did not exclude prospective juror
No. 481 because of his national origin or race. He was excluded because he lacked
sufficient fluency in English. The record supports this basis for excusing the
prospective juror. Accordingly, we reject appellant’s equal-protection argument.
Compare State v. Smith, 2d Dist. Montgomery No. 24402, 2013-Ohio-1586, ¶ 19,
28-29 (exclusion of an immigrant as a prospective juror, based on an erroneous
finding that her knowledge of English was insufficient, violated the prospective
juror’s right to equal protection and constituted reversible error).
        {¶ 60} We reject proposition of law No. VI.
                                D. Courtroom closures
        {¶ 61} In proposition of law No. V, appellant argues that courtroom
closures during individual voir dire and the penalty-phase jury instructions violated
his constitutional rights to a public trial.
                                 1. Individual voir dire
        {¶ 62} The trial court held individual voir dire inside the jury room over a
several-day period. The parties discussed the procedure during a status hearing:




                                               14
                         January Term, 2018




       [THE COURT:] Lastly, when we began the case we did it
with a one-on-one, extensive, detailed discussion and interview of
each juror[]. We did that in the open jury room which is adjacent to
the courtroom * * * —the door was opened where anyone who
wishes admitted was permitted. That was done rather than in open
court. At the direction and request of the defense of that long period
of four weeks or so of the * * * individual voir dire regarding pretrial
publicity as well as the death penalty aspect of the case, the
defendant was not shackled, was in street clothes sitting at the table
with prospective jurors and counsel was present, and it was done at
the behest of the defense.
       MR. YARWOOD [defense co-counsel]:                I’ll make the
record very clear on this. First of all, our client was in civilian
clothes during the entire proceedings.       He was given, I think,
tremendous latitude assisting us during it. In fact, * * * we were
back in the jury room that was open for people to come in and it was
available—and from our perspective that would meet the
requirement of an open courtroom for purposes of people who
wanted to come in and sit. There were chairs there for them to do
it. It was available. Our position is that was of great benefit to be
able to individually ask jurors in that form, and the Court and record
should be very clear that we were satisfied with that. Mr. Wilks was
very satisfied with that means and manner. I had even, in fact,
told—when they were asking, where is other individuals? You’re
allowed to come in and sit down. It is open. So from our perspective
we see it as a nonissue. * * *
       MR. ZENA [lead defense counsel]: To reemphasize in some
way what Ron [Yarwood] said, and this was discussed at length by




                                  15
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       us. Quite frankly, we asked that you proceed in that fashion in the
       hope that certain people wouldn’t come and observe and thus
       expose this case to yet more publicity. We accomplished that fact
       by the manner in which it was conducted without barring anybody
       from the room. That’s all on us, and we asked you to do it that way.


(Emphasis added.)
       {¶ 63} Shortly after this discussion, the trial court asked the defendant, “Mr.
Wilks, anything from you?” He replied, “No, sir.”
       {¶ 64} The Sixth Amendment to the United States Constitution and Article
I, Section 10 of the Ohio Constitution guarantee an accused the right to a public
trial. Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984);
State v. Lane, 60 Ohio St.2d 112, 119, 397 N.E.2d 1338 (1979), and fn. 2. This
right extends to the voir dire of prospective jurors. Presley v. Georgia, 558 U.S.
209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010).
       {¶ 65} Appellant argues that holding individual voir dire in the jury room
constituted a de facto closure of the courtroom. He claims that the trial court kept
spectators away from the proceedings. But nothing in the record indicates that
spectators were excluded from attendance. The jury room was adjacent to the
courtroom, the door would be opened for anyone who wished to be admitted, and
there were empty chairs available. In short, there is little evidence in the record to
show that a closure actually occurred. See State v. Williams, 9th Dist. Summit No.
26014, 2012-Ohio-5873, ¶ 10.
       {¶ 66} But even if a closure had occurred, defense counsel asked the trial
court to conduct individual voir dire in the jury room. The doctrine of invited error
applies to appellant’s claim. That doctrine specifies that a litigant may not “take
advantage of an error which he himself invited or induced.” Hal Artz Lincoln-
Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502




                                         16
                                January Term, 2018




N.E.2d 590 (1986), paragraph one of the syllabus. And the doctrine applies to the
erroneous closure of courtroom proceedings. State v. Sowell, 148 Ohio St.3d 554,
2016-Ohio-8025, 71 N.E.3d 1034, ¶ 50-52 (defendant not entitled to complain
about the closure of the courtroom during individual voir dire because he had
specifically requested that the court conduct individually sequestered voir dire in
chambers); State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81,
¶ 61-64 (defendant not entitled to complain about the closure of the courtroom
during a suppression hearing when he had requested the closure to avoid prejudicial
pretrial publicity). Here, appellant requested that individual voir dire be conducted
in the jury room to limit pretrial publicity, and he may not complain of any error
that he induced.
        {¶ 67} Appellant also objects that he did not personally indicate consent to
conducting individual voir dire in the jury room. He cites State v. Hensley, 75 Ohio
St. 255, 266, 79 N.E. 462 (1906), in arguing that the right to a public trial “cannot
be waived by the defendant’s silence.” But counsel may consent to a courtroom
closure that is “primarily for the benefit of the defendant.” State v. Bayless, 48
Ohio St.2d 73, 110, 357 N.E.2d 1035 (1976), vacated on other grounds, sub nom.
Bayless v. Ohio, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155 (1978). Here,
defense counsel not only requested this procedure, but he also indicated that
appellant “was very satisfied with that means and manner” of conducting individual
voir dire.
        {¶ 68} Accordingly, defense counsel could consent to conducting
individual voir dire in the jury room without appellant’s express consent. The jury
room’s location reduced defense exposure to pretrial publicity and benefited
appellant. And as a tactical decision, it was well within defense counsel’s purview.
See Commonwealth v. Lavoie, 464 Mass. 83, 88-89, 981 N.E.2d 192 (2013)
(counsel may waive, with or without the defendant’s express consent, the right to a
public trial during jury selection when the waiver is a tactical decision), citing




                                         17
                              SUPREME COURT OF OHIO




Gonzalez v. United States, 553 U.S. 242, 248, 128 S.Ct. 1765, 170 L.Ed.2d 616
(2008); 6 LaFave, Israel, King & Kerr, Criminal Procedure, Section 24.1(a), at 352.


                            2. Penalty-phase instructions
         {¶ 69} Following penalty-phase closing arguments, the trial court addressed
the jury and the spectators, stating:


         I’m going to give you your final closing instructions. It will take
         about a half hour. Those in the rear of the courtroom, you’re
         certainly welcomed to stay; however, when I begin this instruction,
         it will take about a half hour and we’re going to close the door and
         lock it, and it will remain closed for the duration. So if you don’t
         want to stay for the duration, you should leave, so you’re welcomed
         to do that now.


Defense counsel made no objection.
         {¶ 70} Appellant argues that locking the courtroom doors violated his right
to a public trial. Here, his failure to object at trial forfeited this claim absent plain
error. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996,
¶ 103.
         {¶ 71} Appellant contends that the trial court should have made findings in
accordance with Waller, 467 U.S. at 45, 104 S.Ct. 2210, 81 L.Ed.2d 31, before
locking the doors. In Waller, in reviewing a courtroom closure for a suppression
hearing, the Supreme Court of the United States set out a four-pronged test that
courts must use to determine whether closure of the courtroom is necessary: “[T]he
party seeking to close the hearing must advance an overriding interest that is likely
to be prejudiced, the closure must be no broader than necessary to protect that




                                           18
                                January Term, 2018




interest, the trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the closure.” Id. at 48.
       {¶ 72} Under the specific facts of this case, the trial court did not err under
Waller. In Waller, the trial court excluded the public from the courtroom for the
duration of a seven-day suppression hearing. Id. at 42. Here, the trial court
announced to the spectators that they were welcome to stay but would not be
permitted to leave during the 30-minute jury charge, presumably to avoid
distracting the jury during the instructions. See United States v. Scott, 564 F.3d 34,
37-38 (1st Cir.2009) (distinguishing Waller and determining that closure did not
occur when trial court locked the courtroom during instructions but allowed
spectators to remain). The public was merely prevented from entering and leaving
the courtroom during this brief period.
       {¶ 73} There is no evidence that anyone was denied access to the courtroom
during the penalty-phase instructions. Given these facts, we conclude that no plain
error occurred. See United States v. Dugalic, 489 Fed.Appx. 10, 19 (6th Cir.2012)
(right to public trial not violated when spectators prevented from entering and
leaving the courtroom during closing arguments); State v. Brown, 815 N.W.2d 609,
617-618 (Minn.2012) (right to public trial not violated when the courtroom doors
were locked during jury instructions but spectators could remain).
       {¶ 74} Nevertheless, we caution that while a trial court has discretion to
control the proceedings, it must exercise that discretion carefully and sparingly in
these circumstances. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854
N.E.2d 1038, ¶ 51. As we recognized in Drummond, “The right to a public trial is
not absolute, and in some instances must yield to other interests, such as those
essential to the administration of justice.” Id. But a trial court may abridge a
defendant’s right to a public trial “only when necessary, and any closure must be
narrowly drawn and applied sparingly.” Id. In keeping with these principles, a trial




                                          19
                              SUPREME COURT OF OHIO




court should leave the courtroom open and the doors unlocked during all
proceedings unless the court makes findings adequate to support the closure.
        {¶ 75} Because appellant waived all but plain error here and we have found
none, we reject proposition of law No. V.
               E. Victim-impact and emotionally laden testimony
        {¶ 76} In proposition of law No. VII, appellant argues that the trial court
erred in admitting victim-impact and other emotionally laden testimony.
        {¶ 77} Defense counsel filed a pretrial motion in limine to exclude victim-
impact testimony. But except when noted below, appellant did not renew his
objection at trial and therefore has forfeited all but plain error. See State v. Powell,
132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 130.
        {¶ 78} First, appellant argues that Traniece Wilkins, Ororo’s older sister,
presented victim-impact testimony during her direct examination.              Traniece
testified:


               Well, [Ororo] had a beautiful heart, and she was smart,
        caring, funny. She loved to make people laugh. And whenever she
        was anywhere, like she commanded attention.            When she was
        present, you knew she was in the room. It’s just like she just had
        this personality where like people just gravitated to her * * *.


Traniece also said that Ororo thought that her nieces and nephews were “the best
thing since sliced bread.” Traniece added that her brothers and sisters had a close
relationship and that she was involved in raising Ororo.
        {¶ 79} Victim-impact testimony does not violate constitutional guarantees.
See Payne v. Tennessee, 501 U.S. 808, 825-827, 111 S.Ct. 2597, 115 L.Ed.2d 720
(1991). We have permitted victim-impact testimony in limited situations in capital
cases when the testimony is not overly emotional or directed to the penalty to be




                                          20
                                   January Term, 2018




imposed. Powell at ¶ 134; State v. Hartman, 93 Ohio St.3d 274, 293, 754 N.E.2d
1150 (2001).
           {¶ 80} Traniece’s brief testimony was not overly emotional. She did not
mention the effect that Ororo’s death had on their families. She neither mentioned
nor recommended a possible sentence. No plain error occurred.
           {¶ 81} Second, citing Evid.R. 401 and 403, appellant argues that the trial
court should have excluded Officer Shields’s emotionally laden testimony and her
description of the bloody crime scene.
           {¶ 82} Evidence is relevant, and therefore generally admissible under
Evid.R. 402, if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Evid.R. 401. But a court must exclude evidence
when its “probative value is substantially outweighed by the danger of unfair
prejudice.” Evid.R. 403(A).
           {¶ 83} Officer Shields described the crime scene as “the most gruesome
scene I have ever seen up until that date and since then.” She testified: “[Mister]
was wearing white shorts that were covered in blood, completely saturated in blood
and brain matter. He was holding on to his sister’s head like so, like this. Brains
were all over the place. He was trying to hold the sides of her head.” After
describing the scene, Shields testified that Mister screamed, “Willie did this. I don’t
know why Willie did this.”
           {¶ 84} Defense counsel, at the completion of Officer Shields’s testimony,
objected to her “blurting out” that this was the “most gruesome scene” she had ever
seen. At the defense’s request, the trial court gave the jury a curative instruction,
stating:


           It’s an emotional situation; and, obviously, for young police officers,
           it’s not unnatural to have feelings about things as you see them.




                                             21
                             SUPREME COURT OF OHIO




       * * * So I am admonishing you, as I did early on in my instruction,
       that emotion and feeling and bias and attitude towards or against a
       witness or a judge or the parties * * * has no place in the courtroom.
       * * * I just want you to understand what she said regarding that is
       not evidence regarding this case. That may be a feeling she has, but
       that does not in any way bear evidence upon the facts that we are
       here to determine.


       {¶ 85} Officer Shields’s testimony that this was the “most gruesome scene”
she had witnessed was irrelevant. But these were brief remarks. Defense counsel
failed to make a contemporaneous objection to her testimony, and appellant cannot
show that these comments resulted in plain error. See State v. Murphy, 91 Ohio
St.3d 516, 532, 747 N.E.2d 765 (2001) (party must make a contemporaneous
objection to alleged trial error in order to preserve that error for appellate review).
To the extent that Officer Shields’s comments about the “gruesome scene” were
improper, the trial court’s instructions cured them. See State v. Treesh, 90 Ohio
St.3d 460, 480, 739 N.E.2d 749 (2001) (we presume that a jury follows a court’s
curative instructions, including instructions to disregard testimony).
       {¶ 86} Nevertheless, appellant argues that the prosecutor’s closing
argument erased the effect of the curative instructions. The prosecutor argued:


       You got a curative instruction after [Officer Shields] testified. But
       what I want to tell you is, she’s human. * * * Just because she had
       some emotion you don’t have to consider that, and we ask you not
       to consider that. We—actually the Judge instructed you not to
       consider her emotion. But that’s the reality. This is not a sterile
       situation where police officers go out and they see random people
       * * * who they aren’t affected by. So understand that when she was




                                          22
                                 January Term, 2018




        testifying and getting somewhat animated, she was reliving that
        also. She was reliving what she saw.


Defense counsel did not object.
        {¶ 87} Here, the prosecutor was arguing that Officer Shields was a credible
witness despite her emotional reaction regarding the crime scene. See State v.
Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970) (prosecutor entitled to
“wide latitude in summation as to what the evidence has shown and what reasonable
inferences may be drawn therefrom”). The trial court also had instructed the jury
that closing arguments are not evidence and are “not to be considered by you as
such.” We reject appellant’s claim that the prosecutor’s argument erased the effect
of the earlier curative instructions.
        {¶ 88} Appellant also specifically takes issue with Officer Shields’s
testimony about Mister holding Ororo’s head and his shorts being “saturated in
blood and brain matter.” But the court properly admitted this testimony because it
established the condition of Ororo’s body at the scene. See State v. Mundt, 115
Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 92-93; Drummond, 111 Ohio
St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, at ¶ 222 (police testimony identifying
“brain matter” at the crime scene properly admitted). It also depicted Mister’s
distress, which was relevant in showing the plausibility of Mister’s excited
utterance that appellant was the killer.
        {¶ 89} Finally, appellant argues that Dr. Ohr, the medical examiner, gave
inflammatory testimony regarding the gunshot fired at Ororo. Ohr testified that the
lack of soot or stippling showed that the weapon was fired at “an indeterminate
range” beyond three to four feet. Defense counsel then asked, “And had the firearm
been fired at that close a range * * * where soot and stippling may have been left,
what would be the difference in the damage to Ororo Wilkins’ head?” Ohr replied,
“Well, Counselor, frankly, the gunshot wound would have * * * taken her head.”




                                           23
                             SUPREME COURT OF OHIO




He also testified that “the damage done here is consistent with” a high-powered or
high-velocity projectile.
       {¶ 90} The medical examiner’s duties include examining the victim and the
crime scene and determining the manner and cause of death. State v. Williams, 99
Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 70. A medical examiner is
“an expert witness who is permitted to give an opinion on matters within his scope
of expertise.” State v. Heinish, 50 Ohio St.3d 231, 234, 553 N.E.2d 1026 (1990).
       {¶ 91} Dr. Ohr’s testimony was well within the scope of his expertise.
Moreover, Ohr’s testimony refuted the defense’s theory that the murder weapon
was a handgun. That evidence was relevant in showing that Ororo’s wounds were
consistent with a shot fired from a high-powered or high-velocity rifle. No plain
error occurred, and we reject proposition of law No. VII.
                      F. Admissibility of handgun evidence
       {¶ 92} In proposition of law No. VIII, appellant argues that prejudicial error
occurred when the state introduced evidence of a handgun not used during the
murder and attempted murders. Appellant did not object to the introduction of this
evidence at trial and therefore has forfeited all but plain error. State v. Payne, 114
Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 15.
                                  1. Relevant facts
       {¶ 93} On the day of the shootings, during the argument over Aragon’s bank
cards, appellant pointed a 9 mm handgun at Mister and chased him. Later that
afternoon, appellant killed Ororo and shot Morales in the back with a rifle. The
next day, the police found a loaded 9 mm handgun in the van appellant was found
driving.
       {¶ 94} Morales testified that appellant used an “AK” rifle in the shootings.
During cross-examination of Officer Robert Martini, defense counsel elicited that
Morales told him before going into surgery that appellant had used a handgun. At
trial, Morales denied saying that to Martini.




                                         24
                               January Term, 2018




                                   2. Analysis
       {¶ 95} The admission of the evidence regarding the 9 mm handgun rested
upon its relevance. Evid.R. 401, 402. Appellant’s use of the handgun was part of
the chain of events leading from the initial confrontation outside appellant’s home
to the murder and attempted murders at Mister’s house. The defense opened the
door for the introduction of the handgun evidence when it presented testimony that
Morales had told a police officer that he saw appellant open fire with a handgun.
The handgun evidence was relevant and admissible.
       {¶ 96} Appellant cites two cases in arguing that the handgun evidence was
inadmissible because it was not used in the murder and attempted murders. In State
v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, the trial court,
over defense objection, admitted 19 firearms found in the defendant’s basement, id.
at ¶ 102-103. We concluded that the trial court erred in admitting that evidence
because the weapon used to kill the victim had been “unmistakably identified and
admitted into evidence” and these other weapons had no relevance in proving the
charges. Id. at ¶ 106.
       {¶ 97} In State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d
1112, the trial court permitted testimony about weapons and ammunition found in
the defendant’s storage unit and motel room. The prosecution also presented to the
jury photographs of the weapons. Id. at ¶ 154-155. We held that the trial court
erred in admitting this evidence because the murder weapon had been identified
and admitted into evidence and these other weapons and ammunition “had no
connection with the murders.” Id. at ¶ 156-157.
       {¶ 98} Unlike Trimble and Neyland, in this case, appellant’s use of the
handgun was part of the chain of events leading to the murder and attempted
murders and was relevant in proving motive and intent. Appellant’s reliance on
Trimble and Neyland lacks merit.
       {¶ 99} We reject proposition of law No. VIII.




                                        25
                             SUPREME COURT OF OHIO




                                   G. Shackling
       {¶ 100} In proposition of law No. XII, appellant argues that the trial court
erred when it ordered appellant to be shackled without holding a hearing.
       {¶ 101} No one should be tried while shackled, absent unusual
circumstances. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837
N.E.2d 315, ¶ 219, citing Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25
L.Ed.2d 353 (1970). The use of restraints tends to erode the presumption of
innocence that the justice system attaches to every defendant. State v. Franklin, 97
Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 79. But it is widely accepted that
a prisoner may be shackled when there is a danger of violence or escape. Neyland,
139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 82. The decision to
require restraints is left to the sound discretion of the trial court, which is in a
position to consider the defendant’s actions both inside and outside the courtroom
as well as his demeanor while the court is in session. Id.
                              1. Rulings on restraints
       {¶ 102} Upon announcement of the trial-phase verdict, appellant reacted by
stating: “I didn’t do this.” Upon exiting the courtroom, appellant kicked a large
hole in the plaster wall adjacent to the courtroom and had to be subdued.
       {¶ 103} The trial court discussed the matter in an out-of-court hearing,
stating: “I’m not so concerned about his conduct, because he’s been exemplary
throughout the trial and conducted himself appropriately, and upon consultation
with his lawyers I think they were able to explain to him that that can’t occur.” But
the court continued:


       [B]ecause of the safety of my courtroom and the people in it, and
       not necessarily the conduct of the defendant, I think that could act
       as a fuse to ignite other types of outbursts and, therefore, create an
       unstable circumstance in my courtroom, I have determined that what




                                         26
                                January Term, 2018




       I’m going to do is I’m going to permit the defendant to appear in
       street civilian clothes, but we are going to have him restrained
       * * *.


The trial court said that appellant’s restraints would be concealed under his
clothing. The court’s judgment entry stated that the Mahoning County Courthouse
Security Detail would determine the “proper restraints.”
       {¶ 104} Defense counsel objected that the fact that appellant had had “a
little bit of an outburst in the courtroom in which he maintained his innocence” did
not justify the use of restraints. Defense counsel noted that appellant was placed in
“belly handcuffed locks” that were worn underneath his suit.
       {¶ 105} During the penalty phase, appellant made an unsworn statement.
Beforehand, the trial court stated that appellant’s “handcuffs [would] be removed
for him to deliver a presentation to the jury.” The court added that after his unsworn
statement, “the jury [would] be excused, and then the Defendant [would] be
rehandcuffed and secured again.”
                                     2. Analysis
       {¶ 106} Appellant argues that the trial court’s order placing him in restraints
was an overreaction that his limited outburst did not justify. But the trial court
observed appellant’s disruptive behavior and expressed concern about the potential
for future outbursts. A “court need not sit by helplessly waiting for a defendant to
commit a violent or disruptive act in the courtroom before being cloaked with the
power to invoke extra security measures.” Franklin, 97 Ohio St.3d 1, 2002-Ohio-
5304, 776 N.E.2d 26, at ¶ 79.
       {¶ 107} The trial court took steps to ensure that the jury would not see
appellant in restraints, by ordering that they be worn under his civilian clothing.
Nothing in the record shows that the jury saw appellant wearing restraints while he
was sitting at counsel’s table or when making his unsworn statement. Under these




                                         27
                             SUPREME COURT OF OHIO




circumstances, appellant fails to show that the trial court abused its discretion in
ordering that he be placed in restraints.
        {¶ 108} Appellant argues that the trial court should have conducted an
evidentiary hearing before ordering that he be placed in restraints. But a hearing
on the necessity for restraints was not required. See Neyland, 139 Ohio St.3d 353,
2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 94; Franklin at ¶ 82. And in any event, the
record shows that the trial court made a factual determination supporting the use of
restraints.
        {¶ 109} Appellant asserts that the trial court erred by leaving the selection
of the proper restraints to the courtroom-security detail. We addressed a similar
claim in Neyland. In that case, we held that the trial court erred by leaving the final
decision on wearing a second restraint to the “discretion of the sheriff’s
department.” Neyland at ¶ 99 and 101. But that did not happen in this case. Here,
the trial court decided that appellant would wear restraints that would be concealed
underneath his clothing. The security detail determined only the “proper restraints”
to carry out that order. The trial court did not relinquish its responsibility to make
the decision on shackling to the discretion of the security detail. See State v. Adams,
103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 104 (the trial court must
exercise its own discretion and not leave the issue of shackling up to security
personnel).
        {¶ 110} Finally, appellant alleges that the handcuffs attached to the belly
device inhibited his communications with counsel. But nothing in the record
supports this allegation, and neither appellant nor defense counsel complained at
trial that they were unable to communicate. He also argues that the jury would have
noticed a difference between appellant’s communications with counsel during the
trial phase versus his communications with them during the penalty phase. This
claim is entirely speculative, and nothing in the record supports it.
        {¶ 111} We reject proposition of law No. XII.




                                            28
                                  January Term, 2018




                              H. Transferred intent
       {¶ 112} In proposition of law No. X, appellant argues that the trial court
improperly instructed the jury on transferred intent with respect to the course-of-
conduct aggravating circumstance. See R.C. 2929.04(A)(5) (“the offense at bar
was part of a course of conduct involving the purposeful killing of or attempt to kill
two or more persons by the offender”).
       {¶ 113} “The doctrine of transferred intent is firmly rooted in Ohio law.”
State v. Sowell, 39 Ohio St.3d 322, 332, 530 N.E.2d 1294 (1988). “ ‘If one
purposely causes the death of another and the death is the result of a scheme
designed to implement the calculated decision to kill someone other than the victim,
the offender is guilty of aggravated murder in violation of R.C. 2903.01(A).’ ”
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 171, quoting
State v. Solomon, 66 Ohio St.2d 214, 421 N.E.2d 139 (1981), paragraph one of the
syllabus.
       {¶ 114} Over defense objection, the trial court instructed the jury on
“transfer of purpose,” stating:


               Transfer of purpose. Purpose to cause the death: If you find
       that the defendant did have a purpose to cause the death of a * * *
       particular person, and the shot accidentally caused the death of
       another, then the defendant would be just as guilty as if the shot had
       taken effect upon the person intended.
               The purpose required is to cause the death of another, not
       any specific person. If the shot missed the person intended but
       caused the death of another, the element of purpose remains and the
       offense is as complete as though the person for whom the shot was
       intended had died.




                                          29
                              SUPREME COURT OF OHIO




         {¶ 115} Appellant argues that this instruction permitted the jury to convict
him of the R.C. 2929.04(A)(5) specification even if the jury believed that he had a
purpose to kill only one person (i.e., Mister). “In examining errors in a jury
instruction, a reviewing court must consider the jury charge as a whole and ‘must
determine whether the jury charge probably misled the jury in a matter materially
affecting the complaining party’s substantial rights.’ ” Kokitka v. Ford Motor Co.,
73 Ohio St.3d 89, 93, 652 N.E.2d 671 (1995), quoting Becker v. Lake Cty. Mem.
Hosp. W., 53 Ohio St.3d 202, 208, 560 N.E.2d 165 (1990).
         {¶ 116} Even disregarding the doctrine of transferred intent, the jury had
overwhelming evidence that appellant had a purpose to kill Ororo.            “It is a
fundamental principle that a person is presumed to intend the natural, reasonable
and probable consequences of his voluntary acts.” State v. Johnson, 56 Ohio St.2d
35, 39, 381 N.E.2d 637 (1978).
         {¶ 117} Here, appellant shot Morales in the back and Ororo in the head with
a high-powered rifle, both at close range. He then fired at Mister in his upstairs
bedroom. While appellant’s initial motive may have been to kill only Mister, the
evidence showed that he purposely killed Ororo and attempted to kill both Morales
and Mister. See Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, at
¶ 143.
         {¶ 118} Nevertheless, appellant argues that the instructions misled the jury
and resulted in prejudicial error. But nothing in the instructions shows that to be
the case. The trial court instructed the jurors that if they found that the state had
failed to prove beyond a reasonable doubt any part of the course-of-conduct
specification, they must find appellant not guilty of the specification. See id.
         {¶ 119} We reject proposition of law No. X.




                                          30
                                January Term, 2018




                       I. Aggravated-murder instructions
       {¶ 120} In proposition of law No. IX, appellant argues that the trial court
improperly instructed the jury on aggravated murder. He also argues that defense
counsel provided ineffective assistance by failing to object to the instructions.
                              1. Relevant background
       {¶ 121} Following closing arguments, the trial court instructed the jury:


               Lesser included offense: If you find that the state failed to
       prove beyond a reasonable doubt all the essential elements of
       aggravated murder as defined in Count 1, then your verdict must be
       not guilty of that offense. And in that event you will continue your
       deliberations to decide whether the state has proved beyond a
       reasonable doubt all the essential elements of the lesser included
       offense of murder.
               If all of you are unable to agree on a verdict of either guilty
       or not guilty of the offense of aggravated murder in Count 1, then
       you will continue your deliberations to decide whether the state has
       proven beyond a reasonable doubt all the essential elements of the
       lesser included offense of murder.


(Emphasis added.) By not objecting to these instructions, appellant has forfeited
all but plain error. State v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983),
syllabus.
                                     2. Analysis
                                  a. No plain error
       {¶ 122} The state must prove each element of an offense beyond a
reasonable doubt. State v. Jones, 91 Ohio St.3d 335, 347, 744 N.E.2d 1163 (2001).
Appellant argues that the above-quoted instructions relieved the state of its burden.




                                         31
                              SUPREME COURT OF OHIO




That is, the trial court instructed the jury that if the state failed to prove all of the
elements of the aggravated-murder charge, then it must find the defendant not
guilty. He asserts that the instructions should have used the word “any” instead of
“all” to articulate correctly the state’s burden of proof as to the elements of the
offense.
        {¶ 123} Jury instructions must “correctly and completely state the law.”
Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 32.
In assessing jury instructions, a reviewing court must decide not only whether the
instruction at issue is correct in the abstract but also whether it is potentially
misleading. State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939,
¶ 52. If an instruction is ambiguous, a reviewing court must determine “ ‘whether
there is a reasonable likelihood that the jury has applied [it] in a way’ that violates
the Constitution.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d
385 (1991), quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108
L.Ed.2d 316 (1990). And when examining instructions, an appellate court should
not judge a single instruction in artificial isolation but instead should view it in the
context of the overall charge. State v. Madrigal, 87 Ohio St.3d 378, 396, 721
N.E.2d 52 (2000).
        {¶ 124} Appellant cites Miller v. State, 298 Kan. 921, 318 P.3d 155 (2014),
in arguing that the aggravated-murder instructions were erroneous. In Miller, the
trial court instructed the jury, “ ‘If you have a reasonable doubt as to the truth of
each of the claims required to be proved by the State, you must find the defendant
not guilty.’ ” (Emphasis added.) Id. at 923. Because the instruction used “each of
the claims” instead of “any of the claims,” the court held that the instruction
“effectively told the jury it could acquit Miller only if it had a reasonable doubt as
to all of the elements the State was required to prove—rather than acquitting him if
it had a reasonable doubt as to any single element.” Id. The court held that the
error was structural and remanded the case for a new trial. Id. at 923, 940.




                                           32
                                January Term, 2018




       {¶ 125} Appellant contends that the instructions in his case were similarly
deficient. Arguably, they could be interpreted to mean that the jury should acquit
appellant “only if it had a reasonable doubt as to all of the elements the State was
required to prove.” Id. at 923. If interpreted this way, the instructions in isolation
left a misleading gap because they did not clearly state that the jury must find
appellant not guilty if the state failed to prove any of the elements beyond a
reasonable doubt. But the jurors were unlikely to have been misled because the
trial court’s earlier instructions correctly articulated the state’s burden of proof as
to each of the elements.
       {¶ 126} In preceding instructions, the trial court had advised the jurors,
“The defendant must be acquitted unless the state produces evidence which
convinces you beyond a reasonable doubt of every essential element of the offenses
charged in the indictment.” The trial court then instructed the jury as to Count 1,
“Before you can find the defendant guilty, you must find beyond a reasonable doubt
that on or about May 21st, 2013, in Mahoning County, Ohio, the defendant
purposely, and with prior calculation and design, caused the death of Ororo
Wilkins.”
       {¶ 127} The court also advised the jury as to the accompanying aggravating
circumstance, stating: “If you find that the state proved beyond a reasonable doubt
all of the essential elements of the Specification 1 to Count 1, your verdict must be
guilty. If you find the state failed to prove beyond a reasonable doubt any of the
essential elements of Specification 1 to Count 1, your verdict must be not guilty.”
(Emphasis added.) The trial court provided a similar instruction as to Specification
2 of Count 1, the accompanying firearm specification, stating: “If you find that the
state failed to prove beyond a reasonable doubt any of the essential elements of
Specification 2 to Count 1, your verdict must be not guilty.” (Emphasis added.)
       {¶ 128} These additional unambiguous instructions distinguish this case
from Miller, in which “the only instruction defining for the jury the State’s burden




                                          33
                                    SUPREME COURT OF OHIO




of proof was the instruction that was wrong.” 298 Kan. at 934, 318 P.3d 155. Here,
the trial court instructed the jurors that they must acquit appellant “unless the state
produces evidence which convinces you beyond a reasonable doubt of every
essential element of the offenses charged.” These clear instructions remove any
uncertainty that the jury found proof beyond a reasonable doubt as to each of the
essential elements of the aggravated-murder charge.                    Moreover, when the
challenged instructions are considered as a whole and viewed in the context of
earlier instructions, they were not prejudicially misleading.
           {¶ 129} Appellant also challenges the trial court’s instructions on the lesser
included offense of murder. These instructions were consistent with the standard
jury instructions for lesser included offenses at the time of appellant’s trial. See
Ohio Jury Instructions, CR Section 425.09 (2014).1 Similar instructions have been
upheld. See, e.g., State v. Ware, 9th Dist. Summit No. 28088, 2017-Ohio-2643,
¶ 3, 6-8; State v. Evans, 8th Dist. Cuyahoga No. 79895, 2005-Ohio-5683, ¶ 28-30
(instructions, considered as a totality, did not require acquittal on a greater crime
before jury could consider a lesser included offense).
           {¶ 130} Based on the foregoing, we find no plain error in the challenged
instructions. See Crim.R. 52(B); State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 22; see also State v. Campbell, 69 Ohio St.3d 38, 48-49,
630 N.E.2d 339 (1994) (allegedly improper instruction on criminal purpose and
allegedly confusing instruction as to causation and foreseeability did not result in
plain error).




1
    Effective May 2, 2015, section 425.09 replaced “all” with “any.”




                                                  34
                                 January Term, 2018




                     b. Structural-error analysis does not apply
       {¶ 131} Appellant argues that we should treat as structural error any failure
by the trial court to properly instruct on the state’s burden of proof as to each of the
elements of the offense.
       {¶ 132} A structural error is one that “affect[s] the framework within which
the trial proceeds, rather than simply an error in the trial process itself.” Arizona v.
Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural
errors “permeate ‘[t]he entire conduct of the trial from beginning to end.’ ” State
v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 17, quoting
Fulminante at 309. Most constitutional errors are not structural. Fulminante at
306-307. An error is structural only when it “necessarily render[s] a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence.”
(Emphasis sic.) Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d
35 (1999).
       {¶ 133} The Supreme Court of the United States has found an error to be
structural, and thus subject to automatic reversal, only in a very limited class of
cases. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437,
71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106
S.Ct. 617, 88 L.Ed.2d 598 (1986) (race discrimination in selection of grand jury);
McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial
of self-representation at trial); Waller, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31
(denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124
L.Ed.2d 182 (1993) (defective reasonable-doubt instruction to jury).
        {¶ 134} Appellant relies on Miller, 298 Kan. at 938, 318 P.3d 155, which
in turn relies on Sullivan, in arguing that the error was structural. But we do not
agree that Sullivan forecloses plain-error analysis in this case.




                                          35
                             SUPREME COURT OF OHIO




        {¶ 135} The error in Sullivan was structural because the trial court in that
case had defined “reasonable doubt” to mean “grave uncertainty,” a definition the
Supreme Court already had held to be unconstitutional. Id. at 277; see Cage v.
Louisiana, 498 U.S. 39, 40, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The court held
that although most constitutional errors are amenable to harmless-error analysis,
the harmless-error doctrine cannot apply when the burden of proof has been
misdefined. Id. at 279-281. The court reasoned that a jury cannot render a guilty-
beyond-a-reasonable-doubt verdict when “reasonable doubt” itself has been
misdefined. Sullivan at 280. There was “no jury verdict within the meaning of the
Sixth Amendment” that harmless-error analysis could salvage. Id.
        {¶ 136} In Neder, 527 U.S. at 4, 119 S.Ct. 1827, 144 L.Ed.2d 35, the
Supreme Court reviewed a case in which the trial court had erred in refusing to
submit the issue of materiality to the jury with respect to charges involving tax
fraud. The court held that the harmless-error rule applied. The Neder court
compared the error before it to the error in Sullivan. It explained that the Sullivan
court “concluded that the error was not subject to harmless-error analysis because
it ‘vitiates all the jury’s findings,’ * * * and produces ‘consequences that are
necessarily unquantifiable and indeterminate.’ * * * By contrast, the jury-
instruction here did not ‘vitiat[e] all the jury’s findings.’ ” (Emphasis sic.) Id. at
11, quoting Sullivan, 508 U.S. at 281-282, 113 S.Ct. 2078, 124 L.Ed.2d 182.
        {¶ 137} In State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884
N.E.2d 45, ¶ 17, we held that structural error did not occur when the trial court had
failed to instruct on the culpable mental state of the offense of trespass and on all
the elements of the offense of assault: “[T]he instructions in this case did not
necessarily render the trial so fundamentally unfair that it could not be a reliable
vehicle for the determination of the defendant’s guilt or innocence,” id. at ¶ 24.
Accordingly, we held that the instructional errors were subject to a plain-error
analysis. Id. at ¶ 25.




                                         36
                                January Term, 2018




       {¶ 138} The nature of the error here is also different from that in Sullivan.
The instructions here did not misrepresent “reasonable doubt,” and the failure to
present more precise instructions did not vitiate all the jury’s findings.        We
conclude that the present case is more analogous to improperly instructing the jury
on an element of an offense as in Wamsley than to failing to give a proper
reasonable-doubt instruction altogether.
       {¶ 139} The instructional error here was mere trial error and amenable to
plain-error review under Crim.R. 52(B). No plain error occurred.
                       c. No ineffective assistance of counsel
       {¶ 140} As a final matter, appellant argues that his trial counsel provided
ineffective assistance by failing to object to the instructions.        To establish
ineffective assistance, appellant must (1) show that counsel’s performance “fell
below an objective standard of reasonableness” as determined by “prevailing
professional norms” and (2) demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
       {¶ 141} As we discussed above, the trial court gave other unambiguous
instructions that correctly articulated the state’s burden of proof as to each of the
elements of aggravated murder. Defense counsel could reasonably have thought
that these instructions were sufficient to protect their client. See Campbell, 69 Ohio
St.3d at 49, 630 N.E.2d 339.
       {¶ 142} We reject proposition of law No. IX.
                    J. Instructing on lesser included offenses
       {¶ 143} In proposition of law No. XI, appellant argues that the trial court
erred in instructing on lesser included offenses of aggravated murder. He also
argues that he cannot be guilty of both (1) the attempted aggravated murders of
Mister and Morales and (2) the felonious assaults of Mister and Morales. See




                                           37
                               SUPREME COURT OF OHIO




Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 28. However,
appellant did not raise these claims at trial and therefore has forfeited all but plain
error.
                                1. Relevant background
         {¶ 144} For Count 1, the trial court instructed the jury as to the offense of
the aggravated murder of Ororo with prior calculation and design. As to Count 1,
the court also instructed on the lesser included offense of murder. For Count 2, the
court instructed the jury on the murder of Ororo by improperly discharging a
firearm into a habitation. The jury found appellant guilty of all three offenses.
         {¶ 145} The trial court merged Count 2 with Count 1 for sentencing
purposes. But the trial court did not mention merger of the findings of guilt as to
the lesser included offense of murder under Count 1. The trial court also merged
Count 5 (the felonious assault of Morales) with Count 3 (the attempted murder of
Morales) and merged Count 6 (the felonious assault of Mister) with Count 4 (the
attempted murder of Mister).
                                       2. Analysis
         {¶ 146} Appellant argues that the trial court erred in instructing on the lesser
included offense of murder because the shooter’s identity was the only issue that
the jury had to decide. Appellant contends that if the jury decided beyond a
reasonable doubt that he was the shooter, then it had no choice but to return a verdict
of guilty as to aggravated murder.
         {¶ 147} Appellant cites State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-
3948, 18 N.E.3d 1207, in arguing that “a charge on a lesser included offense is
* * * improper when the facts do not warrant it,” id. at ¶ 20. But Wine does not
support appellant’s claim.
         {¶ 148} In Wine, as in the present case, the defendant presented an “all or
nothing” defense. Id. at ¶ 1. Wine was charged with rape. The defendant testified
at trial that he was never in the room where the victim said she was raped. The trial




                                           38
                                January Term, 2018




court, over defense objection, instructed the jury on rape and the lesser included
offenses of sexual battery and gross sexual imposition. Id. at ¶ 7. The jury found
Wine not guilty of rape and sexual battery but guilty of gross sexual imposition.
       {¶ 149} We upheld the instructions on the lesser included offenses, and we
rejected Wine’s claim that the defendant has the right to control whether a jury
receives instructions on them. We held:


                 A defendant’s choice to pursue an all-or-nothing defense
       does not require a trial judge to impose upon the state an all-or-
       nothing prosecution of the crime charged if the evidence would
       support a conviction on a lesser included offense: “If under any
       reasonable view of the evidence it is possible for the trier of fact to
       find the defendant not guilty of the greater offense and guilty of the
       lesser offense, the instruction on the lesser included offense must be
       given.”


Id. at ¶ 32, quoting State v. Wilkins, 64 Ohio St.2d 382, 388, 415 N.E.2d 303 (1980).
       {¶ 150} The state argues that the trial court’s instruction on the lesser
included offense of murder was proper because the jury might have found that
appellant did not murder Ororo with prior calculation and design, one of the
essential elements of the offense of aggravated murder in Count 1. We agree.
       {¶ 151} The evidence introduced at trial showed that appellant went to
Mister’s house to kill Mister following their argument outside appellant’s home.
But appellant killed Ororo when he arrived at Mister’s home.            Under these
circumstances, the jury might have reasonably determined that appellant killed
Ororo after momentary consideration rather than with prior calculation and design.
See State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 18.




                                         39
                              SUPREME COURT OF OHIO




The trial court committed no plain error in instructing the jury as to the lesser
included offense of murder.
       {¶ 152} We note that the trial court failed to merge the lesser included
offense of murder as to Count 1 with aggravated murder as to Count 1 before
sentencing.    Although merger should have taken place, resentencing is not
automatically required. See State v. Fears, 86 Ohio St.3d 329, 344, 715 N.E.2d 136
(1999). Appellant was not separately sentenced for this lesser included offense.
See State v. Bonnell, 61 Ohio St.3d 179, 183, 573 N.E.2d 1082 (1991) (sentencing
on two counts of aggravated murder was merely a procedural error that was
corrected by declaring the two offenses merged). Moreover, the outcome of the
mitigation hearing was not affected because the jury did not consider duplicative
aggravating circumstances. Accordingly, we correct this error by holding that the
lesser included offense of murder as to Count 1 merged with aggravated murder as
to Count 1.
       {¶ 153} Appellant separately claims that he could not be found guilty of
both attempted aggravated murder and felonious assault. The trial court merged
the felonious-assault counts with the attempted-murder counts, and appellant was
sentenced once for the offenses involving Morales and once for the offenses
involving Mister.    However, “the determination of the defendant’s guilt for
committing allied offenses remains intact, both before and after the merger of allied
offenses for sentencing.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922
N.E.2d 182, paragraph three of the syllabus. We also reject this claim.
       {¶ 154} We reject proposition of law No. XI.
               K. Sufficiency and manifest weight of the evidence
       {¶ 155} In propositions of law Nos. I and II, appellant challenges the
sufficiency and manifest weight, respectively, of the evidence supporting his
convictions.




                                         40
                                 January Term, 2018




                            1. Sufficiency of the evidence
        {¶ 156} In reviewing a record for sufficiency, “[t]he relevant inquiry is
whether, 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
        {¶ 157} Appellant’s sufficiency claim lacks merit. Eyewitness testimony,
forensic evidence, circumstantial evidence, and appellant’s attempt to elude police
sufficiently established appellant’s guilt. The evidence presented at trial showed
that on May 21, 2013, appellant and Mister had a confrontation over bank cards
belonging to Mister’s mother and that appellant then chased Mister down the street
with a 9 mm handgun. Later, they had a heated discussion on the phone and
appellant told Mister that he was going to kill him. Shortly thereafter, appellant
and two other individuals drove to Mister’s home. Morales testified that appellant
approached the front porch and shot Morales in the back with an “AK” rifle.
Appellant then shot and killed Ororo. Mister looked out an upstairs window and
saw appellant firing toward the porch. Appellant then shot at Mister before
departing the scene. The police arrested appellant the next day while he was
fleeing.
        {¶ 158} Appellant provides a list of reasons why the evidence was
insufficient to establish his guilt. He argues that there was a lack of reliable forensic
or other scientific evidence linking him to the crimes. He asserts that no ballistic
evidence established that the victims were shot with a rifle. But appellant’s
argument overlooks the evidence that the 7.62 x 39 mm shell casing found on the
porch would have been fired from a rifle rather than a handgun. And Orono’s
injuries were consistent with having been shot with a high-velocity bullet.




                                           41
                              SUPREME COURT OF OHIO




         {¶ 159} Appellant also argues that only one shell casing was found at the
scene, demonstrating that only one shot was fired. However, there was a bullet
strike on the upper-story siding near where Mister was standing when appellant
shot at him, and an indentation near the front-door window could have been another
bullet strike. And even though bullet fragments were not recovered from the siding,
nothing suggests that this bullet strike was unrelated to the shootings.           The
witnesses also testified that multiple shots were fired.
         {¶ 160} Expert testimony established that police found GSR on appellant’s
hands after he was arrested. Appellant argues that he may have had GSR on his
hands from handling the 9 mm handgun found in the van and, alternatively, that the
arresting officers could have transferred the GSR to his hands because the officers
had been at the firing range earlier that day.        However, questions about the
significance of the GSR results went to the weight of the evidence and not its
sufficiency. See State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d
596, ¶ 226.
         {¶ 161} Appellant also argues that the evidence is insufficient to convict
him because two people identified the shooter as wearing dreadlocks. Officer
Melvin Johnson testified during cross-examination that more than one person told
him that the shooter had dreadlocks. And Detective Sergeant Perdue testified that
Shantwone Jenkins told him that the shooter had dreadlocks. But this argument
calls for an evaluation of the credibility of the testimony, analysis that is not proper
on review of evidentiary sufficiency. See Drummond, 111 Ohio St.3d 14, 2006-
Ohio-5084, 854 N.E.2d 1038, at ¶ 200.
         {¶ 162} Appellant also questions Morales’s and Mister’s credibility. But
witness credibility is not a proper matter on review of the sufficiency of the
evidence. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80,
¶ 169.




                                          42
                                 January Term, 2018




        {¶ 163} Appellant also argues that he had no motive to shoot Ororo. He
suggests that someone else may have had a reason to shoot Ororo because testimony
showed that she was “beefing with people” and her purse contained a BB gun along
with credit cards and driver’s licenses belonging to other people. But no other
evidence supports this speculative assertion. See State v. Stoudemire, 118 Ohio
App.3d 752, 762, 694 N.E.2d 86 (8th Dist.1997) (assessing motive is particularly
within the province of the jury, and a reviewing court will not substitute its
judgment for that of the trier of fact).
        {¶ 164} In addition, appellant argues that the transferred-intent theory does
not apply in this case. But as we explained in our discussion of proposition of law
No. X, even disregarding the doctrine of transferred intent, overwhelming evidence
supported the jury’s verdict that he murdered Ororo and attempted to murder
Morales and Mister.
        {¶ 165} Finally, appellant argues that inadequacies in the police
investigation undermine the sufficiency of the evidence. In this regard, appellant
alleges that investigators did not obtain phone records to verify Mister’s claim that
he talked to appellant before the shooting, Mister’s mother did not testify that such
a call was made, the two men who drove with appellant to Mister’s residence were
never apprehended and questioned, appellant’s clothes from the day of the murder
were never recovered, there was no evidence that police searched appellant’s
residence, the murder weapon was never found, and no DNA evidence linked
appellant to the murder. Appellant also suggests that there was a rush to judgment
because he was indicted about 40 hours after the murder occurred.
        {¶ 166} Appellant essentially argues that the state’s evidence could have
and should have been better than it was. Even if that is true, however, the state
need only have had sufficient evidence, not the best possible evidence, to survive a
challenge on insufficiency grounds. State v. Dye, 9th Dist. Summit No. 17763,




                                           43
                              SUPREME COURT OF OHIO




1997 WL 119563, *8 (Mar. 12, 1997), rev’d on other grounds, 82 Ohio St.3d 323,
695 N.E.2d 763 (1998).
         {¶ 167} “An appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted
at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt.” (Emphasis
added.) Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, at paragraph two of the syllabus.
Here, eyewitness testimony, forensic evidence, and circumstantial evidence were
sufficient to support appellant’s convictions. This evidence, if believed, would
have convinced the average mind that appellant was guilty beyond a reasonable
doubt.
                          2. Manifest weight of the evidence
         {¶ 168} To evaluate a claim that a jury verdict is against the manifest weight
of the evidence, we review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that we must reverse the conviction and order a new
trial. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
         {¶ 169} In his argument that the manifest weight of the evidence did not
support his convictions, appellant provides the same list of reasons he provides in
arguing that there is no credible evidence upon which the jury could have
determined that he was the shooter. Appellant also argues that the GSR found on
him did not prove that he was the shooter, and he contends that multiple witnesses
said that the shooter wore dreadlocks. The challenges to Mister’s and Morales’s
testimony are not convincing. Neither are appellant’s arguments that the jury
improperly weighed the GSR evidence or the statements regarding the shooter’s
hair. This is not the “ ‘exceptional case in which the evidence weighs heavily




                                          44
                                January Term, 2018




against the conviction.’ ” Thompkins at 387, quoting Martin at 175. Given the
strength of the direct and circumstantial evidence, we conclude that the jury neither
lost its way nor created a miscarriage of justice in convicting appellant of the
aggravated murder of Ororo and the attempted murders of Morales and Mister.
       {¶ 170} We reject propositions of law Nos. I and II.
                          L. Prosecutorial misconduct
       {¶ 171} In proposition of law No. XVI, appellant argues that prosecutorial
misconduct during various phases of the proceedings denied him a fair trial.
However, except when noted below, appellant failed to object and therefore has
forfeited all but plain error. See Murphy, 91 Ohio St.3d at 532, 747 N.E.2d 765.
       {¶ 172} When reviewing a claim of prosecutorial misconduct, “the relevant
question is whether the prosecutor’s conduct ‘so infected the trial with unfairness
as to make the resulting conviction a denial of due process.’ ” State v. Belton, 149
Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 125, quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). To
answer that question, we consider whether the challenged conduct was improper
and whether it prejudicially affected the defendant’s substantial rights. State v.
Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 243. In evaluating
prejudice, we determine the effect of the misconduct “on the jury in the context of
the entire trial.” State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993).
                        1. Repeated misconduct allegations
       {¶ 173} Appellant recasts several of his previous arguments into claims of
prosecutorial misconduct. First, he repeats his arguments from propositions of law
Nos. III and IV that the prosecutor committed misconduct before the grand jury.
We reject those arguments for the reasons we explained above.
       {¶ 174} Second, appellant argues that the prosecutor presented victim-
impact testimony from Traniece Wilkins during the trial phase. As we explained
in discussing proposition of law No. VII, Traniece’s brief testimony about Ororo




                                         45
                             SUPREME COURT OF OHIO




was neither overly emotional nor directed to the penalty. See Hartman, 93 Ohio
St.3d at 293, 754 N.E.2d 1150. No plain error occurred.
       {¶ 175} Appellant also complains that the prosecutor improperly elicited
testimony from Officer Shields that this was the “most gruesome scene” she had
witnessed.    As we explained in discussing proposition of law No. VII, this
testimony was irrelevant but curative instructions corrected any error. In addition,
Shields’s testimony that Mister’s shorts were “saturated in blood and brain matter”
was not improper because this information established the condition of Ororo’s
body at the scene.
       {¶ 176} Finally, appellant argues that the prosecutor committed misconduct
in discussing Officer Shields’s testimony during the prosecutor’s trial-phase
closing argument. But as we explained in discussing proposition of law No. VII,
no plain error occurred, and we reject these claims.
            2. Sentencing determination as an “evidence-based” decision
       {¶ 177} Appellant argues that the prosecutor improperly told the jurors
during voir dire, her penalty-phase opening statement, and her penalty-phase
closing argument that choosing the appropriate sentence was an “evidence-based”
decision.
       {¶ 178} During her penalty-phase opening statement, the prosecutor said,
“[T]his is an evidence-based decision. * * * It is not a decision based on sympathy,
prejudice, bias.” During her closing argument, she stated, “The evidence in this
case is going to tell you what the right sentence is for the Defendant. That’s what
we ask you to do. Set aside emotion, set aside sympathy and make your decision
based on the law * * *.”
       {¶ 179} Appellant argues that the prosecutor’s comments that the jury’s
sentencing determination was an “evidence-based” decision precluded the jury’s
consideration of mercy. But the prosecutor never mentioned mercy during voir
dire, her opening statement, or her closing argument. And, in any event, this court




                                        46
                               January Term, 2018




has long held that “mercy is not a mitigating factor.” E.g., Belton, 149 Ohio St.3d
165, 2016-Ohio-1581, 74 N.E.3d 319, at ¶ 88; accord State v. Lorraine, 66 Ohio
St.3d 414, 418, 613 N.E.2d 212 (1993) (“mercy * * * is irrelevant to the duty of the
jurors”).
        {¶ 180} Appellant cites Kansas v. Carr, __U.S__, 136 S.Ct. 633, 193
L.Ed.2d 535 (2016), in arguing that the prosecutor misstated the law in describing
the jury’s sentencing determination as an “evidence-based” decision. In Carr, the
Supreme Court of the United States held that the Eighth Amendment “does not
require capital sentencing courts ‘to affirmatively inform the jury that mitigating
circumstances need not be proved beyond a reasonable doubt.’ ” Id. at __, 136
S.Ct. at 642, quoting State v. Gleason, 299 Kan. 1127, 1197, 329 P.3d 1102 (2014),
rev’d sub nom. Carr.
        {¶ 181} Appellant relies on dictum in Carr stating:


        And of course the ultimate question whether mitigating
        circumstances outweigh aggravating circumstances is mostly a
        question of mercy—the quality of which, as we know, is not
        strained. It would mean nothing, we think, to tell the jury that the
        defendants must deserve mercy beyond a reasonable doubt; or must
        more-likely-than-not deserve it. * * * If we were to hold that the
        Constitution requires the mitigating-factor determination to be
        divided into its factual component and its judgmental component,
        and the former to be accorded a burden-of-proof instruction, we
        doubt whether that would produce anything but jury confusion. In
        the last analysis, jurors will accord mercy if they deem it
        appropriate, and withhold mercy if they do not, which is what our
        case law is designed to achieve.




                                           47
                              SUPREME COURT OF OHIO




(Emphasis added.) Id. But this dictum does not support appellant’s argument that
the prosecutor misled the jury in describing its sentencing determination as an
“evidence-based” decision because the dictum states that instructions on the
burden of proof for mercy are neither useful nor required.
        {¶ 182} Nothing in Carr supports appellant’s argument that the prosecutor
misstated the law. The prosecutor committed no plain error in telling the jurors that
whether the aggravating circumstances outweighed the mitigating factors beyond a
reasonable doubt was an “evidence-based” decision.
                3. Commenting on defense’s failure to call witnesses
        {¶ 183} Appellant argues that the prosecutor’s comment during her trial-
phase closing argument that the defense failed to call Shantwone Jenkins as a
witness and failed to call any other witnesses implicated appellant’s right to remain
silent and shifted the burden of proof.
        {¶ 184} The prosecutor may comment on the failure of the defense to offer
evidence in support of its case. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046,
837 N.E.2d 315, at ¶ 293. “Such comments do not imply that the burden of proof
has shifted to the defense, nor do they necessarily constitute a penalty on the
defendant’s exercise of his Fifth Amendment right to remain silent.” State v.
Collins, 89 Ohio St.3d 524, 527-528, 733 N.E.2d 1118 (2000).
        {¶ 185} During her trial-phase closing argument, the prosecutor said, “You
heard a lot of cross examination of the number of the witnesses as well as Mister
and [Morales] and the police officers about Shantwone Jenkins. The only thing I’ll
tell you is the defense has the right to call witnesses, just like the state does.” This
comment about the defense’s right to call witnesses was permissible and did not
result in plain error.
        {¶ 186} The prosecutor made a similar comment during her rebuttal
argument. During his closing argument, defense counsel had remarked that two
people saw the shooter wearing dreadlocks. Appellant contends that it was in




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response to this remark that the prosecutor argued during rebuttal, over defense
objection, that the jury had been told that appellant was the shooter by both Mister
and Morales—“independent witnesses * * * from completely different vantage
points, one from upstairs, one from on the porch. And I will tell you, again, the
defendant has the right to call any witnesses he wants.” Regardless of what, if any,
defense argument they were referring to, these were permissible rebuttal comments.
                       4. Statements about mitigating factors
        {¶ 187} Appellant challenges as improper the prosecutor’s comments
during her penalty-phase opening statement and closing argument that mitigating
factors diminish or lessen the appropriateness of the death penalty.
        {¶ 188} The prosecutor’s comments did not result in plain error. See State
v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 138. And in
any event, the trial court fully instructed the jury on the appropriate weighing of the
mitigating factors.
        {¶ 189} We reject proposition of law No. XVI.
                       M. Ineffective assistance of counsel
        {¶ 190} In proposition of law No. XVII, appellant raises various claims that
his trial counsel provided ineffective assistance. As we noted in our discussion of
proposition of law No. IX, both deficient performance and prejudice are required
to justify reversal based on ineffective assistance of counsel. See Strickland, 466
U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
                        1. Failure to challenge biased juror
        {¶ 191} Appellant argues that his counsel were ineffective by failing to
challenge for cause prospective juror No. 508, who was ultimately seated on the
jury.
        {¶ 192} In Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119
L.Ed.2d 492 (1992), the Supreme Court of the United States held that a prospective
juror who would automatically vote for a death sentence without regard to




                                          49
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mitigating factors is biased and may not sit in a capital case. Furthermore, a
prospective juror whose views on capital punishment would prevent or
substantially impair his or her ability to consider mitigating factors as the law
requires should be excused. Id. at 728; Murphy, 91 Ohio St.3d at 526, 747 N.E.2d
765.
       {¶ 193} During voir dire, prospective juror No. 508 was asked whether she
would be able to sign a death verdict. She responded, “Well, my thing too is, okay,
you get the death penalty and then you sit in prison for 20 years. You know, I don’t
understand that.” During further questioning, the prosecutor asked her whether she
could consider mitigating evidence, such as “childhood, upbringing, anything that
[the defense] would like for you to consider in making this decision.” Prospective
juror No. 508 responded, “I guess if they brought it to me, I’d have to think about
it, but you can’t use that as an excuse.”
       {¶ 194} The prosecutor later told prospective juror No. 508, “So you can
put as a juror whatever weight you want to put on any mitigation information they
give you. You may think it’s all a bunch of crap, and that’s okay too. That is up to
you, as long as you listen to it and deliberate and talk about it.” Prospective juror
No. 508 indicated that she could consider any mitigating factors presented and
weigh them. But she added, “I wouldn’t put a lot of emphasis [on] the upbringing
and stuff” and “I know you can listen to it, but, yeah, that might not affect me.”
Upon further questioning, prospective juror No. 508 agreed to listen to any
mitigating evidence that the defense presented and engage in the weighing process.
       {¶ 195} Appellant attacks defense counsel’s failure to challenge
prospective juror No. 508 following her statement that she “wouldn’t put a lot of
emphasis” on mitigating evidence about a defendant’s background and upbringing.
Appellant argues that prospective juror No. 508’s comments show her inability to
consider mitigating factors as the law requires. However, the rest of prospective
juror No. 508’s answers do not show that she was biased or unwilling to fully




                                            50
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consider mitigating evidence. Prospective juror No. 508 assured the court that she
would follow the law, would not automatically vote for a death sentence, and would
consider any mitigating evidence that the defense presented.
       {¶ 196} Appellant also argues that prospective juror No. 508 would give no
weight to mitigating evidence after the prosecutor told the prospective juror that
she might “think it’s all a bunch of crap.” These remarks were inappropriate. But
nothing in the record of voir dire shows that prospective juror No. 508 was
incapable of properly considering mitigating evidence that was later presented.
Accordingly, appellant fails to show that the trial court would have granted a
defense challenge for cause against this prospective juror, and this ineffectiveness
claim lacks merit. See Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d
828, at ¶ 76.
       {¶ 197} In addition, appellant contends that defense counsel were
ineffective in questioning prospective juror No. 508. But defense counsel is entitled
to broad discretion in formulating voir dire questions. See State v. Group, 98 Ohio
St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 139. And appellant does not
indicate what additional questions counsel should have asked.
       {¶ 198} Finally, appellant argues that defense counsel should have removed
prospective juror No. 508 with a peremptory challenge. Decisions on the exercise
of peremptory challenges are a part of trial strategy. Dean, 146 Ohio St.3d 106,
2015-Ohio-4347, 54 N.E.3d 80, at ¶ 264. Prospective juror No. 508’s answers did
not indicate that she would be an automatic-death-penalty juror. Prospective juror
No. 508 also expressed uncertainty about signing a death verdict and equivocated
when asked whether she favored the death penalty. Under these circumstances,
defense counsel may have decided that prospective juror No. 508 would be
favorable to the defense. See Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873
N.E.2d 828, at ¶ 66. We reject this claim.




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              2. Failure to request an expert on eyewitness identification
          {¶ 199} Appellant argues that defense counsel were ineffective by failing
to present expert testimony as to the unreliability of eyewitness identification.
Appellant argues that an expert on eyewitness testimony was crucial because
Mister’s and Morales’s identifications of appellant were the basis for his
convictions.
          {¶ 200} As an initial matter, “the failure to call an expert and instead rely
on cross-examination does not constitute ineffective assistance of counsel.” State
v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993). Defense counsel’s
decision to rely on cross-examination rather than call an expert is a matter of trial
strategy. See State v. Coleman, 45 Ohio St.3d 298, 307-308, 544 N.E.2d 622
(1989).
          {¶ 201} Appellant cites People v. Lerma, 2016 IL 118496, 400 Ill.Dec. 20,
47 N.E.3d 985, in arguing that his counsel were ineffective. In Lerma, the trial
court denied a defense request for an expert witness to testify on the reliability of
eyewitness identifications. Id. at ¶ 24. The only evidence of the defendant’s guilt
was the eyewitness identifications of the defendant made by the victim, who later
died, and another person who had never met the defendant and knew him only by
a nickname. Id. at ¶ 5-6. The Supreme Court of Illinois held that the trial court
erred by denying the defense request for an expert on eyewitness identification. Id.
at ¶ 32.      The court noted that several factors potentially contribute to the
unreliability of eyewitness identification, including “the stress of the event itself,
the use and presence of a weapon, the wearing of a partial disguise, exposure to
postevent information, nighttime viewing, and cross-racial identification.” Id. at
¶ 26.
          {¶ 202} We do not deny that eyewitness identification can be unreliable.
But unlike the surviving eyewitness in Lerma, Mister and Morales both were
acquainted with appellant before the shooting, and the events occurred during




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daylight rather than at night. See id. at ¶ 26 and fn. 4. In view of the evidence,
appellant’s counsel were not ineffective by failing to obtain an expert on eyewitness
identification. See Keeling, 1st Dist. Hamilton No. C-010610, 2002-Ohio-3299, at
¶ 8 (decision to forego an eyewitness expert is a recognized trial strategy). We
reject this ineffectiveness claim.
                     3. Failures in presenting mitigating evidence
          {¶ 203} Appellant argues that defense counsel failed to discover all
reasonably available mitigating evidence and failed to present mitigating testimony
effectively.
          {¶ 204} The presentation of mitigating evidence is a matter of trial strategy.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 274. Counsel in
a capital case has an “ ‘obligation to conduct a thorough investigation of the
defendant’s background’ to determine the availability of mitigating evidence.”
State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d 1217, ¶ 69,
quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000).
          {¶ 205} Counsel’s “investigations into mitigating evidence ‘should
comprise efforts to discover all reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may be introduced by the
prosecutor.’ ” (Emphasis added in Wiggins.) Wiggins v. Smith, 539 U.S. 510, 524,
123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), quoting American Bar Association, ABA
Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases, section 11.4.1(C), at 93 (1989).


                 This constitutionally required background investigation is
          necessary to enable counsel to make strategic choices about
          presenting a mitigation defense. * * * Indeed, the deference owed to
          counsel’s strategic judgments about mitigation is directly




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       proportional to the adequacy of the investigations supporting such
       judgments. * * * Accordingly, when evaluating the reasonableness
       of counsel’s mitigation strategy in a capital case, “a reviewing court
       must consider the reasonableness of the investigation said to support
       that strategy.”


Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir.2008), quoting Wiggins at 527.
       {¶ 206} Defense counsel employed Sandra B. McPherson, Ph.D., a forensic
psychologist, and Donald McPherson as the defense mitigation team. Billing
records show that beginning in September 2013, seven months before the
mitigation hearing, the mitigation team interviewed appellant on several occasions,
performed numerous tests, reviewed records, and interviewed his family members.
       {¶ 207} At the mitigation hearing, defense counsel called three mitigation
witnesses: Tikisha D’Altorio, the mother of appellant’s child; Tracy Lynell Wilks,
appellant’s half-brother; and Patricia Wilks, appellant’s mother. These witnesses
discussed appellant’s background, his employment, and the love and support that
he provides for his child. Appellant also made an unsworn statement in which he
maintained his innocence but expressed his condolences to the Wilkins family. He
also requested leniency.
       {¶ 208} Appellant argues that his counsel were deficient by failing to
develop the testimony of these witnesses. He asserts that counsel should have
presented additional testimony concerning appellant’s interaction with his son and
his relationship with Tracy. Appellant also contends that his mother should have
discussed his early life in Alabama and the reasons the family moved to
Youngstown and that she should have provided more information about appellant’s
father and her relationship with him. But “[t]he decision to forgo the presentation
of additional mitigating evidence does not itself constitute proof of ineffective




                                        54
                                 January Term, 2018




assistance of counsel.” State v. Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47
(1997).
          {¶ 209} It is unclear why defense counsel did not present additional
testimony about appellant’s background. But nothing in the record suggests that
the absence of additional testimony was the result of inadequate investigation.
Moreover, it is highly speculative whether additional testimony from these
witnesses would have added anything to appellant’s mitigation case or made any
difference in the outcome of the penalty phase. See State v. Elmore, 111 Ohio St.3d
515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 124. Appellant has failed to establish that
defense counsel were ineffective in preparing for the penalty phase or in presenting
mitigating evidence. See Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d
80, at ¶ 288.
  4. Arguing for life imprisonment rather than life without possibility of parole
          {¶ 210} Appellant argues that defense counsel were ineffective by arguing
against life imprisonment without the possibility of parole as a possible sentence.
          {¶ 211} During his penalty-phase argument, defense counsel made the
following plea for a life sentence: “I implore you, life. This is not—it’s the hardest
thing to come to somebody and say, ‘We know this thing happened. Give weight
to this,’ but give weight to it. As much weight as you can. We’re not expecting
something like, you know, life without the possibility of parole.”
          {¶ 212} Appellant cites the ABA guidelines, which state, “Counsel at every
stage of the case should take advantage of all appropriate opportunities to argue
why death is not suitable punishment for their particular client.” American Bar
Association, Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases, Guideline 10.11(L) (Rev.Ed.2003). Appellant argues that
these guidelines meant that his counsel should not have argued against a sentence
of life imprisonment without the possibility of parole. But the ABA guidelines are




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not “inexorable demands” with which all capital defense counsel must fully
comply. Bobby v. Van Hook, 558 U.S. 4, 8, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009).
        {¶ 213} Moreover, defense counsel adopted a reasonable trial strategy in
arguing for a life sentence instead of life without the possibility of parole. A
reasonable attorney could have hoped that the jurors would view a life sentence as
a reasonable alternative to sentencing appellant to death. Appellant also fails to
show prejudice, as it cannot be said that there was a reasonable likelihood of a
different outcome had trial counsel argued for life imprisonment without the
possibility of parole.
                 5. Waiver of appellant’s presence at conferences
        {¶ 214} Appellant argues that defense counsel waived appellant’s presence
during various proceedings without obtaining his consent.
        {¶ 215} An accused has a fundamental right to be present at all critical
stages of his criminal trial. Article I, Section 10, Ohio Constitution; Crim.R. 43(A).
An accused’s absence, however, does not necessarily result in prejudicial or
constitutional error. “[T]he presence of a defendant is a condition of due process
to the extent that a fair and just hearing would be thwarted by his absence, and to
that extent only.” (Emphasis added.) Snyder v. Massachusetts, 291 U.S. 97, 107-
108, 54 S.Ct. 330, 78 L.Ed. 674 (1934).
        {¶ 216} Appellant asserts that defense counsel improperly waived his
presence during the following conferences held outside the jury’s presence: (1)
review of jury-excusal letters from two prospective jurors; (2) discussion with a
juror of whether he knew a potential witness; (3) consideration of an evidentiary
objection; (4) renewal of defense objections to trial-phase jury instructions; (5)
consideration of a defense objection to penalty-phase jury instructions; and (6)
discussion with an upset juror who was ultimately excused from the penalty-phase
jury. But defense counsel were present during all of these proceedings.




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                                 January Term, 2018




       {¶ 217} The conferences involving juror excusals, an evidentiary objection,
and discussions about jury instructions involved legal matters within the
professional competence of counsel. Appellant contends that counsel may not
waive a client’s right to be present, but he is incorrect. See, e.g., State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 103; State v. Frazier, 115 Ohio
St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 144. And in any event, appellant’s
absence from these conferences was not prejudicial, as the jury received no
testimony or evidence in his absence. See Hale at ¶ 103.
        {¶ 218} Defense counsel could also waive appellant’s presence during an
in-chambers conference about whether juror No. 11 knew a potential witness. The
prosecutor said that the potential witness would not be called, and the conference
ended. Appellant does not show that he was prejudiced by his absence during this
brief conference. See United States v. Brown, 571 F.2d 980, 987 (6th Cir.1978) (to
show reversible error based on his or her absence at an in-chambers conference, an
accused must establish prejudice).
        {¶ 219} Finally, appellant complains about his absence during an in-
chambers conference with juror No. 3 about her emotional state, which led to her
excusal. We addressed a similar situation in State v. Williams, 6 Ohio St.3d 281,
285-287, 452 N.E.2d 1323 (1983).
        {¶ 220} In Williams, the trial court conducted an in camera voir dire of
jurors about an unauthorized communication with the jury. Id. at 285. Defense
counsel was present during the voir dire, but the accused was not. Id. at 286. We
held that the trial court’s action constituted harmless error. Id. at 286-287. We
reasoned that the defendant’s counsel more than adequately represented his
interests and the defendant’s presence at voir dire would have contributed little to
his defense. Id. Like the defendant in Williams, appellant was absent from only an
isolated proceeding after the jury had already been selected. And even assuming




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that counsel improperly waived his presence, appellant suffered no prejudice. We
reject this claim.
                      6. Other allegations of ineffective assistance
        {¶ 221} Appellant raises other instances of alleged ineffectiveness of
counsel, but none have merit. As we explained in discussing other propositions of
law, appellant was not prejudiced by counsel’s failure to object to conducting voir
dire in the jury room (No. V), failing to object to the prosecutor’s voir dire
questioning (No. XVI) or acquiescing in the removal of prospective juror No. 481
(No. VI). Appellant was also not prejudiced by counsel’s failure to object to the
introduction of evidence of the 9 mm handgun (No. VIII), alleged prosecutorial
misconduct (Nos. VII and XVI), jury instructions (No. IX), the prosecutor’s
penalty-phase closing argument (No. XVI) or the trial court’s closing the courtroom
doors during the penalty-phase instructions (No. V).
                                  7. Cumulative error
        {¶ 222} Finally, appellant argues that defense counsel’s cumulative errors
and omissions violated his constitutional rights.         However, because none of
appellant’s claims of ineffective assistance have merit, he cannot establish a right
to relief by simply joining those claims together. See State v. Mammone, 139 Ohio
St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 173.
        {¶ 223} We reject proposition of law No. XVII.
                     N. Instructions on mercy and residual doubt
        {¶ 224} In proposition of law No. XIV, appellant argues that the trial court
erred by denying his request that the jury be instructed on mercy. This court has
consistently rejected similar claims. See Sowell, 148 Ohio St.3d 554, 2016-Ohio-
8025, 71 N.E.3d 1034, at ¶ 131; Lorraine, 66 Ohio St.3d at 417-418, 613 N.E.2d
212. And contrary to appellant’s claims, in neither Kansas v. Marsh, 548 U.S. 163,
126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), nor Carr, __U.S.__, 136 S.Ct. 633, 193




                                           58
                                 January Term, 2018




L.Ed.2d 535, did the Supreme Court of the United States hold that a defendant is
entitled to an instruction on mercy. We reject proposition of law No. XIV.
        {¶ 225} In proposition of law No. XV, appellant argues that the trial court
violated his constitutional rights by denying his request for a jury instruction on
residual doubt. Appellant was not entitled to an instruction on residual doubt.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 192; State v.
McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997), syllabus. We reject
proposition of law No. XV.
                                O. Cumulative error
        {¶ 226} In proposition of law No. XVIII, appellant argues that cumulative
errors during both phases of the proceedings deprived him of a fair trial and a
reliable sentencing hearing.     We reject this claim because appellant was not
prejudiced by any error at his trial.
                    P. Constitutionality of capital punishment
        {¶ 227} In proposition of law No. XIX, appellant challenges the
constitutionality of Ohio’s death-penalty statutes and claims that they violate
international law and treaties to which the United States is a party. We have
rejected these arguments previously. See, e.g., State v. Thompson, 141 Ohio St.3d
254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 279-280.
        {¶ 228} In addition, in his reply brief, appellant argues that Ohio’s capital-
sentencing procedures violate the Sixth Amendment under Hurst v. Florida, 577
U.S.__, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). We will generally not consider a
new issue presented for the first time in a reply brief. State v. Quarterman, 140
Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 18; see also State v. Roberts,
150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, ¶ 84-85 (declining to address
Hurst claim when raised for the first time during oral argument). But in any event,
we recently rejected appellant’s claim in State v. Mason, __Ohio St.3d__, 2018-




                                         59
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Ohio-1462, __ N.E.3d __ (holding that Ohio’s capital-sentencing scheme is unlike
the one at issue in Hurst).
       {¶ 229} We reject proposition of law No. XIX.
        Q. Appropriateness and proportionality of the death sentence
       {¶ 230} In proposition of law No. XIII, appellant argues that the death
sentence is not an appropriate sentence for him because of his history, his
background, the nature of the offenses, and his proclamations of innocence from
the time of his arrest. He also argues that his sentence is not proportional to the
sentences in other aggravated-murder cases tried in Mahoning County. We will
consider the appropriateness and proportionality of appellant’s death sentence in
our independent evaluation of the sentence.
               IV. INDEPENDENT SENTENCE EVALUATION
       {¶ 231} Having considered appellant’s propositions of law, we must now
independently review appellant’s death sentence for appropriateness and
proportionality as R.C. 2929.05(A) requires.
                              1. Aggravating circumstance
       {¶ 232} Appellant was convicted of murdering Ororo Wilkins as part of a
course of conduct involving the purposeful killing of or attempt to kill two or more
persons (i.e., Ororo, Morales, and Mister) in violation of R.C. 2929.04(A)(5).
       {¶ 233} The evidence presented at trial supports the jury’s finding of guilt
as to the course-of-conduct aggravating circumstance. The evidence showed that
on May 21, 2013, appellant and Mister had a confrontation over bank cards that
belonged to Mister’s mother. Later, appellant and Mister had a heated discussion
on the phone and appellant told Mister that he was going to kill him. Shortly
thereafter, appellant drove to Mister’s home. He shot Morales in the back and shot
Ororo in the head, killing her. Appellant also shot at Mister when he appeared in
an upstairs window.




                                          60
                                January Term, 2018




                        2. Mitigating evidence presented
       {¶ 234} Against the course-of-conduct aggravating circumstance, we must
weigh the mitigating factors contained in R.C. 2929.04(B). Appellant called three
witnesses and made an unsworn statement during the penalty phase.
       {¶ 235} Tikisha D’Altorio, the mother of appellant’s son, testified that
appellant had been attentive to his three-year old son since the child was born.
Appellant was present at his son’s birth, had seen him daily, and had supported him
financially. Appellant held two jobs before his arrest.
       {¶ 236} Tracy Lynell Wilks, appellant’s half-brother, testified that
appellant had been attentive and had provided financial support for appellant’s son.
Appellant had worked full time and had been employed at The Vindicator
newspaper and O’Charley’s restaurant. Appellant also loves his mother and had
been attentive to her needs.
       {¶ 237} Patricia Wilks, appellant’s mother, testified that she moved from
Alabama to Ohio when appellant was nine months old. That was the last time that
appellant saw or had any interaction with his father. Patricia at one time had an
alcohol problem but had stopped drinking on her own.
       {¶ 238} Appellant was living with his mother and her brother, Fred Perkins,
at the time of the offenses. Appellant had been very attentive to the needs of his
mother and Perkins, who suffers from schizophrenia. Patricia loves her son and
wants him to live. During cross-examination, Patricia testified that she always took
care of her sons and made sure that they had a place to live and were safe. She also
said that appellant has a religious background.
       {¶ 239} In an unsworn statement, appellant expressed his “heartfelt
condolences to the Wilkins family for the loss of a beautiful person.” He said that
“Ororo will be dearly missed and forever deeply loved by every person who had
the pleasure of coming in contact with her, including myself.”             Appellant
apologized for his “disruptive and disrespectful reaction to the verdicts as they were




                                         61
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read.” He especially apologized to the judge for his behavior, stating, “Sir, you
have treated me with respect, dignity and consistent fairness since I first laid eyes
on you. * * * I apologize to you, sir, and I meant no disrespect to you, sir.”
Appellant then told the jury that despite its verdict, “I know and God Almighty
knows that I am, in fact, not guilty of any of these charges. Respectfully having
expressed that, all that counts at this point is what you all believe * * *.”
           {¶ 240} Appellant asked for leniency for himself and on behalf of his son,
stating:


           I ask for leniency with respect for my three-year-old son who will
           be victimized forever, and will likely fall victim as I did to the
           circumstances which this environment has to offer. With his father
           around, although incarcerated, as he comes of age, his actions and
           decisions will be afforded the benefit of being guided and aided by
           his loving father who has skimmed through the rubble of life that
           he’s now beginning to navigate through. My position will serve as
           an absolute example of where bad decisions and thoughtless living
           will land him.


Appellant also asked for “leniency with respect to allowing what’s hidden in the
darkness to come to the light, because the true perpetrator of these crimes is not
among you.” In closing, appellant stated, “I commit my soul to the mercy of God
through each of you 12 jurors in the hopes that you will thoughtfully and
reflectively consider extending leniency upon my downtrodden soul with an open
mind, even in the midst of what you believe I’ve done.”
                    3. Independent weighing and proportionality
           {¶ 241} Nothing in the nature and circumstances of the offense is
mitigating. Appellant, then 41 years old, had an argument with Mister about




                                           62
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Mister’s mother’s bank cards. He later threatened to kill Mister. Appellant then
went to Mister’s house and killed Ororo, seriously wounded Morales, and shot at
Mister.
          {¶ 242} Appellant’s history, character, and background provide little that is
mitigating. His mother moved from Alabama to Ohio when appellant was a young
child, and he grew up without knowing his father. His mother had a problem with
alcohol, but she overcame this difficulty. No evidence was presented at trial
showing a connection between appellant’s upbringing and the murder and
attempted murders.
          {¶ 243} The statutory mitigating factors under R.C. 2929.04(B) include
R.C. 2929.04(B)(1) (victim inducement), (B)(2) (duress, coercion or strong
provocation), (B)(3) (mental disease or defect), (B)(4) (youth of the offender),
(B)(5) (lack of a significant criminal record), (B)(6) (accomplice only), and (B)(7)
(any other relevant factors).
          {¶ 244} The first six statutory mitigating factors do not apply here.
However, we give some weight to other mitigating evidence under the catchall
provision of R.C. 2929.04(B)(7). That evidence includes appellant’s upbringing in
a broken home, the love that he shares with members of his family, his attentiveness
to his mother’s and uncle’s needs, his financial support for his son, and evidence of
his past employment. His expression of sympathy toward Ororo’s family is also
entitled to weight. See Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80,
at ¶ 319; Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 327.
          {¶ 245} Appellant argues that his proclamations of innocence since the time
of his arrest should also be given weight in mitigation. But his crimes were
established by eyewitness testimony, forensic evidence, and circumstantial
evidence. Moreover, residual doubt is not a mitigating factor. See McGuire, 80
Ohio St.3d 390, 686 N.E.2d 1112, at syllabus.




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       {¶ 246} Appellant also argues that death is not an appropriate sentence
because the two individuals who were allegedly in the car with him at the time of
the offenses were not brought to justice. This disparity in treatment can be
explained because the police were unable to locate and arrest these two men. In
any event, we have held that “[d]isparity of sentence does not justify reversal when
the sentence is neither illegal nor an abuse of discretion.” State v. Jamison, 49 Ohio
St.3d 182, 191, 552 N.E.2d 180 (1990); see also State v. Eley, 77 Ohio St.3d 174,
185-186, 672 N.E.2d 640 (1996) (although an accomplice was acquitted, the
disparity in treatment did not justify reversal of the defendant’s death sentence).
       {¶ 247} Appellant also argues that the death sentence is not appropriate
because only a single person died, Morales recovered from his wounds, and Mister
was never hit by a bullet. He argues that this aggravating circumstance should not
be given the same weight as in a case in which three people were killed. We reject
appellant’s claim, as we have previously upheld as appropriate a death sentence
based solely on the course-of-conduct aggravating circumstance for one murder and
one attempted murder. See, e.g., Sowell, 39 Ohio St.3d at 337, 530 N.E.2d 1294.
       {¶ 248} Upon independent weighing, we conclude that the aggravating
circumstance outweighs the mitigating factors beyond a reasonable doubt.
Appellant’s murder of Ororo and attempted murders of Morales and Mister
constitute a serious aggravating circumstance. His mitigating evidence is weak in
comparison.
       {¶ 249} Finally, we must determine whether the sentence is “excessive or
disproportionate to the penalty imposed in similar cases.”         R.C. 2929.05(A).
Appellant argues that his sentence is not appropriate when compared to other
aggravated-murder cases tried in Mahoning County in which the death penalty was
not imposed. However, we have held that “[t]he proportionality review required
by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the




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reviewing court in which the death penalty has been imposed.” State v. Steffen, 31
Ohio St.3d 111, 509 N.E.2d 383 (1987), paragraph one of the syllabus.
       {¶ 250} We conclude that the death penalty is both appropriate and
proportionate when compared to other course-of-conduct murders for which the
death penalty has been imposed. See State v. Foust, 105 Ohio St.3d 137, 2004-
Ohio-7006, 823 N.E.2d 836 (one murder and one attempted murder); State v.
Filiaggi, 86 Ohio St.3d 230, 714 N.E.2d 867 (1999) (one murder and one attempted
murder); State v. Beuke, 38 Ohio St.3d 29, 526 N.E.2d 274 (1988) (one murder and
two attempted murders).
                               V. CONCLUSION
       {¶ 251} For all these reasons, we affirm the convictions and judgment of
sentence, except that we set aside appellant’s conviction for the lesser included
offense of murder as to Count 1, which we hold merged with his conviction for
aggravated murder charged in Count 1.
                                                              Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, SADLER, FISCHER, and
DEWINE, JJ., concur.
       LISA L. SADLER, J., of the Tenth District Court of Appeals, sitting for
O’NEILL, J.
                              _________________
       Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellee.
       McGarry Law Office and Kathleen McGarry; and John P. Parker, for
appellant.
                              _________________




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