[Cite as State v. Rafter, 2019-Ohio-529.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 106787




                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            MARK RAFTER

                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-16-604059-A

        BEFORE: Yarbrough, J.,* S. Gallagher, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: February 14, 2019
ATTORNEY FOR APPELLANT

Kevin M. Cafferkey
55 Public Square, Suite 2100
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Blaise D. Thomas
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
STEPHEN A. YARBROUGH, J.:*

          {¶1} While driving the wrong-way on an interstate highway, defendant-appellant Mark

Rafter struck another vehicle at high speed, instantly killing its sole occupant, Kayla

Coates. Rafter had ongoing mental health issues and suicidal thoughts, and shortly before the

crash, Rafter telephoned his son to tell him he loved him and “that he’s going to drive into a

wall.” Rafter entered the highway using an exit ramp.         He aimed his truck head-on at the

vehicle driven by Ms. Coates. Rafter’s vehicle and Ms. Coates’ vehicle both sustained great

damage. Rafter’s vehicle flipped as a result of the collision, but he survived the crash. Ms. Coates

did not survive. The state charged Rafter with aggravated murder, murder, two counts of

felonious assault, and aggravated vehicular homicide. A jury found him guilty of all

counts. This appeal followed.

                      I. Evidence of Aggravated Murder and Felonious Assault

          {¶2} Rafter does not dispute that he caused the victim’s death, but argues that the state

failed to prove that he acted purposely and with prior calculation and design when doing so. He

maintains that the evidence showed only that he desired to kill himself, not anyone else.

          {¶3} We review questions regarding the sufficiency of the evidence de novo, but are

highly deferential to the verdict. We assess a challenge to the sufficiency of the evidence in the

light most favorable to the state and will reverse a conviction “only if no rational trier of fact

could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2, 132 S.Ct. 2, 181 L.Ed.2d 311

(2011) (per curiam), citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979).
         {¶4} The aggravated murder count alleged that Rafter purposely, and with prior

calculation and design, caused the victim’s death.                   See R.C. 2903.01(A).           A person acts

“purposely” when it is that person’s “specific intent to cause a certain result.” R.C. 2901.22(A).

 A person acts with “prior calculation and design” in the context of aggravated murder when the

person uses “advance reasoning to formulate the purpose to kill.” State v. Walker, 150 Ohio

St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 18.

         {¶5} A rational trier of fact could have found that Rafter intentionally collided with the

victim’s car in a manner that demonstrated “the calculated decision to kill.” State v. Cotton, 56

Ohio St.2d 8, 11, 381 N.E.2d 190 (1978).

         {¶6} In addition to testimony that Rafter intended to kill himself, the state offered

testimony by an eyewitness to the collision. The eyewitness was traveling on the four-lane

interstate highway in the third lane, five to seven car lengths behind the victim, who was in the

second lane.1 The eyewitness saw Rafter entered the interstate from an exit ramp and swerve

into the second lane. The eyewitness said that Rafter “was maintaining that lane until [the

victim] swerved at the last second.”




         1
            “When roadways have more than 3 lanes in any one direction, the lanes shall be identified and labeled
with numbers, starting with the far left lane” and, “[w]hen using lane numbers, the far left lane shall be called ‘Lane
1.’ Each lane to the right is numbered sequentially 2 through n.” National Traffic Incident Management Coalition,
 http://ntimc.transportation.org/Documents/12.13.10_laneDesignation-2pg-printer.pdf (accessed January 15, 2019).
       {¶7} It truly was the “last” second — a forensic expert who examined data from

electronic recorders in both Rafter’s truck and the victim’s car testified that one second before

impact, the victim “was standing on the brake,” decelerating from 69 miles per hour to 53 miles

per hour. Rafter, however, had his accelerator position at 100 percent throttle, meaning that

Rafter “was attempting to go as fast as that vehicle can possibly go” — the expert estimated that

Rafter’s truck was traveling between 95 to105 miles per hour at impact. The nearly head-on

impact was so severe that the victim’s car decelerated faster than it was moving, a circumstance

that occurs only when “another vehicle is going so fast and the other vehicle is so big that it

drives that vehicle, not only stops it almost dead in its tracks, but pushes it rearward and

accelerates it rearward.” Not only did Rafter’s speed stop the victim’s car and push it backwards

at impact, Rafter’s truck continued moving forward, flipping and sliding 400 feet on its roof

before stopping.
       {¶8} Rafter maintains this case is akin to a suicidal person jumping off a building and

inadvertently falling on and killing a pedestrian. But it would be a more accurate comparison in

this case to say that the person jumping off the building actually tried to land on another person.

What Rafter is really arguing is that in trying to kill himself by colliding with another vehicle, he

did not desire the victim’s death. “Deliberately to do something that one knows will have a

particular result is often in the criminal law enough to establish the requisite intention to bring

about that result.” United States v. Gage, 183 F.3d 711, 718-719 (7th Cir.1999) (Posner, J.,

concurring). But whether Rafter “desired” the victim’s death is immaterial; he knew that the

manner in which he would take his life would bring about her death, too. See id. A rational

trier of fact could conclude that Rafter purposely collided with the victim’s vehicle. A rational

trier of fact could also conclude that Rafter knew that at the high rate of speed he was traveling, a

collision with another vehicle that was severe enough to cause his death would surely cause the

death of the driver of the other vehicle. There was sufficient evidence that he acted with prior

calculation and design.

       {¶9} Finally, Rafter argues that his conviction for aggravated murder is against the weight

of the evidence. He does not, however, make an argument that differs in any respect from his

argument that the aggravated murder count lacked sufficient evidence. The legal sufficiency of

the evidence is a distinct legal concept from the weight of the evidence, State v. Thompkins, 78

Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), paragraph two of the syllabus, and Rafter’s

failure to distinguish them violates App.R. 16(A)(7). State v. Mallory, 8th Dist. Cuyahoga No.

106052, 2018-Ohio-1846, ¶ 21; State v. Crosby, 8th Dist. Cuyahoga No. 106504,

2018-Ohio-3793, ¶ 6.

                 II. Sufficiency of the Evidence of Murder and Felonious Assault
        {¶10} Rafter also challenges the sufficiency and the manifest weight of the evidence

supporting his convictions for murder, felonious assault, and aggravated vehicular homicide.

Those convictions were merged into the aggravated murder count for sentencing, so any error on

the merged counts would be harmless.                State v. Ramos, 8th Dist. Cuyahoga No. 103596,

2016-Ohio-7685, ¶ 18; State v. Moton, 8th Dist. Cuyahoga No. 104470, 2018-Ohio-737, ¶ 12.

                                          III. Gruesome Photograph

        {¶11} Over defense objection, the court admitted into evidence a photograph of the

deceased victim as she lay inside her car after the collision. The photograph was unquestionably

gruesome — the force of the impact, in the words of the medical examiner, resulted in the

“complete evisceration of the brain from the cranial cavity.”2 In addition, the medical examiner

noted that the victim suffered a number of fractures, some of which were depicted in the

photograph. Rafter argues that the court abused its discretion by admitting the photograph

because he did not challenge the cause of death, and the only purpose to be served by the

photograph was to inflame the passions of the jury.

        {¶12} This is a noncapital case,3 so we apply the usual rules of admitting evidence by

considering whether the photograph is relevant and, if so, is the probative value of the

photographic evidence substantially outweighed by the danger of unfair prejudice to the

defendant. Morales at 257. Under this standard, “the probative value must be minimal and the

prejudice great before the evidence may be excluded.” Id.


        2
            In fact, the coroner could not locate the victim’s brain during the autopsy. In a motion in limine to
exclude the photograph, Rafter claimed that there was “some evidence” that the victim’s brain had been expelled as a
result of the collision and “affixed to the front of Rafter’s truck.”

        3
           The Ohio Supreme Court applies “a ‘stricter evidentiary standard for the introduction of photographs’ in
capital cases than in other contexts.” State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶
137, quoting State v. Morales, 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267 (1987). In capital cases, “gruesome
photographs are admissible only if the ‘probative value of each photograph * * * outweigh[s] the danger of prejudice
         {¶13} The photograph was relevant. Although Rafter agreed that the victim died as a

result of the collision, the state was entitled to offer visual proof of the victim’s catastrophic

injuries as evidence that Rafter was purposely driving into an on-coming car.                 The severity of

the victim’s injuries went to proof of Rafter’s purpose — the high rate of speed required to kill

himself would also kill the driver of the other car.

         {¶14} Rafter makes no specific argument on the prejudice he suffered from the admission

of the photograph and claims only that the state introduced it “solely for purpose of prejudicing

the jury against Mr. Rafter for the tragic death of the young [victim].” This argument ignores

the actual relevancy of the photograph. In addition, the trial judge gave reasoned consideration

to the issue:

         I find that the jury would certainly be able to look at that photo if they feel it’s
         necessary. I don’t think it’s prejudicial or overly prejudicial to the defendant just
         because it is a gruesome photo even in the court’s own view. It is certainly
         necessary to portray the nature and extent of the accident and the effect that it had
         on the driver of that vehicle.

Tr. 767.

         {¶15} As such, Rafter does not show unfair prejudice, let alone unfair prejudice that

substantiates outweighing the probative value.

         {¶16} For similar reasons, we reject Rafter’s argument that the court erred by permitting

repetitive and graphic testimony regarding the victim’s injuries. In any event, Rafter’s argument

is too self-serving to merit serious consideration: it amounts to a claim that the details of the

murder are so gruesome that they should be excluded from the jury.

                                                 IV. Misconduct



to the defendant and, additionally [is] not * * * repetitive or cumulative in nature.’” Id.
       {¶17} Rafter cites several points in the state’s closing argument that he claims misstated

facts, misstated definitions of certain legal terms, and misstated an expert’s testimony.

       {¶18} A prosecuting attorney may not use “improper methods calculated to produce a

wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314

(1935). When a prosecuting attorney’s conduct “so infect[s] the trial with unfairness as to make

the resulting conviction a denial of due process,” a new trial will be ordered. Donnelly v.

DeCristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The due process right

to a fair trial means that we examine misconduct in context of trial as a whole. No trial is

perfect, and in the “tension and turmoil” of trial, we give both the prosecution and the defense

“wide latitude in summation as to what the evidence has shown and what reasonable inferences

may be drawn therefrom.” State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E. 2d 773, (1970).

Isolated remarks that do not affect the whole trial will not warrant a new trial.
       {¶19} In addition, we apply the rules regarding forfeited error: “It is a general rule that an

appellate court will not consider any error which counsel for a party complaining of the trial

court's judgment could have called but did not call to the trial court’s attention at a time when

such error could have been avoided or corrected by the trial court.” State v. Childs, 14 Ohio

St.2d 56, 58, 236 N.E.2d 545 (1968). When a defendant fails to object to alleged acts of

prosecutorial misconduct, we review only for plain error. State v. Powell, 132 Ohio St.3d 233,

2012-Ohio-2577, 971 N.E.2d 865, ¶ 177. “Notice of plain error * * * is to be taken 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.   Plain error is an “obvious defect” in the trial proceedings that affects the outcome of

the trial. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. And

even if an appellate court finds that plain error occurred, reversal is not mandatory: the Supreme

Court has “admonish[ed] courts to notice plain error ‘with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’” Id. at ¶ 23, quoting State v.

Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240, ¶ 27.
       {¶20} Rafter did not object when the state, during its closing argument, told the jury that

a state highway patrol trooper who investigated the crash “told you that based on the information

and the sketch that he was able to draw, based on his measurements, that this act was intentional

* * *.” In fact, the trooper testified that he was not doing a crash reconstruction and that in a call

with local police who were handling the investigation, he stressed that the highway patrol was

not doing a crash report “because the information that was provided to us was an intentional act

and not a crash accident.” The state thus mischaracterized this testimony. The trooper did not

give an opinion, based on his measurements at the scene, that Rafter acted intentionally; he said

only that he had been told that Rafter acted intentionally. That mischaracterization, however,

was slight enough that it did not result in a manifest miscarriage of justice warranting a new trial.



       {¶21} Rafter likewise failed to object when the state told the jury that for purposes of

felonious assault, it did not need to prove that Rafter acted with a purpose to kill the victim but

need only prove that he acted knowing that his conduct “could cause” that result. The state now

concedes that the proper definition of “knowingly” is that a person’s conduct “will probably

cause a certain result.” See R.C. 2901.22(B). Even if this rises to the level of plain error, we

exercise our discretion to disregard it given that we have affirmed the conviction for aggravated

murder and as previously noted, the court merged the sentence for felonious assault into the

aggravated murder count.
       {¶22} Finally, Rafter failed to object to the state’s comment that the expert mechanic said

that Rafter drove straight for the victim’s car, without taking any evasive maneuvers, because the

expert said that he could not recover Rafter’s steering wheel data. We find no error because the

cited part of closing argument referred to the eyewitness, not the expert mechanic. The state did

not mischaracterize this testimony.

                                           V. Bad Acts

       {¶23} During direct examination, Rafter’s son testified that Rafter used marijuana to

“self-medicate.” The state then asked the following questions: (1) “Have you ever seen your dad

use marijuana?”; (2) “You said he did use marijuana to self-medicate. What’s your knowledge

about that?”; and (3) “Was he using marijuana in February of 2016?” Although the court

sustained objections to all three questions, Rafter argues that the trial judge should have

independently instructed the jury to disregard the question. Rafter did not ask the court for a

curative instruction so he has forfeited this assignment of error on appeal. State v. Allen, 73

Ohio St.3d 626, 639, 1995-Ohio-283, 653 N.E.2d 675; State v. Fears, 86 Ohio St.3d 329, 335,

1999-Ohio-111, 715 N.E.2d 136. In addition, by sustaining the objection, the court prevented

the son from answering the questions. Rafter has shown no prejudice.

       {¶24} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
______________________________________________
*STEPHEN A. YARBROUGH, JUDGE

SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR

*(Sitting by Assignment: Judge Stephen A. Yarbrough, retired, of the Sixth District Court of
Appeals).
