[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Ford, Slip Opinion No. 2019-Ohio-4539.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2019-OHIO-4539
               THE STATE OF OHIO, APPELLEE, v. FORD, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Ford, Slip Opinion No. 2019-Ohio-4539.]
Criminal Law—Aggravated murder—Conviction affirmed—Death sentence
        vacated and cause remanded to trial court to properly determine whether
        defendant is intellectually disabled after considering the following three
        core elements: (1) intellectual-functioning deficits (indicated by an IQ score
        approximately two standard deviations below the mean—i.e., a score of
        roughly 70 or lower when adjusted for the standard error of measurement),
        (2) significant adaptive deficits in any of the three adaptive-skill sets
        (conceptual, social, and practical), and (3) the onset of these deficits while
        the defendant was a minor.
   (No. 2015-1309—Submitted January 8, 2019—Decided November 7, 2019.)
APPEAL from the Court of Common Pleas of Summit County, No. 13-04-1008(A).
                                   __________________
                               SUPREME COURT OF OHIO




        STEWART, J.
        {¶ 1} This is an appeal of right from aggravated-murder convictions and a
death sentence. A Summit County Common Pleas Court jury found appellant,
Shawn Ford Jr., guilty of the aggravated murders of Jeffrey and Margaret Schobert
and unanimously recommended a death sentence for Margaret’s murder. The trial
court accepted the recommendation and sentenced Ford accordingly.
        {¶ 2} We affirm Ford’s convictions. However, we remand this case to the
trial court to evaluate whether Ford is intellectually disabled in accordance with the
criteria set forth in this opinion.
                                      I. Trial Evidence
        {¶ 3} Evidence introduced at trial showed that on March 23, 2013, Ford
stabbed his girlfriend, Chelsea Schobert, after hitting her in the head with a brick.
While Chelsea was in the hospital, her parents, Jeffrey and Margaret, were
concerned for Chelsea’s safety and did not permit Ford to visit her. On April 2,
Ford broke into the Schoberts’ home with Jamall Vaughn. Jeffrey was home and
in bed. Margaret was at the hospital with Chelsea. Ford killed Jeffrey and then
waited for Margaret to return home from the hospital. Margaret was killed when
she came home. Ford stole Jeffrey’s car and other valuables from the Schoberts’
home.
                                  A. Chelsea’s Assault
        {¶ 4} Chelsea started dating Ford in August or September 2012. On Friday,
March 22, 2013, Chelsea celebrated her 18th birthday with Ford, Zachary Keys,
and Joshua Greathouse at Zachary’s Akron residence. They started drinking around
11:00 p.m., and everyone became highly intoxicated.
        {¶ 5} At some point, Ford and Chelsea went to a bedroom. According to
Chelsea, Ford wanted to have sex, but she was not feeling well and asked him to
wait. Ford pushed her onto the bed. Chelsea said “no” and got up. She told Ford,
“I hate you.” Ford then hit Chelsea in the head.




                                             2
                                 January Term, 2019




       {¶ 6} Zachary and Joshua were in the living room watching TV when Ford
and Chelsea went into the bedroom. After 10 to 15 minutes, Zachary went to the
bedroom after hearing a “thud.” He found Chelsea halfway off the bed with a
gashed head. A brick with blood on it was nearby. Zachary asked Ford, “What the
hell is going on here?” Ford left the bedroom. He returned with a knife and stabbed
Chelsea in the neck and back.
       {¶ 7} Zachary stopped Ford from stabbing Chelsea again and told him to
take her to the hospital. They took Chelsea to the car, and Ford drove her to the
hospital. Chelsea suffered a spinal injury that left lasting effects.
                             1. Cover-up of the Assault
       {¶ 8} On Saturday, March 23, Ford told Zachary to tell the police that
Chelsea had been assaulted by some guys at a party in Kent. He also told Joshua,
“I want to make sure that you don’t talk about this.”
       {¶ 9} On March 25, Akron Detectives Bertina King and Richard Morrison
went to the hospital to speak to Chelsea. Chelsea indicated that she did not know
her attacker. The detectives also learned that there was a Global Positioning System
(“GPS”) tracker on Chelsea’s car. The GPS showed that the car had been at
Zachary’s residence on the night of March 22 and not in Kent.
       {¶ 10} Later on March 25, the detectives conducted a recorded interview
with Ford. Ford stated that Chelsea indicated she had been attacked at a party in
Kent. After being told about the GPS tracker, Ford told police that they were at
Zachary’s house when Chelsea was attacked. Ford claimed that they were assaulted
by someone Zachary owed money to and that the person hit Chelsea with a gun
when she started cursing at him.
       {¶ 11} Ford, Zachary, and Chelsea each identified the same person, a man
known as Ruiz, in a photo array. On March 27, the police arrested Ruiz and charged
him with Chelsea’s assault. Ruiz denied his involvement and provided a good alibi.
The police later determined that he was telling the truth.




                                           3
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             2. Ford Prohibited from Visiting Chelsea at the Hospital
       {¶ 12} Chelsea’s room was in a secured part of Akron Children’s Hospital,
and she did not have a phone in her room.
       {¶ 13} Even though Ruiz had been arrested, the Schoberts did not permit
Ford to visit Chelsea in the hospital. The Schoberts and law enforcement thought
this was best for her safety.
                B. The Discovery of Jeffrey and Margaret Schobert
       {¶ 14} Around 8:00 or 9:00 p.m. on April 1, Jeffrey went home from the
hospital while Margaret remained with Chelsea. Margaret left the hospital and went
home at about 6:00 a.m. on April 2. Around 1:30 p.m. on April 2, Nickolas Gerring,
a building contractor working on the Schoberts’ home, found Jeffrey’s and
Margaret’s bodies in their bedroom. Gerring called 9-1-1. A New Franklin police
officer responding to the scene found Jeffrey on the bed and Margaret on the floor
next to it. Both of them had multiple, massive head wounds. A sledgehammer was
lying on the bed next to Jeffrey. Jeffrey’s car was missing.
                          C. The Murder Investigation Begins
       {¶ 15} George Staley from the Crime Scene Unit at the Ohio Bureau of
Criminal Investigation (“BCI”) processed the crime scene. He found reddish
stains—which later yielded positive results in a presumptive blood test—in the
ground level of the house, near the doorway leading to the room between the
kitchen and the garage.
       {¶ 16} Staley collected a knife that was lying on a living-room chair and a
piece of what appeared to be part of a surgical glove that had a reddish stain on it.
Other reddish stains were found on pieces of paper inside Margaret’s purse, which
was on the dining-room table.
       {¶ 17} Police found blood spatter on the master-bedroom ceiling and on the
dresser near the bed. The sledgehammer and a small piece of plastic on the bed
were also collected.




                                          4
                                  January Term, 2019




           {¶ 18} At the outset of the investigation, Detective Michael Hitchings, the
lead investigator, learned that Chelsea had been attacked and that the Schoberts had
been keeping Ford from seeing her in the hospital.
           {¶ 19} On the evening of April 2, Hitchings questioned Ford. Hitchings
told Ford that the Schoberts had been killed. According to Hitchings, Ford reacted
to the news with “a blank look.” Ford said he was not involved and did not know
anything about the murders. But the police collected Ford’s Air Jordan shoes,
because there appeared to be “some spots” on them. Ford was then taken to the
Portage County jail where he was held on a warrant for lying about Chelsea’s
assault.
                       1. Jeffrey’s Car and Other Evidence Found
           {¶ 20} On April 3, Hitchings learned that Ford had provided George Beech,
a fellow inmate, with information about the murders, which Beech had passed on
to the Portage County Sheriff. As a result of that information, Jeffrey’s car was
found in Akron. Police officers searched the area around the car and found gloves,
a knife, and a knit hat inside the storm drain in front of a home on Fried Street.
           {¶ 21} Hitchings spoke to a woman who lived at the house. He learned that
her son was Ford’s friend. She let them search the house. The police encountered
Jamall Vaughn in an upstairs bedroom. Hitchings also found a ceramic watch, later
identified as Margaret’s, on the bedroom floor.
                          2. Ford Admits Killing the Schoberts
           {¶ 22} On the afternoon of April 3, Hitchings interviewed Ford again. Ford
continued to deny involvement in the murders. Hitchings testified that Ford
claimed he walked halfway there with Zachary and someone named Malik but
turned around. Hitchings told Ford that the Schoberts’ and Chelsea’s blood was
found on his Air Jordan shoes. Ford claimed that he had loaned his shoes to
Zachary and then later got them back. According to Hitchings, Ford then admitted
being at the Schoberts “one time and it was for the dad” but said he got upset and




                                            5
                             SUPREME COURT OF OHIO




left. Hitchings testified that Ford then said he was there for part of it but blamed
the murders on Zachary and Malik, because they had the weapons.
       {¶ 23} That evening, Hitchings interviewed Vaughn.            Following that
interview, the police recovered cloth and latex gloves from a sewer drain on City
View Avenue.
       {¶ 24} On April 4, Hitchings interviewed Ford again. He told Ford that
Vaughn had been interviewed and discussed the evidence against Ford. According
to Hitchings, Ford stated that it was Vaughn’s idea to do a “lick” at the Schoberts
and that they walked from Akron to the Schoberts’ house. Hitchings testified that
Ford blamed Vaughn for the murders at first. However, as the interview continued,
Ford said that he was the only one that used the sledgehammer on Jeffrey and
Margaret. But he said that Vaughn stabbed Jeffrey in the back. Ford also said that
they took Jeffrey’s car.
       {¶ 25} On the evening of April 5, Ford made a recorded phone call from the
Summit County jail to his brother. Hitchings testified that Ford discussed the
murders during that call and indicated that he and Vaughn were the only two
individuals involved in committing them.
         3. Ford’s Statements to Heather Greathouse and Other Evidence
       {¶ 26} Heather Greathouse lived at her mother’s home in Akron with her
brother, her boyfriend, and Ford. At trial, Heather testified that on the night before
the murders, Ford told her he was going to “hit a lick,” which she said meant to
break into a house and rob it. The next day, she found a pair of bloody pants on the
floor and told her boyfriend to burn them. She testified that Ford brought back two
rings and some money. Heather’s aunt threw one of the rings in a dumpster at the
Family Dollar store. The police later recovered the burned jeans from Heather’s
home and found the ring in the dumpster.
       {¶ 27} Heather also testified that Ford admitted stabbing Chelsea and
hitting her in the head with a brick. Ford said he did it because “she wasn’t paying




                                          6
                                January Term, 2019




attention to him.” According to Heather, Ford also said he would have killed
Chelsea if Zachary had not stopped him.
                                 4. Autopsy Results
       {¶ 28} Dr. Dorothy Dean, deputy medical examiner for Summit County,
conducted the autopsies of Jeffrey and Margaret. She concluded that Jeffrey died
from numerous blunt impacts to the head, having been struck at least 14 times. He
was also stabbed three times, but none of those wounds were life-threatening.
Margaret died from blunt impacts to the head, having been struck at least 19 times.
Both victims’ injuries were consistent with being hit by a sledgehammer.
                           5. DNA and Forensic Evidence
       {¶ 29} Martin Lewis, a forensic scientist at BCI, testified that the small
piece of plastic found on the Schoberts’ bed fit perfectly into the handle of the knife
recovered from the storm drain on Fried Street. Lewis concluded that the plastic
was at one time a piece of the larger knife handle.
       {¶ 30} Lindsey Pruneski, a forensic scientist at BCI, testified that stains on
the sledgehammer, Ford’s shoes, the cloth and latex gloves found in the City View
Avenue drain, and the knife and stocking cap found in the Fried Street drain tested
positive in a presumptive blood test. A stain on the burned jeans also tested
positive.
       {¶ 31} A forensic scientist in the DNA section at BCI stated that the DNA
profiles from stains on Ford’s right shoe, the gloves found in the City View Avenue
drain, the stocking cap, the knife blade and handle found in the Fried Street drain,
and the burnt jeans were consistent with Jeffrey’s DNA profile. The forensic
scientist determined that the expected frequency of occurrence of that DNA profile
was 1 in 103.3 sextillion unrelated individuals.
       {¶ 32} The forensic scientist stated that the DNA profile from one of the
stains on Ford’s left shoe was a mixture. The major DNA profile was consistent
with Margaret’s, and the minor DNA profile was consistent with Ford’s. The




                                          7
                             SUPREME COURT OF OHIO




expected frequency of occurrence of Margaret’s DNA profile on Ford’s shoe was
1 in 3.163 quadrillion unrelated individuals.
       {¶ 33} The DNA profile on another stain on Ford’s left shoe was also a
mixture. The major profile was consistent with Chelsea’s. The partial minor profile
was consistent with Ford’s. The expected frequency of occurrence of Chelsea’s
profile on Ford’s shoe was 1 in 1.712 quintillion unrelated individuals.
       {¶ 34} BCI’s forensic scientist stated that the DNA profiles from the
stocking cap and the waistband of the burnt jeans were both mixtures consistent
with contributions from Ford and two unknown individuals. The DNA profile on
the outside of a light purple latex glove was also a mixture. The major profile was
consistent with Ford. The expected frequency of occurrence of Ford’s DNA profile
on the glove was 1 in 3.134 quintillion unrelated individuals.
       {¶ 35} Finally, the forensic scientist determined that Vaughn could not be
excluded as the major source of DNA obtained from inside another latex glove.
The expected frequency of occurrence of Vaughn’s partial major DNA profile
inside the glove was 1 in 124.2 quintillion unrelated individuals.
                              II. Procedural History
       {¶ 36} The state charged Ford with five counts of aggravated murder. In
Count 1, he was charged with the aggravated murder of Jeffrey with prior
calculation and design. In Count 2, he was charged with the aggravated murder of
Jeffrey while committing an aggravated robbery. In Count 4, he was charged with
the aggravated murder of Margaret with prior calculation and design, and in Count
5, with the aggravated murder of Margaret while committing an aggravated
robbery. In Count 3, he was charged with the aggravated murder of Jeffrey or
Margaret while committing aggravated burglary.
       {¶ 37} Each aggravated-murder count contained three death-penalty
specifications: (1) committing or attempting to commit aggravated robbery as the
principal offender in the commission of the aggravated murder or, if not the




                                         8
                                January Term, 2019




principal offender, committing the aggravated murder with prior calculation and
design, R.C. 2929.04(A)(7), (2) committing or attempting to commit aggravated
burglary as the principal offender in the commission of the aggravated murder or,
if not the principal offender, committing the aggravated murder with prior
calculation and design, R.C. 2929.04(A)(7), and (3) a course of conduct involving
multiple murders, R.C. 2929.04(A)(5).
       {¶ 38} In Counts 6 through 11, Ford was also charged with aggravated
robbery, aggravated burglary, grand theft of a motor vehicle, petty theft, and the
felonious assault of Chelsea.
       {¶ 39} Ford pled not guilty to all charges. The jury found Ford guilty of all
counts and specifications. He was found guilty of the felony-murder specifications
as to Counts 1, 2, 3, and 5 with a determination that he was the principal offender.
And he was found guilty of the felony-murder specifications as to Count 4 with a
determination that he committed the aggravated murder of Margaret with prior
calculation and design.
       {¶ 40} The trial court merged for sentencing the aggravated-murder counts
for Jeffrey’s death, and the jury returned a verdict of life imprisonment without the
possibility of parole on Count 2. The trial court likewise merged for sentencing the
aggravated-murder counts for Margaret’s death, and the jury returned a death
sentence on Count 4. The trial judge sentenced Ford accordingly. Counts 6 through
10 were merged with the aggravated-murder counts. Ford was sentenced on Count
11 to eight years for the felonious assault of Chelsea.
       {¶ 41} Ford appeals his convictions and sentence and raises 23 propositions
of law. We will address the issues in the approximate order that they arose during
trial; however, we will first address the issue of whether the trial court properly
determined that Ford is not intellectually disabled.




                                          9
                                  SUPREME COURT OF OHIO




                                 III. Intellectual Disability
          {¶ 42} In proposition of law No. III, Ford argues that the trial court erred in
ruling that he is not intellectually disabled. This claim has merit, and we remand
the matter to the trial court for further review to determine whether Ford is
intellectually disabled.
                    A. Standards for Assessing Intellectual Disability
                                       1. Atkins and Lott
          {¶ 43} In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002), the Supreme Court of the United States held that the execution of
intellectually disabled individuals violates the ban on cruel and unusual punishment
found in the Eighth Amendment to the United States Constitution.
          {¶ 44} Atkins defined “mental retardation,” i.e. “intellectual disability,”1 by
reference to two clinical definitions: one from the American Association on Mental
Retardation’s Mental Retardation: Definition, Classification, and Systems of
Support (9th Ed.1992) and the second from the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (4th Ed.2000). But the
Supreme Court left to the states “ ‘the task of developing appropriate ways to
enforce’ ” the restriction on executing the intellectually disabled. Atkins at 317,
quoting Ford v. Wainwright, 477 U.S. 399, 416, 106 S.Ct. 2595, 91 L.Ed.2d 335
(1986).
          {¶ 45} In State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d
1011, we set forth a definition of intellectual disability for courts to follow. Lott
required “(1) significantly subaverage intellectual functioning, (2) significant
limitations in two or more adaptive skills, such as communication, self-care, and
self-direction, and (3) onset before the age of 18.” (Emphasis added.) Id. at ¶ 12.



1. The phrase “intellectual disability” will be used throughout this opinion including in place of
the term “mental retardation.”




                                                 10
                                   January Term, 2019




Lott also held that there is “a rebuttable presumption” that a defendant is not
intellectually disabled if “his or her [intelligence quotient (“IQ”)] is above 70.” Id.
                               2. Diagnostic Standards
        {¶ 46} In    2010,   the    American     Association   on    Intellectual   and
Developmental Disabilities (“AAIDD”) updated its medical diagnostic standards
for defining intellectual disability in the 11th edition of its clinical manual,
Intellectual Disability: Definition, Classification, and Systems of Supports
(“AAIDD-11”).       In 2013, the American Psychiatric Association updated its
definition of intellectual disability in the Diagnostic and Statistical Manual of
Mental Disorders (5th Ed.2013) (“DSM-5”). Both updated definitions identified
three core elements: (1) “intellectual-functioning deficits (indicated by an IQ score
‘approximately two standard deviations below the mean,’—i.e., a score of roughly
70—adjusted for ‘the standard error of measurement,’ AAIDD-11, at 27),” Moore
v. Texas, __ U.S. __, 137 S.Ct. 1039, 1045, 197 L.Ed.2d 416 (2017) (“Moore I”),
(2) significant adaptive-skill deficits in one or more activities of daily life, and (3)
the onset of these deficits before the age of 18. AAIDD-11 at 27, DSM-5 at 33; see
Hall v. Florida, 572 U.S. 701, 710, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014).
        {¶ 47} In Hall and Moore I, the United States Supreme Court applied the
updated medical diagnostic standards in striking down state-court decisions on
intellectual disability.
                                    3. Hall v. Florida
        {¶ 48} In Hall, the Supreme Court applied Atkins to invalidate a Florida law
that precluded the presentation of additional evidence of intellectual disability when
the offender scored above 70 on IQ tests. Hall at 723-724. Hall held that courts
must consider the standard error of measurement (“SEM”), id. at 723, which
reflects the imprecise nature of the IQ test and the fact that an individual’s IQ score
may fluctuate for a variety of reasons, id. at 712-713. The Supreme Court instructed
that states must “understand that an IQ test score represents a range rather than a




                                           11
                              SUPREME COURT OF OHIO




fixed number.” Id. at 723. Therefore, “when a defendant’s IQ test score falls within
the test’s acknowledged and inherent margin of error, the defendant must be able
to present additional evidence of intellectual disability, including testimony
regarding adaptive deficits.” Id.
                                  4. Moore v. Texas
        {¶ 49} In Moore I, __ U.S. at ___, 137 S.Ct. at 1053, 197 L.Ed.2d 416, the
Supreme Court struck down a Texas Court of Criminal Appeals decision that relied
on an outdated definition in assessing whether the defendant was intellectually
disabled.
        {¶ 50} Moore claimed that he was intellectually disabled and therefore
ineligible for the death penalty under the Eighth Amendment. Id. at __, 137 S.Ct.
at 1045. A state habeas court agreed with him, applying a definition of “intellectual
disability” based on then-current medical standards, including those for evaluating
both IQ scores and adaptive-functioning measures. Id. at __, 137 S.Ct. at 1046.
But the Texas Court of Criminal Appeals reversed, holding that Moore failed to
prove significantly subaverage intellectual functioning because he had achieved IQ
test scores of 74 and 78. Id. at __, 137 S.Ct. at 1047. Further, the Texas court
concluded, Moore failed to prove “ ‘significant and related limitations in adaptive
functioning’ ” based on additional restrictions imposed by Texas case law. Id.
        {¶ 51} The United States Supreme Court vacated the judgment and
remanded the case. Moore I held that the Texas high court had “fastened” its
intellectual-disability determination to an outdated definition of intellectual
disability adopted in that state’s earlier court rulings and that this archaic definition
“pervasively infected” the state-court analysis such that the decision of the state
court could not stand. Id. at __, 137 S.Ct. at 1053. Moore I explained that the
Texas court’s analysis of Moore’s IQ scores was “irreconcilable with Hall” because
it failed to account for the SEM. Id. at ___, 137 S.Ct. at 1049. Moore had a score
of 74 on one test, but when adjusted for the SEM, he had a range of 69 to 79. Id.




                                           12
                                January Term, 2019




This meant that the lower end of the range fell below 70, and therefore, the Texas
court was required under Hall to consider Moore’s adaptive functioning. Id.
       {¶ 52} Then, addressing the Texas court’s rejection of adaptive-functioning
criteria, the Supreme Court expanded on Hall’s analysis, noting: “By rejecting the
habeas court’s application of medical guidance and clinging to the standard it laid
out in [an earlier case], the [Texas court] failed adequately to inform itself of the
‘medical community’s diagnostic framework * * *.’ ” (Emphasis added.) Moore
I, __ U.S. at __, 137 S.Ct. at 1053, 197 L.Ed.2d 416, quoting Hall, 572 U.S. at 703,
134 S.Ct. 1986, 188 L.Ed.2d 1007. The Supreme Court remanded Moore’s case,
and the Texas court was required to reconsider its decision in light of the new
framework. Id.
       {¶ 53} In Moore I, the court noted that the DSM-5 stated that “deficits in
only one of the three adaptive-skills domains suffice to show adaptive deficits.”
(Emphasis added.) Id. at ___, 137 S.Ct. at 1050; see DSM-5 at 33, 38. The court
also noted that “[i]n determining the significance of adaptive deficits, clinicians
look to whether an individual’s adaptive performance falls two or more standard
deviations below the mean in any of the three adaptive skill sets (conceptual, social,
and practical).” (Emphasis added.) Id. at ___, 137 S.Ct. at 1046; see AAIDD-11 at
43.
       {¶ 54} On remand, the Texas Court of Criminal Appeals reconsidered its
decision that Moore did not have an intellectual disability but reached the same
conclusion. The Supreme Court again reviewed the state court’s decision and
reversed. See Moore v. Texas, __ U.S. __, 139 S.Ct. 666, __ L.Ed.2d __ (2019)
(“Moore II”).
       {¶ 55} The Supreme Court emphasized that “the court of appeals again
relied less upon adaptive deficits to which the trial court had referred than upon
Moore’s apparent adaptive strengths.” (Emphasis sic.) Id. at __, 139 S.Ct. at 670.
The Supreme Court faulted the state court for (1) emphasizing Moore’s capacity to




                                         13
                              SUPREME COURT OF OHIO




communicate, read, and write based in part on pro se papers Moore had filed in
court without determining that Moore wrote the papers on his own, (2) relying upon
adaptive improvements Moore made in prison, (3) concluding that Moore failed to
show that his deficient social behavior was related to his mental disabilities rather
than emotional problems, and (4) relying on “ ‘lay stereotypes of the intellectually
disabled.’ ” Id. at ___, 139 S.Ct. at 670-672, quoting Moore I, __ U.S. __, 137
S.Ct. at 1052, 197 L.Ed.2d 416. Rather than remanding Moore’s case, the Supreme
Court found that on the basis of the trial-court record, Moore had established that
he is a person with intellectual disability. Id. at ___, 139 S.Ct. at 672.
                           B. Relevant Factual Background
                               1. Pretrial Evaluations
       {¶ 56} Before trial, Dr. Robert Byrnes, a psychologist, examined Ford to
determine whether he was competent to stand trial and whether he was
intellectually disabled.
       {¶ 57} In his report, Dr. Byrnes stated that no records suggested that Ford
has ever been diagnosed as intellectually disabled. In the summer of 2013, he
administered the Wechsler Abbreviated Scale of Intelligence (“WASI”), and the
results showed that Ford had a full-scale IQ score of 64. But Dr. Byrnes stated that
“[t]hese results probably underestimate Mr. Ford’s intellectual ability because of
variable attention and impulsive behavior during the testing.”               Dr. Byrnes
concluded that Ford was not intellectually disabled.
       {¶ 58} Dr. Arcangela Wood, a psychologist and director of a state-certified
forensic center, also conducted a pretrial evaluation of Ford. She determined that
Ford was sane at the time of the crimes. Dr. Wood administered the Wechsler Adult
Intelligence Scale, Fourth Edition (“WAIS-IV”). Ford scored a full-scale IQ of 80
(95 percent confidence interval [“CI”] = 76-84), which placed his overall
intellectual functioning in the “low average range of intelligence.”




                                          14
                                January Term, 2019




                 2. Mitigation Testimony as to Ford’s Mental State
        {¶ 59} The defense hired Dr. Joy Stankowski, a psychiatrist, as a mitigation
specialist. She interviewed Ford and examined his prior IQ test results but did not
administer any new ones or determine whether he was intellectually disabled.
During mitigation, she testified that “Shawn’s IQ over the years tested to be
anywhere between 62 and 80.”
        {¶ 60} Following Dr. Stankowski’s mitigation testimony, defense counsel
moved to dismiss the death specifications because Ford’s IQ scores ranged between
62 and 80. The trial court overruled the motion, but held a hearing to determine
whether Ford was intellectually disabled, see Atkins, 536 U.S. 304, 122 S.Ct. 2242,
153 L.Ed.2d 335, after the jury returned the death verdict.
                                  3. Atkins Hearing
        {¶ 61} In preparation for the Atkins hearing, three experts evaluated
whether Ford was intellectually disabled.          Dr. Katie Connell, a forensic
psychologist, was the court’s expert; Dr. James Karpawich, a clinical psychologist,
was the defense expert; and Dr. Sylvia O’Bradovich, a forensic psychologist, was
the state’s expert.
                             a. Dr. Connell’s evaluation
        {¶ 62} Dr. Connell conducted a detailed evaluation of Ford’s school
records. She reported that an evaluation conducted when Ford was six years old
indicated that he did “not meet the mental retardation criteria.” The childhood
evaluation attributed Ford’s learning difficulties to linguistic factors, found that he
had a specific learning disability, and identified a speech or language impairment.
        {¶ 63} Dr. Connell reviewed Ford’s scores on five IQ tests: (1) Mental
Processing Composite score of 78 on the Kaufman Assessment Battery for Children
(“K-ABC”) in 2001 at age 6 or 7, (2) full-scale IQ score of 62 on the Wechsler
Intelligence Scale for Children, Third Edition (“WISC-III”) in 2003 at age 9, (3)
IQ composite score of 75 on the Kaufman Brief Intelligence Test, Second Edition




                                          15
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(“K-BIT2”) in 2006 at age 12, (4) full-scale IQ score of 64 on the WASI in 2013 at
age 18, and (5) full-scale IQ score of 80 on the WAIS-IV in 2013 at age 19.2
         {¶ 64} Dr. Connell did not deem the IQ score of 62 to be a reliable
assessment of Ford’s intellectual functioning because the evaluator stated that he
was extremely fidgety and distracted at the time of the test. Dr. Connell also
discounted the IQ score of 64 because Dr. Byrnes had reported that “these results
probably underestimate[d]” Ford’s intellectual ability. Dr. Connell also noted that
Ford told her that during previous testing with Dr. Byrnes, “I don’t know if I tried
or not. Very possible I didn’t try.”
         {¶ 65} Dr. Connell did not conduct additional IQ testing. She stated,
“Available records provided three prior IQ test results, and even when considering
measurement error and that one was an abbreviated measure, all were clearly above
the range of scores found in individuals diagnosed with an intellectual disability.”
(Emphasis added.)
         {¶ 66} Dr. Connell also discussed the “Flynn Effect.” She explained that
“Flynn reported that mean IQ increases about .33 points per year and some
researchers have suggested that any obtained IQ score should be adjusted [down]
.33 points for each year the test was administered after the standardization was
completed.” She stated that there continues to be debate about the Flynn Effect.
Dr. Connell stated, “The Flynn effect would have the most relevance in terms of
the K-ABC as this test was published in 1983 and administered to Mr. Ford in 2001.
If a Flynn adjustment was applied to Mr. Ford’s prior K-ABC test results, his
mental processing composite score would be approximately 72.” She added, “The
Flynn effect would have little impact on his K-BIT2 score as this was published in
2004 and administered to Mr. Ford in 2006 or on his WAIS-IV score as this test

2. Dr. Connell rescored the WAIS-IV test results after noticing several errors in the raw test data.
She stated that the corrected full-scale IQ score was 82. Dr. Connell added, “These obtained scores
are consistent with Dr. Woods’s prior opinion that they fall in the low average range and are not
consistent with an intellectual disability.”




                                                16
                                 January Term, 2019




was published in 2008 and administered to him in 2013.” Dr. Connell concluded
that “even with considering the Flynn Effect, * * * none of Mr. Ford’s IQ test
results are consistent with a diagnosis of intellectual disability.”
        {¶ 67} As to adaptive functioning, Dr. Connell reported that a formal
adaptive-functioning measure was completed when Ford was administered the
Vineland Adaptive Behavior Scales (“VBS”) in December 2003 when he was in
third grade. Dr. Connell stated that these test results identified deficits in adaptive
functioning. However, she noted that “the special education team determined that
this was due to a specific learning disability and did not find that intellectual
disability was the cause of his adaptive functioning limitations.”
        {¶ 68} Dr. Connell conducted the Vineland Adaptive Behavior Scales–II
(“VBS-II”) test. She relied on information from her interviews and observations of
Ford, an interview with his mother, and scores from his school achievement tests.
Dr. Connell stated that none of the VBS-II scores indicated a significant deficit.
        {¶ 69} Dr. Connell used the standards set forth in the DSM-5 and the
AAIDD-11 and concluded that Ford did not meet the diagnostic criteria for
intellectual disability.
                           b. Dr. Karpawich’s evaluation
        {¶ 70} Ford refused to participate in a psychological evaluation by Dr.
Karpawich. Thus, his evaluation was based on a review of records and a meeting
with Ford’s mother.
        {¶ 71} Dr. Karpawich reviewed Ford’s IQ test results, including his 2006
score of 75 on the K-BIT2. As to this score, Dr. Karpawich testified:


        With an IQ of 75, if you take into consideration the standard error
        of measurement to be a 90 percent confidence level, that is—actual
        IQ is between 69 and 83. So that would be a range rather than just




                                          17
                             SUPREME COURT OF OHIO




       an IQ score by itself you need to take into consideration what is the
       range.


Dr. Karpawich discounted the two IQ scores that fell below 70 because of Ford’s
impulsive behavior and poor attention during both tests.
       {¶ 72} In summarizing his opinion as to a possible intellectual disability,
Dr. Karpawich stated: “All [of Ford’s] IQ test results placed his intellectual
functioning below average. However, he was not given the diagnosis of mental
retardation/intellectual disability prior to the age of 18. His lowest IQ was 62 in
2003, but that evaluator noted that these results may ‘underestimate’ his ability.”
He added that “[o]ther test scores during his childhood placed his intellectual
function in the borderline range (although the standard error of measurement on
some tests cautioned that his actual IQ could be at 70 or below).”
       {¶ 73} As to adaptive skills, Dr. Karpawich testified that Ford’s 2003
results on the VBS test were at “the cutoff between mild mental retardation and
borderline intelligence.”    During Dr. Karpawich’s evaluation, Ford’s mother
completed an adaptive-behavior assessment. This standardized assessment of a
person’s adaptive functioning is conducted by asking questions of an informant.
Dr. Karpawich stated that Ford’s scores were below average in the areas of social
behavior and social engagement and very poor for the social-adjustment factor. Dr.
Karpawich testified: “[h]is scores were poor in the domains of conformity,
trustworthiness, and disturbing interpersonal behavior” and “he’s always had
significant issues and still in the area of what we call social behavior. * * * [T]hese
things have been increasingly evident over the years with Shawn, and these would
all be considered adaptive behaviors.” As to other adaptive behaviors, Ford tested
“in the average range or above.”




                                          18
                                     January Term, 2019




         {¶ 74} Dr. Karpawich stated that he applied the legal standard set forth in
R.C. 5123.01(N)3 and Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011,
in diagnosing intellectual disability. He did not use the DSM standard, because “it
has a lot of difficulties.” Dr. Karpawich concluded: “Based upon the available
information, it is my opinion with reasonable scientific certainty, that there is
insufficient information to conclude that the defendant fulfills the criteria for mental
retardation/intellectual disability.”
                              c. Dr. O’Bradovich’s evaluation
         {¶ 75} Dr. O’Bradovich’s office administered the WAIS-IV and Ford
received an overall score of 79. He also received an overall composite score of 87
on the VBS-II, which is in the adequate range. Dr. O’Bradovich stated that Ford’s
overall adaptive-behavior skills and his communication and socialization skills fell
in the adequate range but his daily-living skills fell in the moderately low range.
Dr. O’Bradovich determined that “[t]hese results are not indicative of significant
deficits in adaptive functioning.” She concluded that Ford is not intellectually
disabled.
                        d. Decision and findings of the trial court
         {¶ 76} The trial court used the Lott test to determine whether Ford was
intellectually disabled. Specifically, it evaluated whether the preponderance of the
evidence demonstrates that Ford had “(1) significantly subaverage intellectual
functioning, (2) significant limitations in two or more adaptive skills, and (3) onset
of these conditions before the age of 18.” (Emphasis added.) See Lott, 97 Ohio
St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 12.
         {¶ 77} The trial court determined that Ford’s IQ scores did not show that he
had significantly subaverage intellectual functioning. The trial court agreed with


3. R.C. 5123.01(N) provides: “ ‘Intellectual disability’ means a disability characterized by having
significantly subaverage general intellectual functioning existing concurrently with deficiencies in
adaptive behavior, manifested during the developmental period.”




                                                19
                             SUPREME COURT OF OHIO




Dr. Connell’s findings that Ford’s IQ scores of 62 and 64 were not reliable measures
of Ford’s intellectual functioning.
       {¶ 78} The trial court mentioned Dr. Karpawich’s finding that Ford’s IQ
score of 75, when taking the SEM into consideration, resulted in an actual IQ score
within a range between 69 and 83. However, the trial court did not discuss the
significance of Dr. Karpawich’s finding that the low range of the IQ scores fell
below 70.
       {¶ 79} As for adaptive deficits, the trial court stated: “All three experts who
specifically evaluated defendant’s adaptive skills and functioning testified that
while Mr. Ford had limits in certain areas of adaptive skills, he could not be
characterized as having ‘significant limitations in two or more adaptive skills.’ ”
(Emphasis added.)
       {¶ 80} The trial court concluded that Ford is not intellectually disabled,
stating: “All of the evidence adduced at the Atkins hearing was consistent. None of
the three experts was of the opinion that Mr. Ford has ever been intellectually
disabled within the standards recognized by the American Psychiatric Association,
the American Association on Intellectual and Developmental Disabilities, or State
v. Lott [97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011].”
                                      C. Analysis
                                       1. SEM
       {¶ 81} Ford argues that the trial court failed to account for the SEM when
considering his IQ scores. Hall and Moore I require a trial court to consider the
SEM when evaluating a defendant’s IQ scores. As Hall explains, “The SEM
reflects the reality that an individual’s intellectual functioning cannot be reduced to
a single numerical score.” Hall, 572 U.S. at 713, 134 S.Ct. 1986, 188 L.Ed.2d
1007. “[T]he SEM means that an individual’s score is best understood as a range
of scores on either side of the recorded score.” Id.




                                          20
                                  January Term, 2019




        {¶ 82} The trial court reviewed Ford’s reported IQ scores on the WISC-III,
the K-BIT2, two WAIS-IV tests, and the WASI. These scores included a CI range.
Its significance is that the SEM, “which varies by test, subgroup or age group, is
used to quantify the variability that is attributable to the test itself and provides the
basis for establishing a statistical CI within which the person’s true score is likely
to fall.” (Emphasis sic.) AAIDD, User’s Guide to Accompany the 11th Edition of
Intellectual Disability: Definition, Classification, and Systems of Supports 22 (11th
Ed.2012).
        {¶ 83} Dr. Karpawich reported that Ford’s IQ score of 75 on the K-BIT2
had a 90 percent CI range of 69 to 83. As to these scores, the trial court stated, “Dr.
Karpawich noted that although all of Mr. Ford’s IQ tests generated below average
scores, his tests had never placed him in the intellectually disabled range.”
(Footnote omitted.)
        {¶ 84} However, as discussed above, the United States Supreme Court has
ruled that when test scores, adjusted for the test’s SEM, are below average, the
scores are not enough to determine the question of disability. Moore I emphasizes
additional scrutiny and “require[s] that courts continue the inquiry and consider
other evidence of intellectual disability where an individual’s IQ score, adjusted for
the test’s standard error, falls within the clinically established range for intellectual-
functioning deficits.” Moore I, __ U.S. at __, 137 S.Ct. at 1050, 197 L.Ed.2d 416.
The Supreme Court held that because Moore’s score yielded a range of 69 to 79,
the state court “had to move on to consider Moore’s adaptive functioning.” Id. at
___, 137 S.Ct. at 1049. Here, the trial court erred in disregarding the SEM, thus
failing to recognize the lower end of the range in determining whether Ford’s
intellectual functioning was below average.
        {¶ 85} The concurring-dissenting opinion discounts Ford’s IQ scores
because only one score established an IQ range of 69 to 83. It adds that this IQ test
is “substantially outweighed” by the other tests and the unanimous view of all three




                                           21
                              SUPREME COURT OF OHIO




experts who determined that Ford is not intellectually disabled. Opinion concurring
in part and dissenting in part at ¶ 452. However, Ford’s higher performance on
other IQ tests did not allow the trial court to ignore an IQ score that falls at or below
70. See Moore at __, 137 S.Ct. at 1048, citing Hall, 572 U.S. at 721-724, 134 S.Ct.
1986, 188 L.Ed.2d 1007. As for the unanimity of expert opinion, the legal
determination of intellectual disability is distinct from a medical diagnosis. “[T]his
determination is informed by the views of medical experts,” but “[t]hese views do
not dictate the court’s decision.” Hall at 721.
                                 2. The Flynn Effect
        {¶ 86} Ford argues that the trial court erred when it failed to take the Flynn
Effect into account when evaluating his IQ scores.
        {¶ 87} “The Flynn Effect * * * is a ‘ “generally recognized phenomenon” ’
in which the average IQ scores produced by any given IQ test tend to rise over time,
often by approximately three points per ten years from the date the IQ test is initially
standardized.” Black v. Carpenter, 866 F.3d 734, 738 (6th Cir.2017), fn. 1, quoting
Ledford v. Head, N.D.Ga. No. 1:02-CV-1515-JEC 2008, WL 754486, *7, quoting
testimony. Thus, “[t]he SEM is distinct from the Flynn Effect.” Id. at 739, fn. 2.
        {¶ 88} In discussing the Flynn Effect, Dr. Connell explained that it would
have little impact on Ford’s IQ scores on the K-BIT2 and the WAIS-IV because
these were newer versions of the test when Ford took them. Dr. Connell stated that
the Flynn Effect would be most relevant to the K-ABC, because that test was
published in 1983 and administered to Ford in 2001. She stated that his IQ score
of 78 on the K-ABC would be approximately an IQ score of 72 if the Flynn Effect
was applied. Dr. Connell concluded that “even with considering the Flynn Effect,
* * * none of Mr. Ford’s IQ test results are consistent with a diagnosis of intellectual
disability.” However, as stated above, there is no indication that Dr. Connell
considered the SEM, which would have extended Ford’s IQ score on the K-ABC
into a lower range.




                                           22
                                 January Term, 2019




        {¶ 89} The trial court did not discuss the Flynn Effect when evaluating
Ford’s IQ scores. Neither the Hall nor the Moore decisions mention the Flynn
Effect or require its application. There is also no legal or scientific consensus that
requires an across-the-board downward adjustment to offset the Flynn Effect. See
Black at 746 (noting that Hall does not require that IQ scores be adjusted for the
Flynn Effect); McManus v. Neal, 779 F.3d 634, 653 (7th Cir.2015) (nothing in
Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, suggests that IQ scores
must be adjusted by the Flynn Effect); Smith v. Duckworth, 824 F.3d 1233, 1246
(10th Cir.2016) (“Hall says nothing about the application of the Flynn Effect to IQ
scores in evaluating a defendant’s intellectual disability”); but see Walker v. True,
399 F.3d 315, 322-323 (4th Cir.2005) (stating that on remand, the district court
should consider the Flynn Effect evidence).
        {¶ 90} The AAIDD recommends that in “cases in which a test with aging
norms is used as part of a diagnosis of [intellectual disability], a corrected Full Scale
IQ upward of 3 points per decade for age of the norms is warranted.” AAIDD,
User’s Guide at 23. Despite this recommendation, “Hall indicated that being
informed by the medical community does not demand adherence to everything
stated in the latest medical guide. But neither does our precedent license disregard
of current medical standards.” Moore I, __ U.S. at __, 137 S.Ct. at 1049, 197
L.Ed.2d 416.
        {¶ 91} We have not held that trial courts must apply the Flynn Effect to
adjust a defendant’s IQ score. But the Tenth District Court of Appeals has stated
that “a trial court must consider evidence presented on the Flynn effect, but,
consistent with its prerogative to determine the persuasiveness of the evidence, the
trial court is not bound to, but may, conclude the Flynn effect is a factor in a
defendant’s IQ score.” State v. Burke, 10th Dist. Franklin No. 04AP-1234, 2005-
Ohio-7020, ¶ 51; see also State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707,
23 N.E.3d 1023, ¶ 100 (based upon IQ scores and the Flynn Effect, trial court was




                                           23
                              SUPREME COURT OF OHIO




justified in inquiring into whether an evaluation of the defendant’s mental abilities
was appropriate).
        {¶ 92} We hold that the trial court should have discussed evidence
presented on the Flynn Effect, although it was in the trial court’s discretion whether
to include it as a factor in the IQ scores.
                               3. The Currency of Lott
        {¶ 93} Finally, Ford argues that the trial court used an outdated test in
finding that he did not have significant limitations in two or more adaptive skills.
        {¶ 94} In reviewing adaptive skills, the trial court stated that Dr. Karpawich
noted that Ford has “always had ‘significant issues’ in the area of social behavior.”
The trial court added:


        [Dr. Karpawich] indicated this area includes things like “being
        impulsive, not assuming responsibility, poor social judgment, not
        considering long-term consequences of his actions, reacting poorly
        when he becomes frustrated, not able to cope with stress, disrupting
        other people, acting out in the community. All these things have
        been increasingly evident over the years with Shawn, and these
        would all be considered adaptive behaviors.”


Despite these findings, the trial court applied the test developed in Lott, 97 Ohio
St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, and determined that Ford “could not
be characterized as having ‘significant limitations in two or more adaptive skills.’ ”
        {¶ 95} As discussed earlier, the current diagnostic standards require
significant deficits in any of the three adaptive-skill sets (conceptual, social, and
practical) in determining whether a defendant is intellectually disabled. See Moore
I, __ U.S. at __, 137 S.Ct. at 1046, 197 L.Ed.2d 416; AAIDD-11 at 43; DSM-5 at




                                              24
                                 January Term, 2019




37. Thus, the trial court used the wrong standard in finding that Ford did have not
significant limitations in his adaptive skills.
        {¶ 96} The concurring-dissenting opinion seeks to tweak Lott rather than
overrule what is an improper standard for assessing intellectual disability. The
opinion says that the evidence reflected the experts’ application of the current
standards and that any problem with Lott was not prejudicial to Ford. Opinion
concurring in part and dissenting in part at ¶ 450. In the context of a capital case,
we decline to glean this finding from the record. Lott requires a finding of
significant deficits in two or more adaptive-skill sets, but the current diagnostic
standards require significant deficits in any of the three adaptive-skill sets. Dr.
Karpawich applied the Lott test in conducting his diagnosis, and the trial court
applied the Lott test in determining that Ford was not intellectually disabled. Under
these circumstances, we have no confidence in the trial court’s determination based
on its application of an improper standard.
        {¶ 97} Lott is outdated in requiring a finding of “significant limitations in
two or more adaptive skills.” 97 Ohio St.3d 303, 2003-Ohio-6625, 779 N.E.2d 611,
¶ 12. Moreover, Lott’s holding that there is a rebuttable presumption that a
defendant is not intellectually disabled if his or her IQ score is above 70 is no longer
valid. IQ scores are imprecise and “should be read not as a single fixed number but
as a range.” Hall, 572 U.S. at 712, 134 S.Ct. 1986, 188 L.Ed.2d 1007.
        {¶ 98} As it did in Lott, it is appropriate for this court to provide guidance
to the trial court and other courts to apply going forward. The standard that was
recently adopted by the Supreme Court of Kentucky in Woodall v. Commonwealth,
563 S.W.3d 1 (Ky.2018) (recognizing that Moore I likely invalidated Kentucky’s
statutory definition of intellectual disability) provides such guidance. Id. at 6; see
Ky.Rev.Stat.Ann. 532.130(2).
        {¶ 99} The Supreme Court of Kentucky stated:




                                           25
                             SUPREME COURT OF OHIO




               In an attempt to provide guidance to courts confronting this
       issue, we shall attempt to fashion a rule. The U.S. Supreme Court
       in Moore favorably viewed what appears to be the “generally
       accepted,     uncontroversial     intellectual-disability   diagnostic
       definition,” * * * “which identifies three core elements: (1)
       intellectual-functioning deficits (indicated by an IQ score
       ‘approximately two standard deviations below the mean’—i.e., a
       score of roughly 70—adjusted for the ‘standard error of
       measurement’ [AAIDD-11 at 27]; (2) adaptive deficits (‘the inability
       to learn basic skills and adjust behavior to changing circumstances,’
       [Hall v. Florida, 572 U.S. ___, ___, 134 S.Ct. 1986, 1994, 188
       L.Ed.2d 1007 (2014)]); and (3) the onset of these deficits while still
       a minor.”


Woodall at 6-7, quoting Moore I, __ U.S. at __, 137 S.Ct. at 1045, 197 L.Ed.2d
4165; see also State v. Thurber, 308 Kan. 140, 420 P.3d 389, 450-452 (2018)
(severing portions of Kansas statutes that ran afoul of Moore I and Hall).
                                   D. Conclusion
       {¶ 100} Accordingly, we remand this matter to the trial court to properly
determine whether Ford is intellectually disabled. Lott’s holding that there is a
rebuttable presumption that a defendant is not intellectually disabled if his or her
IQ score is above 70 is no longer valid. For purposes of eligibility for the death
penalty, a court determining whether a defendant is intellectually disabled must
consider three core elements: (1) intellectual-functioning deficits (indicated by an
IQ score approximately two standard deviations below the mean—i.e., a score of
roughly 70 or lower when adjusted for the standard error of measurement, (2)
significant adaptive deficits in any of the three adaptive-skill sets (conceptual,
social, and practical), and (3) the onset of these deficits while the defendant was a




                                         26
                                January Term, 2019




minor. The trial court may consider expert testimony and appoint experts if
necessary in deciding this issue. The trial court shall make written findings and set
forth its rationale for finding the defendant intellectually disabled or not
intellectually disabled.
                              IV. Remaining Issues
       {¶ 101} We now address Ford’s remaining propositions of law. For ease of
discussion, we will address them out of turn.
                           A. Joinder of Offenses at Trial
       {¶ 102} In proposition of law No. VII, Ford argues that the trial court erred
by failing to grant the defense motion to sever the felonious-assault charge in Count
11 from the remaining charges.
       {¶ 103} “Two or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the offenses charged
* * * are of the same or similar character * * *.” Crim.R. 8(A). Crim.R. 8(A) also
allows the joinder of offenses that “are based on the same act or transaction, or are
based on two or more acts or transactions connected together or constituting parts
of a common scheme or plan, or are part of a course of criminal conduct.”
Permitting joinder “conserves resources by avoiding duplication inherent in
multiple trials and minimizes the possibility of incongruous results that can occur
in successive trials before different juries.” State v. Hamblin, 37 Ohio St.3d 153,
158, 524 N.E.2d 476 (1988).
       {¶ 104} “Notwithstanding the policy in favor of joinder,” Crim.R. 14
permits a defendant to request severance of the counts in an indictment “on the
grounds that he or she is prejudiced by the joinder of multiple offenses.” State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 49. The defendant
“has the burden of furnishing the trial court with sufficient information so that it
can weigh the considerations favoring joinder against the defendant’s right to a fair
trial.” State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). But even




                                         27
                             SUPREME COURT OF OHIO




if the equities appear to support severance, the state can overcome a defendant’s
claim of prejudicial joinder by showing either that (1) it could have introduced
evidence of the joined offenses as other acts under Evid.R. 404(B) or (2) the
“evidence of each crime joined at trial is simple and direct,” State v. Lott, 51 Ohio
St.3d 160, 163, 555 N.E.2d 293 (1990).
       {¶ 105} In his motion for severance, Ford argued that the offenses should
be severed because there was no evidence that the incidents were part of a common
scheme or plan or a course of criminal conduct and because the felonious assault
and murders involved different dates, locations, and victims. The state argued that
joinder was proper because the assault set a series of related events into motion and
helped to prove Ford’s motive and intent to commit the murders. The trial court
denied the motion, finding that “the events that occurred on March 23, 2013 were
connected to the events which took place on April 2, 2013.”
       {¶ 106} We review a trial court’s ruling on a Crim.R. 14 motion for an
abuse of discretion. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d
151, ¶ 166. A defendant who appeals the denial of relief bears a heavy burden:


       He must affirmatively demonstrate (1) that his rights were
       prejudiced, (2) that at the time of the motion to sever he provided
       the trial court with sufficient information so that it could weigh the
       considerations favoring joinder against the defendant’s right to a fair
       trial, and (3) that given the information provided to the court, it
       abused its discretion in refusing to separate the charges for trial.


State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). “Abuse of
discretion” has been defined as an attitude that is unreasonable, arbitrary, or
unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d
1248 (1985), citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).




                                         28
                                January Term, 2019




“A decision is unreasonable if there is no sound reasoning process that would
support that decision.”     AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
       {¶ 107} Ford fails to show that “no sound reasoning process” supported
joinder, and thus he fails to establish an abuse of discretion.
       {¶ 108} First, it is reasonable for the trial court to agree with the state that
the felonious assault of Chelsea set a series of related events into motion and helped
to prove Ford’s motive and intent to commit the aggravated burglary and murders.
Ford’s assault of Chelsea resulted in her hospitalization. Given the close proximity
of the offenses and the relationship of the victims, Ford has failed to demonstrate
that the trial court acted unreasonably.
       {¶ 109} Second, it was not unreasonable for the court to find that the
evidence of the felonious assault would have been admissible under Evid.R. 404(B)
as evidence of motive. Evid.R. 404(B) recognizes that evidence of other crimes
may “be admissible for * * * proof of motive, opportunity, intent, preparation, [or]
plan.” Evidence of the assault on Chelsea and her hospitalization was admissible
as tending to show Ford’s motive, opportunity, and intent in committing the
burglary and murders. Thus, even if these counts had been tried separately, the
state would have been allowed to present evidence of other acts—the assault and
hospitalization—to prove the opportunity and motive to commit the theft and
ultimately the aggravated murders. See State v. Brinkley, 105 Ohio St.3d 231,
2005-Ohio-1507, 824 N.E.2d 959, ¶ 34.
       {¶ 110} Third, the evidence of each crime was direct. Zachary, Joshua,
Chelsea, King, and Heather testified mainly about Chelsea’s assault,
hospitalization, and the subsequent investigation. The remainder of the testimony
focused on the murders. Although the evidence presented to prove the murders was
a bit more complex than the evidence presented to prove the assault, it was not
confusing. See id. at ¶ 37; State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54




                                           29
                             SUPREME COURT OF OHIO




N.E.3d 80, ¶ 64. Moreover, Ford admitted committing the assault and the murders.
A jury is capable of segregating the proof of multiple charges when, as in this case,
the evidence of each crime is uncomplicated. See State v. Clinton, 153 Ohio St.3d
422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 52.
       {¶ 111} Finally, Ford cites State v. Atkinson, 4 Ohio St.2d 19, 211 N.E.2d
665 (1965), in support of his argument that there was no overlap of evidence
between the two counts and each count could have been tried without reference to
the other. In Atkinson, the defendant was charged with one count of forging a
check, one count of uttering the check, and one count of carrying a concealed
weapon. Id. Because the checks and the concealed weapon, a blackjack, were
found in the defendant’s car during a traffic stop, the prosecutor argued that the
offenses arose out of the same investigation. Id. at 20. The trial court overruled
the defendant’s objection to joinder. This court reversed, holding that there is “no
proof or evidence * * * of any connection between the check counts and the
blackjack count in the commission of any offense.” Id. at 21. Here, as discussed
above, there is sound reasoning that connects the felonious assault of Chelsea and
a week later, the aggravated burglary and the murder of her parents. It is reasonable
that evidence of the felonious assault of Chelsea would have been admitted in the
murder trial. More important, Ford has not met his burden to show that the trial
court abused its discretion when it overruled his objection to joinder. Hand, 107
Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 166.
       {¶ 112} Based on the foregoing, we reject proposition of law No. VII.
                            B. Limitations on Voir Dire
       {¶ 113} In proposition of law No. IV, Ford argues that the trial court
improperly limited defense counsel from fully questioning prospective jurors about
possible mitigating evidence during voir dire. He primarily argues that defense
counsel should have been permitted to question prospective jurors about youth as a
mitigating factor.




                                         30
                                January Term, 2019




       {¶ 114} We have repeatedly held that a trial court is under no obligation to
allow counsel to question a prospective juror about specific mitigating factors. See
State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 152;
State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 59-60.
       {¶ 115} First, Ford argues that the trial court improperly sustained an
objection to the questioning of prospective juror No. 47, when defense counsel
asked: “Would you be willing to give meaningful consideration to things such as
age?” However, the trial court had earlier asked the same question. During
preliminary inquiry, the trial court informed juror No. 47 that jurors must
meaningfully consider any mitigating evidence and mentioned that “one example
of mitigating evidence might be the youth * * * of the defendant.” Juror No. 47
said she would be able to follow the law and give meaningful consideration to such
evidence. Thus, we conclude that the trial court did not improperly disallow the
question regarding age as it had already been asked.
       {¶ 116} Second, Ford complains about not being allowed to ask prospective
juror No. 25 about whether he would give meaningful consideration to the
defendant’s upbringing. The trial court initially sustained an objection to such
questioning.   But after defense counsel rephrased the question, juror No. 25
indicated that he would meaningfully consider such evidence. Accordingly, this
claim lacks merit.
       {¶ 117} Third, Ford argues that the trial court erred by not allowing defense
counsel to ask prospective juror No. 19: “Let’s say we introduced evidence that
Shawn is a young guy, he was 18 when this happened. Does that have any effect
on you?” The trial court sustained an objection to this question, stating: “The juror
cannot be asked to engage in the process, at this point not having heard any
evidence, or make commitments based on hypotheticals.” The trial court added:
“The question at hand is whether the juror would meaningfully consider any
mitigating evidence, whatever that may be. That’s the question.”




                                         31
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       {¶ 118} The trial court did not err in precluding this question. See State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 64. Moreover,
juror No. 19 was excused for other reasons before the trial-phase deliberations were
completed. Thus, no possible error occurred.
       {¶ 119} Ford also argues that “in the limited circumstances” when defense
counsel were permitted to mention age as a possible mitigating factor, they were
“never allowed” to determine whether the jurors would consider it. But the voir
dire questioning of the jurors who participated in the deliberations belies this claim.
The trial court defined mitigation and informed each of the participating jurors that
they must meaningfully consider any evidence that would mitigate against the
imposition of the death penalty. The trial court and/or the defense counsel also
informed each of those jurors that Ford’s youth was a mitigating factor and each of
them indicated that they would consider such evidence. Therefore, this claim also
lacks merit.
       {¶ 120} Based on the foregoing, we reject proposition of law No. IV.
                             C. Voir Dire Misstatements
       {¶ 121} In proposition of law No. V, Ford argues that during voir dire, the
trial court misstated the proper standard for voting on the death penalty and the
prosecutor made various misstatements about the aggravating circumstances,
mitigating evidence, and weighing process.
                           1. Trial Court’s Misstatements
       {¶ 122} Ford argues that, while individually questioning prospective jurors,
the trial court advised them that they would have to unanimously find that the
aggravating circumstances did not outweigh the mitigating factors before moving
on to one of the life-sentence options.
       {¶ 123} During individual voir dire, the trial court informed three
prospective jurors who later participated in deliberations that if the jury did not
unanimously find beyond a reasonable doubt that the aggravating circumstances




                                          32
                                  January Term, 2019




outweigh the mitigating factors, the jury could not return a verdict for the death
penalty. The trial court provided similar, but slightly different instructions to other
prospective jurors who participated in deliberations. For example, prospective
juror No. 39 was told:


               Now, if at the end of the mitigation part, the second trial, the
       jury decides beyond a reasonable doubt unanimously that the
       aggravating circumstances outweighed the mitigating factors or
       evidence, then the jury would be required to sign the verdict for the
       death penalty.
               ***
               Now, on the other hand, if * * * the jury decides * * * that
       the aggravating circumstances do not outweigh beyond a reasonable
       doubt the mitigating factors, then the jury could not impose or
       require a death penalty.


(Emphasis added.)
       {¶ 124} Because Ford did not object to the trial court’s comments, we
review these claims only for plain error. To prevail, Ford must show that an error
occurred, that the error was plain, and that but for the error the outcome of the trial
clearly would have been otherwise. State v. Mammone, 139 Ohio St.3d 467, 2014-
Ohio-1942, 13 N.E.3d 1051, ¶ 69.
       {¶ 125} It is error to require a jury to unanimously reject a death verdict
before considering one of the life-sentence options. State v. Brooks, 75 Ohio St.3d
148, 160, 661 N.E.2d 1030 (1996). But the trial court’s voir dire instructions did
not do that. The instructions that the trial court gave prior to the jury’s mitigation-
phase deliberations informed the jury that unanimity was not required before it
considered life options. These mitigation-phase instructions cured any earlier




                                          33
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misunderstandings on this point during voir dire. See State v. Thompson, 141 Ohio
St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 237. We hold that no plain error
occurred.
                           2. Prosecutor’s Misstatements
       {¶ 126} Ford argues that the prosecutor’s misstatements during voir dire
resulted in a jury that could not properly consider mitigation and engage in the
appropriate weighing process. However, except where noted, defense counsel
failed to object to the prosecutor’s comments and thus forfeited all but plain error.
       {¶ 127} Ford argues that during voir dire the prosecutor improperly (1)
referred to the aggravating circumstances as the “bad facts,” (2) called mitigation
“background stuff,” (3) equated the weighing process to “how much it matters to
you,” and (4) mentioned “I like that one” as a way to consider a mitigating factor
and “[t]hat doesn’t mean a thing to me” as a way to reject it.
       {¶ 128} The prosecutor’s shorthand references to the aggravating
circumstances, mitigating evidence, and the weighing process were casual and
imprecise. But no plain error occurred. Moreover, any misstatements by the
prosecutor were cured by the trial court’s instructions prior to the mitigation-phase
deliberations. See Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at
¶ 293; State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 147.
       {¶ 129} Defense counsel also objected during voir dire that the prosecutor
referred to mitigation as an excuse. See State v. Getsy, 84 Ohio St.3d 180, 200, 702
N.E.2d 866 (1998) (mitigating factors do not justify or excuse crimes). But the trial
court sustained objections to this line of questioning. Moreover, the trial court’s
later instructions cured any possible error. Dean at ¶ 293.
       {¶ 130} Based on the foregoing, we reject proposition of law No. V.




                                         34
                                January Term, 2019




                            D. Defense Jury Challenges
       {¶ 131} In proposition of law No. VI, Ford argues that the trial court erred
by failing to excuse eight prospective jurors who were “obviously biased” and
“predisposed to impose the death sentence.”
       {¶ 132} The United States Supreme Court and this court have long
recognized that a defendant’s right to a fair and impartial jury extends to capital
sentencing. Accordingly, “[a] prospective juror in a capital case may be excused
for cause if his views on capital punishment would ‘ “prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions
and his oath.” ’ ” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d
1173, ¶ 38, quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83
L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65
L.Ed.2d 581 (1980). If a juror would “automatically vote for the death penalty in
every case,” the juror cannot be fair and impartial because he or she “will fail in
good faith to consider the evidence of aggravating and mitigating circumstances as
the instructions require him to do.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct.
2222, 119 L.Ed.2d 492 (1992). “If even one such juror is empaneled and the death
sentence is imposed, the State is disentitled to execute the sentence.” Id.
       {¶ 133} When a defendant challenges a prospective juror for cause, the trial
court’s ruling “will not be disturbed on appeal unless it is manifestly arbitrary and
unsupported by substantial testimony, so as to constitute an abuse of discretion.”
State v. Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997).
       {¶ 134} We have also held that a “defendant in a criminal case cannot
complain of error in the overruling of a challenge for cause if such ruling does not
force him to exhaust his peremptory challenges.” State v. Eaton, 19 Ohio St.2d
145, 249 N.E.2d 897 (1969), paragraph one of the syllabus, death penalty vacated
on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750 (1972). Thus, “[i]f
the trial court erroneously overrules a challenge for cause, the error is prejudicial




                                         35
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only if the accused eliminates the challenged venireman with a peremptory
challenge and exhausts his peremptory challenges before the full jury is seated.”
(Emphasis sic.) State v. Tyler, 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990).
       {¶ 135} Of the eight challenged prospective jurors, two (jurors Nos. 39 and
72) were seated and three (jurors Nos. 25, 36, and 45) were excused through
peremptory challenges. The jury was seated before the remaining three prospective
jurors (jurors Nos. 103, 106, and 134) could have been selected. Defense counsel
used only five of Ford’s six peremptory challenges during jury selection.
                             1. Prospective Juror No. 39
       {¶ 136} On the death-penalty questionnaire, juror No. 39 circled an answer
stating that the death penalty was the “proper punishment in some cases, but not
the proper punishment in some other cases.”            She explained that “[e]very
circumstance is different. And it depends on the evidence.” During individual voir
dire, juror No. 39 stated that she believed in the death penalty, but added, “I don’t
believe it should be handed down in every case.” She also indicated that she would
meaningfully consider any mitigating evidence.
       {¶ 137} Juror No. 39 disclosed during questioning that her spouse was
convicted of murder in Summit County in 2003 and was imprisoned. But she
stated, “It is not going to affect my ability to be fair,” because “he was doing stuff
he had no business doing.” She added, “And, to me, this—it sat him down to get
himself together. That’s how I look at it.” Defense counsel challenged juror No.
39 for cause, arguing that her husband’s imprisonment “makes it difficult for her to
be fair and impartial.” The trial court overruled this challenge.
       {¶ 138} Ford contends that juror No. 39 was an automatic-death-penalty
juror because she stated, “I feel like if you are found guilty of a crime and that’s an
option, then I agree with it.” He also argues that juror No. 39 should have been
excused because her husband was in prison. We review this claim on the basis of




                                          36
                                January Term, 2019




plain error, because Ford failed to exercise all of his peremptory challenges. Dean,
146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 72.
       {¶ 139} Juror No. 39 assured the court that she would follow the law and
could consider a life sentence. Her responses on the death-penalty questionnaire
showed that she took a moderate view of the death penalty. Juror No. 39 also said
that her husband’s conviction and imprisonment would not influence her ability to
be fair. See State v. Allen, 73 Ohio St.3d 626, 629, 653 N.E.2d 675 (1995)
(prospective juror whose brother was a homicide victim was permitted to remain as
a capital juror after assuring the court that she could set her feelings aside and
remain impartial). We hold that the trial court committed no plain error by failing
to excuse juror No. 39.
                            2. Prospective Juror No. 72
       {¶ 140} On her death-penalty questionnaire, juror No. 72 stated, “I believe
in the death penalty.” She also circled an answer stating that the death penalty was
the “proper punishment in some cases, but not the proper punishment in some other
cases.” During individual voir dire, juror No. 72 expressed her willingness to
follow the law and meaningfully consider any mitigating evidence before
concluding whether a death-penalty verdict should be returned.
       {¶ 141} First, Ford claims that the trial court erred by not excusing juror
No. 72 because the state’s questioning diminished the value of mitigating evidence
by calling it “excuses.” At trial, defense counsel argued that this juror was
“irreparably harmed” by the prosecutor’s remarks, because they minimized any
potential mitigating evidence. The trial court overruled the defense challenge,
stating that juror No. 72 expressed her willingness to follow the law and
meaningfully evaluate the mitigating evidence. The trial court added, “I don’t
conclude that she has been tainted. The jury will be given instructions regarding
this topic on multiple occasions.” Additionally, the trial court sustained objections
to this line of questioning during voir dire. The trial court’s mitigation-phase




                                         37
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instructions also cured any earlier misstatements. Dean, 146 Ohio St.3d 106, 2015-
Ohio-4347, 54 N.E.3d 80, at ¶ 293.
       {¶ 142} Second, Ford argues that juror No. 72 demonstrated that she was
unduly biased by stating, “I think that there are some very sick individuals that can’t
be rehabilitated.”   Ford adds that when counsel asked a follow-up question
suggesting that juror No. 72 would not be open to mitigation, she stated, “So what,
is there a question there?” However, juror No. 72 stated that she would follow the
law, would meaningfully consider mitigating evidence, and could impose a life
sentence.   “The fact that the defense counsel was able to elicit somewhat
contradictory viewpoints from [this juror] during his examination does not, in and
of itself, render the court’s judgment erroneous.” State v. Scott, 26 Ohio St.3d 92,
98, 497 N.E.2d 55 (1986) “[D]eference must be paid to the trial judge who sees
and hears the juror.” Witt, 469 U.S. at 426, 105 S.Ct. 844, 83 L.Ed.2d 841.
       {¶ 143} Third, Ford argues that he was precluded from ascertaining juror
No. 72’s views about the death penalty because he was not allowed to ask whether
she believed in the notion that “if you take a life, you lose a life.” The trial court
sustained an objection to such questioning, stating: “Well, the question is whether
you could give meaningful consideration to any and all mitigating evidence.” Juror
No. 72 replied that she could.
       {¶ 144} Crim.R. 24 and R.C. 2945.27 afford both the prosecution and
defense the opportunity to conduct reasonable voir dire. Nevertheless, the scope of
voir dire falls within the trial court’s sound discretion and varies depending on the
circumstances of a given case. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767
N.E.2d 166, at ¶ 40. While restrictions on voir dire have generally been upheld,
any limits on voir dire must be reasonable. Jackson, 107 Ohio St.3d 53, 2005-Ohio-
5981, 836 N.E.2d 1173, at ¶ 48. Moreover, we will not find prejudicial error in a
trial court’s qualification of venirepersons as fair and impartial jurors unless the
defendant can show a clear abuse of discretion. Id.




                                          38
                                 January Term, 2019




        {¶ 145} The record belies Ford’s claim that the trial court unduly limited
defense questioning about juror No. 72’s views about the death penalty. Defense
counsel had earlier presented a hypothetical that mirrored the evidence in the
Schoberts’ murders. Juror No. 72 was then asked if that was “a case where [she]
would think that it’s automatic for the death penalty?” She responded that it was
not necessarily an automatic-death-penalty case, because “there may be mitigating
circumstances that * * * sway that decision.” Thus, we conclude that Ford fails to
show that the trial court abused its discretion in sustaining the state’s objection to
defense counsel’s later question about juror No. 72’s views.
        {¶ 146} Fourth, Ford invokes White v. Mitchell, 431 F.3d 517 (6th
Cir.2005), in arguing that prospective juror No. 72’s contradictory statements show
that she should have been excused for cause. Yet White is readily distinguishable.
Despite cursory statements that she could follow the law, the juror in White
repeatedly expressed doubt as to whether she could follow the law and stated that
“she did not think it would be fair to the defendant for her to sit on the jury.” Id. at
541. White presented a “particularly egregious situation in which an individual
desired to participate on a jury because she wanted to provide one of the twelve
votes for death against a particular defendant.” Trimble v. Bobby, 804 F.3d 767,
779 (6th Cir.2015). The voir dire of prospective juror No. 72 in this case contains
nothing comparable.
        {¶ 147} Ford also raises Wolfe v. Brigano, 232 F.3d 499 (6th Cir.2000), in
arguing that the trial court erred by accepting the juror’s tentative promises to try
to be fair and impartial. In Wolfe, one juror had an ongoing business relationship
with the victim’s parents, another juror and her husband were friends with the
victim’s parents whom they often visited, a third juror admitted that she would have
difficulty putting aside what she had gleaned from media reports in deciding the
case, and the fourth juror doubted that he would require the state to prove its case
beyond a reasonable doubt. Id. at 502-503. The trial court overruled defense




                                          39
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challenges for cause against these jurors. The United States Court of Appeals for
the Sixth Circuit reversed, holding that “it appear[ed] that the trial judge based his
findings of impartiality exclusively upon each juror’s tentative statements that they
would try to decide this case on the evidence presented at trial. Such statements,
without more, are insufficient.” Id. at 503.
       {¶ 148} Unlike in Wolfe, the trial court here did not overrule a challenge for
cause against juror No. 72 based only upon “tentative statements” that she would
try to be fair and impartial. Juror No. 72 assured the court that she would follow
the law before concluding whether a death-penalty verdict should be returned. She
also knew little about the murders, and there is no evidence that she knew the
victims or their family. Wolfe is dissimilar to the present case.
       {¶ 149} Finally, Ford argues that this court should not find waiver—that he
loses the right to challenge a juror not being removed when he had a peremptory
challenge he could have used to remove a juror—because there was only one
peremptory challenge that he did not use. He claims that if he had used that
peremptory challenge to remove either juror No. 39 or No. 72, he would still have
been faced with one biased juror sitting on the case. But nothing shows that these
jurors were unduly biased. Moreover, we have invoked the waiver rule in other
cases in which defense counsel used five of their six peremptory challenges. See,
e.g., State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2 864, ¶ 88.
Thus, we also reject this claim here.
       {¶ 150} In conclusion, the trial court committed no plain error in overruling
the challenge for bias against juror No. 72.
                      3. Prospective Juror Nos. 25, 36, and 45
       {¶ 151} Of the remaining challenged jurors, the defense excused
prospective juror Nos. 25, 36, and 45 with peremptory challenges.
       {¶ 152} Prospective juror No. 25 believed that the death penalty “fits” for
someone like Jeffrey Dahmer. However, prospective juror No. 25 stated that he




                                         40
                                January Term, 2019




would not automatically vote for the death penalty and would follow the court’s
instructions before deciding on a sentence. See State v. Trimble, 122 Ohio St.3d
297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 71.
       {¶ 153} Prospective juror No. 36 stated that the “circumstances of the crime
should possibly dictate whether or not a death penalty sentence has occurred. For
example, if it is a police officer, I think that’s automatic.” But prospective juror
No. 36 stated that he did not believe the death penalty was appropriate in every
case, he would follow the law, and he could impose a life sentence. Ford also
argues that the trial court erred in failing to excuse prospective juror No. 36 because
his answers during voir dire showed that he lacked the capability of doing the job
as a juror. However, when “a prospective juror is being challenged for bias,
‘[d]eference must be paid to the trial judge who sees and hears the juror.’ ” State
v. White, 82 Ohio St.3d 16, 20, 693 N.E.2d 772 (1998), quoting Witt, 469 U.S. at
426, 105 S.Ct. 844, 83 L.Ed.2d 841.
       {¶ 154} Prospective juror No. 45 believed that the death penalty is “one of
the greatest deterrents to crime.” He added, “I believe if a man is found guilty, and
beyond a shadow of a doubt, that he committed that crime with the intent to cause
bodily harm or death, then the death penalty should be considered.” Under further
questioning, prospective juror No. 45 told the court that he was not in favor of the
death penalty in every case and would follow the court’s instructions. Ford
challenged prospective juror No. 45, arguing that he should be excused because he
has a “proof problem” and “the only time that death is not going to be appropriate
punishment for him is when there is a problem with the State’s case in chief.” The
trial court overruled the challenge.
       {¶ 155} Ford argues that prospective juror No. 45 should have been excused
because of his confusion about the burden of proof. However, prospective juror
No. 45 later clarified that he equated the term “beyond a shadow of a doubt” with
“beyond a reasonable doubt.”       But the trial court was able to see and hear




                                          41
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prospective juror No. 45, Witt at 426, and therefore had “the benefit of observing
[the juror’s] demeanor and body language,” Williams, 79 Ohio St.3d at 8, 679
N.E.2d 646. Nothing in the record suggests that the trial court acted unreasonably
by believing this juror’s statement that he would follow the instructions.
       {¶ 156} We hold that the trial court’s denial of automatic-death-penalty
challenges of these prospective jurors did not constitute plain error.
                    4. Prospective Juror Nos. 103, 106, and 134
       {¶ 157} Ford objects to the trial court’s failure to excuse prospective juror
Nos. 103, 106, and 134, because he says they were automatic-death-penalty jurors.
However, Ford could not have suffered any prejudice, because the jury was seated
before any of them could have been selected as members of the jury. See Trimble,
122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 90.
       {¶ 158} Based on the foregoing, we reject proposition of law No. VI.
                                    E. Shackling
       {¶ 159} In proposition of law No. XV, Ford argues that the trial court erred
when it ordered that he be shackled without holding a hearing.
       {¶ 160} No one should be tried while shackled, absent unusual
circumstances. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837
N.E.2d 315, ¶ 219, citing Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25
L.Ed.2d 353 (1970). The use of restraints tends to erode the presumption of
innocence that the justice system attaches to every defendant. State v. Franklin, 97
Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 79. But it is widely accepted that
a prisoner may be shackled when there is a danger of violence or escape. State v.
Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 82. The decision
to require restraints is left to the sound discretion of the trial court, which is in a
position to consider the defendant’s actions both inside and outside the courtroom
as well as his demeanor while the court is in session. Id.




                                          42
                                 January Term, 2019




                               1. Rulings on Restraints
        {¶ 161} The trial court ordered that Ford be restrained at all proceedings
because he had expressed a desire to hurt himself and in order to protect people in
the courtroom in the event of a violent outburst.
        {¶ 162} In July 2013, Ford filed a pretrial motion requesting to appear at all
proceedings without restraints. Later that month, the trial court overruled the
motion, stating that Ford would be restrained at all proceedings but would “appear
without visible restraints during his trial.”
        {¶ 163} After the trial court’s ruling on the motion to appear without
restraints, Ford was placed on suicide watch at the jail. Dr. Byrnes, who examined
Ford during a competency evaluation, sent a letter to the court in August stating
that Ford’s “incarceration has been stressful. He has expressed suicidal ideation
and suicidal precautions have been implemented in the jail.” At a pretrial hearing
that month, Ford complained about being on suicide watch and forced to wear a
padded gown. Defense counsel acknowledged that Ford mentioned “jumping over
the railing after court and things like that.” When asked about these comments,
Ford told the trial court, “I really will end up doing it. Like, if I got to be in [the
mental-health unit] for * * * the rest of this week, I am going to do it. Like, I don’t
care any more.”
        {¶ 164} At a pretrial hearing in November 2013, the trial court stated that
“at any point where Mr. Ford could be seen by any member of a jury, he will be
seen only in street clothes in accordance with the normal procedures. There will be
restraints underneath those clothes, again, consistent with normal procedures.”
        {¶ 165} Nearly one year later, in October 2014, the trial court filed an
updated ruling on Ford’s motion to appear without restraints, stating:




                                           43
                              SUPREME COURT OF OHIO




        This case involves the alleged brutal and violent attacks by
        defendant on three different individuals, two of whom died as a
        result of the attacks. * * *
                * * * Given the violent nature of the crimes and the
        defendant expressing a desire to harm himself, the court found that
        extra security measures were necessary in this case. * * *
                ***
                As indicated in its July 26, 2013 journal entry, the defendant
        will be restrained during the jury trial of this case but his restraints
        will not be visible to the jury. The court finds that such restraints
        are necessary in part to prevent defendant from attempting suicide
        in the courthouse but also to protect spectators and others in the
        event of a violent outburst by defendant.


                                       2. Analysis
        {¶ 166} Ford argues that the trial court should have conducted an
evidentiary hearing before ordering him placed in restraints. But a hearing on the
necessity of restraints was not required. See State v. Wilks, 154 Ohio St.3d 359,
2018-Ohio-1562, 114 N.E.3d 1092, ¶ 108; Franklin, 97 Ohio St.3d 1, 2002-Ohio-
5304, 776 N.E.2d 26, at ¶ 82. Moreover, before the trial began, the trial court made
findings that Ford’s threats to hurt himself and the violent nature of the crimes were
the basis for ordering restraints.
        {¶ 167} Ford objects that the trial court’s order was unsupported by
testimony from jail personnel or statements from defense counsel that Ford was a
suicide risk or danger to others. However, the trial court had observed Ford’s
demeanor in court. Dr. Byrnes reported that Ford expressed “suicidal ideation” and
that “suicidal precautions [had] been implemented in the jail.” Defense counsel
also acknowledged that Ford had made suicidal comments to them, and Ford told




                                           44
                                January Term, 2019




the court that he meant those remarks. Thus, there was adequate information before
the court to support its ruling. See Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914,
12 N.E.3d 1112, at ¶ 96.
       {¶ 168} Ford cites Neyland at ¶ 105 in arguing that the trial court should
have considered lesser alternatives to the use of restraints. In Neyland, we held that
the trial court should have considered whether there were lesser alternatives to the
use of leg restraints to provide adequate courtroom security. Id. But we rejected
the claim of improper shackling, stating:


       [T]he trial court used restraints that were not visible to the jury rather
       than shackles or other visible types of restraints. Even though the
       record is unclear, it appears that the trial court considered the
       presence of deputies and the use of leg restraints as the least form of
       restraint necessary to ensure courtroom security.


(Emphasis sic.) Id. at ¶ 105.
       {¶ 169} Here, the trial court stated, “Given the violent nature of the crimes
and the defendant expressing a desire to harm himself, the court found that extra
security measures were necessary in this case.” (Emphasis added.) This implies
that the trial court did consider lesser measures before ordering restraints. Even
assuming that the trial court did not consider lesser measures, nothing in the record
shows that the jurors saw Ford in restraints, so Ford suffered no prejudice.
       {¶ 170} Ford contends that it is not apparent from the record what kind of
restraints he was wearing during the trial. Although the exact type of restraints
were not identified, the trial court’s statements indicated that Ford would wear
restraints underneath his clothing that were not visible to the jury. Nothing in the
record shows that the jury ever observed Ford in restraints. Thus, we conclude that




                                          45
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he was not prejudiced. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d
1112, at ¶ 108.
         {¶ 171} Finally, Ford argues that it is unclear whether restraints limited his
ability to interact with counsel during trial. However, the defense never asserted
that restraints interfered with the attorney-client relationship. He has thus forfeited
all but plain error. Id. at ¶ 106. Both of Ford’s hands were free throughout trial.
Ford also does not complain that the restraints interfered with his ability to follow
the proceedings and interact with counsel. See id. at ¶ 107. Accordingly, we
conclude that no plain error occurred.
         {¶ 172} Based on the foregoing, we reject proposition of law No. XV.
                F. Admissibility of Defendant’s Statements to the Police
         {¶ 173} In proposition of law No. I, Ford argues that he was not properly
advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), and that his statements were involuntary because of
police coercion and the use of an informant to obtain them. He also argues that
police testimony about information obtained from an informant violated his Sixth
Amendment right to confrontation and Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004).
                                    1. Factual Background
         {¶ 174} Before trial, Ford moved to suppress three statements that he made
to the police on April 2, 3, and 4, 2013.4 At the suppression hearing, Detectives
Morrison and Hitchings testified that they conducted videotaped interviews of
Ford, and all three recordings were played during the hearing. At the completion
of the hearing, the trial court denied Ford’s motion to suppress.



4. Ford was also interviewed about Chelsea’s attack. Ford was not advised of his Miranda rights
before that interview because there was no indication at that time that Ford was involved in her
assault. Ford does not challenge the voluntariness of those statements or the failure to read him his
Miranda rights as to that interview.




                                                 46
                               January Term, 2019




                                a. April 2 interview
       {¶ 175} On April 2, 2013, Ford was interviewed at the Akron police
department after the Schobert murders. Before questioning began, Morrison orally
advised Ford of his Miranda rights as written on a pre-interview card, stating:


       You have the right to remain silent. Do you understand that?
       Anything you say can and will be used against you in a court of law.
       Do you understand that? You have the right to talk to a lawyer and
       have him or her present with you while you are being questioned.
       Do you understand that? If you cannot afford to hire a lawyer, one
       will be appointed to represent you before any questioning if you
       wish. Do you understand that? You can decide anytime to exercise
       these rights and not answer any questions or make any statements.
       Do you understand that?


Ford indicated that he understood each of these rights.
       {¶ 176} During the interview, Ford denied committing the murders. He
stated that he had not been to the Schoberts’ house for two weeks.
                                b. April 3 interview
       {¶ 177} On April 3, Hitchings was informed that Ford had given Beech, a
fellow inmate, information about the whereabouts of evidence related to the
murders. Based on that information, the police found Jeffrey’s car on an Akron
street and gloves, a knife, and other evidence in a nearby storm drain.
       {¶ 178} Later that day, Hitchings and Morrison talked to Ford at the Portage
County jail. Ford was in jail on a warrant for lying about Chelsea’s assault.
Morrison advised Ford of his Miranda rights in the same manner as he had on the
previous day. Once again, Ford indicated that he understood each of these rights.




                                         47
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        {¶ 179} At the start of the interview, Morrison told Ford that they found the
stolen car, that they had searched the sewers and found the gloves, and that they
had his shoes with everybody’s blood on them. Ford replied that he did not kill
anybody. Morrison told Ford that they already knew that Chelsea’s blood and the
Schoberts’ blood were on his shoes. Morrison added, “It’s amazing when you know
people at BCI how fast you can get this * * * tested.”
        {¶ 180} As Ford continued to deny the murders, Morrison said, “I was kind
of hoping we could come here and get you ahead of the ball because right now the
question is gonna come up very shortly, when they ask us how cooperative was he.
Because when we go to grand jury, it’s gonna be a decision on agg. murders or
death penalties.”
        {¶ 181} The police also told Ford that his conversations with Beech about
the details of the murder had been videotaped. Morrison added that nothing the
police were telling him was a lie. Ford denied that he told Beech that he committed
the murders. Morrison then said, “You’re looking at automatic death penalty.”
        {¶ 182} Ford repeated that he did not kill the Schoberts. Morrison then said
that they found his DNA on the latex gloves in the sewer. Ford said, “[T]his is life
in jail.” Morrison responded, “You need to quit looking at it like there’s no
possibility for you here. Because the possibility is here for you but it’s not gonna
be there if you sit here and lie.” Hitchings then discussed the different life sentences
for murder.
        {¶ 183} After more than 20 more minutes elapsed, Ford told Morrison that
he broke into the Schoberts’ home with Zachary and Malik. He said that Zachary
killed them both. He also stated that Zachary had had Jeffrey’s cell phone and used
it to text Margaret. The text messages were used to gauge what time Margaret
would return home.




                                          48
                                January Term, 2019




                                c. April 4 interview
       {¶ 184} On April 4, the police reinterviewed Ford at the Portage County
jail. Hitchings advised Ford of his Miranda rights in the same manner that Ford
had been advised on the previous occasions. But Hitchings added, “Having those
rights in mind that I’ve explained to you, do you wish to talk to us now?” Ford
waived his rights and agreed to be interviewed.
       {¶ 185} During this interview, Ford admitted killing the Schoberts.
                                    2. Analysis
                        a. Sufficiency of Miranda warnings
       {¶ 186} A suspect in police custody “must be warned prior to any
questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires.” Miranda, 384 U.S. at 479, 86 S.Ct. 1602, 16 L.Ed.2d
694.
       {¶ 187} A suspect may then knowingly and intelligently waive these rights
and agree to make a statement. Id. In the context of Miranda, the United States
Supreme Court has explained the two aspects of waiver:


       First, the relinquishment of the right must have been voluntary in
       the sense that it was the product of a free and deliberate choice rather
       than intimidation, coercion, or deception. Second, the waiver must
       have been made with a full awareness of both the nature of the right
       being abandoned and the consequences of the decision to abandon
       it.   Only if the “totality of the circumstances surrounding the
       interrogation” reveal both an uncoerced choice and the requisite
       level of comprehension may a court properly conclude that the
       Miranda rights have been waived.




                                         49
                              SUPREME COURT OF OHIO




Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986),
quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197
(1979).
          {¶ 188} Ford argues that the police never secured a valid waiver of his
Miranda rights, because they did not specifically ask him whether he wanted to
waive his rights and speak to them before the interrogation began. However, a
Miranda waiver need not be expressly made in order to be valid. North Carolina
v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). A court may
infer a waiver from a suspect’s behavior, viewed in light of the surrounding
circumstances. See State v. Murphy, 91 Ohio St.3d 516, 518, 747 N.E.2d 765
(2001).
          {¶ 189} During the three days that he was questioned, Ford’s videotaped
statements show that he was alert and sober when he was advised of his rights. He
did not ask for a further explanation or protest that he did not understand his rights.
He demonstrated his ability to express his thoughts and recall his actions. We are
not persuaded that police used coercive tactics to obtain the waiver. See id. at 519.
Finally, Ford’s argument does not apply to his third interview, because he was
specifically asked whether he wanted to talk to the police after being advised of his
rights.
          {¶ 190} Although not raised at the suppression hearing, the record shows
that Ford’s IQ scores are low. However, deficient intelligence is but one factor in
the totality of the circumstances that must be considered in determining the
voluntariness of a confession. While a defendant’s mental condition is a significant
factor in the voluntariness calculus, it “does not justify a conclusion that a
defendant’s mental condition, by itself and apart from its relation to official
coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.’ ”
Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).




                                          50
                                January Term, 2019




       {¶ 191} We conclude that Ford was capable of voluntarily waiving his
rights despite his low intelligence. See State v. Lynch, 98 Ohio St.3d 514, 2003-
Ohio-2284, 787 N.E.2d 1185, ¶ 56 (voluntary confession from an accused with an
IQ score of 72 and no records of a major mental disorder); State v. Bays, 87 Ohio
St.3d 15, 23, 716 N.E.2d 1126 (1999) (voluntary confession from an accused with
an IQ score of 71, but who had done well in school and finished the tenth grade);
State v. Dailey, 53 Ohio St.3d 88, 91-92, 559 N.E.2d 459 (1990) (voluntary
confession from an 18-year-old accused with an IQ score of 71).
       {¶ 192} Based upon the totality of the circumstances, we hold that Ford
validly waived his Miranda rights.
                                  b. Voluntariness
       {¶ 193} Ford argues that his police statements were involuntary because of
police coercion and the use of an informant to obtain them.
                                 (1) Police coercion
       {¶ 194} If a defendant challenges a confession as involuntary, the state must
prove a knowing, intelligent, and voluntary waiver by a preponderance of evidence.
See Miranda, 384 U.S. at 475, 86 S.Ct. 1602, 16 L.Ed.2d 694; Connelly, 479 U.S.
at 168-169, 107 S.Ct. 515, 93 L.Ed.2d 473. Voluntariness of a confession is
determined by “the totality of the circumstances, including the age, mentality, and
prior criminal experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the
existence of threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d
1051 (1976), paragraph two of the syllabus, death penalty vacated on other
grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). However, a waiver
will not be deemed to be involuntary “unless there is evidence of police coercion,
such as physical abuse, threats, or deprivation of food, medical treatment, or sleep.”
(Emphasis sic.) State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d
557, ¶ 35.




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       {¶ 195} First, Ford argues that his statements were involuntarily obtained
because the detectives lied to him about the evidence. The detectives did mislead
Ford by telling him that BCI had tested the evidence and identified his DNA on the
shoes and gloves and that his conversations with Beech had been recorded.
       {¶ 196} The tactic of lying to a suspect about the evidence is not in itself
sufficient to render a confession involuntary. See Frazier v. Cupp, 394 U.S. 731,
737-739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (false statement that a codefendant
had confessed did not make statement involuntary); Ledbetter v. Edwards, 35 F.3d
1062, 1066, 1070 (6th Cir.1994) (false statements that defendant’s fingerprints had
been found at crime scene and that the victim and two witnesses had identified him
did not render confession involuntary); Bays, 87 Ohio St.3d at 22-23, 716 N.E.2d
1126 (misleading defendant about the strength of the evidence against him did not
make confession involuntary). However, the fact that the detectives misrepresented
the evidence is a relevant factor in evaluating whether the totality of the
circumstances renders the confession involuntary. Frazier at 739.
       {¶ 197} Second, Ford contends that the detectives coerced his confession
by telling him that they would be asked to comment on Ford’s cooperativeness
when the case was presented to the grand jury, because it would be a factor in
deciding whether to charge him with aggravated murder or the death penalty.
       {¶ 198} “Officers may discuss the advantages of telling the truth, advise
suspects that cooperation will be considered, or even suggest that a court may be
lenient with a truthful defendant.” State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-
1581, 74 N.E.3d 319, ¶ 111, citing Edwards, 49 Ohio St.2d at 41, 358 N.E.2d 1051.
And “[a]dmonitions to tell the truth are considered to be neither threats nor
promises.” State v. Loza, 71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994); see also
State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 29.
Finally, it is not unduly coercive for a law-enforcement officer to mention potential
punishments. See State v. Western, 2015-Ohio-627, 29 N.E.3d 245, ¶ 38 (2d Dist.);




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                                January Term, 2019




compare State v. Robinson, 9th Dist. Summit No. 16766, 1995 WL 9424, *4
(“While a correct statement of the law may not render a confession involuntary, a
misstatement of the law may cause such a confession to be involuntary”).
       {¶ 199} Here, contrary to Ford’s claims, the detectives did not promise
leniency if he confessed or threaten death if he did not. Instead, detectives
presented him with the opportunity to clarify the facts of the case, so that the
prosecutor could better determine whether an aggravated-murder charge was
proper. See Western at ¶ 42 and 46. Moreover, detectives did not misstate the law
in telling him that the death penalty was a potential punishment for the murders.
See Bays, 87 Ohio St.3d at 23, 716 N.E.2d 1126.
       {¶ 200} Third, Ford complains that police told him that the possibility of a
lesser sentence was available for him but not if he continued to lie to them.
Hitchings was admonishing Ford simply to tell the truth, and such comments were
not unduly coercive. See State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895
(1989); State v. Knight, 2d Dist. Clark No. 04-CA-35, 2008-Ohio-4926, ¶ 111
(officer’s assertion to a suspect that he or she is lying or that the suspect would not
have another chance to tell his or her side of the story does not automatically render
a confession involuntary).
       {¶ 201} Fourth, Ford complains that officers told him that he was looking
at an “automatic” death penalty. Under R.C. 2929.03(D)(2) and (3), the death
penalty is never automatic. See generally Woodson v. North Carolina, 428 U.S.
280, 301, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). A brief reference to the death
penalty does not, by itself, render a subsequent confession involuntary when the
statement merely illustrates the seriousness of the crime and the defendant’s will
was not overborne as a result of the statement. State v. Garner, 260 Neb. 41, 50,
614 N.W.2d 319 (2000). The Supreme Court of California has held that “[a]
constitutional violation arises ‘only where the confession results directly from the
threat [capital] punishment will be imposed if the suspect is uncooperative, coupled




                                          53
                             SUPREME COURT OF OHIO




with a “promise [of] leniency in exchange for the suspect’s cooperation.” ’ ”
(Emphasis added and brackets sic.) People v. Winbush, 2 Cal.5th 402, 453, 213
Cal.Rptr.3d 1, 387 P.3d 1187 (2017), quoting People v. Holloway, 33 Cal.4th 96,
116, 14 Cal.Rptr.3d 212, 91 P.3d 164 (2004), quoting People v. Ray, 13 Cal.4th
313, 340, 52 Cal.Rptr.2d 296, 914 P.2d 846 (1996).
       {¶ 202} After reviewing the video of Ford’s interview, we are not persuaded
that the detectives’ references to the death penalty were threats or that their remarks
resulted in Ford’s will being overborne. First, Ford continued to deny the murders
after the “automatic death penalty” comment. The video shows that other officers
consistently encouraged Ford to tell the truth and to be truthful about his
involvement or any details he knew about the murders. Ford responded, “This is
life in jail,” and later added, “[M]urder ain’t no way around it, that’s life
regardless.” In other words, Ford expressed concern about life sentences and not
the death penalty. Thus, we hold that the “automatic death penalty” comment did
not render Ford’s subsequent confession involuntary.
       {¶ 203} As a final matter, Ford cites various cases to show that his
statements were involuntary. However, these cases are readily distinguishable. See
Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)
(suspect told he would be allowed to call his wife only if he cooperated and gave
the police a statement); Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d
290 (1978) (suspect questioned while in intensive-care unit, encumbered by tubes,
needles, and breathing apparatus); Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917,
9 L.Ed.2d 922 (1963) (suspect threatened with the removal of state financial aid
and of her children if she did not cooperate); United States v. Tingle, 658 F.2d 1332
(9th Cir.1981) (suspect coerced into confessing by threats that she would not see
her child for a long time if she did not cooperate); Williams v. Brewer, 509 F.2d
227 (8th Cir.1974) (telling defendant of need to locate victim’s body and give her
a Christian burial, after defendant’s attorney told law enforcement defendant should




                                          54
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not be questioned while he was being transported, violated right to counsel and
rendered statements involuntary), aff’d, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d
424 (1977).
       {¶ 204} Based on the totality of the circumstances, we conclude that Ford’s
police statements were voluntarily made.
                   (2) Ford’s statements to jailhouse informant
       {¶ 205} Ford argues that his statements were involuntary because they were
coerced through the use of a government informant.
       {¶ 206} Ford and Beech were housed in the Portage County jail together.
Beech was described as a “frequent visitor” in jail and was there on a burglary
charge. Lt. Gregory Johnson, a Portage County Deputy Sheriff, testified that he
was informed by a corrections officer on April 3 that Beech wanted to talk to him.
Johnson testified that Beech told him, “There is an inmate I am housed with that’s
been talking to me, and I think he was involved in a murder.” Beech then provided
information that linked Ford to the Schobert murders.
       {¶ 207} Prior to speaking to Beech, Johnson testified that he had no
information about Ford other than what he read in the Akron Beacon Journal. He
stated that Beech had not been asked to provide information about Ford. After
providing the information, Beech indicated to Johnson that “he would appreciate if
[Johnson] could make sure that the Court knew of his * * * cooperation, that he had
come forward on his own.” Johnson told Beech that he could not make any
promises to him other than making sure that the prosecution and his attorney knew
about his assistance. Johnson added that Beech had never been a source of
information about other cases.
       {¶ 208} Hitchings testified that detectives never called any officials in
Portage County about Ford or the Schobert murder case before being informed
about Beech’s information. He added that he was not aware of any promises or
inducements to obtain Beech’s assistance. Beech did not testify at trial.




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       {¶ 209} In Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473, the
Supreme Court addressed the constitutional voluntariness of a statement made
under circumstances not requiring Miranda warnings. The court held that coercive
police activity is a necessary predicate to the finding that a statement is not
“voluntary” within the meaning of the due-process clause. Id. at 167. Thus, the
voluntariness analysis must focus on the crucial element of police overreaching.
See People v. Manning, 182 Ill.2d 193, 208, 695 N.E.2d 423 (1998).
       {¶ 210} Nothing in the record shows that Beech was acting as a state agent
when talking to Ford. Indeed, during the suppression hearing, defense counsel
acknowledged that they had no information showing that Beech was an agent. And
although Beech may have been seeking more lenient treatment in his own case, he
requested these favors only after repeating Ford’s statements to the police. See Bell
v. Bell, 512 F.3d 223, 233-234 (6th Cir.2008) (fact that an informant desired
favorable treatment in return for his testimony does not, standing alone,
demonstrate the existence of an implied agreement). There is no evidence of police
overreaching.
       {¶ 211} We also reject Ford’s claim that Arizona v. Fulminante, 499 U.S.
279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), shows that his statements to Beech
were involuntary. In Fulminante, the state used an inmate, who was a paid FBI
informant, to elicit a confession from the defendant that was used to convict him.
Id. at 283. On appeal, the Arizona Supreme Court had held that Fulminante’s
confession was coerced. Id. at 284. The United States Supreme Court agreed with
this conclusion. Id. at 287. Unlike in Fulminante, however, Beech was not acting
as a state agent when talking to Ford. Accordingly, we hold that Ford’s statements
to Beech were voluntary.
                              c. Confrontation Clause
       {¶ 212} Ford argues that the trial court erred in permitting Hitchings to
testify about Johnson’s conversation with Beech, because it was inadmissible




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                                January Term, 2019




hearsay and violated his Sixth Amendment right to confrontation. However, Ford
failed to object to Hitchings’s testimony at trial and thus has forfeited all but plain
error.
         {¶ 213} Ford complains about the following segment of Hitchings’s
testimony:


                [HITCHINGS]: We received a phone call from Lieutenant
         Greg Johnson from the Portage County Sheriff’s Office. He is in
         charge of their Detective Bureau.
                [MR. LOPRINZI (prosecutor)]: All right. And in regards to
         him calling, what was it that he was calling about?
                [HITCHINGS]: I mean, he had called and relayed some
         information to us. And as a result of some information, we ended
         up checking some areas in Akron, and we ended up locating a—our
         stolen vehicle.


         {¶ 214} Ford invokes Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177, in arguing that this testimony violated the Confrontation Clause, found in the
Sixth Amendment to the United States Constitution. In Crawford, the Supreme
Court held that the admission of testimonial statements made by a witness who did
not appear at trial violates the Confrontation Clause, unless the witness “was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Id. at 53-54. Only testimonial hearsay implicates the Confrontation
Clause. See id. at 59, fn. 9; State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, 70 N.E.3d 508, ¶ 186.
         {¶ 215} Hitchings’s testimony was not hearsay because he was explaining
the next investigative step in the case. Testimony offered to explain police conduct
is admissible as nonhearsay if it satisfies three criteria: (1) “the conduct to be




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explained [is] relevant, equivocal, and contemporaneous with the statements,” (2)
the probative value of the statements is not substantially outweighed by the danger
of undue prejudice, and (3) “the statements cannot connect the accused with the
crimes charged.” State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d
1181, ¶ 27. Hitchings’s testimony met these criteria. The testimony was relevant
in explaining the next investigative step in the search for Jeffrey’s vehicle, it did
not connect Ford with the crimes, and it was not unduly prejudicial. Accordingly,
Hitchings’s testimony did not implicate Ford’s confrontation rights or violate
Crawford. We hold that no plain error occurred.
       {¶ 216} Based on the foregoing, we reject proposition of law No. I.
                      G. Impeachment of Heather Greathouse
       {¶ 217} In proposition of law No. X, Ford argues that the state improperly
impeached Heather Greathouse with her prior recorded statement and improperly
played that statement for the jury’s consideration.
                              1. Factual Background
       {¶ 218} Heather testified that in early April 2013, Ford was living with her
in Akron. Heather did “not really” talk to Ford about Chelsea’s assault, and he
never indicated any involvement in causing her injuries. Heather did not remember
Ford being home on the evening of April 1, but she said Ford came home the next
day. Heather indicated that she did “not really” talk to Ford that day and said that
Ford never talked to her about what happened to the Schoberts.
       {¶ 219} Heather acknowledged giving a statement to detectives in April
2013 and said it was truthful when she made it. But she did not remember whether
she talked to Ford about the Schoberts before making her statement. The prosecutor
then asked the following questions:


               [MR.    LOPRINZI (prosecutor)]:        Do    you   remember
       reviewing your interview last night from back in April?




                                         58
                                January Term, 2019




                [HEATHER]: Yes.
                [LOPRINZI]: Okay. And do you recall telling the detectives
       that you had a conversation with Mr. Ford about the Schoberts?
                [HEATHER]: Yes.
                [LOPRINZI]: All right. What conversation did you have
       with * * * Mr. Ford about the Schoberts back in—prior to their
       death?
                [HEATHER]: I have no clue.


       {¶ 220} Outside the jury’s presence, the prosecutor stated his intention to
impeach Heather, because he was “surprised” and “[i]t is a material issue in the
case.” The prosecutor told the court that Heather informed detectives that “she had
a conversation with Mr. Ford in which he had talked about killing [Chelsea’s]
parents ever since Chelsea was injured because they were starting to piece things
together.” The prosecutor added that detectives had talked to Heather the previous
day and played her recorded interview to her and that she recalled what she said in
her statement. Defense counsel objected, stating that Heather’s lack of memory
was not grounds for turning her into a hostile witness. The trial court overruled that
objection.
       {¶ 221} While still outside the jury’s presence, defense counsel objected
that the prosecutors played the recorded interview in the courtroom where it was
plainly audible to everyone. The defense stated that “it was unquestionably heard
by Ms. Greathouse” and “this witness has now been irreparably tainted by having
an opportunity to hear * * * a significant segment of her interview.” The defense
argued that she was now an incompetent witness. The prosecutor responded that
Heather had listened to the recording the previous night and it did not matter if she
heard it again. Moreover, the prosecutor did not think Heather heard the recording




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when it was played in court, because “I couldn’t hear it myself.” The trial court
overruled the defense objection.
       {¶ 222} The prosecutor told the court that he was amenable to trying to
refresh Heather’s recollection before proceeding to impeach her. But defense
counsel objected that the prosecutor had improperly refreshed her recollection
outside the presence of counsel and the court. Heather told the court that she heard
only “bits and pieces” of the recording that was played in the courtroom and that
what she heard did not refresh her memory.
       {¶ 223} Over defense objection, the state proceeded to impeach Heather by
playing a portion of her videotaped interview with Hitchings for the jury. After the
video was played, Heather said that she had not remembered what Ford told her
about the Schoberts, because “[her] memory stinks.” However, Heather stated that
her recollection might be refreshed as to her conversation with Ford about Chelsea.
Over defense objection and outside the jury’s presence, Heather watched a segment
of her videotaped interview to refresh her recollection.
       {¶ 224} When questioning resumed before the jury, Heather testified that
her memory had been refreshed about her conversation with Ford about Chelsea.
She testified that Ford told her he stabbed Chelsea, hit her in the head with a brick,
and would have killed her if Zachary had not intervened. Heather also testified that
Ford told her that he was going to “hit a lick” and she told him “not to go kill them
people.” She said Ford was not home on the evening of April 1, but she saw him
around noon the next day. She also identified the bloody pants that Ford “wore the
night that he went and killed the Schoberts” and testified that she told her boyfriend
to burn them. Heather added that Ford returned with two rings and some money.
                                     2. Analysis
       {¶ 225} Ford argues that the trial court erred by allowing the prosecutor to
impeach Heather by playing her videotaped interview before the jury.




                                         60
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       {¶ 226} Under Evid.R. 607(A), “[t]he credibility of a witness may be
attacked by any party except that the credibility of a witness may be attacked by
the party calling the witness by means of a prior inconsistent statement only upon
a showing of surprise and affirmative damage.”
       {¶ 227} Playing Heather’s videotaped statement before the jury violated
Evid.R. 607(A). First, the state used a statement that did not contradict her in-court
testimony. Second, Heather did not cause affirmative damage by testifying “I have
no clue” when asked about Ford’s statement. Her response was neutral and
provided no basis for impeachment. See State v. Keenan, 66 Ohio St.3d 402, 412,
613 N.E.2d 203 (1993); State v. Hubbard, 150 Ohio App.3d 623, 2002-Ohio-6904,
782 N.E.2d 674, ¶ 13 (7th Dist.) (“in determining affirmative damage, a response
of ‘I don’t recall,’ which is a neutral response, is not enough for damage. * * *
Instead, the statement must be contradictory or harm[ ] the state’s trial position”).
       {¶ 228} Furthermore, even if it had been proper for the state to impeach
Heather’s testimony, a prior inconsistent statement is admissible under Evid.R. 607
only to impeach the declarant and not as substantive evidence offered to prove the
truth of the matter asserted. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70
N.E.3d 508, at ¶ 128; State v. Dick, 27 Ohio St.2d 162, 165, 271 N.E.2d 797 (1971).
There was no other basis for presenting Heather’s videotaped interview because it
was otherwise objectionable hearsay. Accordingly, we conclude that Heather’s
videotaped interview was improperly presented for the jury’s consideration.
       {¶ 229} We now turn to whether Heather’s videotaped interview was
properly presented to refresh her recollection under Evid.R. 612.
       {¶ 230} Under the doctrine of present recollection refreshed, “the witness
looks at the memorandum to refresh his memory of the events, but then proceeds
to testify upon the basis of his present independent knowledge.” State v. Scott, 31
Ohio St.2d 1, 5-6, 285 N.E.2d 344 (1972). The testimony of the witness whose
recollection has been refreshed is the evidence, not the contents of the writing. See




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1 Giannelli, Evidence, Section 612.3, at 578 (3d Ed.2010). Thus, “ ‘a party may
not read the statement aloud, have the witness read it aloud, or otherwise place it
before the jury.’ ” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971
N.E.2d 865, ¶ 57, quoting State v. Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d 369
(1996).
          {¶ 231} The state could have refreshed Heather’s recollection under
Evid.R. 612 by showing her the videotaped interview outside the jury’s presence.
However, the prosecution did not present Heather’s refreshed recollection
testimony until after the videotaped interview had been improperly played in open
court. Under Evid.R. 612, the party calling a witness may not present the matter
used to refresh memory to be admitted as evidence unless that matter qualifies as
independent evidence admissible under the hearsay rule. 1 Broun et al., McCormick
on Evidence, Section 9, at 56 (7th Ed.2013). We hold that the trial court abused its
discretion by allowing the prosecutor to present Heather’s refreshed recollection
testimony because a portion of the recording used to refresh Heather’s memory was
previously presented to the jury.
                   3. Harmless Error Beyond a Reasonable Doubt
          {¶ 232} Ford argues that the improper admission of Heather’s videotaped
interview resulted in prejudice during both phases of the trial. The state responds
that any error was harmless beyond a reasonable doubt.
          {¶ 233} To determine whether an alleged error affected the substantial
rights of the defendant and requires a new trial, “[t]he reviewing court must
ascertain (1) whether the defendant was prejudiced by the error, i.e., whether the
error had an impact on the verdict, (2) whether the error was not harmless beyond
a reasonable doubt, and (3) whether, after the prejudicial error is excised, the
remaining evidence establishes the defendant’s guilt beyond a reasonable doubt.”
State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 50.




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       {¶ 234} We conclude beyond a reasonable doubt that Ford was not
prejudiced by Heather’s videotaped interview or her subsequent refreshed
testimony and that the erroneous admission of that evidence had no impact on the
verdict. The remaining evidence admitted at trial established Ford’s guilt beyond
any reasonable doubt. Most notably, DNA evidence linked him to the murders and
he confessed to police that he was the killer.
       {¶ 235} Based on the foregoing, we reject proposition of law No. X.
                            H. Gruesome Photographs
       {¶ 236} In proposition of law No. XI, Ford argues that the trial court erred
in admitting gruesome crime-scene and autopsy photographs.
       {¶ 237} A gruesome photograph is admissible only if its “ ‘probative value
* * * outweigh[s] the danger of prejudice to the defendant.’ ” (Ellipsis and brackets
sic.) Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 96,
quoting State v. Morales, 32 Ohio St.3d 252, 258, 513 N.E.2d 267 (1987).
Moreover, even a photo that satisfies the balancing test is inadmissible if it is
repetitive or cumulative. Id.; see State v. Thompson, 33 Ohio St.3d 1, 9, 514 N.E.2d
407 (1987). A trial court’s decision that a photo satisfies the standard is reviewable
only for abuse of discretion. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-
3193, 790 N.E.2d 303, ¶ 69.
                               1. Crime-Scene Photos
       {¶ 238} Ford complains about two exhibits presented during Gerring’s
testimony about discovering the bodies at the Schoberts’ residence. State’s exhibit
No. 80 depicts a view of Margaret’s body on the floor. State’s exhibit No. 84 shows
Jeffrey’s body and the sledgehammer on the bed with Margaret’s body on the floor
next to the bed. Jeffrey’s injuries cannot be seen but Margaret’s head injuries are
visible. These photos show the position of the bodies and the murder weapon when
the bodies were found. See State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548,




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819 N.E.2d 1047, ¶ 85. Under these circumstances, we find no abuse of discretion
in the admission of these photos.
       {¶ 239} Ford also argues that the trial court erred in admitting five
gruesome photographs of Margaret’s body.            State’s exhibit No. 82 shows
Margaret’s body next to the dresser, but her head injuries are not prominently
depicted. State’s exhibit Nos. 91 and 124 show her outstretched arm near the blood-
spattered dresser. Blood is visible next to the body, but these photos are not
gruesome. See State v. Smith, 80 Ohio St.3d 89, 108, 684 N.E.2d 668 (1997)
(photographs of bloodstains are generally not gruesome). Each photo was also
relevant to show the direction of the blows causing the blood spatter. State’s exhibit
Nos. 93 and 97 are gruesome photos showing Margaret’s head injuries. But we
conclude that each photo was highly “probative of [the defendant’s] intent and the
manner and circumstances of the victims’ deaths” and that the probative value of
each outweighed the danger of unfair prejudice. Trimble, 122 Ohio St.3d 297,
2009-Ohio-2961, 911 N.E.2d 242, at ¶ 134.
       {¶ 240} Finally, Ford argues that the trial court erred in admitting eight
gruesome photographs of Jeffrey’s body. State’s exhibit No. 106 shows Jeffrey’s
body on the bed, next to the end table and the blood-spattered dresser, and state’s
exhibit No. 112 is a closer photo of the top half of his body. These photos, although
gruesome, illustrate the testimony of the BCI analyst who processed the crime
scene. See Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at
¶ 98-99.
       {¶ 241} State’s exhibit Nos. 98 and 99 show Jeffrey’s body next to the
sledgehammer. These photographs are not particularly gruesome and were relevant
in showing the location of the murder weapon. See Trimble at ¶ 135. State’s exhibit
Nos. 113, 115, 125, and 138 show different views of Jeffrey’s bloody wrist and
arms and close-up views of the sledgehammer. These photographs are somewhat
cumulative but they are not gruesome. The mere fact that there are numerous




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photographs does not result in prejudicial error, absent gruesomeness or shock
value. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 232.
       {¶ 242} Ford argues that the risk of undue prejudice was especially great
because one news reporter became ill during the presentation of photographs during
the state’s opening statement. The trial court noted that “[w]e have learned * * *
that she was otherwise ill even beyond the photographs. The photographs may have
contributed, but she came to court not feeling well and suffered some kind of a
consequence.” Moreover, nothing shows that any of the jurors became ill or were
unduly affected by seeing these photos.
       {¶ 243} Ford cites Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13
N.E.3d 1051, at ¶ 97-100, in arguing that too many photographs of the victims were
admitted. In Mammone, the state presented two crime-scene photographs, showing
a single photo of each child victim murdered in their car seats. Id. at ¶ 97. Over
defense objection, the trial court admitted both photos. Id. We have “strongly
caution[ed] judicious use” of gruesome photographs in capital cases. Morales, 32
Ohio St.3d at 259, 513 N.E.2d 267.
       {¶ 244} The circumstances surrounding the Schoberts’ murders are
horrifying. We conclude that the trial court did not abuse its discretion by admitting
the crime-scene photographs depicting the Schoberts. The probative value of the
photographs outweighed the danger of prejudice.
                           2. Margaret’s Autopsy Photos
       {¶ 245} Ford argues that the trial court erred by admitting 14 autopsy
photographs of Margaret. As an initial matter, Ford objects to state’s exhibit Nos.
3 through 10 and 13. During trial, the defense stated that it had no objection to any
of these exhibits, and hence Ford can complain only of plain error. See Trimble,
122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 151; Gapen, 104 Ohio
St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, at ¶ 83.




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       {¶ 246} State’s exhibit No. 3 is a nongruesome photograph showing a
contusion on Margaret’s shoulder and other injuries to her neck. State’s exhibit
Nos. 4 through 9 depict different views of the injuries to Margaret’s head after the
blood was removed. Although these photographs are gruesome, each of them
supported Dr. Dean’s testimony and provided a different perspective of the victim’s
wounds. See State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596,
¶ 142. State’s exhibit No. 10 is another nongruesome photo showing a wound
above Margaret’s left ear. State’s exhibit No. 13 shows two scratches on a finger,
which was actually Jeffrey’s. This photo is also not gruesome. No plain error
resulted from the admission of any of these photos.
       {¶ 247} State’s exhibit No. 17 shows Margaret’s body as she arrived at the
medical examiner’s office and shows injuries to the right side of her head. State’s
exhibit No. 18 shows a massive skull fracture, and state’s exhibit No. 19 depicts
injuries to her jaw and severe dental injuries. The number and location of the
injuries were all probative evidence of a purpose to cause death. Each photo also
supported and illustrated Dr. Dean’s testimony about Margaret’s wounds and the
cause of her death. See Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13
N.E.3d 1051, at ¶ 102.
       {¶ 248} Ford argues, mistakenly, that state’s exhibit Nos. 22 and 24 are
gruesome photos depicting Margaret’s battered head before her body was cleaned.
These are photos of Jeffrey. Their admissibility will be discussed as it pertains to
his autopsy photos.
       {¶ 249} Finally, Ford argues that more autopsy photographs were admitted
than in Mammone. But nothing in Mammone limits the number of noncumulative
autopsy photographs that can be admitted if they are otherwise admissible.
       {¶ 250} In summary, we find no plain error in the admission of the autopsy
photos of Margaret.




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                             3. Jeffrey’s Autopsy Photos
        {¶ 251} Ford also argues that the trial court erred by admitting eight autopsy
photographs of Jeffrey.
        {¶ 252} During trial, defense counsel stated that the defense had no
objection to state’s exhibit Nos. 34 and 37. Thus, Ford can complain only of plain
error. State’s exhibit No. 34 shows an incised wound on Jeffrey’s torso and a side
view of Jeffrey’s head wounds. Although somewhat gruesome, we find no plain
error in the admission of this photo. State’s exhibit No. 37 is a nongruesome photo
showing contusions on his left shoulder. We find that no plain error resulted from
the admission of this photo.
        {¶ 253} State’s exhibit Nos. 38, 39, and 40 depict different views of the
injuries to Jeffrey’s head after the blood was removed. State’s exhibit Nos. 41 and
42 show injuries to Jeffrey’s upper and lower jaw. State’s exhibit No. 44 shows a
cutaway of the skull after the brain was removed and depicts fractured bone matter.
These photos are gruesome. However, each of these photos illustrated Dr. Dean’s
testimony about Jeffrey’s wounds and the cause of his death. See Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 142. We hold that the prejudicial
impact of these photos did not outweigh their probative value and the trial court did
not abuse its discretion in admitting them.
        {¶ 254} State’s exhibit Nos. 22 and 24, which were mentioned earlier, are
particularly gruesome photographs of the right and left side of Jeffrey’s head when
his body was brought to the medical examiner’s office. The caked-on blood
covering his face obscures any of his wounds. Defense counsel objected that the
photographs were gruesome and cumulative.             The trial court overruled the
objection, noting that the judge in Mammone had admitted photos of children as
they arrived at the coroner’s office, still strapped in their car seats. The trial court
added that the judge in Mammone also admitted additional photographs of the
victims after their bodies were prepared for autopsy. The trial court “reached the




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same conclusion” in admitting state’s exhibit Nos. 22 and 24 “given the different
things that are being depicted.”
        {¶ 255} Unlike in Mammone, state’s exhibit Nos. 22 and 24 did not show
different injuries from those depicted in other admitted photos. See Mammone, 139
Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 104 (each of seven autopsy
photos, including the photo of a child still strapped to a car seat as she arrived at
the coroner’s office, presented a different injury). Thus, we agree that the trial court
erred by admitting these cumulative photographs.
        {¶ 256} Nevertheless, we hold that any error was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824,
17 L.Ed.2d 705 (1967); Mammone at ¶ 106, fn. 5. The evidence that Ford murdered
the Schoberts was overwhelming. Ford confessed to these crimes. DNA evidence
on Ford’s shoes also linked him to the murders.
        {¶ 257} Although we find no abuse of discretion here, we caution trial
courts to closely scrutinize the crime-scene and autopsy photos that are offered as
exhibits in murder trials. The admission of gruesome photos exposes the jurors to
horrific images, and when those photographs go to an element of the offense that is
clearly proven by other evidence, they serve no useful purpose whatsoever. Instead,
such exposure only serves to inflame the passions of jurors and risks subjecting
them to harm. A few crime-scene photos showing the body along with the
coroner’s testimony will often suffice.
        {¶ 258} Based on the foregoing, we reject proposition of law No. XI.
                                    I. Jury Issues
        {¶ 259} In proposition of law No. VIII, Ford argues that the trial court erred
by failing to conduct an investigation into alleged juror misconduct during
deliberations.




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                                   1. Factual Background
          {¶ 260} During voir dire, prospective juror No. 195 informed the court that
she had interned with the Summit County Prosecutor’s Office. Her affiliation with
the prosecutor’s office had ended, and she assured the court that her internship
would not affect her ability to fairly consider the evidence in this case. She has
paralegal and criminal-justice degrees. During individual voir dire, juror No. 19
was asked: “Do you think you would be bringing your own legal training to the
case? Or could you leave that outside and just rely on the evidence that comes in
through the court?” She responded, “Rely on the evidence.” The defense later
challenged juror No. 19 because she was a trained paralegal and used that
experience in her job with the state. The trial court overruled that challenge.
          {¶ 261} During Detective King’s testimony, juror No. 19 informed the court
that they attended the same church and that King was the bodyguard for the pastor’s
wife. Juror No. 19 stated that she did not know King and would not tend to favor
King’s testimony because of King’s role in the church. The trial court overruled a
defense motion to excuse juror No. 19 because of King’s position at the juror’s
church.
          {¶ 262} After trial-phase deliberations had begun, the jury foreman passed
a note to the court asking: “For which of the 11 counts do we not have to all 12
agree on? If we can’t come to an agreement (unanimous) ex. 11-1, do we consider
not guilty?” The trial court advised the jury that a unanimous verdict must be
reached as to all counts.
          {¶ 263} At a sidebar, prosecutors informed the court that they had just
learned that juror No. 19 was Facebook friends with the Summit County
Prosecuting Attorney, Sherri Bevan Walsh, and three Summit County assistant
prosecutors. Defense counsel requested that juror No. 19 be excused, and the trial


5. Prospective juror No. 19 became seated juror No. 5.




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court agreed. During questioning before being excused, juror No. 19 acknowledged
that she was Facebook friends with the Summit County Prosecuting Attorney and
an assistant prosecutor. But she denied telling other jurors that she was Facebook
friends with members of the prosecutor’s office or that she had worked as an intern
there.
         {¶ 264} Defense counsel moved for a mistrial, arguing that juror No. 19 had
deeply tainted the rest of the jury. In support of that argument, counsel suggested
that the jury’s question—about unanimity and “one person, because of her
training,” not agreeing with the rest—demonstrated juror No. 19’s influence in the
deliberations. The trial court interjected that the defense may be conflating two
different questions that the jury had posed. In a separate question, the jury had
asked:


         One of us feels that aggravated burglary is only about taking
         something when someone is present other than an accomplice. The
         rest of us think it is committing any criminal offense, trespassed by
         force, stealth or deception when another person is present other than
         an accomplice. Which is right? Most of us take the definition
         literally whereas the one girl’s training makes her insist something
         had to be taken.


(Underlining sic.) The trial court stated, “That could have been this juror, we don’t
know.”
         {¶ 265} Defense counsel argued that “it is a reasonable assumption * * *
that they are talking about the paralegal.” Defense counsel added: “[T]hat’s our
juror that is holding out, that’s the juror that is being problematic for these
upcoming convictions * * *. And then, shortly thereafter, we are put in a position
by the State revealing this information about * * * Facebook that forces us to * * *




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ask whether we are going to bump off at our request the only person who may be a
holdout for innocence.”6
         {¶ 266} In response, the prosecutor explained how they learned about the
Facebook connection, stating that “earlier today, [the] bailiff called to advise that
there was a question; there was an issue with the juror that we needed to come over
for.” The bailiff gave the assistant prosecutor the juror’s name. The prosecutor
then checked with colleagues in the office and learned that juror No. 19 was
Facebook friends with some of the prosecutors.
         {¶ 267} The trial court overruled the motion for a mistrial, stating that there
is “no reason to think that the contact that Juror Number 19 * * * has had with
Facebook friends, which she says she did not disclose to the rest of the jury, has in
any way tainted the rest of the jury.” The trial court added:


                  On the issue of whether the State of Ohio brought this
         information [about Facebook] to light in order to achieve some
         tactical purpose, I interpret it a different way.
                  The State of Ohio, as Mr. Gessner said, had some curiosity.
         The curiosity was addressed. Once the information became known,
         it was entirely proper to bring that information to light.


         {¶ 268} As to the potential influence of juror No. 19 on the rest of the jurors,
the trial court stated:


                  The defense has no more reason to think than I do or anyone
         else does that this individual was or was not a holdout, because we
         do not know whether the jury went on to resolve whatever issue they

6. In proposition of law No. XX, Ford argues that defense counsel provided ineffective assistance
of counsel by requesting that juror No. 19 be excused, because it was likely she was a holdout juror.




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        may have had with respect to the aggravated burglary count. We do
        not know, nor will we know, what prompted the most recent
        question which raised the issue of something being 11 to 1.


                                      2. Analysis
                      a. Outside influence during deliberations
        {¶ 269} Ford argues that juror No. 19 used her background as a paralegal to
influence other jurors to disregard the trial court’s instructions and apply her own
legal definitions. Ford contends that the jury’s questions about aggravated burglary
and unanimity of the verdicts show that juror No. 19 was interjecting outside
information that was inconsistent with the trial court’s instructions. He argues that
this was an outside influence that the trial court failed to investigate.
        {¶ 270} Ohio law prohibits outside influences, if they are shown to be
prejudicial. State v. Kehn, 50 Ohio St.2d 11, 18-19, 361 N.E.2d 1330 (1977).


        Any communication or contact outside the courtroom or jury room
        about the matter at trial between a juror and another person,
        particularly if connected with one of the parties to the litigation, and
        any independent inquiry or experiment by a juror about the evidence
        or the law, violate the juror’s duty to limit his considerations to the
        evidence, arguments and law presented in open court. Any such
        activity is juror misconduct, a constitutional violation whether
        viewed under the Fourteenth Amendment to the United States
        Constitution or Section 10, Article I of the Ohio Constitution.


State v. King, 10 Ohio App.3d 161, 165, 460 N.E.2d 1383 (1st Dist.1983).
        {¶ 271} Ford’s argument fails for several reasons. First, he fails to establish
that juror No. 19 said anything during deliberations that caused the jury to disregard




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the trial court’s instructions. The fact that the foreman sought clarification about
juror unanimity and the definition of aggravated burglary does not show that the
juror was trying to undermine such instructions. At about the same time, the
prosecutor disclosed that juror No. 19 was Facebook friends with members of the
prosecutor’s office. Nothing shows that the two events were related. Moreover,
juror No. 19 was excused, an alternate juror took her place, and deliberations began
anew. Thus no prejudice occurred. See State v. Hipkins, 69 Ohio St.2d 80, 83, 430
N.E.2d 943 (1982) (judgment will not be reversed because of juror misconduct
unless prejudice is shown); Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71
L.Ed.2d 78 (1982) (party complaining about juror misconduct must prove
prejudice).
       {¶ 272} Second, even assuming that juror No. 19 interjected her legal
experience into the deliberative process, nothing shows that this was an improper
“outside influence” on the deliberations. Ford does not claim that she consulted
legal texts, checked the internet, or spoke to a lawyer and conveyed such
information to the other jurors. Nor does he claim that juror No. 19 paraded her
paralegal background before the other jurors or gave legal directives. Here, the
juror’s personal experiences, including her paralegal experience, do not constitute
an outside influence. See Tanner v. United States, 483 U.S. 107, 117-119, 107 S.Ct.
2739, 97 L.Ed.2d 90 (1987); State v. Hughes, 7th Dist. Mahoning No. 02CA15,
2003-Ohio-6094, ¶ 28.
       {¶ 273} In examining a claim that a juror had improperly used her
engineering and mathematics background, the Supreme Court of Colorado stated
that “[t]he line between a juror’s application of her background professional and
educational experience to the record evidence and a juror’s introduction of legal
content or specific factual information learned from outside the record can be a fine
one.” Kendrick v. Pippin, 252 P.3d 1052, 1066 (Colo.2011). But “[t]he test
requires that the experience used by the juror in deliberations be part of the juror’s




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background, gained before the juror was selected to participate in the case and not
as the result of independent investigation into a matter relevant to the case.” Id. A
similar analysis applies here. Further, “a majority of courts have held that a juror’s
intradeliberational statements, when based on personal knowledge and experience
do not constitute extraneous prejudicial information.” Id. at 1065. Thus, we reject
Ford’s claim that juror No. 19 interjected an “outside influence” during
deliberations.
       {¶ 274} Ford argues that the trial court should have conducted a hearing to
determine the extent of the outside influence and prejudice. In Remmer v. United
States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the United States Supreme
Court held that a trial court confronted with an allegation of external tampering or
contact with a juror during trial about a matter pending before the jury “should
determine the circumstances, the impact [of the circumstances] upon the juror, and
whether or not it was prejudicial, in a hearing with all interested parties permitted
to participate.” Id. at 230.
       {¶ 275} Nonetheless, “not all communications with jurors warrant a hearing
for a determination of potential bias.” White v. Smith, 984 F.2d 163, 166 (6th
Cir.1993). An allegation of an unauthorized communication with a juror requires
a Remmer hearing only when the alleged contact presents a likelihood of affecting
the verdict. See United States v. Frost, 125 F.3d 346, 377 (6th Cir.1997).
       {¶ 276} We hold that the trial court did not err by failing to conduct a
Remmer hearing, because Ford presented no basis upon which to believe that juror
No. 19 had introduced an “outside influence” into the proceedings. Juror No. 19
also assured the court that she had not told other jurors that she was Facebook
friends with members of the prosecutor’s office or had worked as an intern there.
       {¶ 277} Next, Ford argues that juror No. 19 tainted the jury. However,
“[s]peculation and unsubstantiated allegations do not present a colorable claim of




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outside influence of a juror.” See United States v. Wintermute, 443 F.3d 993, 1003
(8th Cir.2006).
       {¶ 278} As a final matter, Ford claims that by excusing juror No. 19, the
trial court sent a message to other jurors that a holdout would not remain on the
jury. But the trial court told the jury: “I wanted to advise the members of the jury
that for a reason that has nothing to do with your deliberations in the case or the
facts of the case, but, instead, on some information the Court became aware of that
is not a matter for your concern, the Court did find it necessary to excuse [juror No.
19] from further jury service on this case.” These instructions addressed any
lingering concerns about juror No. 19’s removal. See State v. Jones, 91 Ohio St.3d
335, 344, 744 N.E.2d 1163 (2001) (jury presumed to have followed trial court’s
instructions).
       {¶ 279} Furthermore, Ford requested that juror No. 19 be removed from the
panel. The doctrine of invited error specifies that a litigant may not “take advantage
of an error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc.
v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 N.E.3d 590
(1986), paragraph one of the syllabus. “This court has found invited error when a
party has asked the court to take some action later claimed to be erroneous, or
affirmatively consented to a procedure the trial judge proposed.” State v. Campbell,
90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000). Here, defense counsel requested
that juror No. 19 be removed from the panel and is not entitled to complain of an
error that counsel requested. Accordingly, we reject this claim.
                    b. Bailiff’s discussions with the prosecutor
       {¶ 280} Ford argues that the trial court erred by not conducting a hearing
under Remmer, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654, to address the bailiff’s
communications with the prosecutor about an issue with a juror. He argues that
these communications violated the secrecy of the jury deliberations.




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          {¶ 281} It is unclear what the bailiff told the prosecutor, beyond stating that
there was “a question; there was an issue with the juror that we needed to come
over for.” After they talked, the prosecutor learned that juror No. 19 was Facebook
friends with members of the prosecutor’s office.
          {¶ 282} There is no evidence that the bailiff had a conversation with the
juror that affected the verdict—all the bailiff did was tell the prosecutor that there
was an “issue” with a juror and gave him the juror’s name. Thus, we conclude that
the trial court did not err by failing to conduct a Remmer hearing regarding this
matter.
          {¶ 283} Based on the foregoing, we reject proposition of law No. VIII.
                       J. Juror Misconduct During Deliberations
          {¶ 284} In proposition of law No. IX, Ford argues that juror misconduct
during deliberations violated his right to a fair trial and fair sentencing proceedings.
                                 1. Factual Background
                                     a. Juror No. 19
          {¶ 285} On October 28, 2014, during the mitigation phase, the Akron
Beacon Journal published an interview with juror No. 19, who had already been
excused. According to the newspaper article, she stated that other jurors were in a
hurry to convict Ford without conducting much debate. She said one juror had
talked about the need to reach a verdict in time to attend an upcoming birthday
party. Juror No. 19 added, “I was a roadblock to them getting out,” and “I was the
only one trying to fight and take a look at what was going on.”
          {¶ 286} Juror No. 19 stated that some jurors, despite instructions to the
contrary, talked about potential penalties. They mentioned the likelihood that Ford
would never get out of prison if convicted of aggravated murder or would not face
execution any time soon if the jury voted for the death penalty. She stated that
some jurors relied on her legal experience to ask basic questions but then pressured
her to convict Ford, calling her positions “crazy” and not worthy of debate.




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        {¶ 287} Juror No. 19 stated that she had originally signed the guilty form
for aggravated murder but changed her mind after a night being sequestered. She
did not believe that Ford went to the Schoberts’ home on April 2, 2013, with the
intent to kill. She also did not believe that Ford and his codefendant, Vaughn,
walked nine miles from Akron to the Schoberts’ home in New Franklin. She said
that a second juror appeared to be agreeing with her.
        {¶ 288} She said that others were not agreeing and there was “shouting at
times.” Juror No. 19 got into a “real blow up” with another juror, because she was
making snide remarks about her being a paralegal. Juror No. 19 added, “It was me
and [a second juror] and they kept saying are we crazy.”
        {¶ 289} Unbeknownst to juror No. 19 at the time, the foreperson sent notes
to the court asking about jury unanimity and the burglary charge. She said that this
led the prosecutors to search her Facebook page and learn that she was “friends”
with members of the prosecutor’s office. She said the decision to excuse her was
shocking and likely fueled by the tone of the foreperson’s notes to the judge.
                                   b. Juror No. 46
        {¶ 290} On November 2, 2014, just days after the jury had been excused,
the Akron Beacon Journal published an interview with juror No. 46, a seated juror
during both phases of the trial. Juror No. 46 said she was the lone holdout for a life
sentence. She said, “I didn’t want the death penalty at all. I fought for hours. I had
one juror get in my face saying, ‘I can’t believe you wouldn’t give this kid the death
penalty. What’s wrong with you * * *.’ ” She added, “Yes, [I was intimidated].
* * * I don’t feel a death sentence is right for Shawn.” (Brackets sic.)
        {¶ 291} Juror No. 46 said she was initially the only person to vote against
death for Jeffrey’s murder. Pressure to vote for death for Margaret’s murder
intensified. She relented and signed a death sentence for Margaret’s murder while
the other jurors agreed to a life sentence for Jeffrey’s murder. But she said, “I didn’t




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want to sign it, and I think now I’m going to have to live with that guilt * * * I
don’t feel it was the right thing to do.”
        {¶ 292} Juror No. 46 said she considered changing her vote when the jurors
were polled. She said, “I wanted to say no, but I couldn’t. I was looking down. I
was shaking. I couldn’t even control myself. But I said yes.” Juror No. 46 stated
that she surrendered her position “[b]ecause of how awful [the other jurors] were.”
        {¶ 293} She said deliberations during the trial phase were swift and most
jurors had no interest in deliberating. The same haste occurred during sentencing.
Some jurors arguing for death expressed concern that Ford, if given life in prison,
could one day escape. One juror cited the Chardon school shooter and his recent
escape as an example. She added, “They were screaming at me. It wasn’t pleasant
behind the scenes with these people.”
                      c. Motion for a Remmer hearing denied
        {¶ 294} Following the publication of juror No. 46’s interview, defense
counsel filed a motion for a hearing under Remmer, 347 U.S. 227, 74 S.Ct. 450, 98
L.Ed. 654, to address the juror misconduct reported in the Akron Beacon Journal.
The trial court denied the motion, stating that “there is no evidence before the court
suggesting that the jury * * * was improperly influenced by anyone or anything
outside of the jury.” The trial court added that “because defendant’s motion is
based on newspaper articles related entirely to the deliberations of the sequestered
jury and there is no evidence aliunde suggesting juror misconduct, the court would
not be permitted to hear testimony from these former jurors on the subject upon
which defendant’s motion is based.”
                                      2. Analysis
        {¶ 295} Evid.R. 606(B), also known as the aliunde rule, governs the
competency of a juror to testify at a subsequent proceeding concerning the verdict.
It states:




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                  (B) Inquiry Into Validity of Verdict or Indictment. Upon
       an inquiry into the validity of a verdict or indictment, a juror may
       not testify as to any matter or statement occurring during the course
       of the jury’s deliberations or to the effect of anything upon that or
       any other juror’s mind or emotions as influencing the juror to assent
       to or dissent from the verdict or indictment or concerning the juror’s
       mental processes in connection therewith. A juror may testify on
       the question whether extraneous prejudicial information was
       improperly brought to the jury’s attention or whether any outside
       influence was improperly brought to bear on any juror, only after
       some outside evidence of that act or event has been presented.
       However a juror may testify without the presentation of any outside
       evidence concerning any threat, any bribe, any attempted threat or
       bribe, or any improprieties of any officer of the court. A juror’s
       affidavit or evidence of any statement by the juror concerning a
       matter about which the juror would be precluded from testifying will
       not be received for these purposes.


(Boldface sic.)
       {¶ 296} The purpose of the aliunde rule is to maintain the sanctity of the
jury room and the deliberations therein, ensure the finality of jury verdicts, and
protect jurors from being harassed by defeated parties. See State v. Hessler, 90
Ohio St.3d 108, 123, 734 N.E.2d 1237 (2000); State v. Reiner, 89 Ohio St.3d 342,
350, 731 N.E.2d 662 (2000).
       {¶ 297} The trial court did not err in refusing to hold a Remmer hearing to
consider evidence from juror No. 19 or juror No. 46 about the deliberations. We
addressed a similar claim in Hessler. In that case, a distraught juror complained to
the trial judge about her treatment from fellow jurors. Hessler at 116-120. The




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defense argued that the juror’s statement showed that she wanted to vote for life
sentences but was unfairly coerced and pressured to vote for death. The defendant
claimed that he was denied the right to a fair and impartial jury because of jury
misconduct. Id. at 120. We rejected that claim, stating:


               “The very object of the jury system is to secure unanimity
       by a comparison of views, and by arguments among the jurors
       themselves.” Allen v. United States (1896), 164 U.S. 492, 501, 17
       S.Ct. 154, 157, 41 L.Ed. 528, 531. The requirement of a unanimous
       decision, however, does not come without a price. Heightened
       emotions and intense feelings are part and parcel of this process.
       Experience tells us that during deliberations, it is not unusual to find
       heavy-handed influencing, browbeating, and even bullying to a
       certain extent. For always there is the possibility that “articulate
       jurors may intimidate the inarticulate, the aggressive may unduly
       influence the docile.” People v. DeLucia (1967), 20 N.Y.2d 275,
       278, 282 N.Y.S.2d 526, 529, 229 N.E.2d 211, 213.


Id.
       {¶ 298} Hessler applies to the allegations of misconduct that juror Nos. 19
and 46 reported against other jurors. Evid.R. 606(B) prohibited the trial court from
questioning these jurors about what occurred during deliberations that might have
affected the jurors’ minds or emotions in the process once the final verdict was
rendered. Thus, a Remmer hearing was not required.
       {¶ 299} Moreover, juror No. 19 was excused before the trial-phase
deliberations were completed and would not have known what happened in the jury
room after she was replaced. And juror No. 46 confirmed her verdict in open court
when the jury was polled. “The function of the poll is ‘to enable the court and the




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parties to ascertain with certainty that a unanimous verdict has in fact been reached
and that no juror has been coerced or induced to agree to a verdict to which he has
not fully assented.’ ” State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794
N.E.2d 27, ¶ 37, quoting Miranda v. United States, 255 F.2d 9, 17 (1st Cir.1958).
Once polling has been completed and all have assented to the verdict, “a juror may
not thereafter rescind or modify his or her vote.” Williams at ¶ 38.
       {¶ 300} Ford raises Peña-Rodriguez v. Colorado, __ U.S. __, 137 S.Ct.
855, 197 L.Ed.2d 107 (2017), in arguing that the behavior of certain jurors during
deliberations denied him a fair and impartial jury. The Supreme Court held in
Peña-Rodriguez that the traditional “no-impeachment rule” codified in Fed.R.Evid.
606(b) may violate the Sixth Amendment right to an impartial jury when “a juror
makes a clear statement that indicates he or she relied on racial stereotypes or
animus to convict a criminal defendant.” Id. at ___, 137 S.Ct. at 869. In such cases,
a court may decline to apply the no-impeachment rule, consider jury testimony,
overturn a jury verdict, and hold a new trial. See id. Unlike in Peña-Rodriguez,
neither juror No. 19 nor juror No. 46 indicated that racial bias or hostility was
exhibited during the deliberations. Thus, Peña-Rodriguez does not overcome the
no-impeachment rule here.
       {¶ 301} Ford also cites Warger v. Shauers, 574 U.S. 40, 135 S.Ct. 521, 190
L.Ed.2d 422, (2014), in arguing that in extreme cases of juror bias, applying Evid.R.
606(B) to bar juror testimony proving such bias would run afoul of the Sixth
Amendment. Warger held that Fed.R.Evid. 606(b) applies to juror testimony
during a proceeding in which a party seeks to secure a new trial on the ground that
a juror lied during voir dire. Id. at 44. Ford relies on a footnote in Warger, in which
the court said:


       There may be cases of juror bias so extreme that, almost by
       definition, the jury trial right has been abridged. If and when such a




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        case arises, the Court can consider whether the usual safeguards are
        or are not sufficient to protect the integrity of the process. We need
        not consider the question, however, for those facts are not presented
        here.


Id. at 51, fn. 3.
        {¶ 302} The Supreme Court decided Peña-Rodriguez a little more than two
years later. As discussed, however, Peña-Rodriguez limited the exception to the
no-impeachment rule to a situation in which “a juror makes a clear statement that
indicates he or she relied on racial stereotypes or animus to convict a criminal
defendant.” See Peña-Rodriguez at ___, 137 S.Ct. at 869. Warger does not apply
here.
        {¶ 303} Based on the foregoing, we reject proposition of law No. IX.
                      K. Limitations on Defense Closing Arguments
        {¶ 304} In proposition of law No. XVI, Ford argues that the trial court erred
in sustaining a series of objections to defense counsel’s closing arguments.
        {¶ 305} First, Ford argues that the trial court erred in sustaining an objection
to a comment that called into question the extent of the state’s investigation:


                    MR. SINN [(defense counsel)]: And, again, when you make
        decisions here, you have a right to have the investigation that you
        need to make the decisions to let you know what happened. You
        don’t have to put the pieces together. * * * That’s the * * * job of
        the New Franklin Police Department. And if they are not up to
        doing it, then they need to get somebody else out there.
                    MR. LOPRINZI [(prosecutor)]: Objection.
                    THE COURT: Sustained.




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       {¶ 306} Both parties are given latitude during closing arguments to address
what the evidence has shown and what reasonable inferences may be drawn from
that evidence. See Loza, 71 Ohio St.3d at 78, 641 N.E.2d 1082. As one court
explained:


       Trial counsel may advocate and persuade to the limit of his or her
       ability and enthusiasm but cannot misrepresent evidence or go
       beyond the limits set by the trial court. Thus, counsel may freely
       discuss the facts, arraign the conduct of parties, impugn, excuse,
       justify or condemn motives according to the evidence, and attack the
       credibility of witnesses when the record supports the same. The
       court should not be severe in arresting argument on the ground that
       the argument or inference is illogical.


(Internal citations omitted.) State v. Powell, 177 Ohio App.3d 825, 2008-Ohio-
4171, 896 N.E.2d 212, ¶ 45 (4th Dist.).
       {¶ 307} Leading up to the objected-to comments, defense counsel argued
that the police had failed to prove that Zachary was out of town at the time of the
murders. The defense also argued that the police failed to identify any witnesses
who saw Ford and Vaughn walking in the middle of the night from Akron to the
Schoberts’ house in New Franklin. The defense argument aimed at the New
Franklin Police Department was a means of questioning why the prosecution lacked
more evidence. We hold that the trial court erred in prohibiting such argument.
       {¶ 308} Second, Ford argues that the trial court erred by sustaining an
objection to a defense argument about the prosecution’s failure to call Detective
Morrison as a witness. During closing argument, defense counsel argued:




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              Over two days, there are multiple statements given, six or
       seven different statements.       At first, Shawn Ford denies
       involvement, and then he talks about other people being involved.
       And, each time, Detective Hitchings or Detective Morrison—who,
       again, we don’t hear from Detective Morrison—
              MR. LOPRINZI: Objection.
              THE COURT: Sustained.


       {¶ 309} A party’s failure “ ‘to call a witness who has some knowledge of
the matter under investigation may be commented upon.’ ” State v. D’Ambrosio,
67 Ohio St.3d 185, 193, 616 N.E.2d 909 (1993), quoting State v. Petro, 148 Ohio
St. 473, 498, 76 N.E.2d 355 (1948). Morrison did not testify during trial even
though he played a key role in the investigation of Chelsea’s assault and
interviewed Ford on April 2 and 3. Thus, defense counsel’s comment about not
hearing from Morrison during trial should have been allowed.
       {¶ 310} The state cites Crim.R. 16(I) in arguing that the defense does not
have a “freewheeling right to comment on the absence of any person who that party
thinks should have testified.” But Crim.R. 16(I) provides:


              (I) Witness List. Each party shall provide to opposing
       counsel a written witness list, including names and addresses of any
       witness it intends to call in its case-in-chief, or reasonably
       anticipates calling in rebuttal or surrebuttal. The content of the
       witness list may not be commented upon or disclosed to the jury by
       opposing counsel, but during argument, the presence or absence of
       the witness may be commented upon.




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(Emphasis added and boldface sic.) Nothing in Crim.R. 16(I) prohibited defense
counsel from commenting on Morrison’s absence; indeed, the rule expressly
permits such comment. Thus, we conclude that the trial court erred in sustaining
an objection to the defense argument.
       {¶ 311} We conclude, however, that the two erroneous rulings were
harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 23-24, 87 S.Ct.
824, 17 L.Ed.2d 705; Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153,
at ¶ 50. There is little likelihood that the restrictions on defense counsel’s argument
affected the verdict in view of DNA evidence linking Ford to the murders and his
confession.
       {¶ 312} Finally, Ford argues that the trial court erred in curtailing the
defense argument that questioned the completeness of Ford’s police interview.
Defense counsel argued:


               What else did he say? I mean, really, what else did he say?
       You have got him saying—you have got him now opened up,
       confessing. What else did Shawn say? * * * Where is the rest of
       the information?
               Where are the cell phones? Where are Jeff and [Margaret’s]
       cell phones? That’s important. We don’t know where those phones
       went. Why don’t we know that?
               I mean, if, according to Hitchings, Shawn has now come
       clean and telling the truth of the story, that’s when you ask him all
       the questions you want to ask. That’s when you get all the answers
       out.


The prosecutor objected and, outside the jury’s presence, argued that defense
counsel “knows the answers to these questions. He knows his client was asked




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these questions.” The trial court sustained the objection, stating that counsel
“cannot imply that some work was not done that was done. * * * I will instruct
counsel not to continue with that.”
       {¶ 313} Ford’s recorded interview showed that he told police that Vaughn
had both of the Schoberts’ phones. Thus, the trial court could prohibit defense
counsel from arguing that Ford was not asked about the phones when they knew
that he had been asked. See State v. Sibert, 98 Ohio App.3d 412, 426-427, 648
N.E.2d 861 (4th Dist.1994) (defense not permitted to argue that the state failed to
call victim’s father when counsel agreed that the victim’s father could not testify).
       {¶ 314} Based on the foregoing, we reject proposition of law No. XVI.
                L. Sufficiency and Manifest Weight of the Evidence
       {¶ 315} In proposition of law No. XII, Ford challenges the sufficiency of
the evidence for his convictions for (1) aggravated murder with prior calculation
and design, (2) aggravated murder during an aggravated robbery, the aggravated-
robbery death-penalty specifications, and the separate aggravated-robbery offense,
(3) aggravated murder during an aggravated burglary and the separate aggravated-
burglary offense, and (4) grand theft. He also challenges his conviction for the
felonious assault of Chelsea as against the manifest weight of the evidence.
             1. Aggravated Murder with Prior Calculation and Design
       {¶ 316} Ford argues that there is insufficient evidence of the element of
prior calculation and design to support his convictions for the aggravated murders
of Jeffrey (Count 1) and Margaret (Count 4). Ford also challenges his convictions
for committing aggravated murder with prior calculation and design in the two
death-penalty specifications attached to Count 4.
       {¶ 317} 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




                                         86
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(1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
       {¶ 318} Ford claims that there is insufficient evidence of prior calculation
and design because it is just as likely that he went to the Schoberts’ home to break
in and rob the Schoberts while they were at the hospital. He argues that he did not
bring a weapon to the house but used a knife and a sledgehammer obtained from
the Schoberts’ home.
       {¶ 319} “The phrase ‘prior calculation and design’ by its own terms
suggests 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. There is no bright-line
test to distinguish between the presence or absence of prior calculation and design;
each case depends upon its own facts. Id. at ¶ 19. Three factors have traditionally
been considered in determining whether prior calculation and design exists: “(1)
Did the accused and victim know each other, and if so, was that relationship
strained? (2) Did the accused give thought or preparation to choosing the murder
weapon or murder site? and (3) Was the act drawn out or ‘an almost instantaneous
eruption of events?’ ” State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997),
quoting State v. Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976).
       {¶ 320} There is sufficient evidence in this case for any rational trier of fact
to find that Ford killed Jeffrey and Margaret with prior calculation and design.
First, Ford knew the Schoberts and knew that they did not want him to see Chelsea
in the hospital. Ford also knew that the story he had told police about Chelsea’s
assault was falling apart. Second, despite Ford’s assertion that he planned only to
steal from the Schoberts and that he went to the Schoberts’ house without a weapon,
there is sufficient evidence that he had decided to kill them. Regarding the murder
of Jeffrey, the evidence shows that Jeffrey was in bed when Ford arrived at the
Schoberts’ home. There is no evidence of a struggle or confrontation between Ford
and Jeffrey. Ford admits he took a sledgehammer from the Schoberts’ garage, went




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upstairs to the bedroom, and killed Jeffrey by hitting him in the head, at least 14
times according to the coroner.
       {¶ 321} There is also sufficient evidence of prior calculation and design for
the aggravated murder of Margaret (Count 4). After killing Jeffrey, the evidence
suggests that Ford waited at the house for Margaret to come home. During this
time Ford or Vaughn used Jeffrey’s phone, pretending to be Jeffrey, to determine
when Margaret would be coming home.
       {¶ 322} At trial, the state introduced text messages that were exchanged
between Jeffrey’s phone and Margaret’s phone during the early morning of April
2, 2013:


               [03:58:19: (Jeffrey)] you still at hospital
               ***
               [04:57:59: (Margaret)] Have u been up all night
               [04:59:26: (Jeffrey)] yea
               [05:00:10: (Jeffrey)] How Chelsea doin
               [05:09:00: (Jeffrey)] What time you coming home
               [05:12:25: (Margaret)] Who is at the house
               [05:14:30: (Jeffrey)] Just me i know you called but my phone
       not working right now i dobt know why
               [05:16:26: (Margaret)] we have been up since 4. * * * She
       is crying bc she can’t eat cereal and wants to see shawn
               [05:17:49: (Jeffrey)] Is you go let her see him
               [05:17:53: (Margaret)] Her throat is hurting. * * * She says
       she is 18 and can do what she wants
               [05:18:15: (Margaret)] Is this Shawn
               ***
               [05:19:11: (Jeffrey)] I hate that asshole




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               [05:20:21: (Margaret)] What is going on
               ***
               [05:22:12: (Jeffrey)] I’m about to go to bed i been up all
       night but what time you coming
               [05:22:53: (Margaret)] Why were u up all night
               ***
               [05:24:45: (Jeffrey)] I was watching TV and i was studying
       my case
               [05:25:10: (Margaret)] why do u want to know when I am
       coming
               [05:27:19: (Jeffrey)] Because I’m probably go be sleep when
       you get here just asking
               [05:29:35: (Jeffrey)] Goodnight hun
               [05:30:09: (Margaret)] I can’t deal w lies anymore
               [05:31:06: (Jeffrey)] What are you talking about


       {¶ 323} Despite Margaret’s suspicions that it was Ford and not Jeffrey who
was texting her, Margaret did not call the police and went home alone. The
evidence suggests that Ford and Vaughn had been in the home for hours, lying in
wait for her arrival, and attacked her with the sledgehammer when she walked into
the bedroom. She was hit in the head at least 19 times. Regardless of Ford’s claim
that he arrived at the Schoberts’ home without a weapon and regardless of his claim
that his original plan was only to steal from the Schoberts, there is sufficient
evidence for any rational trier of fact to find beyond a reasonable doubt that after
Ford arrived at the Schoberts’ home, he decided to kill them.
       {¶ 324} Accordingly, we conclude that there was sufficient evidence to
establish that Ford acted with prior calculation and design in killing Jeffrey and
Margaret.




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               2. Aggravated Murder during Aggravated Robbery
       {¶ 325} Ford argues that the evidence does not support his convictions for
aggravated murder during an aggravated robbery (Counts 2 and 5), the death-
penalty specifications for committing aggravated murder while committing
aggravated robbery, and the aggravated-robbery offenses (Counts 6 and 7). He
contends that there was no evidence that he committed theft or knew that a theft
was committed. These claims lack merit.
       {¶ 326} R.C. 2903.01(B), Ohio’s felony-murder statute, reads:


              (B) No person shall purposely cause the death of another or
       the unlawful termination of another’s pregnancy while committing
       or attempting to commit, or while fleeing immediately after
       committing or attempting to commit, kidnapping, rape, aggravated
       arson, arson, aggravated robbery, robbery, aggravated burglary,
       burglary, trespass in a habitation when a person is present or likely
       to be present, terrorism, or escape.


(Emphasis added.)
       {¶ 327} The capital specification, R.C. 2929.04(A)(7), sets forth the criteria
for imposing death or imprisonment for aggravated murder during an aggravated
robbery:


              (A) Imposition of the death penalty for aggravated murder is
       precluded unless one or more of the following is specified in the
       indictment or count in the indictment pursuant to section 2941.14 of
       the Revised Code and proved beyond a reasonable doubt:
              ***




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                   (7) The offense was committed while the offender was
           committing, attempting to commit, or fleeing immediately after
           committing or attempting to commit kidnapping, rape, aggravated
           arson, aggravated robbery, or aggravated burglary, and either the
           offender was the principal offender in the commission of the
           aggravated murder or, if not the principal offender, committed the
           aggravated murder with prior calculation and design.


(Emphasis added.)
           {¶ 328} R.C. 2911.01 sets forth provisions of the aggravated-robbery
statute:


                   (A) No person, in attempting or committing a theft offense,
           as defined in section 2913.01 of the Revised Code, or in fleeing
           immediately after the attempt or offense, shall do any of the
           following:
                   (1) Have a deadly weapon on or about the offender’s person
           or under the offender’s control and either display the weapon,
           brandish it, indicate that the offender possesses it, or use it;
                   ***
                   (3) Inflict, or attempt to inflict, serious physical harm on another.


           {¶ 329} Heather Greathouse testified that before the murders, Ford said he
was going to “hit a lick.” After the murders, he returned with two rings and some
money. Heather’s aunt threw the rings in a nearby dumpster. The police later
recovered the rings, and Chelsea identified one of the rings as her mother’s. Ford
also admitted to police that someone took money and jewelry from the Schoberts’
home. Thus, we hold that there was sufficient evidence to establish Ford’s guilt of




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aggravated murder during an aggravated robbery, the related aggravated-robbery
death-penalty specifications, and the robbery offenses themselves.
               3. Aggravated Murder during Aggravated Burglary
       {¶ 330} Ford argues that the evidence is insufficient to support his
convictions for committing aggravated murder during an aggravated burglary
(Counts 3 and 6) and the separate aggravated-burglary offense (Count 8) because
the state failed to prove that someone was likely to be home at the time of the
offenses.
       {¶ 331} The aggravated-burglary statute, R.C. 2911.11, provides:


               (A) No person, by force, stealth, or deception, shall trespass
       in an occupied structure or in a separately secured or separately
       occupied portion of an occupied structure, when another person
       other than an accomplice of the offender is present, with purpose to
       commit in the structure or in the separately secured or separately
       occupied portion of the structure any criminal offense, if any of the
       following apply:
               (1) The offender inflicts, or attempts or threatens to inflict
       physical harm on another * * *.


       {¶ 332} “Occupied structure” is defined in R.C. 2909.01:


               (C) “Occupied structure” means any house, building,
       outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or
       other structure, vehicle, or shelter, or any portion thereof, to which
       any of the following applies:
               ***




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                (4) At the time, any person is present or likely to be present
       in it.


(Emphasis added.)
       {¶ 333} The state charged Ford with aggravated burglary under R.C.
2911.11(A), which requires that a “person other than an accomplice of the offender
[was] present.” (Emphasis and brackets added.) The evidence showed that Jeffrey
was at home at the time of the aggravated burglary. Thus, the state did not need to
also prove the likelihood that Jeffrey or Margaret would be present.
       {¶ 334} Ford cites State v. Fowler, 4 Ohio St.3d 16, 445 N.E.2d 1119
(1983), in arguing that the state needed additional proof that Jeffrey or Margaret
were “likely to be present.” The aggravated burglary in that case occurred when
no one was home. Under those circumstances, which are not applicable here, this
court held that “proof that a permanent or temporary habitation or dwelling has
been burglarized is alone insufficient to establish the fourth element necessary to
support a conviction for aggravated burglary, i.e., that the occupied structure is one
at the time of the trespass in which any person is present or likely to be present.”
Id. at 18. Thus, Fowler is inapposite.
       {¶ 335} We hold that there was sufficient evidence for the jury to conclude
beyond a reasonable doubt that Ford was guilty of the two counts of aggravated
murder during an aggravated burglary and of the separate aggravated-burglary
offense.
                                   4. Grand Theft
       {¶ 336} Ford argues that there is insufficient evidence to support his
conviction for the grand theft of Jeffrey’s automobile (Count 9) because there is no
proof that he exerted control over the vehicle.
       {¶ 337} Jeffrey’s automobile was missing from his home when the murders
were discovered. Based on information that Ford provided to inmate Beech, the




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police located Jeffrey’s car a short distance from where Vaughn was staying. A
search of nearby drains uncovered gloves, a knife, and a stocking hat. The BCI
forensic scientist determined that Ford could not be excluded as a contributor to the
DNA found on the stocking hat.
       {¶ 338} “Grand theft requires one to obtain or exert control over property
of another.” State v. Talley, 18 Ohio St.3d 152, 155, 480 N.E.2d 439 (1985). Ford
argues that the state failed to prove that Ford took or drove Jeffrey’s automobile. It
is unclear whether Ford or Vaughn drove the car. But evidence shows that Ford
was in the car. He told Beech where the car could be found. Evidence linking Ford
to the murders was also found in the area near the car. Thus, even assuming that
Ford was not the driver, we conclude that there was sufficient evidence for the jury
to find beyond a reasonable doubt that Ford committed grand theft as an aider or
abettor.
                          5. Felonious Assault of Chelsea
       {¶ 339} Ford contends that his conviction for the felonious assault of
Chelsea (Count 11) is against the manifest weight of the evidence. He argues that
Joshua, Zachary, and Chelsea picked someone besides Ford from the photo lineup
as the assailant. Ford also mentions that Joshua and Zachary provided inconsistent
accounts of what happened.
       {¶ 340} When reviewing a claim that a jury verdict is against the manifest
weight of the evidence, an appellate court must apply the following test:


               “The court, reviewing the entire record, weighs the evidence
       and all reasonable inferences, considers the credibility of witnesses
       and determines whether in resolving conflicts in the evidence, the
       jury clearly lost its way and created such a manifest miscarriage of
       justice that the conviction must be reversed and a new trial ordered.
       The discretionary power to grant a new trial should be exercised




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       only in the exceptional case in which the evidence weighs heavily
       against the conviction.”


State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
       {¶ 341} Evidence shows that on March 23, 2013, Ford attacked Chelsea in
a bedroom at Zachary’s residence. According to Chelsea, Ford wanted to have sex,
but she asked him to wait. Ford then hit her in the head with a brick and stabbed
her in the neck and back. Following the attack, Ford told Joshua not to tell the truth.
He also told Zachary to tell the police that Chelsea was assaulted by some guys at
a party in Kent. Chelsea testified that she was initially scared to tell the truth: “I
thought if he would have found out, then I would be in worse condition than I
already was.” Heather testified that Ford told her that he “stabbed [Chelsea] and
he hit her upside the head with a brick,” because “she wasn’t paying attention to
him.” Ford “ultimately admitted” to detectives that “he did this to Chelsea.” Given
the strength of the trial testimony and Ford’s own admissions, we conclude that
Ford’s felonious-assault conviction is supported by the manifest weight of the
evidence.
       {¶ 342} Based on the foregoing, we reject proposition of law No. XII.
                               M. Conflicting Verdicts
       {¶ 343} In proposition of law No. II, Ford argues that the jury returned
conflicting verdicts on the R.C. 2929.04(A)(7) death-penalty specifications in the
counts for the aggravated murder of Margaret. Because Ford did not object to this
alleged error at trial, he forfeited all but plain error. See Ballew, 76 Ohio St.3d at
251, 667 N.E.3d 369.
       {¶ 344} The jury found Ford guilty of the aggravated murder of Margaret
with prior calculation and design, R.C. 2903.01(A) (Count 4), and the aggravated
murder of Margaret during an aggravated robbery, R.C. 2903.01(B) (Count 5).




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Both counts contained identical R.C. 2929.04(A)(7) specifications.7 The jury also
found Ford guilty of “prior calculation and design” in Specifications 2 and 3 of
Count 4.       However, he was found guilty as the “principal offender” in
Specifications 2 and 3 of Count 5.
        {¶ 345} Prior to the mitigation phase, at the request of both parties, the trial
court merged Count 3, to the extent that it related to Margaret, Count 4, and Count
5 into Count 4.        Count 4 and the accompanying aggravating-circumstances
specifications for the killing of two or more people and the commission of an
aggravated murder with prior calculation and design were submitted to the jury in
the sentencing phase.
        {¶ 346} Ford complains that the verdicts in Counts 4 and 5 are conflicting.
First, he argues that the state should not have been allowed to charge both that Ford
acted as the principal offender (i.e., the actual killer) or, if not the principal offender,
that he acted with prior calculation and design. However, Ford acknowledges in
his reply brief that the prior-calculation-and-design and the principal-offender
elements of R.C. 2929.04(A)(7) may be charged disjunctively. The analysis in
Ford’s reply brief reflects the proper standard of law. See State v. Cook, 65 Ohio
St.3d 516, 527, 605 N.E.2d 70 (1992) (trial court may instruct the jury on prior-
calculation-and-design and principal-offender status disjunctively in the same
specification).
        {¶ 347} Second, Ford argues that the trial court erred by accepting
conflicting verdicts in Counts 4 (i.e., murder with prior calculation and design) and
5 (i.e., murder as the principal offender). However, the verdicts involved separate
counts. And as we have stated, “ ‘The several counts of an indictment containing
more than one count are not interdependent and an inconsistency in a verdict does

7. Count 3 charged Ford with the aggravated murder (aggravated burglary) of Jeffrey or Margaret.
Specifications 2 and 3 under Count 3 were the same as the specifications underlying Counts 4 and
5. The jury also found Ford guilty of Count 3 and guilty as the “principal offender” under
Specifications 2 and 3.




                                              96
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not arise out of inconsistent responses to different counts, but only arises out of
inconsistent responses to the same count.’ ” State v. Adams, 53 Ohio St.2d 223,
374 N.E.2d 137 (1978), paragraph two of the syllabus. Moreover, the trial court’s
merger of the convictions ensured that the murder of Margaret with prior
calculation and design was the only count with R.C. 2929.04(A)(7) specifications
that was submitted for the jury’s consideration for sentencing.
          {¶ 348} Third, Ford cites State v. Penix, 32 Ohio St.3d 369, 371, 513 N.E.2d
744 (1987), in arguing that the alternative specifications should not have been
submitted to the jury. Penix held that it is error for a trial court to allow the jury to
consider prior calculation and design together with principal-offender status as
separate aggravating circumstances. Id. However, the present case differs from
Penix in that the prior-calculation-and-design and the principal-offender elements
of R.C. 2929.04(A)(7) were charged disjunctively to the jury in a single
specification. Thus, Ford’s claim that there was a Penix violation lacks merit. See
Cook at 527.
          {¶ 349} Fourth, Ford argues that the trial court erred by failing to instruct
the jurors that to convict him of the R.C. 2929.04(A)(7) specifications, they had to
agree unanimously on which of the two alternatives (principal offender or prior
calculation and design) they found him guilty. The court erred by failing to provide
such instructions. See State v. Moore, 81 Ohio St.3d 22, 40, 689 N.E.2d 1 (1998).
Because the defense failed to object, however, Ford has forfeited all but plain error.
See State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 111.
No plain error occurred, because the guilty verdict as to Count 4 indicated
unanimous agreement that Ford committed the murder with prior calculation and
design.
          {¶ 350} Finally, Ford argues that the verdict forms did not instruct the jury
that they could consider prior calculation and design only if they found that he was




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not the principal offender. Ford did not raise an objection to the verdict forms and
forfeited all but plain error. We find that no plain error occurred.
          {¶ 351} Based on the foregoing, we reject proposition of law No. II.
               N. Readmission of Trial-Phase Evidence and Testimony
          {¶ 352} In proposition of law No. XIV, Ford argues that the trial court erred
in readmitting trial-phase evidence and all the trial-phase testimony during
mitigation.
          {¶ 353} R.C. 2929.03(D)(1) provides that at the penalty stage of a capital
proceeding, the jury shall consider, among other things, “any evidence raised at
trial that is relevant to the aggravating circumstances the offender was found guilty
of committing * * * [and] hear testimony and other evidence that is relevant to the
nature and circumstances of the aggravating circumstances the offender was found
guilty of committing.” See State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019,
9 N.E.3d 930, ¶ 240; State v. DePew, 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542
(1988).
          {¶ 354} Ford asserts that the trial court erred in readmitting this evidence
because none of it was relevant to the aggravating circumstances. He argues that
the state was merely retrying guilt in the mitigation phase. He also argues that the
prosecutor was trying to admit photographs showing blood so that the jury would
focus on the gruesomeness of the crimes.
          {¶ 355} The trial court readmitted only the evidence that it deemed relevant
to the aggravating circumstances. The ring and watch recovered from the dumpster,
the stocking cap with Ford’s DNA on it, the gloves worn on the night of the murder,
the photographs of the Schoberts’ home, the photograph of the bloody envelope
inside Margaret’s purse, and the photograph of blood on the console of the car were
relevant to the aggravated-robbery and aggravated-burglary specifications. The
two photographs of Margaret’s injuries and the autopsy reports and protocols for
Margaret and Jeffrey were relevant to the course-of-conduct aggravating




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circumstance. Accordingly, we find that the trial court did not abuse its discretion
in readmitting this evidence, because the evidence bore some relevance to the
nature and the circumstances surrounding the R.C. 2929.04(A)(5) course-of-
conduct specification and the (A)(7) felony-murder specification. See Dean, 146
Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 189.
         {¶ 356} The photographs of the hat and the gloves were unnecessarily
cumulative and should not have been admitted. Similarly, the photographs of the
Family Dollar store and dumpster where the ring and watch were found lack
relevance and should not have been admitted. Nevertheless, we find that the
readmission of this evidence was not prejudicial.
         {¶ 357} Ford also argues that the trial court erred by readmitting all
testimonial evidence, because the jury had no way to disregard evidence that did
not relate to the aggravating circumstances. However, defense counsel did not
object to the readmission of the trial testimony and thus forfeited all but plain error.
         {¶ 358} Ford’s primary complaint is that all testimonial evidence regarding
the felonious assault of Chelsea was submitted for consideration. But the trial
court’s instructions on relevancy limited the jury’s consideration of the trial-phase
testimony to that testimony related to the aggravating circumstances and the
mitigating factors. Thus, there was no room for the jury to consider any evidence
concerning Chelsea’s felonious assault.
         {¶ 359} Ford also argues that Dr. Dean’s testimony about the autopsies was
not relevant to the aggravating circumstances. Even assuming that Dr. Dean’s
testimony should not have been considered, we hold that no plain error occurred.
         {¶ 360} Viewing the mitigation-phase instructions as a whole, we conclude
that the trial court adequately guided the jury’s consideration of the testimony
during mitigation. See McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d
508, at ¶ 253-254; Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at
¶ 251.




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       {¶ 361} Based on the foregoing, we reject proposition of law No. XIV.
                             O. Instructions on Mercy
       {¶ 362} In proposition of law No. XIX, Ford argues that the trial court erred
by denying his request for an instruction on mercy. We have consistently rejected
similar claims. See Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034,
at ¶ 131; State v. Lorraine, 66 Ohio St.3d 414, 417-418, 613 N.E.2d 212 (1993).
And contrary to Ford’s claims, neither Kansas v. Marsh, 548 U.S. 163, 126 S.Ct.
2516, 165 L.Ed.2d 429 (2006), nor Kansas v. Carr, __ U.S. __, 136 S.Ct. 633, 193
L.Ed.2d 535 (2016), holds that a defendant is entitled to an instruction on mercy.
We reject proposition of law No. XIX.
                           P. Prosecutorial Misconduct
       {¶ 363} In proposition of law No. XIII, Ford argues that the prosecutor
committed misconduct by disparaging defense counsel during the trial-phase and
mitigation-phase closing arguments. Except where noted, however, trial counsel
failed to object and thus have forfeited all but plain error. State v. Wade, 53 Ohio
St.2d 182, 373 N.E.2d 1244 (1978), paragraph one of the syllabus.
       {¶ 364} The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s substantial
rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone
of the analysis “is the fairness of the trial, not the culpability of the prosecutor.”
Phillips, 455 U.S. at 219, 102 S.Ct. 940, 71 L.Ed.2d 78.
                              1. Trial-Phase Argument
       {¶ 365} First, Ford contends that the prosecutor improperly argued: “And I
guarantee you the defense will suggest to you at points in their argument that you
should not consider someone because of their background and that you would not
rely on those people in the most important of your affairs.” Ford argues that the
prosecutor was insinuating that the defense would try to get the jury to do things
the law does not permit. It is improper to denigrate counsel in the jury’s presence.




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Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 123. But
counsel’s argument was directed at defense counsel’s anticipated argument about
the state’s witnesses, not defense counsel’s insincerity or improper motives. No
plain error occurred. See Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d
565, at ¶ 221.
       {¶ 366} Second, Ford argues that the prosecutor attempted to disparage
counsel during rebuttal by arguing: “One of the things I want to point out at the
beginning of this thing is: Mr. Sinn has done what I consider to be, you know, the
Jedi mind trick. It is, you know: Look over here, don’t look at the evidence.” But
the defense had opened the door to these comments by arguing: “[T]here is a lot
more to this case than what you think you know. I mean, the prosecutor packages
it in such a way that it is just so clear that you don’t look any further.” Both parties
have latitude in responding to arguments of opposing counsel and may be “colorful
or creative.” State v. Brown, 38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988). The
prosecutor’s comment about “the Jedi mind trick” was a creative response to
defense counsel’s argument and was not aimed at denigrating him. State v. Smith,
87 Ohio St.3d 424, 442-443, 721 N.E.2d 93 (2000). Thus, no plain error occurred.
       {¶ 367} Third, Ford objects to the prosecutor’s argument about a letter from
Ford to Chelsea that was not admitted at trial:


                 So what does Mr. Sinn do? Mr. Sinn came up here and told
       you: If you can’t feel it, put your hands on it—if it is important, you
       should be able to put your hands on it, right?
                 Why is he saying that? Because he knows that there are
       certain things that you can’t put your hands on.
                 ***
                 Mr. Sinn complains because we did not give you the letter
       that Detective Hitchings talked about that said “I love you to death”




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       in it. You can imagine that letter is probably just full of self-serving
       things the defendant said, and we didn’t feel that that was important
       to our case.
               If Mr. Sinn does, he has the letter, he has all the discovery in
       this case, he has all those things, he has all those interviews.


       {¶ 368} The prosecutor’s rebuttal was fair comment in the face of the
defense’s argument, “I didn’t see a jail letter come into evidence. I don’t know.
You can look through 270 pieces of evidence.” “And when a piece of evidence that
comes by that’s so big to you * * * dig through the box, find it. * * * If it is that
important, hold it in your hands.” The prosecutor’s comments were directed at the
evidence and not counsel.
       {¶ 369} Fourth, Ford objects to the prosecutor’s statement, “If Mr. Sinn has
some additional evidence about Zach Keys, I will charge him, too.” But the defense
had raised the possibility that Zachary was at the murder scene, the prosecutor’s
comments were aimed at the evidence and not counsel, and nothing improper was
said. The prosecutor’s comments could also be characterized as the expression of
personal opinion, but such comments are not improper if they are based on the
evidence presented at trial. Smith, 87 Ohio St.3d at 443, 721 N.E.2d 93. That is
what occurred here.
       {¶ 370} Fifth, Ford contends that the prosecutor, over defense objection,
disparaged counsel by arguing: “One of the other things I thought was really funny
is—or interesting is, is that they said you don’t know the rest of the story. I didn’t
hear anybody tell us the rest of the story.” But the prosecutor’s characterization of
the defense argument as “really funny” was directed at the merits of the argument
and not counsel. Thus, no error was committed. See Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, 900 N.E.2d 565, at ¶ 221.




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       {¶ 371} Sixth, Ford contends that the prosecutor improperly argued: “The
other thing is, he puts that—we call it planting a seed, right? He says, ‘There is
more to this case than you think you know.’ What does that mean? It means
nothing.”   These were fair comments in the face of the defense argument.
Moreover, nothing in these remarks disparaged counsel.
       {¶ 372} Finally, Ford contends that the prosecutor attacked defense counsel
and not the evidence in arguing: “One of the things that I always, you know, think
is interesting is how a defense approaches a case. And that’s fine; they have the
right to do that however they want.” These comments implied that defense
counsel’s approach in defending Ford was insincere. See LaMar, 95 Ohio St.3d
181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 167 (the prosecutor improperly
juxtaposed his “honest” case with the defense case and unfairly suggested that the
defense’s case was not honestly presented). Even so, we conclude that these were
isolated comments that did not deny Ford a fair trial. Thus, no plain error occurred.
                          2. Mitigation-Phase Argument
       {¶ 373} First, Ford objects to the prosecutor’s argument about the value of
mitigating evidence:


               Now, the past few days may have seemed to drag out longer
       than you thought they were, but these are the witnesses you heard:
               Kathleen Kovach. She is from the Ohio Parole Board. [Her]
       testimony is that individuals who receive sentences other than death
       and other than life without parole are eligible for parole at some
       time.
               Compare the value of that as a mitigating factor to the
       aggravating circumstances.




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       {¶ 374} Ford argues that this argument disparaged counsel for spending too
long in presenting mitigation. However, the prosecutor’s remarks about the length
of mitigation cannot be reasonably construed as a criticism of defense counsel.
Ford also contends that the prosecutor’s request that the jury compare the “value”
of mitigating evidence against the aggravating circumstances was improper,
because the jury’s role is to consider the “weight” of mitigating evidence. But
nothing in this argument resulted in plain error.
       {¶ 375} Second, Ford contends that the prosecutor’s rebuttal disparaged
how defense counsel argued the case by stating:


       [W]hat you just heard was not about the law, it wasn’t about the
       facts, it wasn’t about mitigation, it wasn’t about aggravating
       circumstances. What you just heard is a plea.
               See, when you don’t have the facts on your side, you pound
       the law. When you don’t have the law on your side, you pound the
       facts. And when you got neither on your side, you beg and interject
       race. That’s what you just heard.


       {¶ 376} “A prosecutor can respond to issues raised by an accused.” State
v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 101. Here, in
support of the defense counsel’s impassioned plea for a life sentence for Ford rather
than the death penalty, defense counsel argued the reasons why young black men
like Ford never really have a fair chance.          Ford’s counsel was arguing that
mitigating factors support a life sentence; the prosecutor argued that the aggravating
factors support the imposition of the death penalty. While the prosecutor’s remarks
here are dismissive and reductive, they do not rise to the level of plain error.
       {¶ 377} Third, Ford argues that the prosecutor committed misconduct
during rebuttal argument by stating:




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               And then: These two are us. You know, they always call us
       “the government.” And I always go home and tell my wife, “Hey,
       guess who you are sleeping with tonight, the government.”
               I am human. Did you think I didn’t feel bad when Mrs. Ford
       got up there and asked you to save her son’s life? Are you kidding
       me? There wasn’t a dry eye in here.


       {¶ 378} The state concedes that the prosecutor’s remarks were unnecessary
but argues that they were just as likely an attempt at levity as a denigration of
defense counsel. These remarks about the defense argument were improper.
However, there is no reasonable basis to conclude that the result of the trial would
have been different absent them. See Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
900 N.E.2d 565, at ¶ 222. No plain error occurred.
       {¶ 379} Fourth, Ford objects to the prosecutor’s comments about his
mother’s testimony: “How odd is it and ironic is it that the reason that [Mrs. Ford]
is in here crying for you, begging to you, to save her son’s life is because of what
he did. * * * That’s mitigating? To me, that’s cruel. To make your mother do
that, to put your mother through that because of what you did.” These comments,
as inappropriate and maybe even as inaccurate as they may have been, were
directed toward Ford, and not counsel. But even if such remarks could be imputed
to defense counsel, no plain error occurred.
       {¶ 380} Fifth, Ford contends that the rebuttal argument disparaged counsel
by saying: “I know Mr. Sinn would not intentionally do this, but he kept talking to
you about the aggravating circumstances and, okay, Mr. Gessner [the prosecutor]
had his hand up here when he said aggravating circumstances.” But this was a
response to defense counsel’s argument that the state would “talk to you about these




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aggravating circumstances, and they keep putting their hands up real high,
aggravating circumstances.” None of these comments disparaged counsel.
       {¶ 381} Sixth, Ford contends that the prosecutor’s rebuttal disparaged
counsel by stating: “He talks about hate. He is trying to appeal to your sympathies,
trying to make you feel like bad people if you were to find the aggravating
circumstances outweigh the mitigating factors. Please do not fall for that one.”
Ford also cites the prosecutor’s claim that defense counsel was “implying somehow
that if you do your job * * * that somehow you are a bad person, and make you feel
guilty and bad for following the law. Please, do not do that.” Again, both the
prosecutor and defense counsel were attempting to persuade the jury to adopt their
point of view about the appropriate punishment for Ford. Although the prosecutor’s
remarks here could be viewed as manipulative, they do not rise to the level of plain
error. See Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 253.
       {¶ 382} Seventh, Ford argues that the prosecutor inappropriately argued:
“And we are here to honor the law, not great speeches, racist speeches—or speeches
about racism, speeches about slavery. * * * I mean, I can’t imagine going back
there after hearing that history of slavery in this country and not feeling a little
awkward, maybe pandered to.” This rebuttal was a response to defense counsel’s
arguments about racism. His remarks were directed at the merits of that argument
and not counsel. No plain error occurred.
       {¶ 383} Eighth, Ford asserts that the prosecutor disparaged counsel by
arguing: “And I want to bring up another thing before I close here. They talk about
his low IQ and they talk about his deficits. * * * I forget how he said it; it was
really well done. He must have stayed up all night writing it.” The state’s sarcastic
remarks, which were directed at counsel, were inappropriate and improper. The
state concedes that the remarks were unnecessary but argues that they did not have
any effect on the sentence. We agree. There is no reasonable basis to conclude that
the sentence would have been different absent these comments, and no plain error




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occurred. See Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at
¶ 222.
         {¶ 384} As a final matter, Ford argues that the cumulative effect of the
prosecutor’s sarcastic and denigrating comments directed at defense counsel
warrants reversal of the sentence.
         {¶ 385} For a prosecutor’s closing argument to be prejudicial, the remarks
must be “so inflammatory as to render the jury’s decision a product solely of
passion and prejudice.” State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906
(1986). To determine whether the remarks were prejudicial, we must review the
closing argument in its entirety. State v. Slagle, 65 Ohio St.3d 597, 607, 605 N.E.2d
916 (1992); State v. Moritz, 63 Ohio St.2d 150, 157, 407 N.E.2d 1268 (1980). Thus,
we must consider all of the prosecutor’s remarks, irrespective of whether the
defense preserved an objection. Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203
(“even though the defense waived objection to many remarks, those remarks still
form part of the context in which we evaluate the effect on the jury of errors that
were not waived”).
         {¶ 386} The prosecutor made inappropriate sarcastic remarks twice and
also denigrated counsel on one other occasion. However, these were all relatively
isolated remarks that did not pervade the prosecutor’s overall mitigation argument.
         By comparison, in State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966,
15 N.E.3d 818, we concluded that the prosecutor’s closing remarks during the
mitigation-phase argument were improper and “substantially prejudicial.” Id. at
¶ 96. That prosecutor had invited the jury to consider what the victim experienced
in the last moments of life, incited the jury’s emotions through assertions that were
not supported by the record, and argued that a sentence less than death was
meaningless because he was already serving a life sentence. Id. at ¶ 82, 86-87.
         {¶ 387} Similarly, in Keenan, 66 Ohio St.3d at 405-411, 613 N.E.2d 203,
we held that the prosecutor’s improper argument denied the defendant a fair trial.




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There, the prosecutor improperly expressed his personal opinion about the
defendant’s guilt, denigrated counsel for making objections, consistently
substituted emotion for reasoned advocacy, and attacked the character of the
defendant’s friends to attack him. Id.
        {¶ 388} After reviewing the mitigation-phase closing argument in its
entirety, we find that the prosecutors in Kirkland and Keenan committed far more
serious and pervasive errors than the prosecutor made here. Thus, we hold that the
prosecutor’s closing remarks were not substantially prejudicial and did not deny
Ford a fair trial.
        {¶ 389} Based on the foregoing, we reject proposition of law No. XIII.
                          Q. Ineffective Assistance of Counsel
        {¶ 390} In proposition of law No. XX, Ford raises various claims that his
counsel provided ineffective assistance during both phases of the trial.
        {¶ 391} Reversal of a conviction for ineffective assistance of counsel
requires that the defendant show, first, that counsel’s performance was deficient
and second, that the deficient performance prejudiced the defendant so as to deprive
the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraph two of the syllabus.
                     1. Failure to Follow up on Grand-Jury Motions
        {¶ 392} Ford argues that trial counsel provided ineffective assistance by
failing to follow up on three pretrial motions related to the grand jury: (1) a motion
to disclose the names of grand-jury witnesses, (2) a request to transcribe the grand-
jury testimony, and (3) a request for a pretrial copy of the grand-jury proceedings.
        {¶ 393} At a hearing on November 26, 2013, the state objected to all three
motions because the defense failed to show a “particularized need” for disclosure.
Defense counsel responded that a relaxed standard for the release of grand-jury
testimony should apply in capital cases. The trial court took the motions under




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advisement. At a later hearing, on February 4, 2014, defense counsel argued for
the disclosure of grand-jury witnesses and proceedings in every capital case. On
September 24, 2014, the trial court ruled that the defense had failed to meet the
“heavy burden” for “the disclosure of any of the Grand Jury materials referred to
in those three motions; therefore, those motions will be overruled.”
       {¶ 394} We have recognized a limited exception to the general rule of
grand-jury secrecy: an accused is not entitled to review the transcript of grand-jury
proceedings “unless the ends of justice require it and there is a showing by the
defense that a particularized need for disclosure exists which outweighs the need
for secrecy.” State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph
two of the syllabus. A particularized need is established “when the circumstances
reveal a probability that the failure to provide the grand jury testimony will deny
the defendant a fair trial.” State v. Sellards, 17 Ohio St.3d 169, 173, 478 N.E.2d
781 (1985). Determining whether a particularized need exists is a matter within the
trial court’s discretion. Greer at paragraph one of the syllabus.
       {¶ 395} First, Ford argues that defense counsel were negligent in failing to
follow up on the grand-jury motions after the November 26, 2013 hearing.
However, defense counsel did follow up on the motions on February 4, 2014. This
preceded the trial court’s ruling on the motions on September 24, 2014.
       {¶ 396} Second, Ford argues that defense counsel were ineffective by
failing to raise meritorious arguments in support of his motions. He contends that
the defense needed the grand-jury testimony because the lay witnesses provided
inconsistent statements. However, the mere possibility of inconsistent testimony
does not rise to the level of a particularized need that would warrant the disclosure
of grand-jury testimony. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d
596, at ¶ 44.
       {¶ 397} Third, Ford asserts that the defense needed to know whether
Detective Morrison testified before the grand jury, because he did not testify at trial,




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and perhaps the defense would have called him as a witness if it had known what
he had said before the grand jury. But Ford was required to show that nondisclosure
of the grand-jury testimony would probably deprive him of a fair trial. Ford’s
speculative claim about Morrison fails to make such a showing. See Lang at ¶ 45.
       {¶ 398} Finally, Ford argues that defense counsel should have argued that
the defense was unable to establish a particularized need without knowing who
testified before the grand jury. The same arguments have previously been rejected.
Id. Accordingly, we conclude that these ineffectiveness claims lack merit.
                       2. Failure to Request Change of Venue
       {¶ 399} Ford argues that defense counsel were ineffective by failing to
request a change of venue. As an initial matter, it is unclear whether defense
counsel filed a motion for change of venue. Nothing in the record shows that
defense counsel actually filed such a motion. However, following the end of
individual voir dire, the trial court stated that the defense motion for a change of
venue was overruled.
       {¶ 400} Regardless, Ford cannot show that he was prejudiced by defense
counsel’s alleged failure to file a motion for change of venue. Counsel may have
reasonably decided as a matter of trial strategy to conduct the trial in Summit
County. See State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d
1263, ¶ 234; State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433,
¶ 156, quoting State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (“reviewing
court ‘will not second-guess trial strategy decisions’ ”). And the record does not
show the pervasive publicity about which Ford complains.
       {¶ 401} In addition, a change of venue is not automatically granted when
there is pretrial publicity. Any decision to change venue rests largely within the
discretion of the trial judge. See White, 82 Ohio St.3d at 25, 693 N.E.2d 772. Also,
a “defendant claiming that pretrial publicity has denied him a fair trial must show




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that one or more jurors were actually biased.” State v. Gross, 97 Ohio St.3d 121,
2002-Ohio-5524, 776 N.E.2d 1061, ¶ 29.
        {¶ 402} The jurors filled out questionnaires and were questioned about
pretrial publicity. Seven of the seated jurors during deliberations had not been
exposed to any media coverage about the case. One juror heard on TV that two
people died, another saw a news report, and a third read about the violent death of
a prominent couple in the newspaper. Of the remaining two jurors, one had heard
that someone had broken into a home and killed people with a sledgehammer. The
other remembered hearing that an older man coerced a younger man into
committing the murders and that the older man had something to do with the
victims’ daughter. Moreover, all the jurors who knew about the case indicated that
they could set aside their knowledge of the case and that the pretrial publicity would
not affect their ability to be fair and impartial. See Frazier at ¶ 236. Thus, counsel
could have reasonably decided not to request a change of venue. See Bryan at
¶ 156. Accordingly, we reject this ineffectiveness claim.
       3. Failure to Question or Object to Jurors Exposed to Pretrial Publicity
        {¶ 403} Ford argues that defense counsel failed to question or object to juror
Nos. 39, 48, 72, or 78 about pretrial publicity.
        {¶ 404} In general, “it is for [trial] counsel to determine what questions
should be asked on voir dire.” State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247,
781 N.E.2d 980, ¶ 139. “We have consistently declined to ‘second-guess trial
strategy decisions’ or impose ‘hindsight views about how current counsel might
have voir dired the jury differently.’ ” State v. Mundt, 115 Ohio St.3d 22, 2007-
Ohio-4836, 873 N.E.2d 828, ¶ 63, quoting Mason, 82 Ohio St.3d at 157, 694 N.E.2d
932.
        {¶ 405} Ford fails to explain what additional information defense counsel
should have obtained from these prospective jurors or how defense counsel could
have challenged these jurors. As discussed earlier, all the jurors who knew




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something about the case assured the court that they could be fair and impartial.
Thus, this claim lacks merit. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,
880 N.E.2d 31, ¶ 50.
                   4. Failure to Exhaust Peremptory Challenges
       {¶ 406} Ford argues that counsel were ineffective by failing to exercise all
of his peremptory challenges.
       {¶ 407} Decisions on the exercise of peremptory challenges are a part of
trial strategy. State v. Goodwin, 84 Ohio St.3d 331, 341, 703 N.E.2d 1251 (1999).
Trial counsel, who observe the jurors firsthand, are in a much better position to
determine whether a prospective juror should be peremptorily challenged. See
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 99.
       {¶ 408} Ford argues that the defense should have used their last peremptory
challenge against either juror No. 39 or No. 72 because they were automatic-death-
penalty jurors. However, as discussed in proposition of law No. VI, nothing shows
that either juror was biased or would automatically vote for the death penalty. Thus,
Ford fails to show that defense counsel were deficient or that he was prejudiced by
the failure to challenge these jurors. See Dean, 146 Ohio St.3d 106, 2015-Ohio-
4347, 54 N.E.3d 80, at ¶ 264.
       {¶ 409} Ford also contends that he was prejudiced because counsel’s failure
to exhaust Ford’s peremptory challenges waived any objection to the trial court’s
denial of a challenge of a juror. See Hale, 119 Ohio St.3d 118, 2008-Ohio-3426,
892 N.E.2d 864, at ¶ 87. However, Ford has failed to establish that he was
prejudiced by counsel’s action. Thus, we reject this claim.
                                5. Praising the Victims
       {¶ 410} Ford argues that counsel were ineffective by praising the victims’
character.   During opening statement, defense counsel reviewed the victims’
background, stating that Jeffrey was a “well-known and highly regarded” attorney.
Counsel added:




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               As the prosecution indicated, Attorney Schobert and his wife
       had been married for many, many years.            They adopted two
       daughters. You know, there is a saying about children of adoption,
       that God blesses them because they get to choose those children.
       And by every measure, the Schoberts were remarkable parents and
       they chose their daughters.
               ***
               The Schoberts were well-known in this community for their
       good works. Attorney Schobert mentored the Hoban mock trial
       team for years. He touched the lives of dozens of students.
               ***
               * * * [Mrs. Schobert] was the perfect counterpart to Mr.
       Schobert. And her dedication to her daughters, her love of this
       community, her work in various social organizations unparalleled.


       {¶ 411} The defense can legitimately choose a strategy that is aimed at
building rapport with the jury. See Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048,
873 N.E.2d 1263, at ¶ 225; Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d
433, at ¶ 168-169. It is not clear why defense counsel chose to praise the Schoberts.
However, it appears the defense was trying to establish credibility with the jury by
demonstrating awareness of the jurors’ likely concern for the victims’ family. Ford
fails to establish that he was prejudiced by these comments. Thus, we reject this
ineffectiveness claim.
       {¶ 412} Ford also argues that defense counsel improperly interjected
victim-impact evidence during the cross-examination of Chelsea:




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               Q: So who tells you that your parents are dead? Detective
       King?
               A: Yes.
               Q: And at some point, that causes you a new—incredible
       amount of distress?
               A: Yes.


The trial court then interrupted, stating, “It seems to me you have crossed a line into
victim impact information when you ask her about the incredible amount of distress
that she suffered as a result of her parents dying.” Defense counsel replied, “Well,
I guess I am just trying to establish what events took place after she found out her
parents died.” Although this cross-examination was of questionable relevance,
Ford does not show that he was prejudiced by such remarks.
       {¶ 413} Finally, Ford contends that defense counsel improperly mentioned
victim-impact evidence before the trial court imposed sentence. Counsel stated,
“The Schoberts were highly regarded in this community. Myself, throughout the
course of this case, I’ve encountered people who knew the Schoberts. They would
tell me about Mr. Schobert’s intellect, his landscaping business when he was
young.”    The trial court interrupted defense counsel and advised caution in
discussing victim-impact information.
       {¶ 414} “Absent an indication that the trial court considered the victim-
impact evidence in arriving at its sentencing decision, the admission of such
evidence is not reversible error. * * * [T]his court will presume that a trial court
considered only the relevant, material, and competent evidence in arriving at its
judgment, unless the contrary affirmatively appears from the record.” State v.
Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 131. Nothing
shows that the trial court considered defense counsel’s statements about the
victim’s background in sentencing Ford to death. Accordingly, Ford fails to show




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that he was prejudiced by defense counsel’s improper argument. We reject this
ineffectiveness claim.
                         6. Requesting Excusal of Juror No. 19
       {¶ 415} Ford argues that trial counsel were ineffective by requesting the
court to excuse juror No. 19 because she was a holdout juror.
       {¶ 416} As discussed in proposition of law Nos. VIII and IX, the defense
had unsuccessfully challenged juror No. 19 on two occasions: first, because she
was a paralegal and had interned for the state, and second, because she attended the
same church as Detective King. During the trial-phase deliberations, the parties
learned that juror No. 19 was Facebook friends with several members of the
prosecutor’s office. Defense counsel requested that juror No. 19 be excused, and
the trial court excused her. In an interview later published in the Akron Beacon
Journal, juror No. 19 stated that she had changed her mind and was planning to
remove her signature from the verdict convicting Ford of Jeffrey’s murder when
she was excused from the panel.
       {¶ 417} The scrutiny of counsel’s decision to request that juror No. 19 be
excused requires that this court make “every effort * * * to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.
       {¶ 418} In light of the prior defense challenges, defense counsel acted
reasonably by requesting that juror No. 19 be excused after they learned that she
was Facebook friends with the Summit County prosecutor and some of her staff.
In making this decision, defense counsel could not have known that juror No. 19
was prepared to vote not guilty. Thus, viewed from counsel’s perspective at the
time, we conclude that counsel were not deficient in moving to excuse juror No.
19.




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                            7. Presentence Investigation
       {¶ 419} Ford argues that defense counsel were ineffective in requesting a
presentence investigation (“PSI”). R.C. 2929.03(D)(1) provides that “[a] pre-
sentence investigation or mental examination shall not be made except upon request
of the defendant. Copies of any reports prepared under this division shall be
furnished to the court, to the trial jury if the defendant was tried by a jury, to the
prosecutor, and to the offender or the offender’s counsel for use under this
division.” (Emphasis added.)
       {¶ 420} During mitigation-phase deliberations, the trial court mentioned
that defense counsel had requested a PSI and mental-health examination pursuant
to R.C. 2929.03(D)(1). The trial court raised the question whether the PSI and Dr.
Stankowski’s report, which was considered to be the mental-health report, should
be provided to the jury.
       {¶ 421} Defense counsel objected to the PSI because it was completed in
haste and contained damaging information as to future dangerousness. Counsel
added that they did not have an opportunity to talk with Ford before he spoke to the
probation officer. Defense counsel requested to withdraw the PSI and wanted only
Dr. Stankowski’s report to be submitted. In the alternative, defense counsel asked
“that neither go in.” The trial court granted the defense request to withdraw the
PSI.
       {¶ 422} The state disputed that the PSI was completed in haste and argued
that they would have called other witnesses if they had known that Dr.
Stankowski’s report would be provided to the jury. The trial court then decided, “I
am going to follow the statute, and both documents will go to the jury.” After a
short recess, the trial court announced that “neither document will go to the jury.”




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         {¶ 423} Defense counsel submitted a request for Dr. Stankowski’s expert
assistance pursuant to R.C. 2929.024.8 Ford contends that if defense counsel had
understood that Dr. Stankowski’s assistance was requested under R.C. 2929.024,
they could have gotten her report to the jury while avoiding the R.C. 2929.03(D)(1)
requirement that the PSI also be submitted to the jury. But even so, Ford was not
prejudiced by the failure to submit Dr. Stankowski’s report to the jury, because she
provided lengthy mitigation testimony that covered much of the same information
contained in her report. Thus, we hold that this ineffectiveness claim lacks merit.
                      8. Deficiency in Raising Intellectual Disability
         {¶ 424} Ford argues that defense counsel were ineffective in pursuing his
intellectual-disability claim. However, it is unnecessary to review this claim,
because we are remanding to the trial court for further review of Ford’s intellectual-
disability claim.
                        9. Other Ineffective-Assistance Allegations
         {¶ 425} Ford raises other instances of alleged ineffectiveness of counsel.
But as discussed in other propositions of law, even if counsel were deficient, no
prejudice resulted. Ford has failed to establish that he was prejudiced by:
        counsel’s failure to object to the trial court’s and the prosecutor’s voir dire
         misstatements and shorthand references to the weighing process
         (proposition of law No. V);
        counsel’s isolated remarks referring to the aggravating circumstances as the
         “bad stuff”;
        counsel’s failure to more fully develop the issue of police coercion during
         his April 3, 2013 interview (proposition of law No. I);



8. R.C 2929.024 states: “If the court determines that the defendant is indigent and that investigation
services, experts, or other services are reasonably necessary for the proper representation of a
defendant charged with aggravated murder at trial or at the sentencing hearing, the court shall
authorize the defendant’s counsel to obtain the necessary services for the defendant * * *.”




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      counsel’s failure to request an evidentiary hearing before he was ordered to
       be shackled (proposition of law No. XV);
      counsel’s failure to apprise the trial court of Crim.R. 16(I) provisions during
       closing arguments (proposition of law No. XVI);
      counsel’s failure to object to the verdict forms or the verdict that he killed
       Margaret with prior calculation and design (proposition of law No. II); and
      counsel’s failure to object to the prosecutor’s improper remarks during the
       trial-phase and mitigation-phase closing arguments (proposition of law No.
       XIII).
                               10. Cumulative Error
       {¶ 426} Finally, Ford argues that defense counsel’s cumulative errors and
omissions violated his constitutional rights. However, because none of Ford’s
claims of ineffective assistance has merit, he cannot establish a right to relief by
simply joining these claims together. See Mammone, 139 Ohio St.3d 467, 2014-
Ohio-1942, 13 N.E.3d 1051, at ¶ 173.
       {¶ 427} Based on the foregoing, we reject proposition of law No. XX.
                              R. Sentencing Opinion
       {¶ 428} In proposition of law No. XVII, Ford argues that there are
numerous errors in the trial court’s sentencing opinion.
       {¶ 429} R.C. 2929.03(F) sets forth the findings a trial court must make
when imposing a death sentence. The statute requires that the court shall state the
following in a separate opinion:


       specific findings as to the existence of any of the mitigating factors
       set forth in division (B) of section 2929.04 of the Revised Code, the
       existence of any other mitigating factors, the aggravating
       circumstances the offender was found guilty of committing, and the




                                        118
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       reasons why the aggravating circumstances the offender was found
       guilty of committing were sufficient to outweigh the mitigating
       factors.


       {¶ 430} First, Ford argues that the trial court improperly referred to the R.C.
2929.04(A)(5)     course-of-conduct specifications     as   the   “multiple killing
specifications.” The trial court misspoke. However, the trial court had earlier
correctly identified the R.C. 2929.04(A)(5) specifications as “a course of conduct
involving the purposeful killing or attempt to kill two or more persons.” Thus, the
trial court did not misunderstand the meaning of those specifications.
       {¶ 431} Second, Ford argues that the trial court improperly stated that he
was found guilty of “Specifications Two and Three to Counts Four and Five, with
the determination that he committed the aggravated murder of Margaret J. Schobert
with prior calculation and design while committing * * * aggravated robbery.”
This was a misstatement, because Ford was found guilty of murder during an
aggravated burglary in Specification 3.       But this misstatement was harmless
because the trial court correctly identified the specifications elsewhere in the
opinion.
       {¶ 432} Third, Ford discounts the trial court’s statement that it did not
consider a list of irrelevant evidence. Ford argues, “If he examined them, he was
aware of them and it is hard to somehow wipe that evidence from his mind in
making his determination. It is like unringing his own bell.” However, Ford’s
claim overlooks that “a judge is presumed to be capable of separating what may be
properly considered from what may not be considered.” In re Disqualification of
Forsthoefel, 135 Ohio St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 9. Ford
presents nothing to overcome that presumption. Thus, we reject this claim.
       {¶ 433} Fourth, Ford argues that the trial court improperly compared him
with other family members by stating, “[M]any people grow up in circumstances




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similar to Defendant Ford’s and do not resort to criminal conduct. Indeed, his own
sister and two step brothers, who grew up in almost the exact same environment
are examples of how people from challenging backgrounds can live law abiding
lives.” However, such comparison was not improper. See State v. Hanna, 95 Ohio
St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 101; Campbell, 90 Ohio St.3d at
343, 738 N.E.2d 1178.
        {¶ 434} Fifth, Ford contends that the trial court improperly examined all the
statutory mitigating factors even though the defense did not present evidence
related to many of them. However, this claim overlooks the trial court’s statement,
“The court did not consider any mitigating factors under R.C. 2929.04 not raised
by the defense (e.g., R.C. 2929.04(B)(1), (2), (5), or (6)) and has given no weight
to the fact that the defense presented no evidence relating to those statutory factors.”
The trial court’s disclaimer belies Ford’s contention, and this claim is rejected.
        {¶ 435} Sixth, Ford argues that the trial court improperly discounted Dr.
Stankowski’s testimony concerning Ford’s drug and alcohol abuse. The trial court
said that Dr. Stankowski’s testimony supported her conclusion that Ford has an
“alcohol use disorder” that contributed to his reckless or dangerous behavior. The
trial court stated, “Apart from the impact of alcohol use on Defendant Ford’s
antisocial personality disorder, the court finds this factor to carry no weight. There
was no evidence that Defendant Ford was under the influence of alcohol at the time
of the murder of Margaret Schobert.”
        {¶ 436} The assessment and weight to be given to mitigating evidence are
matters for the trial court’s determination. Hanna, 95 Ohio St.3d 285, 2002-Ohio-
2221, 767 N.E.2d 678, at ¶ 103. The trial court could properly conclude that Ford’s
history of alcohol abuse was not entitled to any weight beyond that attributable to
its impact on his antisocial personality disorder.         However, the trial court
improperly discounted Ford’s alcohol use by assigning no weight to it as a
mitigating factor simply because he was not under the influence of alcohol at the




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time of Margaret’s murder.       The court’s statement in that regard reflects an
incorrect definition of mitigation, one that relates to culpability, as opposed to those
factors that are relevant to whether the offender should be sentenced to death. See
State v. Goff, 82 Ohio St.3d 123, 133-134, 694 N.E.2d 916 (1998); State v.
Holloway, 38 Ohio St.3d 239, 527 N.E.2d 831 (1988), paragraph one of the syllabus
(mitigation not about blame or culpability but rather about punishment).
       {¶ 437} Seventh, Ford contends that the trial court improperly weighed the
aggravating circumstances against the mitigating factors by considering him both
the principal offender (i.e., the actual killer) and not the principal offender. The
trial court, in weighing the aggravating circumstances against the mitigating
factors, stated: “Ford purposely caused the death of Margaret J. Schobert as a part
of a course of conduct involving the purposeful killing of two or more persons by
the defendant. In this case, [Ford] was the actual killer * * *. Both people were
killed when the defendant inflicted multiple sledgehammer blows to their heads.”
The trial court added: “The defendant also committed the Aggravated Murder of
[Margaret] while committing or attempting to commit Aggravated Robbery and
Aggravated Burglary.      And he committed the Aggravated Murder with prior
calculation and design.” These conflicting findings were erroneous.
       {¶ 438} Finally, Ford argues that the trial court erred by not giving weight
to the R.C. 2929.04(B)(6) accomplice-only mitigating factor. The trial court noted
that the defense presented no argument or mitigating evidence on this factor and
did not request the jury to be instructed on it. Moreover, “[t]he weight, if any, given
to a mitigating factor is a matter for the discretion of the individual decisionmaker.”
State v. Filiaggi, 86 Ohio St.3d 230, 245, 714 N.E.2d 867 (1999).
       {¶ 439} Based on the foregoing, we hold that proposition of law No. XVII
has merit. On remand, we direct the trial court to correct the misstatements that we
have identified in its sentencing opinion.




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                                S. Cumulative Error
       {¶ 440} In proposition of law No. XXI, Ford argues that the cumulative
errors during both phases of the proceedings deprived him of a fair trial and a
reliable mitigation hearing. However, Ford was not prejudiced by any error at his
trial. Thus, we reject this claim.
                                 T. Constitutionality
       {¶ 441} In proposition of law No. XXII, Ford argues that Ohio’s capital-
sentencing procedures violate the Sixth Amendment right to a jury trial as construed
in Hurst v. Florida, __ U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). We reject
this argument on the authority of State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-
1462, 108 N.E.3d 56, which rejected the same Hurst claim.
       {¶ 442} In proposition of law No. XXIII, Ford challenges the
constitutionality of Ohio’s death-penalty statutes and claims that the statutes violate
international law and treaties to which the United States is a party. We have
previously rejected the same arguments. See, e.g., Thompson, 141 Ohio St.3d 254,
2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 279-280.
          U. Appropriateness and Proportionality of the Death Sentence
       {¶ 443} In proposition of law No. XVIII, Ford argues that the death
sentence is not an appropriate sentence because of his background, his low IQ score,
and his youth at the time of the offenses. He also argues that his sentence is not
proportional given similar cases in which the death penalty was imposed or could
have been imposed. We will not consider these arguments at this time.
                                     V. Conclusion
       {¶ 444} We affirm Ford’s convictions. However, we vacate the sentence
and remand to the trial court to hold a new hearing to determine Ford’s intellectual
disability, see Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, and prepare
a new sentencing opinion as required by R.C. 2929.03(F), correcting the




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misstatements that we have identified. The trial court shall also conduct whatever
other proceedings are required by law and consistent with this opinion.
                                                          Judgment affirmed in part
                                                                 and vacated in part,
                                                               and cause remanded.
       O’CONNOR, C.J., and FRENCH, FISCHER, and DONNELLY, JJ., concur.
       DEWINE, J., concurs in part and dissents in part, with an opinion joined by
KENNEDY, J.
                               _________________
       DEWINE, J., concurring in part and dissenting in part.
       {¶ 445} I would affirm the trial court’s judgment in full. The burden was
on Shawn Ford to show that he is intellectually disabled. He came nowhere near
meeting his burden—in fact the evidence strongly supports the conclusion that he
is not intellectually disabled. Therefore, I respectfully dissent from the majority’s
judgment remanding the case for a new hearing under Atkins v. Virginia, 536 U.S.
304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
       {¶ 446} The majority takes issue with the trial court’s application of the rule
that this court laid down in State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779
N.E.2d 1011. Relying on the United States Supreme Court’s recent decision in
Moore v. Texas, the majority concludes that Lott is no longer good law in light of
current psychological diagnostic standards. See Moore, __ U.S. __, 137 S.Ct. 1039,
1045, 197 L.Ed.2d 416 (2017). Thus, the majority holds, Ford is entitled to a new
hearing to determine whether he is intellectually disabled under those current
standards. The problem is that the evidence adduced at the Atkins hearing that was
already held shows that even under the most current diagnostic standards, Ford
came nowhere near meeting his burden to show that he is intellectually disabled.
Indeed, all three experts asked to opine on the matter concluded that Ford is not
intellectually disabled.




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       {¶ 447} In Lott, this court confronted the task of applying the Atkins
prohibition against the execution of intellectually disabled defendants. In addition
to adopting clinical definitions of mental retardation (now intellectual disability),
the court held that the burden fell on the defendant to prove by a preponderance of
the evidence that he is intellectually disabled. Lott at ¶ 11-12, 21. While the
majority opinion takes issue—perhaps justifiably—with the test stated in Lott for
determining whether a person is intellectually disabled, there has been no
suggestion that the defendant’s burden should change. And here, there is no
question that Ford did not meet that burden.
       {¶ 448} Ford’s own expert, Dr. Karpawich, was hamstrung in his ability to
evaluate whether Ford is intellectually disabled because Ford refused to be
interviewed by him. Nevertheless, using the resources available to him, Dr.
Karpawich noted that Ford “has been evaluated on many prior occasions by
educational professionals and psychologists, and he has never been given the
diagnoses of mental retardation/intellectual disability.”        And Dr. Karpawich
concluded that “[b]ased upon the available information, it is my opinion, with
reasonable scientific certainty, that there is insufficient information to conclude that
the defendant fulfills the criteria for mental retardation/intellectual disability.” At
the Atkins hearing, Ford did not challenge his expert’s opinion or argue that an
incorrect standard was used.
       {¶ 449} Dr. Karpawich’s opinion was echoed by the state’s expert, Dr.
Sylvia O’Bradovich, and the court’s expert, Dr. Katie Connell. And again, Ford
did not challenge their conclusions. It’s not surprising, then, that the trial court
found that Ford had not met his burden to prove he has an intellectual disability.
       {¶ 450} Nevertheless, the majority adopts Ford’s arguments and concludes
that he should be given a new hearing because the rule we laid out in Lott does not
apply current diagnostic standards. Specifically, the majority reasons that the trial
court erred when it didn’t take into account the standard error of measurement




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(“SEM”) in assessing Ford’s IQ scores and when it applied Lott’s requirement that
a defendant show deficits in two areas of adaptive behavior. While there is room
for improving the test laid out in Lott to adjust for changes in diagnostic standards,
the evidence before the court reflected the experts’ application of the current
standards. Thus, any problem with the Lott test was not prejudicial to Ford.
                               Intellectual Functioning
       {¶ 451} In Lott, this court held that there was a rebuttable presumption that
a defendant was not intellectually disabled if his IQ was over 70. Lott, 97 Ohio
St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 12. The majority correctly notes
that in Hall v. Florida the Supreme Court explained that “an individual’s
intellectual functioning cannot be reduced to a single numerical score.” Hall v.
Florida, 572 U.S. 701, 713, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014); accord
Moore v. Texas, __ U.S. __, 137 S.Ct. 1039, 1050, 197 L.Ed.2d 416 (2017). Rather,
“the SEM means that an individual’s score is best understood as a range of scores
on either side of the recorded score.” Hall at 713. Hall requires that a defendant
facing the death penalty be able to present other evidence of intellectual disability,
including evidence of “deficits in adaptive functioning,” when IQ test results place
the defendant within a statistical range that could indicate intellectual disability.
See id. at 724. Nothing about the trial-court decision below is at odds with Hall.
Indeed, after carefully considering the various IQ test results and expert testimony
about each, the court looked to other evidence of intellectual disability, including
Ford’s adaptive functioning.
       {¶ 452} Nevertheless, the majority concludes that the trial court erred in
disregarding the SEM and failing to consider that the lower end of the SEM range
could include an IQ score below 70. But the court didn’t disregard the lower end.
Instead, it concluded that Ford hadn’t met his burden of proving he has significantly
subaverage intellectual functioning. And there is overwhelming support for this
finding in the record. Three out of six of Ford’s IQ scores, even taking the SEM




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into account, land above 70. And two of the tests that fell below that level were
uniformly discounted by all three experts on grounds that they underestimated his
actual intelligence. That leaves just one test, fixed on by the majority, which
established an IQ range of 69-83. But any support for Ford’s claim provided by
that test is substantially outweighed by the other tests and by the unanimous view
of all three experts who testified that Ford is not intellectually disabled.
       {¶ 453} Even though the IQ tests, when viewed together, support the
conclusion that Ford is not intellectually disabled, the trial court also considered
Ford’s adaptive functioning. It is thus unclear what the majority finds lacking in
the trial court’s assessment. The majority accuses the trial court of “disregarding
the SEM,” majority opinion at ¶ 84. But under Moore, the relevance of looking to
the SEM is that when the lower end of the SEM falls in the intellectually disabled
range, a court should also consider adaptive functioning. See Moore at __, 137
S.Ct. at 1049. That’s precisely what the trial court and all three experts did.
                               Adaptive Functioning
       {¶ 454} Based on the diagnostic standards in place at the time, Lott held that
to prove intellectual disability, a defendant must show “significant limitations in
two or more adaptive skills.” Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d
1011, at ¶ 12. Current diagnostic standards instead ask whether there are significant
deficits in any of three adaptive skill sets. See Moore at __, 137 S.Ct. at 1046. The
majority relies on Moore to find that the trial court erred in applying the older
standards set forth in Lott. But Moore involved a much different fact pattern.
       {¶ 455} In Moore, the Texas court not only adhered to old standards, despite
evidence that the defendant had an intellectual disability as defined under the new
standards, but also refused to account for SEM in considering the defendant’s IQ
score. See Moore at __, 137 S.Ct. at 1050. More troublingly, the court balanced
adaptive deficits with what it considered strengths and used evidentiary factors not
supported by clinical studies. Id.




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        {¶ 456} Ford’s case differs considerably. First, unlike in Moore, there is no
suggestion that Ford would be found intellectually disabled were new standards
used. Further, both the state expert and the court expert—the only experts given an
opportunity to talk with Ford—applied current psychological standards.           Dr.
O’Bradovich’s adaptive-behavior evaluation considered Ford’s communication,
daily-living, and socialization skills and concluded that the results were “not
indicative of significant deficits in adaptive functioning.” Dr. Connell explicitly
used the current DSM-5 and AAIDD-11 standards cited in Moore. Applying these
standards, Dr. Connell concluded that the available evidence did not support
deficits due to intellectual disability in any of three adaptive behavior areas—
conceptual, social, or practical. And while Ford’s expert, Dr. Karpawich, did not
personally interview Ford, he assessed Ford’s adaptive functioning using available
resources, and did not conclude that Ford is intellectually disabled. Simply put,
Ford came nowhere near showing by a preponderance of the evidence that under
either set of standards, he is intellectually disabled.
        {¶ 457} That isn’t to say Lott wouldn’t benefit from a reworking. There are
problems inherent in incorporating current psychological standards into a test that
will be used for years to come.         A better rule would tie the assessment to
contemporary standards, requiring demonstration of the following: (1) significantly
subaverage intellectual function (making clear that SEM must be considered), (2)
significant deficit in adaptive functioning, as defined by psychological standards in
place at the time of the evaluation, and (3) onset before age 18. Such an adjustment
in Lott’s rule would recognize the importance of looking to the expertise of medical
professionals, as noted in Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d
1011, at ¶ 18, and Hall, 572 U.S. at 721, 134 S.Ct. 1986, 188 L.Ed. 1007.
                                  The Flynn Effect
        {¶ 458} The majority also instructs the trial court to at least discuss the
“Flynn Effect” even though it notes that the trial court has discretion in deciding




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whether to apply it. The Flynn Effect arises out of the fact that IQ scores are normed
based on comparisons to the general population. Since the general population is
getting more intelligent over time—at least in ways measured by IQ tests—this
means that what would have been average intelligence 100 years ago (receiving an
IQ score of approximately 100) would be at the bottom end of the distribution now
(receiving an IQ score of approximately 70). See Black v. Carpenter, 866 F.3d 734,
749 (6th Cir.2017).
       {¶ 459} The relevance of the Flynn Effect to the determination of
intellectual disability in capital cases has never been addressed by the U.S. Supreme
Court. But some have argued that taking the Flynn Effect into account can
eliminate a degree of arbitrariness in IQ scores depending on when an IQ test was
taken and when it was normed. As Dr. Flynn himself has explained, if two
defendants of the same intelligence were tested using different tests, of which one
was normed 25 years earlier and another was normed more recently, the first might
show an IQ score above 70 and face the death penalty, while the latter might show
a score below 70 and not. See James R. Flynn, Tethering the Elephant: Capital
Cases, IQ, and the Flynn Effect, 12 Psychol.Pub.Pol’y & L. 170, 174 (2006). But
this merely underscores the importance of Hall’s reminder that rigid reliance on IQ
scores alone should be resisted. Hall at 724; see also Bonnie & Gustafson, The
Challenge of Implementing Atkins v. Virginia: How Legislatures and Courts Can
Promote Accurate Assessments and Adjudications of Mental Retardation in Death
Penalty Cases, 41 U.Rich.L.Rev. 811, 841-845 (2007).
       {¶ 460} In this case, I would not remand for the trial court to assess the
relevance of the Flynn Effect, because applying the Flynn Effect doesn’t change
the analysis. As Dr. Connell opined, the Flynn Effect would meaningfully affect
only one of the IQ tests, yielding a modified IQ score of 72. The relevance of the
Flynn Effect, then, is just that it might trigger a more searching look at adaptive
functioning, as required by Hall and Moore. But the trial court in this case already




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engaged in that more searching inquiry, with the aid of three experts, all of whom
concluded that Ford is not intellectually disabled.
                                    Conclusion
       {¶ 461} Here, the trial court’s findings were informed by the view of
medical experts, all of whom carefully looked at both Ford’s IQ scores and his
adaptive functioning. Every expert opined that Ford does not have an intellectual
disability. To remand this case in the face of such strong evidence is simply wrong
as a matter of law. For that reason, I respectfully dissent.
       KENNEDY, J., concurs in the foregoing opinion.
                                _________________
       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven R.
DiMartino and Jacquenette S. Corgan, Assistant Prosecuting Attorneys, for
appellee.
       Maro and Schoenike Company and Lynn A. Maro; and John B. Juhasz, for
appellant.
       Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor, and M.
Ryan Harmanis and Thomas E. Madden, Assistant Attorneys General, for amicus
curiae, Ohio Attorney General.
                                _________________




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