[Cite as State v. Mathis, 2020-Ohio-3068.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-18-1192

        Appellee                                 Trial Court No. CR0201701128

v.

Robert Mathis                                    DECISION AND JUDGMENT

        Appellant                                Decided: May 22, 2020

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Laurel A. Kendall, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Robert Mathis, appeals the judgment of the Lucas County Court

of Common Pleas, following a jury trial, convicting him of one count of aggravated

murder in violation of R.C. 2903.01(A) and (F)1, an unclassified felony, and sentencing



1
 Effective March 20, 2019, R.C. 2903.01(F) has been re-lettered to R.C. 2903.01(G).
References to the statute in this decision will be to the pre-amended version.
him to life in prison without the possibility of parole. For the reasons that follow, we

reverse.

                          I. Facts and Procedural Background

       {¶ 2} On January 20, 2017, the Lucas County Grand Jury returned a two-count

indictment against appellant, charging him with aggravated murder in violation of R.C.

2903.01(A) and (F), and murder in violation of R.C. 2903.02(B). The charges stemmed

from the June 8, 2011 death of Jennifer Molnar, appellant’s domestic partner at the time.

       {¶ 3} On May 30, 2017, the state filed its notice of intent to introduce other acts

evidence. Appellant replied to this notice on June 15, 2017. On March 12, 2018, the trial

court held a hearing on this issue, at which the state asserted that it intended to enter

evidence regarding three separate alleged incidents involving appellant. The first

occurred on December 8, 2009, and involved allegations of appellant severely beating the

victim, Jennifer Molnar. The second and third incidents occurred on April 24, 2013, and

June 27, 2014, respectively, and involved allegations of appellant severely beating his

love interest at the time, R.B. Appellant filed a supplemental memorandum against the

notice on March 26, 2018, and the state replied to it on April 9, 2018. After new counsel

was appointed for appellant, appellant filed a second supplemental memorandum on

August 20, 2018. On August 24, 2018, the trial court entered an order allowing the state

to present the other acts evidence with some limitations.

       {¶ 4} Appellant’s trial began on August 27, 2018. The first witness to testify was

Toledo Firefighter Daniel Desmond. Desmond testified that on June 8, 2011, he was




2.
called to appellant’s home in Toledo, Ohio. He arrived minutes after the call, and upon

entering the house, found Molnar lying on an air mattress. Desmond testified that his

immediate observation of Molnar was that she was dead, and a further examination

revealed that her body was stiff. Molnar was pronounced dead on the scene at 8:57 p.m.

A photograph of Molnar taken at the scene showed that she had significant and pervasive

bruising all over her body, including her face, arms, and legs. Molnar also had

significant burns on her face.

       {¶ 5} Desmond testified that he spoke with appellant at the scene. Appellant

stated that he had not seen Molnar since 10:00 a.m. Appellant explained that he left the

house at 1:30 p.m., and returned around 3:00 p.m. When appellant returned, he tried the

water and noticed that the hot water did not work. So, appellant went downstairs to

check the hot water heater and found Molnar. Appellant stated that he carried her

upstairs and put her on the air mattress. Appellant then called his mother. Appellant told

Desmond that he did not believe Molnar was dead when he carried her upstairs, and he

relayed that Molnar had been using crack, Suboxone, and Xanax.

       {¶ 6} The state next called Toledo Police Officer Jeff Middleton. Middleton

testified that he responded to the scene at approximately 9:27 p.m. Upon arrival,

Middleton observed that Molnar had bruising and lacerations all over her body, as well as

scalding on her face, forehead, and cheek area, and cigarette burns on her neck and a

couple of other places on her body. Middleton testified that he spoke with appellant, and

appellant explained that he found Molnar in the basement, lying on her stomach with her




3.
face facing up. Appellant led Middleton to the basement, and Middleton observed that

the basement was flooded with approximately six inches of water, and water was still

forcefully running from the hot water heater drain plug. Middleton testified that the

water did not appear to be hot, and appellant walked right through the water to the hot

water heater. Middleton observed appellant attempt to replace the hot water drain plug,

but did not think that appellant actually intended to stop the flow of water. Middleton

then directed appellant to turn off the water service shut-off valve, which he did.

Appellant then described to Middleton that he found Molnar lying near the hot water

heater, close enough that the water would have been gushing onto Molnar’s body.

Middleton described appellant’s demeanor during this exchange as evasive. Middleton

testified that appellant said that he had last seen Molnar alive at approximately 10:00 a.m.

that morning. On cross-examination, Middleton acknowledged that it is possible that

someone who had just found the dead body of a loved one would be nervous and

distraught, and may have had difficulty replacing the drain plug because of shaking

hands. However, on redirect, Middleton testified that appellant was not crying or

hysterical, and that Middleton would describe appellant’s demeanor as ashamed, not

distraught.

       {¶ 7} The next witness to testify was Toledo Police Officer Anthony Waldon.

Waldon testified that he checked the scene for any signs of forced entry into the home,

and did not find anything.




4.
       {¶ 8} Retired Toledo Police Sergeant Bill Wauford testified next. Wauford spoke

with appellant at the scene, and testified that appellant told him that he had last seen

Molnar around 10:00 a.m., when Molnar got up to take a shower and appellant went back

to sleep. Wauford described appellant’s demeanor at the scene as cooperative and fairly

calm. When Wauford asked appellant about the hot water heater, appellant indicated that

when he got home he tried to wash his hands, but there was not any water pressure. So,

appellant went down to the basement, where he found the victim. Appellant explained

that he thought Molnar had gone to the basement where the hot water heater was, and

opened the valve because the water was too hot.

       {¶ 9} Wauford then testified that he spoke with Molnar’s mother and brother, who

informed him that about a year prior to June 8, 2011, appellant had been extremely

violent toward Molnar, resulting in Molnar having to be hospitalized and spend some

time in the intensive care unit.

       {¶ 10} On cross-examination, Wauford acknowledged that appellant consented to

a search of the house. He also testified that appellant mentioned that Molnar used drugs

and appellant thought Molnar had overdosed on drugs.

       {¶ 11} The state next played a videotaped deposition of retired Toledo Police

Detective Chad Culpert. Culpert was the person who photographed the crime scene, and

he authenticated many of the pictures of the home and the victim that were entered into

evidence. Culpert also testified that he recovered a ball-peen hammer, a wire hanger, and

a cell phone from the house. Culpert further collected two blood swabs from a blood




5.
smear that was on the doorframe of one of the rooms. Finally, Culpert testified that he

collected some letters that were on the kitchen floor, and two prescription pill bottles that

had been filled in Molnar’s name.

       {¶ 12} The next witness to testify was Dr. Robert Forney, the chief toxicologist in

the Lucas County Coroner’s office. Forney testified as an expert witness that Molnar

experienced acute cocaine intoxication at the time of her death.

       {¶ 13} Dr. Maneesha Pandy, a deputy coroner in the Lucas County Coroner’s

office, testified next. Pandy testified that when she examined Molnar, she noticed

multiple blunt force trauma and extensive injuries on Molnar’s body. Pandy testified that

the multiple bruises were “recent” and could have been made by any flat instrument,

agreeing with the prosecution that they could have been made with a ball-peen hammer.

Pandy also identified curved, line-like marks mainly on the left side of Molnar’s body as

well as her back. Pandy testified that the line marks were “recent,” and could have been

made by something like a wire hangar. In addition, Pandy testified to the marks on

Molnar’s face, and noticed scalding on her forehead, nose, and right cheek, with some

scalding marks on her left cheek. Pandy testified that this indicated a pour pattern, where

the water struck Molnar’s forehead first and then ran down the face. Pandy described

that the force of the water was strong enough that it would have caused splashing, and

indicated that water released from the drain valve of a hot water heater would have been

sufficient to cause the injuries.




6.
       {¶ 14} Pandy next testified regarding Molnar’s internal injuries. Pandy

documented a laceration of the spleen and left kidney, as well as bruising to the pancreas

and ribs. Pandy further found approximately one-liter of blood in Molnar’s abdominal

cavity, which Pandy testified could have been fatal, and could have caused death within

minutes or hours. Pandy also testified that Molnar suffered bleeding in the brain from

recent injuries to her head.

       {¶ 15} Pandy then concluded—in her expert opinion and to a reasonable degree of

medical certainty—that Molnar died from multiple blunt force trauma. Further, Pandy

concluded that the ingestion of drugs played no role in Molnar’s death.

       {¶ 16} The state then presented photographs of Molnar’s injuries with a digitally

manipulated wire hanger super-imposed over the injuries. Pandy testified that the curvy,

line-like injuries could be consistent with Molnar being struck by a bent wire hanger.

Further, the state introduced a picture of appellant’s hand, which had a wound in the

center of the palm. Pandy testified that the wound could be consistent with holding the

end of the hangar and repeatedly hitting something with it. Likewise, the state introduced

pictures of some of Molnar’s injuries with a ball-peen hammer super-imposed on them.

Pandy testified that some of those injuries could have been caused by a ball-peen

hammer, and that being struck with a ball-peen hammer could lead to injuries like the

lacerated kidney that Molnar sustained.

       {¶ 17} The state next called retired Toledo Police Detective James Scott. Scott

testified that he arrived at the scene of the crime on June 8, 2011, and spoke briefly with




7.
appellant. Scott then invited appellant downtown for an interview, and appellant agreed.

Scott described in general terms that during the interview appellant claimed that when he

woke up on June 8, 2011, Molnar had already left the house. Appellant then left, and

when he returned later that day, he found Molnar in the basement. Scott testified that

appellant tried to act like he did not notice any marks on Molnar’s body, and that

appellant tried to blame everything on Molnar falling down because she was high on

drugs. Scott then took pictures of appellant’s right hand, which had a wound in the

middle of his palm. Scott also examined appellant’s body, but did not notice any other

scratch marks or injuries.

       {¶ 18} Scott also testified that he spoke with Molnar’s mother, and received a

letter that appellant sent to Molnar in February 2011, while he was in prison. The letter

was read into the record, and it contained numerous threats to Molnar and her family

because appellant believed that Molnar had stolen some money and property from him.

Appellant wanted Molnar to return the money and the property, and if she did, he would

let her survive.

       {¶ 19} The state then played two interviews between Scott and appellant,

conducted in the early morning hours of June 9, 2011. In the interviews, appellant

explained that he picked Molnar up around 8:00 p.m. on June 7, 2011. Eventually, they

went back home and fell asleep on the blow-up air mattress on the first floor of the house.

Appellant said that Molnar woke up at 3:30 in the morning and went upstairs to use the

bathroom and fell down the stairs. He said that Molnar had taken too much Xanax and




8.
her legs were wobbly. Appellant stated that the two were up until 10:00 a.m., at which

time Molnar said she was going to leave the house and appellant went back to sleep.

Appellant then woke up between 12:00 and 1:00 p.m., and went to a nearby carryout to

get something to smoke. Appellant said that he thought at the time that Molnar had

already left the house.

       {¶ 20} After getting something to smoke, appellant said he went to his friend’s

house for a minute, then went over to another woman’s house and had sex with her.

Appellant said her name was Janie, but he did not know her last name. Appellant said he

left Janie’s house around 3:00 p.m. Appellant said he then drove by Molnar’s parent’s

house, looking for Molnar. After driving around for a little while, appellant stopped and

talked to another friend, Jodi. Eventually, appellant returned to his house at around

7:30-7:50 p.m.

       {¶ 21} Appellant stated that when he returned home he went to turn the water on

to get something to drink, but the water would not turn on. Appellant then went to the

basement to check on the water, and that is when he found Molnar. Appellant thought

she was strung out on drugs, so he picked her up and put her on a mattress that was in the

basement, and was trying to shake her and get her to wake up. Appellant stated that the

water was coming out of the hot water heater, but the water must have been draining for a

while because the water was cold. When appellant tried to stop the flow, he accidentally

opened the plug all of the way and could not get the water to stop. Appellant explained

that he keeps the hot water heater turned all the way up, but Molnar did not like that, so




9.
she would turn the hot water heater down. Appellant presumed that must have been the

reason why Molnar went to the basement.

       {¶ 22} Appellant then picked Molnar up and carried her upstairs. Appellant said

he thought Molnar was just unconscious, and recounted that she had overdosed on drugs

before and had been unconscious for two days. Appellant claimed that it did not enter his

mind at that time that she could be dead. Appellant next called his mother, who told him

to call 9-1-1. Appellant did not want to call 9-1-1 because he did not want Molnar to get

in trouble for being on drugs. However, eventually, appellant did call 9-1-1.

       {¶ 23} The interview then turned to the marks on Molnar’s body. Appellant

claimed that the marks were the result of Molnar stumbling and falling. Appellant

repeatedly denied causing the marks on Molnar’s body. Appellant further denied even

seeing the “whip marks” on Molnar’s body.

       {¶ 24} The state next called Mark Oliver as a witness. Oliver is the handyman

who installed the hot water heater located at appellant’s home. Oliver testified that it was

a newer hot water heater, and did not have any known issues at the time. Oliver also

testified that if the water was not shut off and the drain plug was opened, water would

continue to flow out of the hot water heater at a rate similar to an outside faucet on a

house. Finally, Oliver testified that if the drain plug had been opened, the rest of the

house would still have relatively normal water pressure.




10.
       {¶ 25} Jane Henneman testified next for the state. Henneman testified that she

knew appellant and had sex with him on June 8, 2011. Henneman stated that appellant

was at her house for several hours, which was unusual for him.

       {¶ 26} The next witness was Sandra Smith, who testified over the objection of

appellant. Smith was a bartender on December 8, 2009, when a young, petite lady burst

through the door of the bar, crying hysterically and saying that she had been held captive

and had gotten away from someone. She begged Smith to not let the person in the bar.

Smith hid the young lady behind the bar and called 9-1-1, and two men barricaded the

door. Nobody attempted to come into the bar. Smith described the lady as “beat up,” and

“a hot mess,” and remarked that she appeared terrified. On cross-examination, Smith

testified that the lady said it was her boyfriend who was chasing her.

       {¶ 27} Following Smith, Jeff Molnar, the victim’s brother, testified over the

objection of appellant. Jeff testified that by 2009 Molnar had been dating appellant for a

year or two. He testified that once Molnar began seeing appellant, everything in her life

began going downhill; she began using drugs, lost her job, and would disappear for

extended periods of time. Jeff stated that whenever he did see Molnar, she would have

bruising on her body and arms, and periodically she would have a black eye. Jeff

testified that in December 2009, Molnar was hospitalized in the intensive care unit

because she had been severely beaten and assaulted. Molnar conveyed to Jeff at the time

that she was fearful of appellant. Further, she told Jeff that she stayed in a relationship




11.
with appellant because she feared for the safety of her family and her son if she did not

continue that relationship.

        {¶ 28} Jeff next testified that on the evening of June 8, 2011, he had returned

home from work at around 4:00 p.m. He then went outside and was in the yard, and later

went with his wife to Kohl’s. Jeff testified that during this time, he saw appellant drive

by three or four times, which was unusual because he had never seen appellant around so

much.

        {¶ 29} Jeff then read a letter from Molnar to appellant, which was received on

February 21, 2011. In the letter, Molnar criticized appellant for having sex with several

different women. She also told him that she was afraid of him, and recounted how

appellant had hit her, been physical with her, and given her multiple bruises.

        {¶ 30} On cross-examination, Jeff acknowledged that Molnar and appellant had

periods of time where they got along and did things together with their respective

children. Jeff conceded that it would be safe to conclude that Molnar cared for appellant.

        {¶ 31} The state next called Kelly Parks as a witness over the objection of

appellant. Parks was an emergency room nurse at Bay Park Hospital on December 8,

2009, and was the first nurse to examine Molnar on that night. Parks recorded that

Molnar stated that she had been assaulted by her live-in boyfriend, that he made her use

cocaine, that she was able to escape and run to a bar for help, and that she complained of

pain all over her body. Parks testified that Molnar had multiple marks on her body, and




12.
specifically bruising to her arms and face. Molnar described that she had been beaten

with a broom multiple times, and had been punched all over.

       {¶ 32} Parks described the injuries as: bruising to the left and right temporal

areas, a two centimeter abrasion to the scalp at the hairline, bruising to the left and right

upper and lower eyelid, a purple circular bruise on the right hip with a five to six

centimeter linear bruise that Molnar said was caused by being hit with the broom, and

bruising to her left and right upper thigh. Parks then identified photographs taken during

an examination of Molnar, and further described bruising to Molnar’s ears and jaw. In

addition, the photographs depicted a linear bruise on Molnar’s upper left arm that

appeared to be consistent with being struck by a broom. Other bruises caused by a blunt

object were found on Molnar’s elbows and knees. Parks also testified that a CT scan

revealed that Molnar had bruising on her spleen, and an older rib fracture on her left side.

According to Parks, Molnar stated during the examination that she was held with an

extension cord around her neck, and that appellant forced her to do a line of cocaine to

help her pain. The toxicology report showed that Molnar tested positive for marijuana,

cocaine, benzodiazepines, which include drugs like Xanax, and opiates, which include

drugs like heroin and Percocet.

       {¶ 33} On cross-examination, Parks acknowledged that she sees patients who have

suffered similar injuries approximately once per week. Parks agreed that there is nothing

particularly unique about the bruises and abrasions that appeared on Molnar’s body




13.
compared to bruises and abrasions that Parks has seen on other patients’ bodies.

However, on redirect, Parks testified that the sheer number of bruises was unique.

       {¶ 34} The next witness to testify, over appellant’s objection, was R.B. R.B.

began dating appellant in 2012, and is the mother of his two daughters. At the outset of

her testimony, R.B. expressed her extreme displeasure in being forced to testify.

Nonetheless, the state questioned R.B. over two incidents, the first of which occurred on

November 23, 2013. The state presented R.B. with a copy of a police report from the

incident in which R.B. claims that she was assaulted by appellant. Photographs included

with the report show that R.B. had bruising to her face and a bloody mouth. The

photographs also showed linear bruising on her back, which appeared to be consistent

with R.B.’s statement in the report that appellant had hit her with a belt. However, while

on the stand, R.B. disavowed the police report, claiming that her father made her fill it

out because he did not like appellant. R.B. explained that the injuries actually occurred

during a fight between her and another woman. R.B. was unable to explain the marks on

her back other than to say that they occurred while she was rolling around on the ground

during the fight.

       {¶ 35} The second incident occurred on June 27, 2014. In the police report, R.B.

stated that appellant choked her and placed a lit cigarette against her neck. On the stand,

however, R.B. dismissed the report, stating that she was “very heavily on drugs” during

that time. She testified that she did not recall appellant choking her, but she did

remember that he threw a cigarette at her that hit and burned her neck. R.B. was then




14.
shown pictures that were taken at the time. She disagreed with the state that the pictures

showed her having a black eye and a busted lip.

       {¶ 36} Finally, R.B. authenticated four letters that were sent from appellant to her.

       {¶ 37} The state next called Toledo Police Officer Richard Trevino over

appellant’s objection. Trevino testified that on the night of December 8, 2009, he

received a call of a possible abduction and assault. Trevino responded to the bar where

Molnar was located. He testified that Molnar’s hair was disheveled, that she had some

blood on her arms and face, and that she had bruises on her arms and legs. Trevino spoke

with Molnar, who told him that on December 7, 2009, appellant accused her of taking his

drugs. Appellant then started hitting her, and would not let her leave the apartment until

she gave him the drugs. Appellant kept her overnight, and then on December 8, 2009,

they got into another argument. Molnar told Trevino that appellant began hitting her

again, and when she tried to leave, he stripped all of her clothes off of her until she gave

him back the drugs. Molnar further told Trevino that appellant hit her with a broom

during this time.

       {¶ 38} On cross-examination, Trevino acknowledged that in his 24 years of law

enforcement he has seen a number of victims with similar injuries. Some of the victims

had more bruises, and some had less. Trevino testified that it was the similarities of

Molnar’s injuries to other victims’ injuries that led him to conclude that it was a domestic

violence matter.




15.
       {¶ 39} The next witness to testify was Sheri Marshall. Marshall has known

appellant for 20 years, and at times had a romantic relationship with him. Marshall

testified that she knew Molnar, and knew that Molnar was appellant’s girlfriend. On the

night of June 7, 2011, appellant called Marshall and asked her to come over to clean his

house because it was a mess. When Marshall arrived, she found broken glass all over the

dining room, and a mess in the kitchen. She testified that she saw Molnar lying on a

couch in the living room. Marshall described that Molnar “looked retarded.” According

to Marshall, Molnar could not talk or sit up. Marshall asked to take Molnar to the

hospital, but appellant did not want to, stating that Molnar would be all right and that she

had been like that before.

       {¶ 40} Marshall then testified that she found out the next day that Molnar had

died. Marshall stated that she attempted to go to Molnar’s funeral with appellant, and

that appellant told her he wanted to go to the funeral “to make it look good.”

       {¶ 41} On cross-examination, Marshall clarified that she was not certain of the

date that she went to clean appellant’s house, but knew that she arrived between 7:00 and

8:00 p.m. and stayed for approximately an hour. She testified that she also knew that

Molnar died later that night. Marshall explained that she returned to appellant’s house

the next day to retrieve her car, but appellant was not home, and one of the news stations

was there and tried to interview her.

       {¶ 42} Marshall also testified on cross-examination that she was sure that Molnar

was laying on a black, L-shaped couch that was in the living room. Marshall testified




16.
that in front of the couch was an air mattress, which was where appellant and Molnar

would sleep. Marshall was then shown a crime-scene picture of Molnar’s body lying on

the air mattress. Marshall identified where the couch would have been in the photograph,

but commented that the couch was no longer there.

       {¶ 43} The state next called, as an expert witness, Emily Miller, a forensic

scientist at the Bureau of Criminal Identification (“BCI”). Miller testified that she

swabbed various items of evidence from the crime scene, in an effort to search for bodily

fluids. In particular, Miller found that the ball-peen hammer tested presumptively

positive for blood, and that the swab from the bathroom doorway tested presumptively

positive for blood. In contrast, Miller found that the wire hanger did not test positive for

any bodily fluids. Miller testified that she also collected Molnar’s fingernail clippings for

further testing.

       {¶ 44} Sara DeVine testified next as an expert witness for the state. DeVine is a

forensic scientist in the biology and DNA sections of BCI. DeVine testified that swabs

taken from the handle of the ball-peen hammer returned with a major DNA profile

matching appellant’s. Similarly, the swab taken from the bathroom doorway contained a

major DNA profile matching appellant’s. Molnar was excluded as a major contributor in

both cases, and there was insufficient data to make a comparison with any other DNA

contained in the mixtures. Further, DeVine testified that swabs taken from the hanger did

not have enough DNA to make a comparison. As to the fingernail clippings, the right

fingernail clippings contained no DNA foreign to Molnar. The left fingernail clippings




17.
contained a mixture of DNA, of which Molnar was the major contributor, but there was

insufficient DNA to make any further comparisons.

       {¶ 45} On cross-examination, DeVine testified that swabs from the head of the

ball-peen hammer revealed a mixture of DNA that was not sufficient for comparison.

       {¶ 46} The next witness to testify as an expert for the state was Timothy

Augsbach, a forensic scientist in the DNA section of BCI. Augsbach performed a

Y-STR DNA test on Molnar’s right fingernails, which revealed a DNA profile from

which appellant could not be excluded. Augsbach testified that the likelihood of finding

a similar DNA profile was 1 in every 394 males.

       {¶ 47} The state next called Emily Feldenkris as an expert witness. Feldenkris

was also a forensic scientist in the DNA section of BCI. Feldenkris testified that she

performed a DNA analysis on vaginal swabs that were taken from Molnar on

December 22, 2009. The results of those swabs indicated a mixture of DNA from

Molnar and appellant. It was further revealed that the existence of appellant’s DNA

indicated a recent event—within 24 hours prior to the swab being taken.

       {¶ 48} Toledo Police Detective James Dec testified next. Dec performed the data

analysis on Molnar’s cell phone that was recovered from the house by Detective Culpert.

Dec testified that it was an older “dumb” phone, and thus only retained 128 incoming text

messages and 128 outgoing text messages. When those amounts were exceeded, the

oldest messages would be deleted automatically and replaced by the newest messages.




18.
       {¶ 49} Dec testified that between late April and early June 2011, there were over

100 incoming and outgoing messages between Molnar and appellant. Dec noticed,

however, that between late May and June 6, 2011, there were approximately 30 outgoing

messages from Molnar’s phone to appellant, but no incoming messages from appellant.

Dec testified that from a review of the outgoing messages, it appeared as if Molnar and

appellant were having a conversation. Dec concluded that the incoming messages from

appellant during this time had been manually deleted. Both parties then highlighted

particular text messages near the date of Molnar’s death, which revealed a relationship

that oscillated between concerns and allegations of violence, and statements of desire and

affection.

       {¶ 50} Following Dec’s testimony, the state called Rebecca Barrett, a forensic

scientist at BCI, to testify as an expert witness in questioned documents examination.

Barrett testified to a reasonable degree of professional certainty that a February 15, 2011

letter addressed to Molnar—and originally introduced into evidence through Detective

James Scott—was written by appellant. Barrett reached this conclusion by first

comparing the letter to a requested writing exemplar obtained from appellant. From the

writing exemplar, Barrett was unable to identify appellant as the author of the

February 15, 2011 letter. However, she testified that the writing exemplar contained

several instances of “unnatural writing.” When Barrett was further provided with other

letters that were known to have been written by appellant, Barrett was then able to

conclusively determine that appellant was the author of the February 15, 2011 letter.




19.
       {¶ 51} The final witness called by the state was retired Toledo Police Detective

William “Jay” Gast. In addition to testifying regarding the investigative steps that he

took, Gast testified about an anonymous Crime Stopper report that was received on

June 11, 2011, which indicated that Molnar may have provided information to the police

that led to a raid on a drug dealer named “Jamaica.” Gast testified that he was unable to

identify who “Jamaica” was, but that he was familiar with a drug dealer in that area

named “Jamocha.” Jamocha, however, was excluded as a suspect because he was in

prison at the time of Molnar’s death.

       {¶ 52} Gast next authenticated an interview that he conducted with appellant on

November 16, 2016, which was then played for the jury. In the interview, appellant was

again questioned on the circumstances of the June 8, 2011 death of Molnar. Appellant

was also questioned about the 2009 incident wherein Molnar suffered significant injuries

that she identified were caused by appellant. Following that video, the state next played a

recorded interview from another interview conducted on January 20, 2017, immediately

after the grand jury indicted appellant for murder.

       {¶ 53} Following Gast’s testimony, the state rested. Appellant then moved for an

acquittal pursuant to Crim.R. 29, which the trial court denied. The parties then gave their

closing arguments and the trial court instructed the jury. After deliberations, the jury

returned with a verdict of guilty as to both the count of aggravated murder and the count

of murder.




20.
       {¶ 54} The trial court proceeded immediately to sentencing. The court found that

the two counts were allied offenses of similar import, and the state elected to proceed

with sentencing on the count of aggravated murder. The trial court then imposed a

sentence of life in prison without the possibility of parole.

                                 II. Assignments of Error

       {¶ 55} Appellant has timely appealed his judgment of conviction, and now asserts

six errors for our review:

              1. The trial court abused its discretion by allowing other acts

       evidence into the record.

              2. The trial court abused its discretion by instructing the jury that

       both affirmative actions and a failure to act constitute purpose or intent

       after they asked for instructions concerning deadlock.

              3. Appellant’s convictions for aggravated murder and murder were

       based on insufficient evidence.

              4. Appellant’s convictions for aggravated murder and murder were

       against the manifest weight of the evidence.

              5. The trial court abused its discretion by removing the first

       appointed counsel without consulting appellant.

              6. Cumulative error deprived appellant of a fair trial.




21.
                                        III. Analysis

                                 A. Other-Acts Evidence

       {¶ 56} In his first assignment of error, appellant argues that the trial court erred

when it admitted other-acts evidence of the December 2009 assault of Molnar and the

November 2013 and June 2014 assaults of R.B.

       {¶ 57} In reviewing this issue, we note that “[t]he trial court has broad discretion

in the admission * * * of evidence and unless it has clearly abused its discretion and the

defendant has been materially prejudiced thereby, this court should be slow to interfere.”

State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994). An abuse of discretion

connotes that the trial court’s attitude is unreasonable, arbitrary, or unconscionable. State

v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶ 58} The Ohio Supreme Court has identified a three-step test to determine if

other-acts evidence is admissible.

       The first step is to consider whether the other acts evidence is relevant to

       making any fact that is of consequence to the determination of the action

       more or less probable than it would be without the evidence. Evid.R. 401.

       The next step is to consider whether evidence of the other crimes, wrongs,

       or acts is presented to prove the character of the accused in order to show

       activity in conformity therewith or whether the other acts evidence is

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

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




22.
       evidence is substantially outweighed by the danger of unfair prejudice. See

       Evid.R. 403.

State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20. This

appeal will focus on the second step.

       {¶ 59} “Evidence of other acts is admissible if (1) there is substantial proof that

the alleged other acts were committed by the defendant, and (2) the evidence tends to

prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Lowe at 530; Evid.R. 404(B); R.C. 2945.59. Here, the other-acts

evidence was entered to prove identity.

              Other acts can be evidence of identity in two types of situations.

       First are those situations where other acts “form part of the immediate

       background of the alleged act which forms the foundation of the crime

       charged in the indictment,” and which are “inextricably related to the

       alleged criminal act.” State v. Curry (1975), 43 Ohio St.2d 66, 73, 72

       O.O.2d 37, 41, 330 N.E.2d 720, 725. * * *

              Other acts may also prove identity by establishing a modus operandi

       applicable to the crime with which a defendant is charged. * * * “‘Other

       acts’ may be introduced to establish the identity of a perpetrator by showing

       that he has committed similar crimes and that a distinct, identifiable

       scheme, plan, or system was used in the commission of the charged




23.
       offense.” State v. Smith (1990), 49 Ohio St.3d 137, 141, 551 N.E.2d 190,

       194.

Lowe at 531. In this case, the other-acts evidence is not part of the immediate

background of the alleged act, but instead is being offered to show that appellant has a

particular modus operandi.

       {¶ 60} “A certain modus operandi, is admissible not because it labels a defendant

as a criminal, but because it provides a behavioral fingerprint which, when compared to

the behavioral fingerprints associated with the crime in question, can be used to identify

the defendant as the perpetrator.” Id. “To be admissible to prove identity through a

certain modus operandi, other-acts evidence must be related to and share common

features with the crime in question.” Id. “The standard for admissibility of other-acts

evidence is strict.” Id. at 533.

       {¶ 61} In Lowe, the Ohio Supreme Court affirmed the trial court’s ruling that

certain other-acts evidence was inadmissible. In that case, the victim was found dead

from multiple stab wounds. In addition, a responding officer was found shot to death,

possibly with his own revolver. The victim’s body was partially clad in only a shirt, her

feet bound with rope, and her hands bound with a cloth. Id. at 527. The state theorized

that the defendant planned to have sex with the victim, which went awry, resulting in the

murders. Notably, the murder scene contained no direct evidence which indicated that

the killing was sexually motivated. It was undisputed that the attacker surprised the

victim after she had quickly emerged from the shower to answer the telephone, and the




24.
victim’s body was not sexually mutilated. A key piece of evidence in that case was a

handwritten document known as the “power list,” which the state characterized as a

written plan of deviant sexual activity. Named on the list were the victim and her minor

daughter, as well as two other female children who were eight years old, among others.

The state sought to introduce the testimony of the two other female children.

       {¶ 62} The children testified that they would occasionally visit the defendant’s

home, and would play several different games, including the “rug game,” in which the

defendant would wrap the children up in a rug, tie a rope around one end, and drag them

around the floor. They would also play a variation of hide-and-seek where a person was

tied and had to get loose in order to find the other players. The defendant would untie the

girls if they were unable to do so themselves. Other activities with the girls were overtly

sexual. The defendant, on at least one occasion, showed X-rated videotapes to the girls

while having his hands down his pants. On another occasion, the defendant would walk

through his house in bikini underwear, with his hands down his pants. The defendant

also showed the girls Playboy magazines and allowed the girls to make audiotapes of

themselves uttering sexual language. However, there was no testimony that the

defendant ever touched the girls in a manner which constituted sexual contact.

       {¶ 63} The trial court ultimately found that the other acts-evidence was

inadmissible. On appeal, the Supreme Court of Ohio affirmed. The court reasoned that

the defendant’s activities with the girls did not establish a modus operandi. The court

noted that the defendant acted in a completely nonviolent manner with the girls, the




25.
activities occurred in his own home, he did not stalk the girls, and there was no element

of surprise or force with the girls. In contrast, the killer surprised the victim in her own

home, and violently stabbed her in the chest repeatedly and slashed her throat. Further,

there was no direct evidence that the attack was sexually motivated. Finally, although

rope was used in both instances, the Supreme Court determined that the use of rope itself

does not provide a distinctive behavioral fingerprint. Therefore, the court held that the

trial court did not abuse its discretion when it found the other-acts evidence inadmissible.

Id. at 533.

       {¶ 64} In reaching its decision in Lowe, the Supreme Court of Ohio compared the

facts before it to several other cases in which the court had found that the evidence did

establish a behavioral fingerprint.

       {¶ 65} In State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990), the

Supreme Court held that evidence from seven other robberies was admissible in a murder

trial where the victim was working at a bar during the day in downtown Cincinnati when

a robber entered, took money from the cash register, and struck the victim in the head,

ultimately causing the victim’s death. In that case, the other robberies all occurred within

a four-month period, in the general downtown area of Cincinnati, on weekday afternoons

(with one exception), and from first-floor, on-the-street, walk-in businesses. In addition,

in all of the other robberies appellant physically took or attempted to take money from

the register, forced, threw, or knocked victims to the floor, and consistently directed




26.
violence to a victim’s head by either striking the head causing severe head injuries,

pulling hair, or holding a gun to the head. Id. at 184-185.

       {¶ 66} In State v. Smith, 49 Ohio St.3d 137, 551 N.E.2d 190 (1990), the defendant

was tried in two different courts with two different murders. In each trial, evidence of the

other murder was admitted. Appellant was convicted of both murders. On appeal, two

separate courts of appeals reversed the convictions, respectively. The Supreme Court

jointly reversed the decisions of the courts of appeals and affirmed the trial courts’

admission of other acts evidence to prove the identity of the defendant as the supplier of a

fatal dose of heroin to the two separate victims. The court described the similarity

between the two murders as follows:

       Both victims were friends of the defendant. Both victims were overnight

       guests of defendant at his trailer. Both victims were frequent drug users.

       Defendant waited one or more hours in both instances before calling the

       police. Defendant cleaned the trailer both times to remove any

       incriminating evidence. In both instances, defendant met the officers at his

       trailer and told them that the victims had apparently died of an overdose of

       illegal drugs. Both victims died of acute morphine intoxication, having .07

       milligrams percent of morphine in their blood.

Id. at 141.




27.
       {¶ 67} Finally, in State v. Broom, 40 Ohio St.3d 277, 533 N.E.2d 682 (1988), the

Supreme Court affirmed the trial court’s admission of other-acts evidence regarding

attempted abductions and rapes. The court reasoned,

       All three incidents occurred within a few months of each other, within a

       few miles of each other, and all involved young girls between the ages of

       eleven and fourteen walking along a street after dark. The method in all

       three incidents was identical: a lone driver in a car passed the victims,

       parked the car and then attacked them from behind, trying to get the victims

       into the car while using the same scurrilous language. Two of the incidents

       involved the same car and a knife.

Id. at 282.

       {¶ 68} Here, we find that the other incidents introduced at appellant’s trial do not

contain the same distinctive characteristics that would rise to the level of a behavioral

fingerprint. In each instance, appellant beat his romantic interest. Tragically, however,

domestic violence is not a characteristic unique to appellant such that it can establish a

behavioral fingerprint. As noted by Parks and Trevino, the types of bruises and abrasions

on Molnar’s body were similar to bruises and abrasions frequently seen on domestic

violence victims.

       {¶ 69} As to the November 2013 and June 2014 assaults of R.B., the

characteristics of those assaults are markedly different from the June 8, 2011 murder of

Molnar. Molnar’s beating was pervasive, and involved being struck by a blunt




28.
instrument to the point of suffering fatal internal injuries. In comparison, the assaults on

R.B. were not nearly as pervasive, involving only bruising to the face, and a belt mark on

her back.

       {¶ 70} As to the December 2009 assault of Molnar, the facts are closer. In both

instances, Molnar suffered significant bruising all over her body. However, the June 8,

2011 incident differs in both the type and severity of the injuries. In December 2009,

Molnar was struck repeatedly with a broom, which caused bruising on her arms and legs,

as well as a bruised spleen. On June 8, 2011, Molnar was allegedly beaten with a ball-

peen hammer, and suffered not only bruising on her arms and legs, but also a lacerated

spleen and left kidney, bruising to her pancreas and ribs, and bleeding in the brain. In

addition, unique to the June 8, 2011 incident, Molnar had numerous linear marks on her

body, which suggested that she was whipped with some type of object, as well as

scalding marks on her face.

       {¶ 71} Moreover, the circumstances surrounding the two assaults differ in material

ways. While in both instances Molnar tested positive for cocaine, in December 2009,

Molnar also tested positive for marijuana, benzodiazepines, and opiates. Further, in

December 2009, Molnar alleged that appellant kidnapped her and held her hostage, but

there is no evidence to suggest that Molnar was being held against her will in June 2011.

Finally, although not presented to the jury, in December 2009, Molnar alleged that she

was the victim of a sexual assault, but there was no evidence that Molnar suffered a

sexual assault in June 2011.




29.
       {¶ 72} Therefore, we hold that the other-acts evidence in this case does not meet

the strict threshold of establishing a modus operandi to prove appellant’s identity as

permitted under Evid.R. 404(B), and instead constituted impermissible evidence as to

appellant’s character and propensity to act in conformity with the other acts.

Consequently, we hold that the trial court abused its discretion in allowing the other-acts

evidence of the December 2009 assault of Molnar, and the November 2013 and June

2014 assaults of R.B.

       {¶ 73} Next, we must determine if the improper admission of the other-acts

evidence has prejudiced appellant. “The question is whether an improper admission

affects the defendant’s ‘substantial rights’ so that a new trial is required as a remedy.”

State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 26. If not, the

error may be disregarded as harmless error. Id. at ¶ 25. Importantly, we must find that

the error was harmless beyond a reasonable doubt. Id. at ¶ 28. In determining whether

an error is harmless beyond a reasonable doubt, we “must excise the improper evidence

from the record and then look to the remaining evidence.” Id. at ¶ 29. “[T]he cases

where imposition of harmless error is appropriate must involve either overwhelming

evidence of guilt or some other indicia that the error did not contribute to the conviction.”

Id., quoting State v. Rahman, 23 Ohio St.3d 146, 151, 492 N.E.2d 401 (1986).

       {¶ 74} In this case, excluding the other-acts evidence, the remaining evidence

against appellant, while strong, is entirely circumstantial. There is no direct physical or

witness testimony that establishes that appellant murdered Molnar. Furthermore, a




30.
significant portion of the trial was comprised of the other-acts evidence and involved the

testimony of multiple witnesses. Therefore, we find that the admission of the other-acts

evidence was not harmless beyond a reasonable doubt.

        {¶ 75} Accordingly, appellant’s first assignment of error is well-taken.

                         B. Other Assignments of Error are Moot

        {¶ 76} In light of our resolution of appellant’s first assignment of error, which

warrants a new trial, appellant’s second, fourth, fifth, and sixth assignments of error are

moot.

        {¶ 77} Accordingly, appellant’s second, fourth, fifth, and sixth assignments of

error are not well-taken.

                               C. Sufficiency of the Evidence

        {¶ 78} In his third assignment of error, appellant argues that his conviction was

based upon insufficient evidence. Because “the state is not entitled to retry a criminal

defendant after reversal for trial court error if the state failed in the first instance to

present sufficient evidence * * * a defendant’s assigned error that the conviction is based

on insufficient evidence is not moot under these circumstances.” State v. Vanni, 182

Ohio App.3d 505, 2009-Ohio-2295, 913 N.E.2d 985, ¶ 15 (9th Dist.), citing State v.

Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284.

        {¶ 79} 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




31.
doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

       {¶ 80} Appellant was convicted of aggravated murder under R.C. 2903.01(A),

which provides, “No person shall purposely, and with prior calculation and design, cause

the death of another or the unlawful termination of another’s pregnancy.” “The phrase

‘prior calculation and design’ by its own terms suggests advance reasoning to formulate

the purpose to kill. Evidence of an act committed on the spur of the moment or after

momentary consideration is not evidence of a premeditated decision or a studied

consideration of the method and the means to cause a death.” State v. Walker, 150 Ohio

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

considered in determining whether a defendant acted with prior calculation and design:

“(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?’” Id. at ¶ 20, quoting State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82

(1997). “[P]rior calculation and design can be found even when the killer quickly

conceived and executed the plan to kill within a few minutes.” State v. Coley, 93 Ohio

St.3d 253, 264, 754 N.E.2d 1129 (2001). Evidence of prior calculation and design

includes facts which demonstrate that appellant’s conduct “went beyond a momentary

impulse and show that he was determined to complete a specific course of action.” State

v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 46.




32.
       {¶ 81} Here, when viewed in a light most favorable to the state, the evidence could

lead a jury to conclude that appellant purposely, and with prior calculation and design,

beat Molnar to death. Appellant was the only person with Molnar around the time of her

death. Appellant had previously beaten Molnar before, requiring her to spend time in the

hospital. Sheri Marshall testified that either the night before or the night of Molnar’s

death, she saw Molnar in appellant’s house, and Molnar could not sit up or speak, and

could not even take a sip of water. A ball-peen hammer was recovered from the scene,

and the coroner testified that the injuries sustained by Molnar could have been caused by

the hammer. Appellant’s DNA was on the handle of the hammer.

       {¶ 82} Further, appellant’s explanation of how he found Molnar does not make

sense. He stated that when he returned home and tried to wash himself in the kitchen that

there was no water pressure. However, an open water-heater would only minimally

impact the water pressure throughout the rest of the house. Also, Molnar would not need

to adjust the thermostat on the hot water heater to get cooler water, she could simply have

opened the cold water faucet further. Even if Molnar was going to adjust the thermostat,

she would have no reason to open the drain valve.

       {¶ 83} Likewise, appellant’s explanation of Molnar’s injuries is not credible.

Appellant explained that Molnar received the injuries by falling down the stairs, but the

extent of Molnar’s injuries demonstrates that to be false. Appellant also could not

explain the linear marks on Molnar’s body, and even claimed that he did not see them,

despite carrying her scantily clad body up from the basement and laying her on the air




33.
mattress. Finally, appellant claimed that he thought Molnar was still alive when he

carried her up from the basement, but did not call 9-1-1 for some time, and when

authorities arrived, Molnar was immediately recognized as being dead. Given the

severity of the beating administered to Molnar and appellant’s reluctance to call 9-1-1, a

reasonable juror could infer that appellant’s conduct went beyond a momentary impulse

and demonstrated appellant’s commitment to killing Molnar.

       {¶ 84} Therefore, we hold that appellant’s conviction is not based upon

insufficient evidence.

       {¶ 85} Accordingly, appellant’s third assignment of error is not well-taken.

                                     IV. Conclusion

       {¶ 86} For the foregoing reasons, we find that substantial justice has not been done

the party complaining, and the judgment of the Lucas County Court of Common Pleas is

reversed. This matter is remanded to the trial court for further proceedings consistent

with this decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R.

24.

                                                                        Judgment reversed
                                                                           and remanded.




34.
                                                                      State v. Mathis
                                                                      C.A. No. L-18-1192




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




35.
