[Cite as State v. Kinney, 2019-Ohio-2704.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                      DAVID CARL KINNEY,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 18 BE 0011


                                   Criminal Appeal from the
                        Court of Common Pleas of Belmont County, Ohio
                                     Case No. 17 CR 154

                                       BEFORE:
                 Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Daniel P. Fry, Belmont County Prosecutor, Atty. Kevin Flanagan, Chief Asst.
 Prosecuting Attorney, 147-A W. Main Street, St. Clairsville, Ohio 43950 for Plaintiff-
 Appellee and
 Atty. Christopher J. Gagin, McCamic, Sacco & McCoid, PLLC, 56 14th Street,
 Wheeling, West Virginia 26003 for Defendant-Appellant.
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                                      Dated: June 28, 2019


 Robb, J.

       {¶1}   Defendant-Appellant David Kinney appeals his aggravated murder
conviction entered after a jury trial in the Belmont County Common Pleas Court. He raises
issues with: the sufficiency and the weight of the evidence on the element of prior
calculation and design; the lack of Miranda warnings during the police interview until after
he admitted and demonstrated the shooting; the voluntariness of his statement to police;
the admissibility of a recorded spousal conversation; the denial of access to the grand
jury transcript; the failure to excuse two venire members for cause; whether a jury
instruction suggested the jury had to unanimously acquit him of aggravated murder before
considering the lesser charge of murder; the refusal to instruct on voluntary manslaughter;
and the reviewability of the sentence of life without parole. For the following reasons, the
trial court’s judgment is affirmed.
                                  STATEMENT OF THE CASE
       {¶2}   Appellant became friends with Brad McGarry (the victim) after they met at
a coal mining class in 2011. Appellant was married, and his wife had three children he
considered his own. They spent holidays with the victim, and the children called him
“uncle.” At some point, Appellant and the victim began having an affair. Starting at the
end of 2016, Appellant’s wife voiced suspicions about the affair to Appellant. (Tr. 569-
573). Around this time, the victim was upset Appellant would not leave his wife for the
victim. (Tr. 889, 892).
       {¶3}   On May 6, 2017, the victim went to a wedding in Monroe County and stayed
at his mother’s house. During a family meal on May 7, the victim received a message on
his phone and rushed to leave in a mood that was described as happy, giddy, and excited.
(Tr. 298). Before leaving, he indicated to his cousin that he would return a tuxedo to the
mall and then go home to meet Appellant where he expected they would take “a nap.”
The victim said this with a wink, suggesting to the cousin the victim was meeting Appellant
for a sexual encounter. (Tr. 315-318). The victim returned the tuxedo and arrived at his
home in Bellaire, Ohio around 2:55 p.m. The police chief lived on the same street as the
victim, and his surveillance system captured footage of vehicles traversing the street. A


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car driven by Appellant traveled toward the victim’s house at 1:59 p.m. and traveled away
from the victim’s house at 3:11 p.m. (sixteen minutes after the victim arrived home). (Tr.
476).
        {¶4}   Later that day, Appellant drove his wife and her thirteen-year-old daughter
from their home in Brilliant, Ohio to the victim’s house (over 30 minutes away) where they
were to visit and to deliver a weed trimmer. The child went to the door first and noticed it
was open. When they looked in the kitchen, they noticed drawers and cupboards open
and items strewn about. After unsuccessfully calling the victim vocally and over the
phone, Appellant’s wife told him to retrieve his firearm. It was in his car, and he had a
concealed carry permit. Upon retrieving his .40 caliber handgun, Appellant explored the
main floor of the house. Upon descending to the basement, which was also a garage, he
yelled for his wife to call 911. She went downstairs followed by her daughter. At 6:15
p.m., Appellant’s wife called 911 to report the discovery of the victim’s body surrounded
by a pool of blood.
        {¶5}   The victim was lying face down on the floor near a covered hot tub in a
cluttered area of the basement. The victim had been shot twice in the back of the head.
Gunshot residue was observed around both entrance wounds. (Tr. 604). One shot
entered the top-back portion of the victim’s scalp and exited the top-front of the scalp
without entering the skull or brain. (Tr. 599). Although the bullet caused a skull fracture
and blood loss, this wound likely would not have been fatal with medical care. (Tr. 602).
A deformed bullet fragment was found on the basement floor; brushed copper was still
visible on the small caliber bullet, which appeared consistent with a .22 caliber bullet. (Tr.
721).
        {¶6}   After learning about a hat at the scene, the forensic pathologist opined the
gun would have been fired from a few to several inches away to cause this perforating
scalp wound; he originally believed it was a contact wound due to the amount of gunshot
residue. (Tr. 638, 658, 678). The hat was found on the hot tub. Indications that it was
on the victim’s head during the shot through the scalp included a dense pattern of gunshot
residue around a hole in the top of the hat and a piece of skin tissue with hair stuck to the
outside front of the hat under another hole. (Tr. 719, 724, 808). During a later search,




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police recovered an additional piece of the victim’s skin tissue with hair from the side of
the washing machine located 10-15 feet from the body. (Tr. 518, 764, 785).
       {¶7}   As for the fatal shot, the bullet entered the back of the victim’s head in the
left occipital area and was recovered from the right, front portion of the brain. (Tr. 608-
609). This bullet was specifically identified as a .22 caliber long rifle copper-washed lead
bullet; in this context, “long rifle” refers to the caliber, not the type of gun used to fire it.
(Tr. 762, 811). The forensic pathologist opined the fatal wound was a partial contact shot
inflicted at an angle, noting the abundance of soot on the right side of the entry wound.
(Tr. 633-635).
       {¶8}   The police believed the scene appeared staged to look like a robbery
because it seemed “neatly ransacked” and valuable items were visible, including a gun in
an open nightstand drawer and money. Various drawer handles were swabbed and
tested for touch DNA. Most swabs did not contain enough material for analysis, but the
victim’s DNA was predictably found on a kitchen drawer. (Tr. 521-526, 554).
       {¶9}   Upon speaking to the responding officers at the scene, Appellant reported
the victim was his best friend who was like a brother to him. It was said the victim planned
to go on vacation with Appellant’s family that summer. When asked if anyone may have
reason to commit the offense, Appellant named a man the victim dated (who was cleared
due to his incarceration at the time). He also mentioned two men who recently installed
a fence at the house. (Tr. 351, 905). Appellant provided a written statement at the scene.
A detective explained they would conduct a detailed follow-up interview of him and his
wife in the next few days. During interviews with others, it was reported the victim was
having an affair with Appellant and threatened to tell Appellant’s wife about the
relationship. (Tr. 975-976).
       {¶10} Appellant arrived at the police station for his interview two days after the
shooting. He provided DNA for purposes of elimination. He also provided consent to
search his phone and the passcode. He said he and his step-son went to visit the victim
the day before the shooting. The victim called him that night during and after the wedding,
and they spoke both times. Appellant discussed his activities on the day of the shooting,
omitting any mention of being at the victim’s house earlier that day. He told a similar story
of finding the body that he told at the scene.



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       {¶11} When the detective asked about certain items discovered on Appellant’s
phone, Appellant admitted he had recurrent sexual encounters with the victim for years.
He said his wife did not know about the sexual relationship. Appellant thereafter disclosed
that he was in Bellaire earlier on the day of the shooting and drove by the victim’s house.
He then said he waited in front of the victim’s residence rather than merely driving by.
       {¶12} Eventually, Appellant claimed he waited until the victim drove up with
another man; although, the detective remembered the front passenger seat of the victim’s
vehicle was filled with items. Appellant said he heard a gunshot from the basement, he
did not see the shooting, and he fled the scene because he was scared. He apologized
for not calling the police. Thereafter, he said he witnessed the shooting, which prompted
the shooter to threaten Appellant’s life and say his wife would learn of the affair if Appellant
implicated him in the shooting.
       {¶13} Finally, Appellant admitted he was the person who shot the victim. The
detective asked if Appellant staged the scene to look like a robbery.            In response,
Appellant said the victim was upset about missing money and was opening drawers while
Appellant was insisting he did not take it. Regarding another topic of argument, Appellant
recited: the victim had been asking him to leave his wife for some time; he loved the
victim but also loved his wife and kids; he told the victim he had no thoughts of leaving
his family for the victim; and he informed the victim they had to discontinue the affair.
According to Appellant, the victim flipped out, smacked him with both hands, told him to
leave his wife, yelled about how Appellant “fucked with” his emotions for so long, and then
started waving and pointing a Derringer at him.
       {¶14} Appellant said he grabbed the gun and pushed the victim back. He said the
victim then rushed at him. He said he felt threatened and shot the victim, first in the top
of the head and then in the back of the head after the victim was down. The detective
observed how Appellant motioned as if he first shot the victim across the top of the head
from the front, but the wound showed this shot was fired from the back. Appellant then
demonstrated a maneuver that put the victim bending at the waist as Appellant pushed
him down and fired down at his head at the same time. He then demonstrated the second
shot occurred as he stood over the victim who was on his knees with his head on the
ground.



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       {¶15} The detective informed Appellant his status had changed, and Mirandized
Appellant. Appellant told his story to another officer and provided a written statement.
The entire interview was recorded, and the recording continued after Appellant’s wife
entered the interview room and conversed with Appellant.
       {¶16} Appellant was indicted for aggravated murder with a firearm specification.
At the 2018 jury trial, the complete recording of Appellant’s statement at the police station
was played to the jury. The detective testified Appellant was not crying as much as he
made it appear. (Tr. 1002). The detective voiced the evolving statements led him to
believe Appellant planned an ambush after luring the victim home with a promise of a
sexual encounter and then staged the scene. (Tr. 982, 986). He noted after Appellant
said he threw the gun from the car while driving home from the shooting, a search of the
specific stretch of road described by Appellant did not yield the gun. (Tr. 947-948).
       {¶17} Regarding Appellant’s claim that the victim owned the Derringer and usually
kept it on the hot tub, a friend testified the victim was frightened of guns but decided to
purchase one with Appellant for self-defense around Thanksgiving of 2016. (Tr. 885-
886). Another witness (the fiancé of the victim’s mother) knew the victim owned one
firearm and kept it in his room. (Tr. 392, 308). A police officer who knew the victim
testified the victim recently asked for his advice on obtaining a concealed carry permit
and on buying his first gun. The victim thereafter said he purchased a Hi-Point 9mm,
which he fired at a range. (Tr. 557-562). The gun found in the victim’s nightstand was a
9mm Hi-Point semiautomatic pistol, and two magazines of 9mm ammunition were in the
drawer with the gun. (Tr. 349-350, 389-390, 481, 713-714). The detective noted they did
not find a holster for a Derringer (which he said would be dangerous to carry in a pocket)
or .22 caliber ammunition at the victim’s house. (Tr. 912-913). Bullets for a .22 and a
9mm cannot be used interchangeably. (Tr. 482). They did find a box of .22 caliber long
rifle ammunition in Appellant’s truck. (Tr. 865, 951); (St Ex. 137, 141).
       {¶18} A detective who examined Appellant’s phone testified to communications
between Appellant and the victim: the victim accused Appellant of lying in 2016; intimate
photographs were exchanged; and the victim seemed upset Appellant did not spend more
time with him in 2017, but no texts seemed angry or threatening. (Tr. 849-850). On the
day of the shooting: they texted each other to say “morning” and ask about the prior night;



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the victim texted “hi” at 1:31 p.m.; and Appellant called the victim three times with the
longest call lasting less than two minutes. At 1:45 p.m., the victim texted, “Don’t forget
my surprise, LOL.” (Tr. 835-837). After leaving the victim’s house, Appellant texted the
victim at 3:13, “We will be bringing it out,” and then at 3:26, “Stopped by. You weren’t
home yet. Call me when you get there and will come out.” (Tr. 838-840). Appellant then
called the victim’s phone various times.
       {¶19} Appellant’s wife testified Appellant brought her and her children to a
restaurant and a store on the Sunday they found the victim. He then left them at home
for a time and used her car. (Tr. 574). When he returned, she did not notice anything
strange or suspicious about him other than the fact that he helped her dye her hair. (Tr.
575). She said they then took Appellant’s truck to the victim’s house, which she claimed
they planned the prior day. (Tr. 574).
       {¶20} The defense called another friend of the victim to testify. He believed that
many years before he heard the victim mention buying a Derringer; he remembered
making a joke about the small size of a Derringer but noted he never saw the gun. (Tr.
1044-1047). He said if the victim got upset, he would yell and waive his phone around
but would then “go cry in the corner.” (Tr. 1039-1040). The victim was not the type to
start a physical fight. (Tr. 1048). The victim paid Appellant for work around the house,
but Appellant did not complete it. (Tr. 1042). The victim was upset Appellant had to “back
off” when his wife became suspicious and was upset when Appellant wanted to break up
but stay friends. (Tr. 1041-1043). At the end of 2016, the victim was thinking of exposing
the affair to Appellant’s wife; he talked about sending her messages and photographs
exchanged between himself and Appellant. (Tr. 1042). When he learned Appellant spoke
about possibly killing himself due to the situation, the witness told the victim not to push
so hard and just accept the relationship as it existed. The victim joked his friend should
read the news and check on him more often. (Tr. 1052).
       {¶21} The defense presented the testimony of a forensic pathologist who
confirmed the testimony of the state’s forensic pathologist that: there was no scientific
way to determine which wound occurred first; the bruises on the victim’s forehead and
cheek were likely from the fall after the shooting; and the bruising on the eye was likely
from internal blood pooling. (Tr. 1072, 1081). He said the gunshot residue pattern for the



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fatal wound would have been very unlikely if the gun was a foot or more away from the
head (as indicated by Appellant’s demonstration for the detective). (Tr. 1079, 1086-
1087). He believed the fatal shot was fired at a distance of no more than three inches.
(Tr. 1078). As for the first shot, this witness testified that if the victim’s head was facing
down and if Appellant was standing in the position he indicated, then the scalp fragment
would not likely have ended up on the washing machine. (Tr. 1097-1098). He also opined
it was probable the event was dynamic with the bodies in motion. (Tr. 1097).
       {¶22} In response to the expert report provided by the defense, a BCI agent
testified that predicting tissue trajectory from a gunshot would not be scientifically reliable
in this case. (Tr. 786). He opined a shooting reconstruction was not possible as bodies
move, guns can create violent explosions of tissue, and tissue is unpredictable. (Tr. 775-
776). He also noted the prediction from the defense expert was that scalp tissue would
not fly to the washing machine “if” the victim’s head was facing down at impact. (Tr. 785).
       {¶23} Appellant also presented the testimony of a forensic psychiatrist who opined
that Appellant experienced Acute Stress Disorder after the shooting, which could explain
some of his poor choices after the event. (Tr. 1136-1144). In rebuttal, the state presented
expert testimony from another forensic psychiatrist who disagreed with the diagnosis. (Tr.
1180-1181).
       {¶24} The jury found Appellant guilty of aggravated murder with a firearm
specification. A presentence investigation was ordered. The court imposed a sentence
of life without parole for aggravated murder plus three years for the firearm specification.
Appellant filed a timely notice of appeal from the February 15, 2018 sentencing entry and
filed a 55-page brief with leave of court.
                    ASSIGNMENT OF ERROR ONE: SUFFICIENCY
       {¶25} Appellant sets forth ten assignments of error, the first of which contends:
       “DEFENDANT-APPELLANT’S AGGRAVATED MURDER CONVICTION IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE OF PRIOR CALCULATION AND DESIGN.”
       {¶26} Whether the evidence is legally sufficient to sustain a conviction is a
question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). An evaluation of witness credibility is not involved in a sufficiency
review as the question is whether the evidence is sufficient if believed.             State v.



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Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v.
Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency
involves the state's burden of production rather than its burden of persuasion.
Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring).
      {¶27} A conviction cannot be reversed on the grounds of insufficient evidence
unless the reviewing court determines, after viewing the evidence in favor of the
prosecution, that no rational juror could have found the elements of the offense proven
beyond a reasonable doubt. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916
(1998). Rational inferences to be drawn from the evidence are also evaluated in the light
most favorable to the state. See State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d
867 (1999).    Even erroneously admitted evidence can be considered to determine
whether the evidence was sufficient to sustain the guilty verdict. State v. Brewer, 121
Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 16-20; State v. Yarbrough, 95 Ohio
St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 80; Lockhart v. Nelson, 488 U.S. 33, 35,
38, 40-42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). This relates to the principle that a
defendant cannot be retried if the evidence was insufficient, but the remedy for the
erroneous and prejudicial admission of evidence is a new trial with exclusion of the
evidence. See id.
      {¶28} The elements of the pertinent type of aggravated murder are to cause the
death of another purposely and with prior calculation and design. R.C. 2903.01(A).
Appellant challenges the sufficiency of the evidence on the element of prior calculation
and design, applying the Ohio Supreme Court’s Walker case. In Walker, the Supreme
Court adopted statements made by the Ohio Legislative Service Commission when the
statute changed from “deliberate and premeditated malice” to “prior calculation and
design.” For instance, the element prior calculation and design requires “an act of studied
care in planning or analyzing the means of the crime, as well as a scheme compassing
the death of the victim.” State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d
1124, ¶ 17. The “advance reasoning to formulate the purpose to kill” cannot be mere
“momentary deliberation.” Id. at ¶ 17-18. Still, the pre-offense degree of care and length
of time spent pondering the act need not be great and are among many factors to
consider. Id. at ¶ 17



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       {¶29} Traditional factors to consider include: (1) the relationship between the
defendant and the victim and any strain; (2) the thought or preparation involved in
choosing the murder weapon or site; and (3) the length of time surrounding the act, i.e.,
prolonged, a nearly instantaneous eruption of events, or somewhere in between. See id.
at ¶ 20. Prior threats are pertinent, including a threat to obtain a weapon. Id. at ¶ 21.
“Pursuing and killing a fleeing or incapacitated victim after an initial confrontation strongly
indicates prior calculation and design.” Id. The style of a shooting, such as an “execution-
style” killing, can be an additional indicator. Id. at ¶ 21-22. A review of the factors helps
a court determine whether the jury could reasonably infer from the evidence that the
defendant planned the murder with prior calculation and design. See id. at ¶ 26.
       {¶30} In Walker, the Court concluded that although the jury could reasonably infer
the defendant had a purpose to kill the victim, the jury could not reasonably infer prior
calculation and design when considering the totality of the circumstances, including: the
defendant did not know the victim; the defendant did not choose the site as they happened
upon each other at a bar; a bar fight broke out while the defendant was already armed;
he originally used a fist and a bottle during the fight; the scene quickly escalated into a
chaotic free-for-all; the defendant backed away and hid behind a pillar twenty seconds
before the shot; a single shot was fired; and the events were recorded by surveillance
video. In distinguishing between the presence or absence of prior calculation and design,
there is no bright-line test, and each case depends on its own particular facts. Id. at ¶ 19.
       {¶31} Appellant contends a reasonable juror could not find prior calculation and
design by claiming: the relationship between him and the victim was not more strained
than usual; there was no history of Appellant being violent or making threats; the victim
owned the weapon used in the shooting and introduced it into an argument; the scene of
the shooting was the victim’s own house; the meeting was prearranged rather than an
ambush; the theory the victim was “lured” by the Appellant’s promise of sex was
unsupported; the DNA on a used condom in the bedroom trash did not belong to
Appellant; the scalp wound would not be considered execution-style and suggested a
struggle; the situation was an unexpected and instantaneous eruption of events;
Appellant’s demonstration of the events was not a perfect recreation of the shooting,
which the physical evidence shows was more dynamic than he suggested; the victim was



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only home for 16 minutes before Appellant left the scene; and Appellant’s DNA was not
found on the drawer handles which counters the theory that he staged the scene to look
like a robbery.
       {¶32}      As for the relationship and motive, it is relevant that Appellant was married
with three children he considered his own, and he had been having a sexual relationship
with his best friend for years. The victim wanted Appellant to leave his wife. Appellant
believed his wife did not know of the relationship. Although she voiced a suspicion to
Appellant months before, he apparently assured her they were nothing but friends. He
feared she would discover the truth. One of Appellant’s initial stories suggested his fear
was strong: he said he fled the scene of the shooting without calling the police after an
unidentified man shot the victim and made threats to Appellant including a threat to
expose Appellant’s homosexual affair. Although he later admitted this story was untrue,
it reveals what he characterized as a strong threat and motivator to him. Around the time
of the shooting, the victim was also accusing Appellant of taking money from his house.
       {¶33} The 16 minutes during which the victim was home before Appellant left the
scene does not necessarily work in Appellant’s favor as he claims. He was at the victim’s
house for almost an hour before the victim arrived, even though he knew the victim would
not be home that early. In general, Appellant had sufficient time and opportunity for
planning. Additionally, after the victim heard from Appellant, he seemed excited to leave
a family dinner early to meet Appellant. He disclosed they were going to take a “nap” (in
a manner causing the victim’s cousin to believe the encounter would be sexual). Around
this time, the victim texted Appellant suggesting he was excited about a “surprise”
Appellant had apparently mentioned to him. Yet, Appellant claimed he went there to tell
the victim they could not continue their affair.
       {¶34} Regarding the weapon, the jury need not believe it belonged to the victim.
There was testimony the victim recently bought his first gun, a 9mm Hi-Point, which was
recovered from his nightstand, with two magazines of 9mm ammunition. In the victim’s
house, .22 caliber ammunition could not be located, but .22 caliber ammunition was
located in Appellant’s truck. Appellant said he had a .40 caliber firearm, and a shotgun
(with shells) was found in the truck as well. Appellant claimed the victim kept a loaded
.22 caliber firearm on the hot tub, but there was testimony indicating: the mother’s fiancé



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knew the victim kept his firearm in his room; a friend never saw a gun left out in the victim’s
house; Appellant reported he was at the victim’s house the day before the shooting with
a child (his stepson); and his wife testified they had plans to bring another child (his step-
daughter) to the victim’s house on the day of the shooting.
       {¶35} Moreover, as the state points out, the fatal wound could be considered
execution-style. In fact, there was gunshot residue around both wounds. Appellant said
he shot the victim in the top-back of the head first. This wound would not have been fatal
had Appellant called for help. Appellant admitted he then shot the victim in the back of
the head as the victim was on the floor. A second, more centered shot to the back of the
head once the victim was already shot in the head and down on the ground suggests
preplanning. Contrary to Appellant’s contention, the nature of the first shot (which entered
from the back of the top of the scalp) does not require one to conclude there was a fight
or a lack of pre-planning merely because it was not accurately aimed to penetrate the
brain. The shooting occurred in a cluttered basement-garage in a cramped space. The
area behind the victim was more suitable for hiding than conversing. And, Appellant was
ten inches taller than the victim.
       {¶36} Furthermore, the victim was not considered the type of person to start a
physical fight and was not comfortable with a gun. The shooting occurred in the basement
rather than on the main floor of the house where the drawers were askew. A staged
robbery, although occurring after the shooting, can be a factor to consider under the
totality of the circumstances. As the state points out, the inability to retrieve Appellant’s
touch DNA from the drawer handles was not some major fact in Appellant’s favor; the
forensic scientists could not find a significant source on most swabs to match even the
victim’s DNA.
       {¶37} Certain actions, not just before or during but also after a shooting, can
support a determination of a pre-existing scheme or plan.            Although the evidence
indicated Appellant arrived at the victim’s house an hour before the victim, he did not
respond to the victim’s earlier text, “Don’t forget my surprise, LOL,” until minutes after
leaving the body at the house at which time he responded, “We will be bringing it out.”
Appellant spoke of a prior plan to bring the victim a weed trimmer. Yet, he traveled more
than 30 minutes from his house to the victim’s house before the shooting without bringing



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this item. Three hours after the shooting, he then went back to the house with the item,
bringing his wife and her child with him to discover the body and call the police. He also
drove his wife’s car to the shooting, but drove his truck back to the scene later. During
the interim, he did not seem shocked or nervous to his wife (who was in his close
presence as he helped dye her hair).
       {¶38} As can be seen, some of Appellant’s contentions under his sufficiency
assignment of error involve credibility or weight of the evidence, which is the subject of
his next assignment of error. Appellant changed his story multiple times. There is no
requirement that one accept as entirely true his last story about them arguing and him
disarming the victim. Circumstantial evidence inherently possesses the same probative
value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001)
(and because a defendant's intent dwells in his mind, the surrounding facts,
circumstances, and resulting inferences are all used to demonstrate intent). In fact, “[a]
conviction can be sustained based on circumstantial evidence alone.” State v. Franklin,
62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991). Viewing all of the evidence and rational
inferences in the light most favorable to the prosecution, a rational juror could find that
Appellant purposely caused the victim’s death with prior calculation and design. In
accordance, this assignment of error is overruled.
                        ASSIGNMENT OF ERROR TWO: WEIGHT
       {¶39} Appellant’s second assignment of error alleges:
       “DEFENDANT-APPELLANT             AGGRAVATED          MURDER        CONVICTION        IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
       {¶40} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
Thompkins, 78 Ohio St.3d at 387. Weight depends on the effect of the evidence in
inducing belief but is not a question of mathematics. Id. A weight of the evidence review
considers whether the state met its burden of persuasion. See id. at 390 (Cook, J.,
concurring) (as opposed to the burden of production involved in a sufficiency review).
       {¶41} When a defendant claims the conviction is contrary to the manifest weight
of the evidence, the appellate court is to review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses, and determine whether,



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in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220,
citing Thompkins, 78 Ohio St.3d at 387. Nevertheless, this discretionary power of the
appellate court to grant a new trial on these grounds is to be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction. Id.
       {¶42} Additionally, where a case was tried by a jury, only a unanimous appellate
court can reverse on the ground that the verdict was against the manifest weight of the
evidence. Thompkins, 78 Ohio St.3d at 389, citing Ohio Constitution, Article IV, Section
3(B)(3). The power of the court of appeals to sit as the “thirteenth juror” is limited in order
to preserve the jury's role with respect to issues surrounding the credibility of witnesses
and the weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 389.
       {¶43} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-
6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. The trier of fact occupies the best position
from which to weigh the evidence and judge the witnesses' credibility by observing their
gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). We therefore generally proceed under the premise that
when more than one competing interpretation of the evidence is available and the one
chosen by the jury is not unbelievable, we do not choose which theory we believe is more
credible and impose our view over that of the jury. State v. Gore, 131 Ohio App.3d 197,
201, 722 N.E.2d 125 (7th Dist.1999).
       {¶44} Appellant refers this court to the arguments he presented under his
sufficiency assignment of error on the element of prior calculation and design. We already
discussed various arguments in the first assignment of error where Appellant placed
them. Whether the victim owned a .22 caliber firearm, kept it on a hot tub, or pointed it at
Appellant during an argument in the basement were jury questions.                The victim’s
excitement to meet Appellant was at odds with Appellant’s expressed reason for meeting
the victim, suggesting Appellant gave the victim the impression of a rendezvous. As the
state points out, it does not seem credible that Appellant would plan to bring his wife and



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her child to the victim’s house later that day if he was planning to end the affair earlier in
the day. Appellant arrived well before the victim, and the shooting occurred soon after
the victim arrived. The question of a staged robbery was a jury question. As previously
observed, the lack of Appellant’s DNA on drawer handles does not mean he did not open
them; the victim’s DNA could not be discovered on most of them either and he lived there.
And, if an argument was occurring on the first floor while the victim was opening his
cupboards and drawers, it is questionable why both Appellant and the victim would then
end up in the small area in the basement by the hot tub.
       {¶45} Appellant urges a person would not plan to shoot his best friend at that
friend’s house in the middle of a Sunday afternoon in May when people are likely to be
outside. He notes he admitted to the shooting but did not confess to a planned event.
Again, the jury was not required to believe the final story Appellant related to the police.
Even that story placed him standing above an incapacitated victim who had been shot in
the back/top of the head and firing a second, more centered, and fatal shot into the back
of the victim’s head. We note Appellant wished the jury to disbelieve certain aspects of
his story. That is, he demonstrated that he stood above the victim who was on the floor
for the second shot; but, the victim’s second wound displayed a gunshot residue pattern
suggesting a closer or angled contact wound. He sought to have this interpreted as
meaning the second shot actually occurred during the struggle (rather than as he
demonstrated it).     However, one could reasonably find the fatal shot occurred as
Appellant stood over the incapacitated victim but then bent down to ensure the second
shot did the job the first shot failed to do. Jurors are free to believe some, all, or none of
the testimony of each witness, and they may separate the credible parts of the testimony
from the incredible parts. State v. Barnhart, 7th Dist. Jefferson No. 09 JE 15, 2010-Ohio-
3282, ¶ 42, citing State v. Mastel, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971).
       {¶46} Appellant also suggests the scalp tissue would not have traveled through
the air to the washing machine if he was pressing the victim down by the head but states
it could have landed there if the motion was a dynamic pushing of the victim. The tissue
also could have traveled by the violent explosion of a gunshot wound if the victim was
walking through his basement when he was shot through the top of his hat and head,
causing his hat to land on the hot tub with part of the dislodged scalp tissue remaining



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just outside the exit hole in the hat. Plus, Appellant’s forensic pathologist found physics
would not support the tissue location if the victim’s head was faced to the floor. He did
not opine on the physics of the matter if the victim was walking or standing and was shot
from behind at a close or intermediate range. In any event, a BCI agent warned that
scene recreation from tissue trajectories may not be scientifically reliable in this case.
       {¶47} As previously noted, circumstantial evidence inherently possesses the
same probative value as direct evidence. Treesh, 90 Ohio St.3d at 485. Upon reading
the entire transcript and viewing all of the evidence presented, including that set forth in
the Statement of the Case above, we conclude the verdict is not contrary to the manifest
weight of the evidence. The jury did not lose its way in finding Appellant guilty of
aggravated murder. This assignment of error is overruled.
                      ASSIGNMENT OF ERROR THREE: MIRANDA
       {¶48} Appellant’s third assignment of error provides:
       “THE    TRIAL     COURT      ERRE[D]      IN   FAILING     TO    SUPPRESS        THE
INTERROGATION VIDEO AS DEFENDANT-APPELLANT WAS IN CUSTODY FOR
PURPOSES OF MIRANDA.”
       {¶49} Appellant filed a motion to suppress his statements due to the failure to
provide Miranda warnings until just before the detective asked him to repeat his statement
to another officer.    He argued his encounter at the police station was objectively
transformed from a voluntary interview into a custodial interrogation, citing to certain
statements by the detective beginning with “I know you had something to do with it” (which
occurred approximately 1 hour and 20 minutes after Appellant first entered the interview
room). The trial court watched the video interview, listened to oral arguments, and
overruled the motion to suppress. (6/28/17 J.E.; 7/6/17 J.E.).
       {¶50} Regarding his re-statement of the final story to the other officer after
Miranda warnings were provided and regarding his final written statement, the defense
urged that statements repeated after Miranda warnings would not be admissible if the
original telling of the story was not admissible. See Missouri v. Seibert, 542 U.S. 600,
617, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (where a plurality held: “Because the
question-first tactic effectively threatens to thwart Miranda's purpose of reducing the risk
that a coerced confession would be admitted, and because the facts here do not



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reasonably support a conclusion that the warnings given could have served their purpose,
Seibert's postwarning statements are inadmissible”) (with a fifth justice holding this test
should only apply where the two-step interrogation technique was a deliberate Miranda
violation).   The issue as to the post-Miranda statements would arise only if the
interrogation became custodial at certain earlier points, and the state’s response focuses
on Appellant’s initial query as to whether Miranda warnings were needed earlier since
Appellant was relying on self-defense.
       {¶51} The warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d 694 (1966) are required only if a suspect is subjected to custodial
interrogation. The ultimate question is whether there was a formal arrest or a restraint on
the freedom of movement of the degree associated with a formal arrest. California v.
Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983).                    The
determination of whether a custodial interrogation has occurred requires an objective
inquiry into whether a reasonable person would have felt he was not at liberty to terminate
the interview and leave. Howes v. Fields, 565 U.S. 499, 509, 132 S.Ct. 1181, 182 L.Ed.2d
17 (2012). A “determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating officers or
the person being questioned.” Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526,
128 L.Ed.2d 293 (1994). It has thus been said an officer’s unarticulated plan has no
bearing on the question of whether a suspect was in custody at a particular time.
Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).
       {¶52} Miranda warnings are not required “simply because the questioning takes
place in the station house, or because the questioned person is one whom the police
suspect.” Beheler, 463 U.S. at 1125, quoting Mathiason, 429 U.S. 492, 495, 97 S.Ct.
711, 50 L.Ed.2d 714 (1977). The circumstances of each case influence the determination
of whether a person was “in custody” for purposes of Miranda protection, and one
circumstance may be that the defendant is the one who originally initiated communication
with police. See Beheler, 463 U.S. at 1125.
       {¶53} It is conceded Appellant appeared at the police station voluntarily with his
wife in order to supplement his statement given at the scene two days earlier and assist
police in finding his best friend’s killer. He entered the interview room at 7:39 p.m. without



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being searched or handcuffed. He was interviewed by one detective who was wearing
jeans and a short-sleeve shirt. The detective’s style was informal and understanding.
Appellant voluntarily provided DNA for exclusion purposes since he found the body. He
also voluntarily provided consent to search his phone. He provided background and
related his initial story. After Appellant started crying, the detective left the unlocked
interview room to get him paper towels and water.
      {¶54} The detective returned with questions about information found on
Appellant’s phone showing Appellant and the victim appeared to be more than friends.
Appellant then discussed their affair. The detective left the room again and returned to
tell Appellant that witnesses were reporting his wife knew about the affair. When the
detective asked if Appellant was in Bellaire earlier in the day, Appellant sobbed and
claimed he already said he texted the victim to say he drove by but no one was home; he
said to check his phone, estimating this was around 2:00 p.m. The detective said, “Relax.
We’re just talking.” Appellant cried and covered his face. When the detective voiced the
situation was starting to look “pretty messed up,” Appellant said, “I know it is” and “I’m
freaking out.” Appellant denied the victim wanted him to leave his wife, stating the victim
understood.
      {¶55} On appeal, Appellant concedes he was not in custody when the interview
began or for the first hour and twenty-some minutes he was in the interview room. Around
that time, however, he claims the interview turned custodial for purposes of Miranda.
First, it is alleged Miranda warnings should have been administered after Appellant asked,
“you guys really think” and then trailed off crying, to which the detective responded: “Not
think. I know you have something to do with this.”
      {¶56} The detective then mentioned Appellant’s GPS coordinates would be used
to show how long he was at the victim’s house. It does not appear the police had this
information or the police chief’s video yet. However, an officer's false statement about
having discovered certain incriminating evidence (such as the defendant’s fingerprints) at
the scene has no relevance to whether a person who voluntarily appears for an interview
was in custody. Mathiason, 429 U.S. at 495-496. Moreover, it has been observed that a
defendant’s “contention that he had to be given Miranda warnings once the investigative
process moved to the point where [the agent] was trying to obtain a confession is simply



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incorrect.”   United States v. Chee, 514 F.3d 1106, 1113-1114 (10th Cir.2008) (a
consideration is whether the environment became more restrictive).            “Even a clear
statement from an officer that the person under interrogation is a prime suspect is not, in
itself, dispositive of the custody issue, for some suspects are free to come and go until
the police decide to make an arrest.” Stansbury v. California, 511 U.S. 318, 325, 114
S.Ct. 1526, 128 L.Ed.2d 293 (1994).
       {¶57} Additionally, the detective appeared to be focusing on Appellant’s wife at
this point, asking if Appellant was present during the shooting and whether his wife killed
the victim. Appellant mentioned he came to the interview with the understanding the
police may discover his relationship with the victim. The detective noted the problems
associated with hiding facts and attempting to remember lies. Nearly 1.5 hours after
Appellant entered the interview room, the detective said there was no reason Appellant
could not go home with his family at the end of the day. (Video 2, Counter 1268**).
       {¶58} Although Appellant’s brief argues this actually meant that he was not free
to go until he provided more information, the detective’s comment does not equate with
a formal arrest or a restraint on the freedom of movement of the degree associated with
a formal arrest. In addition, the comment (on going home with his family) was made in
the context of a conversation about Appellant’s love for the victim causing him to risk the
loss of his wife and step-children if they discovered the affair. The detective followed
these statements with praise for Appellant’s character. He voiced a theory that the
shooting was an accident which caused a panicked post-shooting situation. Eventually,
Appellant told a story about an unidentified man shooting the victim, saying he heard the
shot but did not see the shooting. The detective asked if Appellant did it and then asked
if Appellant’s wife killed the victim. The detective criticized Appellant for bringing a child
to the scene knowing a dead body would be found.
       {¶59} Approximately 1.75 hours after Appellant entered the interview room, the
detective said people who hear the evidence may think Appellant was a “cold, calculated
assassin.” He said he was not accusing Appellant of purposely shooting the victim but
some “assholes” could paint a negative picture with the evidence while “sprinkling the gay
thing in there.” (Counter 1663**). Appellant characterizes this comment as a threat.
However, this was a prediction of how the situation could look, and Appellant’s



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relationship with the victim was relevant to the investigation of Appellant or his wife, whom
the detective again suggested was a suspect. The detective said the best state crime
scene agent worked the scene and would examine the evidence collected to come to a
conclusion, which could come down on him “like load of bricks.” (Counter 171***).
Notably, this seemed to be a prediction of future events, not a current expression. The
detective told some story about a child telling the truth after breaking a lamp, adding: “our
job is done. I mean we got a lot of shit to do but case closed.” He then said, “This is your
chance to get the truth out there.”       (Counter 175***).    The detective promised to
investigate and help prove Appellant’s story. Appellant thereafter changed the story and
said he not only heard but also saw the unidentified man shoot the victim, after which the
man then threatened to kill Appellant and to expose the affair to Appellant’s wife.
       {¶60} Appellant asks this court to consider all of this and conclude the encounter
turned custodial at the point the detective said it was time he called his “boss” to decide
what to do (approximately 2.25 hours had elapsed since he entered the interview room).
Around this time, the detective reiterated his thoughts about an elaborate cover-up,
reiterating it may be starting to look like “a cold, calculated plan” by a “premeditated
assassin.” When he asked if Appellant wanted to “roll the dice” or tell the truth, Appellant
then told the final story claiming it was self-defense.
       {¶61} Appellant suggests a reasonable person would have considered
themselves in custody after admitting to being present for the shooting by an unknown
man, suggesting one may believe they were now in custody for lying to police in reporting
the death. However, a reasonable person would not feel restrained to a degree equivalent
to an arrest due to the disclosure that he ran away in fear after someone shot his friend.
       {¶62} Appellant claims the reference to calling the boss would lead a reasonable
person to conclude they could not leave. However, the reference to his boss was not in
response to a query by Appellant (i.e., it was not in response to question as to whether
he can leave). And, the comment could convey an impression that Appellant was not in
custody and that the original status of the encounter had not changed from a consensual
interview. Furthermore, the detective did not then leave the room or make a call. Plus,
the detective disclosed he would investigate this new story even though he did not believe
it. As stated above, “Even a clear statement from an officer that the person under



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interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some
suspects are free to come and go until the police decide to make an arrest.” Stansbury,
511 U.S. at 325. There was no objective indication the non-custodial situation had turned
custodial at this point as no restraints on freedom associated with arrest had arisen.
       {¶63} Appellant contends that at the very least, the detective should have
provided Miranda warnings immediately after the self-defense story (approximately 2.5
hours into the interview) and before asking for a demonstration of the shooting. After the
story but before the demonstration, the detective told Appellant that he did not consider
the self-defense story “bullshit” (as he called the prior story). The detective said he had
some things to work out and had some questions about this new story. When Appellant
asked how his admission to the shooting helped him, the detective said he does not make
the decisions and would consult with his boss, the local investigating officer from Bellaire,
and the prosecuting attorney. (Counter 2314**). The detective said he did not think
Appellant was a bad guy. He then had Appellant demonstrate the shooting.
       {¶64} Contrary to Appellant’s suggestion, the length of the interview was not so
significant as to signal the situation had changed to custody. See, e.g., State v. Mason,
82 Ohio St.3d 144, 153-154, 694 N.E.2d 932 (1998) (finding Miranda not required where
the defendant agreed to second interview at police station and was interviewed for four
hours during which the door was not locked and the defendant was left alone at times);
Howes, 565 U.S at 515 (five to seven hours of questioning lasting beyond a prisoner’s
regular bedtime was not custodial where it took place in a conference room without
restraint and he could go back to his cell if he wanted).
       {¶65} Appellant also urges that a reasonable person would have considered
themselves in custody after admitting to the shooting. “[N]o Supreme Court case supports
[the] contention that admission to a crime transforms an interview by the police into a
custodial interrogation.” Locke v. Cattell, 476 F.3d 46, 53 (1st Cir.2007). Here, Appellant
went from seeking justice for his friend to blaming an unidentified man to admitting he
shot the victim. Yet, he claimed to have done so in self-defense after disarming the victim
but still during a fight/struggle.   The mere fact that the suspect made incriminating
statements during the interview, leading to his eventual arrest, does not convert a non-
custodial interview into one which is custodial. State v. Hess, 5th Dist. Fairfield No. 2003-



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CA-00098, 2004-Ohio-7311, ¶ 31; State v. Isaac, 2d Dist. Greene No. 2003-CA-91, 2004-
Ohio-4683, ¶ 26. See also Mason, 82 Ohio St.3d 144 (where the defendant’s statements
were not directly incriminating but were used against him as they conflicted with other
statements).
      {¶66} As the test is objective, the test is not whether the particular defendant (who
later ends up admitting his involvement) thinks he can leave but what a reasonable person
would think. The test is sometimes framed as what a reasonable person, innocent of an
offense, would think if being questioned. See, e.g., United States v. Galloway, 316 F.3d
624, 629 (6th Cir.2003); State v. Barnett, 2d Dist. No. 14019 (Aug. 31, 1994). In any
event, the physical re-creation itself, whereby the detective allowed Appellant to touch
him and place him in potentially risky positions, did not suggest the situation had
transformed into a custodial one.
      {¶67} The totality of the circumstances does not lead to a conclusion that the
undisputedly voluntary police interview transformed into a custodial interrogation before
the demonstration of the shooting, after which Miranda rights were provided. In other
words, the disputed points in the hour after the detective’s expression that he knew
Appellant “had something to do with it” do not show a change in the level of restraint or
the imposition of a restriction on Appellant to a degree associated with an arrest. A
reasonable person would be hoping the detective believed the self-defense story, not
thinking he was under arrest. This assignment of error is overruled.
               ASSIGNMENT OF ERROR FOUR: VOLUNTARY STATEMENT
      {¶68}    Appellant’s fourth assignment of error contends:
      “THE     TRIAL    COURT       ERRE[D]    IN   FAILING     TO     SUPPRESS       THE
INTERROGATION VIDEO AS DEFENDANT-APPELLANT’S CONFESSION WAS
INVOLUNTARY.”
      {¶69} As Appellant points out, whether a statement was voluntary is a separate
inquiry from the evaluation of whether a person was subjected to a custodial interrogation
for purposes of Miranda. See Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct.
2326, 147 L.Ed. 405 (2000). An involuntary statement is one where the defendant's will
has been overborne and his capacity for self-determination has been critically impaired
due to coercive police conduct. State v. Nields, 93 Ohio St.3d 6, 14, 752 N.E.2d 859



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(2001). In order to determine voluntariness, one views the totality of the circumstances,
which may include: age; mentality; prior experience with the criminal justice system;
length, intensity, and frequency of interrogation; physical deprivation of food, water,
medicine, or sleep; mistreatment; and improper threats or inducements. State v. Brooks,
75 Ohio St.3d 148, 154, 661 N.E.2d 1030 (1996), citing State v. Edwards, 49 Ohio St.2d
31, 40-41, 358 N.E.2d 1051 (1976).
       {¶70} Appellant sets forth facts such as: he was 30 years old, he graduated from
high school, and he had one prior criminal matter (at age 19). He states the interview
was long, intense, and emotionally-draining. He points to the detective’s exaggerations
and lies about the evidence discovered and says the detective “threatened” to paint him
as a cold, calculated assassin and expose his homosexual affair to the public while
suggesting the shooting was an accident. He also claims he could not sleep for the two
days between the shooting and the interview.
       {¶71} First, Appellant’s suppression motion was based on whether the voluntary
interview had turned custodial requiring mid-stream Miranda warnings. The motion did
not contend Appellant’s statement was involuntary. An evidentiary hearing was not held
on the matter, where evidence on the various circumstances could have been presented.
“By requiring the defendant to state with particularity the legal and factual issues to be
resolved, the prosecutor and court are placed on notice of those issues to be heard and
decided by the court and, by omission, those issues which are otherwise being waived.”
State v. Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994) (“in order to require a
hearing on a motion to suppress evidence, the defendant must state the motion's legal
and factual bases with sufficient particularity to place the prosecutor and court on notice
of the issues to be decided”). See also City of Xenia v. Wallace, 37 Ohio St.3d 216, 218,
524 N.E.2d 889 (1988) (“The prosecutor must know the grounds of the challenge in order
to prepare his case, and the court must know the grounds of the challenge in order to rule
on evidentiary issues at the hearing and properly dispose of the merits”); Crim.R. 47 (the
motion “shall state with particularity the grounds upon which it is made and shall set forth
the relief or order sought. It shall be supported by a memorandum containing citations”).
       {¶72} Specifically, where a suppression motion is filed asserting that Miranda
warnings were required due to a custodial interrogation, the state does not have the



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burden at a suppression hearing on the distinct issue as to whether a statement was
voluntary and a trial court does not commit error in failing to consider this issue if it was
not raised at any point. State v. Smith, 7th Dist. Belmont No. 15 BE 0064, 2017-Ohio-
2708, ¶52-54. In accordance, this issue of voluntariness has not been preserved.
       {¶73} In any event, there is no evidence on the record requiring a decision that
Appellant’s statements were involuntary. Appellant was thirty years old with a high school
degree and no signs of lacking intelligence. The interview was pre-planned at the scene.
He was the person who reported the homicide, stating he arrived at the victim’s house
and discovered the body. Appellant came to the police station with his wife voluntarily
two days after urging the detective to find the person who killed his best friend. The
interview began in the evening, but it was not late at night at the time he admitted to the
shooting. Appellant was given the choice as to whether he wanted to wait until the next
day. He gave consent to search his phone. He had foreknowledge of the interest in his
phone. (When police arrived at the scene, Appellant mentioned receiving text messages
from the victim at various times throughout the day, which could help establish time of
death and was advised to keep them.) At the beginning of the interview, Appellant was
instructed of his rights regarding voluntary consent to search and the right to refuse said
search in the absence of a search warrant.
       {¶74} During the interview, Appellant acknowledged he came to the interview
expecting he would have to discuss his affair with the victim. The length of the interview
was not inordinate, especially considering he does not allege coercion in the first hour of
the interview and the self-defense story began less than 2.5 hours into the interview.
There was no deprivation or mistreatment. There was no need to consider providing food
during this time. The detective provided water and paper towels (when Appellant initially
cried as he expressed grief for the victim). Appellant points to his sobbing as a factor
showing his vulnerability to coercion, but the detective testified he was not crying as much
it he tried to make it appear.
       {¶75} There was no sleep-deprivation as a result of the interview. Appellant states
he did not sleep the prior two nights. The state’s rebuttal witness testified Appellant
reported this to him at a psychiatric examination months later. (Tr. 1210). A person’s
statement that he was unable to sleep after a shooting need not be taken as a literal claim



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of zero sleep, even if Appellant mentioned this claim to the detective. Nor must it be taken
as truthful. A sleep-deprived condition was not evident in his appearance during the
police interview as he appeared alert and cognizant. Appellant’s mentality appeared
stable. There was no indication of drug or alcohol use. The intensity level may have felt
personally high because of what was at stake, but the detective did not yell at or degrade
Appellant. In fact, he used bonding tactics.
       {¶76} An officer’s use of deception about the evidence uncovered is not
necessarily coercive. See Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506
at ¶ 17 (where the police misled the defendant into thinking that the entire crime was on
videotape). Predictions about how others may interpret the evidence are not threats.
There were no improper inducements, and, a detective’s admonitions to tell the truth are
not improper. See State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d
1042, ¶ 29. See also Edwards, 49 Ohio St.2d at 41 (it was not coercive to advise the
defendant to tell the truth or to avoid getting caught “holding the bag”). In sum, the totality
of the circumstances does not require a finding that the defendant's will was overborne
and his capacity for self-determination was critically impaired due to coercive police
conduct. See Nields, 93 Ohio St.3d at 14. Accordingly, this assignment of error is
overruled.
                    ASSIGNMENT OF ERROR FIVE: SPOUSAL PRIVACY
       {¶77} Appellant’s fifth assignment of error alleges:
       “THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT’S
MOTION TO SUPPRESS, AND IN ADMITTING IN TO EVIDENCE, THE PORTION OF
THE    INTERROGATION           VIDEO     THAT      SECRETLY        RECORDED         MARITAL
CONFIDENCES IN VIOLATION OF THE FOURTH AMENDMENT.”
       {¶78} After the interview with the detective, the detective left and returned with
another officer. Appellant was advised that he was in a different position now as he could
face charges. Appellant was read his Miranda rights. Appellant then reviewed his story
with the other officer and provided a written statement. Thereafter, Appellant was left in
the room with his wife. The video system continued recording for the forty minutes they
were alone together.




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       {¶79} Appellant told his wife the victim asked him to leave her, slapped him, and
came at him with a gun. He said he was scared and did not know what to do, repeating
his statement that he shot the victim, the victim landed on the ground, and he shot the
victim again. Before the video interview was played to the jury at trial, defense counsel
objected to playing the end of the recording during which Appellant was left alone with his
wife. Counsel argued this contained privileged marital communications. (Tr. 925). The
state cited the Ohio Supreme Court’s Perez case. The court overruled the objection, and
the entire recording was played at trial.
       {¶80} In Perez, the Supreme Court held that a recorded conversation between
spouses need not be excluded by the spousal privilege statute because it was not
testimony and the face of the statute merely precludes a spouse from testifying to the
other spouse's statements. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920
N.E.2d 104, ¶ 113, 120, applying R.C. 2945.42. The Supreme Court also rejected claims
the taped conversations violated his right against self-incrimination or denied him due
process of law. Id. at ¶ 55-56, 123. On the latter topic, the Court pointed out “the marital-
communications privilege does not derive from the United States Constitution.” Id. at ¶
123.
       {¶81} Appellant acknowledges the Perez case but raises a Fourth Amendment
argument, citing this court’s Clemons case where we discussed the application of Fourth
Amendment protections to a police interview room recording of spousal communications.
The Perez case was not discussed in Clemons; although, Perez did not discuss the
Fourth Amendment. Under general Fourth Amendment principles, a communication
cannot be intercepted if there is an actual and justifiable expectation of privacy from the
eye and ear of the government; therefore, an individual's subjective expectation of privacy
is protected by the Fourth Amendment if that expectation is reasonable and justifiable.
State v. Clemons, 7th Dist. Belmont No. 10 BE 7, 2011-Ohio-1177, ¶ 61, citing State v.
Buzzard, 112 Ohio St.3d 451, 2007-Ohio-373, 860 N.E.2d 1006, ¶ 13-14. In making this
Fourth Amendment determination, the court must find: (1) the individual exhibited an
actual expectation of privacy by conduct showing he wished to preserve the matter as
private; and (2) this expectation of privacy is one which society is prepared to recognize




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as reasonable. Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d
365 (2000).
       {¶82} The Clemons case involved the recording of a conversation between the
defendant and his wife in an interview room at the Belmont County Sheriff’s office after
the defendant’s arrest. The room had one-way glass (which was not being used at the
time) and had a hidden camera in a power outlet. This court reviewed various cases cited
by the parties and found no Fourth Amendment violation. We distinguished cases where
an officer told the defendant his conversation with a visitor would not be recorded or where
the officer shut off a recording system at the defendant’s request but left behind a hidden
recorder. Clemons, 7th Dist. Belmont No. 10 BE 7 at ¶ 66. Here, Appellant does not
argue the detective assured him the conversation would not be recorded.
       {¶83} Contrary to Appellant’s suggestion, the mere fact that the one-way glass in
the interview room was covered over with carpet does not require exclusion of the spousal
conversation. The existence of the one-way glass was merely one of the facts mentioned
in Clemons as leading a reasonable person to believe the communications would not be
private; it was not held to be the dispositive ruling in the case. See State v. Paige, 7th
Dist. Mahoning No. 17MA33, 2019-Ohio-1088, ¶ 62 (rejecting the argument that cases
without one-way glass cannot rely on Clemons).
       {¶84} Specifically, the decision in Clemons concluded by agreeing with the case
law upholding the admission of conversations recorded from the back of a police car and
by finding there was no reason to distinguish between a police interview room and the
back of a police car for purposes of whether a person has an expectation of privacy.
Clemons, 7th Dist. Belmont No. 10 BE 7 at ¶ 75. We pointed out both are owned and
operated by the state for the express purpose of discovering crime and are often
employed for the temporary custody of arrestees; the general public has no reason to
meet with a confidante in a police interrogation room or to believe it is a sanctuary for
private discussions as it is not the type of public place where one would reasonably expect
his conversations will not be monitored. Id.
       {¶85} Appellant notes the Eleventh District has expressed disagreement with this
comparison and conclusion. State v. Williams, 11th Dist. Trumbull No. 2012-T-0053,
2013-Ohio-5076, ¶ 37. That court factually claimed that police cars usually have visible



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recording devices (aimed at the backseat occupants). The Williams court concluded:
“The problem in this case is that the interrogation room contained no indicia that the
activity could be monitored or recorded. * * * It is not reasonable to suggest that most
people would expect a thermostat to be a video and audio recording and monitoring
device. If the police truly believe that no reasonable person would have an expectation
of privacy in such a room, the recording equipment should not need to be disguised.”1 Id.
at ¶ 38. Nevertheless, the Eleventh District found the admission of a recording of the
defendant speaking to his mother was harmless. Id. at ¶ 41.
        {¶86} The holding in Clemons is the precedent followed in this district. The
greater weight of authority continues to follow such precedent. See United States v.
Lattner, E.D. Mich. No. 17-CR-20368 (Nov. 20, 2018). “It should not surprise anybody
that they might be subject to surveillance in a police station, especially in an interrogation
room. Whether the ultimate purpose is police safety or the collection and memorialization
of information, a reasonable person would expect that police would be keeping a close
eye on the goings-on of their stationhouse.” Id.
        {¶87} Furthermore, as the state alternatively points out, it was not the recording
of the conversation with his wife that led to Appellant’s conviction. A constitutional error
in admitting certain evidence is harmless beyond a reasonable doubt when “the remaining
evidence, standing alone, constitutes overwhelming proof of the defendant's guilt.” State
v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph six of the syllabus.
The disputed portion of the recording was duplicative and was harmless beyond a
reasonable doubt after the jury viewed the original interview with the demonstration and
the second interview during which Appellant wrote his final statement.
        {¶88} In any event, there is also no dispositive conflict with the Eleventh District’s
Williams case as the matter was raised in a suppression motion and heard by the trial
court in Williams. Here, the issue of whether there was a subjective and a reasonable

1 To the contrary, there are various reasons to refrain from exposing a recording device. An interviewing
officer attempts to build a rapport with a witness or suspect and is expected to elicit important information.
A visible camera can interfere with natural responses while a person is speaking to the officer, during which
interview there is no reasonable expectation of privacy. Also, it may be considered risky to leave exposed
and expensive equipment in a room where unknown entities are often left alone as the equipment could be
vulnerable to destruction. The observation also appears overly focused on a uniquely hidden camera
without consideration of the practice of audible recordings where rooms are merely wired for transmission
for observers located elsewhere.


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expectation of privacy in the police interview room was not presented to the trial court.
Counsel objected at trial based on spousal privilege, which is a statutory privilege dealing
with testimony. A Fourth Amendment suppression issue was not raised. Appellant’s brief
cites to his suppression motion; however, his motion to suppress did not raise this issue.
(As aforementioned, the motion sought suppression of his statement on the grounds the
interview turned custodial before the Miranda warnings were provided.)
       {¶89} Thus, there was no pre-trial motion raising the matter and no hearing on the
allegations where the evidence on the circumstances surrounding the room could have
been presented. (For all we know, there are signs posted upon entering the police station
or approaching the interview room warning about recordings occurring.               Appellant
essentially asks us to presume the recording device was hidden, suggesting this was the
same room as in the Clemons case but with the one-way glass covered.) As stated under
the prior assignment of error, the state has the right to be informed of the grounds on
which suppression of evidence is sought and the trial court does not err by failing to
suppress evidence on a ground not raised or heard. Shindler, 70 Ohio St.3d at 58; Smith,
7th Dist. Belmont No. 15 BE 0064 at ¶52-54. For all of the foregoing reasons, this
assignment of error is overruled.
              ASSIGNMENT OF ERROR SIX: GRAND JURY TRANSCRIPT
       {¶90} Appellant’s sixth assignment of error argues:
       “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENSE
COUNSEL ACCESS TO THE GRAND JURY TRANSCRIPT.”
       {¶91} A week after he was indicted, Appellant filed a motion for disclosure of
witnesses who testified before the grand jury and a motion for transcription of the grand
jury proceedings. He asked to be provided with a copy of the transcript or alternatively
for the court to conduct an in camera inspection of the transcript and to seal it for appellate
review. The reason provided for seeking the transcript was that those who testified before
the grand jury may have made inconsistent statements in the past or may testify
inconsistently at trial and the transcript would help prepare for trial. He also claimed that
evidence of prior calculation and design was lacking at the preliminary hearing.
       {¶92} At a hearing, the state agreed to disclose the names of the witnesses who
testified before the grand jury. The court found the defense presented no particularized



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need for the grand jury transcript, but agreed to order and read the transcript in case a
particularized need arose later. (6/27/17 Tr. 14). Counsel asked the court to hold the
motion in abeyance, and the court explained the motion would be considered withdrawn
without prejudice but could be reactivated by seeking a hearing on it. (6/27/17 Tr. 14-15).
The trial court conducted an in camera review of the grand jury transcript. (8/17/2017
J.E.). Appellant’s brief states the issue was re-raised at trial in chambers. He cites to the
sentencing transcript where he placed on the record that he requested the grand jury
transcript during trial claiming his particularized need was based on “the new DNA, the
touch DNA findings, and the gunshot residue relative to the camo hat.” The court
indicated this request had occurred as recited. (Sent.Tr. 22-23).
       {¶93} On appeal, Appellant states he demonstrated a particularized need
because: the DNA report from the swabbed drawer handles was not completed until
December 18, 2017; the state presented a theory about a staged robbery scene at trial;
and the test result showing gunshot residue on the victim’s hat was not reported until
December 21, 2017, which caused the forensic pathologist to change his opinion on the
muzzle distance for the first wound. If these facts were not known by the grand jury
witnesses, Appellant believes their testimony was likely inconsistent with these facts.
       {¶94} Because grand jury proceedings are secret, the defendant is not entitled to
grand jury transcripts before or during trial unless the ends of justice require it and the
defense demonstrates a particularized need for disclosure which outweighs the secrecy
need. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 141.
There is a particularized need when the circumstances show a probability that the
defendant will be denied a fair trial if he does not receive the grand jury transcript. Id. A
particularized need is not demonstrated by an allegation the grand jury issued an
indictment on the basis of inadequate or incompetent evidence. State v. Davis, 38 Ohio
St.3d 361, 365, 528 N.E.2d 925 (1988).
       {¶95} Moreover, it is insufficient to generally claim the grand jury testimony would
allow the defense to fully confront accusers as it might aid cross-examination or it may
contain material evidence. Id. at ¶ 142; State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-
4215, 954 N.E.2d 596, ¶ 44 (“speculative claim that the grand jury testimony might have
contained material evidence or might have aided his cross-examination does not



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establish a particularized need”); State v. Webb, 70 Ohio St.3d 325, 337, 638 N.E.2d
1023 (1994) (rejecting claim that grand jury testimony might have aided cross-
examination by revealing contradictions). The decision on a claim of particularized need
is within the trial court's discretion. Id.
       {¶96} Contrary to Appellant’s contention, the staged robbery theory existed from
the beginning of the case. As the state notes, Appellant pointed out the condition of the
drawers at the scene as the reason his wife instructed him to retrieve his gun and why he
entered the house with his gun drawn. There is also no indication this topic was raised
to the trial court as support for a particularized need or how it could imply inconsistencies.
(Sent.Tr. 22-23). As for forensic testing, the mere fact that relevant scientific test results
are returned after an indictment does not provide a particularized need for grand jury
transcripts.   If the test of the drawer handles was not yet complete at the time of
indictment, there would be no reason to testify about results at the grand jury hearing.
       {¶97} As for a changed opinion based on new information, the jury heard the
forensic pathologist who conducted the autopsy opine the first wound may be a contact
wound and then heard him change his opinion to intermediate range (but still less than 6
inches away) after learning a hat with two holes had been tested and discovered to have
gunshot residue. He did not testify before the grand jury. There was no indication the
grand jury testimony was needed because the pathologist learned about a test conducted
after the indictment.
       {¶98} Finally, a review of the grand jury transcript by this court establishes the trial
court did not err in refusing to disclose the transcript based on the allegations of
particularized need relayed to the court or for any other reason. There is no indication
the non-disclosure of the transcript affected the fairness of the trial, and the ends of justice
did not call for disclosure in this case.      In accordance, this assignment of error is
overruled.
               ASSIGNMENT OF ERROR SEVEN: CHALLENGE FOR CAUSE
       {¶99} Appellant’s seventh assignment of error alleges:
       “THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO DISMISS TWO
VENIREMEN FOR CAUSE.”




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       {¶100} Crim.R. 24(C) provides the reasons for challenging a juror for cause,
including if “the juror is possessed of a state of mind evincing enmity or bias toward the
defendant or the state” or “is otherwise unsuitable for any other cause to serve as a juror.”
Crim.R. 24(C)(9),(14). The rule adds: “but no person summoned as a juror shall be
disqualified by reason of a previously formed or expressed opinion with reference to the
guilt or innocence of the accused, if the court is satisfied, from the examination of the juror
or from other evidence, that the juror will render an impartial verdict according to the law
and the evidence submitted to the jury at the trial.” Crim.R. 24(C)(9).
       {¶101} During voir dire, a trial court has broad discretion in determining a juror's
ability to be fair and impartial, and the court's decision on a challenge for cause will not
be reversed unless the court clearly abused its discretion. State v. Trimble, 122 Ohio
St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 73; State v. Gross, 97 Ohio St.3d 121,
2002-Ohio-5524, 776 N.E.2d 1061, ¶ 33. An abuse of discretion involves an attitude that
is unreasonable, arbitrary, or unconscionable. State v. Clinton, 153 Ohio St.3d 422, 2017-
Ohio-9423, 108 N.E.3d 1, ¶ 46. A decision is considered unreasonable if there is no
sound reasoning process to support it. Id. The reviewing court defers to the trial court's
decision where a prospective juror was challenged for bias as the trial judge has the
opportunity to personally view and hear the prospective juror during voir dire. Trimble,
122 Ohio St.3d 297 at ¶ 73.
       {¶102} Appellant challenges whether two jurors were biased. First, Appellant
claims the trial court should have found cause to dismiss a juror who was a former police
officer. As the state points out, the mere fact a juror is a former police officer does not
rise to the level of a challenge for cause. See State v. Murphy, 91 Ohio St.3d 516, 527,
747 N.E.2d 765 (2001) (allowing a current police officer to remain on the jury); State v.
McGlothin, 1st Dist. No. C-060145, 2007-Ohio-4707, ¶ 11-12 (finding the trial court did
not err in refusing challenge to a retired police officer who insisted he would be a fair and
impartial juror).
       {¶103} In the Supreme Court’s Murphy case: the juror was an active police officer
who said “honor” would require him to follow the judge’s instructions; he said, “I will hear
the case as the facts are presented to me. I can't change who I am. * * * I don't feel it
would be slanted. Maybe somebody else would think it would be”; defense counsel asked



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what he thought about being in law enforcement and serving as a juror in an aggravated
murder case; and the juror answered, “I don't know. If I was you guys, I wouldn't want
me here, but that's your decision.” See Murphy, 91 Ohio St.3d at 527. The Court upheld
the decision to allow the police officer to remain on the jury as he indicated he could be
impartial. Id.
       {¶104} Appellant generally states the juror demonstrated a state of mind evincing
enmity or bias toward the state. However, the juror was questioned by the state, the
defense, and the court as to whether he was biased. He was formerly an officer in a
different village in the same county. He changed professions two years prior. He said he
had no current relationship with law enforcement and could understand both sides. (Tr.
28-29). When defense counsel asked if he could be fair and impartial considering his law
enforcement training, the juror answered that he did “not play unfair.” (Tr. 130). He
agreed his law enforcement background was part of his life experience. The court began
questioning him, and he told the court he was not biased and could judge the case based
solely on the evidence presented in the courtroom and law provided by the court. (Tr.
132-133). When asked about having a gun drawn on him in the past, he insisted he could
be fair and impartial and not bring that experience into court. (Tr. 134).
       {¶105} There is no indication the court abused its discretion in refraining from
excusing this juror. In any event, this juror was removed due to issues with falling asleep
during trial. He was replaced by an alternate juror, and the defense did not use its
available peremptory challenge for alternate jurors. (Tr. 234). As the former police officer
did not participate in the verdict, prejudice is not apparent.
       {¶106} The second juror Appellant claims was biased was a pastor who answered
a question from the prosecution by saying he would do his best to be fair and impartial
and would “have to try my best to set aside” his feelings on same sex relationships. (Tr.
144-145). When the court asked if he was saying he could not set his feelings aside and
judge the case based on the evidence and law, he answered: “Yeah. I could set it aside.
I understand. I could set it aside. Yeah.” (Tr. 145). The court restated the question and
the juror provided the same answer. He expressed a belief he was the type of juror both
sides would want, stating he is good at listening to both sides and making fair decisions.
(Tr. 147).



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       {¶107} Defense counsel asked about his sermons on same-sex marriage. The
pastor said he preached from the Biblical standpoint that the decision was a choice rather
than a trait at birth and led to various problems. (Tr. 148-149). Defense counsel spoke
to the juror about whether he could separate the moral issue from the facts of the case.
(Tr. 150-151). The court then asked: ”Can you set aside your Biblical feelings or beliefs
regarding a homosexual relationship and judge this case regarding the murder charge
just on the facts and evidence and law presented in this courtroom?”             The juror
responded, “Yes. I mean I understand the responsibility to set it aside.” (Tr. 151). The
court concluded: “All right. Thank you. If we can move on, then, please.” The topic was
not subsequently discussed.
       {¶108} Soon thereafter, the pastor was removed from the jury when Appellant
exercised his first peremptory challenge. (Tr. 163). Appellant nevertheless points out
that he exhausted all four of his peremptory challenges during jury selection.           He
concludes he was forced to “waste” a peremptory challenge on the pastor due to the trial
court’s failure to excuse the pastor for cause.
       {¶109} “[I]f the defense peremptorily excuses the biased prospective juror, but the
defense exhausts its peremptory challenges before the full jury is seated, the erroneous
denial of a challenge for cause in a criminal case may be prejudicial.” State v. Williams,
79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997). We note the use of the word “may” in this
holding. Yet, the Court later reiterated this holding and added an observation from an
older case: “[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.” State
v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 87.
       {¶110} Besides the former police officer, Appellant does not specify what juror he
would have removed had the court dismissed the pastor for cause. However, as pointed
out above, the former police officer was replaced by one of the two alternates whom
Appellant did not challenge (by utilizing his additional, alternate peremptory challenge).
These circumstances would eliminate any constitutional claim. State v. Broom, 40 Ohio
St.3d 277, 288, 533 N.E.2d 682 (1988) (“in order to state a constitutional violation in this
situation, the defendant must use all of his peremptory challenges and demonstrate that



Case No. 18 BE 0011
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one of the jurors seated was not impartial”). See also Rivera v. Illinois, 556 U.S. 148,
161, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) (deprivation of peremptory challenge does
not require automatic reversal but requires showing of prejudice).
        {¶111} To the extent a claim under state statutory law or Crim.R. 24 is asserted
as requiring reversal merely because all peremptory challenges were exhausted,2 a party
waives any potential error by failing to challenge the prospective jurors at trial. State v.
Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Appellant claims the trial court informed
counsel to “look” at the court when it wished the court to consider a challenge for cause.
(Apt.Br. fn. 43). This may have prompted the court’s questioning of the two jurors now
contested; however, after hearing the court’s questioning and the responses thereto,
defense counsel moved on without placing an objection into the record at that point or
later during peremptory challenges or the seating of the jury. (Tr. 134, 151). Accordingly,
the trial court may have believed defense counsel was satisfied with the answers provided
upon inquiry of the jurors, at least for purposes of a challenge for cause. The trial court
inquired about whether counsel needed to approach the bench for cause at other times,
including before the exercise of the first peremptory challenge. (Tr. 162, 212, 232). This
counters the claim that the trial court did not want an oral objection as to a juror.
        {¶112} In any event, the trial court did not abuse its discretion in failing to remove
the pastor after hearing the pastor express that he could set aside his Biblical issue with
homosexuality, which would have applied to both the victim and the defendant. Notably,
the trial court excused a different juror who had a moral issue with homosexuality and
who could not assure the court he could be totally fair and impartial to the defendant. (Tr.
142). “The trial judge had the benefit of observing [the juror’s] demeanor and body
language, while we do not. Finding no abuse of discretion, we therefore defer to the trial




2 Whether an error in denying a challenge for cause is reversible merely because the defendant used all
peremptory challenges is left for the states. See Rivera v. Illinois, 556 U.S. 148. It is not automatically
reversible under federal law. United States v. Martinez–Salazar, 528 U.S. 304, 317, 313, 317, 120 S.Ct.
774, 145 L.Ed.2d 792 (2000) (right to peremptory challenge is not impaired where the defendant must use
one to cure error in denying a challenge for cause). There are few instances where a party need not show
an error was prejudicial in order to prevail; reversible-per-se structural error applies to a very limited class
of errors where the fairness of a proceeding as a whole is undermined by a constitutional error. See Premier
Therapy, LLC v. Childs, 7th Dist. No. 14 CO 0048, 2016-Ohio-7934, 75 N.E.3d 692, ¶ 38-45; State v. Jones,
1st Dist. No. C-170358, 2018-Ohio-4754, ¶ 18-26 (refusing to adopt an automatic-reversal remedy).


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judge's discretion to determine whether [the juror] could indeed follow the law and be fair
and impartial.” Williams, 79 Ohio St.3d at 8. This assignment of error is overruled.
                ASSIGNMENT OF ERROR EIGHT: MURDER INSTRUCTION
          {¶113} Appellant’s eighth assignment of error contends:
          “THE TRIAL COURT’S JURY CHARGE WAS IN ERR[O]R AS IT REQUIRED THE
JURY TO UNANIMOUSLY AGREE ON THE CHARGE OF AGGRAVATED MURDER
BEFORE CONSIDERING A LESSER INCLUDED OFFENSE.”
          {¶114} An “acquittal first” instruction involves charging the jury it must
unanimously find the defendant not guilty of the greater offense in order to then deliberate
on the lesser offense. In Ohio, the jury is not required to unanimously determine the
defendant is not guilty of the charged offense before considering a lesser included
offense. State v. Thomas, 40 Ohio St.3d 213, 220, 533 N.E.2d 286 (1988). The Supreme
Court found acquittal first instructions exacerbate the risk of a coerced verdict and should
not be provided. Id. (although the jury can be instructed to consider the greater offense
first).
          {¶115} Instructions are not improper on this ground merely because they are
“ambiguous as to the circumstances under which the jury was to consider the lesser
included offense of murder.” Id. The Thomas Court found the following instructions were
fairly ambiguous and not ideal but were not reversible:

          If you find that The State has proven beyond a reasonable doubt all of the
          essential elements of the crime of aggravated murder, then your verdict
          must be that the Defendant is guilty of aggravated murder; and you will not
          consider the lesser offense.

          However, if you find that The State has failed to prove beyond a reasonable
          doubt the element of prior calculation and design, then your verdict must be
          that the Defendant is not guilty of aggravated murder.

          You will then proceed with your deliberations and decide whether The State
          has proven beyond a reasonable doubt all of the essential elements of the
          lesser crime of murder.



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Id. The Thomas Court advised a better instruction would incorporate “inability to agree”
language (in order to explicitly advise the jurors they could consider the lesser included
offense if they found the defendant not guilty of the greater offense or if they could not
agree on that offense). Id. at 220-221.
       {¶116} Appellant argues the trial court improperly gave an “acquittal first”
instruction and suggested to the jury they had to unanimously find him not guilty of
aggravated murder before considering the charge of murder. Initially, the trial court
stated:
       If you find that the state failed to prove beyond a reasonable doubt all of the
       essential elements of aggravated murder, then your verdict must be not
       guilty of that offense as stated; and in that event, you will continue your
       deliberations to decide whether the State has proved beyond a reasonable
       doubt all of the essential elements of the lesser included offense of murder,
       with a firearm specification, which is the same as aggravated murder but
       without the elements of prior calculation and design.
(Tr. 1230-1231).
       {¶117} Appellant seems to agree that an instruction such as this does not
expressly require an acquittal before considering the lesser included offense but merely
advises how to proceed if the jury were to find the defendant not guilty of the greater
offense. See State v. Taylor, 78 Ohio St.3d 15, 28-29, 676 N.E.2d 82 (1997) (an improper
“acquittal first” instruction was not provided merely because the court did not advise how
to proceed if they could not all agree on a life or death sentence). It is well-establish this
is not an “acquittal first” instruction. State v. Mason, 82 Ohio St.3d 144, 160-161, 694
N.E.2d 932 (1998) (upholding: “If you find the Defendant not guilty of Aggravated Murder,
you will then continue with your deliberations and determine whether or not the State of
Ohio proved beyond a reasonable doubt all the essential elements of the lesser crime of
murder”); State v. Allen, 73 Ohio St.3d 626, 638, 653 N.E.2d 675 (1995).
       {¶118} Appellant then asks this court to consider the trial court’s instructions on
how to complete the verdict forms. The court noted the first verdict form had “Guilty or
Not Guilty” printed underneath a blank line on which the jury would insert their choice if
they all agreed. The court stated: “And then if you find him guilty of aggravated murder,



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you jump to the gun specification; you don’t even go to the issue of murder.” Next, the
court explained if the jury found the defendant not guilty of aggravated murder, it would
proceed to the second verdict form to determine if he was guilty or not guilty of the lesser
included offense of murder. (Tr. 1235). Within the context of the instructions as to the
verdict forms, the court then concluded: “So, again, you go first to the issue of aggravated
murder. You either find him guilty or not guilty of aggravated murder. If you find him
guilty of aggravated murder, you then go to the firearm specification, skipping the murder
form. If you find him not guilty of aggravated murder, you go to the murder form * * *.”
(Tr. 1236).
       {¶119} First, the failure to add language on what to do if the jury was “unable to
agree” on the indicted offense could have been addressed before the instructions were
read to the jury, as the phrase was not in the written charge which was previously provided
to the attorneys. (Tr. 1218). See O.J.I. 413.21 (“If all of you are unable to agree on a
verdict of either guilty or not guilty of (the greater offense), then you will continue your
deliberation to decide whether the state has proved beyond a reasonable doubt all the
essential elements of the lesser included offense of * * *”). The failure to add this
instruction is not plain error. See, e.g., Taylor, 78 Ohio St.3d at 28-29 (finding the
defendant should have asked the judge to instruct the jury it was not required to determine
unanimously that the death sentence was inappropriate before considering a life
sentence; “Although the instruction appellant now seeks may be a desirable one, its
absence was not plain error”).
       {¶120} Appellant believes the explanation regarding the verdict forms and the
recap with the addition of “You either find him guilty or not guilty of aggravated murder” is
akin to an acquittal first instruction when read with the other quoted portions of the
instructions. He notes the final statement was not in the written charge. However, there
was no objection to the jury instruction on this ground after the instructions were read to
the jury and counsel was asked to voice any objections. (Tr. 1241). “On appeal, a party
may not assign as error the giving or the failure to give any instructions unless the party
objects before the jury retires to consider its verdict, stating specifically the matter
objected to and the grounds of the objection.” Crim.R. 30(A). The failure to object after
the instruction was given combined with the failure to seek “inability to agree” language



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earlier constitutes waiver and is not reversible absent a finding of plain error. See Mason,
82 Ohio St.3d at 160.
       {¶121} “Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” Crim.R. 52(B). “Notice of
plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Landrum,
53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph three of the syllabus. To recognize plain error, the
appellate court must find an obvious error which prejudiced the appellant by affecting his
substantial rights; this requires a finding that there is a “reasonable probability that the
error resulted in prejudice.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 22. An appellate court's invocation of plain error is discretionary. Id. at ¶
23.
       {¶122}    Notably, instructions on how to fill out a verdict form have a different
function than instructions on the elements and how to proceed during deliberations. As
the court pointed out, the verdict forms are to be completed after the jury has deliberated
and reached a verdict.       (Tr. 1236-1237).   The statement, in the oral and written
instructions, that the jury need not complete the murder verdict form if they found the
defendant guilty of the indicted offense of aggravated murder does not present an
“acquittal first” issue.   Furthermore, the extemporaneous recap that a verdict form
contains two choices does not equate to an acquittal first instruction. Each challenged
statement must be read in context of the overall charge. State v. Madrigal, 87 Ohio St.3d
378, 396, 721 N.E.2d 52 (2000).
       {¶123} The trial court may not have provided the ideal instruction which would
have explained what to do if they could not unanimously agree on the aggravated murder
offense. Thomas, 40 Ohio St.3d at 220-221 (advising the ideal instruction would insert
“or are unable to agree” after “if you find him not guilty”). And, certain statements about
the completion of the verdict forms, when read alone, may appear ambiguous. However,
the court did not specify that the jury had to vote unanimously to acquit Appellant of
aggravated murder before deliberating on the lesser included offense of murder. See
Mason, 82 Ohio St.3d at 160-161; Taylor, 78 Ohio St.3d at 28-29; Allen, 73 Ohio St.3d at



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638.   The court did not instruct that a hung jury on the indicted count prohibited
consideration of the lesser included count. An ambiguous instruction that fails to mention
what to do if there is an inability to agree does not equate to an acquittal first instruction.
Id. Reading the disputed portion of the instruction in context, plain error is not apparent.
This assignment of error is overruled.
            ASSIGNMENT OF ERROR NINE: VOLUNTARY MANSLAUGHTER
       {¶124} Appellant’s ninth assignment of error provides:
       “THE TRIAL COURT ERRE[D] AND ABUSED ITS DISCRETION IN FAILING TO
GIVE THE REQUESTED CHARGE OF VOLUNTARY MANSLAUGHTER.”
       {¶125} In discussing the written charge provided to the parties, Appellant’s
attorney stated that in addition to instructions on the lesser included offense of murder
and the affirmative defense of self-defense, he wanted an instruction on voluntary
manslaughter. (Tr. 1219). The state disagreed, arguing the defendant’s statement
focused on fear rather than anger. (Tr. 1222-1223). Defense counsel acknowledged that
fear would be insufficient but urged that an inference of anger can be made. (Tr. 1223-
1224). The court refused to give a voluntary manslaughter instruction. Defense counsel
renewed his objection after the court reviewed the instructions with the jury. (Tr. 1242).
       {¶126} Voluntary manslaughter is defined as knowingly causing the death of
another “while under the influence of sudden passion or in a sudden fit of rage, either of
which is brought on by serious provocation occasioned by the victim that is reasonably
sufficient to incite the person into using deadly force * * *.” R.C. 2903.03(A). Voluntary
manslaughter is an inferior-degree offense to aggravated murder (and murder) as its
elements are contained within the greater offense but it has mitigating elements as well.
State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272, 274 (1992) (rather than a lesser
included offense). When a defendant is tried for a greater offense such as murder and
the defendant is hoping for a verdict on voluntary manslaughter, the defendant must
establish by a preponderance of the evidence the existence of one or both of the
mitigating circumstances. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23
N.E.3d 1096, ¶ 153; State v. Rhodes, 63 Ohio St.3d 613, 617, 590 N.E.2d 261 (1992).
       {¶127} In general, a defendant is entitled to an instruction on an inferior degree
offense when the evidence presented at trial would reasonably support both an acquittal



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on the charged crime and a conviction of the inferior degree. Shane, 63 Ohio St.3d at
632 (the same test as applied when considering a lesser included offense instruction).
The trial court’s decision on whether a voluntary manslaughter instruction was warranted
is reviewed for an abuse of discretion. Thompson, 141 Ohio St.3d 254 at ¶ 152.
       {¶128} Voluntary manslaughter has both an objective component (involving
whether a serious provocation occurred and was sufficient to arouse the passions of an
ordinary person beyond the power of his control) and a subjective component (involving
whether this defendant was actually under the influence of sudden passion or in a sudden
fit of rage). Id. at ¶ 153. The Supreme Court found almost all the evidence cited by the
defendant in Thompson involved his fear the victim would harm him and held that
evidence a defendant feared for his personal safety is insufficient to demonstrate the
emotional state necessary to constitute sudden passion or fit of rage. Id. at ¶ 155-157
(where a police officer slammed the defendant on his car hood and threatened to let loose
his dog, which had been acting overly aggressive, and where a witness testified she
feared for the defendant’s life).     In upholding the refusal to instruct on voluntary
manslaughter, the Supreme Court observed: “nothing in the record indicates that [he]
actually was in a fit of passion or rage on the night in question.” Id. at ¶ 159 (noting there
was no evidence providing insight into the defendant’s actual state of mind or level of
agitation at the time of the shooting).
       {¶129} Appellant points to the evidence from his interview mentioning how the
victim yelled at him, slapped at him, and waved a gun around. He notes the relationship
between himself and the victim and points to the subject of their argument, including the
end of the relationship, Appellant’s wife, and missing money.
       {¶130} In the interview, Appellant said he felt threatened even after obtaining the
gun from the allegedly armed victim (who was ten inches shorter than Appellant). The
detective specifically asked Appellant if he was angry, and he responded, “a little bit but
* * *.” (Counter 2408**). When the detective interjected, “I’d be pissed too,” Appellant
said, “I felt threatened.” Appellant then asked, “What would you have done if someone
pulls a gun out on you and starts waving it at you?” He thereafter reiterated he was
“scared” because the victim was waving a gun. (Counter 2461**).




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       {¶131} When he retold the story to another officer, he said the victim was irate,
but he did not describe himself in similar vein. (Counter 2859**). He then provided a
written statement which said he was “scared and worried” while the victim was waving
the gun and then said, “I was scared and freaked out when he came at me with the gun
so I protected myself.” He explained what he did immediately after the shooting: “I
panic[k]ed and left. I was scared and didn’t know what to do other than throw the gun * *
*.” His comments to his wife also contained a statement that he was scared, with no hint
of anger.
       {¶132} Furthermore, Appellant’s expert was permitted to relate the story he told
her months after the shooting. She testified Appellant told her “he was fearful for his life
as a result of the gun being pointed at him.” (Tr. 1135). He told the state’s rebuttal expert
he was scared as well. (Tr. 1172).
       {¶133} There was no expression of Appellant subjectively being under the
influence of sudden passion or of being in a sudden fit of rage and no evidence indicating
this subjective component. Appellant described the victim as upset (because Appellant
was breaking up with him, only wanted to be friends, and would not leave his wife for the
victim). However, he consistently characterized his own mental state as fearful. See
State v. Williams, 7th Dist. Jefferson No. 11 JE 7, 2012-Ohio-5256, ¶24 (“voluntary
manslaughter requires proof that the defendant, not the victim, acted out of a fit of sudden
passion or rage”). A defendant’s presentation of evidence that he feared for his personal
safety is insufficient to demonstrate the emotional state necessary to constitute sudden
passion or fit of rage. Thompson, 141 Ohio St.3d 254 at ¶ 155-157. See also Williams,
7th Dist. Jefferson No. 11 JE 7 at ¶ 24 (“an instruction on voluntary manslaughter is
generally incompatible with and contradictory to a defense of self-defense”); State v.
Marcum, 7th Dist. Columbiana No. 04 CO 66, 2006-Ohio-7068, ¶ 46 (“a self-defense
theory is usually contradictory to proof of sudden passion or rage”). As in the Supreme
Court’s recent Thompson case, there was no evidence providing insight into the
defendant’s actual state of mind or level of agitation at the time of the shooting (besides
fear) and “nothing in the record indicates that [he] actually was in a fit of passion or rage
on the night in question.” Id. at ¶ 159. This assignment of error is overruled.




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                       ASSIGNMENT OF ERROR TEN: SENTENCING
       {¶134} Appellant’s tenth and final assignment of error provides:
       “AS     APPLIED,     R.C.    §2953.08(D)(3)      VIOLATES        THE     EIGHTH      AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL
AS SECTIONS 1, 2, 9, 16 AND 19 OF THE OHIO CONSTITUTION.”
       {¶135} At sentencing, the available sentences for the aggravated murder verdict
were: (a) life without parole; (b) life imprisonment with parole eligibility after serving
twenty years of imprisonment; (c) life imprisonment with parole eligibility after serving
twenty-five full years; or (d) life imprisonment with parole eligibility after serving thirty full
years. R.C. 2929.03(A)(1)(a)-(d). Appellant was sentenced to life without parole.
       {¶136} “A sentence imposed for aggravated murder or murder pursuant to
sections 2929.02 to 2929.06 of the Revised Code is not subject to review under this
section.”    R.C. 2953.08(D)(3).     We note an appellate court is also prohibited from
reviewing a joint sentence by division (D)(1), which provides: “A sentence imposed upon
a defendant is not subject to review under this section if the sentence is authorized by
law, has been recommended jointly by the defendant and the prosecution in the case,
and is imposed by a sentencing judge.”
       {¶137} In the past, these provisions were both in one division, and the Supreme
Court was asked to determine whether aggravated murder and murder were
unreviewable under the entire statute or whether the word “section” merely referred to the
division. In finding the language unambiguous, the Court declared the statutory provision
(“A sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to
2929.06 of the Revised Code is not subject to review under this section”) “clearly means
what it says: such a sentence cannot be reviewed.” State v. Porterfield, 106 Ohio St.3d
5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 17.
       {¶138} The Court agreed with the Eighth District’s holding in State v.
Hollingsworth, 143 Ohio App.3d 562, 758 N.E.2d 713 (2001): “a sentence imposed for
aggravated murder is not subject to review by a court of appeals.” Porterfield, 106 Ohio
St.3d 5 at ¶ 18. The Supreme Court concluded: “* * * R.C. 2953.08(D) clearly precludes
review of individual murder sentences imposed pursuant to R.C. 2929.02 to 2929.06 * *
*.” Id. at ¶ 19 (but finding the consecutive nature of two murder sentences could be



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reviewed). In support of a holding that there is no other type of appellate review besides
through this statute, courts often point to a statement that R.C. 2953.08 “specifically and
comprehensively defines the parameters” of appellate review for felony sentences, which
was made in the recent case of State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
59 N.E.3d 1231, ¶ 21.
       {¶139} Appellant argues the unreviewability of his aggravated murder sentence
violates the Eighth Amendment and its counterpart in the Ohio Constitution, Article I,
Section 9. He relies on comments made in a “Statement of Justice SOTOMAYOR
respecting the denial of certiorari” in an appeal from an Ohio case. In Campbell, the
defendant initially argued the trial court imposed a sentence of life without parole for
aggravated murder without first considering the statutory factors set forth in R.C. 2929.12.
The Eighth District found the sentence unreviewable pursuant to R.C. 2953.08(D)(3).
State v. Campbell, 8th Dist. No. 103982, 2016-Ohio-7613, ¶ 16. The court said there is
no constitutional right to appellate review of a criminal sentence and the only right to
appeal is the one provided by statute. Id. at ¶ 14 (and also found a consecutive sentence
issue moot where the aggravated murder sentence was life without parole.)
       {¶140} The Ohio Supreme Court declined to accept the appeal for review. State
v. Campbell, 149 Ohio St.3d 1464, 2017-Ohio-5699, 77 N.E.3d 988. The United States
Supreme Court denied the defendant’s petition for a writ of certiorari without opinion.
Campbell v. Ohio, __ U.S. __, 138 S.Ct. 1059, 200 L.Ed.2d 502 (2018). One justice,
however, made comments on the Eighth Amendment, stating the parallels between a
death sentence and a sentence of life imprisonment without parole may raise Eighth
Amendment concerns with Ohio’s statute making the latter sentence unreviewable.

       Our Eighth Amendment jurisprudence developed in the capital context calls
       into question whether a defendant should be condemned to die in prison
       without an appellate court having passed on whether that determination
       properly took account of his circumstances, was imposed as a result of bias,
       or was otherwise imposed in a “freakish manner.” And our jurisprudence
       questions whether it is permissible that Campbell must now spend the rest
       of his days in prison without ever having had the opportunity to challenge
       why his trial judge chose the irrevocability of life without parole over the


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        hope of freedom after 20, 25, or 30 years [which the trial judge could have
        chosen to impose].

Campbell, __ U.S. __, 138 S.Ct. at 1060 (“Statement” by Justice Sotomayor). This justice
also said the defendant failed to raise the Eighth Amendment issue below (footnoting that
he raised only equal protection and due process) and opined Ohio courts should be
vigilant in considering the Eighth Amendment issue in the appropriate case. Id. at 1061,
fn.3.
        {¶141}   Appellant utilizes these observations to contend the application of R.C.
2953.08(D)(3) to his sentence of life without parole would violate the Eighth Amendment
(prohibiting cruel and unusual punishment) because the trial court was biased against
him and his history did not suggest such a lengthy sentence was appropriate.              In
attempting to show the trial court’s animus against him, he first cites comments made at
a bond hearing nine months before sentencing. He contests the court’s excessive volume
and the “disdain dripping” from the court’s comments about the impact of witnesses put
on by the defense in favor of bond reduction. Yet, the court validly noted the state’s case
showed the defendant led a secret dual life and took his own wife and daughter to the
scene of the shooting to discover the body. (Bond Hrg. 104-105). In addressing risk of
flight, the question of how well a bond witness really knew the defendant is pertinent.
Appellant states bias can be seen in the court’s characterization of his dual life as
“peculiar” and stating he lied “through his teeth to his wife and child” (when he took them
to the scene).    However, these comments made at a bond hearing in response to
contentions he was not a flight-risk are not concerning.
        {¶142} Furthermore, alleged bias of the trial court must be addressed by an
affidavit of disqualification filed in the Ohio Supreme Court. R.C. 2701.03(A). The
appellate court generally lacks jurisdiction to reverse judgments based upon bias. See
Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978). This applies not
only to events allegedly indicating bias before and during trial but also to comments at
sentencing. State v. Power, 7th Dist. Columbiana No. 12 CO 14, 2013-Ohio-4254, ¶ 13-
21 (with an exception for comments during trial if a court’s bias influenced the jury).




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      {¶143} Appellant next presents an example of alleged bias occurring during a side
bar. Defense counsel had asked a witness if he was aware a forensic pathologist
determined the second shot could not have created the wounds. (Tr. 1192). Appellant
complains the trial court loudly said the question was “a mischaracterization” of prior
testimony. Defense counsel objected to the court making this comment in front of the
jury. (Tr. 1193). The court responded: “that was not in front of the jury. Now, as you two
are walking away, I may have spoken too loud * * *.” The court then instructed the jury to
disregard any comments overheard during the sidebar. (Tr. 1194). Any issue with the
jury was cured. In any event, the use of the word “mischaracterization” did not indicate
bias. Notably, the witness did not make a blanket statement that the second shot could
not have created the wound; such opinion was qualified and related to whether it could
have created the wound if Appellant was standing straight up and the victim was on the
ground.
      {¶144} Finally, Appellant turns to the sentencing hearing.             Under rare
circumstances, biased comments at sentencing can be reviewed for due process
violations, but this is reserved for extreme cases or those involving a constitutionally
protected status. State v. Corchado, 7th Dist. Mahoning No. 16 MA 0155, 2017-Ohio-
4390, 93 N.E.3d 150, ¶ 14, citing Power, 7th Dist. Columbiana No. 12 CO 14 and State
v. Arnett, 88 Ohio St.3d 208, 218, 724 N.E.2d 793 (2000) (addressing a comment alleged
to involve religion). Appellant does not specify this principle, instead relying on the
Sotomayor statement on concerns of bias when issuing a life without parole sentence as
potentially implicating the Eighth Amendment.
      {¶145} Although the record does not indicate volume or tone, Appellant states the
trial judge had so much animosity that he even yelled at the prosecutor for mentioning a
preferred phrasing as to the sentence on the firearm specification.             Appellant
characterizes the court’s comments at sentencing as a “tirade” lacking in meaningful
analysis of relevant mitigating factors. Yet, the court announced its consideration of the
principles and factors contained in sentencing statutes such as R.C. 2929.11 and R.C.
2929.12.   The court also noted its consideration of all the evidence from trial, the
testimony of Appellant’s family from the bond hearing (which defense counsel asked him
to consider for sentencing), and psychological reports that were not introduced at trial



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(which defense counsel also submitted at sentencing). (Sent.Tr. 14). The court also
considered the pre-sentence investigation previously ordered.            Thus, contrary to
Appellant’s contention, the court did consider mitigating evidence.
       {¶146} In arguing bias, Appellant also points to the detective’s words during the
interview concerning a “cold calculated assassin.” In discussing the need to protect the
public, the court observed that if Appellant could do this “to someone he loved and his
best friend, what could he do to his enemy or someone who opposed him?” (Sent.Tr.
15). Contrary to Appellant’s contention, this was not an indication of bias but a way of
addressing the likelihood of recidivism and the concerns for public safety. As to these
statements, Appellant also complains the court adopted the state’s “speculative” theory.
However, it was the jury who adopted the prior calculation and design theory; the court
could then proceed to sentence on the offense for which the jury rendered a verdict by
using the facts which supported that offense.
       {¶147} Opinions formed by the judge on the basis of facts in the record do not
constitute a basis for a bias or partiality motion unless they display a deep-seated
antagonism that would make fair judgment impossible, and it is not reversible error for a
sentencing judge, in explaining his sentence, to make critical statements about a
defendant's conduct based upon the facts of the case presented to the court. State v.
Power, 7th Dist. Columbiana No. 12 CO 14, 2013-Ohio-4254, ¶ 26-28 (“a judge is
encouraged to place a rationale for a sentence on the record, and we cannot reverse
every time a judge happens to label the behavior at issue with an adjective that offends”
the convicted defendant), citing State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937
N.E.2d 97, ¶ 49 (critical, disapproving, or even hostile statements ordinarily do not support
a bias challenge). As there is no indication of bias or a “freakish” failure to consider
mitigating evidence (as alleged by Appellant), the as-applied Eighth Amendment
argument presented by Appellant fails.
       {¶148} Furthermore, legislative enactments are strongly presumed to be
constitutional, and a statute will not be struck down unless the challenger establishes it is
unconstitutional beyond a reasonable doubt. State v. Weitbrecht, 86 Ohio St.3d 368, 370,
715 N.E.2d 167 (1999) (determining the sentencing statute for involuntary manslaughter
did not violate the cruel and unusual clause of the federal or state constitutions when the



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underlying offense was a minor misdemeanor, traffic offense). We note there is no
argument here that the statutory sentence is grossly disproportionate to the offense. In
addition, this court recently rejected an argument that this same statutory provision
violated the Eighth Amendment. See State v. Austin, 7th Dist. Mahoning No. 16 MA 68,
2019-Ohio-1185, ¶ 76, 84.
       {¶149} As therein mentioned, a plurality of the United States Supreme Court
found a sentence to life with no possibility of parole is not comparable to a death sentence
and is not that different from a sentence to life with a possibility of parole (especially for
an older defendant). Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115
L.Ed.2d 836 (1991) (refusing to extend the doctrine of proportionality or individualized
capital sentencing to life without parole). This court found “the reasoning of the plurality
in Harmelin is directly at odds with Justice Sotomayor's observation that life-without-
parole sentences, because of their likeness to death sentences, must be afforded
meaningful appellate review.” Austin, 7th Dist. Mahoning No. 16 MA 68 at ¶ 75. Likewise,
we do not find Appellant established beyond a reasonable doubt that R.C. 2953.08(D)(3)
is unconstitutional under the Eighth Amendment and the Ohio Constitution, Article I,
Section 9.
       {¶150} Lastly, we note that in addition to citing Article I, Section 9 (the counterpart
to the Eighth Amendment), the text of the assignment of error also lists Sections 1, 2, 16,
and 19 of Article I of the Ohio Constitution. Section 1 provides: “All men are, by nature,
free and independent, and have certain inalienable rights, among which are those of
enjoying and defending life and liberty, acquiring, possessing, and protecting property,
and seeking and obtaining happiness and safety.” Section 2 contains Ohio’s equal
protection clause. Section 16 provides in part: “All courts shall be open, and every
person, for an injury done him in his land, goods, person, or reputation, shall have remedy
by due course of law, and shall have justice administered without denial or delay * * *.”
Section 19 deals with eminent domain.
       {¶151} It cannot be fathomed how Section 19 applies. As to Section 16 (due
process), we note “there is no constitutional right to an appellate review of a criminal
sentence.” State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668 (1997),
citing Estelle v. Dorrough, 420 U.S. 534, 536, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1970) (“the



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right of appeal is not essential to due process, provided that due process has already
been accorded in the tribunal of first instance”). And, we discussed bias above. As to
Section 2 (equal protection), courts including this one have found aggravated murder is
unique and there is a rational basis for treating it different than other felonies in the realm
of sentencing. See Austin, 7th Dist. Mahoning No. 16 MA 68 at ¶ 68 (citing cases from
various districts).
       {¶152} Regardless, Appellant does not discuss the concepts within any section of
the Ohio Constitution except Section 9 of Article I (the counterpart to the Eighth
Amendment). He merely mentions in a footnote to his brief that Justice Sotomayor said
in a footnote that the Campbell defendant framed his arguments under the due process
and equal protection clauses, rather than under the Eighth Amendment (which her
statement revolved around). Appellant’s argument and summary focus on only the Eighth
Amendment. Due to the failure of briefing on the listed but not argued sections of the
Ohio Constitution, the brief is insufficient to raise arguments under those sections, and
the Eighth Amendment was addressed above. This assignment of error is overruled.
       {¶153} For all of the foregoing reasons, the trial court’s judgment is affirmed.



Donofrio, J., concurs.

D’Apolito, J., concurs.




Case No. 18 BE 0011
[Cite as State v. Kinney, 2019-Ohio-2704.]




         For the reasons stated in the Opinion rendered herein, the assignments of
 error are overruled and it is the final judgment and order of this Court that the
 judgment of the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs
 waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.

                                       NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
