[Cite as State v. Brantley, 2016-Ohio-4680.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      27466

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DERRICK BRANTLEY                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 13 05 1404 (B)

                                  DECISION AND JOURNAL ENTRY

Dated: June 30, 2016



        MOORE, Judge.

        {¶1}     Defendant-Appellant Derrick Brantley appeals from his convictions in the

Summit County Court of Common Pleas. We affirm.

                                                I.

        {¶2}     During the early morning hours of April 18, 2013, Ronald Roberts (aka “Dutch”),

who was 24 years old at time, his girlfriend, Kiana Welch, who was 19 years old, Kem Delaney,

who was 23 years old, and Maria Nash, who was 19 years old, were shot to death in the

basement of the apartment at 42 Kimlyn Circle in Akron, where Mr. Roberts and Ms. Welch

resided.     There were no eyewitnesses to the murders but cell phone records and witness

interviews led police to suspect that Mr. Brantley (aka “Buck”) and Mr. Brantley’s friend,

Deshanon Haywood (aka “Dougie” or “Doug”) were involved.

        {¶3}     Ultimately, Mr. Brantley and Mr. Haywood were indicted on a multi-count

indictment in connection with the murders.       Mr. Brantley was charged with 13 counts of
                                                  2


aggravated murder, each including 4 capital specifications and a firearm specification, 4 counts

of aggravated robbery with attendant firearm specifications, 4 counts of kidnapping with

attendant firearm specifications, 1 count of aggravated burglary with an attendant firearm

specification, and 1 count of having weapons while under disability. The matter proceeded to a

jury trial on all counts, except for the weapons under disability charge, which was tried to the

court. The jury found Mr. Brantley guilty of all counts and attendant specifications, and the trial

court found Mr. Brantley guilty of having weapons while under disability.             Prior to the

commencement of the mitigation phase, the State elected to merge the aggravated burglary

specifications with the aggravated robbery specifications and elected to merge the 3 other

aggravated murder counts involving Mr. Roberts into count 1, the 3 other aggravated murder

counts involving Mr. Delaney into count 2, the 3 other aggravated murder counts involving Ms.

Nash into count 7, and the three other murder counts involving Ms. Welch into count 8. The jury

found that the aggravating circumstances did not outweigh the mitigating factors beyond a

reasonable doubt and returned verdicts of life imprisonment without the possibility of parole for

counts 1, 2, 7, and 8.

       {¶4}    At the time of sentencing, the State elected to have the remaining counts and

associated specifications merge into counts 1, 2, 7, and 8. The trial court sentenced Mr. Brantley

to life imprisonment without the possibility of parole on each of the 4 counts and ordered the

sentences to be served consecutively. Additionally, the trial court sentenced Mr. Brantley to 3

years on each of the 4 firearm specifications and ordered those terms to be served prior to, and

consecutively to each other and the life terms.

       {¶5}    Mr. Brantley has appealed, raising six assignments of error for our review.
                                                 3


                                                II.

                                 ASSIGNMENT OF ERROR I

         [MR.] BRANTLEY’S RIGHT TO A FAIR AND IMPARTIAL TRIAL WAS
         VIOLATED WHEN THE STATE ENGAGED IN PROSECUTORIAL
         MISCONDUCT BY FAILING TO DISCLOSE THAT MATERIAL
         WITNESSES HAD MADE PLEA DEALS WITH THE STATE IN EXCHANGE
         FOR THEIR TESTIMONY[.]

         {¶6}   Mr. Brantley asserts in his first assignment of error that the State engaged in

prosecutorial misconduct which denied him a fair trial by failing to disclose that certain

witnesses had entered into plea agreements in exchange for their testimony. Because there is no

evidence in the record which would support Mr. Brantley’s argument, we overrule it on that

basis.

         {¶7}   Mr. Brantley’s argument is premised on events that took place after his trial and

are not a part of the record in this case. He argues that his co-defendant, Mr. Haywood, who was

tried after Mr. Brantley, was granted a new trial after his defense counsel discovered that the

prosecutors failed to disclose that two witnesses in Mr. Haywood’s trial were given plea deals in

exchange for their testimony and that their testimony did not reflect that fact. However, none of

that evidence is part of this record. “[A] reviewing court cannot add matter to the record before

it, which was not a part of the trial court’s proceedings, and then decide the appeal on the basis

of the new matter.” (Internal quotations and citations omitted.) State v. Weems, 9th Dist.

Summit No. 26532, 2013-Ohio-2673, ¶ 14. Because Mr. Brantley’s argument relies completely

on evidence outside of the record, we are required to overrule his assignment of error on that

basis. Mr. Brantley’s first assignment of error is overruled.
                                                  4


                                 ASSIGNMENT OF ERROR II

       THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER OF
       LAW TO SUPPORT A CONVICTION OF AGGRAVATED MURDER AND,
       AS A RESULT, [MR.] BRANTLEY’S RIGHTS AS PROTECTED BY
       ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND FIFTH
       AMENDMENT OF THE UNITED STATES CONS[T]ITUTION WERE
       VIOLATED[.]

       {¶8}    Mr. Brantley argues in his second assignment of error that there was insufficient

evidence to support the jury’s verdicts finding him guilty of aggravated murder. While not

separately assigned as error, in the body of his argument, he additionally states that the evidence

did not support a finding of guilt with respect to the capital specifications.

       {¶9}    The issue of whether a conviction is supported by sufficient evidence is a question

of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶10} To the extent that Mr. Brantley maintains that there was insufficient evidence to

support the verdicts because some of the State’s witnesses’ testimony was not credible, we

disagree with his argument; such an argument challenges the weight of the evidence, not the

sufficiency of the evidence. The remainder of Mr. Brantley’s argument appears to focus on

whether there was sufficient evidence that Mr. Brantley committed the murders. It does not

appear that Mr. Brantley otherwise challenges any specific element of the crimes.

       {¶11} Mr. Brantley was found guilty of 13 counts of aggravated murder; 4 counts

involved R.C. 2903.01(A), and 9 counts involved R.C. 2903.01(B) (aggravated felony murder).
                                                   5


With respect to the R.C. 2903.01(B) charges, 4 of the counts alleged the murders took place

during an aggravated robbery, 4 of the counts alleged that the murders took place during a

kidnapping, and 1 of the counts (naming all four victims) alleged the murders took place during

an aggravated burglary. Each of the 13 counts contained the same 4 capital specifications: 1

alleged a violation of R.C. 2929.04(A)(5) (course of conduct involving purposeful killing of two

or more victims) and 3 alleged violations of R.C. 2929.04(A)(7) (committed in the course of

aggravated robbery, kidnapping, or aggravated burglary and offender was principal offender or

offender committed the aggravated murder with prior calculation and design). In addition, we

note that the jury was instructed on complicity.

        {¶12} R.C. 2903.01, the statute proscribing aggravated murder, provides in pertinent

part that:

        (A) No person shall purposely, and with prior calculation and design, cause the
        death of another * * *.

        (B) No person shall purposely cause the death of another * * * while committing
        or attempting to commit, or while fleeing immediately after committing or
        attempting to commit, kidnapping, * * * aggravated robbery, * * * [or] aggravated
        burglary * * *.

“A person acts purposely when it is his specific intention to cause a certain result, or, when the

gist of the offense is a prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, it is his specific intention to engage in conduct of that

nature.” Former R.C. 2901.22(A). “No bright-line test exists that emphatically distinguishes

between the presence or absence of prior calculation and design. Instead, each case turns on the

particular facts and evidence presented at trial.” (Internal quotations and citations omitted.)

State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 154. “However, where the evidence

presented at trial reveals the presence of sufficient time and opportunity for the planning of an
                                                   6


act of homicide to constitute prior calculation, and the circumstances surrounding the homicide

show a scheme designed to implement the calculated decision to kill, a finding by the trier of fact

of prior calculation and design is justified.” (Internal quotations and citations omitted.) Id.

“‘[P]rincipal offender’ means the ‘actual’ killer and not the ‘sole’ offender. As there can be

more than one actual killer, there can thus be more than one principal offender.” (Citation

omitted.) State v. Stojetz, 84 Ohio St.3d 452, 458-459 (1999).

        {¶13} R.C. 2911.01, the statute prohibiting aggravated robbery, provides in pertinent

part:

        (A) No person, in attempting or committing a theft offense, as defined in section
        2913.01 of the Revised Code, or in fleeing immediately after the attempt or
        offense, shall do any of the following:

        (1) Have a deadly weapon on or about the offender’s person or under the
        offender’s control and either display the weapon, brandish it, indicate that the
        offender possesses it, or use it;

        ***

        (3) Inflict, or attempt to inflict, serious physical harm on another.

        {¶14} R.C. 2905.01, the statute prohibiting kidnapping, provides in relevant part:

        (A) No person, by force, threat, or deception * * * shall remove another from the
        place where the other person is found or restrain the liberty of the other person,
        for any of the following purposes:

        ***

        (2) To facilitate the commission of any felony or flight thereafter;

        (3) To terrorize, or to inflict serious physical harm on the victim or another[.]

        {¶15} Finally, the statute prohibiting aggravated burglary, R.C. 2911.11 states in

pertinent part:

        (A) No person, by force, stealth, or deception, shall trespass in an occupied
        structure or in a separately secured or separately occupied portion of an occupied
        structure, when another person other than an accomplice of the offender is
                                                7


         present, with purpose to commit in the structure or in the separately secured or
         separately occupied portion of the structure any criminal offense, if any of the
         following apply:

         (1) The offender inflicts, or attempts or threatens to inflict physical harm on
         another;

         (2) The offender has a deadly weapon or dangerous ordnance on or about the
         offender’s person or under the offender’s control.

         {¶16} After reviewing the record in a light most favorable to the State, we conclude

sufficient evidence was presented which would allow a reasonable jury to find Mr. Brantley

guilty of the challenged offenses.

         {¶17} Isaac Love, a friend of Mr. Roberts who was in business with Mr. Roberts selling

heroin, testified that, during the evening of April 17, 2013, several people came over to Mr.

Roberts’ apartment including Mr. Love, Anthony Townsend, Mr. Delaney, and Kevin Cook. Mr.

Cook testified that he was only at the apartment for a few minutes to sell marijuana to Mr. Love.

Mr. Love indicated that he left the apartment around 8:30 pm, after he received a 100 gram

delivery of heroin, for which he paid $10,000. Before leaving, Mr. Love left 30 grams of the

heroin at the apartment for Mr. Roberts. There was testimony that .1 grams of heroin could sell

for $20 on the street.

         {¶18} Mr. Townsend, who at the time of trial was serving a prison sentence for

trafficking in heroin, testified that and he and Mr. Roberts were friends from the neighborhood,

and that he knew Ms. Welch through Mr. Roberts. Mr. Townsend indicated that he frequented

nightclubs and had seen Mr. Haywood and Mr. Brantley at Club Escape. On one occasion, while

Mr. Townsend was with Mr. Roberts and Mr. Delaney, Mr. Brantley and Mr. Haywood came

over and talked to Mr. Roberts and Mr. Delaney but Mr. Townsend did not hear what they talked

about.
                                              8


       {¶19} Mr. Townsend averred that, on the evening of April 17, 2013, he went to Mr.

Roberts’ apartment, hung out in the kitchen, and left around 9:00 pm. Several other people were

also there. He ultimately went to Dreamer’s nightclub where Ms. Welch and Ms. Nash were

working as exotic dancers. At Dreamer’s, he ran into his long-time friend, Keenan Williams,

whom he had not seen in a long time. The two began talking with Ms. Welch and Ms. Nash.

Around midnight, the four left and went to the Denny’s on Arlington. Mr. Williams took a taxi

and Ms. Welch and Ms. Nash rode with Mr. Townsend in his car.

       {¶20} Upon leaving Denny’s, the four decided to go to Ms. Nash’s apartment. There,

Ms. Welch and Mr. Townsend engaged in sexual intercourse, as did Mr. Williams and Ms. Nash.

According to Mr. Townsend, Mr. Williams and Ms. Nash fell asleep. Later, Mr. Townsend

woke them up as he needed to get home to his girlfriend, with whom he was living at the time.

The four waited for Mr. Williams’ taxi to arrive and then Mr. Townsend proceeded to drive Ms.

Welch and Ms. Nash to Kimlyn Circle. According to Mr. Townsend, he dropped Ms. Nash and

Ms. Welch off at Kimlyn Circle around 3:00 am on April 18, 2013.

       {¶21} After Mr. Townsend returned home, he received a phone call from Ms. Welch.

Ms. Welch indicated that Mr. Roberts would not let her in the house and asked if Mr. Townsend

would come get her. Ms. Welch indicated that she saw “him” through a window in the house

running around, but he would not open the door. Mr. Townsend heard Ms. Welch identify “him”

as either “Doug” (presumably Mr. Haywood) or “Dutch” (presumably Mr. Roberts). At the time

Mr. Townsend thought she had said “Doug” but he could not be sure. Mr. Townsend agreed to

go pick her up, but in reality he knew he could not leave the house because his girlfriend was

already angry with him for coming home so late. Mr. Townsend called Ms. Welch back and

asked if things were alright, and Ms. Welch indicated that she was “cool.” Mr. Townsend
                                                 9


assumed that meant she had successfully got into the apartment. Much of Mr. Townsend’s

testimony was corroborated by Mr. Williams’ trial testimony.

          {¶22} Meanwhile, around 1:10 am on April 18, 2013, cell phone records revealed that

Mr. Roberts’ phone received a phone call from a phone registered to Mr. Haywood. Shortly

thereafter, the records indicate that a call was placed from the phone registered to Mr. Haywood

to a phone associated with Deonte Woods1, Mr. Haywood’s and Mr. Brantley’s close friend. Mr.

Woods testified that he, Mr. Brantley, and Mr. Haywood were all involved in the sale and use of

heroin.       Mr. Woods stated that Mr. Haywood had called and asked him to follow him

somewhere. Mr. Woods did not know where they were going. Shortly thereafter, Mr. Haywood

arrived at Mr. Woods’ house in a black Kia; Mr. Brantley was in the passenger seat. Mr. Woods

followed them in a red Kia. When the vehicles got to the area of Gurley Avenue, the two

indicated that Mr. Woods should park his vehicle. Mr. Woods parked facing the area of the

Kimlyn Circle apartments. The black Kia drove away and Mr. Woods proceeded to wait for Mr.

Haywood and Mr. Brantley to return. Ultimately, Mr. Woods fell asleep. When he awoke, he

texted Mr. Haywood or Mr. Brantley, but did not hear back. Mr. Woods testified that he then

called both Mr. Haywood and Mr. Brantley and did not get an answer.

          {¶23} Phone records revealed that a text message was sent from a 419 area code number

associated with Mr. Brantley to Mr. Haywood’s phone at 2:10 am. That text read, “Kill both of

these niggas.” (Sic.) Another text was sent from Mr. Brantley’s 419 area code phone to Mr.

Haywood’s phone at 2:48 am. That text read, “I’m bouta shoot Dutch go get da sh*t and then

I’ma kill both des n***** but u got to hurry up so we can get up out of here[.]” (Sic.)



          1
       The phone was Mr. Haywood’s phone, but according to Mr. Woods, Mr. Haywood let
Mr. Woods use it.
                                              10


       {¶24} At some point, Mr. Brantley called Mr. Woods back and asked if Mr. Woods was

still there and if anyone else was around. Subsequently, Mr. Brantley and Mr. Haywood came

jogging up behind Mr. Woods’ vehicle. Mr. Brantley got into the front passenger seat. He had

with him a white t-shirt and a bag that appeared it might have about a half an ounce (14 grams)

of drugs in it. Mr. Haywood got into the backseat. Mr. Woods did not know what happened to

the car they came in. Mr. Woods testified that one of the two said, “Take it to our grave.”

Additionally, one of them threatened Mr. Woods, saying, “Take it to our grave or I’ll kill you.”

Mr. Woods also heard Mr. Brantley say, “I doubled back to kill them.” Mr. Woods then drove

Mr. Haywood and Mr. Brantley to Donte’s Game Day Grille and dropped them off. Mr. Woods

went home and went to bed. When he woke up, he received a text from Mr. Haywood asking if

Mr. Woods had told his cousin; Mr. Woods responded that he had not.

       {¶25} Mr. Love testified that when he woke up the morning of April 18, 2013, he called

Mr. Roberts’ phone and someone else answered. Mr. Love averred that it sounded like “a black

guy trying to sound white.” Mr. Love hung up and tried the number again. This time a woman

answered. Mr. Love thought it was Ms. Welch and proceeded to ask for Mr. Roberts. The

woman indicated that he was not around. Mr. Love asked when he was expected back, and the

woman responded, “Never[.]”

       {¶26} Mr. Love then decided to investigate the situation. He and his wife drove to

Kimlyn Circle. Mr. Love went to the apartment and found the door open, which was unusual.

Mr. Love proceeded inside and called Mr. Roberts’ name but there was no answer. Mr. Love

then noticed a shell casing on the floor of the living room and became worried. He ran towards

the front door but then noticed the basement door was open, which was also unusual. Mr. Love
                                               11


found the bodies of Mr. Roberts, Mr. Delaney, Ms. Welch, and Ms. Nash in the basement.2

After checking to see if the victims were alive, Mr. Love proceeded to leave.

       {¶27} Mr. Love tried to call the police but his phone was dead. He knocked on the door

of a neighbor and told the neighbor to call the police because someone killed his friend but the

neighbor shut the door. Mr. Love did not want to stay at the scene in case the perpetrators were

still around; so he and his wife pulled into the devil strip outside the apartment. Shortly

thereafter, Mr. Love saw a police officer, flagged him down, and reported what he saw.

       {¶28} The police officer, Officer Edward Patalon of the Akron Police Department,

testified that around 2:30 pm on April 18, 2013, a man, later identified as Mr. Love, came

running towards Officer Patalon. Mr. Love was very frantic and reported there were bodies at

Kimlyn Circle, that his friend was dead, and that he was afraid someone might still be inside.

Officer Patalon called for backup.      Upon entering the basement of the apartment, police

discovered the bodies and began to undertake an investigation.

       {¶29} Detective Anna Romito of the Akron Police Department Crime Scene Unit

discussed the evidence found at the crime scene. Detective Romito noted there were two snack

cake boxes on the floor of the kitchen and a couple kitchen cabinets that were left open. A

digital scale and paring knife were also found in the kitchen. An unspent .40 caliber round was

found on the floor in the living room along with a white powder and a small amount of money.

Scattered on the couch were shoes and shoe boxes. Police found a wallet, a cell phone, a

drinking glass, and an ashtray with cigarette butts on tables in the living room. While a small

amount (a total of about 2 grams) of a white substance that tested presumptively positive for



       2
          Mr. Love did not notice Ms. Nash’s body, which was in a corner, until he went down
into the basement a second time.
                                               12


heroin was found in the apartment, 30 grams were not recovered. She described the upstairs of

the house as messy; however, she could not say whether that was how the apartment was

normally kept or if the condition was connected to the murders. Numerous bullets and cartridge

cases were recovered from the basement; most were .40 caliber, but a few were 9 mm. A

cigarette butt was found near the body of Ms. Nash, and Ms. Nash’s keys were found in her

hand. Ms. Nash’s and Ms. Welch’s purses were found in the basement near them. Ms. Welch’s

purse contained $69. Mr. Delaney’s wallet was also found in the basement.

       {¶30} None of the DNA recovered from the items at the crime scene was consistent with

Mr. Brantley’s or Mr. Haywood’s DNA.         Several samples contained insufficient DNA for

comparison purposes. While over a dozen individuals’ DNA was used for comparison purposes,

a few of the samples nonetheless came back with profiles of unknown individuals. This included

the unspent round in the living room which contained profiles of two unknown individuals. Due

to insufficient data, Mr. Townsend could not be definitely included or excluded as a possible

contributor to the DNA from the swab of Mr. Delaney’s pants pocket.

       {¶31} Dorothy Dean, M.D., a deputy medical examiner, testified about the autopsy

results of the victims. Dr. Dean concluded that all of the victims died from gunshot wounds that

were inflicted by another person with a handgun. Mr. Roberts had four gunshot wounds. His

cause of death was gunshot wounds to the head and torso. Mr. Delaney had nine gunshot

wounds. His cause of death was gunshot wounds to the head and torso. Ms. Welch had three

gunshot wounds. Her cause of death was a gunshot wound to the head. Ms. Nash had a single

gunshot wound to her head which caused her death.

       {¶32} Lieutenant David Whiddon of the Akron Police Department testified about the

investigation. He testified about the importance of cell phone records in the case and how police
                                               13


came to suspect Mr. Brantley and Mr. Haywood. He indicated that police canvassed the area,

but no one reported hearing any gunfire or seeing anything unusual. A neighbor of Mr. Roberts

did indicate that Mr. Roberts stopped by her apartment around 2 am on April 18, 2013.

       {¶33} Lieutenant Whiddon stated that no cell phones were found in the basement with

the victims and, that, while two phones were found in the apartment, police believed those

phones to be old phones that were not in use. Once police identified the victims, they obtained

their cell phone numbers and began to subpoena records.

       {¶34} Mr. Roberts’ cell phone was found on April 18, 2013, in the middle of a street by

a construction worker.    That construction worker turned the phone into a nearby Subway

restaurant. The phone was then turned into Mr. Robert’s mother, who then gave it to police.

Phone records revealed that the last outgoing call on Mr. Roberts’ phone was to a neighbor at

1:58 am on April 18, 2013 and the last incoming call was from a number police would later

identify as being associated with Mr. Haywood. Police learned from phone records that Mr.

Haywood’s phone was either turned off or the battery had died from the period of time after 1:42

am until 5:01 am on April 18, 2013. During that time, Shasarae3 Johnson, Mr. Haywood’s

child’s mother, called and texted Mr. Haywood’s phone numerous times. She also contacted Mr.

Brantley’s and Mr. Woods’ phones. From the context of the text messages, it appeared she was

trying to find Mr. Haywood and was upset that he was not at home.

       {¶35} After police discovered that Mr. Haywood was the last person to call Mr. Roberts,

they sought to speak to him. Mr. Haywood was being held in the Summit County Jail at the

time. Police interviewed him and recovered his phone. However, someone had wiped his


       3
          Sometimes in the transcript Ms. Johnson is referred to as Shasarae and at other points
she is referred to as Sharae. There is no explanation for the difference. We will simply refer to
her as Ms. Johnson.
                                               14


phone, i.e. reset it to its factory setting, and so no usable information was obtained from the

phone itself. Nonetheless, because Verizon maintains both phone and text records for a period of

time, the police were able to obtain information about Mr. Haywood’s cell phone calls and texts.

Once police saw the two text messages that were sent to Mr. Haywood’s phone around 2 am on

April 18, 2013, that discussed killing people, they began to suspect Mr. Haywood.

       {¶36} Police then learned that there may have been a possible association between Mr.

Haywood and Mr. Brantley, and so they also sought to interview Mr. Brantley. Mr. Brantley

happened to be at the police station on April 29, 2013, to pick up Mr. Haywood, who was being

arraigned. Police asked Mr. Brantley if he would consent to be interviewed and he agreed. At

the time, Mr. Brantley had two phones with him, a red flip phone with a 330 area code phone

number, and a white iPhone with a 419 area code number. During the interview, police came to

discover that the incriminating texts sent to Mr. Haywood’s phone were sent from Mr. Brantley’s

phone with the 419 area code. At the end of the interview, Mr. Brantley was arrested and his

phones were confiscated.

       {¶37} Detective Guy Sheffield from the Akron Police Department, who is involved with

computer forensics, analyzed the phones.     He testified about two texts that came from Ms.

Johnson’s phone, to Mr. Brantley’s iPhone. One was from April 25, 2013 and stated, “Now they

got Ronald phone?? Your number in there.” The second was delivered on April 27, 2013 and

read, “I talked to haze he said you and Doug need to change y’all numbers.” Detective Sheffield

next used special software to attempt to recover deleted text messages from the phones, as police

wanted to know if the incriminating texts sent from Mr. Brantley’s phone to Mr. Haywood’s

phone were deleted from Mr. Brantley’s iPhone. The software was able to identify that the first

text message that read, “Kill both of these n*****[,]” was deleted from the phone. The software,
                                                15


however, could not find any remnant of the second text message. Finally, Detective Sheffield

testified that Mr. Brantley’s phone contained a screen capture image of an Ohio.com news article

titled, “Police say four people shot in the head in the apartment complex in east Akron[.]” That

image was sent from Mr. Haywood’s phone to Mr. Brantley’s iPhone on April 18, 2013, at 4:47

pm.

       {¶38} Lieutenant Whiddon testified that there was also evidence on the two phones that

connected Mr. Brantley to the two phones. There were pictures on the white iPhone of Mr.

Brantley holding the red phone. Additionally, there were pictures on the white iPhone of Mr.

Brantley’s daughter, the mother of Mr. Brantley’s daughter, and Mr. Brantley’s friend, Maurice

Stewart. There was also testimony that there was an outgoing message from Mr. Brantley’s red

phone on March 22, 2013, informing people of his new phone number, which corresponds to the

number of the white iPhone. Lieutenant Whiddon also testified that the cell phone tower

records4 were consistent with the phones being used in an area that would include Kimlyn Circle

during the times the incriminating texts were sent.

       {¶39} Lieutenant Whiddon also testified about two calls that Mr. Brantley made from

the jail after he was arrested, which were played for the jury. The first call was to his mother and

the second included his mother and his friend, Mr. Stewart. While the phone calls were vague, it

did appear that Mr. Brantley was attempting to have his mother and Mr. Stewart remove certain




       4
           The individual from the Akron Police Department who mapped the cell phone records
testified that the program used automatically defines a three-mile radius from the tower (thereby
demarcating a possible area from which the subject call could have been made). However,
testimony from the records custodians from Verizon and T-Mobile indicated that those
companies’ towers within the Akron area would only have a range of 250 feet to a mile,
depending on the company. Accordingly, the mapping done by the Akron Police Department
likely encompassed a wider area than the actual range of the towers.
                                                16


items from the house, including a phone, clothes, and shoes. Mr. Brantley specifically asked Mr.

Stewart to trash the “Shell Toes[,]” which were testified to as being a line of Adidas shoes.

        {¶40} Police also came to discover that Ms. Welch and Ms. Nash left Dreamers with

Mr. Townsend and Mr. Williams. Police interviewed both Mr. Townsend and Mr. Williams and

examined their phone records.      They also obtained surveillance video from Dreamers and

Denny’s. Lieutenant Whiddon testified that Mr. Williams’ and Mr. Townsend’s statements were

consistent with information available from the phone records and videos, including where they

said they were at various times.

        {¶41} Police interviewed Mr. Woods on two occasions. The first time, Mr. Woods did

not tell police what had happened because he was nervous. At the first interview he told police

that he was home all night after 10 pm on April 18, 2013, and that he did not have the phone that

police believed was associated with him. He also indicated that he did not know anything about

the murders. However, during the second interview, Mr. Woods gave a statement that was

similar to his trial testimony. Mr. Woods admitted at trial that his statements during the first

police interview consisted largely of lies. The phone records for Mr. Woods’ phone were

consistent with his statement that he was at Gurley Avenue during the early morning hours of

April 18, 2013. Phone records also confirmed that multiple calls went between Mr. Woods’

phone and Mr. Brantley’s and Mr. Haywood’s phones during that time. There was testimony

that neither Mr. Townsend nor Mr. Woods received any sort of promises or deals in exchange for

their testimony at trial.

        {¶42} Viewing the above evidence in a light most favorable to the State, we conclude

that there was sufficient evidence whereby a reasonable jury could find Mr. Brantley guilty of

the aggravated murder counts and capital specifications.          Even without any eyewitness
                                              17


testimony, there was substantial circumstantial evidence tying Mr. Brantley to the crimes. Mr.

Woods’ testimony provides evidence that Mr. Brantley and Mr. Haywood were in the area of the

scene of the crime during the time of the murders and that Mr. Brantley participated in the

murders in light of what Mr. Brantley told Mr. Woods upon returning to his vehicle. The cell

phone records additionally evidence that Mr. Brantley was in the area of Kimlyn Circle during

the relevant timeframe. Moreover, the two text messages sent from Mr. Brantley’s iPhone to Mr.

Haywood during the 2 am hour of April 18, 2013, provide strong circumstantial evidence that

Mr. Brantley was involved in the murders. These messages said, “Kill both of these n*****[,]”

and “I’m bouta shoot Dutch go get da sh*t and then I’ma kill both des n***** but u got to hurry

up so we can get up out of here[.]” (Sic.) It would not be unreasonable, in light of all of the

testimony discussed above, for the jury to conclude that Mr. Brantley was in possession of his

phones on April 18, 2013. Additionally, Mr. Townsend indicated that, when Ms. Welch called

him, she may have said that she saw “Doug” through the window. Mr. Haywood was known as

Doug and Mr. Roberts was known as Dutch.

       {¶43} Additionally, there was evidence of events after the murders that tended to tie Mr.

Brantley to them. Mr. Haywood sent Mr. Brantley a screen shot of a news story about the

murders the day they happened. Ms. Johnson sent Mr. Brantley text messages expressing

concern that Mr. Brantley’s information might be in Mr. Roberts’ phone and suggesting that Mr.

Brantley change his phone number. Mr. Brantley’s phone calls from jail also tend to suggest that

Mr. Brantley was trying to get people to remove items from the house and to do so quickly.

       {¶44} Given the foregoing, there was sufficient circumstantial evidence from which a

jury could reasonably find that Mr. Brantley was at Kimlyn Circle, that he and Mr. Haywood

killed the victims, and that it was their purpose to do so. In light of the text messages Mr.
                                               18


Brantley sent to Mr. Haywood, there was also evidence from which a jury could conclude that

Mr. Brantley committed the murders with prior calculation and design; in other words, there was

evidence that Mr. Brantley and Mr. Haywood planned to kill the victims. See Fry, 125 Ohio

St.3d 163, 2010-Ohio-1017, at ¶ 154. Moreover, that same evidence could have reasonably

allowed the jury to find that Mr. Brantley was the principal offender. See Stojetz, 84 Ohio St.3d

at 458-459.

       {¶45} We also conclude there was sufficient evidence for the jury to find that the

murders were committed in the course of a kidnapping, aggravated robbery, and aggravated

burglary. The bodies of the victims were all found together in the basement of the apartment at

42 Kimlyn Circle with fatal gunshot wounds. No cell phones were found in the basement with

the victims; instead, Mr. Roberts’ cell phone was later located in the street near a Subway. There

was also evidence from which it could be inferred that drugs were taken from the apartment. Mr.

Love testified that he left 30 grams of heroin in the apartment for Mr. Roberts, but only a small

amount of heroin was found at the crime scene. Further, Mr. Woods testified that, when Mr.

Brantley returned to the car, he had a bag with him that looked like it could have had about 14

grams of drugs. Finally, the second incriminating text message sent from Mr. Brantley’s iPhone

to Mr. Haywood’s phone mentions that Mr. Haywood should “go get da sh*t[,]” from which it

could be reasonably inferred that Mr. Haywood was to steal something.

       {¶46} From the foregoing, we conclude that the State presented sufficient evidence from

which the jury could find Mr. Brantley guilty of the challenged offenses. Mr. Brantley’s second

assignment of error is overruled.
                                                 19


                                ASSIGNMENT OF ERROR III

       THE VERDICTS IN THIS CASE WERE AGAINST THE MANIFEST
       WEIGHT [OF] EVIDENCE AND, AS A RESULT, [MR.] BRANTLEY’S
       RIGHTS AS PROTECTED BY ARTICLE I, SECTION 16 OF THE OHIO
       CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED STATES
       CONSTITUTION WERE VIOLATED[.]

       {¶47} Mr. Brantley argues in his third assignment of error that the guilty verdicts were

against the manifest weight of the evidence. Mr. Brantley does not point to any finding that he

believes is unsupported by the weight of the evidence; instead, he makes a general argument

concerning witness credibility and the lack of physical evidence tying him to the crimes.

       {¶48} When a defendant asserts that his conviction is against the manifest weight of the

evidence:

       an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶49} To the extent that Mr. Brantley has argued that the testimony of Mr. Woods and

Mr. Townsend is not credible based upon evidence not within our record, we overrule his

argument for the same reasons discussed in the analysis of his first assignment of error. With

respect to Mr. Woods’ credibility, the jury was aware that Mr. Woods had initially provided the

police with false information when he was interviewed and was able to observe him and Mr.

Townsend testify at trial.     We remain mindful that “[e]valuating evidence and assessing

credibility are primarily for the trier of fact.” (Citations omitted.) State v. Bulls, 9th Dist.

Summit No. 27029, 2015-Ohio-276, ¶ 17. After thoroughly and independently reviewing the

record, we cannot conclude the jury’s findings and credibility determinations were unreasonable
                                                 20


Further, while it is true that there was no direct physical evidence connecting Mr. Brantley to the

crime scene, as discussed above, there was substantial circumstantial evidence which did. Cell

phone records placed Mr. Brantley’s phones in the area including Kimlyn Circle around the time

incriminating text messages were sent from his phone to Mr. Haywood’s phone. Additionally,

Mr. Woods’ testimony also places Mr. Haywood and Mr. Brantley near the crime scene at the

time of the murders.     Finally, Mr. Woods’ testimony about what Mr. Brantley said upon

returning to the vehicle also supports a conclusion that Mr. Brantley participated in the murders.

Given Mr. Brantley’s limited argument on this issue, and our prior discussion of the evidence in

this case, we overrule his third assignment of error.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN NOT SUPPRESSING THE ORAL
       STATEMENTS [MR.] BRANTLEY MADE TO INVESTIGATING OFFICERS
       WHEN UNDER THE TOTALITY OF THE CIRCUMSTANCES, HE WAS
       SUBJECT   TO     CUSTODIAL   INTERROGATION         AND       THE
       INTERROGATING OFFICERS FAILED TO GIVE [MR.] BRANTLEY THE
       WARNINGS REQUIRED BY MIRANDA V. ARIZONA [], 384 U.S. 436 [(1966)],
       THEREBY VIOLATING HIS RIGHTS UNDER THE FIFTH AND
       FOURTEENTH      AMENDMENTS    TO   THE      UNITED       STATES
       CONSTITUTION[.]

       {¶50} Mr. Brantley argues in his fourth assignment of error that the trial court erred in

denying his motion to suppress with respect to statements Mr. Brantley made during an April 29,

2013 interview at the Akron Police Department. While police did Mirandize Mr. Brantley

towards the end of the interview, he maintains that he was in custody from the beginning of the

interview and that police failed to give him Miranda warnings as required by Miranda v.

Arizona, 384 U.S. 436 (1966). Thus, he argues that his statements should have been suppressed.

Based on his limited argument on appeal, and because we conclude that, during the portions of
                                                 21


the interview at issue, Mr. Brantley was not in custody, he has failed to demonstrate the trial

court erred in denying his motion to suppress.

       Appellate review of a motion to suppress presents a mixed question of law and
       fact. When considering a motion to suppress, the trial court assumes the role of
       trier of fact and is therefore in the best position to resolve factual questions and
       evaluate the credibility of witnesses. Consequently, an appellate court must
       accept the trial court’s findings of fact if they are supported by competent,
       credible evidence. Accepting these facts as true, the appellate court must then
       independently determine, without deference to the conclusion of the trial court,
       whether the facts satisfy the applicable legal standard.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

Accord State v. Hobbs, 133 Ohio St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied).

       {¶51} “The Fifth Amendment to the United States Constitution provides that no person

‘shall be compelled in any criminal case to be a witness against himself.’” State v. Rafferty, 9th

Dist. Summit No. 26724, 2015-Ohio-1629, ¶ 31, quoting State v. Leach, 102 Ohio St.3d 135,

2004-Ohio-2147, ¶ 11.        “This provision applies to the states through the Fourteenth

Amendment.” Leach at ¶ 11. “During a custodial interrogation, a suspect has the right to remain

silent and to be represented by an attorney.” Rafferty at ¶ 31, citing Miranda at 469. “‘A

suspect’s right to an attorney during questioning * * * is derivative of his [or her] right to remain

silent * * * [,]’ under the Fifth Amendment.” Rafferty at ¶ 31, quoting Leach at ¶ 13, quoting

Wainwright v. Greenfield, 474 U.S. 284, 298-299 (1986) (Rehnquist, J., concurring). “When a

person is subject to a custodial interrogation, he must be informed of his rights to remain silent

and to an attorney.” Rafferty at ¶ 31, citing Miranda at 469.

       {¶52} “The Miranda right to counsel attaches only when the individual is subject to a

custodial interrogation.” (Emphasis omitted.) Rafferty at ¶ 32. “[A] police officer may continue

to question a suspect in a noncustodial situation, even if the suspect has made a request for

counsel, as long as the officer’s persistence in questioning does not render statements made by
                                                22


the suspect involuntary5.” (Footnote added.) Rafferty at ¶ 32, quoting State v. Fry, 61 Ohio

App.3d 689, 692 (9th Dist.1988).

       {¶53} “Custody for purposes of entitlement to Miranda rights exists only where there is

a restraint on freedom of movement of the degree associated with a formal arrest.” (Internal

quotations and citations omitted.) Rafferty at ¶ 32. “Whether a suspect is in custody depends on

the facts and circumstances of each case.” (Internal quotations and citations omitted). State v.

Lerch, 9th Dist. Summit No. 26684, 2013-Ohio-5305, ¶ 8. “Relevant factors include the location

of the questioning, its duration, statements made during the interview, the presence or absence of

physical restraints during the questioning, and the release of the interviewee at the end of the

questioning.” (Internal citations and quotations omitted.) Id. “The test is whether, under the

totality of the circumstances, a reasonable person would have believed that he was not free to

leave.” (Internal quotations and citations omitted). Id.

       {¶54} The video recording of the police interview of Mr. Brantley was admitted into

evidence at the suppression hearing, as was a transcript of that recording. At the suppression

hearing, Detective John Bell of the Akron Police Department testified that, while investigating

the murders, the police received several tips, some of which included nicknames of people that

the police might want to investigate. These nicknames included “Buck” and “Dougie[,]” who

became persons of interest. On April 29, 2013, Detective Bell was on the seventh floor of the

police station after returning from escorting a prisoner to felony court when he heard someone

call out “Buck[.]” Mr. Brantley, who was at the police station to post bond for his friend, Mr.




       5
         We note that Mr. Brantley has not argued on appeal that his statements were
involuntary.
                                                23


Haywood, in an unrelated case, responded to the person.          Detective Bell approached Mr.

Brantley and said, “[W]e need to talk to you about * * * an investigation.” Mr. Brantley, who

was with at least one other person at the time, agreed to go with Detective Bell to the sixth floor

detective bureau. The person or persons accompanying Mr. Brantley were allowed to wait for

him on a bench on the sixth floor.

       {¶55} Detective Bell, who had a firearm on his person, and another officer escorted Mr.

Brantley to an interview room. Detective Bell frisked him for officer safety, and initially took

Mr. Brantley’s money and cell phones from him. Detective Bell indicated that the cell phones

were taken from Mr. Brantley to keep him from being distracted. Mr. Brantley’s belongings

were placed in a cabinet right outside the interview room. While there were handcuffs in the

room, Mr. Brantley was not handcuffed.

       {¶56} Detective Bell then left the room to inform Detective Richard Morrison about Mr.

Brantley’s presence. Shortly thereafter, Detective Bell returned and gave Mr. Brantley back his

money. Detective Bell proceeded to ask Mr. Brantley for some identifying information and

information about his cell phones. The video recording reveals that, at the time, the door to the

interview room was open. As Detective Bell was about to leave the interview room, Mr.

Brantley asked if he could use his phone to call his lawyer. Detective Bell asked him who his

lawyer was, Mr. Brantley replied, and Detective Bell said, “Okay, hold on a second.” Detective

Bell left and shut the door behind him. When Detective Bell returned, Detective Morrison was

with him and Mr. Brantley’s request to speak to his attorney was not brought up by either the

detectives or Mr. Brantley again until Mr. Brantley was read his Miranda rights at the end of the

interview.
                                               24


       {¶57} Detective Morrison also testified at the suppression hearing. He indicated that,

prior to the interview, he knew that Mr. Brantley went by “Buck[,]” due to Detective Morrison’s

involvement in a prior case involving Mr. Brantley. Thus, he believed that Mr. Brantley was

probably the “Buck” the police were looking for concerning the murders at issue in this case.

Additionally, prior to the interview, Detective Morrison knew that Mr. Haywood had called Mr.

Roberts the night of the murder and that there were incriminating text messages sent between

Mr. Haywood and another person. Detective Morrison believed that other person was Mr.

Brantley.

       {¶58} When Detective Morrison began interviewing Mr. Brantley, he told him that,

“[Y]ou’re not under arrest for anything. If you want to leave, you can leave when we’re talkin’

okay.” He also told Mr. Brantley that he just wanted to have a “casual conversation[.]” During

the interview, Mr. Brantley is asked numerous questions about cell phone numbers, including his

own, as well as those of others. Additionally, he is asked about the murders: what and when he

heard about them and where he was during the timeframe involved. Mr. Brantley does not at any

point confess to the murders. Due to the number of questions related to cell phone numbers, for

a large portion of the interview, the detectives returned Mr. Brantley’s phones to him. However,

at one point, when one of Mr. Brantley’s phones rang, he was instructed not to answer it.

       {¶59} Later in the interview, Detective Morrison confronted Mr. Brantley with text

messages that were sent from one of his phones to Mr. Haywood’s phone (whom Mr. Brantley

identified as “Dougie”) around the time of the murder. Two of the text messages discussed

killing people. Mr. Brantley denied his involvement and claimed he did not send the texts.

Detective Morrison told Mr. Brantley several times that, no matter what he said, he was still

going to leave that day and that he was not going to be arrested. A short time later, Mr. Brantley
                                                 25


refused to answer any more questions and told the detectives if they thought he did it, they

should take him into custody. Mr. Brantley was subsequently Mirandized and ultimately placed

under arrest.

       {¶60} While we acknowledge there are several facts regarding the interview that give us

pause, ultimately, in evaluating the totality of the circumstances, we conclude that Mr. Brantley

was not in custody prior to being Mirandized. Certainly the facts that Mr. Brantley was frisked

and his cash and phones were initially taken from him are factors that would favor a finding that

Mr. Brantley was in custody, as does the fact that Mr. Brantley was ultimately arrested at the end

of the interview. See United States v. Protsman, 74 Fed.Appx. 529, 534 (6th Cir.2003), citing

Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (factors suggest suspect is not in custody when

he is informed that he is not under arrest, is subjected to a brief interview, and is allowed to leave

at the completion of the interview).        However, near the beginning of the interview, Mr.

Brantley’s cash was returned to him and he had access to his cells phones for a good portion of

the interview while the detectives were in the room with him. While there is a suggestion that

Mr. Brantley may not have been able to freely use his cell phones during the interview given that

he was instructed not to answer the phone when one of them rang, Mr. Brantley did not ask to

use the phones when they were returned to him. Mr. Brantley was not handcuffed during the

interview, see United States v. Malcolm, 435 Fed.Appx. 417, 421 (6th Cir.2011) (fact that

suspect was not handcuffed weighs against being in custody), and while Detective Bell had a

holstered handgun on his person, he never pointed it at Mr. Brantley or threatened him with it.

See State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, ¶ 99 (noting that even if officers were

armed that fact would not measurably strengthen argument that defendant was in custody when

there was no contention that the officers displayed the weapons in a threatening manner).
                                               26


       {¶61} During the course of the interview, prior to the issuance of Miranda warnings,

Mr. Brantley never requested to leave, and the detectives never told Mr. Brantley that he was

under arrest or that he could not leave. In fact, near the beginning of the interview, Detective

Morrison specifically told Mr. Brantley that he was not under arrest and that, if he wanted to

leave, Mr. Brantley could leave while they were talking. Later in the interview, Detective

Morrison repeatedly told Mr. Brantley that he would be leaving the police station that day

irrespective of what he said. See Malcolm at 421 (fact that defendant told he could leave and

was not under arrest weighs against being in custody). While the door was closed most of the

time while the detectives were with Mr. Brantley, it did not appear to be locked in that the

detectives merely turned the handle of the door to exit. It is unclear whether the door was locked

during the periods when Mr. Brantley was left alone in the room.

       {¶62} Further, while the interview took place at the police station, it did so because Mr.

Brantley was already at the police station on unrelated business when the police stopped him and

sought to interview him. See State v. Malone, 5th Dist. Licking No. 14CA89, 2015-Ohio-3436, ¶

25 (fact that defendant drove himself to the police station weighed against being in custody).

According to Detective Bell, Mr. Brantley agreed to go with Detective Bell. The person or

persons with Mr. Brantley were allowed to wait outside the detective bureau on a bench, which

would also favor the conclusion that Mr. Brantley was not in custody. Moreover, Mr. Brantley

has not argued that the length of the interview weighed in favor of a finding of custody;

approximately an hour and a half elapsed from the point in time that Mr. Brantley entered the

interview room until the point in time he was read his Miranda rights, and substantial portions of

that time involved Mr. Brantley sitting alone in the interview room waiting for the officers. See

Malone at ¶ 25 (concluding that the fact that interview lasted 90 minutes weighed against
                                                27


defendant being in custody); State v. Isacc, 2d Dist. Greene No. 2003-CA-91, 2004-Ohio-4683, ¶

23 (Defendant not in custody when, inter alia, the interview “lasted only two hours”).      Finally,

Mr. Brantley has not argued that the detectives engaged in any inappropriate or intimidating

interview tactics, nor did we observe any in viewing the video of the interview.

       {¶63} We are mindful that the United States Supreme Court has stated that questioning

of a suspect at a police station does not inherently require a conclusion that the defendant was in

custody:

       [A] noncustodial situation is not converted to one in which Miranda applies
       simply because a reviewing court concludes that, even in the absence of any
       formal arrest or restraint on freedom of movement, the questioning took place in a
       “coercive environment.” Any interview of one suspected of a crime by a police
       officer will have coercive aspects to it, simply by virtue of the fact that the police
       officer is part of a law enforcement system which may ultimately cause the
       suspect to be charged with a crime. But police officers are not required to
       administer Miranda warnings to everyone whom they question. Nor is the
       requirement of warnings to be imposed simply because the questioning takes
       place in the station house, or because the questioned person is one whom the
       police suspect. Miranda warnings are required only where there has been such a
       restriction on a person’s freedom as to render him “in custody.” It was that sort of
       coercive environment to which Miranda by its terms was made applicable, and to
       which it is limited.

Mathiason, 429 U.S. at 495.

       {¶64} After considering all of the circumstances of this case and the limited argument of

Mr. Brantley we cannot conclude that the trial court erred in concluding he was not in custody

during the relevant time frames of the interview. As Mr. Brantley’s argument on appeal is

limited to only challenging this conclusion, we overrule his fourth assignment of error.

                                ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE
       CUMULATIVE AND GRUESOME PHOTOGRAPHS OF THE VICTIMS ALL
       IN VIOLATION OF [MR.] BRANTLEY’S RIGHTS TO A FAIR TRIAL AS
       PROTECTED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS
       TO THE UNITED STATES CONSTITUTION[.]
                                                28


       {¶65} Mr. Brantley asserts in his fifth assignment of error that the trial court erred in

admitting cumulative and gruesome photographs of the victims.

       {¶66} “Under Evid.R. 403(A), a trial court must exclude evidence ‘if its probative value

is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.’ Under Evid.R. 403(B), a trial court may exclude evidence ‘if its probative

value is substantially outweighed by considerations of undue delay, or needless presentation of

cumulative evidence.’” (Emphasis omitted.) State v. Mammone, 139 Ohio St.3d 467, 2014-

Ohio-1942, ¶ 95, quoting Evid.R. 403.

       {¶67} “In the context of capital trials, however, [the Supreme Court of Ohio has]

established a stricter evidentiary standard for admitting gruesome photographs and ha[s] strongly

caution[ed] judicious use.” (Internal quotations and citations omitted.) Mammone at ¶ 96. “A

gruesome photograph is admissible only if its probative value * * * outweigh[s] the danger of

prejudice to the defendant.” (Internal quotations and citations omitted.) Id. “Unlike Evid.R.

403, which turns on whether prejudice substantially outweighs probative value, this standard

requires a simple balancing of the relative values of prejudice and probative value.” (Internal

quotations and citations omitted.) Id. “And even if a photo satisfies the balancing test, it can be

neither repetitive nor cumulative in nature.” (Internal quotations and citations omitted.) Id. “A

trial court’s decision that a photo satisfies this standard is reviewable only for abuse of

discretion.” Id. “The term gruesome in the context of photographic evidence should, in most

cases, be limited to depictions of actual bodies or body parts.” (Internal quotations and citation

omitted.) State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 141.

       {¶68} At trial, Mr. Brantley only objected to the admission of three photographs that

were part of State’s exhibit 89, which was a group of PowerPoint slides of the crime scene. The
                                               29


photographs Mr. Brantley objected to were labeled UUU, FFFF, and GGGG. When renewing

his objection at the end of trial, he noted that he was objecting to them because they were “very

graphic and highly prejudicial.”

       {¶69} Photograph UUU depicts the upper body of Mr. Delaney. There appears to be a

wallet in his left hand. There is blood staining items under his head and blood coming from his

nose, eyes, and mouth. It is undoubtedly a gruesome photograph. Photograph FFFF depicts Ms.

Nash. She is wearing a hoodie that covers her head, and the only skin visible is Ms. Nash’s

fingers. However, her head is surrounded by a large amount of blood and a bullet hole is visible

in her hoodie. Photograph GGGG depicts a close-up of the FFFF photograph. There is no skin

visible, as Ms. Nash’s head is covered with a hoodie. Detective Romito testified that that

photograph demonstrated staining around the bullet hole called soot, which usually evidenced

that the weapon was fired from a closer range, although the actual distance could not be

determined.

       {¶70} We conclude that the probative value of the photographs outweighed any

prejudicial impact. The crime scene was graphic. Four bodies were discovered in the basement,

each having at least one gunshot wound. Mr. Delaney was shot nine times. Accordingly, the

crime scene was inherently gruesome. Additionally, numerous bullets, fragments, and casing

were scattered throughout the basement that all had to be documented.          The photographs

illustrated Detective Romito’s testimony and gave the jury an appreciation of the nature and

circumstances of the crimes. See State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, ¶ 115.

Moreover, we remain mindful that it is the State that “must prove, and the jury [that] must find,

that the killing was purposely done. The number of shots fired, the places where the bullets

entered the body, and the resulting wounds are all probative evidence of a purpose to cause
                                                30


death.” State v. Maurer, 15 Ohio St.3d 239, 265 (1984), quoting State v. Strodes, 48 Ohio St.2d

113, 116 (1976); see also Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, ¶ 99.

       {¶71} To the extent Mr. Brantley is attempting to challenge the admission of any

photographs not objected to, he is limited to arguing plain error. See State v. Trimble, 122 Ohio

St.3d 297, 2009-Ohio-2961, ¶ 132. However, as Mr. Brantley has not developed a plain error

argument on appeal, we decline to construct one for him. See State v. Wallace, 9th Dist. Lorain

Nos. 14CA010609, 14CA010610, 2015-Ohio-4222, ¶ 20. Further, we note that, while Mr.

Brantley has argued on appeal that the photographs were cumulative and repetitive, it does not

appear that such was the basis of his objection below; instead, it appears that, at trial, Mr.

Brantley objected to the photographs because of their graphic nature. Accordingly, to the extent

Mr. Brantley raises the issue of whether the photographs were cumulative or repetitive, he has

forfeited that issue and has failed to argue plain error on appeal. See State v. Maple, 9th Dist.

Summit No. 25313, 2011-Ohio-1216, ¶ 12.

       {¶72} Nonetheless, even if we were to address this argument on the merits, we would

overrule it. Mr. Brantley’s argument is based solely on the fact that there were over 100 slides in

the exhibit containing the crime scene photographs. “While it is true that the sheer number of

photographs admitted may constitute error where they are needlessly cumulative, * * * the mere

fact that there are numerous photos will not be considered reversible error unless the defendant is

prejudiced thereby. Absent gruesomeness or shock value, it is difficult to imagine how the sheer

number of photographs admitted can result in prejudice requiring reversal.” (Internal citations

and quotations omitted.) State v. Smith, 80 Ohio St.3d 89, 108-109 (1997).           Here, a large

portion of the slides were photographs of other parts of the house, and thus, did not contain

images of the bodies of the deceased. Additionally, there were a number of photographs of the
                                               31


basement that were taken after the bodies were removed from the scene. Given Mr. Brantley’s

limited argument on the issue, see App.R. 16(A)(7), he has not convinced us that any reversible

erred occurred in the admission of the photographs.

       {¶73} Mr. Brantley’s fifth assignment of error is overruled.

                               ASSIGNMENT OF ERROR VI

       A DEFENDANT’S RIGHT TO A FAIR TRIAL IS VIOLATED WHEN A
       TRIAL COURT FAILS TO GRANT A MISTRIAL WHEN THE ENDS OF
       JUSTICE REQUIRED IT AND A FAIR TRIAL WAS NO LONGER
       POSSIBLE[.]

       {¶74} Mr. Brantley argues in his sixth assignment of error that the trial court erred in

failing to grant a mistrial on the two occasions in which spectators reacted to photographs

displayed during trial. We do not agree.

       {¶75} “Whether an emotional demonstration in the courtroom during the course of a

murder trial by a spectator related to the victim improperly influences the jury against the

accused[,] * * * constitute[s] misconduct so as to deprive the accused of a fair trial * * * [is a

question] of fact to be resolved by the trial court, whose determination thereon will not be

disturbed on review in the absence of evidence contrary to that determination clearly and

affirmatively appearing on the face of the record.” State v. Morales, 32 Ohio St.3d 252, 255

(1987), quoting State v. Bradley, 3 Ohio St.2d 38 (1965), syllabus. “Absent clear evidence in the

record that the outburst improperly affected the jury, only the trial judge can authoritatively

determine whether the jury was disturbed, alarmed, shocked or moved by the demonstration or

whether the incident was of such a nature that it necessarily influenced the ultimate verdict of

conviction.” Morales at 255. “The answer to those questions invariably depends upon facts and

circumstances which a reviewing court cannot ordinarily glean from the record.” Id.
                                                32


       {¶76} The first emotional outburst occurred during the State’s opening statement while

the State was displaying graphic photographs of the deceased victims. The record reflects that

family members of the victims began to cry when photographs of their bodies were displayed.

At that point, the trial court had the jury exit the courtroom and spoke to the gallery. The trial

court explained that the spectators could not display emotion as the trial court could not allow the

jury to be influenced by the natural display of grief. The trial judge then requested that those

members of the gallery who had interrupted the proceedings step out of the courtroom while the

graphic evidence was being displayed. The trial court then asked that the State inform the court

prior to displaying any graphic images so that the court could ask those who might be upset to

step outside. Thereafter, defense counsel moved for a mistrial, which was denied. When the

jury returned, the court instructed the jury:

       Ladies and gentlemen, I want to instruct you that as you can imagine, the
       difficulties, some of the people in the spectators are representative and family
       members of some of the victims.

       I think we can all appreciate the difficulties that * * * those people are
       experiencing as they sit through this trial, hear the evidence and certainly then see
       some of the photographic evidence.

       However, I am going to instruct you and I’m going to instruct you over and over
       and over, and at the end the same thing, that this case is to be decided on the
       evidence, on the facts that come into this courtroom as well as on the law that I
       will give you that will apply to those facts.

       And the case – sympathy is a normal human emotion, but as jurors under your
       oath you are going to be asked to set aside your sympathy and decided this case
       on the evidence and the law, okay?

       So throughout the proceedings there may be times that some of the spectators
       become overwhelmed with emotion, and I’m going to ask you to do a very
       difficult thing and that is to set that aside, and you must act as though you didn’t
       hear and you didn’t see it, because it may not in any way influence your verdict,
       okay?
                                                33


       {¶77} The second outburst occurred during the testimony of Dr. Dean, the medical

examiner, while she was discussing the autopsy results of Mr. Delaney. Prior to the beginning of

Dr. Dean’s testimony, the trial court instructed the jury and the gallery that the testimony would

include autopsy photographs, some of which could be graphic. During that testimony, Mr.

Delaney’s father became upset and stormed out of the courtroom into the hallway where he

could be heard “wailing[.]” A few other spectators also became upset and ran out of the

courtroom. The trial court then instructed the jury to take a break.

       {¶78} When the jury returned to the court following the outburst, the trial court

instructed the jury again, saying:

       Ladies and gentlemen of the jury, I want to tell you once again that you may not
       allow yourselves, and I’m going to repeat this again at the end of the case, you
       may not allow yourselves to be influenced by either sympathy or prejudice.

       I understand, and I think we all understand, that some of the family members of
       the victims find this to be extremely emotional, and I have explained to the folks
       in the gallery that we do have to – the jury is going to have to decide this case on
       the evidence and the law, apply the two together, and you are going to be strictly
       instructed to disregard your feelings of sympathy and prejudice.

       {¶79} At the end of Dr. Dean’s testimony, Mr. Brantley’s counsel renewed his motion

for a mistrial. The trial court denied the motion. In doing so, the trial court noted that it had

asked Mr. Delaney’s father to not return to the courtroom the next day and had given a curative

instruction. The State also discussed its efforts to ensure the spectators who were causing the

disturbance were escorted to another floor to avoid contact with the jury.

       {¶80} The trial court did not abuse its discretion in failing to grant a mistrial. Nothing in

the record demonstrates that the outbursts had any effect on the jury. See Trimble, 122 Ohio

St.3d 297, 2009-Ohio-2961, at ¶ 127. “Additionally, the trial court’s admonitions focused the

jury on the evidence and away from the outburst.” Id. “A jury is presumed to follow the trial
                                                 34


court’s instructions, and Mr. [Brantley] has not pointed to anything in the record that indicates

that the jury failed to do so.” State v. Jackson, 9th Dist. Summit No. 27479, 2015-Ohio-5096, ¶

39, quoting State v. Boden, 9th Dist. Summit No. 26623, 2013-Ohio-4260, ¶ 38. Moreover, the

trial court warned spectators and the jury about the nature of the evidence after the first outburst.

It was only after one spectator could not maintain his composure a second time that the trial

court asked him not to return to court until after the next day’s testimony. We see nothing

unreasonable in the trial court’s conduct or its decision to deny the motions for a mistrial.

       {¶81} Mr. Brantley’s sixth assignment of error is overruled.

                                                 III.

       {¶82} The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                              35


       Costs taxed to Appellant.




                                                   CARLA MOORE
                                                   FOR THE COURT




SCHAFER, J.
CONCURS.

CARR, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶83} I concur in the judgment but write separately with respect to the fourth

assignment of error. Mr. Brantley did not identify in his motion to suppress, at the suppression

hearing, or on appeal, any incriminating or inculpatory statements that he made during police

questioning. I would affirm on that basis.


APPEARANCES:

DONALD R. HICKS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
