[Cite as State v. Ferrara, 2015-Ohio-3822.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

JAMES P. FERRARA, 

 DEFENDANT-APPELLANT. 

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CASE NO. 14 MA 4 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 13CR633 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph Rivera 

Assistant Prosecutor 

21 West Boardman St., 6th Floor 

Youngstown, Ohio 44503-1426 

For Defendant-Appellant Attorney J. Gerald Ingram 

7330 Market St. 

Youngstown, Ohio 44512 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: September 14, 2015 
[Cite as State v. Ferrara, 2015-Ohio-3822.]

DONOFRIO, P.J. 

{¶1} Defendant-appellant, James Ferrara, appeals from a Mahoning County 

Common Pleas Court judgment convicting him of three counts of aggravated murder, 

following a jury trial. 

{¶2} On December 14, 1974, Benjamin and Marilyn Marsh, along with their 

four-year-old daughter Heather, were found murdered in their Turner Road home in 

Canfield. Their one-year-old son was also home at the time, but only suffered a 

concussion and survived. Ben and Marilyn both died from gunshot wounds. Heather 

died from head injuries. Police located Marilyn’s car, which had been in the family’s 

garage, at a K-Mart parking lot in Austintown not long after the murders. 

{¶3} The Mahoning County Sheriff’s Department responded to the murder 

scene along with investigators from the Ohio Bureau of Criminal Identification and 

Investigation (BCI). The investigators lifted numerous latent fingerprints from 

different locations at the scene. Bullets were later recovered from the victims’ bodies. 

But no arrests were made at the time. 

{¶4} In 2009, Deputy Sheriff Patrick Mondora began familiarizing himself 

with the Marsh murder case. He contacted BCI fingerprint analyst Robin Ladd to see 

if BCI had any of the evidence from the Marsh case. Ladd located the Marsh file at 

BCI. She then entered the unidentified latent fingerprints found at the scene into the 

Automated Fingerprint Identification System (AFIS) database. The AFIS is an FBI 

database of known fingerprints. This technology was not available in 1974. 

{¶5} The AFIS returned three “hits” on latent prints from the Marsh house. 

The prints had been lifted from the man door leading into the Marsh garage. AFIS 

identified the prints as belonging to the left middle finger, left ring finger, and left 

pinkie finger of appellant. Once Ladd received these hits from AFIS, she pulled 

appellant’s fingerprint card and made a comparison to the latent prints found at the 

scene. She confirmed that the latent prints from the garage man door at the Marsh 

house were appellant’s fingerprints. Ladd conveyed this information to now Detective 

Patrick Mondora of the Mahoning County Sheriff’s Department. 

{¶6} Detective Mondora interviewed appellant in February 2011. Detective 
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Mondora learned that appellant had worked at General Motors from 1970 until 1983. 

Ben Marsh had also worked at General Motors up until the time of his death. 

Appellant told the detective that he did not know Ben Marsh, he did not know where 

Ben Marsh lived, and he did not even know where Canfield was. He told the 

detective he had never been to the Marsh house. 

{¶7} On June 20, 2013, a Mahoning County Grand Jury indicted appellant 

on three counts of aggravated murder, first-degree felonies in violation of R.C. 

2903.01(B)(C); one count of aggravated burglary, a first-degree felony in violation of 

R.C. 2911.(A)(1) and (B)(2); and one count of aggravated robbery, a first-degree 

felony in violation of R.C. 2911.01(A)(1) and (B)(2). The aggravated burglary and 

aggravated robbery charges were later dismissed because the statute of limitations 

had expired on these crimes. 

{¶8} The case proceeded to a jury trial. The jury found appellant guilty of all 

three counts of aggravated murder. The trial court subsequently sentenced appellant 

to three consecutive life sentences. Appellant filed a timely notice of appeal on 

January 6, 2014. 

{¶9} Appellant now raises six assignments of error. 

{¶10} Appellant’s first assignment of error states: 

 THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

ADMITTED EVIDENCE AND TESTIMONY REGARDING LATENT 

FINGERPRINTS WITHOUT PROPER AUTHENTICATION. 

{¶11} Appellant argues the trial court should not have admitted evidence of 

the latent fingerprints lifted from the outside of the Marshes’ garage man door. He 

asserts Michael Finamore never testified that the fingerprint card admitted at trial was 

the same card he saw BCI investigator Bernie Albert prepare at the Marsh home on 

December 14, 1974. Thus, appellant contends the evidence did not meet Evid.R. 

901. He also argues the state cannot prove the chain of custody. Additionally, 

appellant notes that photographs of the fingerprints’ location on the door were lost. 
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For these reasons, he asserts the trial court erred in admitting the fingerprint 

evidence. 

{¶12} The admission or exclusion of evidence is within the trial court's broad 

discretion and this court will not reverse its decision absent an abuse of that 

discretion. State v. Mays, 108 Ohio App.3d 598, 617, 671 N.E.2d 553 (8th 

Dist.1996). Abuse of discretion connotes more than an error of law or judgment; it 

implies that the trial court's judgment was unreasonable, arbitrary, or unconscionable. 

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

{¶13} Evid.R. 901(A) requires authentication or identification as a condition 

precedent to admissibility. The requirement is “satisfied by evidence sufficient to 

support a finding that the matter in question is what its proponent claims.” Evid.R. 

901(A). Examples of authentication or identification conforming with Evid.R. 901’s 

requirements are: 

(1) Testimony of witness with knowledge. Testimony that a matter is 

what it is claimed to be. 

* * * 

(8) Ancient documents or data compilation. Evidence that a document 

or data compilation, in any form, (a) is in such condition as to create no 

suspicion concerning its authenticity, (b) was in a place where it, if 

authentic, would likely be, and (c) has been in existence twenty years or 

more at the time it is offered. 

Evid.R. 901(B). 

{¶14} When dealing with chain of custody matters, the state bears the burden 

of establishing the proper chain of custody. In re Lemons , 77 Ohio App.3d 691, 693 

(8th Dist.1991). To meet its burden, the state must only show that it is reasonably 

certain that substitutions, alterations, or tampering did not occur. Id. The state does 

not have to negate all possibilities of substitution or tampering. Id. Breaks in the 

chain of custody go to the weight of the evidence, not its admissibility. State v. 
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Howell, 7th Dist. No. 10-MA-148, 2012-Ohio-4349, ¶79, citing State v. Blevins, 36 

Ohio App.3d 147, 150, 521 N.E.2d 147 (10th Dist.1987). 

{¶15} Michael Finamore was a Mahoning County Sheriff’s deputy at the time 

of the murders. He assisted BCI Agent Bernie Albert in processing the murder 

scene. (Tr. 391). Finamore testified that he watched Albert dust the garage man 

door for fingerprints. (Tr. 399). He then watched Albert lift the prints and place them 

onto white card stock. (Tr. 399-400). Finamore also witnessed Albert label the 

prints, date them, and initial them. (Tr. 400). Finamore then identified the fingerprint 

cards admitted into evidence as those he watched Albert prepare at the scene. (Tr. 

403-406; State Ex. 43A, B, C, D). 

{¶16} Robin Ladd, a BCI forensic scientist in the latent print division, testified 

that when evidence is submitted to BCI, it is assigned a case number and is placed 

into a secured property room. (Tr. 565). She testified that the fingerprints from the 

Marsh case were kept in BCI’s “old file room, which is the secured locked room that’s 

in the back area of [the] lab.” (Tr. 567-568). She stated latent prints from very old 

cases were kept with the files in the “locked room.” (Tr. 568). Ladd stated that, as 

far as she knew, the latent prints from the Marsh case were kept at BCI’s London, 

Ohio office since 1974. (Tr. 585). Ladd stated that the London office relocated once 

in 1999. (Tr. 589). On cross examination, Ladd stated that she first looked at the 

prints in 2009, and prior to that time she could only assume that they were located in 

the secured property room. (Tr. 590). But on redirect she testified that evidence 

stored at BCI is not accessible to anyone other than lab personnel. (Tr. 610). 

Likewise, to her knowledge, the fingerprints were never accessible to anyone other 

than lab personnel. (Tr. 610). Ladd also testified that she reviewed the reports of 

other examiners from the 1970’s and stated that everything in the Marsh case file 

“was exactly what went with that case file” so all of the evidence could be “taken 

back” to the original submissions. (Tr. 610). 

{¶17} Finamore’s and Ladd’s testimony support the identification and chain of 

custody for the fingerprints lifted from the Marsh home. 
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{¶18} Firstly, Finamore identified the fingerprints that Albert lifted from the 

crime scene on the white card stock that were dated and initialed by Albert. 

Finamore was a witness with knowledge because he witnessed Albert dust for and lift 

the prints. He gave testimony that the fingerprints were the same fingerprints lifted 

from the crime scene in 1974. Thus, the fingerprint evidence complied with Evid.R. 

901(1) because it was supported by testimony of a witness with knowledge. 

{¶19} Secondly, Ladd’s testimony is adequate to support the chain of custody. 

She testified that all of the evidence from the Marsh case matched the reports of the 

examiners from the 1970’s, so she was able to conclude that nothing was missing 

from the case file. She further testified that the fingerprint evidence was stored in a 

locked room in the BCI lab and only lab personnel had access to the room. Ladd 

could not state with one-hundred-percent certainty that the fingerprint evidence was 

stored in the locked room since 1974. But Ladd’s testimony that the evidence was 

where it was supposed to be and included everything from the 1970’s reports is 

sufficient to establish the chain of custody. The state only had to show it was 

reasonably certain that the evidence was not altered or tampered with. Lemons, 77 

Ohio App.3d at 693. Any evidence as to breaks in the chain of custody was to be 

considered by the jury as going to weight of the evidence, not to its admissibility. 

Howell, 7th Dist. No. 10-MA-148, at ¶79. 

{¶20} Based on Finamore’s and Ladd’s testimony, we cannot conclude that 

the trial court abused its discretion in admitting the fingerprint evidence. Accordingly, 

appellant’s first assignment of error is without merit. 

{¶21} Appellant’s second assignment of error states: 

 THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT 

ADMITTED HEARSAY TESTIMONY RELATED TO BALLISTICS 

RESULTS FROM 1976 WITHOUT PROPER FOUNDATION AND IN 

VIOLATION OF APPELLANT’S SIXTH AMENDMENT 

CONFRONTATION CLAUSE RIGHTS. 
-6-

{¶22} Here appellant contends the trial court should not have allowed 

testimony by forensic scientist Andrew Chappell and Detective Patrick Mondora 

regarding ballistics results from 1976 because the individual who performed the 

ballistics tests was not called to testify and could not be cross examined. Appellant 

asserts this testimony was inadmissible hearsay and violated his right to confront the 

witnesses against him. 

{¶23} Appellant failed to object to both Chappell’s and Detective Mondora’s 

testimony. Therefore, a plain error review applies. Plain error is one in which but for 

the error, the outcome of the trial would have been different. State v. Long, 53 Ohio 

St.2d 91, 97, 372 N.E.2d 804 (1978). 

{¶24} First, we must determine whether the ballistics testimony violated 

appellant’s right to confrontation. The Sixth Amendment’s Confrontation Clause 

provides that in criminal prosecutions, the accused shall enjoy the right to be 

confronted with the witnesses against him. 

{¶25} The testimony regarding the 1970’s BCI submission sheet was as 

follows. 

{¶26} Chappell is a BCI firearms forensic scientist who analyzed four bullet 

fragments recovered from the Marsh crime scene. Chappell completed his analysis 

in 2013. Chappell testified that the bullet evidence was originally submitted to BCI in 

1974. (Tr. 541). Chappell then testified as to his findings. One of his findings was 

that two of the bullet fragments that were found in Ben Marsh’s body were both fired 

from the same weapon. (Tr. 547-548). However, Chappell stated that the bullet 

fragments recovered from Marilyn Marsh did not exhibit any characteristics that 

would allow further analysis in order to determine if they too were fired from the same 

weapon. (Tr. 548). The prosecutor then asked Chappell if he knew how many 

projectiles were submitted for analysis in 1974. (Tr. 548). Chappell testified that six 

were initially submitted and that, according to the BCI case notes, all six bullets were 

matched to each other. (Tr. 548). Chappell testified that due to the soft nature of the 

lead and the manner in which the bullets are stored, the lead breaks down over time. 
-7-

(Tr. 550). 

{¶27} Appellant did not object to Chappell’s testimony but his counsel did 

cross examine Chappell on the issue. On cross examination, Chappell stated that he 

was only able to analyze four bullets and of the four, he could only conclude that two 

were fired from the same weapon. (Tr. 552). He also stated that at the most, the 

four bullets were fired from three weapons. (Tr. 552). He further agreed that the 

person who analyzed the bullets in 1976 was “not around” and all he could do was 

refer to their notes. (Tr. 555). 

{¶28} Detective Mondora also referred to the 1976 BCI submission sheet on 

re-direct examination. On cross examination, appellant’s counsel asked Detective 

Mondora if he knew when Chappell issued his ballistics report. (Tr. 671). Counsel 

elicited testimony that Chappell did not issue his report until August 28, 2013. (Tr. 

672). Counsel was attempting to show that the detectives did not have information 

regarding a .38 special until after appellant was indicted. (Tr. 672). But on re-direct, 

Detective Mondora referred to the 1976 BCI submission sheet and stated that it 

reported six bullets were analyzed and it was concluded that they were “.38 special, 

148 grain, lead, Remington wad cutters * * * all fired from the same weapon.” (Tr. 

716). The prosecutor used this testimony to show that the detectives had information 

in the case file indicating the murder weapon was a .38 special long before they saw 

Chappell’s ballistics report. (Tr. 716-717). Appellant did not object to this testimony. 

{¶29} Appellant objected to the admission of the BCI submission sheet from 

the 1976 bullet analysis. (Tr. 750; State Ex. 63). The trial court agreed with this 

objection and did not allow it into evidence. (Tr. 752). 

{¶30} A similar fact pattern existed in the United States Supreme Court case 

of Williams v. Illinois, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012). At Williams’ rape 

trial, a forensic scientist at the Illinois State Police lab testified that she matched a 

DNA profile produced by Cellmark, an outside laboratory, to a DNA profile the state 

lab produced using a sample of Williams’ blood. The scientist testified that Cellmark 

was an accredited lab and its business records showed that vaginal swabs taken 
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from the victim were sent to Cellmark and returned. She testified that she reviewed 

Cellmark’s report and made her own interpretations of their data. However, the 

Cellmark report itself was not introduced into evidence. Williams objected to the 

scientist’s testimony regarding Cellmark’s testing, arguing it violated his right to 

confront the witnesses against him. The trial court overruled the objection. The 

Illinois Supreme Court affirmed the trial court’s ruling, finding that the testimony did 

not violate Williams’ confrontation rights because Cellmark's report was not offered 

into evidence to prove the truth of the matter asserted. Williams appealed to the 

United States Supreme Court. 

{¶31} The Supreme Court affirmed the judgment finding that the scientist’s 

testimony did not violate Williams’ right to confrontation, however, the Court was 

divided regarding its reasoning. The plurality opinion found that “this form of expert 

testimony does not violate the Confrontation Clause because that provision has no 

application to out-of-court statements that are not offered to prove the truth of the 

matter asserted.” (Chief Justice Alito, along with Justices Kennedy and Breyer). Id. 

at 2228. The plurality also offered another, independent basis for its decision: 

[E]ven if the report produced by Cellmark had been admitted into 

evidence, there would have been no Confrontation Clause violation. 

The Cellmark report is very different from the sort of extrajudicial 

statements, such as affidavits, depositions, prior testimony, and 

confessions, that the Confrontation Clause was originally understood to 

reach. The report was produced before any suspect was identified. The 

report was sought not for the purpose of obtaining evidence to be used 

against petitioner, who was not even under suspicion at the time, but for 

the purpose of finding a rapist who was on the loose. And the profile 

that Cellmark provided was not inherently inculpatory. 

Id. 

{¶32} In this case, Chappell’s and Detective Mondora’s testimony regarding 
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the 1976 BCI submission sheet did not violate appellant’s confrontation rights. 

Firstly, the BCI submission sheet was not admitted into evidence. Secondly, like the 

report in Williams, the BCI submission sheet was produced long before any suspect 

was identified and it was not created for the purpose of obtaining evidence against 

appellant who was not a suspect at the time. And, as was the case in Williams, the 

BCI submission sheet in this case was not inherently inculpatory. It merely 

concluded that six bullet fragments recovered from the victims were fired from the 

same weapon. Thus, appellant’s right to confrontation was not violated. Therefore, 

the trial court did not commit plain error in allowing the witnesses to mention the BCI 

submission sheet. 

{¶33} Next, we must determine whether the ballistics testimony violated the 

hearsay rule. Hearsay is an out-of-court statement, offered in court, to prove the 

truth of the matter asserted. Crim.R. 801(C). Subject to certain exceptions, hearsay 

is inadmissible. Crim.R. 802. 

{¶34} Once again, the 1976 BCI submission sheet containing the ballistics 

results was not admitted into evidence. Thus, the submission sheet itself was not 

offered in court to prove the truth of the matter asserted. Additionally, Chappell 

testified as to his results and admitted that he was only able to examine four bullets 

due to the soft lead wearing down over time. (Tr. 548, 550). He testified that it was 

possible that the four bullets he considered were fired from three different weapons 

as he was only able to match two as being fired from the same weapon. (Tr. 552). 

And he testified his results were based on a reasonable degree of scientific certainty. 

(Tr. 549). Thus, he did not offer testimony to prove the truth of the 1976 ballistics 

results. Moreover, Detective Mondora only referenced the 1976 submission sheet on 

re-direct after defense counsel suggested on cross examination that the detectives 

had no information that the bullets were fired from a .38 caliber weapon until after 

appellant had been indicted. Thus, the defense invited this testimony by Detective 

Mondora. Therefore, we cannot conclude that the trial court committed plain error in 

allowing the above referenced testimony. Because the testimony was not offered to 
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prove the truth of the matter asserted, it was not hearsay. 

{¶35} Accordingly, appellant’s second assignment of error is without merit. 

{¶36} Appellant’s third assignment of error states: 

 MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT 

VIOLATED APPELLANT’S RIGHT TO A FAIR TRIAL PURSUANT TO 

THE FOURTEENTH AMENDMENT. 

{¶37} In this assignment of error, appellant asserts several instances of 

alleged prosecutorial misconduct. 

{¶38} The test for prosecutorial misconduct is whether the conduct 

complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d 

329, 332, 715 N.E.2d 136 (1999). In reviewing a prosecutor's alleged misconduct, a 

court should look at whether the prosecutor's remarks were improper and whether 

the prosecutor's remarks affected the appellant's substantial rights. State v. Smith, 

14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[T]he touchstone of analysis ‘is the 

fairness of the trial, not the culpability of the prosecutor.’” State v. Hanna, 95 Ohio 

St.3d 285, 2002-Ohio-2221, ¶61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 

S.Ct. 940 (1982). An appellate court should not deem a trial unfair if, in the context of 

the entire trial, it appears clear beyond a reasonable doubt that the jury would have 

found the defendant guilty even without the improper comments. State v. LaMar, 95 

Ohio St.3d 181, 2002-Ohio-2128, ¶121. 

{¶39} Appellant first takes issue with the prosecutor’s comment during closing 

argument: 

What’s really important here are the fingerprints of James 

Ferrara located on that back door. A house that he told Detective 

Mondora, I’ve never been there. I don’t even know Ben Marsh. I don’t 

even know where Canfield is. We know he lives in Austintown. He 

didn’t know where Canfield was? 
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Sure, everybody would deny. But you know what? You’re 

especially going to deny knowing anybody or ever being at that house if 

you killed the three people who lived in it. And that evidence, too, is 

uncontroverted. That’s what he said. You have heard nothing else. No 

explanation, nothing. He didn’t know Ben Marsh. He had never been 

to the house. Didn’t know where Canfield was. Never met the guy. 

(Tr. 830-831; Emphasis added). Appellant did not object to this comment. 

{¶40} Appellant contends the emphasized statements were comments on his 

failure to testify at trial, which violated his Fifth Amendment right to stand silent at 

trial. 

{¶41} Because appellant failed to object to the above referenced comments, 

we can only review this alleged prosecutorial misconduct for plain error. 

{¶42} A prosecutor may comment on the relative strength of the state's case, 

which includes commenting on the fact that the state's case has not been rebutted. 

State v. Ferguson, 5 Ohio St. 3d 160, 163, 450 N.E.2d 265 (1983). Moreover, a 

prosecutor’s reference during closing argument to uncontradicted evidence “is not a 

comment on the accused's failure to testify where the comment is directed to the 

strength of the state's evidence and not to the silence of the accused, and the jury is 

instructed not to consider the accused's failure to testify for any purpose.” Id. 

{¶43} In this case, the trial court instructed the jury not to consider appellant’s 

failure to testify for any purpose. (Tr. 875-876). Thus, it was permissible for the 

prosecutor to comment on the uncontroverted evidence that appellant denied 

knowing Ben Marsh, denied ever being at the Marsh house, and denied knowing 

where Canfield was located yet his fingerprints were found at the Marsh house. The 

prosecutor was simply commenting on the strength of the state’s case and was not 

commenting on appellant’s decision not to testify. Therefore, the prosecutor’s 

comments here did not constitute plain error. 

{¶44} Next, appellant takes issue with the prosecutor’s questioning of 

Chappell as follows. Chappell testified that he performed testing on projectiles 
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recovered from the Marshes’ bodies. (Tr. 544). The prosecutor then asked: “What 

are you able to say about those -- besides being from the .38 caliber classification, 

about those two bullets you were able to identify?” (Tr. 544). Once again, appellant 

did not object. Appellant asserts that prior to this question, there had been no 

testimony regarding the classification of the bullets and, therefore, the state was 

attempting to put facts into evidence that were not testified to. 

{¶45} While Chappell had not yet testified that the bullets were all from a .38 

classification, Chappell’s report had been identified for the jury and the prosecutor 

had asked Chappell some questions regarding his report. (Tr. 539-540; State Ex. 

45). And Chappell’s report concluded that the four bullets he analyzed were 

“determined to be a .38 caliber class (.38 Special, .357 magnum, .38 S&W, .38 Colt 

New police) lead bullet exhibiting six (6) lands and grooves with a left direction of 

twist.” (State Ex. 45). Chappell’s report was admitted into evidence. (Tr. 750). 

Thus, when the prosecutor asked Chappell the above quoted question, she was 

simply referencing his report which had already been introduced and was ultimately 

admitted. Therefore, her question did not constitute plain error. 

{¶46} Appellant next takes issue with the prosecutor’s continued questioning 

of Chappell as follows: 

A Based on the general rifling characteristics, the class 

characteristics that I mentioned earlier, I entered those into the 

database that’s maintained by the FBI, and was able to provide a list of 

firearms that have those same general characteristics, and therefore 

could have fired those bullets. 

Q What kind of characteristics did you find? Did you find the lands 

and grooves that we’ve talked about? 

A The characteristics that I’m using for this search are the caliber 

family, the number of lands and grooves, their direction of twist, and the 

widths of the lands and grooves. 

Q Do you know how many lands and grooves were on these? 
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A There were six. 

Q Do you know the direction of twist? 

A Left. 

Q And that information you put into your database? 

A Yes, I did. 

Q And what did you come up with? 

A I came up with a list of possible firearms. 

Q And you’re also included that in your report; is that right? 

A Yes, I did. 

Q Does your conclusion include weapons that are considered or 

called .38 specials? 

A Yes, it does. 

Q Out of the 12 guns you’ve listed, how many of those guns are .38 

specials? 

A Eight. 

(Tr. 544-545). On redirect, the prosecutor then asked: 

Q Mr. Chappell, you talked about matching two bullets to that list of 

guns, and eight of the twelve are .38 specials. Which two bullets have 

you identified that matched the .38 specials? 

A One - - I didn’t identify any to a particular firearm. 

(Tr. 547). Appellant asserts that this was an attempt to mislead the jury. 

{¶47} The prosecutor did ask Chappell which two bullets matched .38 

specials, which was an incorrect characterization of the evidence. There was no 

evidence that two of the bullets matched .38 specials. There was only evidence that 

two of the bullets matched each other and that all of the bullets were fired from a .38 

caliber weapon. But Chappell immediately corrected the prosecutor’s 

mischaracterization by stating that he did not identify any of the bullets to a particular 
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firearm. Therefore, appellant did not suffer any prejudice from the prosecutor’s 

question and no plain error resulted. 

{¶48} Next, appellant asserts that the prosecutor further attempted to mislead 

the jury in closing arguments: 

 Because that person’s dead, we have to have them [the bullets] 

reanalyzed. And the lead’s been knocking around. They talked about 

the lead being soft. And all he could say - - he’s honest. We want to 

represent that to you. Only two he can say matched now that are 

consistent from the same weapon. But the other two, they’re not from a 

.45 and a .40. He can say that they’re from .38s as well. He can still 

say that. 

(Tr. 862). Appellant contends this statement is simply untrue and was calculated to 

mislead the jury into believing the bullets recovered from Ben’s and Marilyn’s bodies 

matched one .38 special. 

{¶49} Appellant argues that the prosecutor misled the jury to believe that the 

bullets in this case came from a .38 caliber firearm. He contends this was highly 

prejudicial given his alleged statement to Deputy Fitzpatrick that a .38 special was his 

weapon of choice. 

{¶50} Chappell’s ballistics analysis clearly concluded the four projectiles 

recovered from Ben and Marilyn Marsh’s bodies were .38 caliber ammunition. (Tr. 

545; State Ex. 45). His report also listed the 12 possible types of firearms from which 

this .38 caliber ammunition was fired. (Tr. 545; State Ex. 45). Eight of the 12 listed 

firearms are .38 specials. (Tr. 545; State Ex. 45). The other four listed firearms are a 

.357 magnum, two .38 S&Ws, and a .38 colt new police. (State Ex. 45). 

{¶51} The prosecutor’s above-quoted statement was an accurate 

representation of the evidence. Chappell’s report concluded that the four bullets he 

examined were all from the .38 caliber class. (State Ex. 45). 

{¶52} Finally, appellant contends the prosecutor’s statement that Frank Boyle 
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testified the Marsh garage had a Genie garage door opener, used to open and close 

the garage door after the murders (Tr. 822), was not found anywhere in Boyle’s 

testimony. 

{¶53} Boyle was a family friend of the Marshes and worked with Ben Marsh at 

General Motors (GM). He, along with Ben’s father, discovered their bodies after the 

murders. Boyle testified that the GM plant supervisor called him when Ben did not 

show up for his shift at work. (Tr. 342). Boyle then went to the Marsh house to check 

on Ben. (Tr. 342). He testified that when he arrived the garage door was closed. 

(Tr. 344). Boyle stated that he and Ben’s father had to remove the front screen door, 

which was locked, to gain access to the front door for which Ben’s father had a key. 

(Tr. 345). Boyle also testified that the Marshes owned a truck and a car. (Tr. 349). 

He stated that when he arrived the truck was in the garage but the car was not. (Tr. 

349). The car was later found abandoned in a K-Mart parking lot. (Tr. 408-409). 

{¶54} Given this testimony, it was reasonable to infer that the person who 

killed the Marshes left in the family’s car and closed the garage door with an 

electronic garage door opener as he left. Therefore, while the prosecutor’s statement 

that Boyle testified the Marsh garage had a Genie garage door opener was incorrect, 

it was a reasonable inference to be drawn from the evidence. Moreover, the 

statement was not prejudicial in any way. 

{¶55} Accordingly, appellant’s third assignment of error is without merit. 

{¶56} Appellant’s fourth assignment of error states: 

 APPELLANT’S CONVICTIONS FOR THREE COUNTS OF 

AGGRAVATED MURDER WERE BASED UPON INSUFFICIENT 

EVIDENCE. 

{¶57} Appellant urges that his convictions were not supported by sufficient 

evidence. He contends the fingerprint evidence and ballistics evidence did not prove 

that he murdered the Marsh family. He notes there was no evidence inside of the 

house linking him to the murders. 
- 16 -

{¶58} Sufficiency of the evidence is the legal standard applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient as a 

matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 

N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v. 

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence 

is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the 

record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a 

light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt. Smith, 80 Ohio 

St.3d at 113. 

{¶59} The jury convicted appellant of three counts of aggravated murder in 

violation of R.C. 2903.01(B)(C), which provides: 

(B) No person shall purposely cause the death of another * * * while 

committing or attempting to commit, or while fleeing immediately after 

committing or attempting to commit, kidnapping, rape, aggravated 

arson, arson, aggravated robbery, robbery, aggravated burglary, 

burglary, trespass in a habitation when a person is present or likely to 

be present, terrorism, or escape. 

(C) No person shall purposely cause the death of another who is under 

thirteen years of age at the time of the commission of the offense. 

{¶60} There was no question in this case that the Marsh family was murdered 

when an intruder broke into their home. Deputy Coroner Dr. Joseph Orr testified that 

Ben’s, Marilyn’s, and Heather’s deaths were all homicides. (Tr. 512, 517, 521). The 

only question was whether the evidence proved that appellant was the person who 

murdered them. The state put forth the following evidence. 

{¶61} Finamore was the only witness to testify who was at the murder scene. 

Given that almost 40 years had passed from the time of the murders to the time of 

the trial, many of those involved in the initial investigation had passed away or were 
- 17 -

unavailable. Finamore testified that when he arrived at the scene he saw Marilyn 

Marsh’s body on the floor leading from the foyer into the kitchen. (Tr. 377). He saw 

Heather Marsh’s body in the foyer. (Tr. 377). He saw Ben Marsh’s body in the 

bedroom. (Tr. 378). 

{¶62} Finamore testified that at the time there was snow on the ground. (Tr. 

382). He observed one set of footprints that led from the driveway to the back of the 

house to the garage man door. (Tr. 382-383). The man door had three panes of 

glass and the bottom pane, above the lock, was broken out so that it appeared the 

intruder had reached in and opened the door. (Tr. 383). Finamore testified there 

were also two doors leading from the garage into the house, a storm door and a 

wooden door. (Tr. 381). The storm door was ajar and the wooden door had a boot 

print on it and appeared to have been kicked in. (Tr. 381-382). 

{¶63} Finamore stated that in addition to the numerous sheriff deputies on the 

scene, BCI Agent Bernie Albert responded. Finamore assisted Albert in processing 

the scene. (Tr. 391). He observed and assisted Albert as Albert dusted for 

fingerprints and lifted latent prints from several places in the house. (Tr. 394-399; 

State Exs. 43A, B, C, D). This included observing Albert dust for and lift the 

fingerprints on the garage man door. (Tr. 399-400). 

{¶64} Finamore testified that no weapons were found, nothing appeared to be 

missing, and the house did not appear to be ransacked. (Tr. 410). He further 

testified that while the Marsh family owned two vehicles, only one was found in their 

garage. (Tr. 407). The family’s Chevy Vega was not there. (Tr. 407-408). Finamore 

stated that the Vega was later located in a K-Mart parking lot in Austintown. (Tr. 408-

409). 

{¶65} Andrew Chappell, the BCI firearms forensic scientist, testified next. 

Chappell testified that he examined four bullets in this case that were recovered from 

the bodies. (Tr. 542, 543). He concluded that all four bullets had the same general 

rifling characteristics and two of the bullets had matching individual barrel engraved 

striations, meaning those two were fired from the same firearm. (Tr. 542). The other 
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two bullets did not have sufficient detail in order to identify or eliminate them as 

having been fired from the same firearm as the others. (Tr. 542). However, he was 

able to say that they were from the same class of bullets. (Tr. 549-560). Chappell 

stated that he looked at the caliber family, the number of lands and grooves, their 

direction of twist, and the widths of the lands and grooves. (Tr. 544-545). With this 

information, Chappell was able to come up with a list of 12 possible firearms that fired 

these bullets. (Tr. 544-545). All of the possible weapons were .38 caliber weapons. 

(State Ex. 45). Eight of the 12 were .38 specials. (Tr. 545; State Ex. 45). 

{¶66} Chappell further testified that lead is very soft and, over time, the lead 

wears down and becomes smoother, making it more difficult to make an 

identification. (Tr. 543). He acknowledged that in 1974 six bullets were submitted 

and, according to the case notes, were matched to each other. (Tr. 548). But he 

stated he did not know whether they had the capability back then to make a list of 

potential weapons that the bullets were fired from. (Tr. 548-549). Chappell stated 

that he reached his conclusions based on a reasonable degree of scientific certainty. 

(Tr. 549). 

{¶67} On cross examination, Chappell again stated that he was only able to 

conclude that two bullets were fired from the same weapon. (Tr. 552). Thus, he 

agreed that, at most, the four bullets were fired from three weapons. (Tr. 552). 

{¶68} Robin Ladd is a forensic scientist at BCI’s latent print division. She 

testified that a person’s fingerprints are permanent and unique for each individual so 

no two people have the same fingerprints. (Tr. 566-567). Ladd testified that BCI now 

has access to a database called the Automated Fingerprint Identification System. 

(Tr. 570). AFIS is a database of known finger and palm prints. (Tr. 570). AFIS was 

not available in the 1970’s. (Tr. 570). The technology was not available until the late 

1980’s. (Tr. 570). Ladd testified that AFIS helps her identify prints that she would not 

have been able to identify years ago. (Tr. 571). 

{¶69} Ladd testified that in reviewing the Marsh case file, she came across 

numerous latent fingerprint lifts. (Tr. 573). She identified some of the latent prints as 
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belonging to Ben Marsh. (Tr. 573-574). She then entered three fingerprints that 

were of sufficient quality into the AFIS database. (Tr. 574). Ladd stated that AFIS 

returned three “hits.” (Tr. 574). She testified that the three prints that generated the 

AFIS hits were lifted from the “door of the garage.” (Tr. 576; State Ex. 43A). AFIS 

identified the three prints as belonging to the left middle, left ring, and left little finger 

of appellant. (Tr. 576). 

{¶70} Ladd testified that the three prints identified as appellant’s were “very 

good quality” with very clear ridge detail. (Tr. 579). Once AFIS returned the hits, 

Ladd obtained appellant’s fingerprint card so that she could make a comparison. (Tr. 

580). Ladd testified that she compared appellant’s known fingerprints to those lifted 

from the scene and confirmed that the prints at the scene were made by appellant’s 

left middle, left ring, and left little fingers. (Tr. 582). She also testified that another 

fingerprint analyst independently verified that the three prints belonged to appellant. 

(Tr. 580-582). 

{¶71} Deputy Devin Fitzpatrick testified next. Deputy Fitzpatrick works at the 

county jail. He testified regarding a conversation he had with appellant on October 7, 

2013. Deputy Fitzpatrick stated that appellant approached him and asked him about 

his performance at the firing range. (Tr. 637). The two then got into a discussion 

about military experience and the skill levels of marksmanship in the military. (Tr. 

637). They also discussed the pros and cons of semiautomatic pistols and revolvers. 

(Tr. 638). Deputy Fitzpatrick explained to the jury that a semiautomatic pistol 

automatically chambers the round once the trigger is squeezed whereas on a 

revolver, when you squeeze the trigger the chamber turns. (Tr. 638). He further 

explained that with a semiautomatic the casings are discharged out of the side of the 

firearm but with a revolver the casings remain in the firearm. (Tr. 638). 

{¶72} Deputy Fitzpatrick testified that during his conversation with appellant, 

appellant asked him, “Do you know what my weapon of choice is?” (Tr. 638). He 

stated appellant then continued by answering his own question, “A .38 detective 

special.” (Tr. 638). Appellant told Deputy Fitzpatrick the reason for this was, “No 
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brass. No brass” and “You’re not gonna get any ballistics off of brass.” (Tr. 638-

639). Deputy Fitzpatrick explained that “brass” is the cartridge that is discharged 

from a semiautomatic or is maintained in a revolver. (Tr. 639). Finally, he testified 

that a .38 detective special was a revolver. (Tr. 638). 

{¶73} Detective Patrick Mondora was the next witness. He stated that he 

began looking into the Marsh case in 2009. (Tr. 652). He contacted Ladd at BCI to 

see if BCI had any of the evidence from the case. (Tr. 656). Detective Mondora 

stated that Ladd got back to him regarding latent prints lifted from the Marsh crime 

scene. (Tr. 657). Ladd also provided Detective Mondora with appellant’s name. (Tr. 

657). This sparked Detective Mondora’s investigation into appellant’s background. 

(Tr. 657, 660). Detective Mondora stated that he spoke to appellant on February 11, 

2010. (Tr. 661). Appellant told Detective Mondora that he worked at General Motors 

from 1970 until 1983. (Tr. 662). Through reading reports, Detective Mondora 

learned that Ben Marsh also worked at General Motors up until his death. (Tr. 662). 

Appellant also told Detective Mondora that he lived in Trumbull County in 1974, and 

moved to Austintown in 1976. (Tr. 662). 

{¶74} Detective Mondora asked appellant if he knew Ben Marsh. (Tr. 664). 

Appellant stated twice that he did not know him. (Tr. 664). Appellant told Detective 

Mondora that he did not know Ben Marsh, he was not friends with Ben Marsh, he did 

not talk to Ben Marsh, he did not know where Ben Marsh lived, and he did not know 

where Ben Marsh’s house was. (Tr. 664). Detective Mondora stated that at one 

point appellant asked “Where is Canfield?” and when the detective told him appellant 

again said that he did not know where the Marsh house was. (Tr. 664). Appellant 

also told Detective Mondora that he had never been to the Marsh house. (Tr. 664-

665). 

{¶75} Detective Mondora further testified he told appellant that his fingerprints 

were found at the crime scene. (Tr. 666). Appellant told him that was impossible 

because he did not know Ben Marsh. (Tr. 666). 

{¶76} This case depends almost completely on the fingerprint evidence. The 
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evidence was uncontroverted that appellant’s left middle, left ring, and left little 

fingerprints were found on the Marshes’ garage man door near the broken pane of 

glass. Appellant denied knowing the Marshes, denied ever having been to their 

house, and denied even knowing where Canfield was. Yet three of his fingerprints 

were found on the Marshes’ door near a broken pane of glass that was used to gain 

entrance into their house where they were murdered. 

{¶77} The Ohio Supreme Court addressed the sufficiency of fingerprint 

evidence when there is little or no other evidence to support a conviction: 

In determining the sufficiency of the fingerprint evidence, a reviewing 

court must examine this evidence on a case-by-case basis. The crucial 

issue is whether attendant circumstances, such as the location of the 

accused's alleged fingerprint, the character of the premises where the 

print was found, and the accessibility of the general public to the object 

on which the print was impressed are sufficient to justify the trier of fact 

to conclude not only that the accused was at the scene of the crime 

when it was committed, but also that the accused was the criminal 

agent. 

State v. Miller, 49 Ohio St. 2d 198, 202-203, 361 N.E.2d 419 (1977), vacated on 

other grounds in Miller v Ohio, 438 U.S. 911, 98 S. Ct. 3136, 57 L. Ed. 2d 1156 

(1978). 

{¶78} The Court went on to hold: 

Fingerprints corresponding to those of the accused are sufficient proof 

of this identity to sustain his conviction, where the circumstances show 

that such prints, found at the scene of the crime, could only have been 

impressed at the time of the commission of the crime. 

Id. at the syllabus. The Court later reaffirmed its holding in State v. Franklin, 62 Ohio 

St.3d 118, 124, 580 N.E.2d 1 (1991). 
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{¶79} Other courts have applied Miller’s holding in upholding convictions 

based on fingerprint evidence. 

{¶80} For instance, in State v. Braxton, 10th Dist. No. 84AP-924, 1985 WL 

10312 (June 6, 1985), the court upheld the defendant’s burglary conviction when the 

only evidence that placed the defendant at the scene of the crime were his 

fingerprints that were found on the broken glass of the door of entry. The court noted 

that the defendant’s fingerprints were on both sides of the broken piece of glass. Id. 

at *1. It concluded that the only reasonable inference was that the defendant left the 

fingerprints there while gaining entry after breaking the glass. Id. The court also 

concluded that it was reasonable to infer from the fingerprints that the defendant 

entered the house and took the property that was reported missing. Id. 

{¶81} In State v. Braswell, 6th Dist. No. L-08-1405, 2009-Ohio-4060, ¶7, the 

only evidence at the scene of the burglary was that an exterior screen to a bedroom 

window had been cut out and police found latent fingerprints on the inside of the 

window glass at the bottom and side of the window. The prints matched fingerprints 

taken from the middle and ring fingers of the defendant’s left hand. Id. The victim 

testified that he did not know the defendant and had never given the defendant 

access to the apartment. Id. at ¶15. In examining a sufficiency challenge, the court 

determined that a rational trier of fact could conclude that the fingerprints were 

located on the window directly related to the crime, that being the window used by 

the burglar to gain entry to the apartment. Id. at ¶17. The court also noted that the 

fingerprints were located on the interior surface of the window. Id. It found that the 

facts excluded any innocent means by which the defendant's fingerprints could have 

been placed on the window. Id. 

{¶82} And in State v. Thomas, 2d Dist. No. 14289, 1994 WL 527658, *1 

(Sept. 28, 1994), the only evidence that linked the defendant to the scene of the 

burglary was his fingerprints found on a window screen from the residence that was 

found outside, but close to, the residence. The Second District concluded: 

[R]easonable minds could conclude beyond a reasonable doubt that 
- 23 -

the appellant's fingerprints could only have been placed on the window 

screen during the weekend the owners of the house were out of town 

and when the burglary occurred. The window screen was obviously 

removed in order to gain entrance to or exit from the house and the 

screen was found on private property not normally accessible to the 

public. No other explanation for the fingerprints being found on the 

window screen is demonstrated on this record. The jury could certainly 

reasonably infer that the appellant was at the scene of the crime when 

the crime occurred and conclude that he was the perpetrator of the 

crime. 

Id. at *2. 

{¶83} Based on the above case law, the fingerprint evidence in this case, 

coupled with appellant’s statements that he did not know the Marshes and had never 

been to their house, was sufficient evidence for the jury to conclude that appellant 

was the one who broke into the Marshes’ house and murdered them. The 

fingerprints were found on the garage man door of a private residence near a broken 

pane of glass that was used to gain access to the house where the Marshes were 

found murdered. And appellant’s statements that he did not know the Marshes, had 

never been to their house, and did not know where Canfield was, removed the 

possibility that his fingerprints were left on the door from a social visit or other 

purpose. Additionally, the jury had the evidence before them that the weapon used 

was a .38 caliber weapon and appellant’s “weapon of choice” was a .38 detective 

special. Construing this evidence in the light most favorable to the state, as we are 

required to do, sufficient evidence exists to support appellant’s conviction. 

{¶84} Accordingly, appellant’s fourth assignment of error is without merit. 

{¶85} Appellant’s fifth assignment of error states: 

 APPELLANT’S CONVICTIONS FOR THREE COUNTS OF 

AGGRAVATED MURDER WERE AGAINST THE MANIFEST WEIGHT 
- 24 -

OF THE EVIDENCE. 

{¶86} Appellant next argues that his convictions were against the manifest 

weight of the evidence. He contends the fingerprint evidence should be given little 

weight because the state did not prove the chain of custody. Moreover, he argues 

the fact that he told Detective Mondora that he had never been to the Marsh home 

holds little weight given that the interview occurred 36 years after the murders. 

Appellant also points to evidence that a woman described a man she saw getting out 

of Marilyn Marsh’s car in the K-Mart parking lot as being in his forties or fifties, but 

appellant was only 25 years old in 1974. Finally, appellant points out that none of the 

bullets recovered from the crime scene were matched to a specific kind of weapon. 

{¶87} In determining whether a verdict is against the manifest weight of the 

evidence, an appellate court must review the entire record, weigh the evidence and 

all reasonable inferences and determine whether, in resolving conflicts in the 

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

justice that the conviction must be reversed and a new trial ordered. Thompkins, 78 

Ohio St.3d at 387. “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.’” Id. (Emphasis sic.) In making its determination, a reviewing court is 

not required to view the evidence in a light most favorable to the prosecution but may 

consider and weigh all of the evidence produced at trial. Id. at 390. 

{¶88} Yet granting a new trial is only appropriate in extraordinary cases where 

the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness 

credibility, conflicting testimony, and evidence weight are primarily for the trier of the 

facts who sits in the best position to judge the weight of the evidence and the 

witnesses' credibility by observing their gestures, voice inflections, and demeanor. 

State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 

Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 

227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two 
- 25 -

fairly reasonable views of the evidence or two conflicting versions of events, neither 

of which is unbelievable, it is not our province to choose which one we believe.” 

State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152. 

{¶89} In addition to the evidence set out above, we must also consider the 

evidence appellant offered in his defense. 

{¶90} Brenda Gerardi is a DNA laboratory supervisor at BCI. Gerardi 

compared appellant’s DNA with DNA recovered from a cigarette found at the murder 

scene. (Tr. 768). She concluded that appellant was not a contributor to the DNA on 

the cigarette recovered from inside the Marsh house. (Tr. 769). 

{¶91} Additionally, Detective Mondora testified on cross examination that 

according to the case file, an anonymous informer saw someone possibly getting out 

of the Marshes’ vehicle in the K-Mart parking lot. (Tr. 689-690). The informer 

described the person as being in his mid-forties to fifties. (Tr. 730). Detective 

Mondora agreed that appellant would have been 25 in 1974. (Tr. 730). 

{¶92} The jury’s verdict was not against the manifest weight of the evidence. 

{¶93} The most compelling evidence was that three of appellant’s fingerprints 

were located on the Marshes’ garage man door near the broken pane of glass that 

was used to gain entrance into their house. There was nothing to refute this 

evidence. The AFIS database identified all three prints as belonging to appellant. 

Robin Ladd conducted an examination of the fingerprints and concluded they all 

belonged to appellant. Ladd also stated that the three fingerprints lifted from the 

scene were of good quality. And Ladd’s conclusions were independently reviewed 

and confirmed by another fingerprint analyst. 

{¶94} Appellant testified that he did not know the Marshes and had never 

been to the Marsh house. Thus, there was no possibility that he may have left his 

fingerprints there on another occasion while visiting. The jury’s only logical 

conclusion was that appellant left his fingerprints on the door when he broke into the 

Marsh house. 

{¶95} Additionally, as discussed in appellant’s first assignment of error, the 
- 26 -

state established the chain of custody for the fingerprints. Finamore, who observed 

and assisted Albert in lifting the latent prints, identified the prints. And Ladd indicated 

that the fingerprint evidence had been in secure storage at BCI since the 1970’s. 

{¶96} Moreover, even though there was testimony that an anonymous 

informer described a man in the K-Mart parking lot as being in his forties or fifties, this 

evidence does not have much weight in exonerating appellant. The informer was 

anonymous and stated that the person was “possibly” getting out of the Marshes’ car. 

Once the car was abandoned in the K-Mart parking lot, any passerby could have 

appeared to have been “possibly” getting out of the car. 

{¶97} And even though appellant’s DNA was not found on the cigarette at the 

scene, this does not exonerate him either. It simply means his DNA was not on the 

cigarette. 

{¶98} Given the evidence in this case, we cannot conclude that the jury lost 

its way and created a manifest miscarriage of justice. The fingerprint evidence was 

simply too strong and was not rebutted. This evidence coupled with appellant’s 

statements that he did not know the Marshes, had never been to their house, and did 

not even know where Canfield was supported the jury’s verdict. Therefore, the jury’s 

verdict was not against the manifest weight of the evidence. 

{¶99} Accordingly, appellant’s fifth assignment of error is without merit. 

{¶100} Appellant’s sixth assignment of error states: 

 DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE 

BY FAILING TO OBJECT TO EVIDENCE REGARDING THE 1976 

BALLISTIC TEST RESULTS AND TO THE MISCHARACTERIZATION 

BY THE STATE OF THE 2010 BALLISTICS TEST RESULTS. 

APPELLANT WAS PREJUDICED BY COUNSEL’S DEFICIENT 

PERFORMANCE SUCH THAT HE WAS DEPRIVED A FAIR TRIAL. 

{¶101} In his final assignment of error, appellant maintains that his counsel 

was ineffective. Appellant asserts counsel’s failure to object to Chappell’s and 
- 27 -

Detective Mondora’s testimony regarding the 1976 ballistics testing fell below the 

standard of reasonableness because the testimony was hearsay on hearsay, lacked 

a proper foundation, and violated his right to confront witnesses. He also argues 

counsel was ineffective for failing to object to the prosecutor’s statements in closing 

arguments that assumed the bullets came from a .38 caliber weapon when this was 

not evidence. Appellant maintains that but for counsel’s errors, the result of the trial 

would have been different because the only other evidence of his guilt was the 

fingerprint evidence. 

{¶102} To prove an allegation of ineffective assistance of counsel, the 

appellant must satisfy a two-prong test. First, appellant must establish that counsel's 

performance has fallen below an objective standard of reasonable representation. 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); 

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the 

syllabus. Second, appellant must demonstrate that he was prejudiced by counsel's 

performance. Id. To show that he has been prejudiced by counsel's deficient 

performance, appellant must prove that, but for counsel's errors, the result of the trial 

would have been different. Bradley, at paragraph three of the syllabus. 

{¶103} Appellant bears the burden of proof on the issue of counsel's 

effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In 

Ohio, a licensed attorney is presumed competent. Id. 

{¶104} We have already discussed the issues appellant now raises. As 

discussed above, Chappell’s and Detective Mondora’s testimony regarding the 1976 

ballistics testing did not violate appellant’s right to confront witnesses and was not 

hearsay. Additionally, the prosecutor’s statements in closing arguments telling the 

jury that the bullets recovered from the murder came from a .38 caliber weapon were 

supported by State’s Exhibit 45, the ballistics report issued by Chappell. Thus, any 

objection by defense counsel on these issues would not have changed the outcome 

of the trial. Therefore, we cannot conclude defense counsel was ineffective. 

{¶105} Accordingly, appellant’s sixth assignment of error is without merit. 
- 28 -

{¶106} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.