[Cite as State v. Hunt, 2018-Ohio-4183.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        SCIOTO COUNTY

STATE OF OHIO,                                 :

        Plaintiff-Appellee,                    :       Case No. 17CA3811

v.                                             :
                                                       DECISION AND
DOUGLAS L. HUNT,                               :       JUDGMENT ENTRY

        Defendant-Appellant.                   :       RELEASED 10/12/2018


                                           APPEARANCES:
Matthew F. Loesch, Portsmouth, Ohio, for appellant.

Shane Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for appellee.

Hoover, P.J.
        {¶1}     Defendant-appellant, Douglas L. Hunt (“appellant”), appeals his convictions

entered in the Scioto County Court of Common Pleas. Following a jury trial, appellant was found

guilty of one count of aggravated murder, one count of murder, three counts of endangering

children, one count of tampering with evidence, and one count of gross abuse of a corpse.

        {¶2}     On appeal, appellant first contends that insufficient evidence supports the jury’s

verdicts, or alternatively, that the verdicts are against the manifest weight of the evidence.

Because we find that any rational trier of fact could have found the essential elements of the

crimes proven beyond a reasonable doubt, and because substantial evidence supports the

verdicts, we disagree. Appellant next contends that the trial court erred when it denied his motion

for continuance of the jury trial. Because we find that the trial court acted within its discretion

when it denied the motion, we disagree. Appellant next argues that the trial court abused its

discretion when it limited his cross-examination of his co-defendant. We disagree. The co-
Scioto App. No. 17CA3811                                                                              2


defendant had previously answered appellant’s question, and the trial court did not abuse its

discretion by limiting repetitive testimony that only served to harass the witness. Appellant next

claims that the trial court committed plain error when it failed to give a jury instruction regarding

the credibility of accomplice testimony pursuant to R.C. 292303(D). Because appellant has not

shown that, but for the trial court’s failure to give the required jury instruction, the outcome of

the trial would clearly have been otherwise, we disagree. Appellant next contends that his trial

counsel’s failure to request the jury instruction on accomplice credibility, to object to improper

opinion testimony, to object to prior bad acts evidence, and to object to improper prosecutor

remarks constitutes ineffective assistance of counsel. We disagree. Appellant next contends that

the prosecutor made improper comments during closing argument that affected the fairness of his

trial. Because we conclude that the remarks of the prosecutor do not amount to prosecutorial

misconduct, we disagree. Appellant next contends that the trial court erred in failing to order a

jury view of the scene. Because substantial evidence detailing the scenes of the crimes were

introduced and admitted into evidence, we do not believe that the trial court abused its discretion

in denying the motion for a jury view. Appellant next asserts that the trial court abused its

discretion when it allowed the State to introduce improper hearsay testimony. Because we find

the testimony was subject to a hearsay exception, we disagree. Finally, appellant contends that

the cumulative error rule requires reversal of his convictions. Because multiple errors did not

occur in the proceedings below, we disagree.

       {¶3}    Accordingly, we overrule all of appellant’s assignments of error and affirm the

judgment of the trial court.


                                 I. Facts and Procedural History
Scioto App. No. 17CA3811                                                                             3


       {¶4}    A Scioto County Grand Jury indicted appellant for one count of aggravated

murder, one count of murder, three counts of endangering children, one count of tampering with

evidence, and one count of gross abuse of a corpse. Thereafter, the State amended the indictment

to clarify the dates that the alleged offenses occurred. The case centered on the death of a 6 year-

old child, Tyler Joseph Caudill (“TJ”). Margarita White (“White”), TJ’s mother, was also

indicted on identical charges as a co-defendant.

       {¶5}    On August 28, 2017, appellant moved for a continuance of the jury trial that had

been scheduled for September 5, 2017. Appellant’s motion for continuance was based primarily

on the fact that his co-defendant, White, had agreed to enter a guilty plea and to testify against

him. The trial court denied the motion for continuance the following day; and White was

officially disclosed by the State as a witness against appellant on August 31, 2017.

       {¶6}    Appellant’s case proceeded to jury trial on September 5, 2017. The State

presented numerous witnesses, including co-defendant White. Appellant did not present any

testimony in his case-in-chief. The following facts are adduced from appellant’s trial.

       {¶7}    Michael Caudill testified that he was TJ’s biological father. He stated that he and

TJ’s mother, White, dated on and off for several years; but that the relationship ultimately ended

in them agreeing to mutually separate. He testified that following their separation, for about the

next year and a half, “everything went great”; and the two shared custody of TJ without issue. He

also testified that during this time period TJ was a “happy, healthy baby boy” except for the

occasional fit that resulted from TJ’s autism. He testified that the relationship between himself

and White began to deteriorate when White moved in with appellant around summer of 2015.

After White began living with appellant, it became progressively more difficult for Caudill to

contact White and to see his son. Caudill testified that the last time he saw TJ was on August 8,
Scioto App. No. 17CA3811                                                                              4


2015, at TJ’s fifth birthday party. After that date he testified that he could no longer contact

White or his son despite exhaustive efforts to reach them. He contacted police to conduct a

welfare check and children service agencies in both Ohio and Kentucky; but the authorities had

trouble locating White, appellant, and TJ. Caudill testified that he also contacted the juvenile

court and an attorney in an attempt to acquire custody of TJ but was told that he needed a

physical address to serve paperwork; but at the time he could not locate appellant, White, or TJ.

       {¶8}    Lorainia Caudill, TJ’s paternal grandmother, also testified at trial. She testified

that she regularly visited TJ until the time when White began dating appellant. When White first

began dating appellant Lorainia testified that she went from “having [TJ] four evenings and 25-

30 hours on the weekend to having him like two weekends a month.” At that time, Lorainia

testified that TJ was “a healthy child, had no issues, other than being autistic.” After TJ’s fifth

birthday party on August 8, 2015, Lorainia testified that White quit responding to any of her or

her son’s attempts to visit TJ. Lorainia Caudill also testified that around August 2015, White was

living with appellant and TJ and the bunch were constantly moving to new locations. She

testified that eventually she and her son were unable to locate White or to speak to her through

any means. Lorainia testified that by Spring 2016 she learned that no extended family members

had seen TJ for quite sometime, so she and her boyfriend began canvassing neighborhoods in

Portsmouth six to seven nights per week in an attempt to locate TJ. Lorainia testified that she

hoped to find an address where White, appellant, and TJ were staying so that she and her son

could file for custody. While canvassing neighborhoods, Lorainia followed White and appellant

on several occasions, but never could find TJ or an address where he might be staying. Lorainia

testified that she took notes of the times and locations where she viewed White and appellant,

and handed those notes over to the police and to children services.
Scioto App. No. 17CA3811                                                                              5


           {¶9}     Joe Augustin, a Nurse Practioner at the Southern Ohio Medical Center (“SOMC”)

in Portsmouth, Ohio, testified in regards to an ER visit on September 11, 2015. Augustin testified

that TJ was referred to the ER from SOMC Pediatrics in regards to a leg fracture that occurred

after a fall from a stool two days earlier. Augustin testified that no other injuries were noted aside

from bruising and swelling at the location of the fracture. Augustin ordered an orthoglass splint

to be applied, provided a prescription for pain medication, and referred TJ to SOMC

Orthopedics.

           {¶10} Dr. Scott Logan, Director of Medical Imaging at SOMC, testified regarding the

X-rays taken during the September 11, 2015 visit to the ER. Dr. Logan testified that the fracture

that occurred on the left leg was a spiral fracture, which can be consistent with accidental or non-

accidental trauma.

           {¶11} Lieutenant Michael Hamilton of the Portsmouth Police Department was the next

witness to testify at trial. Lieutenant Hamilton testified that he was the lead investigator on the

missing person/homicide case. Initially, Lieutenant Hamilton’s investigation concerned locating

appellant, White, and TJ. Lieutenant Hamilton referred to White and appellant as being “on the

lam[]” and “very hard to locate”. Lieutenant Hamilton testified that with the help of the Scioto

County Sheriff’s Office, and law enforcement officers in Kentucky, White was eventually

located and arrested1 in the parking lot of the Gatti’s restaurant in Portsmouth. At the time of her

arrest, White agreed to take Detective Jodi Conkel of the Scioto County Sheriff’s Office to where

TJ could be located. Lieutenant Hamilton testified that Detective Conkel and White went off on

their own, and shortly thereafter Detective Conkel called him and told him to immediately come

to the 1500 block of Mabert Road in Portsmouth. Officers then arrived at a vacant house at 1522

Mabert Road, where White had directed Detective Conkel to TJ’s dead body. The body was

1
    Officers had obtained a warrant for White for her failure to enroll TJ in school.
Scioto App. No. 17CA3811                                                                            6


located on the side of the house - in a black bag underneath a tabletop - and was badly

decomposed. Lieutenant Hamilton testified that he experienced the most putrid smell of human

decomposition in his 19 years on the job.

       {¶12} Lieutenant Hamilton testified that upon discovering the body he immediately

secured the scene, called in additional law enforcement including the Bureau of Criminal

Investigations, and started the process of obtaining a search warrant for the residence. White was

then transferred to the Sheriff’s Office for questioning. It was soon learned that a blue and white

cooler had been used to transport the deceased child from the Royal Inn motel to the 1500 block

of Mabert Road. Lieutenant Hamilton testified that he found the blue and white cooler in the

yard of the residence at 1524 Mabert Road.

       {¶13} Also during Lieutenant Hamilton’s testimony, appellant’s interview with law

enforcement was played for the jury. During the interview, appellant stated that he had been in a

three-year relationship with White; but that the past “five or six months have been on and off.”

Appellant told the detectives that he has two other kids with White, and that they had lived in

Portsmouth; Huntington, West Virginia; South Shore, Kentucky; and then returned back to

Portsmouth in June 2016. He stated that upon their return to Portsmouth they had been homeless

for a period, had lived in a truck, squatted in abandoned houses, and also had lived at the Royal

Inn sometime in July or August 2016. He denied that TJ was malnourished, that he ever withheld

food or water from TJ, and denied having any part in TJ’s death. He stated that White had given

up custody of TJ to a friend or aunt; and he never saw him again. Appellant claimed in his

interview with law enforcement that he played a large role in TJ’s development, including

improvements in the area of bathroom training and general behavior. Appellant claimed during

the interview that he only used appropriate disciplinary methods with TJ.
Scioto App. No. 17CA3811                                                                            7


       {¶14} Darren Queen, a part time employee at the Royal Inn in Portsmouth, also testified.

Queen testified that he took payment from White on a number of occasions while she was

staying at the Royal Inn in the summer of 2016. Queen stated that he saw White on a daily basis

while she was living there; but that appellant stayed in the room more than White. Queen

testified that White was living at the motel with the appellant and two children; and that they had

stayed from about August 10, 2016 to September 27, 2016. On cross-examination, Queen

testified that of all the times he saw White, he never observed bruising or other signs of violence.

       {¶15} Carol Withrow, an employee at City National Bank in Cross Lanes, West

Virginia, was the next witness to testify for the State. Withrow testified that White was TJ’s

representative payee for his SSI disability claim in the amount of $733.00 per month.

       {¶16} Dr. Elizabeth Kryszak, a clinical psychologist at Nationwide Children’s Hospital

in Columbus, Ohio, testified about TJ’s autism diagnosis. Dr. Kryszak testified that she first

evaluated TJ in March 2013 and diagnosed him with autism. The last time that she saw TJ was in

March 2014 at a follow-up appointment. She stated that no serious health concerns were reported

to her during her evaluations in 2013 and 2014. Dr. Kryszak, in her prior evaluations of TJ, noted

that screaming was his primary consistent behavior for various different reasons, along with

flapping of his hands, grinding his teeth, and walking on his toes. Dr. Kryszak testified that TJ

appeared to be physically healthy the last time she saw him in March 2014, and that White

reported that he was eating well at that time. Dr. Kryszak testified about a number of

recommendations she made to White to help TJ’s developmental and behavioral issues, but noted

that White never returned TJ for another follow-up appointment.

       {¶17} Charles Lennex, Jr., the next witness called by the State, admitted to being a prior

felon and drug addict. Lennex testified that he was familiar with appellant and had been for a
Scioto App. No. 17CA3811                                                                             8


number of years. Lennex testified that he saw appellant sometime in 2016, when “it was hot”

outside, and that appellant was living in a truck with White and three kids. Lennex testified that

the next time he saw appellant, appellant was living at the Royal Inn; and Lennex met him there

to sell him Suboxone. Lennex testified that he would meet appellant at the Royal Inn once or

twice a week to sell him Suboxone, but that appellant would never let him into the motel room.

Lennex stated that White and three children were living at the motel with appellant. Lennex

testified that appellant and White then moved to a house on Mabert Road and was living with a

woman and with Mitch Waring. Lennex testified that he visited the house a few times to sell

drugs, and witnessed appellant and White inject Suboxone at the residence. Lennex testified that,

later in the fall of 2016, appellant came to his house and said White was talking to the police, and

that “he was going to go to prison * * * [that] someone died and it –he said if someone died and

you’re the coseer (sic) over them, then obviously, it’s going to come back on you regardless.”

According to Lennex, later on appellant said it was “the kid, a baby” that had died, and that he

had moved the body. Lennex testified that he later met with detectives from the Scioto County

Sheriff’s Office to discuss what appellant had told him, and that he worked with law enforcement

to help apprehend appellant. Lennex confirmed that he collected a $200 reward for the

apprehension of appellant. Lennex’s brother, Joshua Lennex, also testified at trial and

corroborated much of the testimony concerning the brothers’ role in the apprehension of

appellant.

       {¶18} Geoff Pattmore, a caseworker at the Scioto County Children Services Board, also

testified at trial. Pattmore verified that several reports had been made to children services

agencies in both Scioto County and in Kentucky regarding the safety of the children in

appellant’s and White’s care. Pattmore testified that as part of his investigation into these claims
Scioto App. No. 17CA3811                                                                             9


he tried to track down the bunch at the Royal Inn in late September 2016, but learned that they

had moved out of the motel the day before his arrival. On that same day in September 2016,

Pattmore visited an apartment complex and several businesses in Portsmouth where White had

reportedly been seen panhandling, but was unable to locate White, appellant, or the children.

Pattmore testified that he finally tracked down White in November 2016, at the Goodwill store in

Portsmouth; but after White initially agreed to lead Pattmore to the appellant and TJ, she fled

from Pattmore and was never seen by Pattmore again. Pattmore testified that before White fled,

she told Pattmore that appellant was abusing her. However, on cross-examination, Pattmore

stated that he did not see any bruises on White.

       {¶19} Tim Wilson, retired Chief of Police of the Russell (Kentucky) Police Department

also testified at trial. Wilson testified that White’s aunt contacted him in July 2016 because she

was concerned about TJ’s safety. Wilson testified that the aunt thought White might be residing

in Scioto County; so Wilson contacted the Scioto County Sheriff’s Office. Wilson began

working together with Jodi Conkel of the Sheriff’s Office and was present for White’s arrest in

November 2016.

       {¶20} Detective Jodi Conkel of the Scioto County Sheriff’s Office also testified at trial.

Detective Conkel verified that she became involved in the investigation in an official capacity on

November 13, 2016. She testified that she was present for White’s arrest at Gatti’s Pizza on that

date. Detective Conkel testified that White was advised of her Miranda rights but agreed to talk

to her. Detective Conkel testified that White first told her that TJ was staying in Kentucky with a

friend, but when Detective Conkel insisted White was not telling the truth, White agreed to take

Detective Conkel to TJ. Detective Conkel testified that White then led her and Detective Malone

to Mabert Road and told them that TJ’s body was up against an abandoned house with a round
Scioto App. No. 17CA3811                                                                          10


table thrown on top of it. Upon exiting the vehicle Detective Conkel could smell decomposition.

Detective Conkel testified that she then found TJ’s body where White said it would be located.

The body was located in a plastic bag, with bones visible through an opening in the bag.

Detective Conkel was then asked to interview White while other officers processed the scene.

During her interview, Detective Conkel learned that TJ’s deceased body was placed, for several

months, in a blue and white Igloo type cooler. Detective Conkel relayed this information to

officers at the scene, and a cooler matching the description was located nearby.

       {¶21} Detective Conkel also testified that she was involved in appellant’s arrest. She

verified that Charles Lennex had worked in conjunction with law enforcement to help apprehend

appellant.

       {¶22} Detective Steve Timberlake of the Portsmouth Police Department testified

consistently with the events surrounding the discovery of TJ’s body on November 13, 2016.

Detective Timberlake also testified about a second interview he conducted with appellant on

November 20, 2016. During the second interview, a recording of which was played for the jury,

appellant stated that the last time he saw TJ was when they were staying at the Royal Inn.

Appellant also stated in the interview that White told him two accounts of where TJ was staying;

the first being with a friend, and the second being with an aunt. Appellant also claimed during

the interview that he overheard White tell someone on the phone that TJ had a seizure. Appellant

denied being present when TJ died, and further claimed that he did not see his body at any time.

       {¶23} Immediately following Detective Timberlake, Detective Steve Brewer of the

Portsmouth Police Department was called as a witness by the State. Detective Brewer testified

that his involvement in the case was primarily as the evidence technician, and that he processed
Scioto App. No. 17CA3811                                                                           11


and sent the remains of TJ’s body and other evidence from the Mabert Road scenes for

appropriate testing.

           {¶24} Hallie Dreyer, a Forensic Scientist with the Ohio Bureau of Criminal

Investigation, testified that she performed the DNA testing on the remains found at the Mabert

Road residence. Dryer testified that the DNA testing verified that the remains were of a

biological child of Margarita White and Michael Caudill. Dryer further testified that DNA taken

from the cooler found at the neighboring Mabert Road residence was analyzed, but was

insufficient for comparison to any of the parties of the case.

           {¶25} Diana Cook, appellant’s mother, also testified as a witness for the State. Cook

testified that she first met White and TJ in the fall of 2014 or early 2015. Cook recalled visiting

appellant, White, TJ, and her other grandchild (appellant and White’s first biological son) in

early 2015 at their home on Lincoln Road in Portsmouth. However, according to Cook, by the

summer of 2016 appellant, White, and the three children2 were homeless and living out of a

truck. Cook testified that they came and visited her while they were living out of the truck in

June 2016 and that TJ “had a sore on his mouth and he looked like he was in a daze. And he love

popsicles. He wouldn’t take the popsicle.” Cook testified that after the visit she lost contact with

her son, and then eventually tracked him down at the Royal Inn. Cook testified that when she

visited the Royal Inn an “awful odor” was coming from appellant and White’s room, and that

when she asked to see the kids only White, appellant, and her two grandsons came outside. Cook

asked where TJ was and White told her that he was “in Ashland with a friend.” Later in the fall

of 2016, Cook testified that White contacted her and asked if she would take care of the two

grandchildren because they did not have a place to stay. Cook eventually agreed to take custody

of the two children and she testified that they were in “horrible” condition – left with no clothes,

2
    Appellant and White had a second child together by summer 2016.
Scioto App. No. 17CA3811                                                                             12


no diapers, and no milk. She testified that one child had a bruise on his ear, and the other child

ate food like he had been starving. She testified that appellant and TJ were not present when she

met White to take custody of the two other children. On cross-examination, Cook testified that

when she interacted with the children, it was primarily White who had them. When she saw

appellant and the children together, they played and interacted with him and did not act scared or

apprehensive.

       {¶26} Mitch Waring III, the next witness called by the State, admitted to being a prior

felon and drug abuser. Waring testified that he started living at 1524 Mabert Road in the fall of

2016 and that appellant, White, and their two children were already living there. Waring’s

girlfriend, Marie Anderson, was the renter or owner of the home. Waring testified that all of the

adult occupants of the home were using drugs, specifically Suboxone and Methamphetamine.

Waring further testified that he rarely saw the appellant, that he was private, and mainly stayed in

the bedroom. Waring testified that while appellant was living at the home, a man named James

Queen rummaged through appellant’s belongings, and Waring told Queen to stop just as he

uncovered a cooler. When Waring saw the cooler he immediately thought something was amiss

because the cooler was covered with a tarp and sealed, airtight. Waring testified that when Queen

started to remove the tarp from the cooler an “ungodly” “smell of rotten flesh, decay”

overwhelmed him. Waring was unsure if Queen ever opened the cooler. Waring later questioned

the smell; and it was explained to Waring that the odor of decay was from a cat; and Waring

testified that he did in fact later see a half-decomposed cat near the belongings. Waring further

testified that he and his girlfriend confronted White, and later appellant, about the location of

their “third child”; but that appellant and White did not respond at all. Waring testified that he

then put his hands on the appellant in an attempt to get a response, but that appellant pulled out a
Scioto App. No. 17CA3811                                                                            13


butcher knife, threatened him, and then eventually left. White and the two children also left the

residence immediately following the altercation. Waring testified that he never saw either of

them again. Waring testified on cross-examination that he never noticed any bruises on White’s

face or neck.

       {¶27} James Queen testified directly after Waring. Queen testified that he was currently

serving time in prison, and that he had previously been convicted of aggravated burglary and

aggravated assault. Queen also admitted that he had abused methamphetamine, Xanex, heroin,

and other drugs in the past. Queen testified that he was high on methamphetamine when he

rummaged through appellant’s belongings at the residence on Mabert Road and smelled the

rotten odor coming from the cooler. He described the smell as if something was dead. He also

confirmed the dead cat story, testifying as follows:


       Yeah. For like two or three days in a row Marie [Anderson] had come to me, she

       said, “Jamie”, she said, “There’s a dead cat outside the back door.” And I thought

       it was kind of weird because for like two or three days in a row she told me this.

       I’d go out there with a stick or something and pick up a dead kitten that was

       rotten, and I’d throw it over in the bushes back behind the other house. And then

       sure enough, the next night, there’d be another one there. I mean, that happened

       like two or three other times.


Queen confirmed on cross-examination that he never opened the cooler.


       {¶28} As previously mentioned appellant’s co-defendant, and TJ’s mother, Margarita

White, testified during the State’s case. White openly admitted that she reached a plea deal with

the State; requiring that she testify truthfully about what happened to TJ in exchange for a
Scioto App. No. 17CA3811                                                                          14


recommended sentence of three years for child endangerment and 15 years to life for murder.

White testified that she began dating appellant in early 2014, and the two moved in together in

March 2014. She stated that when she first met appellant TJ did not have any serious medical

concerns other than his autism. White testified at length about appellant’s history with TJ. White

testified that when she first started dating appellant, he and TJ got along well. However, after the

appellant lost his job and started using Suboxone, she noticed a change in how appellant treated

TJ. White testified that around August 2015 appellant started disciplining TJ more, making him

stand in the corner for hours on end or striking him on the mouth. It was also around this time

that she said appellant would no longer allow TJ’s biological father or his family to see TJ

anymore. White claimed that when she tried to address disciplinary matters with appellant,

appellant treated TJ even worse. White testified that appellant mainly objected to TJ’s potty

accidents and screaming. White testified that she took TJ to the hospital on September 11, 2015,

for a broken leg. White claimed that TJ fell and became injured when appellant forced him to

stand on a barstool on one foot with his hands behind his back. When asked why she did not tell

the doctor about the alleged barstool incident, she testified that she did not know. White further

testified that she eventually told the appellant’s sister about appellant’s involvement in TJ’s

broken leg, but never confided in anyone else. White went on to make further serious accusations

against appellant, including an allegation that appellant stuffed socks in TJ’s mouth, and smeared

feces in TJ’s mouth following bathroom accidents. She also stated that by spring 2016, when

they were living with her mom and stepfather in South Shore, Kentucky, TJ was losing weight

and appellant “would go off and on with letting [TJ] eat” and “if TJ peed himself, he’d keep

liquids from him.”
Scioto App. No. 17CA3811                                                                             15


       {¶29} White also testified about her relationship with appellant, including multiple

instances where appellant allegedly beat her and choked her until she blacked out. Specifically,

White testified that appellant would “pin [her] down and beat [her] for hours.” White stated that

these alleged incidents led to a fallout between her and her parents, especially after her stepfather

saw TJ with a sock in his mouth. White left with appellant on June 5, 2016, rather than stay with

her parents. Shortly thereafter, appellant, White, TJ, and their two other children lived out of a

truck/camper in Portsmouth. During this time TJ was being fed “[o]ff and on” and TJ developed

a bedsore because appellant would not allow him out of the truck.

       {¶30} White testified that she resorted to panhandling for the purpose of obtaining

money for food and drugs. She claimed that during this time, around July or August of 2016, TJ

was barely being fed, was not receiving liquids, and was forced to stay in the shower of the

camper at all times. When TJ was given juice, White claimed that it ran straight through him and

was causing extreme diarrhea. White testified that she did not take TJ to the hospital because

appellant told her they would end up in trouble. Eventually, they all moved to the Royal Inn on

August 10, 2016; and White testified that appellant continued to abuse TJ: picking up, squeezing,

and yanking him by the arm. White testified that on the last day she saw TJ alive, August 23, she

left him in appellant’s care at the Royal Inn while she panhandled for money. She described TJ’s

appearance that day as similar to a “holocaust victim”, “like the pictures you would see in the

books.” She testified that when she returned she found TJ laying in the corner deceased, and

appellant told her he might have had a seizure. However, White testified that she thinks TJ died

because he was malnourished. When asked why she did not seek help for TJ, White responded,

“I don’t know.” Neither appellant nor White tried to resuscitate TJ or call 911, because the child

was blue and swollen when they discovered him laying in the corner. White claimed that she was
Scioto App. No. 17CA3811                                                                           16


going to leave appellant and go to a battered woman’s shelter; but it was already too late as that

occurred on the same day that TJ died.

       {¶31} White testified that upon discovering that TJ had died, appellant directed her to

get ice from the hotel ice machine. According to White, appellant then locked her and the other

two children out of the room while he placed TJ’s body in a cooler and washed a comforter that

had been used to cover TJ’s body. White testified that when the appellant let her back into the

room “he had a smile on his face like – like everything was okay.” White testified that they let

the cooler with TJ’s body sit in the bathroom of the hotel room from August 23, 2016, until

September 22, 2016, when they moved out of the hotel. White stated that they went from the

hotel to Marie Anderson’s house on Mabert Road because the police and child protection

services had showed up at the Royal Inn the last day they were there. White testified that

appellant then placed the cooler and everything else they owned out back behind Marie

Anderson’s house. She stated that he placed two garbage bags over the cooler and sprayed

perfume because the smell was so bad. White testified that she still called no one at that time

because “she was scared of getting in trouble. I was scared of him. I was scared of him trying to

run with one of the other kids.” She also testified that she believed that appellant was killing cats

and placing them out back to mask the decomposition smell. White testified further that

appellant eventually removed the body and cleaned out the cooler when the other occupants of

the home began questioning the smell. After the police showed up to the Mabert Road residence

looking for White, White testified that she and appellant gave their other two kids to appellant’s

mother, and she and appellant began sleeping in the woods and at the residence of one of

appellant’s ex-girlfriends. She claimed that appellant told her to tell people that TJ was in

Ashland, Kentucky, with a friend if they asked; and if they found the body, to tell law
Scioto App. No. 17CA3811                                                                             17


enforcement that he was not involved, that he was not there and that it was her fault and that she

had hid the body on her own. White testified that she knew where the body was because

appellant had told her that it was around the abandoned house on Mabert under a tabletop.

       {¶32} White testified that she continued to correspond with appellant even after they

were arrested. The two wrote letters while in jail; and White even testified that on one occasion

she and the appellant had sex while they were at the Scioto County Jail.

       {¶33} On cross-examination, White conceded that she had a chance to get away and

save TJ when she took him to the hospital for his broken leg. White further testified on cross-

examination that she could have removed herself and the children from appellant in June 2015,

when appellant was arrested on an unrelated matter. White also testified on cross-examination

that she refused any help from her parents, despite her parent’s willingness and eagerness to

remove appellant from her life. She also testified about other instances where she could have

reported the abuse but did not. Finally, on cross-examination, White again testified that she had

entered into a plea deal with the State, in which she pleaded guilty to the murder of her son, TJ.

As part of the plea deal, White confirmed that she agreed to testify against appellant.

       {¶34} The State’s final witness was Dr. Lee Lehman, the Chief Deputy Coroner at the

Montgomery County Coroner’s Office. Dr. Lehman was designated as an expert and opined that

the autopsy of TJ’s remains revealed evidence of abuse and neglect. Specifically, Dr. Lehman

noted eight fractures of the ribs and arms, which he opined was typical fractures associated with

child abuse. Dr. Lehman further testified that there was evidence of malnourishment in the Harris

lines across TJ’s bones. He also testified that there was noticeable bone growth delay, which is

evidence that TJ was not getting proper nutrition. Based on the “totality of the injuries, and all

the information that indicates that there was abuse and neglect”, Dr. Lehman opined that abuse
Scioto App. No. 17CA3811                                                                      18


and neglect caused TJ’s death. On cross-examination, Dr. Lehman could not approximate the

time frame when malnourishment first began.

       {¶35} As previously stated, appellant rested without testifying or calling any witnesses

on his behalf.

       {¶36} On September 8, 2017, the jury found appellant guilty of all counts of the

indictment. At sentencing, certain counts were merged; and appellant was ultimately sentenced

to an aggregate prison term of life without the possibility of parole, plus 11 years.

       {¶37} Appellant filed a timely notice of appeal.


                                     II. Assignments of Error


       {¶38} On appeal, appellant assigns the following errors for our review:


Assignment of Error I:

       Defendant’s Convictions for (A) Aggravated Murder, (B) Murder, (C) Child
       Endangering, (D) Tampering With Evidence, And (E) Gross Abuse Of A Corpse
       Were Against The Manifest Weight And Sufficiency Of The Evidence.
Assignment of Error II:

       The Trial Court abused its discretion when it denied Defendant’s Motion for a
       Continuance of the Jury Trial.
Assignment of Error III:

       The Trial Court abused its discretion when it limited the cross examination of
       Appellant’s Co-Defendant Margarita White.
Assignment of Error IV:

       The Trial Court abused its discretion and committed plain error when it failed to
       give the appropriate jury instruction regarding co-defendant testimony.
Assignment of Error V:

       Appellant’s Counsel was ineffective for (a) failing to object to improper opinion
       testimony, (b) failing to request a proper jury instruction on co-defendant
Scioto App. No. 17CA3811                                                                           19


        testimony, (c) failing to object to prior bad acts evidence, and (d) failing to object
        to the prosecutor’s improper comments during closing.
Assignment of Error VI:

        There were improper comments made by the prosecutor in its closing argument.
Assignment of Error VII:

        The Court abused its discretion in failing to order a jury view of the scene.
Assignment of Error VIII:

        The Trial Court abused its discretion in admitting improper hearsay evidence
        from Mitch Waring.
Assignment of Error IX:

        Cumulative errors committed during Appellant’s trial deprived him of a fair trial
        and require reversal of his convictions.


                                       III. Law and Analysis


        {¶39} For ease of analysis, we will address appellant’s assignments of error out of order.


A. The Trial Court Did Not Abuse Its Discretion in Denying the Motion for Continuance of

                                             Jury Trial


        {¶40} In his second assignment of error, appellant contends that the trial court abused its

discretion when it denied his motion for continuance of the jury trial. Appellant asserts that a

continuance was necessary because his co-defendant, White, took a plea deal and agreed to

testify against him a week before scheduled trial. He asserts that White was the State’s key

witness, and without a continuance, his trial counsel was unable to properly prepare his defense,

thus depriving him of a fair trial.

        {¶41} “The grant or denial of a continuance is a matter entrusted to the sound discretion

of the trial court.” In re Fortney, 162 Ohio App.3d 170, 2005-Ohio-3618, 832 N.E.2d 1257, ¶ 59
Scioto App. No. 17CA3811                                                                               20


(4th Dist.), citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus.

“Appellate courts may not disturb a trial court’s decision to deny a continuance absent an abuse

of discretion.” Id., citing Unger at 67. An abuse of discretion implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable. Id. “Whether a trial court abused its discretion in

denying a continuance depends upon the facts and circumstances of each case, ‘particularly in

reasons presented to the trial judge at the time the request is denied.’ ” Id., quoting Unger at 67.

       {¶42} In considering a motion for continuance, “[a] trial court must weigh ‘any potential

prejudice to a defendant’ against ‘concerns such as a court’s right to control its own docket and

the public’s interest in the prompt and efficient dispatch of justice.’ ” Id. at ¶ 60, quoting Unger

at 67. Specifically:


       “In evaluating a motion for continuance, a court should note, inter alia: the length

       of the delay requested; whether other continuances have been requested and

       received; the inconvenience to litigants, witnesses, opposing counsel and the

       court; whether the requested delay is for legitimate reasons or whether it is

       dilatory, purposeful, or contrived; whether the defendant contributed to the

       circumstance which gives rise to the request for a continuance; and other relevant

       factors, depending on the unique facts of each case.”


Id., quoting Unger at 67-68.


       {¶43} As previously stated, appellant requested a continuance of his jury trial on August

28, 2017. Appellant’s motion claimed that the recent plea deal struck by White along with her

disclosure as a witness against him had significantly altered his trial strategy and as such he

would need additional time to prepare for trial. Appellant’s request was denied by entry of the
Scioto App. No. 17CA3811                                                                              21


trial court the following day. The trial court, aside from stating that the motion was not well

taken, gave no reasoning in its denial. White was then officially disclosed as a witness by the

State in a supplemental discovery request on August 31, 2017; and appellant’s trial commenced

on September 5, 2017, as scheduled.

        {¶44} Here, White was charged as a co-defendant from the inception of this case. Thus,

appellant and his counsel knew or should have known that White had the potential of entering a

negotiated plea agreement that could result in her testimony against him. Moreover, appellant

became aware of the terms of White’s plea agreement more than a week prior to the

commencement of his trial and had adequate time to formulate a defense strategy. In short, we do

not believe that appellant was surprised or blindsided by the revelation that White would testify

against him; or that he had inadequate time to respond to the development. Thus, in weighing

any potential prejudice to appellant against the court’s right to control its own docket and the

public’s interest in the prompt and efficient dispatch of justice, we conclude that the trial court

acted within its discretion when it denied the motion. Accordingly, appellant’s second

assignment of error is overruled.


  B. The Trial Court Did Not Abuse Its Discretion by Failing to Order a Jury View of the

                                                 Scene


        {¶45} In his seventh assignment of error, appellant contends that the trial court abused

its discretion by failing to order a jury view of the scene at 1522 Mabert Road and 1524 Mabert

Road. He contends that a jury view of the scene was essential to his “constitutional right to

effectively confront the State’s case and to ensure receipt of effective assistance of counsel”; and

to assist the jury with its understanding of the facts presented at trial.
Scioto App. No. 17CA3811                                                                             22


        {¶46} Prior to trial, appellant filed a motion for a jury view of the scene at 1522 Mabert

Road, Portsmouth, Ohio, and 1524 Mabert Road, Portsmouth, Ohio. The trial court denied the

motion at the commencement of trial, with the caveat that if it became necessary as the evidence

was presented, it would reconsider the motion. Ultimately, the issue of a jury view was never

revisited.

        {¶47} The purpose of a jury view of the property is not evidentiary but rather to give the

jury a chance to apply the evidence offered at trial. See generally 42 Ohio Jurisprudence 3d,

Evidence and Witnesses, Section 8, at 216 (1983). “The grant or denial of a jury view is within

the sound discretion of the trial court”; and “[t]he decision of the trial court will not be reversed

absent an abuse of discretion.” State v. Taylor, 4th Dist. Adams No. 95CA601, 1996 WL

205593, *2 (Apr. 24, 1996). As discussed above, the term “abuse of discretion” implies that the

trial court’s ruling was unreasonable, arbitrary, or unconscionable. Id.

        {¶48} “There are no particular requirements as to when the trial court should grant a jury

view.” Id. However, R.C. 2945.16 states:

        When it is proper for the jurors to have a view of the place at which a material

        fact occurred, the trial court may order them to be conducted in a body, under the

        charge of the sheriff or other officer, to such place, which shall be shown to them

        by a person designated by the court. * * *

“Thus, the facts of each case determine whether the court abused its discretion.” Taylor at *2.

        {¶49} Here, there is nothing in the record to support appellant’s assertion that the trial

court acted unreasonably, unconscionably, or arbitrarily in denying the jury view. At trial,

several photographs of 1522 Mabert Road, where TJ’s body was located, were presented to the

jury and admitted as evidence. Moreover, photographs of the remains of TJ’s body as they were
Scioto App. No. 17CA3811                                                                            23


found under the tabletop at 1522 Mabert Road were presented and admitted. Even a photograph

of the area behind 1524 Mabert Road, where the cooler was located, was presented to the jury

and admitted as evidence. Appellant did not question at trial whether the photographs were

accurate representations of the properties, and did not renew its request to view the residences.

Furthermore, the witnesses described the scene during the trial. Given these facts, we believe that

the trial court’s decision to deny a jury view was not unreasonable, arbitrary, or unconscionable.

Accordingly, appellant’s seventh assignment of error is overruled.

      C. The Trial Court Did Not Abuse Its Discretion in Limiting the Scope of Cross-

                            Examination of the Co-Defendant White

       {¶50} In his third assignment of error, appellant contends that the trial court abused its

discretion when it limited the cross-examination of his co-defendant, Margarita White.

       {¶51} During cross-examination of White, numerous questions were asked about

White’s involvement in TJ’s death; and the plea deal that she struck with the State. White

testified that she was originally charged with the same crimes that appellant was charged with;

but that she only agreed to plea guilty to child endangering and murder. When asked if she killed

her son, White testified that she did not, but she did admit to “turning [her] head to what

[appellant] was doing.” Defense counsel continued to press White on the issue, and the following

exchange occurred:


       Q.      And you’ve admitted to pleading guilty to murder of your own child;

       correct?


       A.      I turned a blind eye –child endangering.


       Q.      Not what I asked you.
Scioto App. No. 17CA3811                                                                            24


       A.      Which caused in the murder of my son, but I did not


       Q.      Did you –did you-- * * *


       A.      I did not –


       [Assistant Prosecutor]: Your Honor, I object. * * *


       THE COURT: Sustained. You may answer the question.


       [Defense Counsel]: She’s not answering the question, Your Honor. That’s not

       what I asked. I asked if she pleaded guilty to murdering her own child and –


       THE COURT: And that’s been gone over about six times now. Okay. Let’s move

       on.


       {¶52} Appellant contends that the trial court’s restriction on the cross-examination of

White violated his constitutional right of confrontation. Specifically, he submits that his theme

throughout trial was that White directly caused the death of her child and was the sole party

responsible, and when the trial court limited his cross-examination, it compromised his theme

and interfered with his attempt to destroy her credibility.

       {¶53} The Sixth Amendment to the United States Constitution gives a defendant

the right “to be confronted with the witnesses against him.” See also Section 10, Article I of the

Ohio Constitution (“the party accused shall be allowed * * * to meet the witnesses face to face”).

But this protection “guarantees only ‘an opportunity for effective cross-examination[.]’ ”

(Emphasis in original.) State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶

83, quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15

(1985). Trial courts have “wide latitude * * * to impose reasonable limits on such cross-
Scioto App. No. 17CA3811                                                                             25


examination based on concerns about, among other things, harassment, prejudice, confusion of

the issues, the witness’ safety, or interrogation that is repetitive or only marginally

relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

“An appellate court will not interfere with a trial court’s decision regarding the scope of cross-

examination absent an abuse of discretion.” State v. Leasure, 2015-Ohio-5327, 43 N.E.3d 477, ¶

44 (4th Dist.), citing State v. Handa, 4th Dist. Athens No. 07CA26, 2008-Ohio-3754, ¶ 19.

       {¶54} Here, immediately prior to the contested inquiry, White admitted that she pleaded

guilty to murder: “I pled to murder, not the aggravated murder. * * * Yes, sir.” Furthermore,

during her direct testimony she acknowledged that she faces 15 years to life in prison “for

murder”. Thus, it is clear that White answered the question of whether she pleaded guilty to

murder on both direct and cross-examination and appellant’s confrontation rights were not

violated. Requiring White to answer the question again would have minimal impact and would

result in harassment of the witness and repetitive testimony. Thus, the trial court did not abuse its

discretion in limiting cross-examination on this issue. Accordingly, appellant’s third assignment

of error is overruled.


       D. The Trial Court Did Not Err in Overruling Appellant’s Hearsay Objection


       {¶55} In his eighth assignment of error, appellant contends that the trial court erred in

admitting improper hearsay evidence during Mitch Waring’s testimony. In particular, appellant

takes issue with Waring’s testimony that Marie Anderson, after an encounter with law

enforcement, asked White “where’s your third kid, where’s your kid at, you’re supposed to have

three kids.” Appellant also takes issue with Waring’s testimony, that during the same encounter,

Anderson screamed at White, saying “don’t leave your two kids for this man. You’re going to

chase a man and leave your other two kids here.” Defense counsel objected to the statements but
Scioto App. No. 17CA3811                                                                            26


was overruled by the trial court. The State, both in the trial proceedings, and now on appeal,

argues that the statements are admissible excited utterances.

       {¶56} As discussed in the previous assignment of error, the Sixth Amendment to the

United States Constitution provides, “[i]n all criminal prosecutions, the accused shall enjoy the

right * * * to be confronted with the witnesses against him.” Likewise, Section 10, Article I of

the Ohio Constitution provides, “[i]n any trial, in any court, the party accused shall be allowed *

* * to meet the witnesses face to face.” The Supreme Court of the United States has held that

evidence that is “testimonial hearsay” offends a defendant’s Sixth Amendment right to

confrontation and is not admissible. Crawford v. Washington, 541 U.S. 36, 51, 68, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004).

       {¶57} “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R.

801(C). “Hearsay is not admissible except as otherwise provided by the Constitution of the

United States, by the Constitution of the State of Ohio, by statute enacted by the General

Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other

rules prescribed by the Supreme Court of Ohio.” Evid.R. 802. The exception relevant in the case

sub judice is Evid.R. 803(2), the excited-utterance exception, which provides that “[a] statement

relating to a startling event or condition made while the declarant was under the stress of

excitement caused by the event or condition” is not excluded by the hearsay rule.

       {¶58} Ohio courts apply the following four-part test to determine the admissibility of

statements as an excited utterance:


       “(a) that there was some occurrence startling enough to produce a nervous

       excitement in the declarant, which was sufficient to still his reflective faculties
Scioto App. No. 17CA3811                                                                            27


       and thereby make his statements and declarations the unreflective and sincere

       expression of his actual impressions and beliefs, and thus render his statement of

       declaration spontaneous and unreflective,


        (b) that the statement or declaration, even if not strictly contemporaneous with its

       exciting cause, was made before there had been time for such nervous excitement

       to lose a domination over his reflective faculties so that such

       domination continued to remain sufficient to make his statements and declarations

       the unreflective and sincere expression of his actual impressions and beliefs,


       (c) that the statement or declaration related to such startling occurrence or the

       circumstances of such starling occurrence, and


       (d) that the declarant had an opportunity to observe personally the matters

       asserted in his statement or declaration.”

(Emphasis in original.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶

166, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955), paragraph two of the

syllabus. Accord State v. Felts, 2016-Ohio-2755, 52 N.E.3d 1223, ¶¶ 52-53 (4th Dist.). “The

rationale of the rule is that circumstances surrounding the excited statement prevent the declarant

from using reflective processes to fabricate a statement.” Felts at ¶ 53.


       {¶59} Here, the statements at issue were immediately preceded by a startling event.

Waring testified that immediately before the statements at issue were made, police had arrived to

the house on Mabert Road looking for White, appellant, and the “three” children. Waring,

Anderson, White, and appellant were all at the house at the time, but only Anderson spoke to the

police on the porch while the rest remained hidden inside. After the police left Waring testified
Scioto App. No. 17CA3811                                                                           28


that everyone was excited and “[g]etting goose bumps” because they had never seen a third child

with White and appellant since they had been staying at the house. According to Waring, things

were getting “very hot” and intense, and even physical, because of the revelation of the third

child. Thus, there is no dispute that a startling event occurred. Furthermore, Anderson’s

statements were made contemporaneously with the startling event, and obviously were made

while under the stress of the excitement caused by the police’s revelation that White and

appellant were supposed to have three children under their care. Waring testified that Anderson

was “going off” on White and appellant, “shouting”, “hollering”, “screaming” and “drilling”

them on the location of the third child. Finally, the statements at issue clearly related to the

startling event, and Anderson, who talked to the police and who lived with White and appellant

in the house on Mabert Road, had firsthand knowledge of the circumstances.

       {¶60} Accordingly, there is no dispute that the requirements for the application of the

excited-utterance exception exist here; and thus, the trial court did not err in overruling

appellant’s hearsay objection. Appellant’s eighth assignment of error is overruled.


         E. The Prosecuting Attorney Did Not Engage in Prosecutorial Misconduct


       {¶61} In his sixth assignment of error, appellant contends that the prosecuting attorney

made improper remarks in rebuttal closing argument that resulted in prosecutorial misconduct.

Thus, he argues that his convictions should be reversed. Notably, appellant did not object to the

remarks during the trial proceedings.

       {¶62} This Court previously set forth in Wellston v. Horsley, 4th Dist. Jackson No.

05CA18, 2006-Ohio-4386, the standard that applies when evaluating claims that the prosecutor

engaged in misconduct by improperly commenting in closing argument. In that case we stated

the following:
Scioto App. No. 17CA3811                                                                      29


             The Supreme Court of Ohio has admonished us that prosecutorial

      misconduct constitutes reversible error only in “ ‘rare instances.’ ” State v.

      Keenan (1993), 66 Ohio St.3d 402, 405, 613 N.E.2d 203, quoting State v.

      DePew (1988), 38 Ohio St.3d 275, 288, 528 N.E.2d 542. “The test

      for prosecutorial misconduct is whether the conduct complained of deprived the

      defendant of a fair trial.” State v. Jackson (2001), 92 Ohio St.3d 436, 441, 751

      N.E.2d 946. “The test for prejudice regarding prosecutorial misconduct * * * is ‘

      “whether the remarks were improper and, if so, whether they prejudicially

      affected substantial rights of the defendant.” ’ ” State v. Hartman (2001), 93 Ohio

      St.3d 274, 295, 754 N.E.2d 1150 (quoting State v. Hessler (2000), 90 Ohio St.3d

      108, 125, 734 N.E.2d 1237 and State v. Smith (1984), 14 Ohio St.3d 13, 14, 470

      N.E.2d 883). To establish prejudice, an accused must show that a reasonable

      probability exists that, but for the prosecutor’s improper remarks, the result of the

      proceeding would have been different. State v. Loza (1994), 71 Ohio St.3d 61, 83,

      641 N.E.2d 1082. An appellate court must examine the prosecution’s closing

      argument in its entirety to determine whether the remarks prejudiced the

      defendant. State v. Treesh (2001), 90 Ohio St.3d 460, 466, 739 N.E.2d 749; State

      v. Keenan (1993), 66 Ohio St.3d 402, 410, 613 N.E.2d 203. It amounts to a de

      novo independent review.


             During closing arguments, the prosecution is given wide latitude to

      convincingly advance its strongest arguments and positions. See State v.

      Phillips (1995), 74 Ohio St.3d 72, 90, 656 N.E.2d 643; Treesh, 90 Ohio St.3d at

      466 [739 N.E.2d 749]. Nevertheless, the prosecutor must avoid going beyond the
Scioto App. No. 17CA3811                                                                           30


           evidence presented to the jury in order to obtain a conviction. See, e.g., State v.

           Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883. “[P]rosecutors must be

           diligent in their efforts to stay within the boundaries of acceptable argument and

           must refrain from the desire to make outlandish remarks, misstate evidence, or

           confuse legal concepts.” State v. Fears (1999), 86 Ohio St.3d 329, 332, 715

           N.E.2d 136.


                     When in a case like this, a defendant fails to object to the prosecutor’s

           alleged misconduct, he waives all but plain error.3 See Crim.R. 52; State v.

           Hartman (2001), 93 Ohio St.3d 274, 294, 754 N.E.2d 1150; State v.

           Ballew (1996), 76 Ohio St.3d 244, 254, 667 N.E.2d 369. Notice of plain error

           under Crim.R. 52(B) is to be taken with the utmost of caution, under exceptional

           circumstances and only to prevent a manifest miscarriage of justice. See,

           e.g., State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; State v.

           Hill (2001), 92 Ohio St.3d 191, 196, 749 N.E.2d 274. Plain error should not be

           invoked unless it can be said that, but for the error, the outcome of the trial would

           clearly have been otherwise. See, e.g., State v. Jackson (2001), 92 Ohio St.3d 436,

           438, 751 N.E.2d 946; State v. Sanders (2001), 92 Ohio St.3d 245, 263, 750

           N.E.2d 90.


Horsley at ¶¶ 20-22. Accord State v. Minton, 2016-Ohio-5427, 69 N.E.3d 1108, ¶ 56 (4th Dist.).


           {¶63} Here, appellant claims that the following statement, made by the prosecutor

during rebuttal closing argument, implies that he should have taken responsibility for TJ’s death:


3
    Appellant, like the defendant in Horsley, did not object at trial to the alleged misconduct.
Scioto App. No. 17CA3811                                                                             31


        In this videos (sic) did he ever once stand up and take it like a man? Listen, I’m in charge

        out there. I’m the one that’s -- took her to the doctor -- took him to the doctor. I’m the

        one that did this. I’m the one that potty trained him. Stand up and take it like a man.


Appellant further claims that the statement implies that he should have given up his right to

remain silent, and that the remarks deprived him of his right to a fair trial.


        {¶64} After reviewing the prosecutor’s remarks during closing arguments, we do not

find that the remarks were improper. When read in proper context, it is clear that the prosecutor

was responding to appellant’s closing argument, in which he advanced a theory that White was

“the monster”, and should be solely responsible for TJ’s death and only testified to “save her

own neck”. The language used by the prosecutor was not intended to be a comment on

appellant’s failure to admit to the crime, but rather, was meant to dispute appellant’s version of

events. Furthermore, appellant’s interviews with law enforcement were played for the jury; and

the prosecutor could fairly comment on the content of those interviews. We do not believe that

such remarks are improper, or go beyond the bounds of acceptable argument. Moreover, the

comments do not constitute a penalty on appellant’s decision to exercise his constitutional right

to trial or right to remain silent.

        {¶65} Accordingly, we find no merit to appellant’s arguments, and overrule his sixth

assignment of error.


F. The Trial Court Did Not Commit Plain Error When It Failed to Include the Accomplice

                                 Jury Instruction – R.C. 2923.03(D)


        {¶66} In his fourth assignment of error, appellant contends that the trial court committed

plain error when it failed to include a jury instruction regarding the testimony of an accomplice.
Scioto App. No. 17CA3811                                                                              32


       {¶67} Appellant’s trial counsel did not object or raise the issue of the accomplice jury

instruction at trial. When a defendant fails to object to erroneous jury instructions, our review is

limited to whether the instructions amounted to plain error. State v. Steele, 138 Ohio St.3d 1,

2013–Ohio–2470, 3 N.E.3d 135, ¶ 29; State v. Mockbee, 2013–Ohio–5504, 5 N.E.3d 50, ¶ 24

(4th Dist.); Crim.R. 52(B). “To constitute plain error, a reviewing court must find (1) an error in

the proceedings, (2) the error must be a plain, obvious or clear defect in the trial proceedings, and

(3) the error must have affected ‘substantial rights’ (i.e., the trial court’s error must have affected

the trial’s outcome).” State v. Dickess, 174 Ohio App.3d 658, 2008–Ohio–39, 884 N.E.2d 92, ¶

31 (4th Dist.), citing State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001), and State v.

Barnes, 94 Ohio St.3d 21, 27, 2002–Ohio–68, 759 N.E.2d 1240. “Furthermore, notice of plain

error must be taken with the utmost caution, under exceptional circumstances, and only to

prevent a manifest miscarriage of justice.” Id., citing State v. Landrum, 53 Ohio St.3d 107, 111,

559 N.E.2d 710 (1990), and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph

three of the syllabus. “A reviewing court should notice plain error only if the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id. Accord State v.

Lewis, 4th Dist. Ross No. 14CA3467, 2015-Ohio-4303, ¶ 9.

       {¶68} R.C. 2923.03(D) states the following with respect to accomplice testimony:


               If an alleged accomplice of the defendant testifies against the defendant in

       a case in which the defendant is charged with complicity in the commission of or

       an attempt to commit an offense, an attempt to commit an offense, or an offense,

       the court, when it charges the jury, shall state substantially the following:


               “The testimony of an accomplice does not become inadmissible because

       of his complicity, moral turpitude, or self-interest, but the admitted or claimed
Scioto App. No. 17CA3811                                                                           33


       complicity of a witness may affect his credibility and make his testimony subject

       to grave suspicion, and require that it be weighed with great caution.


               It is for you, as jurors, in the light of all the facts presented to you from the

       witness stand, to evaluate such testimony and to determine its quality and worth

       or its lack of quality and worth.”

       {¶69} Here, it is undisputed that White and appellant were accomplices. It is also

undisputed that the trial court did not give the accomplice jury instruction pursuant to R.C.

2923.03(D). “ ‘Ohio courts generally look to three factors to determine whether a trial court’s

failure to give the accomplice instruction constitutes plain error: (1) whether the accomplice’s

testimony was corroborated by other evidence introduced at trial; (2) whether the jury was aware

from the accomplice’s testimony that [he/she] benefited from agreeing to testify against the

defendant; and/or (3) whether the jury was instructed generally regarding its duty to evaluate the

credibility of the witnesses and its province to determine what testimony is worthy of belief.’

” State v. Bentley, 11th Dist. Portage No.2004–P–0053, 2005–Ohio–4648, ¶ 58, quoting State v.

Woodson, 10th Dist. Franklin No. 03AP–736, 2004–Ohio–5713, ¶ 18. Accord Lewis at ¶ 11.

       {¶70} On the facts before us, we are not persuaded that the trial court’s failure to include

the R.C. 2923.03(D) jury instruction amounts to plain error. First, White testified openly about

the plea bargain she received from the State in exchange for her testimony against the appellant.

Therefore, the jury was well aware of White’s motivations for testifying. Next, the trial court did

give a general jury instruction on the creditability of witnesses and its province to determine

what testimony is worthy of belief. Finally, other evidence introduced at trial corroborated a

majority of White’s testimony. Therefore, because all the factors of the Woodson test are
Scioto App. No. 17CA3811                                                                               34


satisfied, appellant has not shown that, but for the trial court’s failure to give the required jury

instruction, the outcome of the trial would clearly have been different.

       {¶71} Accordingly, appellant has not shown plain error, and appellant’s fourth

assignment of error is overruled.


G. The Murder Conviction is Supported By Sufficient Evidence and the Other Convictions

                     are Not Against the Manifest Weight of the Evidence


       {¶72} In his first assignment of error, appellant contends that his convictions are

supported by insufficient evidence, or alternatively, are against the manifest weight of the

evidence. He essentially argues that the State’s witnesses, especially White, are not credible, and

without their testimony, no evidence exists that he had any involvement or knowledge of what

happened to TJ.

       {¶73} Whether a conviction is supported by sufficient evidence is a question of law that

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); State v.

Allah, 4th Dist. Gallia No. 14CA12, 2015–Ohio–5060, ¶ 8. In making this determination, we

must determine whether the evidence adduced at the trial, if believed, reasonably could support a

finding of guilt beyond a reasonable doubt. State v. Davis, 4th Dist. Ross No. 12CA3336, 2013–

Ohio–1504, ¶ 12. “The standard of review is whether, after viewing the probative evidence and

inferences reasonably drawn therefrom in the light most favorable to the prosecution, any

rational trier of fact could have found all the essential elements of the offense beyond a

reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979).

       {¶74} In determining whether a criminal conviction is against the manifest weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all reasonable
Scioto App. No. 17CA3811                                                                           35


inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in

the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed. Thompkins at 387; State v. Hunter, 131 Ohio St.3d

67, 2011–Ohio–6524, 960 N.E.2d 955, ¶ 119. “Although a court of appeals may determine that a

judgment of a trial court is sustained by sufficient evidence, that court may nevertheless

conclude that the judgment is against the weight of the evidence.” Thompkins at 387. But the

weight and credibility of evidence are to be determined by the trier of fact. State v. West, 4th

Dist. Scioto No. 12CA3507, 2014–Ohio–1941, ¶ 23. A trier of fact “is free to believe all, part or

none of the testimony of any witness who appears before it.” Id. We defer to the trier of fact on

these evidentiary weight and credibility issues because it is in the best position to gauge the

witnesses’ demeanor, gestures, and voice inflections, and to use these observations to weigh their

credibility. Id.

        {¶75} Appellant contends that his conviction for murder is based on insufficient

evidence because White is not credible and without her testimony, no evidence exists that would

support actual participation by appellant in TJ’s death. “Questions of witness credibility are

irrelevant to the issue of whether there is sufficient evidence to support a conviction, however.”

State v. Ruark, 10th Dist. Franklin No. 10AP-50, 2011-Ohio-2225, ¶ 21, citing State v. Preston-

Glenn, 10th Dist. Franklin No. 09AP-92, 2009-Ohio-6771, ¶ 38. “In determining whether a

conviction is based on sufficient evidence, we do not address whether the evidence is to be

believed, but whether, if believed, the evidence against defendant would support a conviction.”

Id., citing State v. Smith, 10th Dist. Franklin No. 08AP-736, 2009-Ohio-2166, ¶ 26, State v.

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

Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
Scioto App. No. 17CA3811                                                                             36


       {¶76} White’s testimony, if believed, is sufficient to support appellant’s murder

conviction. White testified that TJ was in her and the appellant’s care prior to his death. White

further testified that appellant extensively abused both her and TJ, and withheld food and drink

from TJ. Based on this evidence, a jury could reasonably conclude that appellant’s actions,

inactions, and manipulative and abusive control of White and TJ caused the death of TJ through

abuse, neglect, and malnourishment. Thus, appellant’s murder conviction is indeed supported by

sufficient evidence.

       {¶77} Appellant argues that his remaining convictions for aggravated murder, child

endangering, tampering with evidence, and gross abuse of a corpse are against the manifest

weight of the evidence because of the “credibility issues” of the witnesses – particularly White.

He argues that the witnesses’ credibility has been destroyed due to their personal and criminal

histories - and in the case of White, her incredible explanation of events that “def[ies]

explanation” - and thus could not be relied upon by the jury. “However, * * * a conviction is not

against the manifest weight of the evidence simply because the jury believed the prosecution

testimony. * * * [A]s the trier of fact, the jury was free to believe or disbelieve all, part, or none

of the testimony of the witnesses presented at trial.” (Citations omitted.) State v. Erickson, 12th

Dist. Warren No. CA2014-10-131, 2015-Ohio-2086, ¶ 42.

       {¶78} The jury apparently believed all or part of White’s testimony that appellant

perpetrated abuse and neglect against TJ that ultimately resulted in his death; and they were free

to do so. State v. Shirley, 4th Dist. Ross No. 16CA3562, 2017-Ohio-1520, ¶ 23. They also

apparently believed the testimony of the State’s other witnesses whose testimony bolstered and

corroborated much of the evidence presented through White. The jury was able to observe the

witnesses on the witness stand, and was in the best position to judge and weigh the credibility of
Scioto App. No. 17CA3811                                                                             37


the witnesses. Put simply, the jury had before it sufficient facts to ascertain the witnesses’

credibility and to weigh it accordingly, and we will not substitute our judgment for that of the

jury.

        {¶79} After a thorough review of the record, we cannot say that this is an exceptional

case where the evidence weighs heavily in favor of appellant and where it is clear that the jury

lost its way or created a manifest miscarriage of justice.

        {¶80} Accordingly, having concluded that appellant’s murder conviction is supported by

sufficient evidence, and that his remaining convictions are not against the manifest weight of the

evidence, we overrule appellant’s first assignment of error.


            H. Appellant was Not Deprived of the Effective Assistance of Counsel


        {¶81} In his fifth assignment of error, appellant alleges numerous instances where his

counsel performed deficiently, and argues that the prejudicial effect of the errors deprived him of

his right to the effective assistance of counsel.

        {¶82} To prevail on a claim of ineffective assistance of counsel, a criminal defendant

must establish (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but

for counsel’s errors, the result of the proceeding would have been different. State v. Short, 129

Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either part of the test is fatal

to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).

“Because this issue cannot be presented at trial, we conduct the initial review.” State v. Plymale,

4th Dist. Gallia No. 15CA1, 2016–Ohio–3340, ¶ 34.
Scioto App. No. 17CA3811                                                                          38


       {¶83} The defendant has the burden of proof because in Ohio, a properly licensed

attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860

N.E.2d 77, ¶ 62. In reviewing the claim of ineffective assistance of counsel, we must indulge in

“a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” (Quotations

omitted.) Strickland at 689. Therefore, a defendant bears the burden to show ineffectiveness by

demonstrating that counsel’s errors were so serious that he or she failed to function as the

counsel guaranteed by the Sixth Amendment. Gondor at ¶ 61.

       {¶84} Appellant first contends that his trial counsel acted deficiently because he failed to

object to the opinion testimony of the coroner, Dr. Lehman, or to the admission of Lehman’s

autopsy report. Appellant notes that attached to the autopsy report is a report from Dr. Elizabeth

Murray, a forensic anthropologist consulted by Dr. Lehman. Dr. Murray did not testify at trial,

and Murray’s report includes a questionnaire that was circulated to a number of unnamed

colleagues. The answers provided by these unnamed colleagues were attached to the autopsy

report and allowed to be seen by the jury. Appellants submits that his trial counsel was

ineffective because he should have (1) objected to the opinion testimony of Dr. Lehman as it was

based on the opinions of numerous other individuals, and (2) objected to the admission of the

autopsy report due to inadmissible hearsay.

       {¶85} We conclude that appellant’s trial counsel did not perform deficiently when it

failed to object to Dr. Lehman’s testimony or to the admission of the autopsy report. “[A]n

autopsy report [prepared by a nontestifying medical examiner] that is neither prepared for the

primary purpose of accusing a targeted individual nor prepared for the primary purpose of
Scioto App. No. 17CA3811                                                                              39


providing evidence in a criminal trial is nontestimonial, and its admission into evidence at trial

under Evid.R. 803(6) as a business record does not violate a defendant’s Sixth Amendment

confrontation rights.” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 63;

see also State v. Adams, 146 Ohio St.3d 232, 2016-Ohio-3043, 54 N.E.3d 1227, ¶ 4.

Furthermore, additional reports used as aids to help the coroner determine the cause of death and

that are neither prepared for the primary purpose of accusing a targeted individual or prepared

for the primary purpose of providing evidence in a criminal trial are nontestimonial and

admissible into evidence at trial. State v. Crane, 2014-Ohio-3657, 17 N.E.3d 1252, ¶ 51 (12th

Dist.). Finally, because the reports are admissible, Dr. Lehman’s testimony about the contents of

the reports and his ultimate opinion are also admissible and do not violate appellant’s

constitutional rights. Adams at ¶ 6, citing Maxwell at ¶¶ 51-52. Based on this precedent, we hold

that the failure to challenge Dr. Lehman’s testimony or the admissibility of the autopsy report

was not ineffective representation, because any such challenge would have failed as a matter of

law.

       {¶86} Next, appellant asserts that his trial counsel’s failure to request the jury instruction

set forth in R.C. 2923.03(D), and his failure to object to its omission in the court’s charge

amounts to ineffective assistance. We disagree. Because we found in appellant’s fourth

assignment of error that the court’s failure to give the jury instruction provided for in R.C.

2923.03(D) does not rise to the level of plain error, we find that counsel’s failure to request the

same instruction fails to meet the prejudice prong of the Strickland test. Accordingly, we do not

find that appellant’s counsel was ineffective in this regard. Accord State v. Johnson, 4th Dist.

Vinton No. 06CA650, 2007-Ohio-2176, ¶ 53; State v. West, 4th Dist. Scioto No. 12CA3507,

2014-Ohio-1941, ¶ 20.
Scioto App. No. 17CA3811                                                                             40


       {¶87} Appellant’s third claim of ineffective assistance of counsel is based upon his trial

counsel’s failure to object to prior bad acts evidence presented by the State. Specifically,

appellant claims that his counsel should have objected to White’s testimony that appellant

regularly beat and choked her, and abused the other two children under his care.

       {¶88} We initially note that appellant’s claim that the State failed to file a notice of

intention to use other acts evidence is inaccurate. In fact, the State filed such notice on August

30, 2017; revealing that it intended to introduce evidence of other acts such as drug abuse and a

pattern of abusive behavior towards children.

       {¶89} “A trial court has broad discretion in the admission or exclusion of evidence, and

so long as such discretion is exercised in line with the rules of procedure and evidence, its

judgment will not be reversed absent a clear showing of an abuse of discretion with attendant

material prejudice to defendant.” State v. Dunham, 4th Dist. Scioto No. 04CA2931, 2005-Ohio-

3642, ¶ 28.

       {¶90} Evid.R. 404(B) states “[e]vidnce of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show that he acted in conformity therewith.”

However, such evidence “may * * * be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Id. “Thus, while evidence of other crimes, wrongs or acts committed by the accused is not

admissible to show that the accused has a propensity to commit crimes, it may be relevant to

show: motive, intent, absence of a mistake or accident, or a scheme, plan, or system in

committing the act in question.” Dunham at ¶ 29, citing State v. Broom, 40 Ohio St.3d 277, 533

N.E.2d 682 (1988), paragraph one of the syllabus. “When other acts evidence is relevant for one
Scioto App. No. 17CA3811                                                                              41


of those limited purposes, the court may properly admit it, even though the evidence may show

or tend to show the commission of another crime by the accused.” Id., citing R.C. 2945.59.

       {¶91} Here, the State introduced the evidence to show motive, scheme, planning, and

knowledge as it pertained to appellant’s participation in the offenses charged in the indictment.

Therefore, the evidence was admissible pursuant to Evid.R. 404(B) and R.C. 2945.59; and trial

counsel did not act deficiently by failing to object to its admission under these rules.

       {¶92} Appellant contends that even if the evidence is relevant, his trial counsel still

provided ineffective assistance by failing to object to its admission under Evid.R. 403 because

the testimony was unduly prejudicial. Evid.R. 403(A) states, “Although relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.”

       {¶93} Here, White testified, inter alia, that appellant would choke her until she passed

out, and that he would “fold” up their child Noah until his oxygen supply would be cut-off and

he would turn blue. She also testified that appellant would beat her for hours on end. While this

testimony is certainly disturbing, it is also highly relevant for the reasons previously discussed.

Hence, we find that the probative value of the bad acts testimony outweighs any prejudice to

appellant. Therefore, his trial counsel was not ineffective for failing to object to the testimony on

the basis of Evid.R. 403.

       {¶94} Lastly, appellant contends that his trial counsel’s failure to object to the alleged

improper remarks of the prosecutor during rebuttal closing argument deprived him of his right to

the effective assistance of counsel. However, in resolving appellant’s sixth assignment of error,

we determined that the prosecutor’s remarks during closing arguments were not improper.
Scioto App. No. 17CA3811                                                                              42


Accordingly, because the remarks were not improper, his trial counsel did not perform

deficiently by failing to object to the remarks.

        {¶95} Based on the foregoing, appellant’s fifth assignment of error is overruled.


                       I. The Cumulative Error Principle is Inapplicable


        {¶96} In his ninth and final assignment of error, appellant contends that cumulative

errors committed during his trial deprived him of a fair trial and require a reversal of his

convictions. Under the doctrine of cumulative error, “a conviction will be reversed where the

cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial

even though each of [the] numerous instances of trial court error does not individually constitute

cause for reversal.” State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995).

        {¶97} “Before we consider whether ‘cumulative errors’ are present, we must first find

that the trial court committed multiple errors.” State v. Harrington, 4th Dist. Scioto No.

05CA3038, 2006–Ohio–4388, ¶ 57, citing State v. Goff, 82 Ohio St.3d 123, 140, 694 N.E.2d 916

(1998). Because we have found no errors, the cumulative error principle is inapplicable.

Accordingly, we overrule appellant’s ninth assignment of error.


                                           IV. Conclusion


        {¶98} Having overruled all of appellant’s assignments of error, we affirm the judgment

of the trial court.


                                                                           JUDGMENT AFFIRMED.
Scioto App. No. 17CA3811                                                                              43


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

        The Court finds that reasonable grounds existed for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Scioto County
Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, J. and McFarland, J.: Concur in Judgment and Opinion.


                                                For the Court


                                                By: ____________________________
                                                    Marie Hoover, Presiding Judge




                                      NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
