[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. McKelton, Slip Opinion No. 2016-Ohio-5735.]

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

S LIP O PINION N O . 2016-O HIO -5735
T HE S TATE OF O HIO , A PPELLEE , v . M C K ELTON , A PPELLANT . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. McKelton, Slip Opinion No. 2016-Ohio-5735.] Criminal Law—Aggravated murde r—Death penalty—Conviction and death penalty affirmed. (No. 2010-2198—Submitted January 13, 2015— Decided September 13, 2016.)
A PPEAL from the Court of Common Pleas of Butler County,
No. CR2010-02-0189.

_________________ L ANZINGER , J. {¶ 1} Calvin McKelton appeal s his convictions of the February 2009 aggravated murder of Germaine (“Mick ”) Evans and the July 2008 murder of Margaret (“Missy”) Allen. For the reasons that follow, we reject each proposition
of law and affirm the conv ictions and death sentence.S UPREME C OURT OF O HIO

2 I. FACTUAL AND PROCEDURAL BACKGROUND A. Pretrial Background {¶ 2} In February 2010, the state charged McKelton with the murder of Allen, R.C. 2903.02(B), and the aggravated murder of Evans, R.C. 2903.01(A). The aggravated-murder charge carried a firearm specification, R.C. 2941.145, and two death specifications, R.C. 2929.04(A)(3 ) (escaping detection) and (A)(8) (killing to prevent testimony in a criminal proceeding). {¶ 3} McKelton was also charged with two counts of felonious assault, R.C. 2903.11(A)(1), and two counts of domestic violence against Allen, R.C. 2919.25(A); gross abuse of her corpse, R. C. 2927.01(B); aggravated robbery and aggravated arson, R.C. 2911.01(A)(3) and 2909.02(A)(2); tampering with evidence, R.C. 2921.12(A)(1); and intimidating a witness in a criminal case, R.C. 2921.04(B). The state, with leave of c ourt, dismissed the aggravated-robbery charge before trial. {¶ 4} A jury trial began in October 2010.
B. The State’s Case-in-Chief 1. Domestic Abuse of Missy Allen {¶ 5} Missy Allen, a criminal-defense attorney who had represented Calvin McKelton, began dating him in 2006 or 2007. By 2008, McKelton was living with Allen and her nieces, T.W. and Z.D., at Allen’s home in Butler County. {¶ 6} T.W., then a teenager, testified that she had witnessed physically violent arguments between McKelton and Allen while they were living together. One time she found McKelton on top of Alle n, choking her. During another altercation, Allen asked T. W. to call the police, but McKelton took the phone from
T.W. and threw it on a counter. T.W. said th at after things “start[ed] to get bad,” Allen told her not to say anything about what happened in her house. {¶ 7} A document on Allen’s home comput er, created on September 13, 2007, chronicled abuse. The first-person narrative described an incident duringJanuary Term, 2016

3 which McKelton hit, kicke d, and pushed Allen and then choked her twice, once with such force that she nearly lost consci ousness. She listed injuries to her face, right side, right leg, back, and head as well as blood clots in her eyes due to “the
loss of air.” She was afraid because McKelton had threatened her and her niece. She indicated that she intended to prosecu te and to request a temporary protection order and a high bond. {¶ 8} A notebook found in Allen’s home o ffice contained handwritten notes that repeatedly mentioned the name “Calvi n.” Charia Mam, a friend of Allen’s, testified that the handwriting was Allen’ s. Allen describe d McKelton’s grabbing her by the neck, hitting her lip, threatening to burn her eye with a cigarette, and pushing her down “b/c tried to choke.” Allen also de scribed calling for her niece to call 9-1-1. An undated apology note to Allen, written in McKelton’s handwriting, stated: “I Love u baby, I don’t ever want to hurt u again. * * * I want 2 say sorry 2 you and 2 God for what Ive done.” {¶ 9} Z.D., then 11 years old, testified that on May 4, 2008, she heard McKelton yelling and Allen screaming from the direction of the garage. She called 9-1-1. Officer Kelly Smith was dispatched to Allen’s home, but McKelton and Allen were gone when she arrived. The o fficer said that Z.D. was visibly shaking and acting with “extreme fear.” McKelton returned while Smith was still at the house. He “burst through the door” yellin g Z.D.’s name and told Smith “to bounce [her] ass out of the house.” Allen then ca lled the house and told the officer that she was in the hospital. Z.D. testified that Allen later told her she was “kind of mad”
that Z.D. had called 9-1-1 and had not come into the garage. {¶ 10} Allen gave several accounts of he r argument with McKelton. She told police that McKelton had not harmed her and “if anything, she essentially provoked him” by shoving him. She said that she tripped over something in the garage. She told hospital personnel that she had fallen over a lawn mower or bike,S UPREME C OURT OF O HIO

4 told a children’s services representative that she had fallen over a chair, and told her physical therapist that she had fallen down a step. {¶ 11} Allen’s injury required surgery to place four screws in her ankle as well as physical therapy. According to two friends, Shaunda Luther and Mam, Allen became “increasingly depressed,” “somewhat detached,” and “distant” after the injury. McKelton was always around, and it was hard for Mam and Luther to have meaningful conversations with Alle n. Because she could not drive, she depended on McKelton to take her to medica l appointments and to court. And Luther said that Allen was depressed because she could not make money to support herself. Her bank account was overdrawn as of July 25, 2008. {¶ 12} Mam and Luther both testified th at Allen had expressed concern about McKelton’s jealousy. Allen told Mam that McKelton “went through her phone and text record frequently, and it alwa ys ended in an argument.” She also
told Mam that McKelton would kill her if he knew another man had sent her flowers or if he thought she had slept with his friend. {¶ 13} In July 2008, Allen told Mam that she thought she was pregnant. She told her friend that she feared having a baby would tie her to McKelton forever
but that McKelton would kill her if she ha d an abortion without telling him. Allen suffered a miscarriage later that month. 2. The Murder of Missy Allen {¶ 14} On July 27, 2008, a woman was found dead in woods on the east side of Cincinnati. A piece of plastic resembling a shower-curtain liner was wrapped around the victim’s thighs, and a bag of counterfeit drugs lay near her body. {¶ 15} Jan Gorniak, D.O., then a deputy coroner for Hamilton County, performed an autopsy on July 28, 2008. She classified the death as a homicide caused by strangulation. Gorniak could not determine a precise time of death, but sheJanuary Term, 2016

5 estimated that the body had been in the woods for one and one-half to three days. After the autopsy, police identified the woman as Allen. a. Physical evidence {¶ 16} Police then searched Allen’s home. The front door was locked and the security system was activated, but inside they found a burn mark in the master bedroom and several items that later tested positive for gasoline or gasoline components. Officers collected samples of drywall that appeared to have blood on them; the samples were later confirmed to have a DNA profile consistent with Allen’s DNA profile. Two items —a cigarette butt and the door to the garage, which had a smear that appeared to be bl ood—had a DNA profile consistent with McKelton’s DNA profile. {¶ 17} Valuable items—including Allen’ s purse—were in plain view, apparently undisturbed. Police found a long piece of weed-eater cord on the kitchenfloor. There was a shower curtain on the hallway floor but no sign of a showercurtain liner. {¶ 18} Allen’s car was found in the village of Golf Manor shortly after midnight on July 29, 2008. It was locked and did not appear to have been tampered with. Cell-phone records indicated that th e last outgoing call on Allen’s phone was at 8:27 p.m. on July 25, 2008, to a phone number used by McKelton. Her laptop computer was last used around 4 p.m. that day. b. Investigation of McKelton {¶ 19} On July 29, McKelton came to the Fairfield Police Department. After he signed a Miranda waiver, he asked if there were any warrants for him. There
were not. McKelton did not answer an y other questions. Officers noted small abrasions (possibly burn marks) on McKe lton’s hands. They photographed him and took fingerprints, DNA samples, and fingernail scrapings. The DNA samples
were not consistent w ith male DNA collected fr om Allen’s fingernails.S UPREME C OURT OF O HIO

6 {¶ 20} Based on cell-phone records, poli ce believed that McKelton had been near Allen’s house on the night of July 25 and the morning of July 26. He made repeated calls that bounced off the Sprint cell-phone tower closest to Allen’s house between 9:02 p.m. and 10:52 p.m. on July 25. McKelton’s next 18 calls bounced off several towers, but he was near the Sprint tower closest to Allen’s house again between 8:01 a.m. and 9:17 a.m. on July 26. {¶ 21} Later, police learned of a possible eyewitness to Allen’s murder: McKelton’s friend, Evans. Andre Ridley, a friend of Evans’s, testified that Evans
had told him about Allen’s death a few da ys after her body was found. Evans told Ridley that he had been at Allen’s house when he heard her and McKelton fighting
in another room. Evans walked in a nd saw McKelton choking Allen. McKelton then smacked Allen, telling her to wake up, but she did not. The men “started staging the scene as a robbery.” Evans told Ridley that he and McKelton had wrapped up Allen’s body and put it in the car , and McKelton set fire to the house.
The two men drove to a wooded area and dumped the body. McKelton threw some drugs beside it. {¶ 22} According to Ridley, Evans said that McKelton had assured him that he could be charged only with abuse of a corpse. Evans also reported that McKelton gave him 20 ounces of cocaine (worth $20,000 to $40,000). Ridley did not speak with police until months later, after Evans was killed. {¶ 23} Audrey Dumas testified that she had been with McKelton the night
that Allen died. Dumas said that she went out with McKelton one weekend night in late July 2008. McKelton picked her up around 11:15 p.m. in a black BMW, which she recognized as Allen’s car. They went to a club until 2:15 or 2:30 a.m.
and then drove around downtown with Mc Kelton’s friends. McKelton brought her
home around 3:30 or 4:00 a.m. {¶ 24} On July 25, McKelton was near Allen’s house at 10:52 p.m. After that, he made or receive d seven calls—which bounced off different cell-phoneJanuary Term, 2016

7 towers—before a call bounced off a tower in the vicinity of Dumas’s house at 2:25 a.m. on July 26. 3. The Murder of Mick Evans {¶ 25} Police did not learn that Evans ma y have witnessed Allen’s murder
until seven months after Alle n’s death. Detective Jenny Luke obtained a subpoena for Evans’s DNA and began trying to locate him. {¶ 26} On February 24, 2009, Luke te lephoned Evans’s sister, Crystal Evans, and asked her to tell Evans that po lice wanted to talk to him about Allen’s death. Luke did not realize that Crysta l had been dating McKelton since September 2008 and that he was living with her. Cr ystal testified that McKelton easily could
have overheard her conversation with Luke . McKelton was at Crystal’s home when she called Evans to relay Luke’s message. {¶ 27} On March 1, Evans’s body was found at the bottom of steps leading into a city park. Four .40 caliber sh ell casings were nearby. Neighborhood residents reported to police that they had heard four or five gunshots near the park between 9:00 p.m. and midnight on February 27, 2009. {¶ 28} Gretel Stephens, M.D., a deput y coroner for Hamilton County, performed an autopsy the next day. She gave her opinion that Evans had been dead more than 24 hours and possibly for two or three days. He had been killed by a single gunshot wound to the back of the h ead on the left side. The shot had been fired at “very, very close” range, or possi bly even with contact. Stephens recovered bullet fragments that were consistent with a .40 caliber Smith & Wesson Sigma
Series semiautomatic. {¶ 29} Police never found the murder we apon. However, the state did introduce testimony from Allen’s teenaged niece, T.W., about a time when she saw McKelton with a gun, which she said looked like a .40 caliber automatic. {¶ 30} Cell-phone records indicated that Evans had last placed a call at 9:55 p.m. and last sent a text message at 10:01 p.m. on February 27. According toS UPREME C OURT OF O HIO

8 Crystal, Evans did not trust anyone, so “[s]omebody close to him” must have shot
him. {¶ 31} Crystal provided an alibi for McKe lton on the night of February 27, 2009. She told police that he had arrive d home before 9 p.m. but at trial admitted that it may have been later. She said that after McKelton got home, she went out to buy candy. She testified that when she returned home around 10:00 p.m., McKelton was gone. Crystal ca lled him, and he said he ha d gone to get cigarettes. McKelton walked in with a pack of cigarettes about five minutes later and the two stayed in for the rest of the night. On cross-examination, Crystal said that she had called McKelton at 9:22 p.m. a nd he arrived home for the night a few minutes later. {¶ 32} Cell-phone records indicate that from 9:10 to 9:51 p.m. on February 27, several calls were made back and forth among McKelton, Brian “Red” Adams, an old friend of McKelton’s, and Audrey Dumas, McKelton’s former girlfriend. Dumas then called McKelton’s number more than two dozen times, ending at 11:37 p.m. Dumas testified that at 11:01 p.m., she was parked outside Crystal’s apartment, believed McKelton was inside, and tried to disrupt their time together by sending text messages telling him to come out. Later, beginning at 2:32 a.m., McKelton called Dumas’s and Red’s numbers multiple times. Crystal testified she did not recall waking up or hearing McKelton on the phone during the night. {¶ 33} After Evans’s murder, Crystal avoi ded McKelton for several weeks, but they resumed their relationship. In June 2010, she gave birth to his son. She regularly visited McKelton in jail as he awaited trial, and they exchanged frequent phone calls and letters. In le tters, he reminded her that he was with her the night Evans died and told her to stop “com[ing] at” him like she did not “know for [sure he] was at home wit[h her].” He explaine d that phone records showed that Evans died at 10:00 p.m. and told Crystal, “[W]e were home asleep at ten.”January Term, 2016

9 4. McKelton’s Admissions {¶ 34} Multiple witnesses testified that McKelton implicated himself in the
deaths of Allen and Evans. Three of them—Marcus Sneed, Charles Bryant, and Lemuel Johnson—were informants charged with other offenses. {¶ 35} Sneed, who had grown up in th e same neighborhood as McKelton,
testified that he had run in to McKelton at a club and c onfronted him about Allen’s
death. McKelton told Sneed that he ha d choked Allen during “a heated argument”
but that he “didn’t mean to.” McKe lton mentioned someth ing about Allen’s pregnancy and about her threatening h im with her knowledge of his crimes. {¶ 36} McKelton also told Sneed that “a friend help[ed] him” get rid of Allen’s body. Sneed confronted McKe lton again after hearing rumors about
Evans’s death. McKelton stated that he had had to kill Evans because Evans “was the only guy that could link him to the murder.” Sneed did not report this information to police until he was later arrested on federal drug-conspiracy charges. {¶ 37} Bryant, who had met McKelton durin g a 2003 incarceration, testified
that McKelton had told him about the deat hs of Allen and Evan s. McKelton said
that he had been involved with an atto rney and choked her during an argument about whether she was pregnant with someone else’s baby. McKelton also reminded Bryant about what had happened to Evans, which Bryant interpreted as a threat. Bryant did not come forward with this information until he was incarcerated on new charges. {¶ 38} Johnson testified that McKelton had confessed to both murders while they were discussing drug-rela ted business. According to Johnson, McKelton needed money and was trying to convince him to let him take care of
some witnesses for him. McKelton described situations in which he had eliminated witnesses in the past. He said that he ha d been with Evans’s sister when a detective called looking for Evans to discuss Allen’ s death. He explained that Evans had been a “weak link” who could connect him to Allen’s murder, so he had to kill himS UPREME C OURT OF O HIO

10 before the detective found him. But J ohnson did not report this conversation until he was awaiting sentencing for a federal drug offense. {¶ 39} The state also called Gerald Wilson and Michael Nix, two acquaintances of McKelton’s who had reported hearing McKelton admit responsibility for Allen’s death. {¶ 40} Prior to the trial, Wilson told poli ce about a conversation that he had
had with Michael Howell and McKelton in April or May, 2009. One night, Howell gave Wilson a ride; McKelton was in the front passenger seat , texting someone. McKelton commented, “Man, that bitch ain’t giving my shit to nobody. If she did, I’m gonna choke her like I did Margaret and get away with it.” Howell warned
McKelton to watch what he said. Mc Kelton responded that Wilson “ain’t gonna do nothing. If he did, he gonna end up like Mick did.” At trial, Wilson recanted and insisted that he knew nothing about A llen’s murder, so the prosecutor played a recording of his original police statement for the jury. {¶ 41} Nix refused to testify for the state at trial, so Detective David Gregory testified about his prior statemen ts under the doctrine of forfeiture by wrongdoing. According to Gregory, Nix had asked McKelt on about Allen, and McKelton said that things “got out of hand, and he didn’t mean to do it.” Gregory
also testified that Nix said that Evan s, McKelton, Red, and Lamar Simmons were in his house around 11 p.m. on February 27, 2009, when he came home. Nix said
that the men left about an hour la ter. He never saw Evans again. {¶ 42} Sheridan Evans, the mother of Evans and Crystal, testified that McKelton spoke to her less than a week after Allen’s body was found. He “was crying very hard” and said that “he l oved Missy and it was a mistake.” McKelton
told Sheridan that he had “tried to revi ve [Allen] for 10 minutes, but [he] couldn’t bring her back.” Sheridan also testified that McKelton and Red came to speak with
her after she met with homicide detectives in March 2009. During the conversation,January Term, 2016

11 Sheridan mentioned rumors that McKelton had killed Evans. McKelton denied the rumors but said, “I don’t want to see nothi ng else happen to none of your kids.”
C. The Defense Case {¶ 43} Defense counsel did not present an y witnesses during the first phase of the trial. However, they introduced almost 30 exhibits, including additional crime-scene photos, the transcript of a po lice interview with Crystal, and some additional phone records. D. Verdict and Sentencing {¶ 44} The jury convicted McKelton on a ll counts and specifications except Count 11, intimidation of a witness. The tr ial court merged the death specifications before sentencing, and the state el ected to proceed on R.C. 2929.04(A)(8), murdering a witness to prevent his testimony in a criminal proceeding. After the mitigation phase and the jury recommendation, the trial court sentenced McKelton to death for the aggravated murder of Evans. The court also sentenced him to 15 years to life in prison for Allen’s murder and to a total of 25 years for the remaining
convictions. {¶ 45} McKelton now appeals, raising 21 propositions of law. We address his propositions out of order for ease of analysis.
II. ANALYSIS
A. Pretrial Issues 1. Nondisclosure of Witnesses: Proposition of Law No. 2 {¶ 46} In his second proposition of law, McKelton challenges the prosecutor’s failure to disclose eight witness names until the night before his trial began. a. The nondisclosure hearing {¶ 47} The state originally filed a cer tification for nondisclosure, pursuant to Crim.R. 16(D), of 23 witness names. After a request from the defense, the trial judge referred the matter to another judge to hold an in camera hearing. By theS UPREME C OURT OF O HIO

12 time the hearing took place, the prosecutor had disclosed all but eight witnesses, seven of whom would testify at trial. At the hearing, the prosecutor argued that disclosure would subject the witnesses or a third party to potential harm, coercion, or intimidation. He offered four pi eces of evidence in support. {¶ 48} First, McKelton had been convict ed of intimidating a witness in 2003. Second, in a jailhouse letter to Crysta l, McKelton said that they should post witness names in a public place when they got them. Third, in a phone call shortly after McKelton’s arrest, an associate of McKelton’s told him not to worry because they would “John Brown this case.” The pr osecutor explained the reference: a
Cincinnati homicide defendant named John Brown had been acquitted when every witness against him disappeared or recanted on the eve of his trial. Fourth, a
witness whose name had been disclosed, Michael Nix, had recently been shot at shortly after a known associate of McKe lton’s had asked Nix about McKelton’s

case. {¶ 49} The judge asked what motivated the state’s heightened concern for these eight witnesses. The prosecutor explained that two witnesses “were extremely afraid to have their names disc losed” and likely would not have agreed to testify absent nondisclosure. In a ddition, three witnesses, who were then incarcerated, were fearful for themselves and their families. The prosecutor said nothing specific about two witnesses. {¶ 50} The judge upheld the nondisclosure as a proper exercise of prosecutorial discretion. The prosec utor gave the defense the undisclosed witnesses’ names and all but one of the statements on the evening before trial. One statement was not provided until the next morning, shortly before the trial began. b. Crim.R. 16(D) and (F) {¶ 51} As an exception to the general rule requiring the disclosure of witness names prior to tria l, a prosecutor may seek relief from disclosure under Crim.R. 16(D)(1) if the prosecutor has “r easonable, articulable grounds to believeJanuary Term, 2016

13 that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion.” Such grounds include “the nature of the case, the specific course of conduct of one or more parties, threats or prior instances of witness tampering or in timidation, * * * and any other relevant information.” Crim.R. 16(D). {¶ 52} Upon a defendant’s motion, an in ca mera hearing must be conducted seven days prior to trial. Crim.R. 16(F) . If the trial court finds an abuse of prosecutorial discretion, then the pros ecutor must immediately disclose the material. 2010 Staff Note, Crim.R. 16(F). Otherwise, the material must be disclosed “no later than commencement of trial.” Crim.R. 16(F)(5). We review a lower court’s rulings on discovery ma tters for an abuse of discretion. State ex rel. Duncan v. Middlefield , 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, ¶ 27. {¶ 53} McKelton argues first that the c ourt should have found an abuse of prosecutorial discretion under Crim.R. 16( D)(1) because the prosecutor’s grounds were about only McKelton and the case ge nerally and were not specific to each witness. But Crim.R. 16 specifically c ontemplates nondisclosure for the reasons the prosecutor cited here: the nature of the case against McKelton, his past conviction for intimidating a witness, and ev idence that he had sought to intimidate
witnesses in this case. {¶ 54} Second, McKelton argues that the prosecutor could not rely on the undisclosed witnesses’ repres entations that they feared McKelton’s knowing that they would testify. McKelton contends that the prosecutor, not the witness, is responsible for assessing any possible danger to a witness. While the rules vest the prosecutor with responsibility for maki ng the nondisclosure determination, a prosecutor is not precluded from taking a witness’s own impressions into account when deciding whether to disclose that witness’s identity. A witness’s fear ofS UPREME C OURT OF O HIO

14 reprisal is relevant to the question whether disclosure might compromise the witness’s safety. {¶ 55} Third, McKelton argues that the prosecutor acted arbitrarily because
the nondisclosed witnesses o ffered testimony similar t o, but less damaging than,
other witnesses whose names were disclosed. Crim.R. 16 does not require the state to explain its reasons for choosing to disclose , and McKelton did not request such an explanation. {¶ 56} Finally, McKelton says that th e eight undisclosed witness names should have been disclosed at least seven days before trial. He ignores the language of Crim.R. 16(F), which plainly states th at when a trial court finds no abuse of discretion in a prosecutor’s nondisclosure d ecision, materials must be disclosed no
later than the commencement of trial. {¶ 57} In sum, the trial court did not abuse its discretion by affirming the certificate of nondisclosure as a proper exercise of prosecutorial discretion. c. Constitutional challenges to late disclosure {¶ 58} McKelton also argues that the late disclosure of these witnesses violated several of his constitutional rights. {¶ 59} First, he says that the late disclosure violated the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution. A defendant’s confrontation rights may be “legitimately constrained” by rules of discovery. State
v. Williams , 23 Ohio St.3d 16, 18, 490 N.E.2d 906 (1986). We have already rejected a confrontation challenge to the predecessor to Crim.R. 16(D), former Crim.R. 16(B)(1)(e), 34 Ohio St.2d li, at lii-liii, which permitte d trial courts to control the disclosure of information that might subject a witness to physical harm
or coercion. Williams at 18-19

. And in any event, he did have a meaningful opportunity to confront the witnesses ag ainst him: the witnesses were disclosed before trial, and defense counsel cr oss-examined each one who testified. See StateJanuary Term, 2016

15 v. Hernandez-Martinez , 12th Dist. Butler No. CA2011-04-068, 2012-Ohio-3754, ¶ 22. {¶ 60} Alternatively, McKelton claims that the late disclosure violated his right to due process and a fair trial. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution prohibits prosecutors from concealing evidence favorable to a defendant, but “[t]here is no general constitutional right to discovery in a criminal case.” Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Prosecutors are not constitutionally required to “reveal before trial the names of all witnesses who will testify unfavorably.” Id . Instead,
“a trial court has broa d discretion to postpone disclosu re of a prospective witness’s identity in order to protect his or her safety.” Alvarado v. Superior Court , 23 Cal.4th 1121, 1150, 99 Cal.Rptr.2d 149, 5 P.3d 203 (Cal.2000). Here, the trial court did just that. Therefore, McKelton cannot demonstrate a violation of his right to due process or a fair trial. {¶ 61} Finally, McKelton alleges that the delayed disclosure denied him his right to effective assistance of counsel because it deprived his attorneys of an adequate opportunity to investigate and pr epare his defense. To prevail on this claim, he must show both that the nondi sclosure caused counsel’s performance to be deficient and that he suffered prejudice. Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For reasons explained in response to the 1st, 15th, and 16th, propositi ons of law, McKelton has not met his
burden. {¶ 62} For these reasons, we reject proposition of law No. 2. 2. Withdrawal of Counsel and Continuances: Proposition of Law No. 1 {¶ 63} In his first proposition of law, McKe lton argues that the trial court erred by denying his court-appointed counsel’s request to withdraw from representation and his corresponding motion to remove those counsel. He claims that the error in refusing counsel’s reque st to withdraw “was compounded by theS UPREME C OURT OF O HIO

16 trial court’s failure to grant repeated requests for a continuance” and argues that these errors violated his right to due process, a fair trial, and effective assistance of
counsel.
a. Withdrawal of counsel {¶ 64} McKelton claims that the trial court should have removed John Gregory Howard and Melynda Cook, his two court-appointed attorneys, as counsel. (1) Factual background {¶ 65} Initially, McKelton retained attorney Richard Goldberg. At McKelton’s arraignment in February 2010, Go ldberg informed the court that he lacked experience trying capital cases. He also explained that McKelton had become indigent and asked the court to appoint counsel under former Sup.R. 20,
105 Ohio St.3d CXLV. 1 Goldberg also sought “permission to stay on” as counsel, if the state did not object. The trial judge appointed Howard as lead counsel and
Cook as co-counsel because he was unsur e “what the status of [Goldberg’s] participation” would be. {¶ 66} On September 14, 2010, Goldberg, Howard, and Cook moved for leave to withdraw, for the appointment of new counsel, and for a continuance so new counsel could prepare for trial. Tw o days later, McKelt on filed a handwritten motion asking the “court to remove all counsel because of irreconcilable differences, lawyer misconduc t, conflict of interest, misrepresentation, personal conflict and a complete lack of communication.” {¶ 67} Goldberg was permitted to withdraw because of a conflict of interest. But Cook and Howard cited only “a breakdown in the attorney c lient relationship”

1 McKelton claims that the trial court violated former Sup.R. 20, 105 Ohio St.3d CXLV, by appointing two lawyers even though he had retained Goldberg. But counsel were appointed at Goldberg’s request, and McKelton cannot take advantage of an error that he invited. State v. Rohrbaugh , 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10. Moreover, McKelton arguably benefited: the two certified capital attorneys supplemented the efforts of Goldberg, who lacked capital-defense experience.January Term, 2016

17 as the basis for their request. Howard explained that McKelton did not trust his appointed counsel and would no longer cooperate in preparing his defense. {¶ 68} McKelton told the trial judge that counsel had tried to pressure him into accepting a plea bargain. He claimed that his attorneys and the prosecutor had “conspired” to “coerce” him to accept a pl ea offer and that Cook was “outraged”— even making a racist comment—when he refused. McKelton also said that Howard
and Cook had failed to effec tively communicate with him, adequately prepare for trial, use his money well, or hire the necessary defense experts. {¶ 69} The trial judge denied Howard and Cook’s motion to withdraw, finding that they were competent and had prepared the case “diligently.” The judge
reasoned that communication had broken down due to McKelt on’s rejection of counsel’s legal advice and refusal to cooperate. (2) Analysis {¶ 70} We review a lower court’s decisions about whether to discharge and replace court-appointed counsel for an abuse of discretion. State v. Williams , 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 135. A defendant may establish good cause to substitute new counsel by demonstrating “a ‘complete breakdown in communication’ between the defendant and appointed counsel.” State v. Cowans , 87 Ohio St.3d 68, 73, 717 N.E.2d 298 (1999), quoting United States v. Calabro , 467 F.2d 973, 986 (2d Cir.1972). {¶ 71} McKelton suggests several reasons why the trial court erred by not dismissing Howard and Cook. First, he cl aims that the attorney-client relationship completely broke down when counsel enc ouraged him to accept a plea bargain. But disagreements—such as disagreement over the merits of a plea offer—“ ‘between the attorney and client over trial tactic s or approach * * * do not warrant a
substitution of counsel.’ ” State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 150, quoting State v. Evans , 153 Ohio App.3d 226, 2003-Ohio3475, 792 N.E.2d 757, ¶ 32 (7th Dist.). To the contrary, counsel “ ‘has a duty toS UPREME C OURT OF O HIO

18 be candid’ ” and “ ‘to give the accused an honest appraisal of his case.’ ” Id. at ¶ 151, quoting Brown v. United States , 264 F.2d 363, 369 (D.C.Cir.1959). Here, defense counsel apparently gave McKelton their honest a ppraisal of his case, which does not prove bias or conspiracy. {¶ 72} McKelton also claims that he lacked confidence in Howard and Cook because they failed to establish a re lationship of trust, met with him only twice, and did not consult with him about the state’s evidence. But the record suggests that he met with Goldberg more regularly. The fact that he may have had fewer personal interactions with Howa rd or Cook in the months preceding Goldberg’s withdrawal does not justify the removal of court-appointed counsel simply because Goldberg later withdrew. {¶ 73} Next, McKelton objects that Howard and Cook failed to hire the necessary experts to prepare his defense. The trial court approved funding for “an investigator and mitigation specialist, a mental health professional, if * * * appropriate, and a forensic expert, if * * * appropriate.” Couns el apparently hired only an investigator. But that does not necessarily prove that counsel were unprepared. Until a few weeks before tria l, McKelton was represented by three attorneys. And his investigator worked more than 100 hours on the case. Defense counsel’s decision to hire additional expe rts was a matter of trial strategy, and
McKelton cannot establish that the stra tegy was unreasonable on this record. See State v. Keyes, 6th Dist. Erie No. E-08-072, 2009-Ohio-6343, ¶ 28. {¶ 74} Finally, McKelton says counsel should have been permitted to withdraw because they were afraid of him. But counsel’s only expression of concern occurred during the hearing on the motion to withdraw, and only in response to the prosecutor’s reference to threats made by McKelton. The prosecutor promptly clarified that McKelton had not threatened his counsel. Thus, fear did not require the substitution of counsel in this case. {¶ 75} The trial court reasonably declined to discharge Howard and Cook.January Term, 2016

19 b. Continuances {¶ 76} McKelton argues that the trial c ourt’s denial of his continuance requests violated his constitutional rights and prejudiced his defense. To the extent that McKelton’s argument implicates his constitutional right to the effective assistance of counsel, Mc Kelton must meet the Strickland test, showing both that counsel’s performance was deficien t and that he suffered prejudice. {¶ 77} First, McKelton says that the court should have granted a continuance on September 17, 2010, when Goldberg withdrew. The defense’s continuance motion was predicated on the appointment of new defense counsel, who would need additional time to prepare for trial. A continuance was unnecessary because Howard and Cook remained as defense counsel and they had “known for a significant amount of time” that Goldberg was likely to withdraw. Two months before trial, defense counsel indicated th at Richard Goldberg’s representation of McKelton might create a conflic t of interest. The judge had previously warned Howard and Cook that they would need to be ready to go to trial without Goldberg and, on September 17, he found that they were prepared to do so. Neither Howard nor Cook indicated that they needed additional time to prepare as a result of Goldberg’s withdrawal. McKelton does not explain how any deficient performance resulted from Goldberg’s withdr awal, undermining any claim under Strickland

. Accordingly, we find no error in the trial court’s denial of the continuance request on September 17. {¶ 78} Second, McKelton says that the tr ial court should have granted a continuance to allow the defense to investigate and prepare to cross-examine the eight state witnesses who were disclosed shortly before trial began. The authors of
Crim.R.16 made clear that routine con tinuances to allow further defense investigation of nondisclose d witnesses would destroy “the protective purpose of [the nondisclosure] process.” 2010 Staff No tes, Crim.R. 16(F). For this reason,S UPREME C OURT OF O HIO

20 the “[Rules] Commission anticipated that continuances of trial dates would occur only in limited circumstances.” Id. {¶ 79} McKelton generally asserts that more time would have aided his defense, but he does not explain why this case qualifies as one of those limited
circumstances. The record does not indicate that defens e counsel were unprepared for cross-examination; they cross-examined each of the late-disclosed witnesses
who testified at trial and even used some statements—as provided by the state—to impeach them. And McKelton offers no indication of what information further investigation would have yiel ded or how counsel would have used that information.
See State v. Keith , 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997) (claims that require evidence outside the record are not appropriately considered on direct appeal). {¶ 80} Thus, McKelton has failed to estab lish an abuse of discretion or a violation of his constitutional rights. {¶ 81} For these reasons, we reject proposition of law No. 1. 3. Voir Dire: Proposition of Law No. 3 {¶ 82} In his proposition of law No. 3, McKe lton argues that the trial court violated his right to an impartial jury by denying his motion for individual, sequestered voir dire. He further claims th at defense counsel di d not have sufficient opportunity to question the venire. {¶ 83} “The manner in which voir dire is to be conducted lies within the sound discretion of the trial judge.” State v. Lorraine , 66 Ohio St.3d 414, 418, 613 N.E.2d 212 (1993). However, because an adequate voir dire is “part of the guarantee of a defendant’s right to an impartial jury,” Morgan v. Illinois , 504 U.S. 719, 729, 112 S.Ct. 2222, 119, L.Ed.2d 492 (1992), that discretion is “ ‘subject to the essential demands of fairness,’ ” id. at 730, quoting Aldridge v. United States
, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).January Term, 2016

21 a. Group voir dire {¶ 84} “There is no requirement that voir dire in a capital case must be
conducted in se questration.” State v. Fears , 86 Ohio St.3d 329, 338, 715 N.E.2d 136 (1999). In State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, we held that a trial court did not err by denying a request for sequestered voir dire when the court “permit[ted] counsel to individually question prospective jurors” and also “gave all jurors the opportuni ty to be questioned in private if they were uncomfortable discussing their views in a group setting.” Id. at ¶ 66. {¶ 85} The trial court voir dire d McKelton’s prospective jurors in a group.
But as in Leonard , the judge anticipated that the prospective jurors might not be comfortable answering every question in front of the entire group. At the outset of voir dire, he advised, “[I]f at any point during this process you wish to answer a question privately, you may do so.” He re iterated this point just before allowing counsel to individually question the prosp ective jurors. Under these circumstances, we see nothing inherently unfair about the manner in which the trial court
conducted voir dire. {¶ 86} McKelton nevertheless claims that group voir dire was prejudicial because “[t]he entire venire was made aware of pretrial publicity.” The trial judge asked whether “anybody here [] knows anything about this based upon publicity of the case.” Five prospective jurors responded affirmatively, and three indicated some
doubt about McKelton’s innocence based on press coverage. The prosecutor explained to the venire that news reports are not evidence and that they are not always accurate. And no juror responded wh en these jurors were asked if they could not set aside anything they had read. In fact, defense counsel even described
an error in a recent news account. {¶ 87} McKelton argues that this line of questioning tainted the entire venire by informing every potential juror that some press coverage had implied his guilt. But an entire venire is not necessarily prejudiced due to “the effect of beingS UPREME C OURT OF O HIO

22 influenced by the opinions expr essed by prior veniremen.” State v. Carter , 72 Ohio St.3d 545, 555, 651 N.E.2d 965 (1995). We decline to presume that McKelton’s entire jury pool was tainted simply becaus e the prospective jurors learned that negative publicity existed. In addition, Mc Kelton does not point to any evidence
that the venire was actually prejudiced by the voir dire on publicity. Under these circumstances, there is no indication that any of the seated jurors were biased against McKelton. {¶ 88} McKelton also objects to the prosecutor’s questions about domestic violence during group voir dire. McKelton did not object to the prosecutor’s questions, but he now says that they unfairl y influenced the entire venire. In light of the pending domestic-violence charges, it was reasonable for the prosecutor to inquire about the prospective jurors’ “history * * * with acts of domestic violence as a means of determining their ability to give fair consideration to the issues that would
arise at trial.” State v. Collymore , 8th Dist. Cuyahoga No. 81594, 2003-Ohio-3328, ¶ 65. We w ill not presume that an entire venire is prejudiced simply because the prospective jurors were exposed to the opinions of other veniremen. Carter at 555.
And the record does not indicate that th e discussion of domestic violence actually biased any of the jurors. {¶ 89} For these reasons, we reject McKelton’s argument that the trial court erred by denying his motion for individual voir dire. b. Insufficient opportunity for voir dire {¶ 90} McKelton also argues that defense counsel did not have a sufficient opportunity to ensure the jurors’ impartiality. {¶ 91} First, he says that the jury que stionnaire was inadequate. At a pretrial hearing, defense counsel request ed a 12-page jury questionnaire, and the state requested its usual 2-page questionnair e. The trial judge agreed to produce a questionnaire “in between” the parties’ proposals. In the end, the jury questionnaires did not address attit udes toward the death penalty.January Term, 2016

23 {¶ 92} Trial courts have discretion to determine the content of jury questionnaires. See State v. Davie , 80 Ohio St.3d 311, 317, 686 N.E.2d 245 (1997). Here, McKelton cannot show that the tr ial court’s decision to use its own questionnaire was unreasonable, arbitrar y, or unconscionable. Moreover,
McKelton has failed to establish that he was prejudiced by the omission of questions about attitudes toward the death penalty. He does not assert that any seated juror was predisposed to order a sentence of death. {¶ 93} Second, McKelton claims his counsel did not have enough time to conduct voir dire. During a pretrial hearin g, defense counsel warned that it might take two days to select a jury. The judg e responded, “It will take whatever life and time it takes.” On the morning that voir dire began, the trial judge told the venire,“[W]e believe we’ll have a jury selected by the close of business today.” Midafternoon, defense counsel thanked the pros pective jurors and explained, “I know it’s getting late, and I’m going to try to wr ap this up, but I have a couple of other things that I want to talk about * * *.” Later, after defense counsel asked his final question, he took a moment to review his notes, then thanked the judge and jurors for their patience. Defense counsel did not request more time, indicate that he felt rushed, or state a desire to ask additional questions. We see no reason to conclude that voir dire was unduly truncated. {¶ 94} McKelton’s third proposition of law is not well taken. B. Evidentiary Issues 1. Forfeiture by Wrongdoi ng: Proposition of Law No. 4 {¶ 95} In proposition of law No. 4, McKelt on argues that the trial court erred by admitting various hearsay statements by Missy Allen under the doctrine of forfeiture by wrongdoing. According to McKelton, this alleged error violated his rights to confrontation and due process. {¶ 96} Forfeiture by wrongdoing has long been recognized as an equitable exception to a defendant’s constitutional right to confront the witnesses againstS UPREME C OURT OF O HIO

24 him. See Giles v. California , 554 U.S. 353, 366, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); Reynolds v. United States , 98 U.S. 145, 158, 25 L.Ed.2d 244 (1878). Ohio
codified this doctrine in 2001 as a hear say exception under Evid.R. 804(B)(6). To admit statements under this exception, a pros ecutor must show by a preponderance of the evidence that (1) the defendant engaged in wrongdoing that caused the
witness to be unavailable a nd (2) one purpose for the wrongdoing was to make the witness unavailable to testify. See State v. Fry , 125 Ohio St.3d 163, 2010-Ohio1017, 926 N.E.2d 1239, ¶ 106; State v. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 84. {¶ 97} Ordinarily, we review a trial court’s hearsay rulings for an abuse of
discretion. State v. Hymore , 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation
Clause. United States v. Henderson , 626 F.3d 326, 333 (6th Cir.2010). a. Factual background {¶ 98} The prosecution filed notice of its intent to offer Allen’s statements under Evid.R. 804(B)(6) in August 2010, but the trial court did not address the forfeiture question until the trial in October. {¶ 99} Defense objected when the prosecutor asked his third witness, Sherrie Bluester, the children services’ screener, what Allen had said about her broken ankle. The prosecutor argued that Allen’s statements were admissible under the forfeiture doctrine because he had established (1) Allen’s unavailability and (2) that McKelton had acted with the purpose wh en he made her unava ilable. The trial judge overruled McKelton’s objection. The judge explained, “[T]he allegation in this case is that this defendant murdered the victim, Ms. Allen, and I think this is exactly what the forfeiture by wrongdoing exception is.” The defense noted a continuing objection on this basis. {¶ 100} The next day, the court invited the parties to more fully articulate their positions on forfeiture by wrongdoing. Defense counsel objected that the trialJanuary Term, 2016

25 court had not found that McKelton ha d made Allen unava ilable with the purpose of preventing her appearance at a trial. But the prosecutor argued that it was proper to infer McKelton’s purpose from his histor y of domestic violence against Allen. He cited Z.D.’s and T.W.’s “testimony about the pattern of abuse” and “the multiple incidents” that they had witnessed. He also noted T.W.’s testimony that McKelton had once snatched the phone from her after Allen had asked her to call the police.
The state contended that this evidence s howed, by a preponderance of the evidence, “that this relationship was in a dynamic of domestic violence, of a pattern of abuse designed to isolate her and keep her from reporting to outside help.” {¶ 101} Referring to his ruling from the pr evious day, the trial judge found that the state had met its burden, given “the totality of the evidence in this particular case.” The judge stressed that the defense could still object to Allen’s statements on other grounds. b. Admissibility under the Confrontation Clause {¶ 102} McKelton claims that his confronta tion rights were violated by the admission of dozens of Allen’s statements through the testimony of her nieces, her friends, a physical therapist, a children’s services screener, and a police officer. 2 He says that these statements were not admissible under the forfeiture-bywrongdoing exception because the state did not establish that he had killed Allen with the purpose of preventing her from testifying against him

. {¶ 103} The United States Supreme Court has analyzed the forfeiture
doctrine’s common-law root s and concluded that it “applie[s] only when the defendant engaged in conduct designed to prevent the witness from testifying”

2 To the extent McKelton objects to the admission of nontestimonial hearsay, he was not entitled to confront the declarants. See Davis v. Washington , 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). For example, he discusses Allen’s statements to friends and relatives. But an unavailable witness’s “[s]tatements to friends and neighbors about abuse and intimidation” do not implicate the confrontation clause. Giles v. California , 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).S UPREME C OURT OF O HIO

26 about an earlier offense. (Emphasis sic.) Giles , 554 U.S. at 359, 128 S.Ct. 2678, 171 L.E.2d 488. Accordingly, “unconfronted testimony [will] not be admitted without a showing that the defendant intended to prevent [the] witness from testifying.” (Emphasis sic.) Id. at 361. Giles does not require that this be a
defendant’s “sole or even primary purpose,” however; it is sufficient if one purpose
for the defendant’s conduct was to make the vic tim unavailable, State v. Supanchick , 323 P.3d 231, 239 (Ore.2014); see also Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 90 (interpreting Evid.R. 804(B)(6)). (1) Accident and purpose {¶ 104} McKelton argues that the notion of “purpose” in forfeiture analysis is inconsistent with both the charges against him and the state’s theory of Allen’s
murder. {¶ 105} Because the state charged McKelton with the felony murder of Allen, R.C. 2903.02(B), predicated on an underl ying offense of felonious assault, R.C. 2903.11(A)(1), the state had to prove only that he acted knowingly in committing the felonious assault, not purposely in killing Allen. See Fry , 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 43 (felony murder requires proof of “the mens rea element set forth in the underlying felony offense”). {¶ 106} But mere knowledge does not satis fy the purpose prong of the
forfeiture doctrine. Giles makes clear that the exception will not apply “in the typical murder case involving accusatorial statements by the victim” when the defendant has “caused a person to be absent” but did “not do[] so to prevent the person from testifying.” 554 U.S. at 361, 128 S.Ct. 2678, 171 L.Ed.2d 488. Instead, it applies in a murder case only if the state proves that a defendant murdered
the victim with the purpose of preventing the victim’s te stimony about a separate
offense. {¶ 107} The record does not indicate that McKelton had planned to kill Allen on July 28, 2008, let alone to do so for a particular reason. Indeed, the state’sJanuary Term, 2016

27 theory was that Allen’s murder “was spontaneous” and “wasn’t planned.” Witnesses testified that McKelton killed Allen during an argument and tried to revive her. Thus, the immediate circum stances of Allen’s death do not establish the requisite purpose that would allow the admission of testimonial statements because of forfeiture by wrongdoing. (2) Domestic violence and purpose {¶ 108} The immediate-circumst ances analysis does not end the inquiry, however, because, as the state argues, the broader circumstances—the history of
domestic violence between McKelton and Allen—support an inference of purpose
in this case. {¶ 109} In Giles , the Supreme Court expressly “left open the possibility that a defendant’s intention to prevent testimo ny might be inferred from the surrounding circumstances, such as in a case of ongoing domestic violence.” Crawford v.
Commonwealth , 686 S.E.2d 557, 564 (Va.App.2009), aff’d 704 S.E.2d 107 (Va.2011). {¶ 110} The court explained that “[a]cts of domestic violence” are relevant to the purpose inquiry because they “oft en are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.” Giles , 554 U.S. at 377, 128 S.Ct. 2678, 171 L.Ed.2d 488. When an abusive relationship ends in murder, “the evidence may support a finding that th e crime expressed the intent to isolate the victim and to stop her from reporting abuse to the author ities or cooperating with a criminal prosecution—rendering her prior statements admissible under the
forfeiture doctrine.” Id. Hence, in deciding whether the forfeiture exception applies, courts should regard as “highly relevant” any evidence of past abuse (or threats) designed to discourage a victim from seeking outside help, as well as evidence of ongoing criminal proceedings where the victim was expected to testify.
Id.S UPREME C OURT OF O HIO

28 {¶ 111} Evidence of domestic violence is “highly relevant” to analyzing the purpose prong of the forfeiture exception. Giles at 377; see also
, e.g ., State v. McLaughlin , 265 S.W.3d 257, 272 (Mo.2008); People v. Banos , 178 Cal.App.4th 483, 491-492, 100 Cal.Rptr.3d 476 (2009). {¶ 112} McKelton argues that there is insufficient evidence of domestic violence in this case. The record does not indicate that Allen ever reported domestic abuse to police or that she was expected to testify against McKelton in a pending criminal proceeding when she died. Cf

. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 108-109; McLaughlin at 272. {¶ 113} Even so, purpose can be inferred from the evidence in this case. Allen’s nieces, who lived with McKe lton and Allen, both testified about McKelton’s abuse of Allen. And T.W. speci fically testified that McKelton took the phone away from her when Allen asked her to call 9-1-1. When Z.D. did call 9-1- 1 on the night that Allen broke her ankl e, McKelton was enraged. Thus, although Allen had not formally contacted police, her nieces’ testimony indicates that McKelton was trying to isolate Allen and prevent her from talking to authorities. {¶ 114} For these reasons, the admission of Allen’s statements did not
violate Giles ’s purpose requirement and we re ject proposition of law No. 4. 2. Impeachment of Gerald W ilson: Proposition of Law No. 6 {¶ 115} In proposition of law No. 6, McKelt on argues that the trial court erred by permitting the state to impeach its own witness, Gerald Wilson, with his prior inconsistent statement and by admitting extrinsic evidence of that prior statement. McKelton also argues that the prosecutor improperly relied on Wilson’s prior statement as substantive evidence of his guilt. a. Factual background {¶ 116} Wilson gave a police statement in January 2009 in which he said that he had heard McKelton admit to choking Allen. McKelton also threatened that if Wilson said anything, he would “end up like Mick did.”January Term, 2016

29 {¶ 117} When the state called Wilson to testify, he denied or claimed not to recall having made the statements. When pressed, he broadly asserted that he did not know anything about the matter. Finally, he admitted that he had spoken to police, but then claimed that police had falsified the transcript of his statement. He insisted that he had been lying and that police were telling everyo ne to lie about McKelton. Over defense objection, the state played an audio recording of Wilson’s police
interview. {¶ 118} After Wilson left the stand, the pros ecutor asserted that he had been “shocked and surprised” by his recantati on. The prosecutor stated that he had personally interviewed Wilson and that his re presentations had been consistent with his police statement. The trial judge found that “there were surprises and affirmative damage,” which allowed th e state to impeach Wilson under Evid.R. 607. The next day, the state sought to admit Wilson’s statement as an exhibit. The trial court sustained a defense objection. b. Application of Evid.R. 607(A) {¶ 119} Evid.R. 607(A) authorizes a party to impeach its own witness “by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.” We review a trial court’s application of this rule for an abuse
of discretion. Davie , 80 Ohio St.3d at 323, 686 N.E.2d 245. {¶ 120} “Surprise” occurs when a witness’s testimony materially differs from a prior statement and counsel had no r eason to believe that the witness would testify as he did at trial. See id. ; Ferguson Realtors v. Butts , 37 Ohio App.3d 30, 33, 523 N.E.2d 534 (12th Dist.1987); State v. Blair , 34 Ohio App.3d 6, 9, 516 N.E.2d 240 (8th Dist.1986). Here, the pr osecutor said he was “shocked and surprised” when Wilson’s trial testimony materially differed from his statement to police. Under these circumstances, the tr ial court reasonably found that the state was surprised by the witness’s testimony.S UPREME C OURT OF O HIO

30 {¶ 121} The “affirmative damage” requirement is satisfied if a “party’s own
witness testifies to facts that contradict, deny, or harm th at party’s trial position.”
Blair at 9; see also Ferguson Realtors at 33. Wilson said that police had asked him—and other witnesses—to lie. This potentially undermined the testimony of several crucial state witnesses who had testified that they had heard McKelton
confess to one or both murders. Give n that the prosecutor did not have any eyewitnesses, the trial court reasonably f ound that Wilson’s testimony affirmatively damaged the state’s case. {¶ 122} McKelton also objects that the stat e did not establish surprise and affirmative damage before impeaching Wilson. The defense did not object to the state’s examination of Wilson until the state announced that it would like to play a recording of his January statement. At that time, the trial court invoked Evid.R. 607(A) to overrule the defense objection and a llowed the state to play the recording. On this record, we hold that the requi rements of Evid.R. 607 were satisfied. {¶ 123} Furthermore, McKelton cannot dem onstrate any plain error in the state’s questioning of Wilson before the defense objected at trial. See State v.
Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The state’s questions laid the necessary foundation for introducing extrinsic evidence of Wilson’s prior statement under Evid.R. 613. And these que stions did not alter the outcome of
McKelton’s trial. {¶ 124} In short, the trial court did not a buse its discretion by allowing the prosecutor to impeach Wilson with his prior inconsistent statement. c. Extrinsic evidence of Wilson’s prior statement {¶ 125} McKelton also claims that by permitting the state to play an audio recording of Wilson’s prior statement, the trial court contravened State v. Ballew
, 76 Ohio St.3d 244, 667 N.E.2d 369 (1996), which prohibits reading a witness’s prior statement to the jury. But Ballew involved only the reading of a prior statement to
refresh a witness’s recollection under Evid.R. 612. Id. at 254. By contrast, Evid.R.January Term, 2016

31 613 specifically contem plates the admission of extr insic evidence of a prior
statement under the circumstan ces outlined in Evid.R. 613(B). Ohio courts have regularly applied the rule to admit a witness’s prior inconsistent statement for impeachment purposes. See, e.g., State v. Fisher , 8th Dist. Cuyahoga No. 83098, 2004-Ohio-3123, ¶ 14; State v. Schaffer , 114 Ohio App.3d 97, 102, 682 N.E.2d 1040 (3d Dist.1996). {¶ 126} McKelton does not dispute that the state satisfied the requirements of Evid.R. 613. The state laid the proper foundation before playing the recording,
and the contents of Wilson’s statement went to a fact of consequence to the action: his testimony presented a c onflict with his prior statem ent about whether McKelton had confessed or police were manufacturin g a case against him. Thus, the trial court did not abuse its discretion by permitting the state to play the recording for the jury. d. Wilson’s statement as evidence of McKelton’s guilt {¶ 127} Finally, McKelton argues that the state improperly relied on Wilson’s prior statement as substantive evidence of McKelton’s guilt. As a result, he asserts that there is a “grave risk ” that he was convicted based on unsworn testimony, in violation of the Fifth, Sixth, and Fourteenth Amendments. {¶ 128} As a general rule, “prior inconsistent statements constitute hearsay evidence and thus are admissible only for the purpose of impeachment.” 1 Gianelli,
Evidence , Section 607.4, at 482-483 (3d Ed.2010); see also id ., Section 613.3, at 591. Accordingly, unless another hearsay exception applies, a party may not interrogate his own witness about a prior inconsistent statement “ ‘for the purpose of offering substantive evidence against the accused.’ ” State v. Dick , 27 Ohio St.2d 162, 165, 271 N.E.2d 797 (1971), quoting State v. Duffy , 134 Ohio St. 16, 15 N.E.2d 535 (1938), paragraph two of the syllabus. Fu rther, the prosecutor must not refer to such statements for their truth during closing argument. State v. Richcreek , 196S UPREME C OURT OF O HIO

32 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 54 (6th Dist.), quoting State
v. Kirk , 6th Dist. Huron No. H-09-006, 2010-Ohio-2006, ¶ 28. {¶ 129} During closing argument, the prosecutor did cite Wilson’s prior
inconsistent statement as substantive ev idence of McKelton’s guilt. But because McKelton did not request a limiting instruction or otherwise object, plain-error review applies. State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 91. {¶ 130} Given the state’s reliance on Wilson’s prior statement as substantive evidence and the lack of a limiting instruction, the jury may have considered the unsworn testimony in s upport of its convicti on of McKelton. But the error was not outcome-determinative, because Wilson was not the only person
to hear McKelton confess to the murder of Allen or Evans. Sheridan Evans, Marcus Sneed, and Charles Bryant all testified that he had implicated himself in Allen’s death. And Sneed, Bryant, and Lemuel Johnson all testified that McKelton implicated himself in Evans’s death. {¶ 131} For these reasons, we reject proposition of law No. 6.
3

. Testimony of Crystal Evans: Proposition of Law Nos. 10 and 11 {¶ 132} The prosecutor questioned Crystal about her March 2, 2009 police statement and about some of her phone calls and correspondence with McKelton during the months before trial. The trial court admitted a complete transcript of the police interview, recordings of the phone calls, and the letters into evidence. In proposition of law No. 10, McKelton argues that th is violated his right to a fair trial, due process, a reliable determination of guilt, and a reliable sentence. He also contends, in proposition of law No. 11, th at it was improper to admit statements that had been made by detectives during the interview. {¶ 133} McKelton did not request limiting instructions or object at trial, so plain-error review applies. See Barnes , 94 Ohio St.3d at 27, 759 N.E.2d 1240.January Term, 2016

33 a. Impeachment of Crystal {¶ 134} McKelton argues that it was improper to rely on Crystal’s prior statement to impeach her testimony on direct examination. The state counters that its use was proper to demonstrate McKelton’s “prior planning to escape criminal liability for Germaine Evans’s death.” {¶ 135} Prosecutors may elicit testimony on direct examination that the defendant asked a witness “to fabricate an alibi for him,” Commonwealth v. Young
, 561 Pa. 34, 61-62, 748 A.2d 166 (2000), because such evidence “strongly indicates consciousness of guilt.” State v. Campbell , 69 Ohio St.3d 38, 47, 630 N.E.2d 339 (1994). Although the state did not elic it such testimony here, it did have a reasonable basis for probing Crystal to de termine whether her inconsistencies were a product of McKelton’s coaching; a letter and a jailhouse phone call suggested that
he had coached her about an alibi. And because Crystal provide d McKelton’s alibi, the state was entitled to question her a bout the timing of McKelton’s and her own movements on February 27, 2009. b. Extrinsic evidence of Crystal’s statements to police {¶ 136} McKelton also argues that there was no evidentiary basis for the trial court to admit extrinsic evidence of Crystal’s March statements to police. {¶ 137} Crystal’s prior out-of-court statement would generally be
inadmissible for the truth of the matter a sserted. Evid.R. 801(C) and 802. The state contends that her statements are nonhearsay because they indicate consciousness of guilt by confirming that McKelton encouraged her to provide a false alibi. But nothing in Crystal’s statements, or in her responses to inquiries about them at trial,
indicates that McKelton had asked her to lie . Therefore, the state has not identified a legitimate nonhearsay purpose. {¶ 138} The state has not identified an y other hearsay exemption or exception that would apply to Crystal’s statements. They were not admissible as prior inconsistent statements under Evid.R . 607(A), so extrinsic evidence of themS UPREME C OURT OF O HIO

34 does not fall under Evid.R. 613(B). And a lthough the state used Crystal’s earlier statements to refresh her recollection, th at entitled the defense—not the state—to admit the transcript of her statements. See Evid.R. 612. As a result, the trial court erred by admitting Crystal’s statements. 3 {¶ 139} Even so, McKelton cannot establish that but for this error, the outcome of the trial “clearly would have been otherwise.” State v. Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69. Ultimately, McKelton’s whereabouts on the night of Evans’s murder were not crucial because the state advanced the theory throughout the trial th at he had enlisted someone else to kill Evans. Indeed, in his own brief, McKelton concedes that “[w]hether [he] was at [Crystal’s] apartment on the night of Germai ne’s death is insignificant.” Thus, the error did not affect McKelton’s substantial rights. See Crim.R. 52(B). c. Police statements during Crystal’s interview {¶ 140} McKelton also objects to the admission of the transcript of Crystal’s police interview because it included inadmissible hearsay statements made by Detectives Luke and Witherell. During the interview, the detectives told Crystal that McKelton had abus ed Allen, severely beat the mothers of his daughters, and abused other women. They also indicated that they had evidence that Evans was in a car with McKelton around 9:00 p.m. on the night he died. And they tried to undermine Crystal’s claim that McKelton had been with her the entire night of Evans’s murder, stating that Crystal had told her mother otherwise. {¶ 141} The state argues that these statements were admissible because they were “actually questions, designed to elicit a response from Crystal Evans.” But here the detectives’ “questions” incorpor ated numerous assertions about McKelton. And the state does not argue that they were admissible solely for a nonhearsay purpose, such as providing context for Crystal’s responses. Cf. State v. Keene , 9th

3 In light of this conclusion, we need not separately analyze McKelton’s claim that this evidence violated Evid.R. 403.January Term, 2016

35 Dist. Lorain No. 06CA8880, 2006-Ohio-6676, ¶ 24 (holding that “the State did not introduce the questions posed by the offi cer for the truth contained in those statements” when the state had “asserted that the statements were necessarily included to give context to th e answers given by appellant”). {¶ 142} Because the transcript “was admitted for all purposes, including the truth of the matter stated, the detective[s’] statements were also hearsay.” Lampkins
v. State , 778 N.E.2d 1248, 1251-1252 (Ind.2002). The jurors had no way to know that the “statements were not evidence” or that the officers’ representations to Crystal may not have been entirely truthful. Id. at 1252; see also State v. Craycraft
, 147 Ohio Misc.2d 5, 2008-Ohio-2192, 889 N.E.2d 1110, ¶ 22 (Clermont C.P.). “It [was] error to admit statements by an interrogating officer without any limiting
instruction or admonishment.” Lampkins at 1252. 4 {¶ 143} Even so, McKelton cannot establish that the error affected his substantial rights. The jury heard independent evidence of the detectives’ assertions at trial, with the exception of Luke’s statement that McKelton had abused other women. And even that statement was not outcome-determinative in light of the ample additional evidence supporting McKelton’s convictions. d. Admission of recordings and letters {¶ 144} McKelton also claims that the tr ial court violated Evid.R. 403 by admitting recordings of his jailhouse phone calls with Crystal and his letters to her. All relevant evidence is admissible, Ev id.R. 402, unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, Evid.R. 403(A). 5

4 These statements do not raise confrontation con cerns because Luke and Witherell both testified during the state’s case-in-chief. “[W]hen the decl arant appears for cross-ex amination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Crawford v. Washington , 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), fn.9. 5 McKelton repeatedly asserts that “heightened scrutiny” applies to Evid.R. 403 objections in capital cases. But the case he cites for this proposition establishes a more exacting standard for theS UPREME C OURT OF O HIO

36 {¶ 145} In the recording of the first call admitted, McKelton explained the police’s theory of Evans’s murder and asked Crystal why she had left police a voicemail suggesting that he arrived home after 10 p.m. on February 27. In the second call, he and Crystal argued loudly, and he scolded, “I wonder why you making these stupid decisions.” These conversa tions are highly probative of McKelton’s efforts to establish an alibi and to monitor Crystal’s exchanges with police, and their probative value is not substantially outweighed by the danger of unfair prejudice. {¶ 146} The content of the letters was also more probative than unfairly prejudicial. The four letters introduced during Crystal’s testimony supported the state’s theory that McKelton was trying to persuade her to lie for him at trial. In one, he proposes to Crystal and discusses his plans to ma rry her. In another, he teaches her a secret code and discusses his desire for a venue change due to publicity. In yet another, he says he wa nts to drum up media attention and suggests publicly posting witness names, arguably as a scare tactic. And in the last, he notes
that he has reviewed evidence that Evan s died at 10:00 p.m. and reminds Crystal that they were “home asleep at ten.” The trial court did not err by admitting this
evidence. {¶ 147} For these reasons, we reject proposition of law No. 10. 4. Audrey Dumas as a Witness Iden tified with an Adverse Party: Proposition of Law No. 7 {¶ 148} In proposition of law No. 7, McKelton argues that his due-process rights were violated when the trial court allowed the state to treat Audrey Dumas as a witness identified with an adverse party and permitted excessive, leading questions.

admission of gruesome photographs in capital cases, not for the admission of all evidence in capital

cases. See State v. Morales , 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267 (1987). This court has declined to extend Morales beyond the context of gruesome photographs. See Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 130



### .January Term, 2016

37 a. Factual background {¶ 149} Before Dumas began testifying, the state sought leave to use leading questions under Evid.R. 611(C) b ecause she was “identified with the adverse party in this case.” After requiring the state to establish Dumas’s relationship with McKelt on, the trial court granted the state’s request.
b. Determination that Dumas was identified with an adverse party

{¶ 150} Evid.R. 611(C) generally prohibits the use of leading questions on direct examination. However, they ar e permitted “[w]hen a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” Id. We review a trial court’s app lication of this rule for an abuse of discretion. Ramage v. Cent. Ohio Emergency Serv., Inc. , 64 Ohio St.3d 97, 111, 592 N.E.2d 828 (1992). {¶ 151} Here, the record supports the tria l court’s finding that Dumas was identified with McKelton. Dumas testified that they had ended a six-year romantic relationship earlier that year, and they were still close. She visited McKelton in jail, sent him money, exchanged letters with him, and spoke to him on the telephone. Indeed, she had even spoken w ith him since his trial began four days
earlier. {¶ 152} McKelton argues that even if his relationship to Dumas was sufficient to establish that she was identified with him, to establish adversity, the prosecutor also had to show that Dumas was evasive. But evasiveness is not a prerequisite to finding adversity. Inst ead, it is generally relevant to assessing whether a witness is hostile, an entirely separate basis for permitting leading questions under Evid.R. 611(C). See Weissenberger , Ohio Evidence: 1991 Courtroom Manual (1991) 170 (“A hostile witness is one who is so evasive or uncooperative on examination that his testimony is impeded”). {¶ 153} Thus, the trial court reasonably found that Dumas was a witness identified with an adverse party.S UPREME C OURT OF O HIO

38 c. The state’s questions {¶ 154} McKelton alternatively argues that the state “used excessive leading questions to improperly put word s in [Dumas’s] mouth and place improper insinuations before the jury.” 6 Because McKelton did not raise this objection at trial, we review for plain error. {¶ 155} On direct examination, the prosecu tor inquired about the following: (1) whether Dumas had given McKelton mone y in the past and whether she had set up robbery victims for him, (2) her date with McKelton on the evening of Allen’s death, (3) her interaction with McKelt on after Allen’s body was found, and (4) McKelton’s request that she speak to his a ttorney about his alibi a few weeks after Allen’s death. Throughout the questioning , the prosecutor expressed disbelief that
Dumas had never asked McKelton whether he killed Allen. He also tried to establish that Dumas had, at McKelton’s request, texted a nd called McKelton on the night of Evans’s murder to establish an alibi for him. {¶ 156} McKelton first claims that the prosecutor used “excessive” leading questions. But a party is permitted to ask leading questions under Evid.R. 611(C),
and there is no limit on the number of leading questions the party may ask. {¶ 157} Second, although McKelton claims th at the prosecutor “improperly put words in Dumas’[s] mouth,” Dumas ofte n refused to answer questions with a simple “yes” or “no.” {¶ 158} Third, McKelton claims that the questions amounted to “improper
insinuations.” “Prosecutors must avoid in sinuations and assertions calculated to mislead. * * * [T]hey may not allude to matters not supported by admissible
evidence.” State v. Lott , 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990)

. Although the state’s questions did imply that the alibis were not credible and the prosecutor

6 McKelton also asserts that “the State used Duma s” to present “highly inflammatory evidence that should have been excluded under Evid.R. 403(A).” But he does not identify the evidence he deems inflammatory and thus has not meaningfully presented this claim for review.January Term, 2016

39 argued in closing that McKelton asked Du mas to provide an alibi for both nights, there is no indication that these questions were calculated to mislead the jury or were unsupported by a factual predicate. {¶ 159} We reject proposition of law No. 7. 5. Domestic-Violence Expert: Proposition of Law No. 14 {¶ 160} In proposition of law No. 14, McKelton argues that the state’s expert testimony about domestic violen ce was inadmissible because the defense had not challenged the credibility of the victim. He further argues that the expert impermissibly testified about Allen’s specific characteristics rather than about characteristics of domestic-violence victims generally. {¶ 161} Expert-witness testimony is generally admissible “if it will assist
the trier of fact in search of the truth.” State v. Koss , 49 Ohio St.3d 213, 216, 551 N.E.2d 970 (1990). Evid.R. 702 permits a witnes s to testify as an expert if (1) the “testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons,” (2) the witness “is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony,” and (3) the “testimony is based on reliable scientific, technical, or other specialized
information.” We review a trial court’s admission of ex pert testimony for an abuse
of discretion. State v. Haines , 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91, ¶ 50. Although Allen was deceased, the state presented a theory that domestic abuse had occurred even though Allen had not reported it. This expert testimony met the
Koss test of assisting the trier of fact to determine a material issue. {¶ 162} Over repeated objections, Margene Robinson, a retired police lieutenant who had supervised the Domestic Violence Unit in the Dayton Police Department, testified as a domestic-violence expert during the state’s case-in-chief.She described the three phases of a cycle of domestic violence: (1) the tensionbuilding phase, when economic or domestic issues arise or the abuser makesS UPREME C OURT OF O HIO

40 accusations, (2) the battering phase, when the perpetrator engages in verbal, sexual, or physical abuse, and (3) the honeymoon phase, when the abuser expresses remorse and may promise to change. She added that after the third phase, the cycle begins again. Domestic violence is about asserting “power over the victim * * * and control,” and many victims are reluctant to leave an abusive relationship because of religious beliefs, shame, or fear s of retaliation, she testified. {¶ 163} McKelton argues that Robinson exceeded the established limits for expert testimony about domestic violence. This court has affirmed the use of expert testimony about battered-women’s syndrome, but only if “ ‘there is some evidentiary foundation that a party or witness to the case is a battered woman, and that party or witness has behaved in such a manner that a jury would be aided by expert testimony providing an explanation for the behavior.’ ” 7 Id. at ¶ 46, quoting State v. Borrelli
, 227 Conn. 153, 172, 629 A.2d 1105 (Conn.1993), fn. 15. {¶ 164} The state offered Robinson’s testimo ny about the cycle of domestic violence to explain how Allen’s failure to report McKelton could be consistent with
other evidence of abuse. And the state established an adequate foundation for this testimony by presenting evidence that McKelton and Allen were in a cycle of
domestic violence. See Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91, at ¶ 48 (“Evidence generally establishing the cycles of a battering relationship is an appropriate foundation for battered- woman-syndrome expert testimony”). Thus, Robinson’s testimony was both relevant and predicated upon a proper
foundation. {¶ 165} Regarding McKelton’s assertion th at Robinson improperly testified about Allen’s specific characteristics, we note that although Robinson indicated some familiarity with Allen’s background, she did not opine that Allen was a

7 Experts often use the term “battered woman syndrome” to refer to “both the psychological effects of domestic violence and the dynamics of abusive relationships.” Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome , 21 Hofstra L.Rev. 1191, 1195 (1993), fn. 14.January Term, 2016

41 victim. Her testimony a bout women bearing certain characteristics dispelled a common misperception—echoed in McKelton’s own brief to this court—that there is a “stereotypical victim of domestic violence.” Through Robinson, the state established that domestic violence can affect unlikely victims. {¶ 166} Finally, McKelton argues that Robinson’s testimony violated Evid.R. 403 because it was tainted by her kno wledge of the facts in this case. Robinson testified that before trial, she ha d reviewed some of Allen’s writings and
a letter to Allen from McKelton. McKelton reasons that Robinson’s reference to these materials implied that Robinson “was called because the materials’ contents
revealed incidents of domestic violence.” {¶ 167} Robinson did not need to review this information—or to mention it at trial—in order to testify generally about domestic violence. But the record in no way suggests that these materials affected her testimony; she testified that her knowledge was derived from dom estic-violence literature and her own experience. Ideally, the trial court should have instru cted the jury on the limits of Robinson’s testimony to eliminate any possible confusion, see Haines , 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91, at ¶ 57, but even so, we cannot conclude that the
trial court abused its di scretion by denying McKe lton’s motion “to strike all of her testimony.” (Emphasis added.) {¶ 168} For these reasons, we reject proposition of law No. 14.

6. Cross-Examination of Informants: Proposition of Law No. 9 {¶ 169} In proposition of law No. 9, McKelt on claims that the trial court improperly limited his cross-examination of three incarcerated informants: Charles Bryant, Lemuel Johnson, and Marcus Sneed. McKelton says that the jury was “not able to thoroughly judge [their] credibility” because he did not get to adequately question them about their motives for tes tifying about his statements implicating
himself in the murders of Allen and Evans.S UPREME C OURT OF O HIO

42 a. Scope of the right to cross-examine a witness {¶ 170} The Sixth Amendment to the U.S. Constitution gives a defendant the right “to be confronted with the witnesses against him.” See also Ohio Constitution, Article I, Section 10 8 (“the party accused sha ll be allowed * * * to meet the witnesses face to face”). But this protection “guarantees only ‘an opportunity for effective cross-examination.’ ” (Emphasis in original.) State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 83, quoting
Delaware v. Fensterer , 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). Trialcourts have “wide latitude * * * to impose reasonable limits on such crossexamination based on concerns about, am ong other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). {¶ 171} Similarly, Evid.R. 611(B) requires trial courts to permit “[c]rossexamination * * * on all relevant matters and matters affecting credibility.” However, under Evid.R. 611(A), a trial cour t “shall exercise reasonable control over the mode and order of interrogatin g witnesses and presenting evidence.” {¶ 172} When a defendant challenges a trial court’s limitation on crossexamination on appeal, the standard of review turns on the nature of the limitation. “Limitations * * * that deny a de fendant ‘the opportunity to establish that the witnesses may have had a motive to lie’ infringe on core Sixth Amendment rights” and are reviewed de novo. (Emphasis sic.) State v. Gonzales , 151 Ohio App.3d 160, 2002-Ohio-4937, 783 N.E.2d 903, ¶ 45 (1st Dist.), quoting United States v.
Nelson , 39 F.3d 705, 708 (7th Cir.1994). To esta blish a confrontation violation, then, McKelton must show that he was “prohibited from engaging in otherwise appropriate cross- examination.” Van Arsdall at 680. But if a trial court “allow[ed]

8 “Section 10, Article I provides no greater right of confrontation than the Sixth Amendment * * *.” State v. Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990).January Term, 2016

43 cross-examination to expose a motive to lie,” then “it is of peripheral concern to the Sixth Amendment how much opportunity defense counsel gets to hammer that point home to the jury.” Nelson at 708. Under those circ umstances, the extent of
cross-examination is within the s ound discretion of th e trial court. State v.
Freeman , 7th Dist. Jefferson No. 07JE5, 2008-Ohio-2925, ¶ 12, citing State v.
Green , 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993). To prove a violation of Evid.R. 611, McKelton must demonstrate th at the trial cour t’s limitation on crossexamination was “unreasonable, ar bitrary or unconscionable.” Freeman at ¶ 12. b. Charles Bryant {¶ 173} On direct examination, Bryant stated that he was willing to cooperate with police out of self-interest, but he denied that he had been promised anything specific. On cross-examination, the defense established that Bryant had a prior felonious-assault conviction and had been awaiting trial for felonious assault
and other offenses for 14 months. He admitted that his trial had been continued “[r]oughly maybe four times” but denied that it had been continued “to see how [his] testimony goes in [McKelton’s] case.” His attorney had advised him, however, that testifying against McKelton might help Bryant in his case. {¶ 174} The trial court sustained objections to two defense questions: how many times Bryant’s pending case had been set for trial and whether he had been charged with trafficking. See Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431, 89 L.Ed.2d 674. The jurors already knew that Bryant was awaitin g trial on felony
offenses and that his trial had been continued until after he testified in McKelton’s case, which “adequately established [his] motive to lie.” State v. Reed , 10th Dist. Franklin No. 09AP-84, 2009-Ohio-6900, ¶ 11. The trial court did not violate
McKelton’s confrontation ri ghts or Ohio’s evidentiary rules by sustaining objections to these questions.S UPREME C OURT OF O HIO

44 c. Lemuel Johnson {¶ 175} Johnson testified that he had been incarcerated on a federal cocainepossession charge for about a year and would be sentenced about a month after McKelton’s trial. But Johnson insisted that he did not expect his testimony against McKelton to help him at sentencing. He explained that he had not told police about
his conversations with McKelton until he was locked up on this charge because he had assumed that “everybody in Cincinnati knew” already. He also told the jury about his prior convictions. {¶ 176} On cross-examination, the trial judge sustained an objection to questioning as asked and answered when defense counsel repeatedly questioned Johnson about why Johnson thought his tes timony would matter now. The jury had ample information to evaluate Johnson’s motives to testify; it had been told that he
was incarcerated and would soon be sentenced. See Tansley , 986 F.2d at 886; Reed
, 2009-Ohio-6900, at ¶ 11. Repetition would have given the jury no greater information from which to form a different impression of his credibility.
d. Marcus Sneed {¶ 177} Sneed did not speak to police until he was jailed on federal conspiracy charges. He said that Mc Kelton’s admissions had long weighed on his conscience, but that he had been too worried for his family’s safety to say anything until McKelton was locked up. {¶ 178} Sneed had been in federal custody for 13 or 14 months on a drugconspiracy charge at the time of McKelton’s trial. He expressed uncertainty about whether he was facing a lengthy sentence, but admitted that he was being held without bond and had prior convictions in Oh io. He also admitted that his sentencing
had been continued until after he testified at McKelton’s trial, but said he did not know why. He insisted that he was not testifying with an eye to his upcoming sentencing hearing.January Term, 2016

45 {¶ 179} The trial court sustained objec tions when defense counsel repeatedly questioned Sneed about the timing of his continuance, even after Sneed
had answered. The trial court also sustai ned objections to inquiry into how many counts Sneed was facing and privileged a ttorney-client communications. The jury had sufficient information to evaluate Sneed’s credibility, however. See Reed
, 2009-Ohio-6900, at ¶ 11; Tansley , 986 F.2d at 886. Thus, cross-examination was not improperly curtailed. {¶ 180} For these reasons, we reject proposition of law No. 9. 7. Other Hearsay and Confrontation Challenges: Proposition of Law No. 11 {¶ 181} In proposition of law No. 11, McKelton argues that the admission of hearsay evidence violated the Rules of Evidence and the Confrontation Clause. We will not reverse a trial court’s ruling on evidentiary issues absent an abuse of discretion and proof of material prejudice. See State v. Belton , __ Ohio St.3d __, 2016-Ohio-1581, __ N.E.3d ¶ 116. a. “He choked her mother with a phone cord” {¶ 182} Over objection, the prosecutor played a recording of a May 4, 2008 conversation between Z.D., Allen’s niece, and a 9-1-1 dispatcher. On the recording, Z.D. related a statement by an out-of-court declarant, McKelton’s daughter, who had “warned [her] about [McK elton], ’cause she said that he choked her mother with a phone cord.” {¶ 183} The statement by McKelton’s daughter is hearsay within hearsay, which “is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in the [Ohio Rules of Evidence].” Evid.R. 805. Z.D. ’s out-of-court statements on the 9-1-1 recording were admissible under the excite d-utterance or state-of-mind hearsay exceptions. See Evid.R. 803(2) and (3). But th e record does not indicate that McKelton’s daughter describe d the phone-cord incident to Z.D. while “under the stress of excitement caused by the event. ” Evid.R. 803(2). Nor does it show thatS UPREME C OURT OF O HIO

46 the statement went to McKelton’s daughter’s “then existing state of mind, emotion, [or] sensation” about the incident. Evid.R. 803(3); 1980 Staff Notes, Evid.R. 803(3) (state-of-mind exception “does not in clude statements of belief of past events” because doing so “would negate the entire proscription against hearsay evidence”). The state has not identified any other hearsay exception that would permit this statement, and this evidence should have been excluded. 9 {¶ 184} Even so, McKelton was not material ly prejudiced by the error.
Belton , __ Ohio St.3d __, 2016-Ohio-1581, __ N.E.3d ___, at ¶ 116. The trial judge here expressly admonished the jurors not to consider anything in the 9-1-1 tape for its truth; they were permitted to consider the recording only as evidence of Z.D.’s
“emotions and state of mind at the tim e” she called 9-1-1. This instruction significantly minimized any potential harm to McKelton. In addition, the jury heard far more prejudicial evidence from other witnesse s that McKelton had choked women, specifically Allen, in the past. Under these circumstances, the error in admitting the phone-cord statement was harmless beyond a reasonable doubt. See Crim.R. 52(A); State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 28-29. {¶ 185} McKelton also cannot establish a c onfrontation-clause violation. Only testimonial hearsay implicat es the Confrontation Clause. Davis , 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224. “[T] estimonial statem ents are those made for ‘a primary purpose of creating an out-of-court substitute for trial testimony.’ ” State v. Maxwell , 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 40, quoting Michigan v. Bryant , 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). But “[s]tatements to fri ends and neighbors about abuse and
intimidation” are nontestimonial. Giles , 554 U.S. at 376, 128 S.Ct. 2678, 171

9 Given this conclusion, we need not consider Mc Kelton’s alternative arguments that the statement violated Evid.R. 403 or 404.January Term, 2016

47 L.Ed.2d 488. Here, the statement from McKelton’s daughter to Z.D. was nontestimonial, and therefore no Sixt h Amendment violation occurred. b. Hearsay to describe a s ubsequent investigative step {¶ 186} Two detectives related hearsay, over objection, while testifying about their investigations of Allen’s murder. A law-enforcement officer can testify
about a declarant’s out-of-court statemen t for the nonhearsay purpose of explaining the next investigative step. State v. Thomas , 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980). Testimony offered to expl ain police conduct is admissible as nonhearsay only if it satisfies three criteria: (1) “the conduct to be explained [is] relevant, equivocal, and cont emporaneous with the statements,” (2) the probative
value of the statements is not substan tially outweighed by the danger of unfair prejudice, and (3) “the st atements cannot connect the accused with the crime charged.” State v. Ricks , 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. If testimony qualifies as nonhearsay, it does not implicate the Confrontation
Clause. Crawford , 541 U.S. at 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, fn. 9, citing
Tennessee v. Street , 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). {¶ 187} Detective Witherell tes tified that during the Evans investigation, he was told that on the night he disappeared, Evans got into a car with Donte Terry in downtown Cincinnati. As a result, With erell interviewed Terry and obtained his DNA sample. The rumor was not inadmissi ble hearsay because the state did not offer the statement for its truth. Witherell related the rumor only to explain how his investigation progressed (and why police had tested Terry’s DNA). See Ricks at ¶ 27; Thomas at 232. The trial judge instructed the jury not to rely on the rumor for its truth. And contrary to McKelton’s assertions, the prejudicial impact of this evidence did not outweigh its probative value. Evid.R. 403. {¶ 188} Detective Luke explained why she began to look for Evans in connection with the investigation of Allen’s death. She stated that she had gotten a new lead on Evans in February 2009. Befo re Luke described what she heard, theS UPREME C OURT OF O HIO

48 trial court emphasized to the jurors that they should not take her testimony for its truth and that it was being offered only to explain her state of mind. Luke then testified that she had heard that Evans “was present during Missy’s homicide, that
he knew about it and that he was scared a nd that he may have either helped move the body or that he was present in the house when Missy was killed.” This information prompted Luke to call Crystal in an effort to locate Evans. {¶ 189} Luke’s testimony violated Ricks because it went beyond the nonhearsay purpose of explaining why she was trying to locate Evans; her testimony also supported the state’s theory that McKelton killed Evans because he
had witnessed Allen’s murder. Viewed fo r its truth, Luke’s statement connected the two deaths. As a result, McKelton was entitled to confront the informant who gave Luke the information. {¶ 190} Even so, the error was harmless beyond a reasonable doubt. See Chapman v. California , 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also State v. Jordan , 9th Dist. Summit No. 27005, 2014-Ohio-2857, ¶ 8-11 (evidence violated Ricks , but error was harmless beyond a reasonable doubt). The trial judge instructed the jurors not to cons ider this part of Luke’s testimony for its truth, and we presume that they followed the instruction. See State v. Loza , 71 Ohio St.3d 61, 79, 641 N.E.2d 1082 (1994). Moreover, viewed alongside the state’s other evidence against McKelton, we do not see a “ ‘reasonable possibility that the evidence * * * might have contributed to the conviction.’ ” Chapman at 24, quoting Fahy v. Connecticut , 375 U.S. 85, 86, 84 S.Ct.229, 11 L.Ed.2d 171. c. Statements by spect ators at Inwood Park {¶ 191} Detective Karaguleff te stified about statements he heard at Inwood Park when the police were investigating the discovery of a body, later identified as Evans. He said that Evans’s mother and family members, who insisted that the victim was Evans, “believed that he wa s killed by his friend, Calvin McKelton * * * because he helped move that lawyer’s body.” According to Karaguleff, theJanuary Term, 2016

49 spectators made these statements in an “emotional” state; “[s]ome were crying,” and they were “yelling, screaming, wa iling.” Because McKelton did not raise hearsay and confrontation-clau se objections at trial, he has waived all but plain

error. See Barnes , 94 Ohio St.3d at 27, 759 N.E.2d 1240. {¶ 192} It is unclear whether these stat ements were admissible under the excited-utterance exception in Evid.R. 803(2) or whether they violated McKelton’s confrontation rights, because the record does not indicate whet her the bystanders spoke spontaneously, provided this inform ation in response to police questioning, or even had any firsthand knowledge regard ing the location or identity of the body, let alone the cause of death. But even assuming that a confrontation-clause violation occurred, the error was harmle ss because “the probable impact” of the statements “on the minds of an average jury” was negligible. Harrington v. California , 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The jurors heard other witnesses testify that McKe lton had admitted killing Evans because he had witnessed Allen’s murder. Thus, “there is [no] reasonable possibility that the improperly admitted evidence contributed to the conviction,” a nd so the alleged confrontation error was harmless beyond a reasonable doubt. Schneble v. Florida
, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). For the same reason, the
admission of these statements did not rise to the level of plain error. {¶ 193} Proposition of law No. 11 fails. 8. Irrelevant and Prejudicial Ev idence: Proposition of Law No. 5 {¶ 194} In his fifth proposition of law, McKelton argues that the state violated his constitutional rights by introducing numerous pieces of irrelevant and prejudicial evidence, as well as character evidence, at trial, in violation of Evid.R. 403 and 404. Unless otherwise noted, McKelton did not object to this evidence at trial, so we review his claims for plain error. See Barnes , 94 Ohio St.3d at 27, 759
N.E.2d 1240.S UPREME C OURT OF O HIO

50 a. Photographs of McKelton’s tattoos {¶ 195} McKelton objects to the admission of several photographs of him taken by police after Allen’s death, some of which depicted his tattoos. The police had photographed the tattoos “just for id entification purposes.” The prosecutor mentioned the tattoos during closing arguments, stating, “It’s almost beyond [parody] to sit here and imagine how it ha ppened, the defendant having a tattoo that says, straight killer, but that’s his [tattoo].” {¶ 196} We agree that the tattoo photos should have been excluded under Evid.R. 403. The photographs encouraged the jury to draw an improper inference that McKelton committed the crimes charge d because his tattoos showed his comfort with death and guns. And othe r photographs at trial clearly confirmed McKelton’s identity without depicting his tattoos. Thus, any minimal probative value that the photos may have had wa s outweighed by the danger of unfair prejudice. {¶ 197} Nevertheless, given the overwhe lming evidence of McKelton’s guilt, we are unpersuaded that but for these photos, “the outcome of the trial clearly
would have been otherwise.” Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 69. b. Killing other witnesses {¶ 198} Lemuel Johnson testified that McKelton offered to “take care of”
some witnesses for Johnson’s incarcerate d brother and described his past success in preventing witnesses (including Evan s) from testifying. Defense counsel objected. The court warned the jurors not to consider the testimony as evidence of McKelton’s “character * * * in order to show that he acted in conformity or inJanuary Term, 2016

51 accordance with that character.” 10 The state now argues that the evidence was admissible to prove McKelton killed witnesses to silence them. {¶ 199} Evidence of a certain modus opera ndi is admissible under Evid.R. 404(B) “because it provides a behavioral fi ngerprint which, when compared to the behavioral fingerprints associated with th e crime in question, can be used to identify the defendant as the perpetrator.” State v. Lowe , 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). But to be admitted for this purpose, evidence of other acts
“must be related to and share common f eatures with the crime in question.” Id

. {¶ 200} Here, Johnson’s testimony does not establish a distinctive behavioral fingerprint. But Johnson’s te stimony also established the context for
McKelton’s admissions about Allen and Evans. And the trial judge clearly instructed the jurors that they coul d not rely on evidence about how McKelton treated witnesses to show his character or for any other improper purpose. Thus,
we do not find error.
c. Witness intimidation {¶ 201} Detective Gregory testified that he received a frantic phone call from Michael Nix early on September 26, 2010 . Nix said that an associate of McKelton had approached him at a party and asked how McKelt on’s trial was going to go. Nix had replied that he did not know . The associate then left the party. Twenty minutes later, someone fire d shots at Nix from a passing car. {¶ 202} This testimony is not improper evidence of another act. Instead, it is evidence to support the charge that McKelton tried to prevent a witness from testifying against him in this trial. Evidence that McKelton may have interfered with a witness’s testimony in this trial is highly probative of his consciousness of

10 On redirect, the prosecutor alluded to the identity of other victims. McKelton argues that trial court erred by overruling an objection to leading questions on this topic. But these questions were not leading: they did not suggest an answer. See Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 149. And even if they had been , they did not prejudice McKelton because Johnson had already testified that McKelton said he had killed multiple witnesses.S UPREME C OURT OF O HIO

52 guilt. See State v. Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 68. Thus, this evidence was admissible.
d. “C Murderer” {¶ 203} Detective Gregory stated that McKelton’s street name was “C
Murderer.” In State v. Gillard , this court held that the prosecutor’s repeated references to the significance of the defendant’s nickname, “Dirty John,” were “improper attempts to im pugn Gillard’s character.” 40 Ohio St.3d at 230, 533 N.E.2d 272, abrogated on other grounds
, State v. McGuire , 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997). By contrast, here the state made a single reference to McKelton’s nickname and did not argue th e significance of that nickname. We cannot reverse for plain error, because “it is not clear that, had the nickname not been improperly used, the outcome of th e trial would have been different.” Id.
e. “Serial killer” {¶ 204} Sheridan Evans testified that po lice should not have called Crystal when looking for Evans because doing so “w as like throwing meat to a tiger when you know this man is a serial killer. ” The danger of unfair prejudice from Sheridan’s description of McKelton as a “serial killer” exceeded any possible probative value. But because we are unpers uaded that this evidence was outcomedeterminative, we do not reverse for plain error. f. “Killer” and “robber boy” {¶ 205} Shaunda Luther testified that A llen referred to McKelton and his companions, one of whom had been indicted for a triple homicide, as “killers” and to McKelton as a “robber boy,” meaning a “person who robs other drug dealers.” {¶ 206} Luther’s testimony showed that Allen was aware of McKelton’s past criminal behavior and that Allen may not have reported McKelton’s repeated domestic violence to police because she was afraid of McKelton. In other words,
the statements were offered to show Allen’s perception of McKelton and their relationship, not to prove that he was a mu rderer or a robber. And the trial courtJanuary Term, 2016

53 reduced any danger of unfair prejudice by issuing a limiting instruction to the jury.
See State v. Jones , 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194. {¶ 207} McKelton objects to the state’s implication that Audrey Dumas set up robbery victims for him and that these schemes generated the money that she sent to him in prison. She testified that she later refused to play the “role” of his girlfriend because McKelton and Crystal had a baby. The state implied that by this “role,” Dumas meant not only sending McKelton money, but also facilitating robberies and providing an alibi. But this series of que stions and answers was relevant to Dumas’s status as a witness identified with an adverse party, and the trial court did not err by admitting it. g. Drug activity {¶ 208} Several witnesses testif ied about McKelton’s drug activity. First,
Lemuel Johnson testified that he and Mc Kelton were engaged in a drug-related
transaction when McKelton offered to take care of some witnesses for him. This testimony provided context for McKelton’s offer to take care of the witnesses against Johnson’s brother. The trial court twice instructed the jury not to draw improper inferences from it. We presume that the jurors followed these
instructions. See Loza , 71 Ohio St.3d at 79, 641 N.E.2d 1082. {¶ 209} Second, Crystal referred to Mc Kelton’s drug activity when answering the prosecutor’s questions about McKelton’s “bus iness” and family telephone numbers. Cell-phone records fe atured prominently in the police investigation. and Crystal’s testimony explained why McKelton had more than one phone number and why he changed his numbers once a week. Moreover, any error in admitting this evidence was harmless becau se other witnesses spoke with more
detail about McKelton’ s drug activity. {¶ 210} Third, Charles Bryant testified th at he and McKelton had engaged in “dope dealing” in the past, but this testimony bolstered Bryant’s credibility as an informant by providing context for McKe lton’s confession to him. And AndreS UPREME C OURT OF O HIO

54 Ridley testified that Evans claimed that McKelton had given him 20 ounces of cocaine, with an estimated value of $20,000 or $40,000, after the men moved Allen’s body, which suggests that McKelton bribed Evans to keep him from reporting Allen’s murder and for helping dispose of her body. These pieces of evidence were highly probative, and their value far outweighed the danger of unfair prejudice. {¶ 211} Finally, McKelton objects to evidence about his “lavish lifestyle as a drug dealer.” Luther testified that McKelton gave Allen si gnificant amounts of money. But evidence about Allen’s financial dependenc y on McKelton was relevant to the state’s effort to establish a cycle of domestic violence, the first step of which is “the tension building phase,” when tension keeps rising as a result of economic-power issues in the relationshi p. And the prejudicial impact of this testimony was minimal, given that Luther did not address the source of McKelton’s

money. h. Rumors {¶ 212} Several state witnesses said that they had heard rumors about who was responsible for the murders. “Rumor s * * * are prototypical examples of inadmissible hearsay.” Weaks v. North Carolina Dept. of Transp. , 761 F.Supp.2d 289, 306 (M.D.N.C.2007). {¶ 213} Sheridan Evans testified about a conversation in which McKelton had told her that “Pooh,” Michael McNeil, had killed Evans. She responded, “Well, Pooh said you did it.” This testimony was offered to provide context for McKelton’s threatening reaction when he was accused of the murder. {¶ 214} Marcus Sneed testified that in two conversations, he asked McKelton whether what “everybody was sayi ng in the street” about the murders was true. The testimony provided c ontext for McKelton’s responses admitting
involvement in the murder of Allen and Evans.January Term, 2016

55 {¶ 215} Crystal testified about rumors that she did not associate with
McKelton after her brother’s death because of “rumors that he had something to do with [her] brother’s death.” This testimony was presented to show Crystal’s state of mind when she initially spoke to police. {¶ 216} Lemuel Johnson testified on cross- examination that he believed
McKelton’s accounts about e liminating witnesses, saying, “I already knew from the streets that he was telling the truth.” But defense counsel invited this testimony by inquiring whether Johnson believed Mc Kelton “was being serious about these
witnesses that he was telling [Johnson] about.” {¶ 217} In all these instances, evidence was offered for a nonhearsay purpose and not for the truth of the matte r asserted. Accordingly, there was no violation of hearsay rules or the Confrontation Clause. See Davis , 547 U.S. at 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (only testimonial statements implicate the Confrontation Clause). And in each s ituation, the trial cour t reasonably permitted the evidence under Evid.R. 403 because its probative value outweighed any unfair prejudice to McKelton. i. “Generalized testimony” {¶ 218} McKelton next objects to the admi ssion of allegedly prejudicial “generalized” statements that he was unable to meaningfully refute at trial. Most of the statements cited by McKelton are discussed elsewhere in this opinion. And his remaining objections are meritless. j. References to rap songs {¶ 219} McKelton argues that the state attempted to vilify him by making irrelevant and prejudicial references to rap songs. {¶ 220} Andre Ridley testified that, by Evans’s account, McKelton had gotten the idea to throw “some dope” by Allen’s body from a rap song. Ridley’s reference to the rap song was a detail that lent credibility to Evans’s description of how McKelton disposed of Allen’s body, which was crucial to establishing bothS UPREME C OURT OF O HIO

56 that McKelton had committed crimes against Allen and that Evans had witnessed
those crimes. {¶ 221} The trial court did not abuse its discretion by admitting this
evidence.
k. Battles Co. {¶ 222} Over defense objection, Detectiv e Witherell testified about a jailhouse letter from McKelton to Crystal. The letter states, “[I]n July when we find out everyone they are using, we gone get there records and post them up all over * * * Co.” Immediately preceding “C o.” is a seven-letter word that begins with a capital “B.” Witherell read the word as “Battles,” which he took to refer to JC Battle & Sons Funeral Homes, Inc., a funeral parlor near Crystal’s home. He thought that McKelton wanted to post the names of potential witn esses at a funeral home to convey a “subtle” message that their safety was in peril. He explained that
he knew how “information is disseminated in certain [Cincinnati] neighborhoods” and that the letter concerned him in light of “McKelton’s history in terms of
witnesses.” {¶ 223} Evidence of plans to threaten witnesses was probative of McKelton’s consciousness of guilt as well as McKelton’s method of operating, and the defense had opportunity to press Wither ell about the basis for his opinion. Thus, we are not persuaded that this testimony violated Evid.R. 403. See Conway , 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 68.
l. McKelton’s treatment of women {¶ 224} The state introduced other jailhouse letters from McKelton to Crystal Evans that, according to McKelton, were not relevant. These letters did include profanity, sexually explicit content, and racial comments. But they were probative of his relationship with Crystal, and the state was entitled to explore that relationship because she was his alibi. Mc Kelton offers no explanation of how this evidence unfairly prejudiced him.January Term, 2016

57 {¶ 225} The jury also heard a recorded jailhouse phone call in which McKelton swore at Dumas repeatedly and demanded that she bring him money. During the conversation, Dumas told McKelton that she did not wish to be involved with him now that he had a son with Crystal. This evidence was relevant to explore Dumas’s potential bias in favor of McKelton. And contrary to McKelton’s suggestions, the state did not improperl y rely on her testimony to encourage
inferences about his treatment of all women. {¶ 226} Charles Bryant testified that McKelton advised him that “females can’t be trusted,” are “good with lying,” and have to be watc hed. McKelton then referred to Allen as “scandalous and running her mouth.” The st ate introduced this
evidence to show the course of the conversation in which McKelton confessed to murdering Allen and to suggest a possible motive for that murder—McKelton did not trust Allen. But the state did not imply that McKelton’s general attitude towards all women explained why he killed Allen. Cf. State v. Johnson , 71 Ohio St.3d 332, 340, 643 N.E.2d 1098 (1994) (prosecutor impermissibly relied on defendant’s general hatred of women—“evidence of a character trait” under Evid.R. 404(A)—to prove that he killed a particular woman). Thus, the trial court reasonably allowed the
evidence under Evid.R. 403. m. Gruesome photographs {¶ 227} The state introduced 15 autopsy photographs of Allen’s body, each capturing her injuries from a different angle or perspective. Allen’s body appears decomposed and discolored in some phot ographs. Others show extracted body parts. {¶ 228} This court “strongly caution[s] judicious use” of gruesome photos in capital cases. Morales , 32 Ohio St.3d at 259, 513 N.E.2d 267. Accordingly, a gruesome photograph is admissible only if its “probative value * * * outweigh[s] the danger of prejudice to the defendant.” Id. at 258. Moreover, even a photo that satisfies the balancing test is inadmissible if it is “repetitive or cumulative.” Id .;S UPREME C OURT OF O HIO

58 see State v. Thompson , 33 Ohio St.3d 1, 9, 514 N.E.2d 407 (1987). A trial court’s decision that a photo satisfies this sta ndard is reviewable only for abuse of
discretion. See State v. Vrabel , 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 69. {¶ 229} Here, the state had the burden to prove that McKelton killed Allen and committed gross abuse of her corpse, a nd these photos were probative of those
facts. See State v. Maurer , 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). The photos were not repetitive or cumulative, be cause they depicted different injuries to the face and neck, as well as insect activity that the coroner used to estimate time
of death. Cf. State v. Watson , 61 Ohio St.3d 1, 7, 572 N.E.2d 97 (1991) (five autopsy photos of the same gruesome head wound were unnecessary and
cumulative since the defense had not dis puted the manner and cause of death). {¶ 230} McKelton also argues that th e risk of undue prejudice was especially great because one juror wa s prone to faint upon viewing gruesome images. But the defense objected to excusing the juror for cause. In addition, the record indicates that this juror responded only to photos of Evans, not to those of Allen. Thus, there is no reason to believe the juror was unduly swayed by the photos of Allen. {¶ 231} Finally, McKelton says that the autopsy photos should not have been reintroduced at the mitigation phase. Defense counsel objected at trial, and the state argued that the photos were rele vant to the crimes witnessed by Evans, which provided the basis for the aggravating circumstance at sentencing. The trial judge overruled the objection, but later instruct ed the jurors that they could consider
the “evidence in terms of whether it tends to prove or disprove an aggravating circumstance[] of the case only,” and not fo r any other purpose. We must presume that the jurors followed this instruction. Loza , 71 Ohio St.3d at 79, 641 N.E.2d
1082.January Term, 2016

59 n. Other “irrelevant or unfairly prejudicial evidence” {¶ 232} McKelton next alleges that the trial court erred by admitting “additional irrelevant or unfairly prejudi cial evidence,” which was part of a prosecutorial “campaign to depict [him] as the type of person who would commit crimes like those charged.” {¶ 233} First, McKelton objects to hearsay testimony that his daughter had told Z.D. that he had “choked her mother with a phone cord” and warned Z.D. to “watch out for” Allen. We addressed this argument in our analysis of proposition
of law No. 11. {¶ 234} Second, the prosecutor introduced a copy of The Anarchist Cookbook, a book published in 1971 “for entertainment purposes only,” that police
had found in Allen’s master bedroom. Th is book’s author describes it as a volume “on all the subjects (from drugs, to weapons , to explosives) that are currently illegal, but the publisher added the following disclaimer: “its recipe should not be used as they do not pretend to be accurate.” The state argues that the book was relevant to establishing that McKelton lived in Allen’s house. But the state did not introduce evidence that the book belonged to McKelton. While the book appears to be at least partly satirical, given its title, the book shoul d not have been admitted. But given the overwhelming evidence of McKelton’s guilt, its admission did not rise to the level of plain error. {¶ 235} Third, McKelton argues that the prosecutor asked Melinda Nagel, Allen’s physical therapist, an inflammatory, hypothetical question that was unsupported by the record. Generally, “[ h]ypothetical questions directed to a
witness must be based on facts supported by or adduced from the evidence.” Olsen
v. Elec. Auto-Lite Co ., 164 Ohio St. 283, 284, 130 N.E.2d 363 (1955). But here the defense introduced this line of inquiry on cr oss-examination by asking Nagel how
she would have treated Allen if Allen had reported being h it with a baseball bat. The prosecutor “pick[ed] up on” this line of questioning on redirect, asking, “[I]fS UPREME C OURT OF O HIO

60 [Allen] had told you her boyfriend broke her ankle by slamming a car door on it repeatedly, would that have changed your treatment plan * * *?” This was a fair response to the defense’s cross-examination. {¶ 236} Fourth, Charles Bryant testified that he and McKelton had been driving around drinking when they discussed Allen. Bryant said that he had been smoking marijuana and drinking Grey G oose with cranberry, while McKelton had been drinking straight Grey Goose. These details lent credibility to Bryant’s testimony about McKelton’s confession by establishing the context of their conversation, and the trial court reasonably decided to admit them under Evid.R.
403. {¶ 237} Bryant testified that he had met McKelton in jail when McKelton was charged with either intimidation of a witness or contempt of court. Any probative value in explaining the circum stances under which Bryant met McKelton was substantially outweighed by the danger of unfair prejudice because McKelton was on trial for an unrelated charge of witness intimidation. Even so, we find nobasis to reverse for plain error; notably, McKelton was acquitted on the witnessintimidation charge in this case. {¶ 238} Finally, Marcus Sneed testified that he had known a man named “Fat Boy” who “[e]nded up alongside of a road.” According to Sneed, McKelton had talked to Sneed about setting Fat Boy up to be robbed. The trial court sustained a defense objection to this testimony and instructed the jury to disregard it. We presume that the jury followed the trial court’s instruction. See Loza , 71 Ohio St.3d at 79, 641 N.E.2d 1082. {¶ 239} For all these reasons, we reject McKelton’s fifth proposition of law. C. Jury Instructions and Verdict Forms 1. Trial Phase: Proposition of Law No. 12 {¶ 240} In proposition of law No. 12, McKelton argues that his constitutional rights were violated because (1) the state did not present a cohesiveJanuary Term, 2016

61 theory about Germaine Evans’s death, (2) the jury received instructions on complicity but no verdict form on it, and (3) the jury did not reach a unanimous verdict on whether McKelton was the pr incipal offender or only complicit in
Evans’s death. a. Factual background {¶ 241} The state charged McKelton with the aggravated murder of Evans under R.C. 2903.01(A). In a bill of particul ars, the state alleged that McKelton caused Evans’s death “by a single gunshot wound to the back of the head.”
McKelton later filed a notice of alibi for th e night Evans died, but the state did not amend the bill of particulars to allege that McKelton had aided or abetted in the killing of Evans. {¶ 242} At trial, the state sometimes implied that McKelton himself had shot Evans and at other times suggested that McKelton had orchestrated the murder.
The state offered no evidence of who fired the shot if not McKelton. Over defense objection, the trial court agreed to instruct the jury on complicity. The defense then requested a special verdict on that issue, arguing that the jury needed to unanimously find either that McKelton was the principa l offender or that he had “solicited, aided, abetted or procured” the murder. The defense offered no legal authority that such an instruction was re quired. The trial court denied the request. b. Analysis {¶ 243} McKelton alleges several errors related to complicity. First, he says that the state’s inconsistent theories of the case “did not present sufficient
evidence to find that McKelton killed Evan s beyond a reasonable doubt.” We will address this argument in our analysis of McKelton’s sufficiency claim in proposition of law No. 13. {¶ 244} Second, he argues that the trial c ourt erred by instructing the jury on complicity. Under R.C. 2923.03(F), “[a] charge of complicity may be stated in terms of [that] section, or in terms of the principal offense.” Accordingly, aS UPREME C OURT OF O HIO

62 defendant who is “indicted for aggravated murder in terms of the principal offense * * * [is] on notice that evidence could be presented that he was either a principal offender, or an aider and abetter.” State v. Ensman , 77 Ohio App.3d 701, 703, 603 N.E.2d 303 (11th Dist.1991). This is true ev en when the state has issued a bill of particulars that refers to a defend ant only as the principal offender. See Hill v.
Perini , 788 F.2d 406, 407-408 (6th Cir.1986). As a result, a jury instruction on complicity is proper as long as “the evidence adduced at trial could reasonably be found to have proven the defendant gu ilty as an aider and abettor.” State v. Perryman , 49 Ohio St.2d 14, 358 N.E.2d 1040 (1976), paragraph five of the syllabus, vacated on other grounds , 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156 (1978). {¶ 245} McKelton argues that the Perryman rule applies only when the defendant presents evidence of complicity at trial, while here, the state introduced
evidence to support a finding of complicity. But McKelton’s narrow reading of Perryman is inconsistent with the broad language of the court’s syllabus in that case, which “unequivocally approved of the practice of charging a jury regarding aiding and abetting even if the defendant was charged in the indictment as a principal.” State v. Payton, 8th Dist. Cuyahoga Nos. 58292 and 58346, 1990 WL 48952, *8 (Apr. 19, 1990). {¶ 246} A complicity instruction was proper here because the evidence could reasonably be found to have proven that McKelton was an aider and abettor. The jury could have reasonably interpreted his admissions to having killed Evans to mean either that he was the principal offender or that he encouraged, cooperated with, or
incited someone else to commit the crime. {¶ 247} Finally, McKelton objects that the trial court “created an unacceptable risk” that the jury did not unanimously convict him of aggravated murder because it did not provide for a sepa rate verdict on complicity. Under Ohio law, “there is no distinction between a de fendant convicted of complicity or as aJanuary Term, 2016

63 principal offender.” State v. Alexander , 6th Dist. Wood No. WD-02-047, 2003- Ohio-6969, ¶ 70. And the state need not even prove “[t]he identity of the principal * * * to establish the offense of complicity by aiding and abetting.” In re T.K., 109 Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, paragraph one of the syllabus. {¶ 248} We have previously rejected cla ims that a unanimity instruction is required under similar circumstances. See State v. Stojetz , 84 Ohio St.3d 452, 458, 705 N.E.2d 329 (1999). Likewise, several in termediate appeals courts have held that a trial court need not “provide separate jury verdict forms for the principal offense and complicity to that offense.” State v. Horton , 10th Dist. Franklin No. 13AP-855, 2014-Ohio-2785, ¶ 10 (citing cases). By the same reasoning, we reject McKelton’s claim that the trial court was required to give specific instructions or provide for a separate verdict on complicity. {¶ 249} For these reasons, proposition of law No. 12 fails. 2. Mitigation Phase: Proposition of Law No. 18 {¶ 250} In proposition of law No. 18, McKelt on claims that the trial judge improperly allowed the jury to determine which evidence from the trial phase was relevant for sentencing. McKelton did not raise this objection below, so plain-error review applies. See State v. Bey , 85 Ohio St.3d 487, 497, 709 N.E.2d 484 (1999). {¶ 251} After mitigation-phase opening arguments, the trial court advised the jury that the state had “reintroduced evidence * * * which is relevant to the aggravating circumstances.” He further expl ained that the jury would “not have all the evidence that [it] previously considered” because some of the trial-phase evidence was irrelevant to the jury’s sentencing consideration. {¶ 252} The trial judge told the jurors that they could consider only a single aggravating circumstance: that McKelton purposely killed Evans to prevent his testimony in a criminal proceeding. The jury was told to “consider all of the testimony and evidence relevant to the aggravating circumstance the Defendant was found guilty of committing.” Later the judge clarified,S UPREME C OURT OF O HIO

64 Some of the evidence and testimony that you considered in the trial phase of this case may not be considered in this sentencing phase. For purposes of this proceeding, only that evidence admitted in the trial phase that is relevant to the aggravating circumstance and to any of the mitigating factors is to be considered by you. You will also consider all of the evidence admitted during this sentencing phase.

The judge warned the jury to consider only those exhibits that he gave to the jury foreperson. {¶ 253} When evaluating claims that a trial judge left relevance determinations to the jury at the sentencing phase, we consider “the penalty-phase
instructions as a whole.” State v. Neyland , 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 214. As long as the instructions “adequately informed the jury as to the evidence to consider during the penalty phase,” we will not find error. Id. We have rejected similar claims when instructions (1) limited the jury’s consideration of the guilt-phase evidence to the relevant aggravating circumstances and the mitigating factors, id. , and (2) made it “clear that the jury would see only those guilt-phase exhibits that the trial judge admitted and deemed relevant.” Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 251. {¶ 254} Here, the trial judge satisfied both requirements. Viewing the instructions as a whole, we find that it is reasonable to conclude that “the jury understood that they would s ee only the evidence that the trial judge deemed relevant.” (Emphasis sic.) State v. Bethel , 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 152. Moreover, it was clear that only one aggravating circumstance was relevant for sentencing purposes. {¶ 255} Accordingly, we reject proposition of law No. 18.January Term, 2016

65 D. Prosecutorial Misconduct: Propositions of Law Nos. 8 and 17 {¶ 256} In proposition of law Nos. 8 and 17, McKelton alleges due-process
violations because of cumula tive prosecutorial misconduct. {¶ 257} When reviewing a claim of prosecutorial misconduct, “[t]he relevant question is whether the prosecutor s’ comments ‘so infected the trial with unfairness as to make the resulting convi ction a denial of due process.’ ” Darden v. Wainwright , 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). To answer that question, we c onsider whether the conduct was improper and whether it prejudicially affected the defendant’s substantial rights. Maxwell
, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 243. In evaluating prejudice, we determine the effect of the misconduct “on the jury in the context of
the entire trial.” Keenan , 66 Ohio St.3d at 410, 613 N.E.2d 203. 1. Good-Faith Basis for Questions {¶ 258} McKelton argues that the prosecutor lacked a good-faith basis to ask questions posed to Mindie Nagel and Audrey Dumas. Because McKelton did not raise this objection at trial, the prosecu tor did not have an opportunity to explain the basis for his questions on the record. Under these circumstances, we presume that a good-faith basis existed. Gillard , 40 Ohio St.3d at 231, 533 N.E.2d 272;
Blackshere , 1997 WL 82808, at *4. 2. Inflammatory Victim-Impact Evidence {¶ 259} McKelton objects that the prosecutor improperly introduced inflammatory victim-impact evidence. Victim-impact evidence that relates only “to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family,” Payne v. Tennessee , 501 U.S. 808, 817, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), is generally inadmi ssible at the trial phase, but such evidence can be admissible if it also “relat[es] to the facts attendant to the offense,” State v. Fautenberry , 72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995).S UPREME C OURT OF O HIO

66 {¶ 260} The alleged victim-impact testimony that McKelton identifies is either not the victim-impact testimony discussed in Payne, which relates only to the victim’s personal characteristics or the emotional impact on the victim’s family, or it relates only to the facts attendant to one of the charged offenses. See id. As such,
this evidence cannot form the basis of a misconduct claim.
3. Character Evidence {¶ 261} According to McKelton, the prosecutor repeatedly presented “him as a cold, unrepentant criminal who used threats to control people.” McKelton cites three exchanges that revealed information about his criminal history and drug activity: (1) Detective David Gregory testif ied that he had liste ned to “hundreds of hours of” recordings of McKelton’s ja ilhouse phone calls, (2) Crystal Evans testified that McKelton “p robably was selling drugs” in 2009, and (3) Detective
Keith Witherell testif ied about the “Battles” letter. Detective Gregory’s testimony was not improper character evidence; it was relevant to establish that Gregory could identify McKelton’s voice. And we have already explained in our analysis of proposition of law No. 5 that Crystal’s a nd Witherell’s statements were properly
admitted. {¶ 262} Because the evidence cited by McKelton was properly admitted, we reject his claim that the prosecu tor committed misconduct by introducing it.
4. Wilson’s Prior Inconsistent Statement {¶ 263} McKelton alleges that the prosec utor engaged in misconduct by using Wilson’s prior statement as substantive evidence. As explained in the analysis of proposition of law No. 6, the pr osecutor did err, but the error was not outcome-determinative. Likewise, this conduct, viewed in isolation, did not prejudicially affect McKelton’s substantial rights. 5. Leading Questions {¶ 264} McKelton argues that the prosecutor engaged in misconduct by “improperly ask[ing] leading questions of se veral witnesses.” He claims that “[t]heJanuary Term, 2016

67 State essentially testified for its informants” on redirect. Beyond this broad assertion, however, McKelton does not analyze any specific questions asked, or how they prejudiced him. We therefore reject this claim of misconduct. {¶ 265} McKelton also suggests that th e prosecutor committed misconduct by asking leading questions even after th e trial court sustaine d defense objections on that basis. We have recognized that prosecutorial misconduct can occur when a prosecutor continues to ask leading questions even after the trial court has sustained objections on that basis. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 170. But in Diar , the prosecutor pursued a line of leading questions immediately after the court ruled that they were improper. By contrast, McKelton argues that the prosecutor should not have put leading questions to other witnesses after the trial court sustained objections to leading questions. Moreover, McKelton fails to identify specific leading questions that the prosecutor should have refrained from asking in light of the trial court’s ruling. 6. Disclosure of an In correct Witness Address {¶ 266} McKelton objects that the state engaged in misconduct by giving
the defense an outdated address for one of its witnesses, Andre Ridley. The prosecutor explained that the error was uni ntentional and argued that no prejudice had occurred because McKelton’s investigat or had not even gone to the address provided. The trial judge offered to remedy the error by permitting the defense investigator to speak with Ridley and allowing the defense to call Ridley as a witness during its case-in-chief. Defense counsel said they would let the court know whether they wanted to pursue that c ourse by the next morning, but there is
no further discussion of the issue on the r ecord. The defense called no witnesses in
its case-in-chief. {¶ 267} Under these circumstances, McKe lton has failed to establish prejudice.S UPREME C OURT OF O HIO

68 7. Mischaracterizing Evidence {¶ 268} In addition, McKelton claims that the prosecutor mischaracterized three pieces of evidence adduced at tria l. He asserts that these “ ‘improper insinuations and assertions calculated to mislead the jury’ ” violated his right to a fair trial, quoting Berger v. United States , 295 U.S. 78, 85 (1935). He did not object at trial, so plain-error review applies. State v. Hanna , 95 Ohio St.3d 285, 2002- Ohio-2221, 767 N.E.2d 678, ¶ 84. {¶ 269} First, during closing argument, the prosecutor referred to one of McKelton’s tattoos, which had the words “sca ndalous life” in it, and asked the jury, “Do you remember hearing scandalous come up again?” He then said that Charles Bryant had testified that Mc Kelton had “called [Allen] a scandalous bitch” and had confessed to choking her. According to the trial transcript, however, Bryant testified that McKelton, using a “whole lot of foul words,” had said that Allen “was scandalous and running her mouth.” {¶ 270} There is some disparity between the prosecutor’s description of Bryant’s testimony and his actual testimony. However, before closing arguments began, the trial court instructed the jury:

[I]f the attorneys represent facts and they are different than what you recall, you are to rely upon your collective memory during deliberations to decide wh ether or not those facts have been proven or not proven based upon the instructions of law.

Here, “a review of the challenged remarks demonstrates that the prosecutor simply set forth what he thought the evidence showed.” State v. Banks , 8th Dist. Cuyahoga No. 97084, 2012-Ohio-2495, ¶ 41. And “[e]ven if the prosecutor’s description of the witness’s testimony was inaccurate, the trial court nevertheless instructed the jury to rely on its own recollection of the evidence.” Id.January Term, 2016

69 {¶ 271} Second, the prosecutor argued that Gerald Wilson, who had recanted on the witness stand, addressed McKelton as he left the courtroom. According to the prosecutor, Wilson “got up and looked at Calvin and goes, I got you. I got you, bud or bro, whatever that last word was. You’ll have to use your memory. He looked right at him, nodded. I got you back.” The transcript indicates that Wilson said, “Later on, Bro.” {¶ 272} As with Bryant’s testimony, the prosecutor merely related his own observations about Wilson’s testimony, whic h were not entirely confirmed by the record. But the jury was told to rely on its own recollection of the evidence, and McKelton offers no evidence that the jury disregarded that instruction. {¶ 273} Finally, the prosecutor argued that McKelton had asked Audrey Dumas to provide an alibi for both murders. According to the prosecutor, after he killed Evans, McKelton thought, “I’m going to be with Crystal, and I’m going to have Audrey blowing my phone up all night long, so that later I can say, hey, I’m asleep with Crystal.” The prosecutor also argued that McKelton expected Dumas to play her “role”—whether it was providing McKelton an alibi or bringing him money—and if she failed to do s o, McKelton would threaten her. {¶ 274} A prosecutor is entitled, as is defe nse counsel, to “wide latitude in summation as to what the evidence has shown and what reasonable inferences may
be drawn therefrom.” State v. Stephens , 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). Counsel are permitted to “prese nt their most convincing positions.” State v. Phillips , 74 Ohio St.3d 72, 90, 656 N.E.2d 643 (1995). Here, the prosecutor reasonably exercised this latitude by drawing on Dumas’s testimony, phone records, and other evidence to argue that she was not a credible alibi witness. We conclude that these comments were proper.S UPREME C OURT OF O HIO

70 8. Prosecutorial Comments about McKelton’s Unsworn Statement {¶ 275} McKelton says that the cumulative effect of the prosecutor’s improper comments about, among other s ubjects, McKelton’s unsworn statement during mitigation-phase closing arguments rendered his trial unfair. {¶ 276} McKelton’s unsworn statement di d not mention Missy Allen or Germaine Evans. In closing argument, the prosecutor said:

You heard Calvin McKelton tell you, let me talk to you about why we’re here. And you never heard him say Missy’s name.
You never heard him talk about Germaine Evans’ death. * * * And you never heard Calvin McKelton say a single word about
it.

{¶ 277} When a defendant chooses to make an unsworn statement, a prosecutor “may comment that the defenda nt’s statement has not been made under
oath or affirmation.” State v. DePew , 38 Ohio St.3d 275, 528 N.E.2d 542 (1988), paragraph two of the syllabus. Howeve r, misconduct occurs when a prosecutor “refer[s] not only to credibility but also to appellant’s silence on particular issues.”
Lorraine , 66 Ohio St.3d at 419, 613 N.E.2d 212. {¶ 278} Here, the state concedes that its closing argument “cross[ed] [the] line in a couple of passing phrases.” The prosecutor erred by commenting on McKelton’s silence regarding Allen and Evans. But viewed in the context of the weight of the aggravating circumstance, these statements did not affect McKelton’s substantial rights. 9. Reference to Improper Aggravating Circumstances {¶ 279} McKelton says that the prosecutor “improperly referred to facts unrelated to the aggravating circumstance as ‘the weight that goes on the side of that specification.’ ”January Term, 2016

71 {¶ 280} During the sentencing phase of a capital trial, a prosecutor “may introduce and comment upon * * * any evidence ra ised at trial that is relevant to the aggravating circumstances specified in the indictment of which the defendant was found guilty.” State v. Gumm , 73 Ohio St.3d 413, 653 N.E.2d 253 (1995), syllabus. But the prosecutor may not “describe nature and circumstances evidence as a statutorily defined aggravating circumstance.” Id. at 422. See State v. Davis , 38 Ohio St.3d 361, 367-373, 528 N.E.2d 925 (1988)). {¶ 281} Here, a single aggravating circumstance was before the jury at sentencing: McKelton killed Evans to prevent his testimony in a criminal proceeding. R.C. 2929.04(A)(8). The prosecutor directed the jury’s attention to this specification and argued that the following is “weight that goes on the side of that specification”: (1) Evans knew that McKelton killed Allen, dumped her body, and attempted to burn her house, (2) McKelton knew that Evans was aware of these facts and was the only person who could connect him to those crimes, and (3) Evans’s dead body was found in a park, and McKelton never paid his respects. {¶ 282} The prosecutor should not have di scussed McKelton’s failure to pay respect to Evans, but, viewed in cont ext, this error did not affect McKelton’s substantial rights. The prosecutor made clear that only one specification was at issue and advised the jury to weigh that against all the mitigation evidence. In addition, the trial judge accurately instructed the jury on the weighing process and told the jurors that they could “not cons ider the nature and circumstances of the crime as an aggravating circumstance.” The remaining facts regarding the crimes witnessed by Evans tended to prove the es sential elements of the specification, and the prosecutor’s discussion of t hose facts was therefore proper.
10. Prosecutor’s Focus on A llen, Rather Than Evans {¶ 283} Next, McKelton objects that the prosecutor focused more on Allen’s death than Evans’s during the mitigation phase, even though the killing ofS UPREME C OURT OF O HIO

72 Evans was the capital offense. By doing so, he says, the prosecutor turned the one aggravating circumstance at issue into two. {¶ 284} As already noted, during the mitigation phase of a capital trial, a prosecutor may introduce evidence of and comment on any aggravating
circumstance for which a defendant was convicted. Gumm , 73 Ohio St.3d at 421, 653 N.E.2d 253. Here, the aggravating circumstance is predicated on the victim’s having witnessed another criminal offense. Accordingly, the prosecutor was permitted to discuss the underlying crimin al offenses. We therefore reject McKelton’s argument that the prosecutor turned one aggravating circumstance into

two. 11. Reference to the Prosecutor’s Childhood {¶ 285} McKelton claims that the prosecutor erroneously compared their childhoods during sentencing. {¶ 286} “Neither the defense nor the prosecution may refer to evidence that
is not in the record.” State v. Brown , 38 Ohio St.3d 305, 316, 528 N.E.2d 523 (1988), fn. 7. Accordingly, counsel should not state facts of his or her own personal experience during closing arguments. See State v. Beck , 2010 SD 52, 785 N.W.2d 288, ¶ 16; State v. Williams , 96-1023 (La. 1/2/1998), 708 So.2d 703, 716. When a prosecutor did refer to matters outside the record, we found no prejudice because the reference was “short, oblique, and justif ied as a reply to defense arguments and elicit[ed] no contempor aneous objection.” Lott , 51 Ohio St.3d at 166, 555 N.E.2d
293

. {¶ 287} In closing argument, defense couns el first raised the issue of childhood, contrasting McKelton’s background to his own. He stated he had been raised in an upper-middle-class environmen t by parents who had high expectations for their children. He contrasted that to the environment McKelton was raised in, “where he had no expectations, where he had to fend for himself, * * * whereJanuary Term, 2016

73 violence, robbery, prostitution and drugs are [the] norm.” He said it was rare for people to overcome those obstacles. {¶ 288} In rebuttal, the prosecutor cited his own childhood experiences: “I know what it’s like to grow up in the projec ts. I was sitting at the kitchen table, had a single mother open up a can of Spaghetti’Os and offer those to everybody. I didn’t grow up to be a murder[er].” {¶ 289} The prosecutor erred by alluding to his own personal experience, but no prejudice occurred because all three Lott criteria are satisfied here. The reference was brief, the comments were ju stified in response to defense counsel’s comparison of McKelton’s childhood to hi s own, and McKelton did not object at trial. Under these circumstances, no prejudicial error occurred. 12. Autopsy Photos {¶ 290} McKelton recasts as prosecutorial misconduct his claim that it was error to reintroduce Allen’s autopsy photos during mitigation. As explained in the analysis of proposition of law No. 5, the tria l court did not err in this regard. “If the evidence was properly admitted, then the pr osecutor’s decision to offer it cannot
form the basis of a misconduct claim.” Mammone , 139 Ohio St.3d 467, 2014-Ohio1942, 13 N.E.3d 1051, at ¶ 116. 13. Cumulative Prejudice {¶ 291} Finally, McKelton argues that the cumulative effect of the prosecutor’s misconduct deprived him of a fair trial, undermin ing his conviction
and his sentence. Viewed in context of the trial, we cannot conclude that the prosecutor’s conduct prejudi cially affected McKelton’s substantial rights. See
Keenan , 66 Ohio St.3d at 410, 613 N.E.2d 203. {¶ 292} For all these reasons, we reject proposition of law Nos. 8 and 17. E. Ineffective Assistance of Counsel: Proposition of Law Nos. 15 and 16 {¶ 293} In his 15th and 16th propositions of law, McKelton argues that counsel provided constitutionall y ineffective assistance. To establish ineffectiveS UPREME C OURT OF O HIO

74 assistance, McKelton must (1) show that counsel’s performance “fell below an objective standard of reasonableness,” as determined by “prevailing professional norms” and (2) demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proc eeding would have been different.”
Strickland , 466 U.S. at 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. When performing this analysis, we “indulge a st rong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
1. Trial Phase {¶ 294} McKelton argues that defense couns el “failed in several ways to provide a basic defense” fo r him at the trial phase. {¶ 295} First, McKelton recasts several pr opositions of law as ineffective
assistance because trial counsel failed to object. We have rejected each of the underlying propositions on its merits. The same reasoning, taken to its logical conclusion, also justifies our denial of McKelton’s Strickland claim. {¶ 296} Second, McKelton says that trial c ounsel should have voir dired the jury after “a courtroom incident” that o ccurred on October 8. As an unidentified
man left the courtroom for an afternoon break, he “said something towards the prosecution and towards the defense table. ” According to defense counsel, 11 jurors were in the courtroom at the time of the “outburst.” The judge offered “to voir dire the jury * * * to make sure that none of [the jurors] saw anything which they believe would in any way prejudice their ability to be fair and impartial.”
Defense counsel declined the offer. Mc Kelton now claims that defense counsel should have accepted. {¶ 297} This “court generally will not s econd-guess counsel’s judgments about what questions to ask on voir dire” when reviewing claims of ineffective assistance during pretrial voir dire. State v. Johnson, 112 Ohio St.3d 210, 2006- Ohio-6404, 858 N.E.2d 1144, ¶ 128. This deference is appropriate because “counsel is in the best position to dete rmine whether any potential juror should beJanuary Term, 2016

75 questioned and to what extent.” State v. Murphy , 91 Ohio St.3d 516, 539, 747 N.E.2d 765 (2001). {¶ 298} We apply the same deference to tr ial counsel’s decision here. Trial counsel observed the incident, which he de scribed as an “outburst” that “happened very quickly.” Under the circumstances, counsel could reasonably decide not to question the jury, and McKelton was not prejudiced by that decision. {¶ 299} Third, McKelton argues that trial counsel were ineffective for not trying to sever the first two counts of th e indictment. Ohio “law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are
of the same or similar character.’ ” Lott , 51 Ohio St.3d at 163, 555 N.E.2d 293, quoting Crim.R. 8(A). But a defendant is entitled to severance under Crim.R. 14 if he can affirmatively show prejudice. Id . Even then, the state can overcome a defendant’s claim of prejudicial joinder by showing either that (1) it could have introduced evidence of either of the offenses, if they had been severed for trial, as “other acts” under Evid.R. 404(B) or (2) the “evidence of each crime joined at trial is simple and direct.” Id. {¶ 300} It is unlikely that the trial cour t would have granted severance. Counts One and Two charged McKelton w ith felonious assault and domestic violence for the May 2008 incident that re sulted in Allen’s br oken ankle. Counts Four and Five charged him with feloni ous assault and domestic violence for the July 2008 incident that resulted in Allen’s death. These four offenses are of similar character, since they allege that McKelton committed the same offenses against the
same victim on two different occasions. See State v. Miller , 105 Ohio App.3d 679, 692, 664 N.E.2d 1309 (4th Dist.1995). And the evidence of each offense was “not rendered more complex or confusing by joining the two counts of domestic
violence.” Id. Thus, McKelton would not likely have prevailed on a severance motion, and his trial couns el were not ineffective for failing to object.S UPREME C OURT OF O HIO

76 {¶ 301} Finally, McKelton argues that tr ial counsel provided ineffective assistance during plea negotiations. McKelt on says that he rejected counsel’s advice to take a plea bargain only because they had failed to adequately communicate with him or investigate his case. But this claim is purely speculative.
See State v. Keith , 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997) (claims that require evidence outside the record are not appropriately considered on direct appeal). In addition, this assertion is unde rmined by evidence in the record. At a pretrial hearing, McKelton told the trial judge that he had rejected the plea offer because he wanted an opportuni ty “to prove [his] innocence.” {¶ 302} McKelton’s reliance on two recent United States Supreme Court decisions is also unavailing. See Missouri v. Frye , __ U.S. __, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper , __ U.S. __, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). In Frye , the Supreme Court held that tria l counsel may be ineffective if they fail to communicate the terms of a plea offer to a defendant. Frye at 1408.
And in Cooper , the Supreme Court held th at prejudice may arise under Strickland if counsel’s deficient perform ance caused a defendant to reject a plea deal that
would have resulted in a lower sentence. Cooper at 1385. Here the record indicates that McKelton’s trial counsel explained the te rms of the plea offer, but he rejected their advice to accept the deal. 2. Mitigation Phase {¶ 303} McKelton also alleges several instances of mitigation-phase
ineffective assistance of counsel. {¶ 304} First, he contends that trial counsel’s mitigation presentation was “barebones and not cohesive.” “The presentation of mitigating evidence is a matter of trial strategy,” State v. Bryan , 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 189, even if counsel’s chosen strategy proves unsuccessful, State v. Frazier , 61 Ohio St.3d 247, 255, 574 N.E.2d 483 (1991). Here, defense counsel presented
McKelton’s unsworn statement and the te stimony of three witnesses about hisJanuary Term, 2016

77 difficult childhood and how he cares for his own children. On its face, we cannot say that this mitigation presentation was deficient. {¶ 305} But even if McKelton could prove deficient performance, he cannot
establish Strickland prejudice on this record. To do so, he would need to introduce evidence to prove that “sufficient mitigating evidence existed that would have
called for a sentence less than death.” State v. Dixon , 101 Ohio St.3d 328, 2004- Ohio-1585, 805 N.E.2d 1042, ¶ 62. This argument is “not appropriately considered on a direct appeal.” State v. Madrigal , 87 Ohio St.3d 378, 391, 721 N.E.2d 52 (2000). {¶ 306} Second, McKelton objects that tria l counsel were unprepared for mitigation because they did not present any mitigation experts. Pursuant to defense counsel’s application, the trial judge or dered $5,000 each “for an investigator, a defense psychologist, and a mitigation expert.” The next month, the parties informed the trial court that there was no reason to pursue any competency issues. At that time, the judge asked defense couns el whether the investigator, forensic scientist, and mitigation expert had “been retained and * * * [were] hard at work.” Defense counsel said yes. {¶ 307} The defense counsel clea rly stated that they had retained various experts. It is unusual for defense couns el not to present experts at a mitigation hearing. Yet we have never held that presenting expert testimony in mitigation is per se deficient performance. See, e.g., State v. McGuire , 80 Ohio St.3d 390, 399, 686 N.E.2d 1112 (1997) (hiring a mitigation specialist is not “a requirement of effective assistance”). In fact, depending on the expert’s findings, such testimony may have been grounds for an ineffective claim. Therefore, trial counsel may have reasonably decided not to present a ment al-health professional or a mitigation specialist for strategic reasons. Indeed, the day before the mitigation hearing began, counsel reassured the court that they had had a full opportunity to explore mitigation experts and “everything that is necessary to present mitigation in this case.”S UPREME C OURT OF O HIO

78 {¶ 308} In any event, McKelton cannot show that he was prejudiced by the alleged error. He does not identify any specific information that additional experts would have uncovered or explain why that information would have prompted the jury to recommend a life sentence. In fact, it would be impossible for him to make such a showing without relying on evidence outside the record, which is not permissible in a direct appeal. Keith , 79 Ohio St.3d at 536-537, 684 N.E.2d 47. {¶ 309} Third, McKelton argues that defe nse counsel’s closing argument was “devoid of advocacy and virtually gave the jury all the reasons it needed to
vote for death.” Trial counsel “are afforded wide latitude during closing arguments.” Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 192. Accordingly, “[d]ebatable trial tactics generally do not constitute a deprivation of
effective counsel.” Id. {¶ 310} Defense counsel’s closing argument ca n be read as an effort to gain the jurors’ trust and to give them a reason to impose a life sentence. He acknowledged the jury’s guilt determina tion and emphasized that the mitigation hearing was not about trying to excuse or minimize McKelt on’s conduct. Given the severity of McKelton’s crime, he advised the jurors to consider only the two most severe sentencing options available to them: death or life imprisonment without parole. {¶ 311} Counsel then urged the jury to im pose a life sentence, stressing two significant mitigating factors: McKelton’ s “character and his background.” After reassuring the jurors that they need not like McKelton or his actions, counsel explained that he was a product of his di fficult upbringing and that he knew only how “to sell drugs and be a menace to society.” He argued that McKelton could function in prison, even if he had not b een able to “conform his conduct to the requirements of a civilized society.” With a life sentence, he would be able to guide his three children away from his own path.January Term, 2016

79 {¶ 312} This closing argument was not devoid of advocacy and it did not invite a verdict of death. Instead, c ounsel attempted to acknowledge the jurors’ likely feelings about McKelton and his acti ons while still giving them a reason to spare his life. Viewed in context of the entire closing, the statements McKelton objects to were part of a trial strategy me ant to persuade the jury to not impose a
death sentence. See State v. Ahmed , 103 Ohio St.3d 27, 2004-Ohio- 4190
, 813 N.E.2d 637, ¶ 160. As a result, this allega tion of ineffective assistance fails. {¶ 313} Additionally, McKelton argues that his counsel were ineffective for not questioning a juror who was dismissed during mitigation-phase deliberations. Nearly six hours after deliberations began, th e jury sent the trial judge a note stating that one juror was “not participating in this decision.” The trial court later indicated that the juror in question had told the bailiff that she had hoped to leave because her mother was scheduled to have surger y the next day. At defense counsel’s request, the trial judge voir dired the juror. She said that she needed to be in Virginia the next morning and could not “t hink of anything else.” The judge then clarified: “So unequivocally you just do not want to continue and you’re refusing to participate in any further discussions; is that an accurate statement?” The juror agreed. The prosecution and defense declined to question the juror further, and the
court excused her. Defense counsel noted an objection for the record to excusing the juror, but he could not identif y any alternative way to proceed. {¶ 314} McKelton asserts that tr ial counsel should have questioned the juror further. He speculates that the juror—w ho did not ask to be excused—might have
been a holdout but that she did not want to admit it on the record or in front of the
media. But trial counsel were in the be st position to evaluate whether further voir dire was necessary to ascertain the juror’s true reason for refusing to participate. See Murphy , 91 Ohio St.3d at 539, 747 N.E.2d 765. And we “generally will not second-guess counsel’s judgments about wh at questions to ask on voir dire.”
Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 128. MoreS UPREME C OURT OF O HIO

80 important, McKelton’s a ssertion that the juror was a holdout is purely speculative, so he cannot establish prejudice. {¶ 315} McKelton’s claims of ineffective assistance are unpersuasive. We reject proposition of law Nos. 15 and 16. F. Trial Court Bias: Proposition of Law No. 19 {¶ 316} In proposition of law No. 19, McKelt on argues that his trial was fundamentally unfair as a result of the tr ial judge’s bias and failure to properly control the presentation of evidence. {¶ 317} In support of this claim, McKelt on cites the errors alleged in proposition of law Nos. 1 to 13, 17, 18, a nd 19 as proof that the trial judge “continuously and to the point of showin g bias permit[ted] the admission of prejudicial, irrelevant and otherwise inadmissible evidence.” He also claims that the trial judge erroneously considered that evidence when imposing a death sentence. But short of pointing to errors alleged elsewhere in his brief, McKelton does not cite any additional proof of judicial prejudice or bias. {¶ 318} As a general rule, “a judge’s adverse rulings, even erroneous ones, are not evidence of bias or prejudice.” In re Disqualification of Fuerst , 134 Ohio St.3d 1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 14; see also State v. Sanders , 92 Ohio St.3d 245, 278, 750 N.E.2d 90 (2001). And nothing else in the record supports McKelton’s
claim of bias. {¶ 319} We reject proposition of law No. 19. G. Cumulative Error: Proposition of Law No. 21 {¶ 320} In proposition of law No. 21, McKelt on argues that his convictions
and sentence should be reversed on grounds of cumulative error. {¶ 321} Under the doctrine of cumulative error, “a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial-court error does notJanuary Term, 2016

81 individually constitute cause for reversal.” State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. {¶ 322} As explained above, several errors occurred at McKelton’s trial,
none of which rose to the level of revers ible error. But errors “cannot become prejudicial by sheer weight of numbers.” State v. Hill , 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996); see also State v. Frazier , 115 Ohio St.3d 139, 2007-Ohio5048, 873 N.E.2d 1263, ¶ 241. And here we are unconvinced that the cumulative effect of these errors deprived McKelton of a fair trial. {¶ 323} We reject proposition of law No. 21. H. Sufficiency and Manifest We ight: Proposition of Law No. 13 {¶ 324} In proposition of law No. 13, McKelton challenges both the sufficiency and manifest weight of the ev idence to convict him for the aggravated
murder of Evans. 1. Sufficiency of the Evidence {¶ 325} To resolve a sufficiency challenge, we must determine “whether, after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essentia l elements of the crime proven beyond a
reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Ohio’s aggravated-murder statute provides that “[n]o person shall purposely, and with prio r calculation and design, cause the death of another.” R.C. 2903.01(A). Thus, the jury had to find beyond a reasonable doubt that McKelton acted purposely, with prio r calculation and design, to cause Evans’s
death. {¶ 326} At trial, Marcus Sneed and Le muel Johnson both testified that McKelton had confessed to murdering Evans. Sneed testified that McKelton stated that he had to murder Evans because Evans was the only one who could link McKelton to Allen’s murder. And, acco rding to Johnson, McKelton said he was experienced with killing witnesses such as Evans. Johnson claimed that when aS UPREME C OURT OF O HIO

82 detective called Crystal looking for Evans, McKelton decided to kill Evans before
the detective found him. {¶ 327} Viewed in a light most favorable to the prosecution, a rational juror
could have found the essential elements of aggravated murder beyond a reasonable
doubt based on this evidence alone. 2. Manifest Weight {¶ 328} To evaluate a manifest-weight claim, we must review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of all the witnesses. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The court must decide “ ‘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.’ ” Id. , quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 329} McKelton points to gaps in the state’s evidence and its reliance on
informants as reasons to overturn his c onviction. The state’s case against McKelton did not include eyewitness testimony, the weapon used to murder Evans, or any forensic evidence linking him to Evans’s body or the crime scene. But Johnson and Sneed did testify that McKelton admitted responsibility for Evans’s murder. And contrary to McKelton’s suggestion, we need not entirely dismiss the testimony of these witnesses just because they are ja ilhouse informants. Indeed, the credibility of the informants is bolstered by other evidence that corroborates aspects of their testimony. {¶ 330} Although there are gaps in the state’s evidence, this is not an “ ‘exceptional case in which the evidence we ighs heavily against the conviction.’ ”
Id. , quoting Martin at 175. Thus, we reject proposition of law No. 13. I. Settled Issues: Proposition of Law No. 20 {¶ 331} Proposition of law No. 20 presents six oft-raised—and always rejected—constitutional challenges to Ohio’s capital punishment scheme.January Term, 2016

83 McKelton also argues that Ohio’s death-penalty statutes violate international law and treaties. We summarily reject these various claims. See, e.g., Fry , 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 215-216; State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 381-383. J. Independent Sentence Evaluation {¶ 332} We now independently review McKelton’s death sentence for appropriateness and proportionality. See R.C. 2929.05(A). In conducting this review, we must determine whether the ev idence supports the jury’s finding of aggravating circumstances, whether the aggravating circumstances outweigh the mitigating factors, and whether this d eath sentence is proportionate to those imposed in similar cases. Id

. 1. Aggravating Circumstance {¶ 333} McKelton was convicted of one count of aggravated murder and two death specifications. However, becau se these specifications were merged before sentencing, only one aggravating circumstance is before us: murder of the witness to an offense for the purpose of preventing his testimony in a criminal proceeding. R.C. 2929.04(A)(8). {¶ 334} The evidence at trial supports the jury’s finding of this aggravating circumstance beyond a reasonable doubt. Evidence indicated that Evans saw McKelton murder Allen and that Evans helped to dispose of her body. On February 24, 2009, police contacted Crysta l and said they wanted to discuss Allen’s death with Evans. McKelton was at home with Crystal, and the state theorized that he overheard the conversation. A few days later, Evans was murdered. Witnesses testified that McKelton later admitted to murdering Evans because he was the only person who could connect him to Allen’s death. 2. Mitigating Factors {¶ 335} We must weigh the above aggravating circumstance against any mitigating evidence about “the nature and circumstances of the offense” andS UPREME C OURT OF O HIO

84 McKelton’s “history, character, and background.” R.C. 2929.04(B). In addition, we must consider the statutory mitig ating factors under R.C. 2929.04: (B)(1) (victim inducement), (B)(2) (duress, co ercion, or strong provocation), (B)(3) (mental disease or defect), (B)(4) (youth), (B)(5) (lack of significant criminal history), (B)(6) (accomplice only), and (B)(7) (any other relevant factors). a. McKelton’s mitigation hearing {¶ 336} At the mitigation hearing, the defense presented three witnesses
and McKelton’s unsworn statement. {¶ 337} Kayla McKelton, McKelton’s 13-yea r-old daughter, described him as a “great father” and a “family man.” She said that he protects and cares for her, motivates her, and promotes her education. He “has been the most important person in [her] life” and she does not “know what [she] would do without him.” She gave her opinion that her father is innocent and asked the jury to impose a life sentence. {¶ 338} Audrey McKelton, McKelton’s mother, asked the jury to spare her son’s life in hopes that God can save him a nd that he can save somebody else. She testified about McKelton’s childhood in the projects. He was the second of Audrey’s four children, born when she was 14 or 15 years old. His father, Calvin Johnson, abused Audrey, ignored McKelton, and did not support his family. Johnson left when McKelton was nine or ten years old. {¶ 339} When McKelton was a child, Audr ey was involved in prostitution and drugs. She was more concerned with her drugs than her children. She has
convictions for felonious a ssault, solicitation, drug crime s, and trespassing, and she has been arrested for robbery. When she learned that McKelton was selling drugs in the projects, she was not concerned because she did not think he was hurting anyone. Instead, she believed he had the life of glamour and fame that she had
wanted. {¶ 340} Crystal Evans, the mother of McKelton’s son and the sister of Germaine Evans, testified that she was “still in a state of shock” and “having a lotJanuary Term, 2016

85 of mixed emotions about the whole situa tion.” She did not want McKelton “to get the death penalty” because she generally opposes the death penalty. She asked the jury to sentence McKelton to life in prison. {¶ 341} Finally, McKelton gave an unsworn statement. He described how the arrival of crack in his childhood neighbor hood changed his life forever. He first saw his mom get high when he was seven or eight years old. From then on, his mother was absent, often disappearing for da ys. For several years, he lived with his grandmother, where he slept on the floor. {¶ 342} McKelton’s brother was convicted of selling drugs, and, by age 14, McKelton was selling drugs himself. He used the money he made to care for his brother and sisters. His gr andmother kicked him out of her house, and he continued to sell drugs. Later, he began robbing drug dealers and undercover federal drug agents. McKelton said he has been shot several times, once in the back of the head.
His brother and several of his friends have been murdered. {¶ 343} McKelton has become closer to his mother since his brother’s death. He has three children, by three different women, and has a good relationship with his daughters. He wants to devel op a relationship with his son, who was born while he was incarcerated awaiting trial. He wants an opportunity to teach his son right from wrong, to help him with probl ems and homework, and to encourage him to do something good with his life. McKelton also acts as a father to four nephews and three nieces and has managed to keep th em off the street so far. He wants to “show [his] kids that they don’t have to end up like” him. {¶ 344} Ultimately, McKelton asked the jurors to “consider sparing [his]
life.” He said that he wants to live and to be part of his children’s lives. He noted that he had earned a GED during an ear lier prison term and expressed hope of attending college. He concluded, “I’m sorry for all the wrongdoings I ever done and “I would like to apologize to everybody I ever hurt.”S UPREME C OURT OF O HIO

86 b. Weight of mitigating factors {¶ 345} All the evidence McKelton presen ted in mitigation falls under the rubric of “history, character, and back ground” or “any other factors that are relevant.” R.C. 2929.04(B)(7). We find nothing mitigating about “the nature and circumstances of the offense,” and we see no evidence of the statutory mitigating factors enumerated in R.C. 2929.04(B)(1) through (6). {¶ 346} McKelton presented evidence of his difficult childhood. He was raised in the projects by a very young mother and a father who abused the mother of his children and ignored his son. His father had left by the time McKelton was 11 years old. His mother used drugs a nd engaged in prostitution, often leaving McKelton and his siblings to care for themselves. Her criminal record included drug convictions, solicitati on, trespassing, and felonious assault. By age 14, McKelton was living with his grandmother an d selling drugs. Soon enough, he had
his own list of criminal convictions. His difficult background is entitled to significant weight. {¶ 347} McKelton also presented some evidence of good character regarding his closeness with family members. He said that he tries to be a positive role model to his children, as well as to his nieces and nephews, by encouraging them to not follow in his footsteps. McKelton’s desire to maintain a relationship with his children is entitled to some weight. {¶ 348} In his unsworn statement, McKe lton indicated his desire for a college education. He noted that during a past prison term, he had obtained a GED, which indicates his ability to function wh ile in prison. This desire for personal improvement is also entitled to modest weight. {¶ 349} Finally, McKelton apologized for all his wrongs and to everyone he had hurt. However, he did not specifically mention Margaret Allen or Germaine Evans. We assign minimal weight to McKelton’s general expression of remorse.January Term, 2016

87 3. Weighing {¶ 350} The aggravating circumstance of Evans’s murder outweighs the mitigating factors. McKelton has been convicted of murdering a friend who witnessed and helped him cover up a murder. By comparison, the mitigating evidence is weak. As a result, we find that the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. 4. Proportionality {¶ 351} “We have approved death sentences in cases where the witnessmurder specification was present alone or in combination with one other specification, even when subs tantial mitigati on existed.” State v. Turner , 105 Ohio St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 101. Also see Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 285-286 (murder in retaliation for grand-jury testimony); Bethel , 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 212 (murder to prevent testimony in an upcoming murder trial). The death penalty is appropriate and proportionate in this case, when compared to death sentences approved in similar cases.
III. CONCLUSION {¶ 352} We reject each of McKelton’ s propositions and affirm his
convictions and sentence of death. Judgment affirmed.
O’C ONNOR , C.J., and O’D ONNELL , K ENNEDY , and F RENCH , JJ., concur.
P FEIFER , J., concurs in part and disse nts in part, with an opinion.
O’N EILL , J., concurs in part and disse nts in part, with an opinion.

_________________ P FEIFER , J., concurring in part and dissenting in part. {¶ 353} I concur in the judgment of the majority affirming the determination of McKelton’s guilt. I join Justice O’Neill’s dissent regarding the inadequacy of trial counsel in the sentenci ng phase, except to the extent that it reliesS UPREME C OURT OF O HIO

88 on his dissent in State v. Wogenstahl , 134 Ohio St.3d 1437, 2013-Ohio-164, 981
N.E.2d 900.

_________________ O’N EILL , J., concurring in part and dissenting in part. {¶ 354} I concur in the majority’s resolu tion of Calvin McKelton’s various propositions of law, with the exception of his 16th and 20th propositions. Respectfully, I must dissent as to the majority’s rejection of McKelton’s argument
that his counsel were ineffective for failin g to investigate a mitigation defense. I
would hold that State v. Hester , 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), applies in this unique case. Furthermore, I must dissent from the majority’s decision to
affirm McKelton’s sentence of death for th e reasons I discussed in my dissent in State v. Wogenstahl , 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900. Unreasonable Professional Assistance {¶ 355} About one month before McKelton’s trial, the state revealed that one of McKelton’s attorneys represented mo re than one of the state’s undisclosed witnesses, suggesting conflict-of-interest issues during trial. That attorney acknowledged his potential et hical conflict but said th at he was reluctant to
withdraw because he was unsure whethe r McKelton’s other two co-counsel could effectively represent him. Two weeks late r, all three defense counsel filed a motion for leave to withdraw from representati on, for appointment of new counsel, and for a continuance to allow new counsel to pr epare for trial. The attorneys cited a complete breakdown in the a ttorney-client relationship. That same day, McKelton
filed a handwritten motion re questing the removal of all defense counsel. At a hearing on the motions two weeks before trial, the court granted the conflicted attorney’s motion to withdraw. One of the two remaining attorneys, both certified by the Ohio Supreme Court as lead counsel in capital-murder cases, told the court that his and co-counsel’s relationship with McKelton had disintegrated to the point that they could no longer “effectively re present him.” McKelton, speaking from aJanuary Term, 2016

89 written statement, claimed, among other things, that his attorneys had not hired the “special experts” necessary for his death-penalty case. He added that the two remaining attorneys had met with McKelton privately only twice and that they had pressured him in the presence of an officer to plead guilty in exchange for life without parole, instead of properly investig ating his case and going to trial. He claimed that one of the remaining attorneys called him a “dumb n * * * r” after he refused to take the plea agreement. He also asserted that they had aligned themselves with the prosecutor. {¶ 356} The court denied the motions to allow the remaining attorneys to withdraw. He stated that the case preparations were proceeding in an orderly
fashion and that McKelton had had three attorneys and four experts 11 working on his case. The court further pointed to the American Bar Association’s 2003 Standards for Capital Litigation and told McKelton that he had been given more than the minimum recommended defense team of two attorneys and one mitigation expert. However, the record before us s hows the hiring of only one investigator. The investigator worked primarily with the conflicted attorney prior to trial. One of the capital-certified attorneys met with the investigator once in June, and again the day before trial. The other capital-certified attorney met with the investigator only on the day before trial. No other experts submitted bills after trial. {¶ 357} At the mitigation hearing, the attorneys did not present any documentary evidence of the sort that a trained mitigation specialist might find or provide. 12 But I have no doubt that this evidence exists. The record shows that

11 At the arraignment almost eight months before, the court granted funds to hire an investigator, a mitigation specialist, a mental-health professional, and forensic experts.
12 Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental or neurological conditions,S UPREME C OURT OF O HIO

90 McKelton was neglected as a child, when he was also exposed to his mother’s drug use and prostitution. He grew up to become a violent and abusive adult. McKelton
and a witness detailed instances of he avy alcohol use in response to strong emotional stimuli. In the modern era, people who live such a life generate a paper trail. Yet at the mitigation hearing, McKelton’s attorneys presented only the testimony of his daughter, his mother, and Crystal Evans, the sister of victim
Germaine Evan. {¶ 358} To me, the record shows that Mc Kelton’s attorneys did not hire, but should have hired, a mitigation speci alist to investigate his background, in addition to one or more mental-health professionals if the mitigation specialist’s investigation suggested a need. During our independent weighing of the mitigating and aggravating factors in prior cases, we have given great cumulative weight not only to direct evidence of a background of alcohol use, violence, and abuse like McKelton’s but also to the testimony of an expert capable of explaining to a jury the psychological and social effect that this sort of experience can have on a human being. State v. Johnson , 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 118-124, 137. Accord State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 86-96, 105; see also Goodwin v. Johnson , 632 F.3d 301, 324-326

to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf. Moreover, they may be critical to assuring that the client obtains therapeutic services that render him cognitively and emotionally competent to make sound decisions concerning his case. Perhaps most critically, having a qualified mitigation specialist assigned to every capital case as an integral part of the defense team insures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case rather than bein g hurriedly thrown together by defense counsel still in shock at the guilty verdict
(Footnote omitted.) American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases , Guideline 9.1, Commentary, reprinted in 31 Hofstra L.Rev. 913, 959 (2003).January Term, 2016

91 (6th Cir.2011). Instead of arranging for the inquiry of a mitigation expert, counsel went so far as to tell the jury that McKelton could have presented testimony of a mental-health professional but that such testimony would have been “a bunch of psycho babble.” Frankly speaking, a li cense to practice law does not qualify
counsel to make that decision for a client. 13 {¶ 359} The majority points to trial counsel’s statements that they had hired the experts for which funding had been aut horized. Majority opinion at ¶ 73. But the record shows that no expert with qualifying social work or psychological degrees or experience showed up asking fo r even a small amount of money. This strongly undermines the majority’s pos ition about what happened while counsel prepared for this case. The best the majority can say is that “trial counsel may have reasonably decided not to present a ment al-health professional or a mitigation specialist for strategic reasons.” Majority opinion at ¶ 307. But on this record as a whole, I must respectfully disagree. I be lieve it is much more likely that counsel unreasonably decided not to engage any qualif ied person as a matter of expedience. Wiggins v. Smith , 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), quoting Strickland v. Washington , 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“A decision not to investigat e thus ‘must be directly assessed for reasonableness in all the circumstances’ ”); State v. Johnson , 24 Ohio St.3d 87, 90, 494 N.E.2d 1061 (1986). And without someone qualified to screen McKelton for

13 Counsel’s own observations of the client’s mental status, while necessary, can hardly be expected to be suff icient to detect the array of conditions (e.g., post-traumatic stress disorder, fetal alcohol syndrome, pesticide poisoning, lead poisoning, schizophrenia, mental re tardation) that could be of critical importance. Accordingly, Subsection A(2) mandates that at least one member of the defense team (whether one of the four individuals constituting the smallest allowable team or an additional team member) be a person qualified by experience and training to screen for mental or psychological disorders or defects and recommend such further investigation of the subject as may seem appropriate.
(Footnote omitted.) American Bar Association Guidelines, Guideline 4.1, Commentary, reprinted in 31 Hofstra L.Rev. at 956-957.S UPREME C OURT OF O HIO

92 the possible psychological and social cons equences of his hard-lived background,
there cannot have been the constitutiona lly guaranteed reasonable professional investigation. Strickland at 691 (“counsel has a duty to make reasonable investigations or to make a reasonable decision that make s particular investigations unnecessary”). Accord State v. Herring , 142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d 1217, ¶ 76-77. For these reasons, I would hold that McKelton satisfied his burden to prove unreasonable professional assistance. Prejudice {¶ 360} I believe that the circumstances in this exceptional case demand a legal standard less rigid than the one applied under Strickland . Under Strickland
, “[a]n accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.” Id. at 686. Counsel plays that role by subjecting the st ate’s case to “the crucible of meaningful adversarial testing.” United States v. Cronic , 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). When an attorney fails to play that role, the Sixth Amendment to the United States Constitution requires confidence in the reliability of the outcome of a proceeding. Strickland at 696. For that reason, a professional error by counsel “does not warrant se tting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. {¶ 361} In Ohio as elsewhere, courts have boiled off the fat of the Sixth Amendment, applying a mechanical “ Strickland test” that requires meeting two prongs: (1) demonstrating deficient perfo rmance of counsel and (2) demonstrating prejudice. 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), para graph two of the syllabus, citing
Strickland at 691. In this case, the majority holds that McKelton cannot meet the prejudice prong under Strickland , given the record before us. Majority opinion at ¶ 305. We “cannot look outside of the record” in a death-penalty appeal, State v.
Dixon , 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 62, to determineJanuary Term, 2016

93 what evidence a mitigation or mental-health specialist would have found or offered for McKelton in support of a sentence less than death. {¶ 362} In Hester , issued eight years before Strickland , we formulated a
somewhat different standard for determin ing ineffective assistance of counsel under Article I, Sections 10 a nd 16 of the Ohio Constitution. Hester , 45 Ohio St.2d 71, 341 N.E.2d 304. There, we held that th e test for ineffective assistance of counsel under “the Fifth, Sixth and Four teenth Amendments, and Sections 10 and
16 of Article I of the Ohio Constitution” was “whether the accused, under all the circumstances, * * * had a fair tr ial and substantia l justice was done.” 14 Hester, 45 Ohio St.2d at 79, 341 N.E.2d 304. We decided to apply this test “on a case-to-case basis,” likening that approach to applica tion of the exclusionary rule under the
Fourth Amendment. Id. at 80. We are thus empowered to apply Hester selectively. And we have been cautious in not letting these floodgates open too far, having applied the “fair trial and substantial justice” standard only twice in the last century:
Hester and Cornwell v. State , 106 Ohio St. 626, 628, 140 N.E. 363 (1922).

{¶ 363} Despite rare application, Hester is nonetheless controlling precedent governing the standard for in effective assistance of counsel under
Sections 10 and 16 of Article I of the Ohio Constitution, as we ha ve never explicitly overruled it. Shortly after Hester , we elaborated upon this standard, saying that when considering effective-assistance claims, a two-step analysis like the one that would later be adopted in Strickland is “usually” applied. State v. Lytle , 48 Ohio St.2d 391, 396, 358 N.E.2d 623 (1976), vaca ted in part on other grounds, Lytle v.
Ohio , 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978). After Strickland , we commented, without any analysis, th at “[t]he test enunciated in Strickland is essentially the same” as the one we adopted in Hester and Lytle

. State v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985); see also Bradley , 42 Ohio St.3d at

14 The two-part test in Strickland preempts Hester on its interpretation of the United States Constitution. United States Constitution, Article VI, cl. 2.S UPREME C OURT OF O HIO

94 141-142, 538 N.E.2d 373. But Hester is still good law. After all, the Ohio Supreme Court does not overrule precedent sub silentio. See Westfield Ins. Co. v. Galatis
, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 1 (“It is only with great solemnity and with the assurance that the newly chosen course for the law is a significant improvement over the current course that we should depart from precedent”). {¶ 364} As we said in Smith , the rules laid down in Strickland and Hester
are the same in essence , but they are not identical standards. Smith at 100. In the typical case, “substantial justice” is done because the record suggests no reasonable probability that the outcome of a proceeding would have been different. It is analytically possible in rare and exceptional circumstances, however, that an individual may be able to show that c ounsel’s assistance fell so far below the minimum professional standards that the proceeding was basically unfair and substantially unjust, even if the record suggests that the outcome of a proceeding would probably not have been diff erent. In those circumstances, Hester requires a
new trial. {¶ 365} Hester is uniquely appropriate for application in capital-murder cases because the demands of due process are at their strongest when the result of a proceeding may be death. See Ford v. Wainwright , 477 U.S. 399, 414, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (discussing the “heightened concern for fairness and accuracy that has characterized the [United States Supreme Court’s] review of the process requisite to the taking of a human life”). This is especially true because
Hester ’s standard is predicated upon both the guarantees of counsel, Ohio Constitution, Article I, Section 10, and of due process under Ohio Constitution, Article I, Section 16. Hester , 45 Ohio St.2d at 79, 341 N.E.2d 304. At its heart,
the Hester standard differs from Strickland because of the unique guarantee of “justice” within Article I, Section 16 of our state constitution—a word that goes unmentioned by the Bill of Rights or the Fourteenth Amendment to the UnitedJanuary Term, 2016

95 States Constitution. In contrast, Strickland ’s standard is a pure creature of the Sixth Amendment, which is focused upon th e reliability of the proceeding. Strickland
, 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674. The United States Constitution guarantees a fair trial under the Fourteenth Amendment through application of the Sixth Amendment—not so much independently from it. Id. at 684-685. {¶ 366} Throwing McKelton into the fray with attorneys he had barely met was profoundly unfair: their task was to pr ovide the jury with a detailed story of the person that they represented. I am c onvinced that Calvin McKelton’s attorneys were insufficiently prepared to go forward at the mitigation hearing due to a professionally inadequate investigation prior to trial and the unexpected scramble of taking over the work of another seasoned trial attorney. For these reasons, I have no faith in the jury’s recommended sentence. I will not place the ends of justice—a reliable outcome—before the means of justice in the context of a capitalsentencing hearing. For that reason, I am entirely comfortable reversing Calvin McKelton’s death sentence without strict pr oof in the record that counsel would have turned up silver- bullet mitigation evid ence had they hired an expert to look for it. For me, it is enough that counsel did not hire an expert qualified to look before deciding not to present any “psycho-babble.” Accordingly, I would apply
Hester , reverse McKelton’s death sentence, and remand for a new mitigation hearing. {¶ 367} The majority instead rejects McKelton’s argument that his attorneys were ineffective for failing to conduct a complete inve stigation into his background prior to mitigation. The ma jority does not limit or overrule our
decision in State v. Herring , 142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d 1217, ¶ 102-104, in which we held that counsel have a duty to conduct at least enough investigation of potential mitigation eviden ce to make a reasonable decision not toinvestigate further. Rather, the majority thinks that McKelton’s ineffectiveassistance argument necessarily requires evidence of prejudice that may existS UPREME C OURT OF O HIO

96 outside the record, which we cannot consider in this appeal. Majority opinion at ¶ 79; State v. Keith , 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997). McKelton’s prejudice claim is proper for a postconviction proceeding because he could develop a record by which to compare the evidence found and presented by postconviction counsel to the eviden ce presented by trial counsel. Keith at 536- 537, citing State v. Scott, 63 Ohio App.3d 304, 308, 578 N.E.2d 841 (8th Dist.1989). Collateral Proceedings {¶ 368} McKelton’s postconviction petition is currently pending as a discretionary appeal to this court. His petition to the trial court argued, among other things, that counsel failed to conduc t an adequate mitigation investigation, requested leave to conduct discovery on that issue, and requested funds to hire “a forensic ophthalmologist, a neuropsycholog ist and a substance abuse expert.” State
v. McKelton , 12th Dist. Butler No. CA2015–02–028, 2015-Ohio-4228, ¶ 4, 8. McKelton’s petition was denied without a hearing, and not because he failed to “ ‘set forth sufficient operative facts to establish substantive grounds for relief.’ ”
Id . at ¶ 10, quoting State v. Calhoun , 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus. Instead, McKelton’s petition was denied on the sole basis of res judicata, because all the claims he raised had already been raised or could have been raised in this appeal. {¶ 369} The court of appeals affirmed on a ppeal, explaining that the same ineffective-assistance argument this court now declines to address due to lack of evidence in the record is the kind of argument that “could fairly have been
determined without resort to evidence outside the record.” McKelton , 2015-Ohio4228, ¶ 27, quoting State v. Sturgill , 12th Dist. Clermont Nos. CA2014–01–003 and CA2014–07–049, 2014–Ohio–5082, ¶ 13. As a result, there has been no hearing or discovery, nor has there been an y real consideration of the merits of McKelton’s argument. Nobody has called tr ial counsel out onto the carpet to askJanuary Term, 2016

97 whether they came to a reasonable professi onal decision not to use the information
in McKelton’s “one thous and plus pages of exhibits” submitted with his postconviction-relief petition, McKelton at ¶ 8, or simply never hired a mitigation specialist qualified and tr ained to look for it. {¶ 370} Justice has not been served. Even agreeing that McKelton is one of the most dangerous criminals in the state, who admitted his own responsibility in starting what sounds like a war among dr ug dealers in Cincinnati, he is a human being, guaranteed the minimum constitutional protections of a fair trial, with adequate counsel and meani ngful appellate review. I sincerely hope that my colleagues will take action when McKelton’s postconvicti on appeal comes before
the court for consideration. If we do not accept McKelton’s discretionary appeal, his ineffective-assistance argument will ha ve been denied by every court involved, without a single judge taking a critical l ook at the evidence outside of the record and determining whether his trial attorneys did or did not look for it. {¶ 371} For these reasons, I dissent.
P FEIFER , J., concurs in the foregoing opinion except as noted in his separate opinion.

_________________ Michael Gmoser, Butler County Prosecuting Attorney, and Michael A. Oster Jr. and Lina N. Alkamhawi, Assistant Prosecuting Attorneys, for appellee. Timothy Young, Ohio Public Defe nder, and Rachel Troutman, Allen Vender, and Shawn Welch, Assistant Public Defenders, for appellant.

_________________