[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Dean, Slip Opinion No. 2015-Ohio-4347.]




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


                          SLIP OPINION NO. 2015-OHIO-4347
               THE STATE OF OHIO, APPELLEE, v. DEAN, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Dean, Slip Opinion No. 2015-Ohio-4347.]
Criminal law—Aggravated murder—Joinder—Sufficiency of the evidence—
        Merger—Appropriateness and proportionality of death penalty—Death
        penalty affirmed.
     (No. 2011-2005—Submitted May 5, 2015—Decided October 27, 2015.)
             APPEAL from the Court of Common Pleas of Clark County,
                                      No. 05 CR 0348.
                                    _________________
        LANZINGER, J.
        {¶ 1} Jason Dean was found guilty of all charged offenses and was
sentenced to death for the aggravated murder of Titus Arnold and the attempted
murder of six other people. On direct appeal, we reversed Dean’s convictions,
vacated the death sentence, and remanded the case for a new trial. See State v.
Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97.
                                    SUPREME COURT OF OHIO




           {¶ 2} In this direct appeal of Dean’s convictions upon retrial, we affirm the
convictions and sentence of death.
                                         I. Trial evidence
           {¶ 3} Evidence introduced at trial showed that between April 10 and 14,
2005, Dean shot at two people at a Mini-Mart convenience store, committed a
drive-by shooting, and was responsible for the murder of Titus Arnold.
                                  A. Shooting at the Mini Mart
           {¶ 4} The prosecution introduced evidence showing that during the early
morning of April 10, 2005, Andre Piersoll and Yolanda Lyles drove to a Mini Mart.
Lyles parked in front of the Mini Mart. According to Lyles, Dean approached the
car and tried to sell them some pills while she had her money out. Following this
conversation, Dean walked over to a two-door car, where a “tall white boy” was
waiting,1 and left.
           {¶ 5} Piersoll knew Dean and testified that he first saw him inside the store.
Piersoll got some snacks and returned to the car. According to Piersoll, Dean came
to the car while he and Lyles were eating and talked to him about “some Valiums.”
Piersoll said he did not want to buy them.
           {¶ 6} Lyles testified that she and Piersoll remained parked outside the Mini
Mart for another five or ten minutes. While they were talking, Dean came around
the corner of the Mini Mart and approached their car. Dean told Lyles, “Give me
your money,” and started shooting at the car. Several bullets hit the windshield.
Piersoll told Lyles that he had been shot. Lyles then left the parking lot and quickly
drove to Mercy Hospital. Lyles noticed that until she was about a block from the
hospital, the car with the shooter continued to follow them.




1
    Dean was identified as the shorter of the two men, and Joshua Wade was identified as the taller.




                                                   2
                                  January Term, 2015




       {¶ 7} At the hospital, Piersoll was treated for a gunshot wound to the left
arm and an abrasion to the right cheek. A spent .25-caliber bullet was retrieved
from the sleeve of Piersoll’s jacket. Lyles had scratches on her face but did not
require treatment.
       {¶ 8} The police recovered two .25-caliber shell casings outside the Mini
Mart. Timothy Duerr, a forensic scientist assigned to the Firearms and Toolmarks
Identification Section of the Miami Valley Crime Laboratory, determined that the
two casings were fired from the same firearm.
       {¶ 9} On April 21, Detective Darwin Hicks prepared a photographic spread
and showed it to Piersoll. Piersoll identified Dean as the person who shot him.
       {¶ 10} Crystal Kaboos, Dean’s girlfriend at the time, testified that he
showed her a newspaper article about the Mini Mart shooting. He then said that he
was the shooter. Dean told Kaboos that he “ran up on the car and just fired through
the windshield at the person.”
                     B. Drive-by shooting on Dibert Avenue
       {¶ 11} Kaboos testified that on the evening of April 12, 2005, Dean talked
with his brother, Mark Dean, about looking for a car and a house on Dibert Avenue
in Springfield. Later that evening, Dean, Joshua Wade, and Kaboos drove to Dibert
Avenue in Dean’s Buick Riviera. According to Kaboos, Wade was driving, Dean
was in the front passenger seat, and she was in the backseat. Kaboos stated that
Wade was armed with a “black .45” and Dean had a “smaller, silver gun.” Kaboos
asked Dean and Wade what they were doing, and they said that they were “just
looking for a house and a car.”
       {¶ 12} Kaboos stated that when they arrived at Dibert Avenue, Wade turned
off the headlights, and they drove down the street. Kaboos saw Dean and Wade
stick their guns out the passenger window and fire several shots. Kaboos closed
her eyes and covered her ears and ducked down in the backseat. She then felt the




                                          3
                               SUPREME COURT OF OHIO




car speed up and turn around. But Kaboos stated that was the last thing she
remembered.
        {¶ 13} Laroilyn Byrd testified that she and her sister, Jinada Madison, who
lived at 604 Dibert Street, were in the living room when the shots were fired and
that bullets started flying through the room. The two women took cover, and Byrd
called 9-1-1 to report the shooting. Neither Byrd nor Madison was hit. Byrd then
went outside and saw people come onto the porch at 609 Dibert Avenue, the house
across the street.
        {¶ 14} Seven people were inside the home at 609 Dibert. Shani Applin
testified that Devon Williams Sr., his girlfriend, Shanta Chilton, Shanta’s brother,
Hassan Chilton, Applin, and Applin’s young child, JaeAda Applin, were in the front
room watching TV. Shanta’s two young children, Dyier and Samiara, were in bed
inside the house.
        {¶ 15} According to Shanta, Williams’s car was parked across from the
house, partially in front of Byrd’s house at 604 Dibert. After hearing the gunfire
and his car alarm go off, Williams and Shanta went outside to look at his car.
Hassan, Applin, and JaeAda went out to the front porch. Williams noticed that his
car had numerous bullet holes, particularly near the gas tank.
        {¶ 16} Shanta testified that while they were examining Williams’s car, she
noticed a car coming towards them. Shanta ran back to the house. As she got to
the porch, the car stopped in front of the house. Shanta then saw a “white guy” in
the car look at her and start shooting. When the gunfire erupted, everyone on the
porch dove for cover. No one was injured by the gunfire, but Hassan later noticed
a bullet hole in his jacket.
        {¶ 17} Williams testified that he had remained by his car, an Oldsmobile,
when the shooting started again. Williams saw a young person shooting at the
house but did not see anyone else in the car. He later identified the shooter as Wade.




                                          4
                               January Term, 2015




       {¶ 18} Investigators found five bullet holes in the left rear quarter panel of
the Oldsmobile. In addition, a .25-caliber bullet was recovered from the car’s rear
window trim. Investigators also identified two bullet holes in the living room wall
at 604 Dibert. Neither bullet was recovered.
       {¶ 19} Investigators found evidence that four bullets struck the front porch
area at 609 Dibert. Timothy Shepherd, a forensic criminalist with the Springfield
Police Department Crime Laboratory, determined that a bullet recovered from the
front porch pillar was “probably” a .40-caliber Smith and Wesson bullet. Shepherd
also determined that a spent bullet found inside the house was a .40-caliber Smith
and Wesson bullet. However, no comparisons to a weapon could be made because
“much of the striations and actually, the bullet jacket had been removed.”
       {¶ 20} Before trial, Dean told Manns that he was paid to do the drive-by
shooting. Manns testified that Dean said that he “drove down the street, shot up
the house, turned around at the end of the street, came back and shot at people
coming out of the house; and one of them was holding a baby in his arms that he
almost shot because the bullet actually went through his shirt sleeve.”
                            C. Murder of Titus Arnold
       {¶ 21} Kaboos testified that in early April 2005, she was living with Dean
in his parents’ home on East Liberty Street in Springfield. According to Kaboos,
Dean and Wade would often go out at night and leave her at home. Dean told her
that they went to local bars to “lure people out and rob them of their money.”
       {¶ 22} Kaboos testified that on the night after the drive-by shooting, Dean
told her that he and Wade were going to the Nite Owl Tavern to rob someone. She
did not go with them. The tavern’s video surveillance system showed that Dean
and Wade entered the tavern about 11:45 p.m. They left at 11:47 p.m.
       {¶ 23} According to Titus Arnold’s coworker, Arnold left his work at
“Visions for Youth,” a group home for troubled youth on West High Street




                                         5
                                  SUPREME COURT OF OHIO




sometime before midnight on April 13. She said that he was wearing a gold-colored
jacket and carrying a backpack.
        {¶ 24} Amrosetta Haile testified that she was driving on West High Street
that night when a speeding car passed her and pulled into a nearby parking lot. She
saw a tall man and a shorter man get out of the car and start chasing a man wearing
a gold coat. She saw the taller man run back to the passenger side of the car, then
saw “two blue flashes,” heard gunshots, and saw the man in the gold coat fall down.
According to Haile, the two men “hovered over the body for a second” and then
ran back to their car and drove away.
        {¶ 25} Allison Nawman and her husband, Theador Panstingel, who lived at
the corner of High and Race Streets, heard a shot outside their home about the same
time. According to Nawman, she looked out the window and saw a man she
thought was about five feet, six inches tall standing over a person on the ground.
Nawman and her husband went outside, and she saw that man running down High
Street towards a car. It appeared to her that someone was already in the car because
she saw the brake lights go on. She then saw the man who had been running get
into the car, and the car left.
        {¶ 26} About the same time that evening, Terri and Kari Epperson were at
their mother’s home on West High Street. Terri looked out an upstairs window and
noticed that a car had pulled up across the street. She saw a man running down the
street with two men chasing him. Terri then went outside and saw a person get out
of the driver’s side of the car, run halfway down the street, and shoot twice at the
man who was running. When the shooter looked around, Terri recognized him as
her cousin, Josh Wade. Wade returned to the driver’s side of the car and drove
away.
        {¶ 27} Kari Epperson also saw the shooting. She heard squealing tires,
looked out the window, and saw a car parked across the street with the driver’s side
door open. Kari then saw a man run down High Street and fire a gun twice. The




                                            6
                                January Term, 2015




shooter turned around and Kari recognized him as Josh Wade. He returned to the
driver’s side of the car and left. Kari stated that she did not see anyone else with
Wade.
        {¶ 28} Shortly after the shooting, police and paramedic units arrived.
Arnold’s body was found near a curb in front of a pickup truck. No money was
found in his clothing or his backpack.
                       D. Beginning of murder investigation
        {¶ 29} Investigators found two .40-caliber shell casings near each other on
West High Street. The closest shell casing was found more than 61 feet from
Arnold’s body. Investigators also found a projectile in the driver’s side door of the
pickup truck near where Arnold’s body was found. A live .25-caliber bullet was
found near the parking lot across the street from where the Eppersons lived.
        {¶ 30} Early in the morning of April 14, Dean and Wade went to Mark
Dean’s house. Mark and Kevin Bowshier were there, getting high on cocaine.
According to Bowshier, Dean and Wade “held up a bullet shell and threw it.” Dean
said that they had smoked somebody and robbed them. Bowshier testified: “They
had ran up behind and tackled him, and I know his gun didn’t go off; and then the
kid Josh shot him, shot Titus.” Bowshier recalled that Dean and Wade took less
than $10 from the victim.
        {¶ 31} Kaboos testified that she overheard Dean and Wade on the morning
of April 15 laughing over a newspaper article about Arnold’s murder. Dean told
her to read the article. According to Kaboos, Dean said that they were driving down
the street and saw an individual walking by himself. They stopped the car, pulled
out their guns, and ordered Arnold to lie on the ground. Arnold started to run, and
Dean tried to shoot him but his gun was on safety. Wade then said he had a bigger
gun and shot Arnold. Dean said they robbed Arnold but got only six dollars.
Kaboos testified that Dean was “bragging with a smirky grin on his face, like [he
was] proud of what they had done.”




                                         7
                             SUPREME COURT OF OHIO




       {¶ 32} Around the same time, Dean announced that he wanted everyone in
his home to watch a television newscast about the Arnold murder. According to
Kaboos, “Dean was standing there with his arms crossed watching it, and he was
just smiling and laughing about it.”
       {¶ 33} Kaboos stated that Dean carried a smaller silver handgun with wood
on the handle and Wade carried a larger caliber handgun that was originally Dean’s.
Shortly after the murder, Kaboos saw Dean trade the smaller gun for drugs.
       {¶ 34} Kaboos testified that shortly after the night of the murder, she ended
her relationship with Dean and left the residence after Dean reunited with his former
girlfriend, Ronda Sions. On April 20, Kaboos contacted the Springfield police and
provided them with information about Arnold’s murder.
                                  E. Dean’s arrest
       {¶ 35} On April 21, Springfield police executed a search warrant at Dean’s
residence. Detective Douglas Estep testified that he encountered Dean in the
kitchen. The detective testified that Dean kept looking and smiling in the general
direction of a stand behind him. A handgun was found on the shelf in the stand.
The detective testified that the .40-caliber handgun admitted into evidence appears
to be the gun he saw on the stand.
       {¶ 36} During the search, the police found six live .380-caliber rounds in
the pocket of a pair of pants, as well as an empty box of .40-caliber bullets and a
box containing 18 live rounds of ammunition in a bucket in a bedroom closet. In
addition, the police found a title for the Buick Riviera. The back of the title showed
that Dean was the transferee. The car was parked outside Dean’s house.
                                F. Forensic evidence
       {¶ 37} Dr. Robert Stewart, a Clark County deputy coroner, conducted the
autopsy of Arnold. Arnold suffered a gunshot wound in the upper back at the base
of his neck. The bullet cut the spinal cord in half and exited above the right
eyebrow. Stewart stated that the gunshot wound was consistent with the victim




                                          8
                                       January Term, 2015




leaning over and running from the assailant. Dr. Stewart determined that this
gunshot wound was the cause of death.
         {¶ 38} Timothy Shepherd, the criminalist, examined the two shell casings
found at the murder scene and determined that they had been fired from the .40-
caliber handgun that was found at Dean’s residence. Shepherd also examined a
projectile removed from the pick-up truck near where Arnold’s body was found.
He determined that it was “probably a .40 [Smith and Wesson] caliber bullet * * *
fired from a weapon that had seven lands and grooves with a left-hand twist.”
Shepherd was unable to identify the weapon that fired the bullet because the
projectile was deformed. He testified that the class characteristics of the .40-caliber
handgun found at Dean’s residence was seven lands and grooves with a left-hand
twist.
                    G. Dean’s correspondence with Sions and Manns
         {¶ 39} At trial, Dean’s girlfriend, Ronda Sions, testified that Dean told her
they were looking for a man known as O-Z on the night of Arnold’s murder. She
said that Dean said they had had a run-in and they had it out for him. According to
Sions, Dean called the murder a case of mistaken identity and said that they
intended to shoot O-Z, not Arnold.
         {¶ 40} Sions and Dean exchanged numerous letters while he was in jail.2 In
one letter, Dean claimed that his anger and lack of control was the reason a man he
“never laid eyes on before is in his grave and * * * was shot down like an animal
for no reason other than he was at the wrong place at the wrong time.” Dean added
that, “What’s so sad and it scares me when I think about it is the fact that I don’t
care.
         {¶ 41} In another letter, Dean wrote:


2
 During Dean’s first trial, the court admitted as exhibits the original letters. During the second trial,
excerpts from the letters, rather than the original letters, were admitted as exhibits. Throughout this
opinion, we refer to the excerpts admitted during the second trial.




                                                   9
                           SUPREME COURT OF OHIO




             I just lost control. I made a lot of mistakes and I’m gonna
      have to pay for them. And it is nobody’s fault but my own.


      {¶ 42} In yet another letter, Dean wrote:


             Most of this shit is my fault. If I hadn’t gotten myself into
      all of this, none of this shit would be happening.


      {¶ 43} Dean also wrote to Sions:


             Try to stay out of trouble. Baby, I don’t need no more blood
      on my hands or my conscience.


      {¶ 44} Dean’s letters to Sions also described his close relationship with
Wade. Dean wrote:


             That’s some crazy shit you was telling me about Josh is
      going to try and say he was scared of me. That’s some bullshit. I
      will call so many witnesses to testify that he looked up to me and
      that I treated him like a son. I let him wear my clothes, fed him and
      Luther, his little brother. I helped his whole family. * * * If he
      would just keep his fucking mouth shut, everything would be a lot
      better. What he and his people fail to realize is that every time he
      opens his mouth, he not only hurts me but himself. He is just
      digging himself a deeper hole. They got him so scared with this life
      without parole bullshit that he will say whatever they want him to
      say.




                                       10
                                 January Term, 2015




       {¶ 45} Manns, a fellow inmate, testified that Dean talked to him about
Arnold’s killing, saying: “He jumped out the car and went to rob him. Titus Arnold
turned to run. He tried to fire his gun. His gun jammed, and Josh Wade jumped
out of the car and shot two shots. One went into a car door, and one went into Titus
Arnold’s head and killed him.”
       {¶ 46} Dean also wrote several letters to Manns. In one letter, Dean wrote:


       They act like I killed the president. * * * I had one hell of a time.
       I know that sounds crazy but you know me. I had a nice ass buick
       rivera power everything I had a nice system and everything * * * I
       was off the hook, you wouldn’t believe the shit I was doing every
       day. I got a lot of good stories to tell you when I get there, I say that
       because like I said, it don’t look good for me. * * * It was just me
       and my boy Joshua Wade you seen in the paper they got him charged
       with the same thing they got me charged with and they are gonna try
       him as an adult. I’m really worried about him if you know what I
       mean?


       {¶ 47} In another letter to Manns, Dean wrote:


       You are absolutely right about my situation being hopeless, but
       that’s life. I made my choices and I knew the consequences of my
       actions. I have lived my life the way I wanted, I have always done
       what I wanted to do when I wanted to do it and fuck what anybody
       had to say about it.


       {¶ 48} And in yet another letter to Manns, Dean wrote:




                                          11
                               SUPREME COURT OF OHIO




        I’m a realist bro, and I know what is in front of me and I’m gonna
        face it head on, you understand where I’m coming from? Because
        the way the law states is it doesn’t matter if I pulled the trigger or
        not, you know that, not to mention the fact that I’m 30 and dude was
        16, I’m supposed to be the responsible adult you know.


                                 H. Dean’s phone calls
        {¶ 49} The state also played a recording of a telephone call that Dean made
from prison to an unidentified male. During this phone call, Dean states, “They’re
not offering no deal. * * * He’s going for the death penalty, period.” Dean then
says that the reason no deal was being offered was because they had killed a “moon
cricket.”3 Dean also discussed Wade’s involvement in the murder and the strength
of the state’s case, stating: “Man, this chick seen everything. She seen it happen.
They don’t got me at the scene or nothing at that murder. She done pointed the
dude out at the corner (inaudible) and everything.” Dean added: This “witness
came forward and ain’t nothing I can do to help him now. I mean, of course, they
gonna ask me, do you know anything about this. How did you get the murder
weapon in your house * * *. I bought the gun off the street.”
        {¶ 50} The state also introduced the transcript of another phone call
between Dean and an unidentified male. In that call, Dean complained about
Wade’s statements to the police and Kaboos, stating that Wade “said all kinds of
shit” and “told that girl everything, man,” and “[t]hat’s how that bitch knows
everything ’cause he told her.”




3
     “Moon    cricket”    is   a    racial   slur for    an     African-American      person.
http://www.urbandictionary.com/define.php?term=moon+cricket (accessed Aug. 25, 2015).




                                             12
                               January Term, 2015




                                 I. Defense case
       {¶ 51} The defense called no witnesses and presented only a photograph of
Wade for the jury’s consideration.
                                 II. Case history
       {¶ 52} Dean was indicted on two counts of aggravated murder. Count
Twelve charged Dean with the aggravated murder of Arnold with prior calculation
and design. Count Thirteen charged him with the aggravated murder of Arnold
while committing or attempting to commit aggravated robbery. Both counts
contained death-penalty specifications alleging that the murder was a part of a
course of conduct involving multiple murders or attempted murders, R.C.
2929.04(A)(5), and that the murder was committed while committing or attempting
to commit aggravated robbery and Dean, while not the principal offender,
committed the aggravated murder with prior calculation and design, R.C.
2929.04(A)(7).
       {¶ 53} Dean was indicted on six counts of attempted murder: Count One—
Piersoll, Count Two—Lyles, Count Seven—Shanta Chilton, Count Eight—Hassan
Chilton, Count Nine—Shani Applin, and Count Ten—JaeAda Applin.
       {¶ 54} Dean was also charged with eight additional counts: Counts Five and
Six—discharging a firearm into an occupied structure, Counts Three and
Fourteen—committing or attempting to commit aggravated robbery, and Counts
Four, Eleven, Fifteen, and Sixteen—having a weapon under a disability.
Additionally, firearm specifications were included in 12 counts of the indictment.
       {¶ 55} A jury found Dean guilty on every charge, and he was sentenced to
death. We reversed the judgment and remanded the case for a new trial. Dean, 127
Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 3-6. Dean pled not guilty and
after a new jury was convened, he was convicted on all charges and specifications
and was sentenced to death.




                                        13
                             SUPREME COURT OF OHIO




                               III. Issues on appeal
        {¶ 56} Dean presents 15 propositions of law, including arguments regarding
the application of the doctrine of transferred intent to the attempted-murder charges,
the sufficiency of the evidence regarding the drive-by shooting at 609 Dibert
Avenue, the failure to merge the offense of discharging a firearm into a habitation
with the attempted-murder offenses, and the appropriateness and proportionality of
the death sentence.
        {¶ 57} We will address all the issues in the approximate order that they
arose during the trial.
                             A. Pretrial and trial issues
1. Motion for separate trials (Proposition of Law XI)
        {¶ 58} Dean argues that the trial court abused its discretion by denying a
defense motion to order separate trials for the Mini Mart shooting (Counts One
through Four), the drive-by shootings (Counts Five through Eleven), the murder of
Arnold (Counts Twelve through Fifteen), and a weapons charge related to his arrest
(Count Sixteen).
        {¶ 59} Under Crim.R. 8(A), two or more offenses may be charged together
if the offenses “are of the same or similar character, * * * or are based on two or
more acts or transactions connected together or constituting parts of a common
scheme or plan, or are part of a course of criminal conduct.” In fact, “[t]he law
favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses
charged ‘are of the same or similar character.’ ” State v. Lott, 51 Ohio St.3d 160,
163, 555 N.E.2d 293 (1990), quoting Crim.R. 8.
        {¶ 60} Nonetheless, “[i]f it appears that a defendant * * * is prejudiced by
a joinder of offenses,” a trial court may grant a severance. Crim.R. 14. “The
defendant, however, bears the burden of proving prejudice and of proving that the
trial court abused its discretion in denying severance.” State v. Brinkley, 105 Ohio




                                         14
                                January Term, 2015




St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 29, citing State v. Torres, 66 Ohio
St.2d 340, 421 N.E.2d 1288 (1981), at the syllabus.
       {¶ 61} The state may rebut a defendant’s claim of prejudicial joinder in two
ways. First, if in separate trials the state could introduce evidence of the joined
offenses as “other acts” under Evid.R. 404(B), a defendant cannot claim prejudice
from the joinder. Lott at 163. Second, the state can refute prejudice by showing
that “evidence of each crime joined at trial is simple and direct.” Id.
       {¶ 62} The different offenses were charged together because they were part
of a common scheme or plan and occurred over a short period of time. Kaboos
provided key testimony as to each of the offenses, and other witnesses testified
regarding more than one offense. Thus, the facts indicate that joinder was proper
because the offenses were part of a continuing course of criminal conduct. See
State v. Hamblin, 37 Ohio St.3d 153, 158, 524 N.E.2d 476 (1988).
       {¶ 63} Dean argues that he was unfairly prejudiced by the joinder of
multiple counts because many witnesses and fact scenarios, as well as offenses that
occurred at different times and involved different victims, created confusion and
led to an attempt to convict him based on numerous bad acts. This argument lacks
merit. Counts Twelve and Thirteen of the indictment—the aggravated-murder
counts—contained a specification under R.C. 2929.04(A)(5) alleging that Dean had
purposefully killed or attempted to kill two or more persons as part of a course of
conduct. Thus, even if these two counts had been tried separately from the other
counts, the state would have had to present evidence of other acts—the attempted-
murder offenses—in order to prove the specification. See State v. LaMar, 95 Ohio
St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 51.
       {¶ 64} In addition, the evidence of each crime was simple and direct. The
state’s first witnesses testified about the attempted murders and the robbery at the
Mini Mart. The next series of witnesses testified about the drive-by shooting on
Dibert Avenue. The rest of the testimony focused on Arnold’s murder. It is highly




                                         15
                                SUPREME COURT OF OHIO




unlikely that the jury would have confused the murder evidence with the other
offenses. See State v. Johnson, 88 Ohio St.3d 95, 110, 723 N.E.2d 1054 (2000).
       {¶ 65} Finally, Dean argues that the joinder of offenses took away his right
to testify in his own behalf. Even though he did not testify, Dean argues that he
might have chosen to testify about the Dibert Avenue shootings but not the Mini
Mart. Dean also claims that he was prejudiced because he was unable to testify
regarding Wade’s actions during the drive-by shooting and Wade’s shooting of
Arnold.
       {¶ 66} In State v. Roberts, 62 Ohio St.2d 170, 405 N.E.2d 247 (1980), we
addressed a defendant’s complaint that he was prejudiced by the joinder of charges
because he wanted to testify on some charges but not others. Roberts held:


       To prevail upon this issue, defendant must make a convincing
       showing that he has important testimony to give concerning one
       cause, and a strong need to refrain from testifying in the other.
       Defendant must produce sufficient information regarding the nature
       of the testimony he wishes to give in the one case, and his reasons
       for not wishing to testify in the other, so as to satisfy the court that
       his claim of prejudice is genuine.


Id. at 176. Federal cases have also indicated that a defendant’s mere desire to testify
to only one count is an insufficient reason to require severance. See, e.g., Alvarez
v. Wainwright, 607 F.2d 683, 686 (5th Cir.1979); United States v. Jardan, 552 F.2d
216, 220 (8th Cir.1977).
       {¶ 67} Dean has failed to present convincing reasons for his argument that
he might have chosen to testify in one case but not in the other. Thus, he has not
shown that he was prejudiced, as required by Crim.R. 14, or that he satisfies the
standard laid out in Roberts.




                                          16
                                January Term, 2015




       {¶ 68} Based on the foregoing, we reject Proposition of Law XI.
2. Jury selection (Proposition of Law V)
       {¶ 69} Dean contends that jurors Nos. 342, 357, and 449 should have been
removed from the jury because their answers on their jury questionnaires or during
voir dire indicated that they could not be fair and impartial jurors.
                                  a. Juror No. 357
       {¶ 70} On the death-penalty questionnaire, juror No. 357 circled an answer
stating that the death penalty was the “proper punishment in some cases, but not
the proper punishment in some other cases.” He explained that “[e]ach case is
individual & some circumstances are different” and that his main concern was that
“too much time [was] spent on so many appeals.” During voir dire, juror No. 357
stated that his concern about the length and cost of appeals would not affect the
way he looked at the evidence or weighed the aggravating circumstances against
the mitigating factors.
       {¶ 71} We have held that a “defendant in a criminal case cannot complain
of error in the overruling of a challenge for cause if such ruling does not force him
to exhaust his peremptory challenges.” (Emphasis added.) State v. Eaton, 19 Ohio
St.2d 145, 249 N.E.2d 897 (1969), paragraph one of the syllabus, vacated in part,
408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750 (1972). Thus, “ ‘[i]f the trial court
erroneously overrules a challenge for cause, the error is prejudicial only if the
accused eliminates the challenged venireman with a peremptory challenge and
exhausts his peremptory challenges before the full jury is seated.’ ” (Emphasis
added.) State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 87,
quoting State v. Tyler, 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990).
       {¶ 72} Dean argues that seated juror No. 357 should have been excused
because his feelings about the death penalty were biased. But Dean waived any
objection to his service. First, he failed to challenge this juror for cause. Second,
he failed to excuse juror No. 357 with a peremptory challenge and failed to exercise




                                          17
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four of his six peremptory challenges. Thus, this claim is reviewed on the basis of
plain error. See State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13
N.E.3d 1051, ¶ 79.
       {¶ 73} Juror No. 357’s answers on his death-penalty questionnaire showed
that he took a moderate view of the death penalty. His main concern about the
death penalty concerned the lengthy appeals process. Moreover, during voir dire,
juror No. 357 assured the court that he could follow the court’s instructions. Based
on these answers, we hold that the trial court did not commit plain error by failing
to excuse juror No. 357.
       {¶ 74} Dean also argues that his counsel were ineffective by failing to
challenge juror No. 357. Reversal of a conviction for ineffective assistance of
counsel requires that the defendant show first that counsel’s performance was
deficient and second that the deficient performance prejudiced the defense so as to
deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
       {¶ 75} Defense counsel were not deficient because juror No. 357’s
comments on his death-penalty questionnaire and his comments during voir dire
did not disclose information that would have supported a challenge for cause. Dean
also failed to establish that his counsel were ineffective by failing to peremptorily
challenge juror No. 357. Juror No. 357 exhibited neither bias nor prejudice.
Therefore, counsel’s failure to challenge this juror was not deficient. See State v.
Lindsey, 87 Ohio St.3d 479, 490, 721 N.E.2d 995 (2000).
                                 b. Juror No. 342
       {¶ 76} On his death-penalty questionnaire, juror No. 342 stated that the
death penalty was “the proper punishment in all cases where someone is convicted
of aggravated murder.” During voir dire, juror No. 342 made similar comments.
Juror No. 342 acknowledged that he was “opinionated” and stated that “[p]eople




                                         18
                                January Term, 2015




do not want to be around a person who is as opinionated as me on a jury. I will do
my best to convince people around me to believe in my opinions, not their own.”
Despite these strongly held views, juror No. 342 stated that if Dean was convicted
of aggravated murder, he would follow the court’s instructions and listen
objectively to the mitigating factors and other matters that the defense would
present in argument against the death penalty. Later, juror No. 342 reiterated that
he would “absolutely” weigh the aggravating circumstances against the mitigating
factors before deciding the sentence.
       {¶ 77} Defense counsel challenged juror No. 342 for cause because of his
strong views in favor of the death penalty. However, the trial court denied the
challenge, stating, “[H]e held strong opinions about the death penalty; but
nonetheless, he could put those aside and fairly consider the Court’s instructions.”
Defense counsel later peremptorily challenged juror No. 342.
       {¶ 78} Dean argues that the trial court erred by failing to remove juror No.
342 for cause because he could not be a fair and impartial juror. But Dean waived
his challenge to juror No. 342 because he failed to exhaust his allotted number of
peremptory challenges. Here, the trial court did not commit plain error by failing
to excuse juror No. 342. Juror No. 342 told the court more than once that he would
follow the court’s instructions and also stated that he could fairly consider the
mitigating factors in determining punishment. Thus, the record does not show that
juror No. 342 could not be a fair and impartial juror, and this claim is rejected.
                                  c. Juror No. 449
       {¶ 79} On his questionnaire, juror No. 449 stated, “I feel [that the death
penalty] is the proper punishment for aggravated murder. In all convicted cases.”
(Underlining sic.) Juror No. 449 tempered his views during voir dire. He stated
that in spite of his strong feelings about the death penalty, he would have “an open
mind” about the mitigation evidence, would follow the judge’s instructions about
the weighing process, and would fairly engage in that process. During further




                                          19
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questioning, juror No. 449 assured the court that he could follow the court’s
instructions in reaching his decision. Juror No. 449 added, “I think you have to
listen to the mitigating factors because * * * each case is gonna be different.” The
trial court overruled a defense challenge for cause against juror No. 449. Defense
counsel later exercised a peremptory challenge against juror No. 449 after he was
selected as an alternate juror.
        {¶ 80} Dean argues that juror No. 449 should have been excused for cause
because he had stated that the death penalty was the proper punishment for
aggravated murder. Dean waived this argument because he failed to exhaust his
allotted number of peremptory challenges. He used a peremptory challenge to
eliminate juror No. 449, and this action cured any error. “ ‘So long as the jury that
sits is impartial, the fact that the defendant had to use a peremptory challenge to
achieve that result does not mean the Sixth Amendment was violated.’ ” Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 86, quoting Ross v.
Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Moreover,
none of the alternate jurors participated in the verdict. Thus, this claim is also
rejected.
        {¶ 81} Based on the foregoing, we overrule Proposition of Law V.
3. Evidentiary rulings (Proposition of Law X)
        {¶ 82} Dean argues that the trial court made several erroneous evidentiary
rulings that denied him a fair trial.
                                  a. Testimony of Kaboos
        {¶ 83} Dean argues that the trial court erred by allowing Kaboos to testify
about Dean’s intentions to rob her and his plans to rob people at local bars. Kaboos
testified that Dean told her that he had planned to rob her and her friend when he
first saw them. Following a defense objection, the prosecutor claimed that Kaboos
would testify that Dean decided not to rob her after he learned that she did not have
any money. The prosecutor also claimed that Dean told Kaboos that he went to




                                            20
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bars at night to rob people. Defense counsel argued that Kaboos’s testimony that
Dean planned to rob Kaboos and her friend and that he went to bars to rob people
was not relevant and was improper under Evid.R. 404(B) as other-acts testimony.
The trial court overruled the objections, finding that the testimony was “probative
of motive.”
       {¶ 84} Afterward, Kaboos testified that Dean told her that “he was planning
on robbing me and my friend Becky out of whatever money we had, but we didn’t
have no money.” She then stated that he changed his mind but that she didn’t know
why he changed his mind. Kaboos also testified that Dean often went out at night
with Wade, leaving her at home. Kaboos testified that Dean told her that they were
“gonna go to the local bars and lure people out and rob them of their money.”
       {¶ 85} Dean argues that Kaboos’s testimony should not have been admitted
to prove motive. Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove” a defendant’s character as to criminal propensity.
“It may, however, be admissible * * * [to prove] motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.
       {¶ 86} Dean was charged with aggravated robbery and murder while
committing or attempting to commit robbery for Arnold’s death. The testimony
that Dean planned to rob Kaboos and her friend and that he and Wade were going
to bars to lure customers outside and rob them showed that Dean was intending to
rob people around the time that Arnold was murdered and robbed. Thus, the trial
court did not abuse its discretion in admitting Kaboos’s testimony as evidence of
motive. See State v. Woodard, 68 Ohio St.3d 70, 73, 623 N.E.2d 75 (1993) (where
defendant was charged with murder in a carjacking incident, evidence that
defendant previously had attempted to carjack someone was evidence of motive).
       {¶ 87} As a final matter, Dean argues that the trial court erred in concluding
that Kaboos’s testimony met one of the purposes of Evid.R. 404(B) without
explicitly analyzing whether the prejudicial impact outweighed its probative value.




                                        21
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Under Evid.R. 403(A), relevant evidence must be excluded if “its probative value
is substantially outweighed by the danger of unfair prejudice, of confusion of the
issues, or of misleading the jury.” “Even if the other-acts evidence is offered to
prove a material element, the decision to admit this evidence is subject to Rule
403.” See 1 Giannelli, Evidence, Section 404.14, at 252 (3d Ed.2010). “The
admission or exclusion of relevant evidence rests within the sound discretion of the
trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph
two of the syllabus.
        {¶ 88} We have held that “Evid.R. 403(A) establishes a standard but does
not require a trial court to explicitly state in its judgment entry that the probative
value of the ‘other acts’ evidence outweighs its prejudicial impact.” State v. Bey,
85 Ohio St.3d 487, 489, 709 N.E.2d 484 (1999). The probative value of Kaboos’s
testimony outweighed the damage of any unfair prejudice to Dean. Thus, the trial
court’s failure to explicitly state its findings on the weighing process was not
reversible error.
                    b. Handgun and ammunition not used in crimes
        {¶ 89} Dean argues that the trial court erred by admitting a .380-caliber
handgun and other evidence that was seized during a search of Wade’s home.4 The
state introduced six rounds of .380-caliber ammunition that were in pants found
during the police search of Dean’s bedroom. The state also sought to introduce the
.380-caliber handgun that was found during the search of Wade’s house.
        {¶ 90} Defense counsel objected to the introduction of the handgun as
irrelevant, because no gun of this caliber was used in any of the offenses. The state
argued, “We’re attempting to show that the firearm, the .40 caliber that was issued
here, is the property of Jason Dean and that Josh Wade has his own separate
firearm.” The trial court overruled the defense objection, stating, “I think what it

4
  Dean made no Fourth Amendment claims in challenging the admissibility of the .380-caliber
handgun.




                                            22
                               January Term, 2015




tends to show is the firearms were interchangeable.” The state was allowed to
introduce the .380-caliber handgun.
       {¶ 91} The admission of the .380-caliber firearm and ammunition rested
upon a question of relevancy. Evid.R. 401 provides: “ ‘Relevant evidence’ means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” “The admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.” Sage, 31 Ohio St.3d
173, 510 N.E.2d 343, at paragraph two of the syllabus.
       {¶ 92} In State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d
1112, the state presented evidence about several firearms and ammunition found in
Neyland’s motel room and storage unit. The firearms were not connected to the
aggravated-murder charges against Neyland. Id. at ¶ 157. The state argued that the
evidence was relevant to prove Neyland’s prior calculation and design, which was
an element of the aggravated-murder charges. Id. at ¶ 153. We rejected that
argument because the murder weapon had been identified and admitted into
evidence. Thus, the other weapons and ammunition were not relevant to proving
Neyland’s prior calculation and design and should not have been admitted. Id. at
¶ 157. See also State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d
242, ¶ 105-106 (weapons found in the defendant’s basement that were not used in
the murder were not relevant to prove prior calculation and design).
       {¶ 93} Unlike in Neyland and Trimble, the state did not introduce multiple
weapons to prove prior calculation and design. Rather, the .380-caliber handgun
found in Wade’s bedroom and the .380-caliber ammunition found in the pants in
Dean’s bedroom were relevant for the limited purpose of showing that Dean and
Wade acted together in committing the offenses.
       {¶ 94} Moreover, the prosecutor later relied on this evidence to rebut
defense claims that Wade acted alone in committing the offenses. During final




                                        23
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arguments, defense counsel asserted that Wade was acting alone: “That ain’t no
little boy being scared by the sound of the big old gun he’s holding in his hand.
That’s a young thug fully capable of committing this crime without guidance from
anybody.” In rebuttal, the prosecutor argued:


               Facts that show that they’re a team? * * * They were
       together all day every day for 21 days. He provided the guns; he
       used the .25; Josh used the .40. * * * No one’s talked about this
       yet. When they got rid of the .25, they replaced it with that .380.
       They had the .380 that was found down at Josh’s house.
               How about this? The .380 rounds when they did the search
       warrant, the .380 rounds are found in the Defendant’s pants in his
       house, and the .380’s found down the street at Josh’s. That doesn’t
       show you that they’re working as a team? * * * Again, that’s
       showing you how tightly they worked together as a team.


       {¶ 95} The state’s argument explains why the .380-caliber handgun and
ammunition were relevant. That evidence—the weapon in Wade’s house and the
ammunition in Dean’s house—tended to show that Dean and Wade acted together
in committing the charged offenses. Thus, we hold that the trial court did not abuse
its discretion by admitting the .380-caliber handgun and ammunition.
                           c. Letters and telephone calls
       {¶ 96} Dean argues that the trial court erred by admitting the letters that he
wrote to Manns and Sions and the telephone calls that Dean made while he was in
pretrial confinement.
                                 (1) Dean’s letters
       {¶ 97} Detective Estep testified that the police obtained a search warrant
and seized numerous letters that Dean had sent to Manns, an inmate at the Lebanon




                                        24
                               January Term, 2015




Correctional Institute. Estep also learned that Sions had received numerous letters
from Dean. Estep talked to Sions about the letters, and the police later collected
them from Sions’s house.
       {¶ 98} During its case-in-chief, the state introduced redacted excerpts from
letters that Dean had mailed to Manns and Sions before his trial, but the letters
themselves were not admitted. Dean raises various objections to the contents of the
excerpts and argues that they should not have been admitted.
       {¶ 99} First, Dean argues that several excerpts from his letters should not
have been admitted, because they did nothing more than show his lack of remorse
for Arnold’s death. Dean complains about the following excerpt in a letter to
Manns: “They act like I killed the president.” Dean also complains about the
comments in another letter: “Remember they said they found a .40 Caliber pistol
in my house? Well that’s the type of pistol dude got killed with, but there are no
prints at all on the gun.” Dean’s statements in these letters were probative of his
consciousness of guilt. Thus, this evidence was relevant to a noncharacter issue
and admissible under Evid.R. 404(B).
       {¶ 100} Dean argues that the following excerpt from a letter to Sions should
not have been admitted, because it also showed his lack of remorse: “Anyway this
dude walks up to me and says, ‘that dude you and your boy killed was my cousin’.
I looked at him and said, ‘I don’t give a fuck!’ ” However, Dean’s response to the
accusation was admissible as an implied admission of guilt.
       {¶ 101} Dean also complains that an excerpt in a letter to Sions was
improperly presented to the jury:


               I get so angry sometimes, and I lose control. * * * It’s the
       reason a man I have never laid eyes on before is in his grave and his
       children are wondering where their daddy is and his mother has to
       cry herself to sleep at night because her son was shot down like an




                                        25
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       animal for no reason other than he was at the wrong place at the
       wrong time. What’s so sad and it scares me when I think about it is
       the fact that I don’t care.


       {¶ 102} These comments were also an implied admission of guilt and not
barred by Evid.R. 404(B). See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, 848 N.E.2d 810, ¶ 66.
       {¶ 103} Second, Dean claims that excerpts from two of his letters should
not have been admitted because they showed his lack of remorse and vulgarity and
that he was a dangerous individual. Initially, he complains about the admissibility
of a letter he wrote to Manns: “I made my choices and I knew the consequences of
my actions. I have lived my life the way I wanted, I have always done what I
wanted to do when I wanted to do it and fuck what anybody had to say about it.”
These were probative of Dean’s consciousness of guilt.
       {¶ 104} In a letter to Sions, Dean wrote, “If I could just get my hands on
that motherfucker I would crush him. If I could get my hands on him, there would
be another mother mourning the loss of her child.” Once again, Dean’s comments
demonstrated his consciousness of guilt and were admissible.
       {¶ 105} Third, Dean argues that excerpts from other letters should not have
been admitted, because they showed he was a dangerous individual with an
unabashed disregard for the law. In a letter to Manns, Dean wrote: “Life’s a
motherfucker ain’t it bro? This is what happens when you live life in the streets
and make your own rules and laws. You lose everything every time. I will carry
my burden with my head held high.” Similarly, Dean wrote Sions: “But I got
caught up living the fast life, doing what comes natural to a beast like me, doing
what I wanted, when I wanted, and how I wanted.” In a similar vein, Dean wrote:
“Because at that point if I wanted something, I took it and damn the consequences.




                                        26
                                January Term, 2015




But that kind of thinking has led me to where I am right now, locked in a concrete
and steel cage.”
       {¶ 106} These excerpts all demonstrated Dean’s disregard for the
consequences of his actions and were relevant to prove his involvement in the
offenses. But Dean’s statements: “I will take some money, some jewelry, some
dope. I will take your car and everything you own, but I would never take no pussy”
were irrelevant and not admissible under Evid.R. 404(B). Nevertheless, the impact
of these comments was minimal, considering the other compelling evidence of
Dean’s guilt.
       {¶ 107} During the trial, Dean argued that there were no eyewitnesses
identifying him at the scene of Arnold’s murder and insisted that Wade was solely
responsible as the killer. Yet Dean’s letters contain bits of information that show
his involvement in Arnold’s murder and convey his consciousness of guilt for
Arnold’s murder and the other offenses. See State v. Hanna, 95 Ohio St.3d 285,
2002-Ohio-2221, 767 N.E.2d 678, ¶ 86.
       {¶ 108} The record shows that the state was careful in limiting the
information that was contained in the excerpts that went to the jury. The evidence
of other acts was not offered for the purpose of proving Dean’s bad character.
Moreover, information that cast Dean’s character in a negative light was kept to a
minimum. Thus, we hold that the trial court did not abuse its discretion in admitting
the excerpts of Dean’s letters to Sions and Manns.
                              (2) Dean’s phone calls
       {¶ 109} The state played a recording of a phone call that Dean made from
jail and presented the transcript of another phone conversation that Dean made,
both of which were made to an unidentified individual.
       {¶ 110} During the recording, Dean stated, “They’re not offering no deal
* * * He’s going for the death penalty, period.” Dean added that the reason no deal




                                         27
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was being offered was “ ‘[c]ause we killed a moon cricket.” Dean also discussed
Wade’s involvement in the murder and the strength of the state’s case:


               Man, this chick seen everything. She seen it happen. They
       don’t got me at the scene or nothing at that murder. She done
       pointed the dude out at the corner (inaudible) and everything. I
       mean, ain’t nothing I can do to help him. I tried to help him in the
       long run when we first went down. I accepted —
               (inaudible)
               I was rolling with it. I was carrying the weight, but then
       (inaudible) witness came forward and ain’t nothing I can do to help
       him now. I mean, of course, they gonna ask me, do you know
       anything about this. How did you get the murder weapon in your
       house and, you know, all this shit. I bought the gun off the street.


       {¶ 111} Dean argues that the trial court erred by allowing this audio
recording to be played because it conveyed that Dean was a racist. But Dean’s
comment that they killed a “moon cricket” was an admission by Dean of his
involvement in Arnold’s murder. Thus, we reject Dean’s claim that that the
probative value of this evidence was “minimal at best.”
       {¶ 112} Other comments in the phone conversations were also relevant to
the charges. Dean discusses the strong evidence linking Dean and Wade with
Arnold’s murder. Moreover, Dean tells the caller that he bought the murder weapon
off the street. This was also highly probative evidence linking Dean to the murder.
       {¶ 113} Dean cites Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117
L.Ed.2d 309 (1992), for the proposition that this recording should not have been
presented to the jury because it portrayed him as a racist. Dawson held that the
First Amendment precludes a state “from employing evidence of a defendant’s




                                        28
                                 January Term, 2015




abstract beliefs at a sentencing hearing when those beliefs have no bearing on the
issue being tried.” Id. at 168. In Dawson, the jury was told that the defendant
belonged to the Aryan Brotherhood, which was described as a white racist gang.
Id. at 166. Nothing of the sort happened in this case. Dean’s comment was not a
mere statement of abstract beliefs but was evidence of his involvement in Arnold’s
murder.
        {¶ 114} The transcript of a second phone call between Dean and an
unidentified male was also presented to the jurors. In this phone call, Dean
complained about Wade’s statements to the police and Kaboos that incriminated
Dean in the murder. Dean stated that Wade “said all kinds of shit” and “told that
girl everything man,” and “[t]hat’s how that bitch knows everything ‘cause he told
her.” This conversation showed Dean’s consciousness of guilt and was therefore
admissible.
        {¶ 115} Dean also objects that the transcript of this phone call, which had
been used as an exhibit in his first trial, included the name of the case and the fact
that it was from the “Guilt Phase.” It is unclear why this information was not
redacted before the exhibit went to the jury. However, the trial court informed the
jury that this case had been tried before and told them that they “may not consider
that fact * * * for any purpose whatsoever.” Thus, there is little likelihood that the
reference to the prior trial was prejudicial.
        {¶ 116} Finally, Dean argues that the transcript and the recording showed
that Dean was callous, vulgar, and remorseless. He argues that this evidence was
particularly prejudicial because the evidence that he was involved in the drive-by
shootings and Arnold’s murder was not overwhelming. However, Dean’s argument
overlooks Kaboos’s testimony, which established his involvement in the Dibert
Avenue shootings and his involvement in Arnold’s murder. Thus, Dean’s claim
that the jury’s review of his letters and telephone conversations deprived him of a
fair trial is rejected.




                                          29
                             SUPREME COURT OF OHIO




       {¶ 117} Based on the foregoing, we overrule Proposition of Law X.
4. Playing 9-1-1 calls (Proposition of Law IX)
       {¶ 118} Dean argues that he was denied a fair trial when the prosecution
played two emotionally charged 9-1-1 tapes for the jury.
                                a. Haile’s 9-1-1 call
       {¶ 119} Over defense objection, the state played a tape of the 9-1-1 call that
Amrosetta Haile made following Arnold’s shooting:


               Speaker One [Haile]: There was two of them. They shot
       this other boy in the head. He’s dead. I know he’s dead. He wasn’t
       moving. There was blood everyplace.
               Speaker Two [9-1-1 operator]: You were passing by?
               Speaker One: I was coming off of Light Street onto High.
       And these people were running from the shelter house across to this
       kid in the road right by the Night Owl intersection on High Street.
       They just shot him in the fuckin’ head with a gun.
               ***
               Speaker One: * * * The two cars — the two guys in the car
       parked their car. This kid started running across the road that they
       shot. They get out of the car and run after him and popped him right
       in the fuckin’ road by the curb. I was right there at the track and
       watched them shoot this kid dead.
               Speaker Two: Okay. And then they ran back to the vehicle?
               Speaker One: And they ran back to the car and took off.


       {¶ 120} Dean argues that the 9-1-1 tape was inflammatory and improperly
played to the jurors’ emotions. He argues that most of the tape dealt with the
investigation of the crime and Haile had already testified to that information during




                                         30
                                January Term, 2015




her direct examination. Thus, he argues that the 9-1-1 call should have been
excluded because its prejudicial effect outweighed its probative value. See Evid.R.
403(A).
       {¶ 121} Haile’s 9-1-1 call established that two males were involved in
shooting Arnold. This information supported the state’s theory that Dean and Wade
acted together when Arnold was killed. Though prejudicial to Dean with respect
to his criminal liability, it was not unfairly so. Neither did it confuse the issues or
mislead the jury. Thus, we hold that the trial court did not abuse its discretion in
allowing the 9-1-1 tape to be played. See State v. Kinley, 72 Ohio St.3d 491, 497,
651 N.E.2d 419 (1995).
                                 b. Byrd’s 9-1-1 call
       {¶ 122} Over defense objection, the state played the 9-1-1 call that Byrd
made during the drive-by shooting on Dibert Avenue. Byrd told the 9-1-1 operator,
“Somebody drove by and shot at the boy’s car across the street, and a couple bullets
hit the house.” During the 9-1-1 call, the car returned, and shots could be heard on
the tape. Byrd told the 9-1-1 operator that the car that was shot at was owned by
Devon Williams and provided the following information:


                Speaker One [Byrd]: Devon Williams. He’s had problems
       out of O-Z and Snuff. I know you know ‘me.
                Speaker Two [9-1-1 operator]: O-Z and Snuff is who they
       think it was.
                Speaker One: And (Inaudible) Aaron Johnson. He’s had
       problems out of them lately.
                Oh, this was—he said this was a white boy driving this car.
       They came by, shot the car first; and a bullet came through the
       house.




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       {¶ 123} Dean argues that Byrd’s statement about Williams’s problems with
O-Z and Snuff should not have been played during the 9-1-1 call. The admissibility
of Byrd’s comments about O-Z involve whether her statement constitutes an
excited utterance under Evid.R. 803(2).         A four-part test is administered to
determine the admissibility of statements as an excited utterance: (1) a startling
event, (2) a statement relating to that event, (3) a statement made by a declarant
with firsthand knowledge, and (4) a statement made while the declarant was under
the stress of the excitement caused by the event. See 2 Giannelli, Evidence, Section
803.9, at 223-224 (3d Ed.2010); Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140
(1955), paragraph two of the syllabus; State v. Jones, 135 Ohio St.3d 10, 2012-
Ohio-5677, 984 N.E.2d 948, ¶ 166 (following Baker).
       {¶ 124} Byrd’s comments were made to the 9-1-1 operator after her house
had been hit by gunshots, and her comments were made while she was under the
stress of the excitement caused by the event.
       {¶ 125} Byrd’s 9-1-1 call met the requirements for admissibility under
Evid.R. 803(2). However, the evidence must also meet the requirements for
relevancy under Evid.R. 401 before being admitted. We fail to see how Byrd’s
statement claiming O-Z was involved was relevant. Nevertheless, we hold that the
admission of that statement was harmless beyond a reasonable doubt in view of
other evidence establishing Dean’s guilt in the drive-by shooting. See State v.
Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 33.
       {¶ 126} Based on the foregoing, we reject Proposition of Law IX.
5. Transferred intent (Proposition of Law III)
       {¶ 127} Dean argues that the trial court erred in providing the jury with an
instruction on transferred intent with respect to the attempted-murder counts.




                                        32
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                                           a. Background
           {¶ 128} The trial court did not give an instruction on transferred intent for
any of the offenses during the original charge to the jury. But during final
arguments, the prosecutor argued:


                There’s a lot of evidence about intent, and you have to be
                cognizant of a concept called transferred intent. And also
                when you’re talking about prior calculation and design, if a
                team is going out there planning to go out and rob and kill,
                it’s not necessary in the prior calculation and design that you
                have a specific victim in mind. That’s a point that sometimes
                in aggravated murder cases juries get a little bit off the beaten
                track on.


           {¶ 129} During deliberations, the jury asked: “In attempted murder does it
matter if the person identified in the charge is the intended target or not?” After
discussing this question with the parties, the trial court said it intended to give “an
additional charge which would be a modification of Charge No. CR 417.09 from
[Ohio Jury Instructions]. It’s on transferred purpose.”5 The trial court’s proposed


5
    The version of Ohio Jury Instruction CR 417.09 that was in effect during the trial stated:

                     1. PURPOSE TO CAUSE THE DEATH. If you find that the defendant
           did have a purpose to cause the death of a particular person and that the shot
           accidentally caused the death of another person, then the defendant would be just
           as guilty as if the shot had taken effect upon the person intended.
                     2. TRANSFERRED. The purpose required is to cause the death of
           another, not any specific person. If the shot missed the person intended, but
           caused the death of another, the element of purpose remains and the offense is as
           complete as though the person for whom the shot was intended had died.
                     3. NO PURPOSE. However, if there was no purpose to cause the death
           of anyone, the defendant cannot be found guilty * * *.




                                                   33
                                SUPREME COURT OF OHIO




instructions applied the transfer-of-purpose instruction to the attempted-murder
offenses.
        {¶ 130} Defense counsel stated that the proposed instruction seemed to be
a correct statement of the law but objected, stating, “The instructions have been
completed and given to the jurors in writing; and the appropriate answer, we think,
on question[s] of law should be the one akin to the one given earlier that they have
the instructions. Work with them.”
        {¶ 131} Defense counsel added:


        [T]he State seems to be of the opinion this question is targeting the
        Dibert Avenue drive-by victims. If that’s correct, * * * the counts
        in the predicate original instructions, the verdict forms identify the
        names of the people on the porch. And there seems to be no valid
        application of the concept of transferred intent relative to that charge
        or that set of charges.


        {¶ 132} The trial court overruled the objection and instructed the jurors as
follows:


                 You are cautioned that this instruction doesn’t supersede
        anything I have given you. It doesn’t change anything that I have
        given you, and you are only to consider this in light of the other
        instructions and not give this additional instruction any undue
        emphasis over anything else that I have already given you.




Ohio Jury Instructions, CR Section 417.09 (2009).




                                              34
                               January Term, 2015




                The answer to your question and the instruction that I will
       now give you is that all offenses of murder, including attempted
       murder and aggravated murder, have as one of the essential
       elements that the Defendant had a purpose to cause the death of
       another. The purpose required is to cause the death of another
       person, not any one specific person. If the death was intended for
       one person but resulted in an attempt on or the death of another, the
       offense is complete. However, if there was no purpose to cause the
       death of anyone, the Defendant may not be found guilty of attempted
       murder, murder, or aggravated murder.


(Emphasis added.)
                                    b. Analysis
       {¶ 133} Dean claims that the trial court erred because the doctrine of
transferred intent does not apply to the attempted murder of Lyles at the Mini Mart
or the attempted murder of the four people at 609 Dibert Avenue during the drive-
by shootings.
       {¶ 134} As an initial matter, the state asserts that this issue is subject to
plain-error review because Dean presents a theory that was not presented at trial.
Crim.R. 30(A); State v. Williford, 49 Ohio St.3d 247, 251, 551 N.E.2d 1279 (1990).
We disagree. Defense counsel objected to the trial court’s proposed transfer-of-
purpose instruction before it was provided to the jurors and made several arguments
challenging the instruction.
       {¶ 135} Generally, a trial court has broad discretion in how to fashion jury
instructions. “In examining errors in a jury instruction, a reviewing court must
consider the jury charge as a whole and ‘must determine whether the jury charge
probably misled the jury in a matter materially affecting the complaining party’s
substantial rights.’ ” Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 652 N.E.2d




                                        35
                                  SUPREME COURT OF OHIO




671 (1995), quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208,
560 N.E.2d 165 (1990). Whether the jury instructions correctly state the law is a
question that is reviewed de novo. See State v. Bradford, 4th Dist. Adams No.
11CA928, 2013-Ohio-480, ¶ 22; State v. Cook, 9th Dist. Summit No. 26360, 2012-
Ohio-4250, ¶ 6.
          {¶ 136} “The doctrine of transferred intent is firmly rooted in Ohio law.”
State v. Sowell, 39 Ohio St.3d 322, 332, 530 N.E.2d 1294 (1988). “ ‘If one
purposely causes the death of another and the death is the result of a scheme
designed to implement the calculated decision to kill someone other than the victim,
the offender is guilty of aggravated murder in violation of R.C. 2903.01(A).’ ”
State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 171,
quoting State v. Solomon, 66 Ohio St.2d 214, 421 N.E.2d 139 (1981), paragraph
one of the syllabus.
          {¶ 137} Dean acknowledges that the doctrine of transferred intent would
apply in an aggravated-murder case but cites a California Supreme Court case to
argue that transferred intent does not apply to the attempted-murder charges against
him.6 People v. Bland, 28 Cal.4th 313, 48 P.3d 1107 (2002). In Bland, the
defendant shot and killed his intended victim and wounded two others. Id. at 319.
The court reversed the defendant’s attempted-murder convictions because there
was no evidence that he intended to kill the two surviving victims. The court held
that the doctrine of transferred intent did not apply to an inchoate crime like
attempted murder. Id. at 327-328. Bland reasoned:


          The defendant’s mental state must be examined as to each alleged
          attempted murder victim. Someone who intends to kill only one




6
    This argument does not apply to the attempted murder of Piersoll, who was shot in the arm.




                                                36
                               January Term, 2015




        person and attempts unsuccessfully to do so, is guilty of the
        attempted murder of the intended victim, but not of others.
Id. at 328.
        {¶ 138} Dean invokes Bland to argue that the doctrine of transferred intent
should not be applied when a defendant is charged with attempted murder, because
of the problem in identifying the intended victims. As to this issue, Bland stated:


        “A related reason why transferred intent cannot properly apply to
        attempted murder derives from the fact that the crime of attempted
        murder requires no physical injury to the victim. * * * Assuming
        an attempted murder scenario where the defendant fires a shot at an
        intended victim and no bystanders are physically injured, one sees
        that it is virtually impossible to decide to whom the defendant’s
        intent should be transferred. Is the intent to murder transferred to
        everyone in proximity to the path of the bullet? Is the intent
        transferred to everyone frightened and thereby assaulted by the
        shot? There is no rational method for deciding how the defendant’s
        intent to murder should be transferred.”


Id. at 329, quoting Ford v. State, 330 Md. 682, 715, 625 A.2d 984 (1993).
        {¶ 139} Other jurisdictions have also rejected the doctrine of transferred
intent when a defendant has been charged with the attempted murder of an
unintended victim. See, e.g., Harrison v. State, 382 Md. 477, 506, 855 A.2d 1220
(2004); Ramsey v. State, 56 P.3d 675, 681-682 (Alaska App.2002); State v. Brady,
745 So.2d 954, 957-958 (Fla.1999); State v. Hinton, 227 Conn. 301, 317-318, 630
A.2d 593 (1993); State v. Williamson, 203 Mo. 591, 595, 102 S.W. 519 (1907);
State v. Stanley, 20 S.D. 18, 23, 104 N.W. 522 (1905).




                                         37
                               SUPREME COURT OF OHIO




           {¶ 140} The state counters by arguing that the evidence established that
Dean intended to murder Piersoll and Lyles at the Mini Mart and that he had an
intent to kill during the Dibert Avenue drive-by shooting. A “ ‘person is presumed
to intend the natural, reasonable and probable consequences of his voluntary acts.’ ”
State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 143,
quoting State v. Johnson, 56 Ohio St.2d 35, 39, 381 N.E.2d 637 (1978). Thus, the
state argues that evidence showing that Dean or Wade fired multiple shots at all the
victims established that Dean had a purpose to kill.
           {¶ 141} The state argues that the transferred-intent doctrine was properly
applied to the attempted-murder counts. “In order to commit the offense of
attempted murder as defined in R.C. 2903.02(A), one must engage in conduct that,
if successful, would result in purposely causing the death of another * * *.”
(Emphasis added.) State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922
N.E.2d 937, ¶ 25. Thus, the state argues that the doctrine of transferred intent
applies to the charges because attempted murder, like murder, requires a purpose
to kill.
           {¶ 142} R.C. 2923.02(A), Ohio’s attempt statute, refers to purposely or
knowingly engaging in “conduct that, if successful, would constitute or result in the
offense.” But Dean’s argument that transferred intent does not apply to the
attempted-murder charges, because none of the victims was harmed, “adds an
artificial requirement of death of the unintended victim to the transferred intent
doctrine.” (Emphasis sic.) Harrison, 382 Md. at 511, 855 A.2d 1220 (Raker, J.,
dissenting). Yet “the doctrine of transferred intent is not limited to killings. * * *
It is instead ‘a general principle which permits liability for any crime involving a
mens rea of intent—be it arson, assault, theft or trespass—where the actual object
of the crime is not the intended object.’ ” (Italics sic.) Id. at fn. 3, quoting Dillon,
Transferred Intent: An Inquiry into the Nature of Criminal Culpability, 1
Buff.Crim.L.Rev. 501, 504 (1998).




                                           38
                               January Term, 2015




       {¶ 143} The state maintains that transferred intent does not require that the
victim be harmed and cites State v. Wheeler, 8th Dist. Cuyahoga No. 66923, 1995
WL 322247 (May 25, 1995). Wheeler fired several shots at a passenger in a car,
and one of the bullets passed through the shirt of the driver without striking him.
The passenger died, and Wheeler was found guilty of his murder and the attempted
murder of the driver. The court applied the doctrine of transferred intent in
upholding the attempted-murder conviction.
       {¶ 144} Another court applied the doctrine of transferred intent to a
felonious assault when the victim was not physically harmed. State v. Reese, 1st
Dist. Hamilton Nos. C-060576, C-060577, 2007-Ohio-4319, ¶ 23. The court stated:


       Where the defendant shoots wildly in a business district and one of
       the shots enters the passenger compartment of an occupied
       automobile, the conviction for attempting to cause serious physical
       harm should stand. The fact that there was no physical harm to
       Fiorini’s person is irrelevant; the statute did not even require
       physical harm to the intended victim. * * * Under the law, the
       unintended victim is accorded the same protection as the intended
       victim. The intent is what is transferred, not the harm.


(Emphasis added.) Id. at ¶ 23. The same rationale supports the application of
transferred intent to the attempted-murder counts even though neither Lyles nor any
of the victims on the porch was injured.
       {¶ 145} The victims at the Mini Mart and the drive-by shooting are also
readily identified. Two people were sitting in the car and four people were standing
on the front porch when the defendant opened fire. The persons to whom the
defendant’s intent could be transferred on the attempted-murder counts are known.




                                           39
                             SUPREME COURT OF OHIO




       {¶ 146} Other jurisdictions have applied the doctrine of transferred intent
to support both murder and attempted-murder convictions. See, e.g., Ochoa v.
State, 115 Nev. 194, 200, 981 P.2d 1201 (1999) (attempted murder); Blanche v.
State, 690 N.E.2d 709, 712 (Ind.1998) (murder and attempted murder); People v.
Hill, 276 Ill.App.3d 683, 688, 658 N.E.2d 1294 (App.1995) (attempted first-degree
murder); State v. Rodriguez-Gonzales, 164 Ariz. 1, 3, 790 P.2d 287 (App.1990)
(attempted first-degree murder); State v. Gillette, 102 N.M. 695, 699 P.2d 626
(App.1985) (attempted first-degree murder).
       {¶ 147} We hold that that the doctrine of transferred intent was properly
applied to the attempted-murder charges. Attempted murder, like murder, requires
a purpose to kill. The victims of the transferred intent are readily identifiable
because they were standing on the porch or seated in the front seat of the car. A
showing of harm is unnecessary since the “intent is what is transferred, not the
harm.” Reese, 2007-Ohio-4319, at ¶ 23. Thus, we hold that the trial court’s
instruction was proper.
       {¶ 148} Based on the foregoing, we reject Proposition of Law III.
6. Sufficiency and manifest weight of the evidence (Proposition of Law II)
       {¶ 149} Dean challenges the sufficiency and manifest weight of the
evidence for his convictions for (1) discharging a firearm into an occupied structure,
(2) the attempted murder of four persons during the drive-by shootings, and (3) the
aggravated murder of Arnold with prior calculation and design under R.C.
2929.04(A)(7).    He also challenges the sufficiency of the evidence for his
convictions for (1) the attempted robbery of Lyles, (2) the attempted murder of
Lyles, and (3) the aggravated murder of Arnold as part of a course of conduct under
R.C. 2929.04(A)(5).
       {¶ 150} In reviewing a record for sufficiency, “[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven




                                         40
                                January Term, 2015




beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
       {¶ 151} A claim that a jury verdict is against the manifest weight of the
evidence involves a different test. “ ‘The court, reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence, the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. The discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
                           a. Drive-by shooting offenses
       {¶ 152} Dean argues that the evidence is not sufficient to support his
convictions for two counts (Counts Five and Six) of discharging a firearm into an
occupied structure (604 and 609 Dibert) and four counts of attempted murder
(Counts Seven through Ten) during the drive-by shootings. He asserts that these
convictions are supported solely by Kaboos’s testimony. He argues that Kaboos
was not a credible witness and that her testimony was contradicted by Shanta
Chilton and Devon Williams.
       {¶ 153} Kaboos testified that she was in the back seat of the Riviera when
Dean and Wade drove down Dibert Avenue. According to her, Wade was driving
and was armed with a “black .45” and Dean was in the front passenger seat with a
“smaller silver gun.” Kaboos saw both men stick their guns out the window and
start firing shots when they drove down Dibert Avenue. Kaboos then covered her
ears, closed her eyes, and ducked down in the backseat. She felt the car speed up
and turn around but that was the last thing she remembered.




                                         41
                            SUPREME COURT OF OHIO




       {¶ 154} Shanta Chilton testified that when the car returned, she saw a
“white guy,” who was driving, look at her and start shooting. Williams testified
that he was on the street by his car. He saw a person, whom he later identified as
Wade, shooting at the house, but he did not see anyone else in the car.
       {¶ 155} Dean argues that Kaboos lacked credibility because she changed
her story to the police and because her testimony that she did not recall the second
round of gunshots was not believable. However, the weight to be given evidence
and the credibility of witnesses are primarily jury issues. See, e.g., State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79; State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
       {¶ 156} Other evidence showed Dean’s involvement in these offenses.
Manns testified that Dean said that he “shot at people coming out of the house; and
one of them was holding a baby in his arms that he almost shot because the bullet
actually went through his shirt sleeve.” Testimony showed that a Riviera, like the
car Dean owned, was the car used in the drive-by shooting. The police also
recovered a .25-caliber bullet that hit Williams’s car and a .40-caliber bullet from
Williams’s house. This ammunition was of the same caliber gun that Dean had at
the Mini Mart and that Wade had when Arnold was murdered.
       {¶ 157} Investigators testified that four bullets struck the front porch area
where the four people were standing during the drive-by shooting. Two of the
bullets were recovered. Shepherd testified that a bullet recovered from a front
porch pillar was “probably” a .40-caliber Smith and Wesson bullet. In addition, a
spent bullet found inside the house was identified as a .40-caliber Smith and
Wesson bullet. Based on the foregoing, we hold that there was sufficient evidence
to support Dean’s convictions for the four attempted murders and the offense of
discharging a firearm into the home at 609 Dibert.
       {¶ 158} As for discharging a firearm into 604 Dibert, Dean argues that even
assuming that he was in the car with Wade, there is no evidence that he intended to




                                        42
                                 January Term, 2015




fire shots into Byrd’s home. Dean argues that the first round of firing was aimed
at Williams’s car and not the house.
       {¶ 159} Dean was convicted of a violation of R.C. 2923.161(A), which
provides: “No person, without privilege to do so, shall knowingly * * * (1)
[d]ischarge a firearm at or into an occupied structure that is a permanent or
temporary habitation of any individual.” “Knowingly” was defined in former R.C.
2901.22(B), Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1898, as follows:
“A person acts knowingly, regardless of his purpose, when he is aware that his
conduct will probably cause a certain result or will probably be of a certain nature.
A person has knowledge of circumstances when he is aware that such
circumstances probably exist.”
       {¶ 160} Williams’s car was parked in front of 604 Dibert during the drive-
by shooting. Evidence established that several shots were fired at the vehicle where
it was parked and that two bullets entered the living-room area of the house. Under
these circumstances, the jury could reasonably conclude that Dean was aware he
would probably hit the house behind the car if his shots ricocheted off the vehicle
or missed the vehicle. Accordingly, we hold that there was sufficient evidence to
establish Dean’s guilt for discharging a firearm into the home at 604 Dibert.
       {¶ 161} In his argument that the convictions were not supported by the
manifest weight of the evidence, Dean continues to argue that there is no credible
evidence upon which the jury could have determined that he was in the car or that
he was involved in the drive-by shootings. Dean’s challenge to Kaboos’s testimony
is not convincing. This is not “ ‘the exceptional case in which the evidence weighs
heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Dean fails to
mention Manns’s testimony that Dean himself claimed that he was involved as well
as circumstantial evidence showing his involvement in the drive-by shootings.
Given the strength of the direct and circumstantial evidence, we conclude that the




                                         43
                             SUPREME COURT OF OHIO




jury neither lost its way nor created a miscarriage of justice in convicting Dean of
discharging a firearm into an occupied structure as charged in Counts Five through
Ten and of attempted murder as charged in Counts Seven through Ten.
                b. Arnold’s murder by prior calculation and design
       {¶ 162} Dean argues that there insufficient evidence to show that he had
prior calculation and design to kill Arnold. On the evening of April 13, Dean and
Wade told Kaboos that they were going to the Nite Owl Tavern to rob someone.
Around 11:45 p.m., a surveillance camera in the tavern showed Dean and Wade
entering the building and leaving a short time later. Shortly after, Haile saw a tall
man and a shorter man chasing a man down High Street. Haile saw “blue flashes,”
heard gunshots, and saw the man who was being chased fall down. She then saw
two men hover over the body, run back to their car, and drive away.
       {¶ 163} On the same evening, Nawman and Panstingel, who lived at the
corner of High and Race Street, heard a shot outside their home. Nawman testified
that she saw a shorter man standing over a person on the ground. She then saw him
running down High Street toward a car. It appeared someone was already in the
car because she saw that the brake lights were on. Panstingel provided similar
testimony.
       {¶ 164} Around the same time, Terri and Kari Epperson were at their
mother’s home on West High Street. Terri looked out an upstairs window and saw
a man running down the street with two men chasing him. Terri went outside and
saw a person get out of the driver’s side of a car, run down the street, and shoot
twice at a man who was running. The shooter returned to the car and drove away.
Terri recognized the shooter as her cousin, Wade. Kari provided similar testimony.
She saw a man running down High Street and fire a gun twice. Kari also recognized
Wade as the shooter, but she did not see anyone else with him.
       {¶ 165} Investigators recovered .40-caliber shell casings and an unspent
.25-caliber bullet at the crime scene. Police later seized a .40-caliber handgun from




                                         44
                                January Term, 2015




Dean’s residence. Expert testimony established that the .40-caliber shell casings
found at the scene were fired from the handgun seized at Dean’s house.
       {¶ 166} Dean told several people about Arnold’s murder. He told Kaboos
that he and Wade were driving down the street and saw an individual walking by
himself. He and Wade stopped the car, pulled out their guns, and ordered Arnold
to lie on the ground. Arnold started to run, and Dean tried to shoot him, but his gun
was on safety. Wade then shot Arnold, and he and Dean stole six dollars from him.
Bowshier testified that Dean said he and Wade “had smoked somebody and robbed
them” and that Dean said he had tackled Arnold, but “his gun didn’t go off; and
then the kid Josh shot him.” Sions heard Dean say that Arnold’s murder was a case
of mistaken identity and that they had intended to shoot O-Z rather than Arnold.
Dean also told Manns about the murder and provided a description of the events
that was similar to what he told Kaboos.
       {¶ 167} No bright-line test exists that “emphatically distinguishes between
the presence or absence of ‘prior calculation and design.’ ” State v. Taylor, 78 Ohio
St.3d 15, 20, 676 N.E.2d 82 (1997). Instead, a case-by-case method must be
employed in reviewing the evidence. State v. Goodwin, 84 Ohio St.3d 331, 344,
703 N.E.2d 1251 (1999). Dean gave different accounts of his motives that night,
telling Kaboos that he planned to rob someone. Sions testified that Dean and Wade
had it out for O-Z and that it was supposed to be O-Z, not Arnold, who was shot.
       {¶ 168} Dean and Wade confronted Arnold as he was walking on High
Street. Dean attempted to shoot Arnold when he tried to run away during the
robbery. Even though Wade was the shooter, Dean was in control of the night’s
events. Dean was 30 years old and Wade was 16. Wade was driving Dean’s car
and Dean’s gun was the murder weapon. It is readily apparent from these facts that
sufficient time, reflection, and acts were involved to establish that Dean acted with
prior calculation and design.




                                         45
                             SUPREME COURT OF OHIO




       {¶ 169} Dean argues that the state’s evidence was based on his admissions
to three discredited witnesses who were not at the scene. He contends that their
testimony was contradicted by the Epperson sisters, who saw Wade fire the shots
and did not see another person with him. But Dean overlooks the testimony of
Haile, who was at the scene and saw both a tall man and a shorter man chasing the
victim. Dean also fails to mention that Sions testified that she heard Dean and
Wade talking about the murder. Furthermore, the credibility of the state’s witnesses
is a jury issue and not a proper matter on review of sufficiency of the evidence. See
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 79. Thus,
we reject Dean’s claims.
       {¶ 170} Dean also argued that the finding that he acted with prior
calculation and design was not supported by the manifest weight of the evidence.
Again, this is not an “ ‘exceptional case in which the evidence weighs heavily
against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The evidence of guilt
was overwhelming. The jury neither lost its way nor created a miscarriage of justice
in convicting Dean of Arnold’s murder.
c. Attempted aggravated robbery and attempted murder of Lyles at the Mini Mart
       {¶ 171} During the early morning of April 10, 2005, Lyles drove Piersoll to
the Mini Mart. Lyles testified that Dean approached the car parked outside the Mini
Mart and tried to sell them some pills while she was giving money to Piersoll to go
in the store. Lyles refused. Piersoll testified that he first saw Dean inside the Mini
Mart and that Dean followed him to the car. Dean then tried to sell him some
Valiums, but Piersoll told him no. Lyles testified that Dean then walked over to
the Riviera where a younger boy was waiting and they drove away.
       {¶ 172} According to Piersoll, he and Lyles remained at the Mini Mart for
another five or ten minutes. Neil Scott, an acquaintance of Piersoll’s, came to
Piersoll’s side of the car and started talking with them. Lyles testified that Dean




                                         46
                                January Term, 2015




then came around the corner of the Mini Mart toward her side of the car. Dean
yelled, “Give me your money,” and started shooting. Glass started flying, and
Piersoll said he had been hit. Lyles said she “froze for a second” and then backed
up and drove to the hospital. Lyles had scratches on her face as if she had been
“grazed.”
       {¶ 173} Piersoll testified that he heard Lyles say, “Oh shit,” and then Dean
ran towards the car and started shooting. Piersoll said that Dean did not say
anything to them before he started firing the gun. Piersoll was shot in the arm.
Piersoll told Lyles, “I’m hit,” and she drove to the hospital.
                    (1) Attempted aggravated robbery of Lyles
       {¶ 174} Dean argues that the only evidence of attempted theft was provided
by Lyles and that Piersoll contradicted Lyles’s assertion that Dean demanded
money before he started firing shots. Dean also argues that Lyles’s belief that he
tried to rob her defies logic, because there was no reason for him to demand money
and then immediately start shooting at the car.
       {¶ 175} Although theft requires that the accused actually obtain or exert
control over the property, attempted theft has no such requirement.             R.C.
2923.02(A) defines attempt as “conduct that, if successful, would constitute or
result in the offense.” “Criminal attempt” has been defined as “ ‘an act or omission
constituting a substantial step in a course of conduct planned to culminate in [the
actor’s] commission of the crime.’ ” (Brackets sic.) State v. Group, 98 Ohio St.3d
248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 101, quoting State v. Woods, 48 Ohio
St.2d 127, 357 N.E.2d 1059 (1976), paragraph one of the syllabus, judgment
vacated on other grounds, 438 U.S. 910, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978).
“A ‘substantial step’ requires conduct that is ‘strongly corroborative of the actor’s
criminal purpose.’ ” Id., quoting Woods at paragraph one of the syllabus.
       {¶ 176} Dean’s demand for money and his firing shots at the car meets the
“substantial step” criterion in the attempted robbery of Lyles. Dean’s claim that




                                          47
                               SUPREME COURT OF OHIO




Lyle’s testimony was contradicted by Piersoll merely placed the credibility of the
witnesses in issue. But the weight and credibility of the testimony are jury issues.
See Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 79. The
jury viewed the demeanor of Lyles and Piersoll and heard their testimony, inclusive
of any contradictions or inconsistencies.
        {¶ 177} We hold that the testimony of Lyles was sufficient to find Dean
guilty of attempted aggravated robbery. See State v. Dawson, 5th Dist. Licking No.
2008-CA-122, 2009-Ohio-2331, ¶ 33 (the testimony of one witness, although it
may be contradicted by another, is sufficient to prove a fact if the trier of fact finds
that witness more credible).
                           (2) Attempted murder of Lyles
        {¶ 178} Dean argues that there was insufficient evidence that he intended
to kill Lyles, because the evidence—shots that were aimed at the passenger seat
and the angle of the shots fired—shows that the shooter was trying to kill Piersoll.
But the evidence shows Dean knew that Lyles had money when he tried to sell her
pills earlier. He approached the driver’s side of the car and yelled, “Give me your
money.” He started shooting and three bullets hit the windshield on the driver’s
side of the car.
        {¶ 179} The jury could reasonably conclude that Dean’s demand for money
when he started shooting at the car showed that he was targeting Lyles.
        {¶ 180} The defense also argues that Dean’s failure to shoot at Scott,
Piersoll’s acquaintance, shows that the shooter was targeting Piersoll.            This
argument also lacks merit. Piersoll testified that when Dean started shooting, “Neil
kind of fake threw something at him, I guess, and he ran. That was it.” Dean argues
that it is significant that Dean did not shoot at Scott when Scott was the only person
that offered any resistance. But this fails to explain how Dean’s failure to shoot at
Scott shows that he was not trying to kill Lyles.




                                            48
                               January Term, 2015




       {¶ 181} We hold that there is sufficient evidence to support Dean’s
conviction for the attempted murder of Lyles.
                        d. Course-of-conduct specifications
       {¶ 182} Dean argues that there is insufficient evidence to support his
convictions for the course-of-conduct specification, R.C. 2929.04(A)(5), because
the underlying offenses were not related. However, this claim also lacks merit.
       {¶ 183} In State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d
1239, we held:


                 The statutory phrase “course of conduct” found in R.C.
       2929.04(A)(5) requires that the state establish some factual link
       between the aggravated murder with which the defendant is charged
       and the other murders or attempted murders that are alleged to make
       up the course of conduct.      In order to find that two offenses
       constitute a single course of conduct under R.C. 2929.04(A)(5), the
       trier of fact “must * * * discern some connection, common scheme,
       or some pattern or psychological thread that ties [the offenses]
       together.”


(Ellipsis sic.) Id. at syllabus, quoting State v. Cummings, 332 N.C. 487, 510, 422
S.E.2d 692 (1992). Sapp further held that the “factual link might be one of time,
location, murder weapon, or cause of death. * * * It might involve a similar
motivation on the killer’s part for his crimes, a common getaway car, or a similar
pattern of secondary crimes (such as rape) involving each victim.” Id. at ¶ 52.
       {¶ 184} Dean’s offenses were part of a crime spree that occurred over a
four-day period. The offenses all occurred in or around Springfield and involved
the same caliber of handguns. Evidence, including Kaboos’s statement that Dean
drove the Riviera and another witness’s testimony that the distinctive sound of the




                                        49
                             SUPREME COURT OF OHIO




car present at the Nite Owl Tavern at the time of the shootings matched a recording
of the sound of Dean’s Riviera, also indicated that the offenses involved the same
car. The state also argues that the crimes involved the same motive. Similar motive
is not required to establish a factual link. But evidence showed that robbery was a
motivating factor for the Mini Mart offenses and Arnold’s murder. Thus, the facts
establish that the murder of Arnold and the attempted murder of the other victims
were linked by time, location, and the caliber of weapons used. Id.
       {¶ 185} Dean continues to argue that no credible evidence supports his
conviction for Arnold’s murder or the drive-by shootings on Dibert Avenue. But
as discussed earlier, Dean’s challenge to the sufficiency of the evidence for these
offenses lacks merit. Dean also argues that he cannot be found guilty of the R.C.
2929.04(A)(5) course-of-conduct specifications, because he was not the principal
offender—i.e., the actual killer—of Arnold. However, we have previously rejected
that argument. See State v. Herring, 94 Ohio St.3d 246, 252, 762 N.E.2d 940 (2002)
(“R.C. 2929.04(A)(5) contains neither an express requirement of prior calculation
and design nor an express requirement that the offender be the actual killer”).
       {¶ 186} Based on the foregoing, we overrule Proposition of Law II.
                              B. Penalty-phase issues
1. Reintroduction of trial-phase evidence (Proposition of Law XIV)
       {¶ 187} Dean argues that the trial court erred by admitting trial-phase
evidence during the penalty phase. Over objection, the trial court allowed the state
to reintroduce a number of trial-phase exhibits during the penalty phase. The court
also upheld objections to several of the state’s exhibits. The trial court also ruled
that it was admitting those exhibits that it believed “bears directly upon the weight
to be given” to the course-of-conduct aggravating circumstance, R.C.
2929.04(A)(5).
       {¶ 188} Dean asserts that the trial court erred in admitting the lineup photos
from the Mini Mart shooting, the bullets and handgun related to Arnold’s murder,




                                         50
                                January Term, 2015




photographs from the Mini Mart and the drive-by shootings and a poster board from
the drive-by shooting, Byrd’s 9-1-1 tapes, and excerpts from two letters that Dean
wrote to Sions. Dean asserts that none of this evidence was relevant to the
aggravating circumstance.


               R.C. 2929.03(D)(1) provides that at the penalty stage of a
       capital proceeding, the court and jury shall consider “any evidence
       raised at trial that is relevant to the aggravating circumstances the
       offender was found guilty of committing * * * [and] hear testimony
       and other evidence that is relevant to the nature and circumstances
       of the aggravating circumstances the offender was found guilty of
       committing.”


(Ellipsis and brackets sic.) State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019,
9 N.E.3d 930, ¶ 240.
       {¶ 189} The trial court identified and readmitted only that evidence that it
deemed relevant to the aggravating circumstance and excluded other evidence that
the state sought to readmit. See Lindsey, 87 Ohio St.3d at 485, 721 N.E.2d 995 (it
is a trial court’s responsibility to identify and admit only that evidence relevant to
the penalty phase). The trial court did not abuse its discretion in readmitting the
state’s evidence, because all the readmitted evidence bore some relevance to the
nature and circumstances surrounding the R.C. 2929.04(A)(5) specification.
       {¶ 190} Based on the foregoing, Proposition of Law XIV is rejected.
2. Instructions on the definition of mitigating factors (Proposition of Law VIII)
       {¶ 191} Dean argues that the trial court provided the jury with the wrong
definition of mitigating factors. Dean failed to object to these instructions at trial
and thus waived all but plain error. See State v. Underwood, 3 Ohio St.3d 12, 444
N.E.2d 1332 (1983), syllabus (“The failure to object to a jury instruction constitutes




                                         51
                                SUPREME COURT OF OHIO




a waiver of any claim of error * * * unless, but for the error, the outcome of the trial
clearly would have been otherwise”). Dean argues that his trial counsel’s failure to
object to these instructions constituted ineffective assistance of counsel. Dean also
argues that the trial court applied the same erroneous definition of mitigating factors
in its sentencing opinion. See R.C. 2929.03(F) (the trial court, when imposing a
sentence of death, shall state in a separate opinion its findings as to the existence of
any mitigating factors).
           {¶ 192} The trial court provided preliminary instructions to the jury prior to
the start of the penalty phase, including the following definition of mitigating
factors:


           Mitigating factors are factors that while they do not justify or excuse
           the crime of aggravated murder, nevertheless in fairness, must be
           considered by you as they call for a penalty less than death.
                  Mitigating factors are also factors of an individual or an
           offense that weigh in favor of a decision that a life sentence is the
           appropriate sentence.


(Emphasis added.)
           {¶ 193} The trial court provided final penalty-phase instructions to the jury,
including the following definition of mitigating factors:


                  Mitigating factors are factors about an individual or an
           offense that weigh in favor of a decision that a life sentence rather
           than a death sentence is appropriate.
                  Mitigating    factors    are     factors   that   diminish   the
           appropriateness of a death sentence. Mitigating factors neither
           excuse nor justify the aggravated murder. Rather, mitigating factors




                                             52
                               January Term, 2015




       are those things which, in fairness, weigh against sentencing the
       Defendant to death.


(Emphasis added.)
       {¶ 194} Pursuant to R.C. 2929.03(F), the trial court stated in the sentencing
opinion why the aggravating circumstance that Dean was found guilty of
committing was sufficient to outweigh the mitigating factors. The trial court’s
opinion defined mitigating factors as follows:


       Mitigating factors are those factors about Jason Dean or the offense
       that he committed that weigh in favor of a life sentence rather than
       a death sentence. Mitigating factors are not factors that justify or
       excuse the offense, but they are the factors, that in fairness, weigh
       against the imposition of the death penalty.


(Emphasis added.)
       {¶ 195} Dean invokes State v. Holloway, 38 Ohio St.3d 239, 527 N.E.2d
831 (1988), paragraph one of the syllabus, in arguing that the trial court
misconstrued the definition of mitigating factors by adding language that mitigating
factors neither excused nor justified the offenses. In Holloway, the trial court’s
sentencing opinion stated that “ ‘a mitigating factor is a circumstance or fact that
would tend in some way to reduce the defendant’s culpability for the offense he
committed.’ ” Id. at 242. Holloway held that that the trial court applied a faulty
definition of mitigating factors, because mitigation is not about blame or
culpability, but rather about punishment. Id. at syllabus. In a later decision, we
held that an instruction on mitigating factors that included the words “lessening,”
“weakening,” or “excusing” strayed from the definition approved in Holloway. See
State v. Getsy, 84 Ohio St.3d 180, 201, 702 N.E.2d 866 (1998).




                                        53
                             SUPREME COURT OF OHIO




       {¶ 196} Nothing in the trial court’s instructions defined mitigation in terms
of blame or culpability. Rather, the trial court emphasized the opposite in informing
the jurors that mitigating factors “neither excuse nor justify the aggravated murder.”
Moreover, “ ‘[a] single instruction to a jury may not be judged in artificial isolation
but must be viewed in the context of the overall charge.’ ” State v. Jalowiec, 91
Ohio St.3d 220, 231, 744 N.E.2d 163 (2001), quoting State v. Price, 60 Ohio St.2d
136, 398 N.E.2d 772 (1979), paragraph four of the syllabus. When viewed in this
context, it is clear that the trial court’s instructions were not misleading and that
they adequately conveyed to the jury that mitigating factors were about punishment,
not culpability.
       {¶ 197} We hold that the trial court did not commit plain error when it
instructed the jurors on the definition of mitigating factors. Moreover, defense
counsel were not deficient in failing to object to these instructions, because they
were not faulty. Finally, the trial court’s definition of mitigating factors in its
sentencing opinion was not improper. Proposition of Law VIII is overruled.
3. Merger (Proposition of Law XII)
       {¶ 198} Dean argues that the trial court erred by failing to merge several
noncapital convictions and the firearm specifications during sentencing.
       {¶ 199} However, defense counsel’s failure to raise the issue of the merger
of these offenses and the firearm specifications at trial and thus forfeited all but
plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, _N.E.3d_, ¶ 21.
  a. Merger of offense of discharging a firearm into the habitation at 609 Dibert
                    Avenue with the attempted-murder offenses
       {¶ 200} Dean argues that the trial court erred in convicting and sentencing
him for improperly discharging a firearm into 609 Dibert Avenue (Count Five),
because that offense and the attempted-murder offenses (Counts Seven through
Ten) are allied offenses that resulted from a single act and a single animus.




                                          54
                               January Term, 2015




       {¶ 201} Dean was sentenced to eight years’ imprisonment for discharging
a firearm into an occupied structure as charged in Count Five and ten years’
imprisonment for each of the four counts of attempted murder charged in Counts
Seven through Ten. The trial court also ordered that these sentences be served
“consecutively to one [another].”
       {¶ 202} “[T]he primary legislative statement on the multiplicity issue is
found in R.C. 2941.25, concerning allied offenses of similar import.” State v.
Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000). R.C. 2941.25(A) provides:
“Where the same conduct by defendant can be construed to constitute two or more
allied offenses of similar import, the indictment or information may contain counts
for all such offenses, but the defendant may be convicted of only one.”
       {¶ 203} The lead opinion in State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061, stated that R.C. 2941.25(A) requires the sentencing
court to first determine “whether it is possible to commit one offense and commit
the other with the same conduct.” (Emphasis sic.) Id. at ¶ 48. If the defendant’s
conduct constituting commission of one offense constitutes commission of the
other, then the offenses are of similar import. Id. The court must then determine
whether the offenses were committed by the same conduct, i.e., “a single act,
committed with a single state of mind.” Id. at ¶ 49, quoting State v. Brown, 119
Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,
dissenting). If the answer to both questions is yes, then the offenses are allied
offenses of similar import that must be merged, and the defendant can be punished
for only one. Id. at ¶ 50.
       {¶ 204} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d
892, we recently held that Johnson was “incomplete because R.C. 2941.25(B)
provides that when a defendant’s conduct constitutes two or more offenses of
dissimilar import, the defendant may be convicted of all of the offenses.”
(Emphasis sic.) Id. at ¶ 16. Ruff concluded that “two or more offenses of dissimilar




                                        55
                             SUPREME COURT OF OHIO




import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct
constitutes offenses involving separate victims or if the harm that results from each
offense is separate and identifiable.” (Emphasis added.) Id. at ¶ 23. Accordingly,
we held:


       If any of the following is true, the offenses cannot merge and the
       defendant may be convicted and sentenced for multiple offenses: (1)
       the offenses are dissimilar in import or significance—in other
       words, each offense caused separate, identifiable harm, (2) the
       offenses were committed separately, and (3) the offenses were
       committed with separate animus or motivation.


(Emphasis added.) Id. at ¶ 25. Moreover, “a defendant’s conduct that constitutes
two or more offense against a single victim can support multiple convictions if the
harm that results from each offense is separate and identifiable from the harm of
the other offense.” Id. at ¶ 26.
       {¶ 205} The evidence at trial showed that seven people were inside 609
Dibert Avenue when gunfire erupted outside. Devon Williams went outside and
Shanta Chilton followed him. Hassan Chilton, Shani Applin, and JaeAda Applin
went out to the front porch, while Shanta’s two young children remained inside.
While Williams and Shanta were examining Williams’s car, Shanta noticed that a
car was coming down the street, and she ran toward the house. The car then pulled
in front of the house and shots were fired at people on the porch. Manns testified
that Dean told him that he had “shot at people coming out of the house; and one of
them was holding a baby in his arms that he almost shot because the bullet actually
went through his shirt sleeve.” Manns also testified that Dean was paid to conduct
the drive-by shooting.




                                         56
                                  January Term, 2015




        {¶ 206} Here, the offenses of attempted murder and discharging a firearm
into a habitation caused a “separate, identifiable harm.”         While the drive-by
shooting was directed at the people on the porch, the shots fired endangered those
inside the house and thereby created harm distinct from the harm to the attempted-
murder victims. Thus, we hold that no plain error was committed by not merging
these offenses.
                        b. Merger of the firearm specifications
        {¶ 207} Dean argues that the trial court erred by failing to merge all the
firearm specifications into a single three-year term of imprisonment. He claims
that the firearm specifications occurred during a course of conduct and should have
been merged as required by the statute in effect at the time of the offenses, former
R.C. 2929.14(D)(1), Am.Sub.H.B. No. 163, 150 Ohio Laws, Part III, 4620, 4661-
4663.
        {¶ 208} The trial court sentenced Dean to three years on each of the firearm
specifications and imposed three consecutive terms of imprisonment. The court
stated that “the firearm specifications on Count One, Two, and Three merge [the
Mini Mart offenses]; that the firearm specifications on Counts Five, Six, Seven,
Eight, Nine and Ten merge [the drive-by shooting offenses]; and that the firearm
specifications on Counts Twelve, Thirteen, and Fourteen merge [the aggravated
murder and robbery] for the purposes of sentencing.”
        {¶ 209} Former R.C. 2929.14, 150 Ohio Laws, Part III, at 4661, stated:


                  (D)(1)(a) Except as provided in division (D)(1)(e) of this
        section, if an offender who is convicted of or pleads guilty to a
        felony also is convicted of or pleads guilty to a specification of the
        type described in section 2941.141, 2941.144, or 2941.145 of the
        Revised Code, the court shall impose on the offender one of the
        following prison terms:




                                          57
                             SUPREME COURT OF OHIO




               ***
               (ii) A prison term of three years if the specification is of the
       type described in section 2941.145 of the Revised Code that charges
       the offender with having a firearm on or about the offender’s person
       or under the offender’s control while committing the offense and
       displaying the firearm, brandishing the firearm, indicating that the
       offender possessed the firearm, or using it to facilitate the offense.
               ***
               (b) If a court imposes a prison term on an offender under
       division (D)(1)(a) of this section, the prison term shall not be
       reduced pursuant to section 2929.20, section 2967.193, or any other
       provision of Chapter 2967. or Chapter 5120. of the Revised Code.
       A court shall not impose more than one prison term on an offender
       under division (D)(1)(a) of this section for felonies committed as
       part of the same act or transaction.


(Emphasis added.)
       {¶ 210} Dean was found guilty of the R.C. 2929.04(A)(5) “course of
conduct” specification for committing the Mini Mart offenses, the drive-by
shooting, and the Arnold murder.           Thus, Dean argues that under R.C.
2929.14(D)(1)(b), the firearm specifications accompanying these offenses should
have merged into one three-year term of imprisonment, because they were part of
the “same act or transaction.”
       {¶ 211} In State v. Wills, 69 Ohio St.3d 690, 635 N.E.2d 370 (1994), we
defined the word “transaction” as it was used in a previous firearm-enhancement
statute, R.C. 2929.71(B), Am.Sub.S.B. No. 258, 143 Ohio Laws, Part I, 1307, 1143.
The same term now appears in the last sentence of R.C. 2929.14(D)(1)(b). Wills
defined “transaction” as “ ‘ “a series of continuous acts bound together by time,




                                         58
                                January Term, 2015




space and purpose, and directed toward a single objective.” ’ ” Id. at 691, quoting
State v. Caldwell, 9th Dist. Summit No. 14720, 1991 WL 259529, at *12 (Dec. 4,
1991), quoting State v. Hague, 9th Summit No. 13859, 1989 WL 50683, *1 (May
10, 1989).
        {¶ 212} In Wills, the defendant stole a coat from a student at a bus stop and
then crossed the street and stole a coat from a different student. Id. at 690. Based
upon these facts, Wills was convicted and sentenced on two counts of aggravated
robbery and two separate firearm specifications. Id. Finding that the firearm
specifications did not merge as part of the “same act or transaction,” Wills
explained:


               By applying this standard to the present case, we conclude
        that the armed thefts * * * were not part of a series of continuous
        acts. Wills and his cohorts singled out Stone first, surrounded him,
        pulled out a gun and then under threat of force robbed him. After
        completing this task they then targeted Thomas, surrounded him,
        beat him, pulled out a gun, and then robbed him. Wills should serve
        no less time because of the coincidental proximity of his two
        victims.


Id. at 691.
        {¶ 213} In State v. Keene, 2d Dist. Montgomery No. 14375, 1996 WL
531606 (Sept. 20, 1996), the court addressed similar arguments to those made here.
In Keene, the defendant was found guilty of five R.C. 2929.04(A)(5) course-of-
conduct specifications. The trial court also sentenced the defendant on five separate
firearm specifications, finding that none of them were part of the “same act or
transaction.” Id. at *18. Keene argued that by successfully claiming that the five
homicides were not part of the “same act or transaction,” the state admitted that the




                                         59
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homicides were not part of “one course of conduct,” thereby precluding the court
from finding him guilty of the R.C. 2929.04(A)(5) specifications. Id. In rejecting
these arguments, the court of appeals held that “ ‘same action or transaction’
connotes criminal activities more closely related than actions sufficient to constitute
a ‘course of conduct.’ ” Id. at *19. The court noted that these “murders occurred
over a sixty-hour time span. Under these circumstances, we find no error or
inconsistency in the trial court failing to merge Keene’s firearm specifications while
finding him guilty on five ‘course of conduct’ capital-murder specifications.” Id.
         {¶ 214} The Mini Mart offenses, the drive-by shootings, and Arnold’s
murder occurred on different days and at different locations and involved separate
victims. Thus, these events were not part of “the same act or transaction” for
purposes of R.C. 2929.14(D)(1)(b), and the court committed neither error nor plain
error in failing to merge the firearm specifications into a single specification.
                  c. Merger of the weapons-under-disability counts
         {¶ 215} Dean argues that the trial court erred by failing to merge the four
counts of having a weapon under a disability and that he should have been
sentenced on only one of these counts, because his possession of firearms was part
of a continuous course of conduct.
         {¶ 216} Counts Four, Eleven, Fifteen, and Sixteen charged Dean with
having a weapon under a disability. Three of these offenses (Counts Four, Eleven,
and Fifteen) coincided with the dates of the theft, the drive-by shootings, and the
murder. The evidence showed that Dean possessed a gun on these occasions. The
date of the fourth offense (Count Sixteen) occurred on the date of Dean’s arrest
when the .40-caliber handgun was found in his home. These counts were tried by
the court after Dean waived a jury as to these offenses, and he was found guilty as
to each count. Dean was sentenced to consecutive terms of five years for each
count.




                                          60
                                January Term, 2015




       {¶ 217} Dean possessed a handgun on four separate occasions at different
times and locations. Each offense occurred with a separate animus, meaning a
separate purpose or intent. Thus, the “same conduct” did not result in multiple
convictions, and no plain error occurred in failing to merge these offenses. See
State v. Hairston, 10th Dist. Franklin No. 06AP-420, 2007-Ohio-143, ¶ 32; State v.
Land, 8th Dist. Cuyahoga App. Nos. 70875 and 70876, 1997 WL 607540 (Oct. 2,
1997), *4.
        d. Weapons-under-a-disability charges and firearm specifications
       {¶ 218} As a final matter, Dean argues that a charge of having a weapon
while under a disability is an allied offense of similar import with a firearm
specification. The weapons-under-a-disability counts did not include a firearm
specification. Yet Dean argues that the firearm specifications that accompanied
other counts should have merged with the weapons-under-a-disability counts.
       {¶ 219} R.C. 2941.25 addresses the merger of two or more offenses. Dean
cannot rely on it to argue that the sentences imposed for the firearm specifications,
which are sentence enhancements, must merge with the weapons-under-a disability
counts. See State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498,
¶ 16-19 (the offense of discharging a firearm into a habitation and a firearm
specification are not allied offenses of similar import); State v. Cannon, 8th Dist.
Cuyahoga No. 100658, 2014-Ohio-4801, ¶ 58 (having a weapon under a disability
not an allied offense of similar import to a firearm specification). This claim also
lacks merit.
       {¶ 220} Based on the foregoing, we reject Proposition of Law XII.
4. Trial court’s statements (Proposition of Law XIII)
       {¶ 221} Dean argues that the trial judge made two sets of statements
indicating that he had predetermined the sentence and had an animus against the
defendant that denied him due process and a fair trial.




                                         61
                             SUPREME COURT OF OHIO




       {¶ 222} First, Dean complains about the trial judge’s comments that were
directed to him after the jury returned its penalty-phase recommendation of death:
“Mr. Dean, you are notified * * * that an automatic appeal will be filed for you
directly at the Supreme Court of Ohio after the death sentence is imposed and that
you have the right to appeal without prepayment of any costs necessary for appeal.”
(Emphasis added.) According to Dean, this statement shows that the trial judge had
already decided on a death sentence before engaging in the weighing process
required under R.C. 2929.03(D)(3).
       {¶ 223} Defense counsel did not object to these comments or ask the judge
to recuse himself, or raise the issue of the judge’s alleged bias before the chief
justice pursuant to R.C. 2701.03, which establishes procedures for filing an
affidavit of disqualification against a common pleas judge. Ohio Constitution,
Article IV, Section 5(C) provides: “The chief justice of the supreme court or any
judge of that court designated by him shall pass upon the disqualification of any
judge of the courts of appeals or courts of common pleas or division thereof.” This
provision vests exclusive authority in the chief justice or her designee to pass on
disqualification matters. See Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377
N.E.2d 775 (1978). Having failed to bring his bias claim in an affidavit for
disqualification under R.C. 2701.03, Dean is “ ‘foreclosed from bringing such a
complaint,’ ” on this appeal. State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966,
16 N.E.3d 588, ¶ 65, quoting State v. Moore, 93 Ohio St.3d 649, 650, 758 N.E.2d
1130 (2001).
       {¶ 224} Not only has Dean waived this argument, the argument itself lacks
merit. The judge apparently misspoke when making his comments after the jury
returned its recommendation on the death penalty. But “ ‘[i]solated remarks made
by a judge near the end of a three-or four-week trial are not sufficient to prove that
the judge is biased or prejudiced.’ ” Hale, 119 Ohio St.3d 118, 2008-Ohio-3426,
892 N.E.2d 864, at ¶ 144, quoting In re Disqualification of Ambrose, 110 Ohio




                                         62
                               January Term, 2015




St.3d 1220, 2005-Ohio-7154, 850 N.E.2d 722, ¶ 5. Moreover, neither the defense
nor the state brought the comment to the judge’s attention.
       {¶ 225} Dean’s claims are also belied by the trial court’s sentencing
opinion. The trial court’s lengthy opinion shows that the judge carefully considered
all the evidence, the arguments of counsel, and the applicable law before finding
that the aggravating circumstance outweighed the mitigating circumstances beyond
a reasonable doubt. See R.C. 2929.03(F). Thus, the judge’s comment does not
show that Dean was denied due process and a fair trial.
       {¶ 226} Second, Dean argues that the trial judge demonstrated bias in
making the following comments after pronouncing the death sentence:


               Mr. Dean, it may sound ridiculous to you that I have
       sentenced you to death plus an additional 125 years of
       imprisonment. However, as difficult and as painful as it is for me to
       impose the death sentence upon you, I know that a lot of things can
       happen to that sentence prior to its imposition. Therefore, I want to
       make sure that you understand that it is my fervent hope that you
       never walk the streets again as a free man.


       {¶ 227} It was not improper for the judge, in explaining his sentence, to
make critical statements to Dean about his conduct based on evidence presented in
court. See In re Disqualification of Huffman, 135 Ohio St.3d 1296, 2013-Ohio-
1615, 987 N.E.2d 689, ¶ 6. As the United States Supreme Court explained:


       The judge who presides at trial may, upon completion of the
       evidence, be exceedingly ill disposed towards the defendant, who
       has been shown to be a thoroughly reprehensible person. But the
       judge is not thereby recusable for bias or prejudice, since his




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          knowledge and the opinion it produced were properly and
          necessarily acquired in the course of the proceedings, and are indeed
          sometimes (as in a bench trial) necessary to completion of the
          judge’s task.


Liteky v. United States, 510 U.S. 540, 550-551, 114 S.Ct. 1147, 127 L.Ed.2d 474
(1994).
          {¶ 228} The trial court’s statements were founded on facts taken from the
record and not an extrajudicial source. And although the statements reflect the
judge’s opinions about Dean’s conduct, they do not indicate that the judge
possessed a “deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id. at 555. Thus, we hold that the judge’s comments did not exhibit
a bias that deprived Dean of due process or a fair trial.
          {¶ 229} Based on the foregoing, Proposition of Law XIII is overruled.
                              C. Imposition of court costs
          {¶ 230} In Proposition of Law VII, Dean argues that the trial court imposed
court costs on him without considering his ability to pay those costs. Without
objection, the trial court imposed court costs on Dean at the conclusion of the trial.
          {¶ 231} We have held that R.C. 2947.23 requires a trial court to assess costs
against all criminal defendants, even if the defendant is indigent. State v. White,
103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. A trial court may waive
the payment of costs imposed if the trial court finds that the defendant is indigent.
Id. at ¶ 14. But “[a] motion by an indigent defendant for waiver of the payment of
costs must be made at the time of sentencing.” State v. Threatt, 108 Ohio St.3d
277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of the syllabus. Otherwise,
the issue is waived and costs are res judicata. Id. at ¶ 23. Accordingly, the trial
court was not required to consider Dean’s ability to pay before ordering him to pay




                                           64
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court costs. Defense counsel’s failure to object at the time the court imposed costs
constitutes waiver.
        {¶ 232} In the alternative, Dean asserts that counsel’s failure to object to the
imposition of court costs constituted ineffective assistance of counsel. Dean argues
that he was prejudiced, because money from his prison account will be taken to
satisfy this obligation. See R.C. 5120.133(A); Threatt at paragraph one of the
syllabus (state may use any collection method that is available to collect a civil
money judgment or R.C. 5120.133 to collect from a prisoner’s account).
        {¶ 233} In order to prevail on an ineffectiveness claim, Dean must
demonstrate that his counsel’s performance fell below an objective standard of
reasonableness and that there is a reasonable probability that but for counsel’s
errors, the outcome of the proceedings would be different. Strickland, 466 U.S. at
687-694, 104 S.Ct. 2052, 80 L.Ed.2d 674. Dean has failed to show a reasonable
probability that the trial court would have waived the imposition of court costs even
if his counsel asked the court to do so. Thus, this claim lacks merit. See State v.
Smith, 12th Dist. Warren No. CA2010-06-057, 2011-Ohio-1188, rev’d on other
grounds, 131 Ohio St.3d 297, 2012-Ohio-781, 964 N.E.2d 423, ¶ 11.
        {¶ 234} As a final matter, Dean argues that the trial court erred by failing to
advise him of the community-service notification set forth in former R.C.
2947.23(A)(1),7 Am.Sub.S.B. No. 71, 150 Ohio Laws, Part V, 8384, 8412, which
was in effect at the time of his sentencing, and provided:


                 In all criminal cases, including violations of ordinances, the
        judge or magistrate shall include in the sentence the costs of


7
  R.C. 2947.23(A)(1)(a) has been amended and now requires that the judge or magistrate give the
community-service notification only if “a community control sanction or other nonresidential
sanction” is imposed. 2012 Sub.H.B. No. 247.




                                              65
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       prosecution and render a judgment against the defendant for such
       costs. At the time the judge or magistrate imposes sentence, the
       judge or magistrate shall notify the defendant of both of the
       following:
               (a) If the defendant fails to pay that judgment or fails to
       timely make payments towards that judgment under a payment
       schedule approved by the court, the court may order the defendant
       to perform community service in an amount of not more than forty
       hours per month until the judgment is paid or until the court is
       satisfied that the defendant is in compliance with the approved
       payment schedule.
               (b) If the court orders the defendant to perform the
       community service, the defendant will receive credit upon the
       judgment at the specified hourly credit rate per hour of community
       service performed, and each hour of community service performed
       will reduce the judgment by that amount.


       {¶ 235} The trial court imposed costs but did not notify Dean of the
community-service provisions. In State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-
781, 964 N.E.2d 423, we held that the foregoing statutory provisions are mandatory
and a trial court must put a criminal defendant on notice of their content at the time
of sentencing. Id. at ¶ 10. The trial court erred by not informing Dean of the
community-service notification. However, the failure to provide this notification
was not prejudicial, because Dean received the death penalty. Thus, this claim
lacks merit.
       {¶ 236} Based on the foregoing, Proposition of Law VII is rejected.
                           D. Prosecutorial misconduct




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                                January Term, 2015




       {¶ 237} In Proposition of Law IV, Dean argues that the prosecutor
committed misconduct during both phases of the trial. However, except where
noted, defense counsel failed to object and waived all but plain error. State v.
Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus.
       {¶ 238} The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s substantial
rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone
of the analysis “is the fairness of the trial, not the culpability of the prosecutor.”
Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
1. Trial-phase claims of prosecutorial misconduct
       {¶ 239} First, Dean argues that the prosecutor improperly elicited victim-
impact evidence about Arnold’s life during Michelle Cherry’s testimony. Cherry
testified that Arnold was working at Visions for Youth, a group home for
disadvantaged kids, on the night he was killed. Cherry knew Arnold’s parents and
had known Arnold since he was a baby. She testified that Arnold had three
children. Arnold worked the second shift (4:00 p.m. to midnight) and Cherry
worked the third shift. Cherry stated that she would come to work early so that
Arnold could get home to his family. Cherry also testified that Arnold and other
employees did not carry substantial amounts of cash, because the youth at the home
might steal it. She added, “[T]he only time we had money” was to buy little things
for them if they were “acting good.”
       {¶ 240} Victim-impact evidence is admissible in certain circumstances. It
is admissible when it is related to the facts attendant to the offense. State v.
Fautenberry, 72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995). It has also been
permitted in limited situations when the testimony is not overly emotional or
directed to the penalty to be imposed. State v. Lang, 129 Ohio St.3d 512, 2011-
Ohio-4215, 954 N.E.2d 596, ¶ 237; State v. Hartman, 93 Ohio St.3d 274, 292, 754
N.E.2d 1150 (2001).




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       {¶ 241} Cherry’s testimony about Arnold’s job was relevant to explain why
he was in the area at the time he was murdered. Testimony that Arnold carried only
enough money to buy “little things” for the kids was also relevant to explain why
he was robbed of only a small amount of money. Testimony about Arnold’s family
was of more questionable relevance; however, such testimony was not overly
emotional or directed at the penalty to be imposed. Thus, no plain error occurred.
       {¶ 242} Second, Dean argues that the prosecutor introduced racism by
presenting a recording of Dean’s phone conversation with an unidentified
individual in which Dean stated that the prosecutor was not offering a deal because
they had killed a “moon cricket.” This statement was highly relevant because it
was an admission of Dean’s involvement in Arnold’s murder and helped prove his
guilt of aggravated murder. The fact that Dean used a racist remark in referring to
Arnold does not make his comments any less admissible. Thus, no prosecutorial
misconduct occurred.
       {¶ 243} Third, Dean argues that the prosecutor exploited Dean’s alleged
racism during the rebuttal closing argument by replaying the recording of Dean’s
phone conversation and by arguing, “To this Defendant and his codefendant, Titus
Arnold was a slur. That’s what he was.” During closing arguments, defense
counsel had downplayed Dean’s comments in his phone conversation by arguing,


               When the day is done, there’s no question the words the State
       has tried to put in Mr. Dean’s mouth through those people, the words
       that came out of his mouth in his writings and this tape sitting right
       here bring you pretty close; but how close? How close, puffing and
       the bragging and the talking you do in lockup. You know, who’s
       shocked and why?




                                        68
                               January Term, 2015




       {¶ 244} Both parties have latitude in responding to arguments of opposing
counsel. See Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at
¶ 200. Dean’s phone conversation showed that Wade did not act alone and Dean
took responsibility for Arnold’s murder. Dean’s conversation also refuted defense
arguments that the state tried to put words into Dean’s mouth. Thus, the replay of
Dean’s phone conversation was proper because it allowed the jury to hear Dean’s
comments and decide whether Dean meant what he said or was just bragging.
       {¶ 245} The prosecutor’s comment, “To this defendant * * * Arnold was a
slur,” represented fair comment on Dean’s actions and had no demonstrable
prejudicial effect considering the strength of the state’s evidence showing that he
was guilty of murder. Thus, no plain error occurred. See State v. Tompkins, 2d
Dist. Clark No. 95-CA-0099, 1996 WL 612855, *13 (Oct. 25, 1996) (comment
about defendant being racist not improper when the characterization is reasonably
supported by the evidence and no substantial prejudice results).
2. Prosecutorial misconduct during penalty-phase arguments
       {¶ 246} Dean also asserts that the prosecutor committed misconduct during
the penalty-phase arguments. First, Dean argues that the prosecutor improperly
argued that society demands a greater punishment for those who kill or attempt to
kill several people:


               If you believe that as a society we need more for people who
       kill and attempt to kill multiple victims, then that aggravating
       circumstance deserves great weight. You give it great weight in this
       weighing process.


       {¶ 247} It is improper for the prosecutor to make a remark that “implores
the jury” to convict in order to meet a public demand. State v. Byrd, 32 Ohio St.3d
79, 82, 512 N.E.2d 611 (1987). Here, the prosecutor was not imploring the jury to




                                        69
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return a death sentence because of societal demands. See State v. Williams, 23 Ohio
St.3d 16, 20, 490 N.E.2d 906 (1986) (request that the jury maintain community
standards not equivalent to exhortation that the jury succumb to public demand).
       {¶ 248} Even were it possible to read the prosecutor’s remarks as Dean
does, we “ ‘should not lightly infer that a prosecutor intends an ambiguous remark
to have its most damaging meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora of less damaging
interpretations.’ ” Tyler, 50 Ohio St.3d at 40, 553 N.E.2d 576, quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In any
event, Dean cannot show prejudice because the trial court correctly instructed the
jury on the aggravating circumstance and the proper standard to apply in the
weighing process. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d
1051, at ¶ 147. Thus, no plain error occurred.
       {¶ 249} Second, Dean asserts that the prosecutor improperly argued that he
intended to kill again because a loaded gun had been found in Dean’s residence at
the time of his arrest. Here, the prosecutor argued:


               The three-day period in which this Defendant engaged in a
       course of conduct which resulted in the aggravated murder of Titus
       Arnold and resulted in the attempted murder of those six other
       people from three total scenes should be given great weight in this
       case; and when you do that, when you look at that aggravating
       circumstance and the fact that all of the deterrents and * * * all of
       the incentive that that course of conduct leading up to the murder of
       Titus Arnold * * * how that failed to stop this Defendant, the fact
       that when they found the gun in his house, it was loaded again.
               Mr. Meyers: Objection.
               The Court: Sustained.




                                         70
                                January Term, 2015




(Emphasis added.)
       {¶ 250} It is not clear that the prosecutor was making an improper argument
about Dean’s future intent, because the trial court sustained a defense objection
before the prosecutor could complete his thought. See State v. Fears, 86 Ohio St.3d
329, 335, 715 N.E.2d 136 (1999). The jurors were also instructed not to speculate
on what an answer to a question might have been or why an objection was sustained.
Thus, no prejudicial error occurred.
       {¶ 251} Third, Dean argues that the prosecutor’s rebuttal argument
conveyed that the jurors had a civic duty to recommend a death sentence. During
closing argument, defense counsel discussed Abraham Lincoln and quoted lines
from the “Battle Hymn of the Republic” that discussed transfiguration. Defense
counsel then argued, “[W]e can’t turn back the hands of time. * * * But instead, we
can only try to look into the future and see what we can do to make things as right
as we can make it; and that right does not require that Jason Dean’s life be forfeited,
that it be taken from him.”
       {¶ 252} During rebuttal, the prosecutor argued:


               Ladies and gentleman, this process is not supposed to be
       about emotion. It’s not supposed to be about letters from Abraham
       Lincoln. * * * It is supposed to be about a weighing process
       because, under Ohio law, you don’t have just unfettered discretion.
       You have a process that you must go through and make this weight.
       And here you have an aggravating circumstance that—that is
       entitled to great weight. Why? Because you know that a course of
       conduct involving this many people involves a protection of a
       community.
               Mr. Meyers: Objection.




                                          71
                               SUPREME COURT OF OHIO




                 The Court: Sustained.


(Emphasis added.)
          {¶ 253} The prosecutor’s comments about the “protection of a community”
addressed defense counsel’s impassioned plea for Dean’s life that invoked Lincoln,
religious themes, and making things right. The prosecutor’s rebuttal represented
fair comment. See State v. Hill, 75 Ohio St.3d 195, 202, 661 N.E.2d 1068 (1996)
(a rebuttal argument asking jurors to perform “ ‘a necessary function to maintain
the civilized order in society’ ” responded to defense arguments referring to the
Bible, and in the context of the entire trial, did not violate due process). Moreover,
an objection was sustained to the prosecutor’s argument, which limited any
potential for prejudice.
          {¶ 254} Fourth, Dean argues that the prosecutor committed misconduct
during his rebuttal argument by attempting to minimize the rule that a solitary juror
may prevent the imposition of the death penalty. See State v. Brooks, 75 Ohio St.3d
148, 162, 661 N.E.2d 1030 (1996). During closing argument, defense counsel
stated:


          If one of you, just one of you jurors, man or woman, young or old,
          if just one of you does not feel right in your heart that death is the
          appropriate penalty for Jason Dean, you have the power to say no.
          You have the power to say no and not sign a death verdict; and that
          is a power that is given to you, imposed upon you, more or less, by
          the law of the State of Ohio.


          {¶ 255} The prosecutor responded in rebuttal argument:




                                           72
                               January Term, 2015




       And we’ve already talked and we’ll talk some more about the
       weighing process; but in the opening statement of Counsel in this
       case * * * it’s been emphasized that just one of you * * * the Court
       has already given instructions as to how you are to conduct
       deliberations, that you are to work together to attempt to reach a
       consensus if you can do so without disturbing your individual
       conscience.
               ***
               No one expects you to get great joy out of signing your name
       on that verdict form that we talked about several weeks ago when
       you were here. But you must follow the law. Otherwise * * * we
       have completely and utterly wasted our time.


       {¶ 256} The prosecutor’s rebuttal represented fair comment.             The
prosecutor was not trying to minimize the “solitary juror” rule.       Rather, the
prosecutor was simply urging the jurors to deliberate before voting and follow the
law. There is little chance that the jurors were confused. The trial court later
instructed the jurors: “One juror alone may prevent a death penalty determination
by finding that the aggravating circumstance does not outweigh the mitigating
factors by proof beyond a reasonable doubt.” Thus, no plain error occurred. See
State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 184-
187.
3. Cumulative effect of prosecutorial misconduct
       {¶ 257} Finally, Dean claims that the cumulative effect of the prosecutor’s
misconduct in presenting victim-impact evidence and themes of Dean’s racism
prejudiced his rights to a fair trial. This argument lacks merit. See Mammone, 139
Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 148. To the extent that
Dean invokes the doctrine of cumulative error, that doctrine does not apply because




                                        73
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he cannot point to “multiple instances of harmless error.” State v. Garner, 74 Ohio
St.3d 49, 64, 656 N.E.2d 623 (1995).
       {¶ 258} Based on the foregoing, Proposition of Law IV is overruled.
                           E. Ineffective assistance of counsel
       {¶ 259} In Proposition of Law VI, Dean argues that his counsel provided
ineffective assistance of counsel during both phases of the trial. As discussed in
Proposition of Law V, both deficient performance and prejudice are required to
justify reversal based on ineffective assistance of counsel. Strickland, 466 U.S. at
687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
1. Failure to remove biased jurors
       {¶ 260} Dean argues that his counsel were ineffective by failing to excuse
two biased jurors, juror No. 357 and juror No. 406, with either a challenge for cause
or a peremptory challenge.
       {¶ 261} Dean argues that juror No. 406 should have been excused because
she never gave a firm assurance that she could fairly consider a life sentence. Dean
states that when juror No. 406 was asked if she could fairly weigh the mitigating
factors against the aggravating circumstance, she said, “I can be fair,” but did not
provide a yes or no answer.
       {¶ 262} Neither juror No. 406’s answers on the death-penalty questionnaire
nor her answers during voir dire show that she was biased or prejudiced. Juror No.
406’s failure to provide a direct response to defense counsel’s questions about
weighing the evidence does not establish otherwise. Under questioning by the trial
court and the prosecutor, juror No. 406 indicated that she was not in favor of the
death penalty in every murder case, could follow the trial court’s instructions, and
would deliberate fairly.
       {¶ 263} Dean mentions that juror No. 406 and her husband both worked in
the prison system. She had been a nurse in the prison system and her husband was
a corrections officer. But Dean presents nothing to show that juror No. 406 was




                                           74
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biased because of her and her husband’s former employment. See State v. Braden,
98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 37 (parole officer who was
not biased permitted to sit on a capital jury); State v. Murphy, 91 Ohio St.3d 516,
527, 747 N.E.2d 765 (2001) (police officer who was not biased allowed to sit on a
capital jury). Thus, Dean fails to show any evidence to support a challenge for
cause of juror No. 406, and this ineffectiveness claim lacks merit. See State v.
Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 76.
       {¶ 264} Dean has also failed to show that his counsel were ineffective by
failing to peremptorily challenge juror No. 406. Decisions on the exercise of
peremptory challenges are a part of trial strategy. Trimble, 122 Ohio St.3d 297,
2009-Ohio-2961, 911 N.E.2d 242, at ¶ 99. Because juror No. 406 did not indicate
any bias or prejudice, Dean has failed to establish that his counsel were deficient or
that he was prejudiced by counsel’s failure to peremptorily challenge this juror. See
Lindsey, 87 Ohio St.3d at 490, 721 N.E.2d 995. Thus, this claim of ineffectiveness
lacks merit.
       {¶ 265} As for juror No. 357, Dean raises the same ineffectiveness claim
that he made in Proposition of Law V. However, as discussed in that proposition,
Dean cannot demonstrate that his counsel were ineffective by failing to excuse juror
No. 357 through either a challenge for cause or a peremptory challenge.
2. Trial-phase ineffectiveness
       {¶ 266} Dean argues that his counsel were unprepared and committed a
number of errors during the trial-phase proceedings.
                     a. Unprepared to cross-examine Kaboos
       {¶ 267} Dean argues that defense counsel were ineffective because they
were unprepared to cross-examine Kaboos. During cross-examination, Kaboos
testified that no one was watching her children in Missouri while she was living
with Dean. Kaboos said, “I didn’t have any children ’til 2006.” Following her
testimony, Kaboos was excused as a witness and returned to Missouri.




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        {¶ 268} After Kaboos had departed, defense counsel informed the court that
he had been ineffective by failing to impeach Kaboos with her earlier police
statement. In that videotaped statement, Kaboos told police that she decided to
report Dean for the offenses, “ ’Cause that man that died over $6 in his pocket
because they robbed him has three babies, and I have a little boy in Missouri; and
it just kills me, and I feel the family should have the right to know anything that
happened to him.” (Emphasis added.)
        {¶ 269} In Kaboos’s absence, defense counsel sought to present relevant
portions of Kaboos’s videotaped statement to the jury. The prosecutor objected and
stated that after the defense raised this issue, they talked to Kaboos on the phone.
According to the prosecutor, Kaboos told them that “she was helping her boyfriend
raise his child by another woman and treated him like a stepson” and the “first child
that she gave birth to was in 2006.” The trial court ruled that even if Kaboos were
brought back to testify, extrinsic evidence of Kaboos’s statement would not be
admissible, because “[i]t’s a collateral matter and doesn’t go to anything but her
credibility.”
        {¶ 270} Dean argues that Kaboos’s credibility was a key issue because she
was the only witness that testified that Dean was in the car during the drive-by
shootings and she was the only witness who tied him to all three offenses. He
argues that impeaching Kaboos with her earlier statement would have shown that
Kaboos lied about her motivation for reporting him to the police. But it is highly
questionable whether counsel was deficient in failing to cross-examine Kaboos
about her earlier statement. If Kaboos has been asked about her statement that she
had a little boy in Missouri, it appears that she would have stated that she was
referring to her boyfriend’s son and not her own. Moreover, extrinsic evidence of
Kaboos’s possible prior inconsistent statement about her child would have been
inadmissible because it involved a collateral matter.            See Evid.R. 613;
Weissenberger, Ohio Evidence, Section 613.6, at 126 (2014).




                                         76
                                January Term, 2015




       {¶ 271} Moreover, Dean fails to establish prejudice.          During direct
examination, Kaboos admitted she had lied to the police when she originally told
them that Dean shot Arnold and that she was not in the car during the drive-by
shootings. Kaboos explained that she lied, “Because I was angry. I was scared
because he had threatened me and he had put his gun in my mouth, and I was just
angry and upset; and I wanted him to pay for what he did, and that was the wrong
thing.” Thus, it is highly unlikely that cross-examination showing that Kaboos may
have been untruthful about her children would have made any difference in the
outcome of the case. See State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776
N.E.2d 1061, ¶ 121 (“minor missteps are not tantamount to ineffective assistance;
a complaining defendant must still demonstrate prejudice”). Accordingly, we reject
this claim.
                        b. Failure to cross-examine witnesses
       {¶ 272} Dean argues that defense counsel were ineffective by failing to
cross-examine some of the state’s witnesses. However, “[t]rial counsel need not
cross-examine every witness * * *. The strategic decision not to cross-examine
witnesses is firmly committed to the trial counsel’s judgment * * *.” State v. Otte,
74 Ohio St.3d 555, 565, 660 N.E.2d 711 (1996). The record does not show that
counsel’s decision was unreasonable. Most of the witnesses that Dean complains
were not cross-examined gave brief testimony about facts not in dispute. Moreover,
Dean does not offer to explain the information that counsel failed to elicit during
cross-examination or how he was prejudiced by defense counsel’s failure. Thus,
we reject this claim.
                  c. Failure to object to crime-scene photographs
       {¶ 273} Dean claims that his counsel were ineffective by failing to object
to any of crime-scene photographs taken at Arnold’s murder scene, because many
of them were duplicative and emotionally charged. Defense counsel did not object
to the admission of 68 photos taken at the murder scene. These photos documented




                                         77
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the scene and the neighborhood where the murder occurred, the location where
Arnold’s backpack and cell phone were found, the vehicle that was struck by
gunfire, the location of shell casings on the street, tire marks left by the getaway
car, and markers used by the police in measuring distance.
       {¶ 274} Many of the crime-scene photos were cumulative. But the mere
fact that there are numerous photographs does not result in prejudicial error, absent
gruesomeness or shock value. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
900 N.E.2d 565, ¶ 232. These photos were not gruesome. Several of the photos
did show bloodstains left on the street after Arnold’s body was removed from the
scene. But none of these photos showed Arnold’s body. See State v. Smith, 80
Ohio St.3d 89, 108, 684 N.E.2d 668 (1997) (photographs of bloodstains are
generally not gruesome).
       {¶ 275} Moreover, Dean’s counsel were diligent in objecting to more
damaging crime-scene evidence, including an objection to a photo of Arnold’s body
lying on the street that was overruled. Counsel also made an objection that was
sustained to a crime-scene videotape taken on the night of the murder. Accordingly,
this claim lacks merit.
                             d. Stipulating to evidence
       {¶ 276} Dean argues that his counsel were ineffective by stipulating that it
was Dean’s voice on a taped phone call and stipulating to the transcript of another
taped phone call.
       {¶ 277} Sions was called as a witness and asked to identify Dean’s voice on
a taped phone call. But Sions stated that she was unable to identify Dean’s voice
when the tape was played. The prosecutor then informed the court that the state
was going to call other witnesses to identify Dean’s voice and authenticate his voice
on both tapes but would substitute a transcript from one of the calls. Defense
counsel then consulted with Dean and informed the court that counsel had received




                                         78
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Dean’s permission to stipulate that his voice was on the tapes. The stipulation was
presented to the jury at the close of the state’s evidence.
       {¶ 278} Defense counsel’s decision to enter into these stipulations was a
“tactical decision” that falls “ ‘within the wide range of reasonable professional
assistance.’ ” State v. Green, 66 Ohio St.3d 141, 148, 609 N.E.2d 1253 (1993),
quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Dean argues
that counsel should not have stipulated, because Sions was unable to identify his
voice. But Dean’s argument overlooks the fact that the state was prepared to call
other witnesses to authenticate his voice. Thus, defense counsel’s willingness to
stipulate prevented more prosecution witnesses from testifying in court and allowed
the defense to make a display of candor before the jury. See State v. Davis, 116
Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 347.
        {¶ 279} Dean also argues that defense counsel should not have entered the
stipulation because the transcript showed that it had been presented during his first
trial. But the trial court had informed the jury that this case had been tried before
and instructed the jurors that they “may not consider that fact and the fact that it
was tried once before; and you may not consider the prior outcome, if you know,
for any purpose whatsoever.” Thus, it is highly unlikely that Dean was prejudiced
by any reference to the exhibit being from the earlier trial. This ineffectiveness
claim lacks merit.
           e. Failure to submit proposed instructions in a timely fashion
        {¶ 280} Dean argues that defense counsel failed to submit proposed jury
instructions that the court requested. As the trial phase was coming to a close, the
judge stated that “having requested draft instructions from both the State and the
Defense for numerous occasions over the last several months, I was furnished on
Friday a copy of the instructions that were used in the first trial of this case. I have
received nothing from the Defense in the form of draft instructions.” The judge
said that he had furnished his draft instructions to the parties “by e-mail on Sunday




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morning with less than an immediate response.” The judge added, “I was sent an
e-mail late [Monday] with four pages of objections to these instructions that I didn’t
receive until early [Tuesday] morning. I have now reworked the instructions in
accordance with those requests and objections.” The judge then reviewed the
defense requests, suggested changes to the parties, and finalized the instructions.
       {¶ 281} Dean claims that the jurors were improperly charged on key issues
in the case because of defense counsel’s failure to submit proposed instructions in
a timely fashion as the court requested. But Dean does not identify any instructions
that were improper or that counsel should have requested. Moreover, defense
counsel did provide the court with a comprehensive list of objections and proposed
changes to the court’s instructions. Taking the objections into consideration, the
trial court reworked the instructions before closing arguments began. Thus, Dean
has failed to establish either defective performance or prejudice. See State v. White,
85 Ohio St.3d 433, 452, 709 N.E.2d 140 (1999).
                  f. Failure to object to prosecutorial misconduct
       {¶ 282} Dean argues that defense counsel were ineffective by failing to
object to prosecutorial misconduct during closing arguments. Dean recasts his
objections to prosecutorial misconduct in Proposition of Law IV in support of this
claim. But Dean fails to show deficiency in counsel’s performance or that such
conduct resulted in prejudicial error. Strickland, 466 U.S. at 689, 104 S.Ct. 2052,
80 L.Ed.2d 674.
3. Penalty-phase ineffectiveness
                        a. Failure to prepare for mitigation
       {¶ 283} Dean asserts that his counsel were ineffective by failing to
adequately prepare mitigating evidence and by presenting only his unsworn
statement and the testimony of two family members during the penalty-phase
proceedings.




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        {¶ 284} An attorney’s failure to reasonably investigate the defendant’s
background and present mitigating evidence to the jury at sentencing can constitute
ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521-522, 123
S.Ct. 2527, 156 L.Ed.2d 471 (2003). “Defense counsel has a duty to investigate
the circumstances of his client’s case and explore all matters relevant to the merits
of the case and the penalty, including the defendant’s background, education,
employment record, mental and emotional stability, and family relationships.”
Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.2011). However, Dean has the
burden of demonstrating that his counsel rendered ineffective assistance by failing
to conduct an adequate investigation. State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶ 104, citing Strickland, 466 U.S. at 687, 104 S.Ct.
2052, 80 L.Ed.2d 674. See State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228,
28 N.E.3d 1217 (death penalty vacated because of failure to conduct thorough and
adequate mitigation investigation).
        {¶ 285} Gloria Elliott, Dean’s aunt, and Brandy Murphy, Dean’s cousin,
testified about his family background and upbringing. Dean also made an unsworn
statement in which he expressed remorse and made an impassioned plea for his life.
        {¶ 286} “Generally, counsel’s decision whether to call a witness falls within
the rubric of trial strategy and will not be second-guessed by a reviewing court.”
State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001). Defense counsel
provided substantial mitigating evidence on Dean’s behalf. Moreover, the record
does not show that defense counsel failed to investigate the possibility of presenting
additional lay testimony. See State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762,
890 N.E.2d 263, ¶ 244 (a court “cannot infer a defense failure to investigate from a
silent record”).
        {¶ 287} Dean argues that defense counsel should have called a psychologist
or other experts to provide the jury with an explanation for his conduct. Defense
counsel employed Dr. Bob Stinson, a forensic psychologist, and Dr. Nicholas




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Doninger, and obtained funding for a neuropsychologist, a mitigation specialist,
and an investigator. Defense counsel also obtained funding for a radiologist to
conduct an MRI examination on Dean. Defense counsel elected not to call any
experts during mitigation. At the completion of the mitigation hearing, the trial
court and defense counsel had the following exchange:


               THE COURT: * * * The Court just wants the record to
       reflect that at pretrial, the Court has furnished funds for the expert
       witnesses, Dr. Stinson and Dr. Doninger for the Defense. The Court
       would like the record to reflect that the evidence was fully developed
       by these witnesses for the Defense and that reports have been
       furnished and Defense Counsel has had adequate opportunity to
       discuss potential testimony of these witnesses and that, as a matter
       of trial strategy, the Defense has chosen not to call them as
       witnesses.
               Is that a fair statement, Mr. Meyers?
               MR. MEYERS: Well, I would say this, Judge. Certainly, the
       reports were generated and disclosed, were discovered; and as all
       things in trial, we on defense make decisions based on our strategy,
       hope that they’re effective.


       {¶ 288} “The defense decision to call or not call a mitigation witness is a
matter of trial strategy. * * * Debatable trial tactics generally do not constitute
ineffective assistance of counsel.” State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-
6207, 857 N.E.2d 547, ¶ 116. It is unclear why defense counsel did not present Dr.
Stinson or Dr. Doninger as mitigation witnesses. Nothing in the record shows that
this decision was the result of an inadequate investigation. Accordingly, counsel’s
decision was a matter of trial strategy and does not constitute ineffective assistance




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of counsel. See State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d
1023, ¶ 223.
       {¶ 289} Nevertheless, Dean argues that a psychologist should have been
called to explain his behavior, because that would have precluded the prosecutor
from arguing that Dean “turned his back” on those willing to help him and freely
chose not to take advantage of the opportunities offered him. But no evidence
suggests that Dr. Stinson or Dr. Doninger would have presented testimony that
would have precluded such argument. See Hunter, 131 Ohio St.3d 67, 2011-Ohio-
6524, 960 N.E.2d 955, at ¶ 68. Thus, this claim lacks merit.
       {¶ 290} Finally, Dean argues that counsel should have presented
documentary evidence such as his school, medical, or juvenile court records to
support his witnesses’ testimony. However, there was no showing that defense
counsel did not review or investigate Dean’s records. In addition, nothing indicates
whether Dean’s records had mitigating value. Thus, this claim also lacks merit.
We hold that Dean has failed to establish that defense counsel were ineffective in
preparing for mitigation and presenting mitigating evidence.
                        b. Misstating the weighing process
       {¶ 291} Dean argues that defense counsel misstated the weighing process
during closing arguments by telling the jury: “[Y]ou have to weigh the mitigating
factors against the aggravating circumstance to determine if the aggravating
circumstance outweighs beyond a reasonable doubt—not just outweighs, but
outweighs beyond a reasonable doubt—the mitigating factors.” Dean argues that
defense counsel’s argument changed the focus of the deliberations from the state’s
burden of proof to the relative weight of the factors.
       {¶ 292} As Dean correctly points out, R.C. 2929.03(D)(1) provides:


       The prosecution shall have the burden of proving, by proof beyond
       a reasonable doubt, that the aggravating circumstances the




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       defendant was found guilty of committing are sufficient to outweigh
       the factors in mitigation of the imposition of the sentence of death.


       {¶ 293} Defense counsel’s argument was somewhat imprecise. However,
any error was harmless. The trial court’s final instructions correctly informed the
jury about the weighing process, including the state’s burden of proof, and cured
any misstatements. See State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813
N.E.2d 637, ¶ 147. Thus, this claim is rejected.
                   c. Failure to object during closing arguments
       {¶ 294} Dean argues that counsel were ineffective by failing to object to
prosecutorial misconduct during the penalty-phase closing arguments. This claim
lacks merit. As discussed in Proposition of Law IV, Dean was not prejudiced by
counsel’s failure to object to statements made by the prosecutor during closing
arguments.
4. Failure to object to imposition of court costs
       {¶ 295} Dean argues that his counsel were ineffective by failing to object
to the imposition of court costs. But as discussed in Proposition of Law VII, Dean
has failed to show a reasonable probability that the trial court would have waived
the imposition of costs if asked. Thus, we reject this claim.
                                5. Cumulative error
       {¶ 296} Finally, Dean argues that defense counsel’s cumulative errors and
omissions violated his constitutional rights. However, because none of Dean’s
individual claims of ineffective assistance has merit, he cannot establish a right to
relief simply by joining those claims together. See Mammone, 139 Ohio St.3d 467,
2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 173.
       {¶ 297} Based on the foregoing, we reject Proposition of Law VI.
                                F. Constitutionality




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                                January Term, 2015




       {¶ 298} In Proposition of Law XV, Dean challenges the constitutionality of
Ohio’s death-penalty statutes and claims that the statutes violate international law
and treaties to which the United States is a party. These claims are summarily
rejected as having been previously ruled on. See State v. Fry, 125 Ohio St.3d 163,
2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 215-216.
           G. Appropriateness and proportionality of the death sentence
       {¶ 299} In Proposition of Law I, Dean argues that the death penalty is not
an appropriate sentence for him, both because of his history and background and
because he was not the principal offender in killing Arnold. Dean also argues that
this court should find that his sentence is disproportionate to the life sentence of
Wade, his co-defendant.       In addition, Dean argues that Ohio’s system of
proportionality is constitutionally flawed because this court compares only cases in
which the death penalty has been imposed. See State v. Steffen, 31 Ohio St.3d 111,
509 N.E.2d 383 (1987), paragraph one of the syllabus. These arguments will be
considered in the next section, our independent evaluation of the sentence imposed
on Dean.
                      IV. Independent sentence evaluation
       {¶ 300} Having considered Dean’s propositions of law, we must now
independently    review   Dean’s    death     sentence   for   appropriateness   and
proportionality as R.C. 2929.05(A) requires.
                           A. Aggravating circumstance
       {¶ 301} Dean was convicted of murdering Titus Arnold as part of a course
of conduct involving the purposeful killing of or attempt to kill two or more persons
(Lyles, Piersoll, Shanta Chilton, Hassan Chilton, Shani Applin, and JaeAda Applin)
in violation of R.C. 2929.04(A)(5). Dean was also convicted of the aggravated
murder of Arnold while committing or attempting to commit aggravated robbery
and although Dean was not the principal offender, the aggravated murder was
committed with prior calculation and design, in violation of R.C. 2929.04(A)(7).




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Prior to the start of the penalty phase, the state elected to proceed with only the
course-of-conduct specification.
       {¶ 302} The evidence at trial supports the jury’s findings of guilt as to the
course-of-conduct aggravating circumstance. The evidence showed that during the
early morning of April 10, Dean confronted Lyles and Piersoll while they were
seated in Lyles’s car at the Mini Mart. Lyles testified that Dean came around the
corner of the Mini Mart towards her side of the car, yelled, “Give me your money,”
and started shooting. Several bullets hit the windshield and Piersoll was shot in the
arm. The evidence showed that on the evening of April 12, Dean and Wade
conducted a drive-by shooting at 609 Dibert Avenue. Dean and Wade fired at this
home while four people were standing on the front porch. Finally, on the evening
of April 13, Dean and Wade murdered Arnold.
                         B. Mitigating evidence presented
       {¶ 303} Against the course-of-conduct aggravating circumstance, we must
weigh the factors contained in R.C. 2929.04(B). Dean called his aunt, Gloria
Elliott, and his cousin, Brandy Murphy, as mitigation witnesses to present evidence
of his history, character, and background. Dean also made an unsworn statement
and a statement in allocution.
                            1. Gloria Elliott’s testimony
       {¶ 304} Elliott, Dean’s aunt, testified that she was raised with Dean’s
parents and has known him his entire life. She stated that Dean’s father was 20 and
his mother was 16 when they married. Dean’s mother worked in restaurants but
did not hold jobs. His father worked as a punch press operator and did all kinds of
things. Dean has two brothers.
       {¶ 305} According to Elliott, Dean’s parents had a volatile relationship.
They argued constantly and had physical altercations. Dean and his brothers lived
with Elliott on a number of occasions. Elliott stated that Dean “always kept you
going” and was “always doing something funny.” She believed that Dean’s parents




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did not raise their sons properly. Elliott stated that Dean’s father was a drinker and
his mother smoked pot on a regular basis. Dean also used drugs and alcohol and
smoked marijuana with his mother.
          {¶ 306} Dean’s mother met another man and moved to Sandusky a “couple
of times” to be with him. Elliott took the boys when Dean’s mother left. Dean was
a baby when his mother left home and was not affected too much by the absence.
At some point, his mother married another man. Elliott also stated that an elderly
gentleman died and left Dean’s mother a lot of money. But Dean’s mother spent
the money “[a]bsolutely, anywhere, everywhere” and never used any of the money
to fix up her house, which was later condemned.
          {¶ 307} Elliott stated that Jason and his brothers were involved in fist fights
with each other and other children and his parents often encouraged him to fight.
Dean’s parents imposed discipline on him by whipping or beating him. On one
occasion when Dean was two or three years old, Elliott intervened when he was
beaten repeatedly by his father. Elliott described Dean as “a basically good boy.”
He followed Elliott’s rules and respected her. Elliott stated that she loved Dean
with “every ounce I have in me. He’s my son. * * * The Dean boys are my sons
for all intents and purposes from birth.” Elliott did not want to see Dean executed
and asked the jury to spare his life.
                             2. Brandy Murphy’s testimony
          {¶ 308} Murphy testified that she lived near her cousin Dean’s home in
Springfield until her parents moved to Florida when she was seven. Afterwards,
the two families visited each other on a frequent basis. Murphy, who is two years
older than Dean, played with him and his brothers when they were growing up.
Murphy moved back to Springfield when she was 15 and lived with the Dean
family.
          {¶ 309} Murphy never saw Dean and his brothers attend school on a regular
basis. She also never saw their parents criticize or discipline the boys for not




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attending school. Murphy described the mother’s relationship with her children as
“[m]ore of a friendship * * * like she was their age, just kind of hanging out, just
nonchalant.” But Dean’s mother would get angry at her sons, and Murphy saw her
throw coffee mugs and a telephone at them. Murphy stated that Dean and his
brothers were on “pins and needles” around their father. Dean’s father would start
off cursing and then grab his belt when he became aggravated. Murphy saw him
hit Dean with a belt a couple of times a week. She also never saw Dean’s father
show affection towards any of his children.
       {¶ 310} Murphy stated that Dean’s parents had a poor relationship. His
father would go to work and a boyfriend would come to visit his mother. Dean’s
father came home while the boyfriend was present on a couple of occasions. The
father would want to fight but the boyfriend never left the couch. According to
Murphy, neighbors would call the police and “it always resulted in my uncle being
arrested.” Murphy testified that everyone in the house used marijuana, including
Dean when he was 13 years old. Dean’s father used alcohol. Dean’s parents never
punished the boys for using illegal substances.
       {¶ 311} According to Murphy, Dean and their friends brought stolen
merchandise to their home. Dean’s mother did not seem to care. She was more
concerned about the police coming to the house because there were stolen goods.
She listened to a police scanner and paid attention to descriptions of suspects to see
if they matched those of the three boys.
       {¶ 312} As a final matter, Murphy stated that she saw Dean’s parents
engage in physical fights. Dean observed some of the fights, and his mother got
beat up pretty badly during them. Dean’s father would go to jail but later move
back into the house.
                           3. Dean’s unsworn statement
       {¶ 313} Dean stated that this is a “heavy, heavy, weight for me to carry.”
He then continued:




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       [T]he first thing I would like to do is to say that there is no scale to
       weigh the magnitude of the decision that you’re about to make, my
       life. And there’s no scale to weigh, you know, the tragedy that this
       family has to suffer for the loss of their son, father, and brother,
       uncle. It’s beyond my scope of comprehension. It’s beyond words.
       I can’t begin to imagine the pain and suffering that they all have to
       go through for—for not just today but for a lifetime.
                   And that’s what this boils down to, a lifetime, my life;
       and I’ve lived a hard life. I’ve been through ups and downs,
       sideways, wrong turns, bad decisions; and I’m not the best man, but
       I’m a man. I’m a human being, and I have family who love and
       cherish me; and without a doubt, I don’t believe that they want to
       see me strapped to a table and poisoned to death by the State of Ohio.
       And I know that you never have ever imagined having to do God’s
       work and decide whether a man lives or dies by the stroke of a pen;
       and I know that’s a heavy, heavy weight to carry. And, you know,
       I just ask that you remember at the beginning of this trial it was
       constantly referred to as common sense and reason. I ask you, as a
       man, as a human being, to take these two words into the jury room
       with you when you deliberate to either save my life or take my life;
       and that’s compassion and mercy. That’s all that I ask. Thank you.


                         4. Dean’s statement in allocution
       {¶ 314} Before final sentencing, Dean thanked his attorneys and thanked
the judge for being fair and just throughout the whole trial. Dean also made a plea
based on the fact that he was not the principal offender, stating:




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       You, I, God, and everybody in this courtroom knows I didn’t kill
       Titus Arnold; and I don’t have no bitterness, no angry [sic], no
       animosity toward the family. I really never could wrap my mind
       around the tragedy that they’re going through; but, once again, I
       played no part in Titus Arnold’s murder.


(Emphasis added and brackets sic.)
       {¶ 315} The statutory mitigating factors under R.C. 2929.04(B) include
R.C. 2929.04(B)(1) (victim inducement); (B)(2) (duress, coercion, or strong
provocation); (B)(3) (mental disease or defect); (B)(4) (youth of the offender);
(B)(5) (lack of a significant criminal record); (B)(6) (accomplice only); and (B)(7)
(any other relevant factors).
       {¶ 316} The first five statutory mitigating factors do not apply. However,
R.C. 2929.04(B)(6) does apply because Dean was not the principal offender in
killing Arnold. Indeed, Dean argues that he should not receive the death penalty
because Wade fired the shot that killed Arnold.
       {¶ 317} Yet Dean’s participation in Arnold’s murder and the attempted
murders was extensive. The evidence shows that Dean was 30 years old and Wade
was only 16. Dean exercised great influence over Wade and supplied the car and
the weapons used in the offenses. Dean also attempted to shoot Arnold before
Wade killed him.
       {¶ 318} When the offender plays a critical role as a leader, we have held
that the R.C. 2929.04(B)(6) factor will carry less weight. See Were, 118 Ohio St.3d
448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 267-269 (a leader in Lucasville prison
riots who was not an actual killer); State v. Robb, 88 Ohio St.3d 59, 91, 723 N.E.2d
1019 (2000) (same); State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007,
824 N.E.2d 504, ¶ 136; (no evidence was shown that defendant killed either victim,
but he was a crucial participant in the murders); State v. Issa, 93 Ohio St.3d 49, 71-




                                         90
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72, 752 N.E.2d 904 (2001) (participant in murder for hire even though shooter and
others did not receive death penalty). Dean played a critical role in Arnold’s death,
and we give little weight to the R.C. 2929.04(B)(6) factor.
       {¶ 319} Some weight should also be given to other mitigating evidence
under the catchall provision of R.C. 2929.04(B)(7). Such evidence includes the
love that Dean shares with members of his family. His expression of sympathy
towards the victim’s family is also entitled to weight.
       {¶ 320} We find nothing mitigating in the nature and circumstances of the
offenses. Dean and Wade went on a four-day crime spree that culminated in the
shooting death of Arnold. Dean and Wade stole approximately six dollars from
Arnold after he was shot and killed. But Dean’s history, character, and background
provide some mitigating value. Dean grew up in a dysfunctional family. His
parents neglected Dean, did not value his school attendance, and abused alcohol
and marijuana in the home. Dean’s father whipped Dean with a belt to impose
discipline and showed his son no affection. Dean’s mother smoked pot with Dean
and turned a blind eye to stolen property that her sons brought into the home.
Dean’s parents also engaged in physical altercations on a frequent basis in front of
Dean. On the other hand, Elliott, Dean’s aunt, helped raise Dean and his brothers
and brought a degree of stability into their lives. Elliott described Dean as “a
basically good boy” and stated that he followed her rules and respected her.
       {¶ 321} Certainly, Dean lacked parental oversight and had a poor
upbringing.   Thus, we give weight in mitigation to Dean’s background and
upbringing. But we have upheld the death penalty for defendants with backgrounds
similar to or worse than Dean’s. See, e.g., State v. Jackson, 141 Ohio St.3d 171,
2014-Ohio-3707, 23 N.E.3d 1023, ¶ 280-291; Elmore, 111 Ohio St.3d 515, 2006-
Ohio-6207, 857 N.E.2d 547, at ¶ 149-159; State v. Campbell, 95 Ohio St.3d 48, 50-
54, 765 N.E.2d 334 (2002). Moreover, as the state points out, there is no evidence




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that Dean suffered from sexual abuse, intellectual deficits, or psychological
impairment, which are often factors in many death-penalty cases.
         {¶ 322} Dean argues that he should not receive the death penalty because
Wade received a life sentence. See State v. Wade, 2d Dist. Clark No. 06-CA-108,
2007-Ohio-6611.      Wade’s lesser sentence is entitled to consideration as a
nonstatutory mitigating factor. See Getsy, 84 Ohio St.3d at 208-209, 702 N.E.2d
866. But Wade was a juvenile and not subject to the death penalty. Moreover, we
have held that “[d]isparity of sentence does not justify reversal when the sentence
is neither illegal nor an abuse of discretion.” State v. Jamison, 49 Ohio St.3d 182,
191, 552 N.E.2d 180 (1990); see also State v. Stumpf, 32 Ohio St.3d 95, 108, 512
N.E.2d 598 (1987) (co-defendant’s life sentence for his part in the victim’s murder
not an impediment to affirming the death sentence in defendant’s case). Thus, we
do not give significant weight to the disparity in sentences between Dean and Wade.
         {¶ 323} We weigh the aggravating circumstance of the course-of-conduct
specification under R.C. 2929.04(A)(5) against these mitigating factors. Dean was
complicit in Arnold’s murder, attempted to murder Piersoll and Lyles at the Mini
Mart, and attempted to murder Shanta and Hassan Chilton and Shani and JaeAda
Applin on the porch at 609 Dibert Avenue. Dean’s mitigating evidence is weak in
comparison. Dean also showed little remorse for what happened. We find that the
aggravating circumstance outweighs the mitigating factors beyond a reasonable
doubt.
         {¶ 324} Finally, we hold that the sentence is both appropriate and
proportionate. See State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823
N.E.2d 836 (one murder and one attempted murder); State v. Beuke, 38 Ohio St.3d
29, 526 N.E.2d 274 (1988) (one murder and two attempted murders).
         {¶ 325} In reaching this conclusion, we reject Dean’s argument that any
meaningful proportionality review should include Wade’s case. See Steffen, 31
Ohio St.3d 111, 509 N.E.2d 419, at syllabus (“The proportionality review required




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by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the
reviewing court in which the death penalty has been imposed”). We also reject the
claim that Steffen’s limited proportionality review is constitutionally flawed. See
id. at 123.
                                     V. Conclusion
          {¶ 326} We therefore affirm the judgments of conviction and sentence of
death imposed upon Jason Dean.
                                                                   Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, and FRENCH, JJ.,
concur.
          O’NEILL, J., concurs in part and dissents in part for the reasons set forth in
his dissenting opinion in State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-
164, 981 N.E.2d 900.
                                  _________________
          D. Andrew Wilson, Clark County Prosecuting Attorney, and Lisa Fannin,
Assistant Prosecuting Attorney, for appellee.
          McGarry Law Office and Kathleen McGarry; and William S. Lazarow, for
appellant.
                                ___________________




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