[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Ford, Slip Opinion No. 2019-Ohio-4539.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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
. 2019-O HIO -4539
T HE S TATE OF O HIO , A PPELLEE , v . F ORD , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State v. Ford, Slip Opinion No. 2019-Ohio-4539.] Criminal Law—Aggravated murder—Conviction affirmed—Death sentence
vacated and cause remanded to trial c ourt to properly determine whether defendant is intellectually disabled after considering the following three core elements: (1) intellectual-functioni ng deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70 or lower when adjusted for the standard error of measurement), (2) significant adaptive deficits in any of the three adaptive-skill sets (conceptual, social, and practical), and (3 ) the onset of these deficits while the defendant was a minor. (No. 2015-1309—Submitted January 8, 2019—Decided November 7, 20 19.)
A PPEAL from the Court of Common Pl eas of Summit County, No. 13-04-100 8(A).

__________________S UPREME C OURT OF O HIO

2 S TEWART , J. {¶ 1} This is an appeal of right from aggravated-murder convictions a nd a death sentence. A Summit County Common Pleas Court jury found appellant, Shawn Ford Jr., guilty of the aggravated murders of Jeffrey and Margaret Schobert and unanimously recommended a d eath sentence for Margaret’s mur der. The trial court accepted the recommendati on and sentenced Ford accordingl y. {¶ 2} We affirm Ford’s convictions. How ever, we remand this case to the trial court to evaluate whether Ford is intellectually disabled in accordance with the criteria set forth in this opinion.
I. Trial Evidence {¶ 3} Evidence introduced at trial showed that on March 23, 2013, For d stabbed his girlfriend, Chelsea Schobert, after hitting her in the head with a brick. While Chelsea was in the hospital, her parents, Jeffrey and Mar garet, were concerned for Chelsea’s safety and did not permit Ford to visit her. On April 2, Ford broke into the Schoberts’ home with Jamall Vaughn. Jeffre y was home and in bed. Margaret was at the hospital with Chelsea. Ford kille d Jeffrey and then waited for Margaret to return home from the hospital. Margaret was killed when she came home. Ford stole Jeffrey’s car and other valuables fr om the Schoberts’
home.
A. Chelsea’s Assault {¶ 4} Chelsea started dating Ford in August or September 2012. On Fr iday, March 22, 2013, Chelsea celebrated her 18th birthday with Ford, Zachary Keys, and Joshua Greathouse at Zachary’s Akron residence. They start ed drinking around 11:00 p.m., and everyone became highly intoxicated. {¶ 5} At some point, Ford and Chelsea went to a bedroom. According t o Chelsea, Ford wanted to have s ex, but she was not feeling well and asked him to wait. Ford pushed her onto the be d. Chelsea said “no” and got up. She told Ford, “I hate you.” Ford then hit Chelsea in the head.January Term, 2019

3 {¶ 6} Zachary and Joshua were in the living room watching TV when For d
and Chelsea went into the bedroom . After 10 to 15 minutes, Zac hary went to the bedroom after hearing a “thud.” He found Chelsea halfway off t he bed with a gashed head. A brick with blood on it was nearby. Zachary ask ed Ford, “What the hell is going on here?” Ford left the bedroom. He returned wi th a knife and stabbed
Chelsea in the neck and back. {¶ 7} Zachary stopped Ford from stabbing Chelsea again and told him t o take her to the hospital. They took Chelsea to the car, and Fo rd drove her to the hospital. Chelsea suffered a spina l injury that left lasting e ffects. 1. Cover-up of the Assault {¶ 8} On Saturday, March 23, Ford told Zachary to tell the police tha t Chelsea had been assaulted by some guys at a party in Kent. He also told Joshua, “I want to make sure that you don’t talk about this.” {¶ 9} On March 25, Akron Detectives Bertina King and Richard Morrison went to the hospital to speak to Chelsea. Chelsea indicated th at she did not know
her attacker. The detectives also learned that there was a Glo bal Positioning System (“GPS”) tracker on Chelsea’s car. The GPS showed that the car had been at Zachary’s residence on the night of March 22 and not in Kent. {¶ 10} Later on March 25, the detectives conducted a recorded intervie w with Ford. Ford stated that Chelsea indicated she had been att acked at a party in Kent. After being told about the GPS tracker, Ford told police that they were at Zachary’s house when Chelsea was attacked. Ford claimed that t hey were assaulted by someone Zachary owed money to and that the person hit Chelse a with a gun when she started cursing at him. {¶ 11} Ford, Zachary, and Chelsea each identified the same person, a m an known as Ruiz, in a photo array. On March 27, the police arres ted Ruiz and charged
him with Chelsea’s assault. Rui z denied his involvement and pr ovided a good alibi. The police later determined that he was telling the truth.S UPREME C OURT OF O HIO

4 2. Ford Prohibited from Visiting Chelsea at the Hospital {¶ 12} Chelsea’s room was in a secured part of Akron Children’s Hospit al,
and she did not have a phone in her room. {¶ 13} Even though Ruiz had been arrested, the Schoberts did not permi t Ford to visit Chelsea in the hos pital. The Schoberts and law e nforcement thought this was best for her safety. B. The Discovery of Jeffrey and Margaret Schobert {¶ 14} Around 8:00 or 9:00 p.m. on April 1, Jeffrey went home from the hospital while Margaret remained with Chelsea. Margaret left t he hospital and went home at about 6:00 a.m. on April 2. Around 1:30 p.m. on April 2, Nickolas Gerring, a building contractor working on the Schoberts’ home, found Jef frey’s and Margaret’s bodies in their bedr oom. Gerring called 9-1-1. A N ew Franklin police officer responding to the scene found Jeffrey on the bed and Ma rgaret on the floor
next to it. Both of them had multiple, massive head wounds. A sledgehammer was lying on the bed next to Jeffrey. Jeffrey’s car was missing. C. The Murder Investigation Begins {¶ 15} George Staley from the Crime Scene Unit at the Ohio Bureau of Criminal Investigation (“BCI”) processed the crime scene. He f ound reddish stains—which later yielded positive results in a presumptive bl ood test—in the ground level of the house, near t he doorway leading to the room between the kitchen and the garage. {¶ 16} Staley collected a knife that was lying on a living-room chair and a piece of what appeared to be part of a surgical glove that had a reddish stain on it. Other reddish stains were found on pieces of paper inside Marga ret’s purse, which was on the dining-room table. {¶ 17} Police found blood spatter on the master-bedroom ceiling and on the dresser near the bed. The sledgehammer and a small piece of pl astic on the bed
were also collected.January Term, 2019

5 {¶ 18} At the outset of the investiga tion, Detective Michael Hitchings , the lead investigator, learned that Chelsea had been attacked and t hat the Schoberts had been keeping Ford from seeing her in the hospital. {¶ 19} On the evening of April 2, Hitc hings questioned Ford. Hitching s told Ford that the Schoberts had been killed. According to Hit chings, Ford reacted
to the news with “a blank look.” Ford said he was not involved and did not know anything about the murders. But the police collected Ford’s Ai r Jordan shoes, because there appeared to be “some spots” on them. Ford was th en taken to the Portage County jail where he was held on a warrant for lying ab out Chelsea’s
assault. 1. Jeffrey’s Car and Other Evidence Found {¶ 20} On April 3, Hitchings learned th at Ford had provided George Bee ch, a fellow inmate, with informati on about the murders, which Beec h had passed on to the Portage County Sheriff. A s a result of that information , Jeffrey’s car was
found in Akron. Police officers searched the area around the c ar and found gloves, a knife, and a knit ha t inside the storm drain in front of a ho me on Fried Street. {¶ 21} Hitchings spoke to a woman who lived at the house. He learned that
her son was Ford’s friend. She let them search the house. The police encountered Jamall Vaughn in an upstairs be droom. Hitchings also found a c eramic watch, later identified as Margaret’s , on the bedroom floor. 2. Ford Admits Killing the Schoberts {¶ 22} On the afternoon of April 3, Hitchi ngs interviewed Ford again. Ford continued to deny involvement i n the murders. Hitchings testif ied that Ford claimed he walked halfway there with Zachary and someone named Malik but turned around. Hitchings told Ford that the Schoberts’ and Che lsea’s blood was
found on his Air Jordan shoes. Ford claimed that he had loaned his shoes to Zachary and then later got them back. According to Hitchings, Ford then admitted being at the Schoberts “one time and it was for the dad” but sa id he got upset andS UPREME C OURT OF O HIO

6 left. Hitchings testified that F ord then said he was there for part of it but blamed the murders on Zachary and Malik, because they had the weapons. {¶ 23} That evening, Hitchings interv iewed Vaughn. Following that interview, the police recovered cloth and latex gloves from a s ewer drain on City
View Avenue. {¶ 24} On April 4, Hitchings interviewed Ford again. He told Ford tha t Vaughn had been interviewed and discussed the evidence against Ford. According to Hitchings, Ford stated that it was Vaughn’s idea to do a “li ck” at the Schoberts and that they walked from Akr on to the Schoberts’ house. Hitch ings testified that Ford blamed Vaughn for the murders at first. However, as the i nterview continued, Ford said that he was the only one that used the sledgehammer o n Jeffrey and Margaret. But he said that Vaughn stabbed Jeffrey in the back. Ford also said that they took Jeffrey’s car. {¶ 25} On the evening of April 5, Ford made a recorded phone call from the Summit County jail to his brother. Hitchings testified that Fo rd discussed the murders during that call and indicated that he and Vaughn were the only two individuals involved in committing them.
3. Ford’s Statements to Heather Greathouse and Other Evidence {¶ 26} Heather Greathouse lived at her mother’s home in Akron with her brother, her boyfriend, and Ford. At trial, Heather testified that on the night before the murders, Ford told her he was going to “hit a lick,” which she said meant to break into a house and rob it. The next day, she found a pair of bloody pants on the floor and told her boyfriend to burn them. She testified that Ford brought back two rings and some money. Heather’s aunt threw one of the rings in a dumpster at the Family Dollar store. The police later recovered the burned jea ns from Heather’s home and found the ring in the dumpster. {¶ 27} Heather also testified that Ford admitted stabbing Chelsea and hitting her in the head with a brick. Ford said he did it beca use “she wasn’t payingJanuary Term, 2019

7 attention to him.” According to Heather, Ford also said he wou ld have killed Chelsea if Zachary had not stopped him. 4. Autopsy Results {¶ 28} Dr. Dorothy Dean, deputy medical examiner for Summit County, conducted the autopsies of Jeffre y and Margaret. She concluded that Jeffrey died from numerous blunt impacts to the head, having been struck at least 14 times. He was also stabbed three times, but none of those wounds were lif e-threatening. Margaret died from blunt impacts to the head, having been struc k at least 19 times. Both victims’ injuries were cons istent with being hit by a sled gehammer.
5. DNA and Forensic Evidence {¶ 29} Martin Lewis, a forensic scientist at BCI, testified that the s mall piece of plastic found on the Schoberts’ bed fit perfectly into the handle of the knife
recovered from the storm drain on Fried Street. Lewis conclude d that the plastic was at one time a piece of t he larger knife handle. {¶ 30} Lindsey Pruneski, a forensic scientist at BCI, testified that s tains on the sledgehammer, Ford’s shoes, the cloth and latex gloves foun d in the City View Avenue drain, and the knife and s tocking cap found in the Fried Street drain tested positive in a presumptive blood test. A stain on the burned je ans also tested positive. {¶ 31} A forensic scientist in the DNA section at BCI stated that the DNA profiles from stains on Ford’s right shoe, the gloves found in the City View Avenue drain, the stocking cap, the knife blade and handle found in th e Fried Street drain, and the burnt jeans were consistent with Jeffrey’s DNA profile. The forensic scientist determined that the expected frequency of occurrence of that DNA profile
was 1 in 103.3 sextillion unrelated individuals. {¶ 32} The forensic scientist stated that the DNA profile from one of the stains on Ford’s left shoe was a mixture. The major DNA profil e was consistent with Margaret’s, and the minor DNA profile was consistent with Ford’s. TheS UPREME C OURT OF O HIO

8 expected frequency of occurrence of Margaret’s DNA profile on F ord’s shoe was 1 in 3.163 quadrillion unrelated individuals. {¶ 33} The DNA profile on another stain on Ford’s left shoe was also a mixture. The major profile was consistent with Chelsea’s. The partial minor profile was consistent with Ford’s. The expected frequency of occurren ce of Chelsea’s profile on Ford’s shoe was 1 in 1.712 quintillion unrelated ind ividuals. {¶ 34} BCI’s forensic scientist stated that the DNA profiles from the stocking cap and the waistband of the burnt jeans were both mix tures consistent
with contributions from Ford and two unknown individuals. The DNA profile on the outside of a light purple la tex glove was also a mixture. The major profile was consistent with Ford. The expected frequency of occurrence of Ford’s DNA profile on the glove was 1 in 3.134 quin tillion unrelated individuals. {¶ 35} Finally, the forensic scientist determined that Vaughn could no t be excluded as the major source of DNA obtained from inside anothe r latex glove. The expected frequency of occurrence of Vaughn’s partial major DNA profile inside the glove was 1 in 124.2 quintillion unrelated individua ls. II. Procedural History {¶ 36} The state charged Ford with five counts of aggravated murder. In Count 1, he was charged with the aggravated murder of Jeffrey w ith prior calculation and design. In Count 2, he was charged with the ag gravated murder of Jeffrey while committing an agg ravated robbery. In Count 4, he was charged with the aggravated murder of Margaret with prior calculation and de sign, and in Count 5, with the aggravated murder of Margaret while committing an a ggravated robbery. In Count 3, he was charged with the aggravated murder of Jeffrey or Margaret while committing aggravated burglary. {¶ 37} Each aggravated-murder count contained three death-penalty specifications: (1) committing or attempting to commit aggravat ed robbery as the principal offender in the commi ssion of the aggravated murder o r, if not theJanuary Term, 2019

9 principal offender, committing the aggravated murder with prior calculation and design, R.C. 2929.04(A)(7), (2) committing or attempting to com mit aggravated burglary as the principal offender in the commission of the agg ravated murder or, if not the principal offender, committing the aggravated murder with prior calculation and design, R.C. 2929.04(A)(7), and (3) a course of conduct involving multiple murders, R.C. 2929.04(A)(5). {¶ 38} In Counts 6 through 11, Ford was also charged with aggravated robbery, aggravated burglary, grand theft of a motor vehicle, p etty theft, and the
felonious assault of Chelsea. {¶ 39} Ford pled not guilty to all charges. The jury found Ford guilt y of all counts and specifications. He wa s found guilty of the felony-m urder specifications as to Counts 1, 2, 3, and 5 with a determination that he was th e principal offender. And he was found guilty of the felony-murder specifications as to Count 4 with a determination that he committed the aggravated murder of Margar et with prior calculation and design. {¶ 40} The trial court merged for sentencing the aggravated-murder cou nts for Jeffrey’s death, and the jury returned a verdict of life im prisonment without the possibility of parole on Count 2. The trial court likewise mer ged for sentencing the aggravated-murder counts for Margaret’s death, and the jury ret urned a death sentence on Count 4. The trial judge sentenced Ford accordingl y. Counts 6 through 10 were merged with the aggravat ed-murder counts. Ford was sen tenced on Count 11 to eight years for the fel onious assault of Chelsea. {¶ 41} Ford appeals his convictions and sentence and raises 23 proposi tions of law. We will address the issues in the approximate order th at they arose during trial; however, we will first address the issue of whether the trial court properly
determined that Ford is not intellectually disabled.S UPREME C OURT OF O HIO

10 III. Intellectual Disability {¶ 42} In proposition of law No. III, Ford argues that the trial court erred in ruling that he is not intellectually disabled. This claim has merit, and we remand
the matter to the trial court for further review to determine w hether Ford is intellectually disabled. A. Standards for Assessing Intellectual Disability
1 . Atkins and Lott {¶ 43} In Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court of the U nited States held that the ex ecution of intellectually disabled individuals violates the ban on cruel a nd unusual punishment found in the Eighth Amendment to t he United State s Constitution

. {¶ 44} Atkins defined “mental retardation,” i .e. “intellectual disability,” 1 by
reference to two clinical definitions: one from the American As sociation on Mental
Retardation’s Mental Retardation: Definition, Classification, and Systems of Support (9th Ed.1992) and the second from the American Psychiatric Ass ociation’s Diagnostic and Statistical Manual of Mental Disorders (4th Ed.2000). But the Supreme Court left to the states “ ‘the task of developing appr opriate ways to enforce’ ” the restriction on executing the intellectually disa bled. Atkins at 317, quoting Ford v. Wainwright , 477 U.S. 399, 416, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). {¶ 45} In State v. Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, we set forth a definition of intellectual disability for courts to follow. Lott required “(1) significantly suba verage intellectual functioning , (2) significant
limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset be fore the age of 18.” (Emphasis added.) Id . at ¶ 12.

1. The phrase “intellectual disability” will be used throughou t this opinion including in place of the term “mental retardation.”January Term, 2019

11 Lott also held that there is “a rebu ttable presumption” that a defe ndant is not intellectually disabled if “his or her [intelligence quotient ( “IQ”)] is above 70.” Id

. 2. Diagnostic Standards {¶ 46} In 2010, the American Association on Intellectual and Developmental Disabilities (“AAIDD”) updated its medical diagno stic standards for defining intellectual disability in the 11th edition of its clinical manual, Intellectual Disability: Definition, Cl assification, and Systems of Supports (“

AAIDD-11 ”). In 2013, the American Psychiatric Association updated its definition of intellectual disability in the Diagnostic and Statistical Manual of
Mental Disorders (5th Ed.2013) (“ DSM-5 ”). Both updated defi nitions identified three core elements: (1) “intellectual-functioning deficits (in dicated by an IQ score ‘approximately two standard de viations below the mean,’— i.e ., a score of roughly 70—adjusted for ‘the standard error of measurement,’ AAIDD-11 , at 27),” Moore
v. Texas , __ U.S. __, 137 S.Ct. 1039, 1045, 197 L.Ed.2d 416 (2017) (“ Moore I ”), (2) significant adaptive-skill deficits in one or more activities of daily life, and (3) the onset of these deficits before the age of 18. AAIDD-11 at 27, DSM-5 at 33; see Hall v. Florida , 572 U.S. 701, 710, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). {¶ 47} In Hall and Moore I , the United States Supreme Court applied the updated medical diagnostic standard s in striking down state-cou rt decisions on intellectual disability.
3

. Hall v. Florida {¶ 48} In Hall , the Supreme Court applied Atkins to invalidate a Florida law that precluded the presentation of additional evidence of intel lectual disability when the offender scored above 70 on IQ tests. Hall at 723-724. Hall held that courts must consider the standard error of measurement (“SEM”), id. at 723, which reflects the imprecise nature of the IQ test and the fact that an individual’s IQ score may fluctuate for a variety of reasons, id. at 712-713. The Supreme Court instructed
that states must “understand that an IQ test score represents a range rather than aS UPREME C OURT OF O HIO

12 fixed number.” Id . at 723. Therefore, “when a defendant’s IQ test score falls w ithin the test’s acknowledged and inherent margin of error, the defen dant must be able to present additional evidence of intellectual disability, incl uding testimony regarding adaptive deficits.” Id

. 4 . Moore v. Texas {¶ 49} In Moore I , __ U.S. at ___, 137 S.Ct. at 1053, 197 L.Ed.2d 416, the Supreme Court struck down a Texa s Court of Criminal Appeals dec ision that relied
on an outdated definition in asse ssing whether the defendant wa s intellectually
disabled. {¶ 50} Moore claimed that he was intellectually disabled and therefore ineligible for the death penalt y under the Eighth Amendment. Id . at __, 137 S.Ct. at 1045. A state habeas court agreed with him, applying a defi nition of “ intellectual disability” based on then-current medical sta ndards, including those for e valuating both IQ scores and adaptive-functioning measures. Id . at __, 137 S.Ct. at 1046.
But the Texas Court of Criminal Appeals reversed, holding that Moore failed to prove significantly subaverage intellectual functioning because he had achieved IQ test scores of 74 and 78. Id. at __, 137 S.Ct. at 1047. Furth er, the Texas court concluded, Moore failed to prove “ ‘significant and related limitations in adap tive functioning’ ” based on additiona l restrictions imposed by Texas case law. Id

. {¶ 51} The United States Supreme Court vacated the judgment and
remanded the case. Moore I held that the Texas high court had “fastened” its
intellectual

- disability determination to an out dated definition of intellectual disability adopted in that state’s earlier court rulings and that this ar chaic definition “pervasively infected” the state-court analysis such that the d ecision of the state
court could not stand. Id. at __, 137 S.Ct. at 1053. Moore I explained that the
Texas court’s analysis of Moore’s IQ scores was “irreconcilable with Hall ” because
it failed to account for the SEM. Id. at ___, 137 S.Ct. at 1049. Moore had a score of 74 on one test, but when adjusted for the SEM, he had a rang e of 69 to 79. Id.January Term, 2019

13 This meant that the lower end of the range fell below 70, and therefore, the Texas court was required under Hall to consider Moore’s adaptive functioning. Id

. {¶ 52} Then, addressing the Texas court’s rejection of adaptive-functioning criteria, the Supreme Court expanded on Hall’s analysis, noting: “By rejecting the habeas court’s application of med ical guidance and clinging to the standard it laid out in [an earlier case], the [ Texas court] failed adequately to inform itself of the ‘medical community’s diagnostic framework * * *.’ ” (Emphasis added.) Moore I, __ U.S. at __, 137 S.Ct. at 1053, 197 L.Ed.2d 416, quoting Hall , 572 U.S. at 703, 134 S.Ct. 1986, 188 L.Ed.2d 1007. The Supreme Court remanded M oore’s case,
and the Texas court was required to reconsider its decision in light of the new framework. Id

. {¶ 53} In Moore I , the court noted that the DSM-5 stated that “deficits in only one of the three adaptive-skills domains suffice to show adaptive deficits.” (Emphasis added.) Id . at ___, 137 S.Ct. at 1050; see DSM-5 at 33, 38. The court also noted that “[i]n determining the significance of adaptive deficits, clinicians
look to whether an individual’s adaptive performance falls two or more standard
deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical).” (Emphasis added.) Id . at ___, 137 S.Ct. at 1046; see AAIDD-11 at 43. {¶ 54} On remand, the Texas Court of Criminal Appeals reconsidered its decision that Moore did not have an intellectual disability but reached the same conclusion. The Supreme Court ag ain reviewed the state court’s decision and
reversed. See Moore v. Texas , __ U.S. __, 139 S.Ct. 666, __ L.Ed.2d __ (2019) (“ Moore II ”). {¶ 55} The Supreme Court emphasized th at “the court of appeals again relied less upon adaptive deficits to which the trial court had referred than upon Moore’s apparent adaptive strengths .” (Emphasis sic.) Id . at __, 139 S.Ct. at 670. The Supreme Court faulted the st ate court for (1) emphasizing M oore’s capacity toS UPREME C OURT OF O HIO

14 communicate, read, and write based in part on pro se papers Moo re had filed in court without determining that Moore wrote the papers on his ow n, (2) relying upon adaptive improvements Moore ma de in prison, (3) c oncluding that Moore failed to
show that his deficient social behavior was related to his ment al disabilities rather than emotional problems, and (4) relying on “ ‘lay stereotypes of the intellectually
disabled.’ ” Id . at ___, 139 S.Ct. at 670-672, quoting Moore I , __ U.S. __, 137 S.Ct. at 1052, 197 L.Ed.2d 416. Rather than remanding Moore’s case, the Supreme
Court found that on the basis of the trial-court record, Moore had established that he is a person with inte llectual disability. Id . at ___, 139 S.Ct. at 672. B. Relevant Factual Background
1. Pretrial Evaluations {¶ 56} Before trial, Dr. Robert Byrnes, a psychologist, examined Ford to determine whether he was compete nt to stand trial and whether h e was intellectually disabled. {¶ 57} In his report, Dr. Byrnes stated that no records suggested that Ford has ever been diagnosed as intellectually disabled. In the sum mer of 2013, he administered the Wechsler Abbreviated Scale of Intelligence (“W ASI”), and the results showed that Ford had a full-scale IQ score of 64. But Dr. Byrnes stated that “[t]hese results probably undere stimate Mr. Ford’s intellectual ability because of variable attention and impulsive behavior during the testing.” Dr. Byrnes concluded that Ford was not intellectually disabled. {¶ 58} Dr. Arcangela Wood, a psychologis t and director of a state-cert ified forensic center, also conducted a pretrial evaluation of Ford. She determined that
Ford was sane at the time of the crimes. Dr. Wood administered the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”). Ford scored a full-scale IQ of 80 (95 percent confidence interval [“CI”] = 76-84), which placed h is overall intellectual functioning in the “low average range of intellige nce.”January Term, 2019

15 2. Mitigation Testimony as t o Ford’s Mental State {¶ 59} The defense hired Dr. Joy Sta nkowski, a psychiatrist, as a miti gation specialist. She interviewed Ford and examined his prior IQ tes t results but did not administer any new ones or determine whether he was intellectua lly disabled. During mitigation, she testified that “Shawn’s IQ over the year s tested to be anywhere between 62 and 80.” {¶ 60} Following Dr. Stankowski’s mitiga tion testimony, defense counse l moved to dismiss the death speci fications because Ford’s IQ sco res ranged between 62 and 80. The trial court overruled the motion, but held a he aring to determine whether Ford was intellectually disabled, see Atkins , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, after the jury returned the death verdict.
3. Atkins Hearing {¶ 61} In preparation for the Atkins hearing, three experts evaluated
whether Ford was intellectuall y disabled. Dr. Katie Connell, a forensic psychologist, was the court’s expert; Dr. James Karpawich, a cl inical psychologist, was the defense expert; and Dr. Sylvia O’Bradovich, a forensic psychologist, was the state’s expert.
a. Dr. Connell’s evaluation {¶ 62} Dr. Connell conducted a detailed evaluati on of Ford’s school records. She reported that an evaluation conducted when Ford w as six years old
indicated that he did “not meet the mental retardation criteria .” The childhood
evaluation attributed Ford’s l earning difficulties to linguisti c factors, found that he had a specific learning disab ility, and identified a speech or language impairment. {¶ 63} Dr. Connell reviewed Ford’s scores on five IQ tests: (1) Mental Processing Composite score of 78 on the Kaufman Assessment Batt ery for Children (“K-ABC”) in 2001 at age 6 or 7, (2) full-scale IQ score of 62 on the Wechsler Intelligence Scale for Children, Third Edition (“WISC-III”) in 2003 at age 9, (3) IQ composite score of 75 on the Kaufman Brief Intelligence Test , Second EditionS UPREME C OURT OF O HIO

16 (“K-BIT2”) in 2006 at age 12, (4) full-scale IQ score of 64 on the WASI in 2013 at age 18, and (5) full-scale IQ score of 80 on the WAIS-IV in 201 3 at age 19. 2 {¶ 64} Dr. Connell did not deem the IQ score of 62 to be a reliable
assessment of Ford’s intellectua l functioning because the evalu ator stated that he was extremely fidgety and distracted at the time of the test. Dr. Connell also discounted the IQ score of 64 b ecause Dr. Byrnes had reported t hat “these results probably underestimate[d]” Ford’s intellectual ability. Dr. Co nnell also noted that Ford told her that during previous testing with Dr. Byrnes, “I don’t know if I tried or not. Very possible I didn’t try.” {¶ 65} Dr. Connell did not conduct additi onal IQ testing. She stated, “Available records provided three prior IQ test results, and even when considering

measurement error and that one was an abbreviated measure, all were clearly abov e the range of scores found in individuals diagnosed with an inte llectual disability.” (Emphasis added.) {¶ 66} Dr. Connell also discussed the “F lynn Effect.” She explained t hat “Flynn reported that mean IQ increases about .33 points per yea r and some researchers have suggested tha t any obtained IQ score should be adjusted [down] .33 points for each year the test was administered after the st andardization was completed.” She stated that the re continues to be debate about the Flynn Effect. Dr. Connell stated, “The Flynn e ffect would have the most relev ance in terms of the K-ABC as this test was pub lished in 1983 and administered t o Mr. Ford in 2001. If a Flynn adjustment was applied to Mr. Ford’s prior K-ABC tes t results, his mental processing composite s core would be appr oximately 72.” She added, “The Flynn effect would have little impact on his K-BIT2 score as th is was published in
2004 and administered to Mr. Ford in 2006 or on his WAIS-IV sco re as this test

2. Dr. Connell rescored the WAIS-IV test results after noticin g several errors in the raw test data. She stated that the corrected full-scale IQ score was 82. Dr. Connell added, “These obtained scores are consistent with Dr. Woods’s prior opinion that they fall in the low average range and are not consistent with an intellectual disability.”January Term, 2019

17 was published in 2008 and administered to him in 2013.” Dr. Co nnell concluded that “even with considering the Flynn Effect, * * * none of Mr. Ford’s IQ test results are consistent with a diag nosis of intellectual disabil ity.” {¶ 67} As to adaptive functioning, Dr. Connell reported that a formal adaptive-functioning measure was c ompleted when Ford was admini stered the Vineland Adaptive Behavior Scal es (“VBS”) in December 2003 when he was in third grade. Dr. Connell stated that these test results identi fied deficits in adaptive functioning. However, she noted that “the special education te am determined that this was due to a specific learning disability and did not find that intellectual disability was the cause of his adaptive functioning limitation s.” {¶ 68} Dr. Connell conducted th e Vineland Adaptive Behavior Scales–II (“VBS-II”) test. She relied on information from her interviews and observations of Ford, an interview with his mother, and scores from his school achievement tests.
Dr. Connell stated that none of the VBS-II scores indicated a s ignificant deficit. {¶ 69} Dr. Connell used the standa rds set forth in the DSM-5 and the
AAIDD-11 and concluded that Ford did not meet the diagnostic criteria f or intellectual disability. b. Dr. Karpawich’s evaluation {¶ 70} Ford refused to participate in a psychological evaluation by Dr

. Karpawich. Thus, his evaluation was based on a review of recor ds and a meeting
with Ford’s mother. {¶ 71} Dr. Karpawich reviewed Ford’s IQ test results, including his 20 06
score of 75 on the K-BIT2. As to thi s score, Dr. Karpawich tes tified:

With an IQ of 75, if you take into consideration the standard e rror of measurement to be a 90 percent confidence level, that is—act ual IQ is between 69 and 83. So that would be a range rather than justS UPREME C OURT OF O HIO

18 an IQ score by itself you need to take into consideration what is the

range.

Dr. Karpawich discounted the two IQ scores that fell below 70 b ecause of Ford’s impulsive behavior and poor a ttention during both tests. {¶ 72} In summarizing his opinion as to a possible intellectual disabi lity, Dr. Karpawich stated: “All [of Ford’s] IQ test results placed h is intellectual functioning below average. However, he was not given the diagn osis of mental
retardation/intellect ual disability prior to the age of 18. Hi s lowest IQ was 62 in 2003, but that evaluator noted that these results may ‘underest imate’ his ability.” He added that “[o]ther test scores during his childhood placed his intellectual function in the borderline range (although the standard error o f measurement on
some tests cautioned that his actual IQ could be at 70 or below ).” {¶ 73} As to adaptive skills, Dr. Karpaw ich testified that Ford’s 2003
results on the VBS test were at “the cutoff between mild mental retardation and borderline intelligence.” Durin g Dr. Karpawich’s evaluation, F ord’s mother completed an adaptive-behavior a ssessment. This standardized a ssessment of a person’s adaptive functioning is conducted by asking questions of an informant. Dr. Karpawich stated that Ford’s scores were below average in t he areas of social behavior and social engagement and very poor for the social-adj ustment factor. Dr. Karpawich testified: “[h]is sc ores were poor in the domains of conformity, trustworthiness, and disturbing i nterpersonal behavior” and “he ’s always had significant issues and still in the area of what we call social behavior. * * * [T]hese things have been increasingly evident over the years with Shawn , and these would all be considered adaptive behavi ors.” As to other adaptive be haviors, Ford tested “in the average range or above.”January Term, 2019

19 {¶ 74} Dr. Karpawich stated that he applied the legal standard set for th in R.C. 5123.01(N) 3 and Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, in diagnosing intellectual disability. He did not use the DSM standard, because “it has a lot of difficulties.” Dr. Karpawich concluded: “Based up on the available information, it is my opinion w ith reasonable scientific certai nty, that there is
insufficient information to conclude that the defendant fulfill s the criteria for mental retardation/intellectual disability.”
c. Dr. O’Bradovich’s evaluation {¶ 75} Dr. O’Bradovich’s office administered the WAIS-IV and Ford
received an overall score of 79. H e also received an overall c omposite score of 87 on the VBS-II, which is in the adequate range. Dr. O’Bradovich stated that Ford’s overall adaptive-behavior skills and his communication and soci alization skills fell in the adequate range but his daily-living skills fell in the m oderately low range. Dr. O’Bradovich determined that “[t]hese results are not indica tive of significant deficits in adaptive functioning .” She concluded that Ford is not intellectually
disabled. d. Decision and findings of the trial court {¶ 76} The trial court used the Lott test to determine whether Ford was intellectually disabled. Speci fically, it evaluated whether th e preponderance of the evidence demonstrates that Ford had “(1) significantly subavera ge intellectual functioning, (2) significant limitations in two or more adaptive skills , and (3) onset of these conditions before the age of 18.” (Emphasis added.) See Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 12. {¶ 77} The trial court determined that Ford’s IQ scores did not show t hat he had significantly subaverage int ellectual functioning. The tri al court agreed with

3. R.C. 5123.01(N) provides: “ ‘Intellectual disability’ means a disability characterized by having significantly subaverage general intellectual functioning exist ing concurrently with deficiencies in adaptive behavior, manifested during the developmental period.”S UPREME C OURT OF O HIO

20 Dr. Connell’s findings that Ford’ s IQ scores of 62 and 64 were not reliable measures of Ford’s intellectual functioning. {¶ 78} The trial court mentioned Dr. Ka rpawich’s finding that Ford’s I Q score of 75, when taking the SEM into consideration, resulted i n an actual IQ score within a range between 69 and 83. However, the trial court did not discuss the significance of Dr. Karpawich’s finding that the low range of t he IQ scores fell
below 70. {¶ 79} As for adaptive deficits, the trial court stated: “All three ex perts who specifically evaluated defendant’s adaptive skills and function ing testified that while Mr. Ford had limits in certain areas of adaptive skills, he could not be characterized as having ‘ significant limitations in two or more adaptive skills .’ ” (Emphasis added.) {¶ 80} The trial court concluded that F ord is not intellectually disab led, stating: “All of the evidence adduced at the Atkins hearing was consistent. None of the three experts was of the opinion that Mr. Ford has ever bee n intellectually disabled within the standards recognized by the American Psychi atric Association, the American Association on Intellectual and Developmental Disa bilities, or State
v. Lott [97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011].” C. Analysis

1. SEM {¶ 81} Ford argues that the trial cour t failed to account for the SEM when considering his IQ scores. Hall and Moore I require a trial court to consider the SEM when evaluating a defendant’s IQ scores. As Hall explains, “The SEM reflects the reality that an individual’s intellectual function ing cannot be reduced to a single numerical score.” Hall , 572 U.S. at 713, 134 S.Ct. 1986, 188 L.Ed.2d 1007. “[T]he SEM means that an individual’s score is best unde rstood as a range
of scores on either side of the recorded score.” Id

.January Term, 2019

21 {¶ 82} The trial court reviewed Ford’ s reported IQ scores on the WISC- III, the K-BIT2, two WAIS-IV tests, and the WASI. These scores incl uded a CI range. Its significance is that the SEM, “which varies by test, subgro up or age group, is used to quantify the variability th at is attributable to the te st itself and provides the basis for establishing a statistical CI within which the person’s true score is likely to fall .” (Emphasis sic.) AAIDD, User’s Guide to Accompany the 11th Edition of Intellectual Disability: Definition, Cl assification, and Systems of Supports 22 (11th Ed.2012). {¶ 83} Dr. Karpawich reported that For d’s IQ score of 75 on the K-BIT2 had a 90 percent CI range of 69 to 83. As to these scores, the trial court stated, “Dr. Karpawich noted that although all of Mr. Ford’s IQ tests genera ted below average scores, his tests had never plac ed him in the intellectually di sabled range.” (Footnote omitted.) {¶ 84} However, as discussed above, th e United States Supreme Court ha s ruled that when test scores, adj usted for the test’s SEM, are b elow average, the scores are not enough to deter mine the question of disability. Moore I emphasizes additional scrutiny and “require[s] that courts continue the inquiry and consider other evidence of intellectual disability where an individual’s IQ score, adjusted for the test’s standard error, falls within the clinically establis hed range for intellectualfunctioning deficits.” Moore I , __ U.S. at __, 137 S.Ct. at 1050, 197 L.Ed.2d 416. The Supreme Court held that becau se Moore’s score yielded a ran ge of 69 to 79, the state court “had to move on to consider Moore’s adaptive fu nctioning.” Id . at ___, 137 S.Ct. at 1049. Here, the trial court erred in disrega rding the SEM, thus failing to recognize the lower end of the range in determining whether Ford’s intellectual functioning was below average. {¶ 85} The concurring-dissenting opini on discounts Ford’s IQ scores because only one score established an IQ range of 69 to 83. It adds that this IQ test is “substantially outweighed” by the other tests and the unanim ous view of all threeS UPREME C OURT OF O HIO

22 experts who determined that Ford is not intellectually disabled . Opinion concurring in part and dissenting in part at ¶ 452. However, Ford’s highe r performance on other IQ tests did not allow the trial court to ignore an IQ sc ore that falls at or below
70. See Moore at __, 137 S.Ct. at 1048, citing Hall, 572 U.S. at 721-724, 134 S.Ct. 1986, 188 L.Ed.2d 1007. As for the unanimity of expert opinion , the legal determination of intellectual disability is distinct from a med ical diagnosis. “[T]his determination is informed by the views of medical experts,” but “[t]hese views do
not dictate the court’s decision.” Hall at 721. 2. The Flynn Effect {¶ 86} Ford argues that the trial cour t erred when it failed to take t he Flynn Effect into account when evaluating his IQ scores. {¶ 87} “The Flynn Effect * * * is a ‘ “generally recognized phenomenon ” ’ in which the average IQ scores produced by any given IQ test te nd to rise over time, often by approximately three point s per ten years from the date the IQ test is initially
standardized.” Black v. Carpenter , 866 F.3d 734, 738 (6th Cir.2017), fn. 1, quoting Ledford v. Head , N.D.Ga. No. 1:02-CV-1515-JEC 2008, WL 754486, *7, quoting testimony. Thus, “[t]he SEM is distinct from the Flynn Effect. ” Id. at 739, fn. 2. {¶ 88} In discussing the Flynn Effect, Dr. Connell explained that it w ould have little impact on Ford’s IQ scores on the K-BIT2 and the WA IS-IV because
these were newer versions of the test when Ford took them. Dr. Connell stated that the Flynn Effect would be most relevant to the K-ABC, because t hat test was published in 1983 and administered to Ford in 2001. She stated that his IQ score of 78 on the K-ABC would be appro ximately an IQ score of 72 if the Flynn Effect was applied. Dr. Connell conclude d that “even with considering the Flynn Effect, * * * none of Mr. Ford’s IQ test results are consistent with a diagnosis of intellectual disability.” However, as state d above, there is no indication that Dr. Connell considered the SEM, which would have extended Ford’s IQ score o n the K-ABC into a lower range.January Term, 2019

23 {¶ 89} The trial court did not discuss the Flynn Effect when evaluatin g Ford’s IQ scores. Neither the Hall nor the Moore decisions mention the Flynn Effect or require its application. There is also no legal or s cientific consensus that requires an across-the-board downw ard adjustment to offset the Flynn Effect. See
Black at 746 (noting that Hall does not require that IQ scores be adjusted for the Flynn Effect); McManus v. Neal , 779 F.3d 634, 653 (7th Cir.2015) (nothing in
Atkins , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, suggests that IQ scores must be adjusted by the Flynn Effect); Smith v. Duckworth , 824 F.3d 1233, 1246 (10th Cir.2016) (“ Hall says nothing about the application of the Flynn Effect to IQ scores in evaluating a defendant’s intellectual disability”); but see Walker v. True , 399 F.3d 315, 322-323 (4th Cir.2005) ( stating that on remand, t he district court should consider the Flynn Effect evidence). {¶ 90} The AAIDD recommends that in “cases in which a test with aging norms is used as part of a diagnosis of [intellectual disabilit y], a corrected Full Scale IQ upward of 3 points per decade for age of the norms is warran ted.” AAIDD,
User’s Guide at 23. Despite this recommendation, “ Hall indicated that being informed by the medical community does not demand adherence to everything stated in the latest medical guide. But neither does our prece dent license disregard
of current medical standards.” Moore I , __ U.S. at __, 137 S.Ct. at 1049, 197
L.Ed.2d 416. {¶ 91} We have not held that trial courts must apply the Flynn Effect to adjust a defendant’s IQ score. B ut the Tenth District Court of Appeals has stated
that “a trial court must consider evidence presented on the Fly nn effect, but, consistent with its prerogative t o determine the persuasiveness of the evidence, the trial court is not bound to, but m ay, conclude the Flynn effect is a factor in a defendant’s IQ score.” State v. Burke , 10th Dist. Franklin No. 04AP-1234, 2005- Ohio-7020, ¶ 51; see also State v. Jackson , 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 100 (based upon IQ scores and the Flynn Effec t, trial court wasS UPREME C OURT OF O HIO

24 justified in inquiring into whethe r an evaluation of the defend ant’s mental abilities was appropriate). {¶ 92} We hold that the trial court should have discussed evidence presented on the Flynn Effect, although it was in the trial cou rt’s discretion whether
to include it as a fac tor in the IQ scores. 3. The Currency of Lott {¶ 93} Finally, Ford argues that the tr ial court used a n outdated test in finding that he did not have sig nificant limitations in two or more adaptive skills. {¶ 94} In reviewing adaptive skills, the trial court stated that Dr. K arpawich noted that Ford has “always had ‘significant issues’ in the are a of social behavior.”
The trial court added:

[Dr. Karpawich] indicated this area includes things like “being impulsive, not assuming responsibility, poor social judgment, n ot considering long-term consequences of his actions, reacting poo rly when he becomes frustrated, not able to cope with stress, disru pting other people, acting out in the community. All these things ha ve been increasingly evident over the years with Shawn, and these
would all be considered a daptive behaviors.”

Despite these findings, the trial court applied the test develo ped in Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, and determined that Ford “could not be characterized as having ‘significant limitations in two or m ore adaptive skills.’ ” {¶ 95} As discussed earlier, the curre nt diagnostic standards require significant deficits in any of the three adaptive-skill sets (conceptual, social, and practical) in determining whether a defendant is intellectually disabled. See Moore
I, __ U.S. at __, 137 S.Ct. at 1046, 197 L.Ed.2d 416; AAIDD-11 at 43; DSM-5 atJanuary Term, 2019

25 37. Thus, the trial court used t he wrong standard in finding t hat Ford did have not significant limitations in his adaptive skills. {¶ 96} The concurring-dissenting opinion seeks to tweak Lott rather than overrule what is an improper stan dard for assessing intellectua l disability. The opinion says that the evidence reflected the experts’ applicati on of the current standards and that any problem with Lott was not prejudicial to Ford. Opinion concurring in part and dissenting in part at ¶ 450. In the con text of a capital case, we decline to glean this finding from the record. Lott requires a finding of significant deficits in two or more adaptive-skill sets, but th e current diagnostic standards require significant deficits in any of the three adaptive-skill sets. Dr. Karpawich applied the Lott test in conducting his diagnosis, and the trial court applied the Lott test in determining that Ford was not intellectually disabled. Under these circumstances, we have no confidence in the trial court’s determination based on its application of an improper standard. {¶ 97} Lott is outdated in requiring a finding of “significant limitations in two or more adaptive skills.” 97 Ohio St.3d 303, 2003-Ohio-662 5, 779 N.E.2d 611, ¶ 12. Moreover, Lott ’s holding that there is a rebuttable presumption that a defendant is not intellectually di sabled if his or her IQ score is above 70 is no longer valid. IQ scores are imprecise and “should be read not as a si ngle fixed number but as a range.” Hall , 572 U.S. at 712, 134 S.Ct. 1986, 188 L.Ed.2d 1007. {¶ 98} As it did in Lott , it is appropriate for this court to provide guidance to the trial court and other courts to apply going forward. Th e standard that was recently adopted by the Supreme Court of Kentucky in Woodall v. Commonwealth , 563 S.W.3d 1 (Ky.2018) (recognizing that Moore I likely invalidated Kentucky’s statutory definition of intellectual disability) provides such guidance. Id . at 6; see Ky.Rev.Stat.Ann. 532.130(2). {¶ 99} The Supreme Court of Kentucky stated:S UPREME C OURT OF O HIO

26 In an attempt to provide guidance to courts confronting this issue, we shall attempt to fashi on a rule. The U.S. Supreme Co urt in Moore favorably viewed what appears to be the “generally accepted, uncontroversial intellectual-disability diagnostic definition,” * * * “which identif ies three core elements: (1) intellectual-functioning deficits (indicated by an IQ score ‘approximately two standard deviations below the mean’— i.e. , a score of roughly 70—adjusted for the ‘standard error of measurement’ [ AAIDD-11 at 27]; (2) adaptive deficits (‘the inability to learn basic skills and adjust behavior to changing circumsta nces,’ [ Hall v. Florida , 572 U.S. ___, ___, 134 S.Ct. 1986, 1994, 188 L.Ed.2d 1007 (2014)]); and (3) the onset of these deficits whil e still
a minor.”

Woodall at 6-7, quoting Moore I , __ U.S. at __, 137 S.Ct. at 1045, 197 L.Ed.2d 4165; see also State v. Thurber , 308 Kan. 140, 420 P.3d 389, 450-452 (2018) (severing portions of Kansas statutes that ran afoul of Moore I and Hall ).
D. Conclusion {¶ 100} Accordingly, we remand this matter to the trial court to proper ly determine whether Ford is intellectually disabled. Lott ’s holding that there is a rebuttable presumption that a def endant is not intellectually d isabled if his or her IQ score is above 70 is no longer valid. For purposes of eligi bility for the death penalty, a court determining whe ther a defendant is intellectua lly disabled must consider three core elements: (1) intellectual-functioning defi cits (indicated by an IQ score approximately two standard deviations below the mean—i .e., a score of roughly 70 or lower when adjusted for the standard error of mea surement, (2) significant adaptive deficits in any of the three adaptive-skil l sets (conceptual, social, and practical), and (3) the onset of these deficits whi le the defendant was aJanuary Term, 2019

27 minor. The trial court may cons ider expert testimony and appoi nt experts if necessary in deciding this issue. The trial court shall make w ritten findings and set forth its rationale for finding the defendant intellectually di sabled or not intellectually disabled. IV. Remaining Issues {¶ 101} We now address Ford’s remaining propositions of law. For ease of discussion, we will addr ess them out of turn. A. Joinder of Offenses at Trial {¶ 102} In proposition of law No. VII, Ford argues that the trial court erred by failing to grant the defense motion to sever the felonious-a ssault charge in Count 11 from the remaining charges. {¶ 103} “Two or more offenses may be charged in the same indictment, information or complaint in a se parate count for each offense i f the offenses charged * * * are of the same or similar character * * *.” Crim.R. 8(A ). Crim.R. 8(A) also allows the joinder of offenses that “are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.” Permitting joinder “conserves res ources by avoiding duplication inherent in multiple trials and minimizes t he possibility of incongruous re sults that can occur in successive trials before different juries.” State v. Hamblin , 37 Ohio St.3d 153, 158, 524 N.E.2d 476 (1988). {¶ 104} “Notwithstanding the policy in favor of joinder,” Crim.R. 14 permits a defendant to request severance of the counts in an in dictment “on the grounds that he or she is prejudiced by the joinder of multiple offenses.” State v.
LaMar , 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 49. The defendant “has the burden of furnishing th e trial court with sufficient i nformation so that it can weigh the considerations favoring joinder against the defen dant’s right to a fair
trial.” State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). But evenS UPREME C OURT OF O HIO

28 if the equities appear to support severance, the state can over come a defendant’s claim of prejudicial joinder by showing either that (1) it coul d have introduced evidence of the joined offenses as other acts under Evid.R. 404 (B) or (2) the “evidence of each crime joined at trial is simple and direct,” State v. Lott , 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). {¶ 105} In his motion for severance, Ford argued that the offenses shou ld
be severed because there was no evidence that the incidents wer e part of a common scheme or plan or a course of criminal conduct and because the felonious assault
and murders involved different da tes, locations, and victims. The state argued that joinder was proper because the assault set a series of related events into motion and helped to prove Ford’s motive and intent to commit the murders. The trial court denied the motion, finding that “the events that occurred on Ma rch 23, 2013 were
connected to the events which took place on April 2, 2013.” {¶ 106} We review a trial court’s ruling on a Crim.R. 14 motion for an
abuse of discretion. State v. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166. A defendant who appeals th e denial of relief bears a heavy burden:

He must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to sever he prov ided
the trial court with sufficient information so that it could we igh the considerations favoring joinder against the defendant’s right t o a fair trial, and (3) that given the i nformation provided to the court , it abused its discretion in refusing to separate the charges for t rial.

State v. Schaim , 65 Ohio St.3d 51, 59, 600 N.E.2d 661 (1992). “Abuse of
discretion” has been defined as an attitude that is unreasonabl e, arbitrary, or
unconscionable. Huffman v. Hair Surgeon, Inc ., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985), citing State v. Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).January Term, 2019

29 “A decision is unreasonable if th ere is no sound reasoning proc ess that would support that decision.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). {¶ 107} Ford fails to show that “no sound reasoning process” supported joinder, and thus he f ails to establish an a buse of discretion. {¶ 108} First, it is reasonable for the trial court to agree with the s tate that
the felonious assault of Chelsea set a series of related events into motion and helped to prove Ford’s motive and intent to commit the aggravated burg lary and murders. Ford’s assault of Chelsea resulted in her hospitalization. Giv en the close proximity of the offenses and the relationship of the victims, Ford has f ailed to demonstrate
that the trial court acted unreasonably. {¶ 109} Second, it was not unreasonable for the court to find that the
evidence of the felonious assault would have been admissible un der Evid.R. 404(B) as evidence of motive. Evid.R. 404(B) recognizes that evidence of other crimes may “be admissible for * * * proof of motive, opportunity, inte nt, preparation, [or] plan.” Evidence of the assault on Chelsea and her hospitalizat ion was admissible as tending to show Ford’s motive, opportunity, and intent in co mmitting the burglary and murders. Thus, even if these counts had been trie d separately, the state would have been allowed to present evidence of other acts —the assault and hospitalization—to prove the opportunity and motive to commit t he theft and ultimately the aggravated murders. See State v. Brinkley , 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 34. {¶ 110} Third, the evidence of each crime was direct. Zachary, Joshua, Chelsea, King, and Heather tes tified mainly about Chelsea’s ass ault, hospitalization, and the subseque nt investigation. The remaind er of the testimony focused on the murders. Although the evidence presented to pro ve the murders was a bit more complex than the evidence presented to prove the ass ault, it was not confusing. See id. at ¶ 37; State v. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54S UPREME C OURT OF O HIO

30 N.E.3d 80, ¶ 64. Moreover, Ford admitted committing the assaul t and the murders. A jury is capable of segregating the proof of multiple charges when, as in this case, the evidence of each crime is uncomplicated. See State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 52. {¶ 111} Finally, Ford cites State v. Atkinson , 4 Ohio St.2d 19, 211 N.E.2d 665 (1965), in support of his argument that there was no overla p of evidence
between the two counts and each count could have been tried wit hout reference to
the other. In Atkinson , the defendant was charged with one count of forging a check, one count of uttering the check, and one count of carryi ng a concealed

weapon. Id . Because the checks and the concealed weapon, a blackjack, we re found in the defendant’s car during a traffic stop, the prosecu tor argued that the offenses arose out of the same investigation. Id . at 20. The trial court overruled the defendant’s objection to joi nder. This court reversed, hol ding that there is “no proof or evidence * * * of any connection between the check cou nts and the blackjack count in the commission of any offense.” Id . at 21. Here, as discussed above, there is sound reasoning t hat connects the felonious ass ault of Chelsea and a week later, the aggravated burglary and the murder of her par ents. It is reasonable
that evidence of the felonious a ssault of Chelsea would have be en admitted in the murder trial. More important, Ford has not met his burden to s how that the trial
court abused its discretion wh en it overruled his objection to joinder. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 166. {¶ 112} Based on the foregoing, we rej ect proposition of law No. VII.
B. Limitations on Voir Dire {¶ 113} In proposition of law No. IV, Ford argues that the trial court improperly limited defense counsel from fully questioning prosp ective jurors about possible mitigating evidence during voir dire. He primarily ar gues that defense counsel should have been permitted to question prospective juro rs about youth as a mitigating factor.January Term, 2019

31 {¶ 114} We have repeatedly held that a trial court is under no obligati on to allow counsel to question a pros pective juror about specific mi tigating factors. See State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 152;
State v. Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 59-60. {¶ 115} First, Ford argues that the trial court improperly sustained an objection to the questioning of prospective juror No. 47, when defense counsel asked: “Would you be willing to give meaningful consideration t o things such as age?” However, the trial court had earlier asked the same ques tion. During preliminary inquiry, the trial c ourt informed juror No. 47 that jurors must meaningfully consider any mitigating evidence and mentioned tha t “one example of mitigating evidence might be the youth * * * of the defendan t.” Juror No. 47
said she would be able to follow the law and give meaningful co nsideration to such evidence. Thus, we conclude tha t the trial court did not impro perly disallow the question regarding age as it had already been asked. {¶ 116} Second, Ford complains about not b eing allowed to ask prospecti ve juror No. 25 about whether he would give meaningful considerati on to the defendant’s upbringing. The tri al court initially sustained an objection to such questioning. But after defense counsel rephrased the question, juror No. 25 indicated that he would meaningf ully consider such evidence. A ccordingly, this
claim lacks merit. {¶ 117} Third, Ford argues that the trial court erred by not allowing d efense counsel to ask prospective juror No. 19: “Let’s say we introduc ed evidence that Shawn is a young guy, he was 18 when this happened. Does that have any effect on you?” The trial court sustained an objection to this questi on, stating: “The juror cannot be asked to engage in the process, at this point not hav ing heard any evidence, or make commitments based on hypotheticals.” The tri al court added: “The question at hand is whether the juror would meaningfully c onsider any mitigating evidence, whatever th at may be. That’s the question .”S UPREME C OURT OF O HIO

32 {¶ 118} The trial court did not err in precluding this question. See State v.
Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 64. Mor eover, juror No. 19 was excused for other reasons before the trial-pha se deliberations were completed. Thus, no possible error occurred. {¶ 119} Ford also argues that “in the limited circumstances” when defen se counsel were permitted to mention age as a possible mitigating factor, they were “never allowed” to determine whether the jurors would consider it. But the voir dire questioning of the jurors who participated in the delibera tions belies this claim. The trial court defined mitigation and informed each of the par ticipating jurors that they must meaningfully consider any evidence that would mitigat e against the imposition of the death penalty. T he trial court and/or the de fense counsel also informed each of those jurors that Ford’s youth was a mitigatin g factor and each of them indicated that they would consider such evidence. Therefo re, this claim also
lacks merit. {¶ 120} Based on the foregoing, we rej ect proposition of law No. IV.
C. Voir Dire Misstatements {¶ 121} In proposition of law No. V, Ford argues that during voir dire, the trial court misstated the proper standard for voting on the dea th penalty and the prosecutor made various misstat ements about the aggravating cir cumstances, mitigating evidence, and weighing process.
1. Trial Court’s Misstatements {¶ 122} Ford argues that, while individually questioning prospective ju rors, the trial court advised them tha t they would have to unanimousl y find that the aggravating circumstances did not outweigh the mitigating facto rs before moving on to one of the life-sentence options. {¶ 123} During individual voir dire, the trial court informed three prospective jurors who later par ticipated in deliberations that if the jury did not unanimously find beyond a reasonable doubt that the aggravating circumstan cesJanuary Term, 2019

33 outweigh the mitigating factors, the jury could not return a ve rdict for the death penalty. The trial court provided similar, but slightly differ ent instructions to other prospective jurors who participat ed in deliberations. For exam ple, prospective juror No. 39 was told:

Now, if at the end of the mitigation part, the second trial, th e jury decides beyond a reasonable doubt unanimously that the aggravating circumstances outweighed the mitigating factors or evidence, then the jury would be required to sign the verdict f or the death penalty.
* * * Now, on the other hand, if * * * the jury decides * * * that the aggravating circumstances do not outweigh beyond a reasonab le doubt the mitigating factors, then the jury could not impose or require a death penalty.

(Emphasis added.) {¶ 124} Because Ford did not object to the trial court’s comments, we review these claims only for plain error. To prevail, Ford mus t show that an error occurred, that the error was plain, and that but for the 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. {¶ 125} It is error to require a jury to unanimously reject a death ver dict before considering one of th e life-sentence options. State v. Brooks , 75 Ohio St.3d 148, 160, 661 N.E.2d 1030 (1996). But the trial court’s voir d ire instructions did
not do that. The instructions tha t the trial court gave prior to the jury’s mitigationphase deliberations informed the jury that unanimity was not re quired before it considered life options. These mitigation-phase instructions c ured any earlierS UPREME C OURT OF O HIO

34 misunderstandings on this point during voir dire. See State v. Thompson , 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 237. We hold that no plain error
occurred.
2. Prosecutor’s Misstatements {¶ 126} Ford argues that the prosecutor’s misstatements during voir dir e resulted in a jury that could not properly consider mitigation and engage in the appropriate weighing process. H owever, except where noted, def ense counsel failed to object to the prosecutor’s comments and thus forfeite d all but plain error. {¶ 127} Ford argues that during voir dire the prosecutor improperly (1) referred to the aggravating circumstances as the “bad facts,” ( 2) called mitigation “background stuff,” (3) equated the weighing process to “how mu ch it matters to you,” and (4) mentioned “I like that one” as a way to consider a mitigating factor and “[t]hat doesn’t mean a thing to me” as a way to reject it. {¶ 128} The prosecutor’s shorthand references to the aggravating circumstances, mitigating evidence, and the weighing process we re casual and imprecise. But no plain error occurred. Moreover, any misstat ements by the prosecutor were cured by the tri al court’s instructions prior t o the mitigation-phase
deliberations. See Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 293; State v. Ahmed , 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 147. {¶ 129} Defense counsel also objected during voir dire that the prosecu tor referred to mitigation as an excuse. See State v. Getsy , 84 Ohio St.3d 180, 200, 702 N.E.2d 866 (1998) (mitigating factors do not justify or excuse crimes). But the trial court sustained objections to this line of questioning. Moreov er, the trial court’s later instructions cured any possible error. Dean at ¶ 293. {¶ 130} Based on the foregoing, we r eject proposition of law No. V.January Term, 2019

35 D. Defense Jury Challenges {¶ 131} In proposition of law No. VI, For d argues that the trial court erred by failing to excuse eight prospective jurors who were “obvious ly biased” and “predisposed to impose the death sentence.” {¶ 132} The United States Supreme Cour t and this court have long recognized that a defendant’s right to a fair and impartial jur y extends to capital sentencing. Accordingly, “[a] prospective juror in a capital c ase may be excused for cause if his views on capital punishment would ‘ “prevent o r substantially impair the performance of his duties as a juror in accordance w ith his instructions
and his oath.” ’ ” State v. Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 38, quoting Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas , 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). If a juror would “automatically vote for t he death penalty in every case,” the juror cannot b e fair and impartial because he or she “will fail in good faith to consider the evide nce of aggravating and mitigati ng circumstances as the instructions require him to do.” Morgan v. Illinois , 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). “If even one such juror is empan eled and the death sentence is imposed, the State i s disentitled to execute the se ntence.” Id. {¶ 133} When a defendant challenges a prospective juror for cause, the trial court’s ruling “will not be disturbed on appeal unless it is ma nifestly arbitrary and unsupported by substantial testimo ny, so as to constitute an ab use of discretion.”
State v. Williams , 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997). {¶ 134} We have also held that a “defendant in a criminal case cannot complain of error in the overruling of a challenge for cause if such ruling does not force him to exhaust his peremptory challenges.” State v. Eaton , 19 Ohio St.2d 145, 249 N.E.2d 897 (1969), paragraph one of the syllabus, death penalty vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750 (1972). Thus, “[i] f the trial court erroneously overrules a challenge for cause, th e error is prejudicialS UPREME C OURT OF O HIO

36 only if the accused eliminates the challenged venireman with a peremptory challenge and exhausts his peremptory challenges before the full jury is sea ted.” (Emphasis sic.) State v. Tyler , 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990). {¶ 135} Of the eight challenged prospective jurors, two (jurors Nos. 39 and 72) were seated and three (jurors Nos. 25, 36, and 45) were exc used through peremptory challenges. The jury was seated before the remainin g three prospective jurors (jurors Nos. 103, 106, and 134) could have been selected . Defense counsel used only five of Ford’s six pere mptory challenges during jury selection. 1. Prospective Juror No. 39 {¶ 136} On the death-penalty questionna ire, juror No. 39 c ircled an ans wer stating that the death penalty was the “proper punishment in so me cases, but not the proper punishment in some other cases.” She explained that “[e]very
circumstance is different. And it depends on the evidence.” D uring individual voir dire, juror No. 39 stated that s he believed in t he death penalt y, but added, “I don’t
believe it should be handed down in every case.” She also indi cated that she would meaningfully consider any mitigating evidence. {¶ 137} Juror No. 39 disclosed during questioning that her spouse was convicted of murder in Summit County in 2003 and was imprisoned . But she stated, “It is not going to affect my ability to be fair,” beca use “he was doing stuff he had no business doing.” She added, “And, to me, this—it sat him down to get himself together. That’s how I look at it.” Defense counsel c hallenged juror No. 39 for cause, arguing that her husband’s imprisonment “makes it difficult for her to be fair and impartial.” The tri al court overruled this challen ge. {¶ 138} Ford contends that juror No. 39 was an automatic-death-penalty juror because she stated, “I feel like if you are found guilty of a crime and that’s an option, then I agree with it.” He also argues that juror No. 3 9 should have been
excused because her husband was in prison. We review this clai m on the basis ofJanuary Term, 2019

37 plain error, because Ford failed to exercise all of his perempt ory challenges. Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 72. {¶ 139} Juror No. 39 assured the court that she would follow the law an d
could consider a life sentence. Her responses on the death-pen alty questionnaire
showed that she took a moderate view of the death penalty. Jur or No. 39 also said
that her husband’s conviction a nd imprisonment would not influe nce her ability to
be fair. See State v. Allen , 73 Ohio St.3d 626, 629, 653 N.E.2d 675 (1995) (prospective juror whose brother was a homicide victim was perm itted to remain as a capital juror after assuring t he court that she could set her feelings aside and remain impartial). We hold that the trial court committed no p lain error by failing to excuse juror No. 39. 2. Prospective Juror No. 72 {¶ 140} On her death-penalty questionnaire, juror No. 72 stated, “I bel ieve in the death penalty.” She also circled an answer stating that the death penalty was the “proper punishment in some cases, but not the proper punish ment in some other cases.” During individual voir dire, juror No. 72 expressed he r willingness to follow the law and meaningfully consider any mitigating evidenc e before concluding whether a death-pena lty verdict should be returned. {¶ 141} First, Ford claims that the trial court erred by not excusing j uror No. 72 because the state’s ques tioning diminished the value of mitigating evidence by calling it “excuses.” At trial, defense counsel argued that this juror was “irreparably harmed” by the prosecutor’s remarks, because they minimized any potential mitigating evidence. The trial court overruled the d efense challenge, stating that juror No. 72 expressed her willingness to follow t he law and meaningfully evaluate the mitigating evidence. The trial court added, “I don’t
conclude that she has been taint ed. The jury will be given ins tructions regarding this topic on multiple occasions.” Additionally, the trial cou rt sustained objections to this line of questioning during voir dire. The trial court’ s mitigation-phaseS UPREME C OURT OF O HIO

38 instructions also cured any earlier misstatements. Dean , 146 Ohio St.3d 106, 2015- Ohio-4347, 54 N.E.3d 80, at ¶ 293. {¶ 142} Second, Ford argues that juror No. 72 demonstrated that she was unduly biased by stating, “I think that there are some very sic k individuals that can’t
be rehabilitated.” Ford adds that when counsel asked a follow- up question suggesting that juror No. 72 would not be open to mitigation, s he stated, “So what, is there a question there?” How ever, juror No. 72 stated that she would follow the law, would meaningfully consider mitigating evidence, and could impose a life
sentence. “The fact that the defense counsel was able to elici t somewhat contradictory viewpoints from [thi s juror] during his examinati on does not, in and of itself, render the court’s judgment erroneous.” State v. Scott , 26 Ohio St.3d 92, 98, 497 N.E.2d 55 (1986) “[D]eference must be paid to the tria l judge who sees and hears the juror.” Witt , 469 U.S. at 426, 105 S.Ct. 844, 83 L.Ed.2d 841. {¶ 143} Third, Ford argues that he was precluded from ascertaining juro r No. 72’s views about the death pena lty because he was not allow ed to ask whether
she believed in the notion that “if you take a life, you lose a life.” The trial court sustained an objection to such questioning, stating: “Well, the question is whether you could give meaningful consideration to any and all mitigati ng evidence.” Juror No. 72 replied that she could. {¶ 144} Crim.R. 24 and R.C. 2945.27 afford both the prosecution and defense the opportunity to conduct reasonable voir dire. Never theless, the scope of
voir dire falls within the trial court’s sound discretion and v aries depending on the circumstances of a given case. LaMar , 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 40. While restrictions on voir dire have gene rally been upheld, any limits on voir dire must be reasonable. Jackson , 107 Ohio St.3d 53, 2005-Ohio5981, 836 N.E.2d 1173, at ¶ 48. Moreover, we will not find pre judicial error in a trial court’s qualification of venirepersons as fair and impart ial jurors unless the
defendant can show a cle ar abuse of discretion. Id

.January Term, 2019

39 {¶ 145} The record belies Ford’s claim that the trial court unduly limi ted defense questioning about juror No. 72’s views about the death penalty. Defense counsel had earlier presented a hypothetical that mirrored the evidence in the
Schoberts’ murders. Juror No. 72 was then asked if that was “a case where [she] would think that it’s automatic for the death penalty?” She re sponded that it was not necessarily an automatic-death-penalty case, because “there may be mitigating circumstances that * * * sway that decision.” Thus, we conclud e that Ford fails to show that the trial court abused its discretion in sustaining t he state’s objection to defense counsel’s later ques tion about juror No. 72’s views. {¶ 146} Fourth, Ford invokes White v. Mitchell , 431 F.3d 517 (6th Cir.2005), in arguing that prospective juror No. 72’s contradic tory statements show
that she should have been excused for cause. Yet White is readily distinguishable. Despite cursory statements that she could follow the law, the j uror in White repeatedly expressed doubt as to whether she could follow the l aw and stated that
“she did not think it would be fai r to the defendant for her to sit on the jury.” Id. at 541. White presented a “particularly egreg ious situation in which an indi vidual desired to participate on a jury because she wanted to provide one of the twelve votes for death against a particular defendant.” Trimble v. Bobby , 804 F.3d 767, 779 (6th Cir.2015). The voir dire of prospective juror No. 72 in this case contains nothing comparable. {¶ 147} Ford also raises Wolfe v. Brigano , 232 F.3d 499 (6th Cir.2000), in arguing that the trial court erred by accepting the juror’s ten tative promises to try to be fair and impartial. In Wolfe , one juror had an ongoing business relationship with the victim’s parents, another juror and her husband were f riends with the victim’s parents whom they often visited, a third juror admitte d that she would have difficulty putting aside what she had gleaned from media report s in deciding the case, and the fourth juror doubted that he would require the st ate to prove its case beyond a reasonable doubt. Id . at 502-503. The trial court overruled defenseS UPREME C OURT OF O HIO

40 challenges for cause against these jurors. The United States C ourt of Appeals for the Sixth Circuit reversed, holdi ng that “it appear[ed] that th e trial judge based his findings of impartiality exclusively upon each juror’s tentativ e statements that they would try to decide this case on the evidence presented at tria l. Such statements, without more, are insufficient.” Id. at 503. {¶ 148} Unlike in Wolfe , the trial court here did not overrule a challenge for cause against juror No. 72 based only upon “tentative statement s” that she would try to be fair and impartial. J uror No. 72 assured the court t hat she would follow the law before concluding whether a death-penalty verdict shoul d be returned. She also knew little about the murders, and there is no evidence th at she knew the victims or their family. Wolfe is dissimilar to the present case. {¶ 149} Finally, Ford argues that this court should not find waiver—tha t he loses the right to challenge a juror not being removed when he had a peremptory challenge he could have used to remove a juror—because there wa s only one peremptory challenge that he did not use. He claims that if he had used that peremptory challenge to remove e ither juror No. 39 or No. 72, h e would still have been faced with one biased juror sitting on the case. But noth ing shows that these jurors were unduly biased. Moreover, we have invoked the waive r rule in other
cases in which defense counsel use d five of their six peremptor y challenges. See, e.g., State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2 864, ¶ 88. Thus, we also reject this claim here. {¶ 150} In conclusion, the trial court committed no plain error in over ruling the challenge for bias against juror No. 72. 3. Prospective Juror Nos. 25, 36, and 45 {¶ 151} Of the remaining challenged jurors, the defense excused prospective juror Nos. 25, 36, a nd 45 with peremptory challenge s. {¶ 152} Prospective juror No. 25 believe d that the death penalty “fits” for someone like Jeffrey Dahmer. However, prospective juror No. 25 stated that heJanuary Term, 2019

41 would not automatically vote for the death penalty and would fo llow the court’s instructions before deciding on a sentence. See State v. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 71. {¶ 153} Prospective juror No. 36 stated that the “circumstances of the crime should possibly dictate whether or not a death penalty sentence has occurred. For example, if it is a police officer, I think that’s automatic.” But prospective juror
No. 36 stated that he did not be lieve the death penalty was app ropriate in every case, he would follow the law, and he could impose a life sente nce. Ford also argues that the trial court erred in failing to excuse prospect ive juror No. 36 because his answers during voir dire showed that he lacked the capabili ty of doing the job as a juror. However, when “a prospective juror is being challe nged for bias, ‘[d]eference must be paid to the trial judge who sees and hears the juror.’ ” State
v. White , 82 Ohio St.3d 16, 20, 693 N.E.2d 772 (1998), quoting Witt , 469 U.S. at 426, 105 S.Ct. 844, 83 L.Ed.2d 841. {¶ 154} Prospective juror No. 45 believe d that the death penalty is “on e of the greatest deterrents to crime .” He added, “I believe if a m an is found guilty, and beyond a shadow of a doubt, that he committed that crime with t he intent to cause bodily harm or death, then the d eath penalty should be consider ed.” Under further questioning, prospective juror N o. 45 told the court that he wa s not in favor of the death penalty in every case and would follow the court’s instru ctions. Ford challenged prospective juror No. 45, arguing that he should be excused because he has a “proof problem” and “the only time that death is not goin g to be appropriate punishment for him is when there is a problem with the State’s case in chief.” The
trial court overrul ed the challenge. {¶ 155} Ford argues that prospective juror No. 45 should have been excu sed
because of his confusion about the burden of proof. However, p rospective juror
No. 45 later clarified that he e quated the term “beyond a shado w of a doubt” with “beyond a reasonable doubt.” But the trial court was able to s ee and hearS UPREME C OURT OF O HIO

42 prospective juror No. 45, Witt at 426, and therefore had “the benefit of observing [the juror’s] demeanor and body language,” Williams , 79 Ohio St.3d at 8, 679 N.E.2d 646. Nothing in the record suggests that the trial cour t acted unreasonably by believing this juror’s stateme nt that he would follow the in structions. {¶ 156} We hold that the trial court’s de nial of automatic-death-penalt y challenges of these prospectiv e jurors did not constitute plain error. 4. Prospective Juror Nos. 103, 106, and 134 {¶ 157} Ford objects to the trial court’s failure to excuse prospective juror Nos. 103, 106, and 134, because he says they were automatic-dea th-penalty jurors. However, Ford could not have suffered any prejudice, because th e jury was seated before any of them could have b een selected as members of the j ury. See Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 90. {¶ 158} Based on the foregoing, we rej ect proposition of law No. VI. E. Shackling {¶ 159} In proposition of law No. XV, Ford argues that the trial court erred
when it ordered that he be sh ackled without holding a hearing. {¶ 160} No one should be tried while shackled, absent unusual
circumstances. State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 219, citing Illinois v. Allen , 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The use of re straints tends to erode the p resumption of innocence that the justice system attaches to every defendant. State v. Franklin , 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 79. But it is w idely accepted that a prisoner may be shackled when there is a danger of violence o r escape. State v. Neyland , 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 82. Th e decision to require restraints is left to the sound discretion of the tr ial court, which is in a position to consider the defendant ’s actions both inside and ou tside the courtroom
as well as his demeanor wh ile the court is in session. Id

.January Term, 2019

43 1. Rulings on Restraints {¶ 161} The trial court ordered that Ford be restrained at all proceedi ngs because he had expressed a desire to hurt himself and in order to protect people in
the courtroom in the eve nt of a violent outburst. {¶ 162} In July 2013, Ford filed a pretrial motion requesting to appear at all proceedings without restraints. Later that month, the trial co urt overruled the motion, stating that Ford would be restrained at all proceeding s but would “appear
without visible restrain ts during his trial.” {¶ 163} After the trial court’s ruling on the motion to appear without restraints, Ford was placed on suicide watch at the jail. Dr. Byrnes, who examined Ford during a competency evaluation, sent a letter to the court in August stating
that Ford’s “incarceration has b een stressful. He has expresse d suicidal ideation and suicidal precautions have been implemented in the jail.” A t a pretrial hearing that month, Ford complained about being on suicide watch and fo rced to wear a padded gown. Defense counsel ac knowledged that Ford mentioned “jumping over the railing after court and things like that.” When asked abou t these comments, Ford told the trial court, “I really will end up doing it. Lik e, if I got to be in [the mental-health unit] for * * * the rest of this week, I am going to do it. Like, I don’t care any more.” {¶ 164} At a pretrial hearing in Novemb er 2013, the trial court stated that “at any point where Mr. Ford could be seen by any member of a j ury, he will be seen only in street clothes in accordance with the normal proce dures. There will be
restraints underneath those cloth es, again, consistent with nor mal procedures.” {¶ 165} Nearly one year later, in Oct ober 2014, the trial court filed a n updated ruling on Ford’s motion t o appear without restraints, s tating:S UPREME C OURT OF O HIO

44 This case involves the alleged brutal and violent attacks by
defendant on three different i ndividuals, two of whom died as a
result of the attacks. * * *
* * * Given the violent nature of the crimes and the defendant expressing a desire to harm himself, the court found that extra security measures wer e necessary in this case. * * *
* * * As indicated in its July 26, 2013 journal entry, the defendant will be restrained during the jury trial of this case but his r estraints will not be visible to the jury. The court finds that such res traints are necessary in part to preven t defendant from attempting suic ide in the courthouse but also to pro tect spectators and others in the event of a violent outburst by defendant.

2. Analysis {¶ 166} Ford argues that the trial court should have conducted an evidentiary hearing before ordering him placed in restraints. But a hearing on the necessity of restraints was not required. See State v. Wilks , 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 108; Franklin , 97 Ohio St.3d 1, 2002-Ohio5304, 776 N.E.2d 26, at ¶ 82. Moreove r, before the trial began , the trial court made findings that Ford’s threats to hurt himself and the violent na ture of the crimes were the basis for ordering restraints. {¶ 167} Ford objects that the trial court’s order was unsupported by testimony from jail personnel or statements from defense counse l that Ford was a suicide risk or danger to others. However, the trial court had observed Ford’s demeanor in court. Dr. Byrnes reported that Ford expressed “su icidal ideation” and that “suicidal precautions [had] been implemented in the jail.” Defense counsel also acknowledged that Ford had m ade suicidal comments to them, and Ford toldJanuary Term, 2019

45 the court that he meant those remarks. Thus, there was adequat e information before the court to support its ruling. See Neyland , 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 96. {¶ 168} Ford cites Neyland at ¶ 105 in arguing that the trial court should
have considered lesser alternatives to the use of restraints. In Neyland , we held that
the trial court should have cons idered whether there were lesse r alternatives to the use of leg restraints to provide adequate courtroom security. Id . But we rejected the claim of improper shackling, stating:

[T]he trial court used restraints that were not visible to the jury rather than shackles or other visible types of restraints. Even thoug h the record is unclear, it appears that the trial court considered t he presence of deputies and the use of leg restraints as the least form of restraint necessary to en sure courtroom security.

(Emphasis sic.) Id . at ¶ 105. {¶ 169} Here, the trial court stated, “Given the violent nature of the crimes and the defendant expressing a desire to harm himself, the court found that extra security measures were necessary in this case.” (Emphasis added.) This implies
that the trial court did consider lesser measures before orderi ng restraints. Even assuming that the trial court did not consider lesser measures, nothing in the record shows that the jurors saw For d in restraints, so Ford suffered no prejudice. {¶ 170} Ford contends that it is not appa rent from the record what kind of restraints he was wearing during the trial. Although the exact type of restraints were not identified, the trial court’s statements indicated tha t Ford would wear restraints underneath his clothing that were not visible to the jury. Nothing in the record shows that the jury ever observed Ford in restraints. T hus, we conclude thatS UPREME C OURT OF O HIO

46 he was not prejudiced. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 108. {¶ 171} Finally, Ford argues that it is unclear whether restraints limi ted his ability to interact with counsel during trial. However, the de fense never asserted that restraints interfered with the attorney-client relationshi p. He has thus forfeited all but plain error. Id . at ¶ 106. Both of Ford’s hands were free throughout trial. Ford also does not complain that the restraints interfered with his ability to follow the proceedings and interact with counsel. See id . at ¶ 107. Accordingly, we conclude that no plain error occurred. {¶ 172} Based on the foregoing, we rej ect proposition of law No. XV. F. Admissibility of Defendant’s Statements to the Police {¶ 173} In proposition of law No. I, Ford argues that he was not proper ly advised of his rights in accordance with Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that his statements were invol untary because of police coercion and the use of an informant to obtain them. He also argues that police testimony about informati on obtained from an informant v iolated his Sixth Amendment right to confrontation and Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). 1. Factual Background {¶ 174} Before trial, Ford moved to suppr ess three statements that he m ade to the police on April 2, 3, and 4, 2013. 4 At the suppression hearing, Detectives Morrison and Hitchings testified that they conducted videotaped interviews of Ford, and all three recordings were played during the hearing. At the completion of the hearing, the trial cour t denied Ford’s motion to suppres s.

4. Ford was also interviewed about Chelsea’s attack. Ford was not advised of his Miranda rights before that interview because there was no indication at that t ime that Ford was involved in her assault. Ford does not challenge the voluntariness of those st atements or the failure to read him his Miranda rights as to that interview.January Term, 2019

47 a. April 2 interview {¶ 175} On April 2, 2013, Ford was interviewed at the Akron police department after the Schobert mur ders. Before questioning bega n, Morrison orally
advised Ford of his Miranda rights as written on a pre-in terview card, stating:

You have the right to remain s ilent. Do you understand that? Anything you say can and will be used against you in a court of law. Do you understand that? You have the right to talk to a lawyer and have him or her present with you while you are being questioned

. Do you understand that? If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if yo u wish. Do you understand that? You can decide anytime to exerc ise these rights and not answer any questions or make any statement s. Do you understand that?

Ford indicated that he unders tood each of these rights. {¶ 176} During the interview, Ford denied committing the murders. He
stated that he had not been to t he Schoberts’ house for two wee ks. b. April 3 interview {¶ 177} On April 3, Hitchings was informed that Ford had given Beech, a fellow inmate, information about the whereabouts of evidence re lated to the murders. Based on that information, the police found Jeffrey’s car on an Akron street and gloves, a knife, and ot her evidence in a nearby stor m drain. {¶ 178} Later that day, Hitchings and Morrison talked to Ford at the Po rtage County jail. Ford was in jail on a warrant for lying about Che lsea’s assault.
Morrison advised Ford of his Miranda rights in the same manner as he had on the previous day. Once again, Ford i ndicated that he understood ea ch of these rights.S UPREME C OURT OF O HIO

48 {¶ 179} At the start of the interview, Morrison told Ford that they fou nd the stolen car, that they had searched the sewers and found the glo ves, and that they had his shoes with everybody’s blood on them. Ford replied tha t he did not kill anybody. Morrison told Ford that they already knew that Chelse a’s blood and the
Schoberts’ blood were on his shoe s. Morrison added, “It’s amaz ing when you know people at BCI how fast you can get this * * * tested.” {¶ 180} As Ford continued to deny the murders, Morrison said, “I was ki nd of hoping we could come here and get you ahead of the ball beca use right now the question is gonna come up very shortly, when they ask us how co operative was he. Because when we go to grand jury, it’s gonna be a decision on a gg. murders or death penalties.” {¶ 181} The police also told Ford that his conversations with Beech abo ut the details of the murder had been videotaped. Morrison added that nothing the police were telling him was a lie. Ford denied that he told Be ech that he committed
the murders. Morrison then sai d, “You’re looking at automatic death penalty.” {¶ 182} Ford repeated that he did not kill the Schoberts. Morrison the n said that they found his DNA on the latex gloves in the sewer. Ford said, “[T]his is life in jail.” Morrison responded, “You need to quit looking at it like there’s no possibility for you here. Because the possibility is here for you but it’s not gonna be there if you sit here and lie.” Hitchings then discussed th e different life sentences
for murder. {¶ 183} After more than 20 more minutes elapsed, Ford told Morrison tha t he broke into the Schoberts’ home with Zachary and Malik. He s aid that Zachary killed them both. He also stated that Zachary had had Jeffrey’ s cell phone and used it to text Margaret. The text messages were used to gauge what time Margaret
would return home.January Term, 2019

49 c. April 4 interview {¶ 184} On April 4, the police reinterviewed Ford at the Portage County jail. Hitchings advised Ford of his Miranda rights in the same manner that Ford had been advised on the previous occasions. But Hitchings adde d, “Having those rights in mind that I’ve explained to you, do you wish to talk to us now?” Ford waived his rights and agreed to be interviewed. {¶ 185} During this interview, For d admitted killing the Schoberts. 2. Analysis a. Sufficiency of Miranda warnings {¶ 186} A suspect in police custody “must be warned prior to any questioning that he has the right to remain silent, that anythi ng he says can be used against him in a court of law, that he has the right to the pre sence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda , 384 U.S. at 479, 86 S.Ct. 1602, 16 L.Ed.2d
694. {¶ 187} A suspect may then knowingly and int elligently waive these righ ts and agree to make a statement. Id . In the context of Miranda , the United States Supreme Court has explained t he two aspects of waiver:

First, the relinquishment of the right must have been voluntary in the sense that it was the produc t of a free and deliberate choi ce rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an unc oerced choice and the requisit e level of comprehension may a c ourt properly conclude that the
Miranda rights have been waived.S UPREME C OURT OF O HIO

50 Moran v. Burbine , 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), quoting Fare v. Michael C ., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). {¶ 188} Ford argues that the police never secured a valid waiver of his
Miranda rights, because they did not specifically ask him whether he wanted to waive his rights and speak to them before the interrogation beg an. However, a
Miranda waiver need not be expressly made in order to be valid. North Carolina
v. Butler , 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). A c ourt may infer a waiver from a suspect’s behavior, viewed in light of th e surrounding
circumstances. See State v. Murphy , 91 Ohio St.3d 516, 518, 747 N.E.2d 765 (2001). {¶ 189} During the three days that he was questioned, Ford’s videotaped
statements show that he was alert and sober when he was advised of his rights. He did not ask for a further explana tion or protest that he did no t understand his rights. He demonstrated his ability to express his thoughts and recall his actions. We are not persuaded that police used coercive tactics to obtain the w aiver. See id. at 519. Finally, Ford’s argument does not apply to his third interview, because he was specifically asked whether he wanted to talk to the police afte r being advised of his rights. {¶ 190} Although not raised at the suppression hearing, the record show s that Ford’s IQ scores are low. However, deficient intelligence is but one factor in the totality of the circumstances that must be considered in de termining the
voluntariness of a confession. Wh ile a defendant’s mental cond ition is a significant factor in the voluntariness calculus, it “does not justify a co nclusion that a defendant’s mental condition, by itself and apart from its rela tion to official coercion, should ever dispose of the inquiry into constitutiona l ‘voluntariness.’ ”
Colorado v. Connelly , 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).January Term, 2019

51 {¶ 191} We conclude that Ford was capable of voluntarily waiving his rights despite his low intelligence. See State v. Lynch, 98 Ohio St.3d 514, 2003- Ohio-2284, 787 N.E .2d 1185, ¶ 56 (voluntary confession from an accused with an IQ score of 72 and no records of a major mental disorder); State v. Bays , 87 Ohio St.3d 15, 23, 716 N.E.2d 1126 (1999) (voluntary confession from an accused with an IQ score of 71, but who had done well in school and finished the tenth grade); State v. Dailey , 53 Ohio St.3d 88, 91-92, 559 N.E.2d 459 (1990) (voluntary confession from an 18-year-old a ccused with an IQ score of 71). {¶ 192} Based upon the totality of the cir cumstances, we hold that Ford validly waived his Miranda rights.
b. Voluntariness {¶ 193} Ford argues that his police stat ements were involuntary because of police coercion and the use of a n informant to obtain them. (1) Police coercion {¶ 194} If a defendant challenges a confession as involuntary, the stat e must prove a knowing, intelligent, and voluntary waiver by a prepond erance of evidence.
See Miranda , 384 U.S. at 475 , 86 S.Ct. 1602, 16 L.Ed.2d 694; Connelly , 479 U.S. at 168-169, 107 S.Ct. 515, 93 L.Ed.2d 473. Voluntariness of a confession is determined by “the totality of t he circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity , and frequency of interrogation; the existence of physical deprivation or mistrea tment; and the
existence of threat or inducement.” State v. Edwards , 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, death penalty vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). However, a waiver will not be deemed to be involuntary “ unless there is evidence of police coercion, such as physical abuse, threats, or deprivation of food, medica l treatment, or sleep.” (Emphasis sic.) State v. Wesson , 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 35.S UPREME C OURT OF O HIO

52 {¶ 195} First, Ford argues that his st atements were involuntarily obtai ned
because the detectives lied to him about the evidence. The det ectives did mislead Ford by telling him that BCI had tested the evidence and identi fied his DNA on the shoes and gloves and that his conversations with Beech had been recorded. {¶ 196} The tactic of lying to a suspect about the evidence is not in i tself
sufficient to render a confession involuntary. See Frazier v. Cupp , 394 U.S. 731, 737-739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) (false statement that a codefendant
had confessed did not make st atement involuntary); Ledbetter v. Edwards , 35 F.3d 1062, 1066, 1070 (6th Cir.1994) (false statements that defendan t’s fingerprints had
been found at crime scene and that the victim and two witnesses had identified him did not render confession involuntary); Bays , 87 Ohio St.3d at 22-23, 716 N.E.2d 1126 (misleading defendant about t he strength of the evidence a gainst him did not make confession involuntary). How ever, the fact that the detec tives misrepresented the evidence is a relevant factor in evaluating whether the tot ality of the
circumstances renders th e confession involuntary. Frazier at 739. {¶ 197} Second, Ford contends that the de tectives coerced his confessio n by telling him that they would be asked to comment on Ford’s co operativeness when the case was presented to the grand jury, because it would be a factor in deciding whether to charge him w ith aggravated murder or the de ath penalty. {¶ 198} “Officers may discuss the advantages of telling the truth, advi se suspects that cooperation will be c onsidered, or even suggest t hat a court may be
lenient with a truthful defendant.” State v. Belton , 149 Ohio St.3d 165, 2016-Ohio1581, 74 N.E.3d 319, ¶ 111, citing Edwards , 49 Ohio St.2d at 41, 358 N.E.2d 1051. And “[a]dmonitions to tell the truth are considered to be neith er threats nor promises.” State v. Loza , 71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994); see also
State v. Dixon , 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 29. Finally, it is not unduly coercive for a law-enforcement office r to mention potential punishments. See State v. Western, 2015-Ohio-627, 29 N.E.3d 245, ¶ 38 (2d Dist.);January Term, 2019

53 compare State v. Robinson , 9th Dist. Summit No. 16766, 1995 WL 9424, *4 (“While a correct statement of th e law may not render a confess ion involuntary, a misstatement of the law may cause such a confession to be invol untary”). {¶ 199} Here, contrary to Ford’s claims, the detectives did not promise leniency if he confessed or threaten death if he did not. Inst ead, detectives presented him with the opportunity to clarify the facts of the case, so that the prosecutor could better determine whether an aggravated-murder charge was

proper. See Western at ¶ 42 and 46. Moreover, detectives did not misstate the law in telling him that the death penalty was a potential punishmen t for the murders. See Bays , 87 Ohio St.3d at 23, 716 N.E.2d 1126. {¶ 200} Third, Ford complains that police told him that the possibility of a
lesser sentence was available for him but not if he continued t o lie to them. Hitchings was admonishing For d simply to tell the truth, and su ch comments were not unduly coercive. See State v. Cooey , 46 Ohio St.3d 20, 28, 544 N.E.2d 895 (1989); State v. Knight , 2d Dist. Clark No. 04-CA-35, 2008-Ohio-4926, ¶ 111 (officer’s assertion to a suspect t hat he or she is lying or th at the suspect would not
have another chance to tell his or her side of the story does n ot automatically render a confession involuntary). {¶ 201} Fourth, Ford complains that offi cers told him that he was looki ng at an “automatic” death penalty. Under R.C. 2929.03(D)(2) and (3), the death penalty is never automatic. See generally Woodson v. North Carolina , 428 U.S. 280, 301, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). A brief refere nce to the death penalty does not, by itself, re nder a subsequent confession inv oluntary when the statement merely illustrates the seriousness of the crime and t he defendant’s will
was not overborne as a re sult of the statement. State v. Garner , 260 Neb. 41, 50, 614 N.W.2d 319 (2000). The Supreme Court of California has hel d that “[a] constitutional violation arises ‘only where the confession resu lts directly from the threat [capital] punishment will be imposed if the suspect is u ncooperative, coupledS UPREME C OURT OF O HIO

54 with a “promise [of] leniency in exchange for the suspect’s coo peration.” ’ ” (Emphasis added and brackets sic.) People v. Winbush , 2 Cal.5th 402, 453, 213 Cal.Rptr.3d 1, 387 P.3d 1187 (2017), quoting People v. Holloway, 33 Cal.4th 96, 116, 14 Cal.Rptr.3d 212, 91 P.3d 164 (2004), quoting People v. Ray , 13 Cal.4th 313, 340, 52 Cal.Rptr.2d 296, 914 P.2d 846 (1996). {¶ 202} After reviewing the video of Ford’s interview, we are not persu aded that the detectives’ references to the death penalty were threa ts or that their remarks resulted in Ford’s will being ove rborne. First, Ford continued to deny the murders after the “automatic death penalty” comment. The video shows t hat other officers consistently encouraged Ford to t ell the truth and to be truthf ul about his involvement or any details he kne w about the murders. Ford res ponded, “This is life in jail,” and later added, “[M]urder ain’t no way around i t, that’s life regardless.” In other words, For d expressed concern about life sentences and not the death penalty. Thus, we hold that the “automatic death pen alty” comment did not render Ford’s subseque nt confession involuntary. {¶ 203} As a final matter, Ford cites various cases to show that his statements were involuntary. How ever, these cases are readily distinguishable. See Haynes v. Washington , 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (suspect told he would be allowed to call his wife only if he c ooperated and gave the police a statement); Mincey v. Arizona , 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (suspect questioned wh ile in intensive-care unit, en cumbered by tubes, needles, and breathing apparatus); Lynumn v. Illinois , 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (suspect threa tened with the removal of st ate financial aid
and of her children if s he did not cooperate); United States v. Tingle , 658 F.2d 1332 (9th Cir.1981) (suspect coerced into confessing by threats that she would not see her child for a long time if she did not cooperate); Williams v. Brewer , 509 F.2d 227 (8th Cir.1974) (telling defendant of need to locate victim’ s body and give her a Christian burial, after defendant’s attorney told law enforce ment defendant shouldJanuary Term, 2019

55 not be questioned while he was being transported, violated righ t to counsel and rendered statements involuntary), aff’d , 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). {¶ 204} Based on the totality of the circumstances, we conclude that Fo rd’s police statements were voluntarily made. (2) Ford’s statements to jailhouse informant {¶ 205} Ford argues that his statements were involuntary because they w ere coerced through the use of a government informant. {¶ 206} Ford and Beech were housed in the Portage County jail together. Beech was described as a “freque nt visitor” in jail and was the re on a burglary charge. Lt. Gregory Johnson, a Portage County Deputy Sheriff, testified that he was informed by a corrections officer on April 3 that Beech wan ted to talk to him. Johnson testified that Beech told him, “There is an inmate I am housed with that’s been talking to me, and I think he was involved in a murder.” Beech then provided
information that linked For d to the Schobert murders. {¶ 207} Prior to speaking to Beech, Johnson testified that he had no
information about Ford other than what he read in the Akron Beacon Journal. He stated that Beech had not been asked to provide information abo ut Ford. After providing the information, Beech indicated to Johnson that “he would appreciate if [Johnson] could make sure that t he Court knew of his * * * coop eration, that he had
come forward on his own.” Johnson told Beech that he could not make any promises to him other than making sure that the prosecution and his attorney knew
about his assistance. Johnson added that Beech had never been a source of
information about other cases. {¶ 208} Hitchings testified that detectives never called any officials in Portage County about Ford or the Schobert murder case before be ing informed
about Beech’s information. He added that he was not aware of a ny promises or
inducements to obtain Beech’s a ssistance. Beech did not testif y at trial.S UPREME C OURT OF O HIO

56 {¶ 209} In Connelly , 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473, the Supreme Court addressed the constitutional voluntariness of a s tatement made under circumstances not requiring Miranda warnings. The court held that coercive police activity is a necessary predicate to the finding that a statement is not “voluntary” within the meaning of the due-process clause. Id . at 167. Thus, the voluntariness analysis must focus on the crucial element of pol ice overreaching. See People v. Manning , 182 Ill.2d 193, 208, 695 N.E.2d 423 (1998). {¶ 210} Nothing in the record shows that Beech was acting as a state ag ent when talking to Ford. Indeed, during the suppression hearing, defense counsel acknowledged that they had no information showing that Beech wa s an agent. And although Beech may have been seek ing more lenient treatment in his own case, he requested these favors only after repeating Ford’s statements to the police. See Bell
v. Bell , 512 F.3d 223, 233-234 (6th Cir.2008) (fact that an informant desired favorable treatment in return for his testimony does not, stand ing alone, demonstrate the existence of an implied agreement). There is n o evidence of police overreaching. {¶ 211} We also reject Ford’s claim that Arizona v. Fulminante , 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), shows that his sta tements to Beech were involuntary. In Fulminante , the state used an inmate, who was a paid FBI informant, to elicit a confession from the defendant that was u sed to convict him.
Id . at 283. On appeal, the Arizona Supreme Court had held that F ulminante’s
confession was coerced. Id . at 284. The United States Supreme Court agreed with
this conclusion. Id. at 287. Unlike in Fulminante , however, Beech was not acting as a state agent when talking to Ford. Accordingly, we hold th at Ford’s statements to Beech were voluntary. c. Confrontation Clause {¶ 212} Ford argues that the trial court erred in permitting Hitchings to testify about Johnson’s conversa tion with Beech, because it was inadmissibleJanuary Term, 2019

57 hearsay and violated his Sixth Amendment right to confrontation . However, Ford failed to object to Hitchings’s testimony at trial and thus has forfeited all but plain

error. {¶ 213} Ford complains about the following segment of Hitchings’s testimony:

[HITCHINGS]: We received a phone call from Lieutenant Greg Johnson from the Portage County Sheriff’s Office. He is i n charge of their Detective Bureau. [MR. LOPRINZI (prosecutor)]: All right. And in regards to him calling, what was it th at he was calling about? [HITCHINGS]: I mean, he had called and relayed some information to us. And as a result of some information, we end ed up checking some areas in Akron, and we ended up locating a—our
stolen vehicle.

{¶ 214} Ford invokes Crawford , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, in arguing that this testimo ny violated the Confrontation Clause, found in the
Sixth Amendment to the United States Constitution. In Crawford, the Supreme Court held that the admission of testimonial statements made by a witness who did not appear at trial violates the Confrontation Clause, unless t he witness “was unavailable to testify, and the defendant had had a prior opportunity for crossexamination.” Id . at 53-54. Only testimonial hea rsay implicates the Confrontat ion
Clause. See id. at 59, fn. 9; State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio5735, 70 N.E.3d 508, ¶ 186. {¶ 215} Hitchings’s testimony was not hearsay because he was explaining the next investigative step in the case. Testimony offered to explain police conduct is admissible as nonhearsay if it satisfies three criteria: (1 ) “the conduct to beS UPREME C OURT OF O HIO

58 explained [is] relevant, equivo cal, and contemporaneous with th e statements,” (2) the probative value of the statements is no t substantially outw eighed by the danger of undue prejudice, and (3) “the statements cannot connect the accused with the crimes charged.” State v. Ricks , 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 27. Hitchings’s testimony m et these criteria. The tes timony was relevant in explaining the next investigative step in the search for Jef frey’s vehicle, it did not connect Ford with the crimes, and it was not unduly prejudi cial. Accordingly, Hitchings’s testimony did not implicate Ford’s confrontation ri ghts or violate Crawford . We hold that no plain error occurred. {¶ 216} Based on the foregoing, we rej ect proposition of law No. I. G. Impeachment of Heather Greathouse {¶ 217} In proposition of law No. X, Ford argues that the state imprope rly impeached Heather Greathouse with her prior recorded statement and improperly played that statement for the jury’s consideration. 1. Factual Background {¶ 218} Heather testified that in early April 2013, Ford was living wit h her in Akron. Heather did “not really” talk to Ford about Chelsea’ s assault, and he never indicated any involvement in causing her injuries. Heath er did not remember Ford being home on the evening of April 1, but she said Ford ca me home the next day. Heather indicated that she did “not really” talk to Ford that day and said that
Ford never talked to her about w hat happened to t he Schoberts. {¶ 219} Heather acknowledged giving a statement to detectives in April
2013 and said it was truthful when she made it. But she did no t remember whether she talked to Ford about the Schoberts before making her statem ent. The prosecutor
then asked the follo wing questions:

[MR. LOPRINZI (prosecutor)]: Do you remember reviewing your interview las t night from back in April?January Term, 2019

59 [HEATHER]: Yes. [LOPRINZI]: Okay. And do you recall telling the detectives that you had a conversation with M r. Ford about the Schoberts? [HEATHER]: Yes. [LOPRINZI]: All right. What conversation did you have
with * * * Mr. Ford about the Schobe rts back in—prior to their
death? [HEATHER]: I have no clue.

{¶ 220} Outside the jury’s presence, the prosecutor stated his intentio n to impeach Heather, because he was “surprised” and “[i]t is a mate rial issue in the case.” The prosecutor told the court that Heather informed det ectives that “she had
a conversation with Mr. Ford in which he had talked about killi ng [Chelsea’s] parents ever since Chelsea was injured because they were starti ng to piece things together.” The prosecutor added that detectives had talked to Heather the previous day and played her recorded inter view to her and that she recal led what she said in
her statement. Defense counsel objected, stating that Heather’ s lack of memory was not grounds for turning her into a hostile witness. The tr ial court overruled that objection. {¶ 221} While still outside the jury’s presence, defense counsel object ed that the prosecutors played the recorded interview in the court room where it was plainly audible to everyone. The defense stated that “it was u nquestionably heard by Ms. Greathouse” and “this witness has now been irreparably t ainted by having an opportunity to hear * * * a significant segment of her inter view.” The defense argued that she was now an incompetent witness. The prosecutor responded that
Heather had listened to the record ing the previous night and it did not matter if she heard it again. Moreover, the prosecutor did not think Heather heard the recordingS UPREME C OURT OF O HIO

60 when it was played in court, because “I couldn’t hear it myself .” The trial court overruled the defense objection. {¶ 222} The prosecutor told the court that he was amenable to trying to refresh Heather’s recollection before proceeding to impeach her . But defense counsel objected that the prosecu tor had improperly refreshed h er recollection outside the presence of counsel a nd the court. Heather told th e court that she heard only “bits and pieces” of the recording that was played in the courtroom and that what she heard did not refresh her memory. {¶ 223} Over defense objection, the stat e proceeded to impeach Heather by playing a portion of her videotaped interview with Hitchings fo r the jury. After the video was played, Heather said that she had not remembered what Ford told her about the Schoberts, because “[h er] memory stinks.” However, H eather stated that her recollection might be refres hed as to her conversation with Ford about Chelsea. Over defense objection and outside the jury’s presence, Heather watched a segment of her videotaped interview to refresh her recollection. {¶ 224} When questioning resumed before the jury, Heather testified tha t her memory had been refreshed about her conversation with Ford about Chelsea. She testified that Ford told her he stabbed Chelsea, hit her in the head with a brick, and would have killed her if Zachary had not intervened. Heath er also testified that Ford told her that he was going to “hit a lick” and she told hi m “not to go kill them people.” She said Ford was not home on the evening of April 1, but she saw him around noon the next day. She also identified the bloody pants that Ford “wore the night that he went and killed the Schoberts” and testified that she told her boyfriend
to burn them. Heather added that Fo rd returned with two rings and some money. 2. Analysis {¶ 225} Ford argues that the trial court erred by allowing the prosecut or to impeach Heather by playing her vi deotaped interview before the jury.January Term, 2019

61 {¶ 226} Under Evid.R. 607(A), “[t]he cre dibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.” {¶ 227} Playing Heather’s videotaped stat ement before the jury violated Evid.R. 607(A). First, the stat e used a statement that did not contradict her in-court testimony. Second, Heather did not cause affirmative damage by testifying “I have
no clue” when asked about Ford’s statement. Her response was n eutral and provided no basis for impeachment. See State v. Keenan , 66 Ohio St.3d 402, 412, 613 N.E.2d 203 (1993); State v. Hubbard , 150 Ohio App.3d 623, 2002-Ohio-6904, 782 N.E.2d 674, ¶ 13 (7th Dist.) (“in determining affirmative d amage, a response of ‘I don’t recall,’ which is a neutral response, is not enough for damage. * * * Instead, the statement must be c ontradictory or harm[ ] the sta te’s trial position”). {¶ 228} Furthermore, even if it had been proper for the state to impeac h Heather’s testimony, a prior inconsistent statement is admissib le under Evid.R. 607 only to impeach the declarant and not as substantive evidence o ffered to prove the
truth of the matter asserted. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 128; State v. Dick , 27 Ohio St.2d 162, 165, 271 N.E.2d 797 (1971). There was no other basis for pres enting Heather’s videotaped in terview because it was otherwise objectionable hearsay. Accordingly, we conclude that Heather’s videotaped interview was imprope rly presented for the jury’s co nsideration. {¶ 229} We now turn to whether Heather’s videotaped interview was properly presented to refresh her recollection under Evid.R. 61 2. {¶ 230} Under the doctrine of present recollection refreshed, “the witn ess looks at the memorandum to refresh his memory of the events, bu t then proceeds to testify upon the basis of his present independent knowledge. ” State v. Scott , 31 Ohio St.2d 1, 5-6, 285 N.E.2d 344 (1972). The testimony of the witness whose recollection has been refreshed is the evidence, not the conten ts of the writing. SeeS UPREME C OURT OF O HIO

62 1 Giannelli, Evidence, Section 612.3, at 578 (3d Ed.2010). Thus, “ ‘a party may not read the statement aloud, ha ve the witness read it aloud, o r otherwise place it before the jury.’ ” State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 57, quoting State v. Ballew , 76 Ohio St.3d 244, 254, 667 N.E.2d 369 (1996). {¶ 231} The state could have refresh ed Heather’s recollection under Evid.R. 612 by showing her the vi deotaped interview outside the jury’s presence. However, the prosecution did not present Heather’s refreshed re collection testimony until after the videotaped interview had been improperly played in open court. Under Evid.R. 612, the party calling a witness may not present the matter used to refresh memory to be admitted as evidence unless that m atter qualifies as independent evidence admissible under the hearsay rule. 1 Brou n et al., McCormick
on Evidence , Section 9, at 56 (7th Ed.2013). W e hold that the trial court abused its discretion by allowing the pros ecutor to present Heather’s refr eshed recollection testimony because a portion of the recording used to refresh He ather’s memory was previously presented to the jury. 3. Harmless Error Beyond a Reasonable Doubt {¶ 232} Ford argues that the improper admission of Heather’s videotaped interview resulted in prejudice during both phases of the trial . The state responds that any error was harmless beyond a reasonable doubt. {¶ 233} To determine whether an alleged error affected the substantial rights of the defendant and requires a new trial, “[t]he review ing court must ascertain (1) whether the defendant was prejudiced by the error , i.e., whether the error had an impact on the verdict, (2) whether the error was n ot harmless beyond a reasonable doubt, and (3) whet her, after the prejudicial erro r is excised, the remaining evidence establishes the defendant’s guilt beyond a r easonable doubt.”
State v. Arnold , 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 50.January Term, 2019

63 {¶ 234} We conclude beyond a reasonable doubt that Ford was not prejudiced by Heather’s videotaped interview or her subsequent refreshed testimony and that the erroneous admission of that evidence had no impact on the verdict. The remaining evidence admitted at trial established Ford’s guilt beyond any reasonable doubt. Most notably, DNA evidence linked him to the murders and he confessed to police th at he was the killer. {¶ 235} Based on the foregoing, we r eject proposition of law No. X. H. Gruesome Photographs {¶ 236} In proposition of law No. XI, For d argues that the trial court erred in admitting gruesome crime-scen e and autopsy photographs. {¶ 237} A gruesome photograph is admissibl e only if its “ ‘probative va lue * * * outweigh[s] the danger of pre judice to the defendant.’ ” (Ellipsis and brackets sic.) Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 96, quoting State v. Morales , 32 Ohio St.3d 252, 258, 513 N.E.2d 267 (1987). Moreover, even a photo that satis fies the balancing test is ina dmissible if it is repetitive or cumulative. Id.; see State v. Thompson , 33 Ohio St.3d 1, 9, 514 N.E.2d 407 (1987). A trial court’s deci sion that a photo satisfies th e standard is reviewable only for abuse of discretion. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio3193, 790 N.E.2d 303, ¶ 69.
1. Crime-Scene Photos {¶ 238} Ford complains about two exhibits presented during Gerring’s testimony about discovering the bodies at the Schoberts’ reside nce. State’s exhibit No. 80 depicts a view of Margaret’s body on the floor. State’s exhibit No. 84 shows Jeffrey’s body and the sledgehammer on the bed with Margaret’s body on the floor next to the bed. Jeffrey’s injuries cannot be seen but Margare t’s head injuries are visible. These photos show the position of the bodies and the murder weapon when
the bodies were found. See State v. Gapen , 104 Ohio St.3d 358, 2004-Ohio-6548,S UPREME C OURT OF O HIO

64 819 N.E.2d 1047, ¶ 85. Under these circumstances, we find no a buse of discretion in the admission of these photos. {¶ 239} Ford also argues that the trial court erred in admitting five gruesome photographs of Margaret’s body. State’s exhibit No. 8 2 shows Margaret’s body next to the dresser, but her head injuries are not prominently depicted. State’s exhibit Nos. 91 and 124 show her outstretche d arm near the bloodspattered dresser. Blood is visible next to the body, but thes e photos are not

gruesome. See State v. Smith , 80 Ohio St.3d 89, 108, 684 N.E.2d 668 (1997) (photographs of bloodstains are generally not gruesome). Each photo was also
relevant to show the direction of the blows causing the blood s patter. State’s exhibit Nos. 93 and 97 are gruesome photos showing Margaret’s head inju ries. But we conclude that each photo was hig hly “probative of [the defendan t’s] intent and the manner and circumstances of the victims’ deaths” and that the p robative value of each outweighed the danger of unfair prejudice. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 134. {¶ 240} Finally, Ford argues that the trial court erred in admitting ei ght gruesome photographs of Jeffrey’s body. State’s exhibit No. 10 6 shows Jeffrey’s body on the bed, next to the end table and the blood-spattered dresser, and state’s exhibit No. 112 is a closer photo of the top half of his body. These photos, although gruesome, illustrate the testimony of the BCI analyst who proce ssed the crime

scene. See Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 98-99. {¶ 241} State’s exhibit Nos. 98 and 99 show Jeffrey’s body next to the sledgehammer. These photographs are not particularly gruesome and were relevant in showing the location of the murder weapon. See Trimble at ¶ 135. State’s exhibit Nos. 113, 115, 125, and 138 show different views of Jeffrey’s b loody wrist and arms and close-up views of the s ledgehammer. These photographs are somewhat cumulative but they are not gruesome. The mere fact that there are numerousJanuary Term, 2019

65 photographs does not result in prejudicial error, absent grueso meness or shock
value. State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 232. {¶ 242} Ford argues that the risk of undue prejudice was especially gre at because one news reporter became ill during the presentation of photographs during the state’s opening statement. The trial court noted that “[w] e have learned * * * that she was otherwise ill even beyond the photographs. The ph otographs may have contributed, but she came to c ourt not feeling well and suffere d some kind of a consequence.” Moreover, nothing shows that any of the jurors b ecame ill or were unduly affected by seeing these photos. {¶ 243} Ford cites Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 97-100, in arguing that too many photographs of the victims were
admitted. In Mammone , the state presented two crime-scene photographs, showing a single photo of each child victim murdered in their car seats

. Id . at ¶ 97. Over defense objection, the trial court admitted both photos. Id . We have “strongly caution[ed] judicious use” of gru esome photographs in capital c ases. Morales , 32 Ohio St.3d at 259, 513 N.E.2d 267. {¶ 244} The circumstances surrounding the Schoberts’ murders are horrifying. We conclude that th e trial court did not abuse its discretion by admitting the crime-scene photographs depicting the Schoberts. The proba tive value of the photographs outweighed the danger of prejudice. 2. Margaret’s Autopsy Photos {¶ 245} Ford argues that the trial court erred by admitting 14 autopsy photographs of Margar et. As an in itial matter, F ord objects to state’s exhibit Nos. 3 through 10 and 13. During trial, the defense stated that it had no objection to any of these exhibits, and hence Ford can complain only of plain er ror. See Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 151; Gapen , 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, at ¶ 83.S UPREME C OURT OF O HIO

66 {¶ 246} State’s exhibit No. 3 is a nongruesome photograph showing a contusion on Margaret’s shoulder and other injuries to her neck . State’s exhibit Nos. 4 through 9 depict different views of the injuries to Marg aret’s head after the blood was removed. Although these photographs are gruesome, ea ch of them supported Dr. Dean’s testimony and provided a different perspec tive of the victim’s
wounds. See State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 142. State’s exhibit No. 10 is another nongruesome photo sho wing a wound above Margaret’s left ear. Sta te’s exhibit No. 13 shows two sc ratches on a finger, which was actually Jeffrey’s. This photo is also not gruesome. No plain error resulted from the admission of any of these photos. {¶ 247} State’s exhibit No. 17 shows Margaret’s body as she arrived at the medical examiner’s office and shows injuries to the right side of her head. State’s exhibit No. 18 shows a massive skull fracture, and state’s exhi bit No. 19 depicts injuries to her jaw and severe d ental injuries. The number and location of the injuries were all probative evidence of a purpose to cause deat h. Each photo also supported and illustrated Dr. D ean’s testimony about Margaret’s wounds and the
cause of her death. See Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 102. {¶ 248} Ford argues, mistakenly, that state’s exhibit Nos. 22 and 24 ar e gruesome photos depicting Margar et’s battered head before her b ody was cleaned. These are photos of Jeffrey. Their admissibility will be discu ssed as it pertains to his autopsy photos. {¶ 249} Finally, Ford argues that more autopsy photographs were admitte d
than in Mammone . But nothing in Mammone limits the number of noncumulative autopsy photographs that can be a dmitted if they are otherwise admissible. {¶ 250} In summary, we find no plain error in the admission of the auto psy photos of Margaret.January Term, 2019

67 3. Jeffrey’s Autopsy Photos {¶ 251} Ford also argues that the trial court erred by admitting eight autopsy photographs of Jeffrey. {¶ 252} During trial, defense counsel s tated that the defense had no objection to state’s exhibit Nos. 34 and 37. Thus, Ford can co mplain only of plain
error. State’s exhibit No. 34 shows an incised wound on Jeffre y’s torso and a side view of Jeffrey’s head wounds. Although somewhat gruesome, we find no plain error in the admission of this photo. State’s exhibit No. 37 i s a nongruesome photo showing contusions on his left shoulder. We find that no plain error resulted from the admission of this photo. {¶ 253} State’s exhibit Nos. 38, 39, and 40 depict different views of t he injuries to Jeffrey’s head after the blood was removed. State’ s exhibit Nos. 41 and 42 show injuries to Jeffrey’s uppe r and lower jaw. State’s exh ibit No. 44 shows a cutaway of the skull after the brain was removed and depicts fr actured bone matter. These photos are gruesome. Howev er, each of these photos illus trated Dr. Dean’s testimony about Jeffrey’s wounds and the cause of his death. See Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 142. We hold t hat the prejudicial impact of these photos did not outweigh their probative value a nd the trial court did not abuse its discretion in admitting them. {¶ 254} State’s exhibit Nos. 22 and 24, which were mentioned earlier, a re particularly gruesome photographs of the right and left side of Jeffrey’s head when his body was brought to the medical examiner’s office. The cak ed-on blood covering his face obscures any of his wounds. Defense counsel objected that the photographs were gruesome and cumulative. The trial court over ruled the objection, noting that the judge in Mammone had admitted photos of children as they arrived at the coroner’s office, still strapped in their c ar seats. The trial court added that the judge in Mammone also admitted additional photographs of the victims after their bodies were prepared for autopsy. The tria l court “reached theS UPREME C OURT OF O HIO

68 same conclusion” in admitting state’s exhibit Nos. 22 and 24 “g iven the different things that are being depicted.” {¶ 255} Unlike in Mammone , state’s exhibit Nos. 22 and 24 did not show different injuries from those de picted in other admitted photos

. See Mammone , 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 104 (each of seven autopsy photos, including the photo of a c hild still strapped to a car seat as she arrived at the coroner’s office, presented a different injury). Thus, we agree that the trial court erred by admitting these cumulative photographs. {¶ 256} Nevertheless, we hold that any error was harmless beyond a
reasonable doubt. See Chapman v. California , 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Mammone at ¶ 106, fn. 5. The evidence that Ford murdered the Schoberts was overwhelming. F ord confessed t o these crimes . DNA evidence
on Ford’s shoes also li nked him to the murders. {¶ 257} Although we find no abuse of discretion here, we caution trial courts to closely scrutinize the crime-scene and autopsy photos that are offered as
exhibits in murder trials. Th e admission of gruesome photos ex poses the jurors to horrific images, and when those photographs go to an element of the offense that is clearly proven by other evidence, they serve no useful purpose whatsoever. Instead, such exposure only serves to inflame the passions of jurors and risks subjecting them to harm. A few crime-scene photos showing the body along with the coroner’s testimony will often suffice. {¶ 258} Based on the foregoing, we rej ect proposition of law No. XI. I. Jury Issues {¶ 259} In proposition of law No. VIII, Ford argues that the trial cour t erred by failing to conduct an investigation into alleged juror misco nduct during
deliberations.January Term, 2019

69 1. Factual Background {¶ 260} During voir dire, prospective juror No. 19 5 informed the court that she had interned with the Summit County Prosecutor’s Office. H er affiliation with the prosecutor’s office had ende d, and she assured the court th at her internship would not affect her ability to fairly consider the evidence in this case. She has paralegal and criminal-justice degrees. During individual voir dire, juror No. 19 was asked: “Do you think you would be bringing your own legal t raining to the case? Or could you leave that outside and just rely on the evi dence that comes in through the court?” She responded, “Rely on the evidence.” Th e defense later challenged juror No. 19 because she was a trained paralegal and used that experience in her job with the s tate. The trial court overrule d that challenge. {¶ 261} During Detective King’s testimony, juror No. 19 informed the co urt that they attended the same church and that King was the bodygu ard for the pastor’s wife. Juror No. 19 stated that she did not know King and would not tend to favor King’s testimony because of King’s role in the church. The tri al court overruled a defense motion to excuse juror No. 19 because of King’s positio n at the juror’s
church. {¶ 262} After trial-phase deliberations had begun, the jury foreman pas sed a note to the court asking: “For which of the 11 counts do we n ot have to all 12 agree on? If we can’t come to an agreement (unanimous) ex. 11- 1, do we consider not guilty?” The trial court a dvised the jury that a unanimous verdict must be
reached as to all counts. {¶ 263} At a sidebar, prosecutors informed the court that they had just learned that juror No. 19 was Facebook friends with the Summit County Prosecuting Attorney, Sherri Bevan Walsh, and three Summit Coun ty assistant prosecutors. Defense counsel requested that juror No. 19 be ex cused, and the trial

5. Prospective juror No. 19 became seated juror No. 5.S UPREME C OURT OF O HIO

70 court agreed. During questioning before being excused, juror N o. 19 acknowledged that she was Facebook friends with the Summit County Prosecutin g Attorney and an assistant prosecutor. But she denied telling other jurors t hat she was Facebook friends with members of the pros ecutor’s office or that she had worked as an intern
there. {¶ 264} Defense counsel moved for a mistr ial, arguing that juror No. 19 had deeply tainted the rest of the jury. In support of that argume nt, counsel suggested that the jury’s question—about unanimity and “one person, becau se of her training,” not agreeing with the r est—demonstrated juror No. 19 ’s influence in the
deliberations. The trial court interjected that the defense ma y be conflating two different questions that the jury had posed. In a separate que stion, the jury had
asked:

One of us feels that aggravated burglary is only about taking something when someone is present other than an accomplice. The rest of us think it is committing any criminal offense, trespas sed by force, stealth or deception when another person is present othe r than an accomplice. Which is right? Most of us take the definition literally whereas the one girl’s training makes her insist some thing
had to be taken.

(Underlining sic.) The trial cour t stated, “That could have be en this juror, we don’t
know.” {¶ 265} Defense counsel argued that “it is a reasonable assumption * * * that they are talking about the paralegal.” Defense counsel ad ded: “[T]hat’s our juror that is holding out, that’s the juror that is being probl ematic for these upcoming convictions * * *. And th en, shortly thereafter, we a re put in a position by the State revealing this inf ormation about * * * Facebook th at forces us to * * *January Term, 2019

71 ask whether we are going to bump off at our request the only pe rson who may be a
holdout for innocence.” 6 {¶ 266} In response, the prosecutor explained how they learned about th e Facebook connection, stating that “ earlier today, [the] bailiff called to advise that there was a question; there was a n issue with the juror that we needed to come over for.” The bailiff gave the assistant prosecutor the juror’s na me. The prosecutor then checked with colleagues in the office and learned that jur or No. 19 was
Facebook friends with some of the prosecutors. {¶ 267} The trial court overruled the motion for a mistrial, stating th at there
is “no reason to think that the contact that Juror Number 19 * * * has had with Facebook friends, which she says she did not disclose to the re st of the jury, has in any way tainted the rest of the j ury.” The trial court added:

On the issue of whether the State of Ohio brought this information [about Facebook] to light in order to achieve some tactical purpose, I interpr et it a different way. The State of Ohio, as Mr. Gessn er said, had some curiosity. The curiosity was addressed. O nce the information became known , it was entirely proper to bring that information to light.

{¶ 268} As to the potential influence of juror No. 19 on the rest of th e jurors,
the trial court stated:

The defense has no more reason to think than I do or anyone else does that this individual was or was not a holdout, becaus e we do not know whether the jury went on to resolve whatever issue they

6. In proposition of law No. XX, Ford argues that defense coun sel provided ineffective assistance of counsel by requesting that juror No. 19 be excused, because it was likely she was a holdout juror.S UPREME C OURT OF O HIO

72 may have had with respect to the aggravated burglary count. We do not know, nor will we know, what prompted the most recent question which raised the i ssue of something being 11 to 1.

2. Analysis a. Outside influence during deliberations {¶ 269} Ford argues that juror No. 19 used her background as a paralega l to influence other jurors to disreg ard the trial court’s instructi ons and apply her own legal definitions. For d contends that the jury’s questions abo ut aggravated burglary and unanimity of the verdicts show that juror No. 19 was interj ecting outside
information that was inconsistent with the trial court’s instru ctions. He argues that
this was an outside influence that the trial court failed to in vestigate. {¶ 270} Ohio law prohibits outside influences, if they are shown to be prejudicial. State v. Kehn , 50 Ohio St.2d 11, 18-19, 361 N.E.2d 1330 (1977).

Any communication or contact outside the courtroom or jury room
about the matter at trial betw een a juror and another person, particularly if connected with one of the parties to the litiga tion, and any independent inquiry or experiment by a juror about the evid ence or the law, violate the juror’s duty to limit his consideration s to the evidence, arguments and law presented in open court. Any such activity is juror misconduct, a constitutional violation whethe r viewed under the Fourteenth Amendment to the United States Constitution or Section 10, Artic le I of the Ohio Constitution.

State v. King , 10 Ohio App.3d 161, 165, 460 N.E.2d 1383 (1st Dist.1983). {¶ 271} Ford’s argument fails for several reasons. First, he fails to establish that juror No. 19 said anything during deliberations that cause d the jury to disregardJanuary Term, 2019

73 the trial court’s instructions. The fact that the foreman soug ht clarification about juror unanimity and the definition of aggravated burglary does not show that the juror was trying to undermine such instructions. At about the same time, the prosecutor disclosed that jur or No. 19 was Facebook friends wit h members of the prosecutor’s office. Nothing shows that the two events were re lated. Moreover, juror No. 19 was excused, an alternate juror took her place, an d deliberations began anew. Thus no prejudice occurred. See State v. Hipkins , 69 Ohio St.2d 80, 83, 430 N.E.2d 943 (1982) (judgment will not be reversed because of jur or misconduct unless prejudice is shown); Smith v. Phillips , 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (party complain ing about juror misconduct mus t prove prejudice). {¶ 272} Second, even assuming that juror N o. 19 interjected her legal experience into the deliberative process, nothing shows that th is was an improper
“outside influence” on the delib erations. Ford does not claim that she consulted legal texts, checked the interne t, or spoke to a lawyer and con veyed such information to the other jurors. Nor does he claim that juror No. 19 paraded her paralegal background before the other jurors or gave legal dire ctives. Here, the juror’s personal experiences, including her paralegal experienc e, do not constitute
an outside influence. See Tanner v. United States , 483 U.S. 107, 117-119, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987); State v. Hughes , 7th Dist. Mahoning No. 02CA15, 2003-Ohio-6094, ¶ 28. {¶ 273} In examining a claim that a juror had improperly used her engineering and mathematics b ackground, the Supreme Court of Co lorado stated that “[t]he line between a juror’s application of her backgroun d professional and educational experience to the record evidence and a juror’s int roduction of legal content or specific factual info rmation learned from outside th e record can be a fine
one.” Kendrick v. Pippin , 252 P.3d 1052, 1066 (Colo.2011). But “[t]he test requires that the experience use d by the juror in deliberations be part of the juror’sS UPREME C OURT OF O HIO

74 background, gained before the juror was selected to participate in the case and not as the result of independent inve stigation into a matter releva nt to the case.” Id . A similar analysis applies here. Further, “a majority of courts have held that a juror’s
intradeliberational statements , when based on personal knowledg e and experience do not constitute extraneous p rejudicial information.” Id. at 1065. Thus, we reject Ford’s claim that juror No. 19 interjected an “outside influenc e” during
deliberations. {¶ 274} Ford argues that the trial court should have conducted a hearin g to determine the extent of the out side influence and prejudice. I n Remmer v. United
States , 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the United S tates Supreme
Court held that a trial court c onfronted with an allegation of external tampering or contact with a juror during tria l about a matter pending before the jury “should determine the circumstances, the impact [of the circumstances] upon the juror, and whether or not it was prejudicial, in a hearing with all intere sted parties permitted to participate.” Id . at 230. {¶ 275} Nonetheless, “not all communications with jurors warrant a hear ing for a determination of potential bias.” White v. Smith , 984 F.2d 163, 166 (6th Cir.1993). An allegation of an unauthorized communication with a juror requires

a Remmer hearing only when the alleged contact presents a likelihood of affecting
the verdict. See United States v. Frost , 125 F.3d 346, 377 (6th Cir.1997). {¶ 276} We hold that the trial court did not err by failing to conduct a Remmer hearing, because Ford presen ted no basis upon which to believe that juror No. 19 had introduced an “outside influence” into the proceedin gs. Juror No. 19 also assured the court that she had not told other jurors that she was Facebook friends with members of the pros ecutor’s office or had worked a s an intern there. {¶ 277} Next, Ford argues that juror No. 19 tainted the jury. However, “[s]peculation and unsubstantiate d allegations do not present a colorable claim ofJanuary Term, 2019

75 outside influence of a juror.” See United States v. Wintermute , 443 F.3d 993, 1003 (8th Cir.2006). {¶ 278} As a final matter, Ford claims that by excusing juror No. 19, t he
trial court sent a me ssage to other jurors that a holdout would not remain on the jury. But the trial court told the jury: “I wanted to advise t he members of the jury that for a reason that has nothing to do with your deliberation s in the case or the facts of the case, but, instea d, on some information the Court became aware of that is not a matter for your concern, the Court did find it necessa ry to excuse [juror No. 19] from further jury service on this case.” These instruction s addressed any lingering concerns about juror No. 19’s removal. See State v. Jones , 91 Ohio St.3d 335, 344, 744 N.E.2d 1163 (2001) (jury presumed to have followe d trial court’s instructions). {¶ 279} Furthermore, Ford requested that juror No. 19 be removed from the panel. The doctrine of invited error specifies that a litigant may not “take advantage
of an error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc.
v. Ford Motor Co ., Lincoln-Mercury Div ., 28 Ohio St.3d 20, 502 N.E.3d 590 (1986), paragraph one of the sy llabus. “This court has found invited error when a party has asked the court to take some action later claimed to be erroneous, or affirmatively consented to a p rocedure the trial judge proposed .” State v. Campbell , 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000). Here, defense counsel requested that juror No. 19 be removed from the panel and is not entitled to complain of an error that counsel requested. Acco rdingly, we reject this clai m. b. Bailiff’s discussions with the prosecutor {¶ 280} Ford argues that the trial court erred by not conducting a hear ing
under Remmer , 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654, to address the bail iff’s communications with the prosecutor about an issue with a juror. He argues that
these communications violated the secrecy of the jury deliberat ions.S UPREME C OURT OF O HIO

76 {¶ 281} It is unclear what the bailiff told the prosecutor, beyond stat ing that there was “a question; there was an issue with the juror that w e needed to come over for.” After they talked, the prosecutor learned that juro r No. 19 was Facebook
friends with members of t he prosecutor’s office. {¶ 282} There is no evidence that the bailiff had a conversation with t he juror that affected the verdict—all the bailiff did was tell th e prosecutor that there was an “issue” with a juror and gave him the juror’s name. Thu s, we conclude that the trial court did not err by failing to conduct a Remmer hearing regarding this

matter. {¶ 283} Based on the foregoing, we rej ect proposition of law No. VIII. J. Juror Misconduct During Deliberations {¶ 284} In proposition of law No. IX, Ford argues that juror misconduct during deliberations violated his right to a fair trial and fai r sentencing proceedings. 1. Factual Background
a. Juror No. 19 {¶ 285} On October 28, 2014, during the mitigation phase, the Akron
Beacon Journal published an interview with juror No. 19, who had already been excused. According to the newspape r article, she stated that o ther jurors were in a hurry to convict Ford without conducting much debate. She said one juror had
talked about the need to reach a verdict in time to attend an u pcoming birthday party. Juror No. 19 added, “I wa s a roadblock to them getting out,” and “I was the only one trying to fight and take a look at what was going on.” {¶ 286} Juror No. 19 stated that some jur ors, despite instructions to t he contrary, talked about potentia l penalties. They mentioned the likelihood that Ford would never get out of prison if c onvicted of aggravated murder or would not face execution any time soon if the jury voted for the death penalty . She stated that some jurors relied on her legal experience to ask basic questio ns but then pressured her to convict Ford, calling he r positions “crazy” and not wort hy of debate.January Term, 2019

77 {¶ 287} Juror No. 19 stated that she had originally signed the guilty f orm for aggravated murder but changed her mind after a night being sequestered. She
did not believe that Ford went to the Schoberts’ home on April 2, 2013, with the
intent to kill. She also did not believe that Ford and his cod efendant, Vaughn,
walked nine miles from Akron to the Schoberts’ home in New Fran klin. She said that a second juror appeare d to be agreeing with her. {¶ 288} She said that others were not agreeing and there was “shouting at times.” Juror No. 19 got into a “ real blow up” with another ju ror, because she was making snide remarks about her b eing a paralegal. Juror No. 19 added, “It was me and [a second juror] and they kept saying are we crazy.” {¶ 289} Unbeknownst to juror No. 19 at the time, the foreperson sent no tes to the court asking about jury unanimity and the burglary charg e. She said that this led the prosecutors to search her Facebook page and learn that she was “friends” with members of the prosecutor’s office. She said the decision to excuse her was shocking and likely fueled by the tone of the foreperson’s note s to the judge.
b. Juror No. 46 {¶ 290} On November 2, 2014, just days after the jury had been excused,
the Akron Beacon Journal published an interview with j uror No. 46, a seated juror during both phases of the trial. Juror No. 46 said she was the lone holdout for a life sentence. She said, “I didn’t wa nt the death penalty at all. I fought for hours. I had one juror get in my face saying, ‘I can’t believe you wouldn’t give this kid the death penalty. What’s wrong with y ou * * *.’ ” She added, “Yes, [I was intimidated].
* * * I don’t feel a death senten ce is right for Shawn.” (Bra ckets sic.) {¶ 291} Juror No. 46 said she was initially the only person to vote aga inst death for Jeffrey’s murder. Pressure to vote for death for Mar garet’s murder intensified. She relented and sig ned a death sentence for Marg aret’s murder while the other jurors agreed to a life sentence for Jeffrey’s murder . But she said, “I didn’tS UPREME C OURT OF O HIO

78 want to sign it, and I think now I’m going to have to live with that guilt * * * I don’t feel it was the right thing to do.” {¶ 292} Juror No. 46 said she considered changing her vote when the jur ors were polled. She said, “I wanted to say no, but I couldn’t. I was looking down. I was shaking. I couldn’t even control myself. But I said yes.” Juror No. 46 stated that she surrendered her position “[b]ecause of how awful [the other jurors] were.” {¶ 293} She said deliberations during the trial phase were swift and mo st jurors had no interest in deliberating. The same haste occurre d during sentencing. Some jurors arguing for death expressed concern that Ford, if g iven life in prison, could one day escape. One jur or cited the Chardon school shoot er and his recent escape as an example. She added, “They were screaming at me. It wasn’t pleasant behind the scenes with these people.” c. Motion for a Remmer hearing denied {¶ 294} Following the publication of jur or No. 46’s interview, defense counsel filed a motion for a hearing under Remmer , 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654, to address the juror mis conduct reported in the Akron Beacon Journal

. The trial court denied the moti on, stating that “there is no ev idence before the court suggesting that the jury * * * was improperly influenced by any one or anything outside of the jury.” The trial court added that “because defe ndant’s motion is based on newspaper articles related entirely to the deliberatio ns of the sequestered jury and there is no evidence aliunde suggesting juror misc onduct, the court would not be permitted to hear testimony from these former jurors on the subject upon
which defendant’s motion is based.” 2. Analysis {¶ 295} Evid.R. 606(B), also known as the aliunde rule, governs the competency of a juror to testify at a subsequent proceeding con cerning the verdict.
It states:January Term, 2019

79 (B) Inquiry Into Validity of Verdict or Indictment . Upon an inquiry into the validity of a verdict or indictment, a juro r may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon t hat or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outsi de influence was improperly brought to bear on any juror, only aft er some outside evidence of that act or event has been presented. However a juror may testify without the presentation of any out side evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court. A jur or’s affidavit or evidence of any sta tement by the juror concerning a matter about which the juror woul d be precluded from testifying will not be received for these purposes.

(Boldface sic.) {¶ 296} The purpose of the aliunde rule is to maintain the sanctity of the jury room and the deliberations t herein, ensure the finality of jury verdicts, and protect jurors from being harassed by defeated parties. See State v. Hessler , 90 Ohio St.3d 108, 123, 734 N.E.2d 1237 (2000); State v. Reiner , 89 Ohio St.3d 342, 350, 731 N.E.2d 662 (2000). {¶ 297} The trial court did not err in refusing to hold a Remmer hearing to consider evidence from juror No. 19 or juror No. 46 about the d eliberations. We
addressed a similar claim in Hessler . In that case, a distraught juror complained to the trial judge about her tr eatment from fellow jurors. Hessler at 116-120. TheS UPREME C OURT OF O HIO

80 defense argued that the juror’s s tatement showed that she wante d to vote for life sentences but was unfairly coer ced and pressured to vote for de ath. The defendant claimed that he was denied the right to a fair and impartial ju ry because of jury
misconduct. Id . at 120. We rejected tha t claim, stating:

“The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors
themselves.” Allen v. United States (1896), 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528, 531. The requirement of a unanim ous decision, however, does not come without a price. Heightened emotions and intense feelings are part and parcel of this proce ss. Experience tells us that during deliberations, it is not unusua l to find heavy-handed influencing, browbeating, and even bullying to a certain extent. For always there is the possibility that “arti culate jurors may intimidate the inarticulate, the aggressive may undu ly
influence the docile.” People v. DeLucia (1967), 20 N.Y.2d 275, 278, 282 N.Y.S.2d 526, 529, 229 N.E.2d 211, 213.

Id

. {¶ 298} Hessler applies to the allegations of misconduct that juror Nos. 19 and 46 reported against other jurors. Evid.R. 606(B) prohibite d the trial court from questioning these jurors about w hat occurred during deliberatio ns that might have affected the jurors’ minds or em otions in the process once the final verdict was rendered. Thus, a Remmer hearing was not required. {¶ 299} Moreover, juror No. 19 was excu sed before the trial-phase deliberations were completed and would not have known what happ ened in the jury room after she was replaced. And juror No. 46 confirmed her ve rdict in open court when the jury was polled. “The function of the poll is ‘to ena ble the court and theJanuary Term, 2019

81 parties to ascertain with certainty that a unanimous verdict ha s in fact been reached and that no juror has been coerced or induced to agree to a ver dict to which he has not fully assented.’ ” State v. Williams , 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 37, quoting Miranda v. United States , 255 F.2d 9, 17 (1st Cir.1958). Once polling has been completed and all have assented to the ve rdict, “a juror may not thereafter rescind or modify his or her vote.” Williams at ¶ 38. {¶ 300} Ford raises Peña-Rodriguez v. Colorado , __ U.S. __, 137 S.Ct. 855, 197 L.Ed.2d 107 (2017), in arguing that the behavior of ce rtain jurors during deliberations denied him a fair and impartial jury. The Suprem e Court held in Peña-Rodriguez that the traditional “no-impeachment rule” codified in Fed.R.E vid. 606(b) may violate the Sixth Ame ndment right to an impartial ju ry when “a juror
makes a clear statement that indicates he or she relied on raci al stereotypes or
animus to convict a criminal defendant.” Id . at ___, 137 S.Ct. at 869. In such cases, a court may decline to apply the no-impeachment rule, consider jury testimony, overturn a jury verdict, and hold a new trial. See id . Unlike in Peña-Rodriguez , neither juror No. 19 nor juror N o. 46 indicated that racial bia s or hostility was exhibited during the deliberations. Thus, Peña-Rodriguez does not overcome the no-impeachment rule here. {¶ 301} Ford also cites Warger v. Shauers , 574 U.S. 40, 135 S.Ct. 521, 190 L.Ed.2d 422, (2014), in arguing that in extreme cases of juror bias, applying Evid.R. 606(B) to bar juror testimony proving such bias would run afoul of the Sixth
Amendment. Warger held that Fed.R.Evid. 606(b) applies to juror testimony during a proceeding in which a party seeks to secure a new tria l on the ground that a juror lied during voir dire. Id . at 44. Ford relies on a footnote in Warger , in which
the court said:

There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and whe n such aS UPREME C OURT OF O HIO

82 case arises, the Court can consider whether the usual safeguard s are or are not sufficient to protect the integrity of the process. We need not consider the question, however , for those facts are not pre sented
here.

Id . at 51, fn. 3. {¶ 302} The Supreme Court decided Peña-Rodriguez a little more than two years later. As discussed, however, Peña-Rodriguez limited the exception to the no-impeachment rule to a situation in which “a juror makes a cl ear statement that indicates he or she relied on racial stereotypes or animus to c onvict a criminal
defendant.” See Peña-Rodriguez at ___, 137 S.Ct. at 869. Warger does not apply
here. {¶ 303} Based on the foregoing, we rej ect proposition of law No. IX. K. Limitations on Defense Closing Arguments {¶ 304} In proposition of law No. XVI, For d argues that the trial court erred in sustaining a series of objec tions to defense counsel’s closi ng arguments. {¶ 305} First, Ford argues that the trial court erred in sustaining an objection
to a comment that ca lled into question the e xtent of the state’ s investigation:

MR. SINN [(defense counsel)]: And, again, when you make decisions here, you have a right to have the investigation that you need to make the decisions to let you know what happened. You don’t have to put the pieces together. * * * That’s the * * * job of the New Franklin Police Department. And if they are not up to doing it, then they need to g et somebody else out there. MR. LOPRINZI [(prosecutor)]: Objection.
THE COURT: Sustained.January Term, 2019

83 {¶ 306} Both parties are given latitude during closing arguments to add ress what the evidence has shown and what reasonable inferences may be drawn from
that evidence. See Loza , 71 Ohio St.3d at 78, 641 N.E.2d 1082. As one court explained:

Trial counsel may advocate and persuade to the limit of his or her ability and enthusiasm but cannot misrepresent evidence or go beyond the limits set by the trial court. Thus, counsel may fr eely discuss the facts, arraign the conduct of parties, impugn, excu se, justify or condemn motives according to the evidence, and attac k the credibility of witnesses when the record supports the same. Th e court should not be severe in a rresting argument on the ground that the argument or inference is illogical.

(Internal citations omitted.) State v. Powell , 177 Ohio App.3d 825, 2008-Ohio4171, 896 N.E.2d 212, ¶ 45 (4th Dist.). {¶ 307} Leading up to the objected-to comments, defense counsel argued that the police had failed to prove that Zachary was out of tow n at the time of the murders. The defense also argued that the police failed to ide ntify any witnesses who saw Ford and Vaughn walking in the middle of the night from Akron to the
Schoberts’ house in New Franklin. The defense argument aimed a t the New Franklin Police Department was a means of questioning why the p rosecution lacked
more evidence. We hol d that the trial c ourt erred in prohibiti ng such argument. {¶ 308} Second, Ford argues that the trial court erred by sustaining an objection to a defense argument about the prosecution’s failure to call Detective Morrison as a witness. During cl osing argument, defense counse l argued:S UPREME C OURT OF O HIO

84 Over two days, there are multiple statements given, six or
seven different statements. A t first, Shawn Ford denies involvement, and then he talks about other people being involve d. And, each time, Detective Hitchi ngs or Detective Morrison—who, again, we don’t hear from Detective Morrison— MR. LOPRINZI: Objection.
THE COURT: Sustained.

{¶ 309} A party’s failure “ ‘to call a w itness who has some knowledge o f the matter under investigati on may be commented upon.’ ” State v. D’Ambrosio , 67 Ohio St.3d 185, 193, 616 N.E.2d 909 (1993), quoting State v. Petro , 148 Ohio St. 473, 498, 76 N.E.2d 355 (1948). Morrison did not testify d uring trial even though he played a key role in the investigation of Chelsea’s a ssault and interviewed Ford on April 2 a nd 3. Thus, defense counsel’s com ment about not hearing from Morrison during tr ial should have been allowed. {¶ 310} The state cites Crim.R. 16(I) in arguing that the defense does not have a “freewheeling right to comment on the absence of any per son who that party
thinks should have testified.” B ut Crim.R. 16(I) provides:

(I) Witness List. Each party shall provide to opposing counsel a written witness list, i ncluding names and addresses o f any witness it intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal. The content of the witness list may not be comme nted upon or disclosed to the jury by opposing counsel, but during argument, the presence or absence of the witness may be commented upon

.January Term, 2019

85 (Emphasis added and boldface sic.) Nothing in Crim.R. 16(I) pr ohibited defense counsel from commenting on Morrison’s absence; indeed, the rule expressly permits such comment. Thus, we conclude that the trial court e rred in sustaining an objection to the defense argument. {¶ 311} We conclude, however, that the two erroneous rulings were harmless beyond a reasonable doubt. See Chapman , 386 U.S. at 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705; Arnold , 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, at ¶ 50. There is little likeli hood that the restrictions on d efense counsel’s argument
affected the verdict in view o f DNA evidence linking Ford to th e murders and his
confession. {¶ 312} Finally, Ford argues that the trial court erred in curtailing t he defense argument that questione d the completeness of Ford’s pol ice interview. Defense counsel argued:

What else did he say? I mean, really, what else did he say? You have got him saying—you have got him now opened up, confessing. What else did Sha wn say? * * * Where is the rest of
the information? Where are the cell phones? Where are Jeff and [Margaret’s] cell phones? That’s important. We don’t know where those phon es went. Why don’t we know that? I mean, if, according to Hitchings, Shawn has now come clean and telling the truth of the story, that’s when you ask h im all the questions you want to ask. T hat’s when you get all the ans wers
out.

The prosecutor objected and, outside the jury’s presence, argue d that defense counsel “knows the answers to these questions. He knows his cl ient was askedS UPREME C OURT OF O HIO

86 these questions.” The trial cour t sustained the objection, sta ting that counsel “cannot imply that some work was not done that was done. * * * I will instruct
counsel not to continue with that.” {¶ 313} Ford’s recorded interview showed that he told police that Vaugh n had both of the Schoberts’ phones. Thus, the trial court could prohibit defense counsel from arguing that Ford was not asked about the phones w hen they knew
that he had been asked. See State v. Sibert , 98 Ohio App.3d 412, 426-427, 648 N.E.2d 861 (4th Dist.1994) (defense not permitted to argue that the state failed to
call victim’s father when counsel agreed that th e victim’s fath er could not testify). {¶ 314} Based on the foregoing, we rej ect proposition of law No. XVI. L. Sufficiency and Manifest Weight of the Evidence {¶ 315} In proposition of law No. XII, Ford challenges the sufficiency of the evidence for his convictions for (1) aggravated murder with prior calculation and design, (2) aggravated murder during an aggravated robbery, the aggravatedrobbery death-penalty specifica tions, and the separate aggravat ed-robbery offense, (3) aggravated murder during an aggravated burglary and the sep arate aggravatedburglary offense, and (4) grand theft. He also challenges his conviction for the
felonious assault of Chelsea as a gainst the manifest weight of the evidence. 1. Aggravated Murder with P rior Calculation and Design {¶ 316} Ford argues that there is insufficient evidence of the element of prior calculation and design t o support his convictions for the aggravated murders of Jeffrey (Count 1) and Margaret (Count 4). Ford also challen ges his convictions for committing aggravated murder with prior calculation and des ign in the two death-penalty specifica tions attached to Count 4. {¶ 317} In reviewing a record for suffici ency, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable t o the prosecution, any rational trier of fact could have found the essential eleme nts of the crime proven beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492January Term, 2019

87 (1991), paragraph two of t he syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). {¶ 318} Ford claims that there is insufficient evidence of prior calcul ation and design because it is just as likely that he went to the Sch oberts’ home to break
in and rob the Schoberts while the y were at the hospital. He a rgues that he did not bring a weapon to the house but u sed a knife and a sledgehammer obtained from
the Schoberts’ home. {¶ 319} “The phrase ‘prior calculation and design’ by its own terms suggests advance reasoning to f ormulate the purpose to kill.” State v. Walker , 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 18. There is no bright-line test to distinguish between the presence or absence of prior ca lculation and design; each case depends upon its own facts. Id . at ¶ 19. Three facto rs have traditionally been considered in determining whether prior calculation and de sign exists: “ (1)
Did the accused and victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to ch oosing the murder weapon or murder site? and (3) W as the act drawn out or ‘an alm ost instantaneous eruption of events?’ ” State v. Taylor , 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997 ) , quoting State v. Jenkins , 48 Ohio App.2d 99, 102, 355 N.E.2d 825 (8th Dist.1976). {¶ 320} There is sufficient evidence in this case for any rational trie r of fact to find that Ford killed Jeffrey and Margaret with prior calcul ation and design. First, Ford knew the Schoberts and knew that they did not want him to see Chelsea in the hospital. Ford also knew that the story he had told police about Chelsea’ s assault was falling apart. Second, despite Ford’s asserti on that he planned only to
steal from the Schoberts and that he went to the Schoberts’ hou se without a weapon,
there is sufficient evidence that he had decided to kill them. Regarding the murder of Jeffrey, the evidence shows that Jeffrey was in bed when For d arrived at the Schoberts’ home. There is no evidence of a struggle or confron tation between Ford and Jeffrey. Ford admits he took a sledgehammer from the Schob erts’ garage, wentS UPREME C OURT OF O HIO

88 upstairs to the bedroom, and killed Jeffrey by hitting him in t he head, at least 14 times according to the coroner. {¶ 321} There is also sufficient evidence of prior calculation and desi gn for the aggravated murder of Margaret (Count 4). After killing Jef frey, the evidence suggests that Ford waited at the house for Margaret to come hom e. During this time Ford or Vaughn used Jeffrey’s phone, pretending to be Jeff rey, to determine when Margaret would be coming home. {¶ 322} At trial, the state introduced text messages that were exchange d between Jeffrey’s phone and Margaret’s phone during the early m orning of April 2, 2013:

[03:58:19: (Jeffrey)] you still at hospital
* * * [04:57:59: (Margaret)] Have u been up all night [04:59:26: (Jeffrey)] yea [05:00:10: (Jeffrey)] How Chelsea doin [05:09:00: (Jeffrey)] What time you coming home [05:12:25: (Margaret )] Who is at the house [05:14:30: (Jeffrey)] Just me i know you called but my phone not working right now i dobt know why [05:16:26: (Margaret)] we have been up since 4. * * * She is crying bc she can’t eat cereal and wants to see shawn [05:17:49: (Jeffrey)] Is you go let her see him [05:17:53: (Margaret)] Her throat is hurting. * * * She says
she is 18 and can do what she wants [05:18:15: (Margaret)] Is this Shawn
* * * [05:19:11: (Jeffrey)] I hate that assholeJanuary Term, 2019

89 [05:20:21: (Margaret)] What is going on
* * * [05:22:12: (Jeffrey)] I’m about to go to bed i been up all night but what time you coming [05:22:53: (Margaret)] Why were u up all night
* * * [05:24:45: (Jeffrey)] I was watching TV and i was studying

my case [05:25:10: (Margaret)] why do u want to know when I am coming [05:27:19: (Jeffrey)] Because I’m probably go be sleep when you get here just asking [05:29:35: (Jeffrey)] Goodnight hun [05:30:09: (Margaret)] I can’t deal w lies anymore [05:31:06: (Jeffrey)] What are you talking about

{¶ 323} Despite Margaret’s suspicions that it was Ford and not Jeffrey who was texting her, Margaret did not call the police and went home alone. The evidence suggests that Ford and Vaughn had been in the home for hours, lying in wait for her arrival, and attacked her with the sledgehammer when she walked into
the bedroom. She was hit in the head at least 19 times. Regardless of Ford’s claim
that he arrived at the Schobert s’ home without a weapon and reg ardless of his claim that his original plan was only to steal from the Schoberts, th ere is sufficient evidence for any rational trier of fact to find beyond a reason able doubt that after
Ford arrived at the Schoberts’ home, he decided to kill them. {¶ 324} Accordingly, we conclude that there was sufficient evidence to
establish that Ford acted with prior calculation and design in killing J effrey and Margaret.S UPREME C OURT OF O HIO

90 2. Aggravated Murder during Aggravated Robbery {¶ 325} Ford argues that the evidence does not support his convictions for aggravated murder during an aggravated robbery (Counts 2 and 5) , the deathpenalty specifications for committing aggravated murder while c ommitting aggravated robbery, and the aggr avated-robbery offenses (Counts 6 and 7). He
contends that there was no evidence that he committed theft or knew that a theft
was committed. These c laims lack merit. {¶ 326} R.C. 2903.01(B), Ohio’s felony-m urder statute, reads:

(B) No person shall purposely cause the death of another or the unlawful termination of another’s pregnancy while committin g or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravate d

arson, arson, aggravated robbery , robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terro rism, or escape.

(Emphasis added.) {¶ 327} The capital specification, R.C. 2929.04(A)(7), sets forth the c riteria for imposing death or imprisonmen t for aggravated murder during an aggravated robbery:

(A) Imposition of the death penalty for aggravated murder is precluded unless one or more of the following is specified in t he
indictment or count in the indi ctment pursuant to section 2941. 14 of the Revised Code and prove d beyond a reasonable doubt:
* * *January Term, 2019

91 (7) The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated

arson, aggravated robbery , or aggravated burglary, and either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with pr ior calculation and design.

(Emphasis added.) {¶ 328} R.C. 2911.01 sets forth provisions of the aggravated-robbery

statute:

(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleein g immediately after the attempt or offense, shall do any of the following: (1) Have a deadly weapon on or about the offender’s person or under the offender’s control and either display the weapon, brandish it, indicate that the offender possesses it, or use it ; * * * (3) Inflict, or attempt to inf lict, serious physical harm on a nother.

{¶ 329} Heather Greathouse testified that before the murders, Ford said he was going to “hit a lick.” After the murders, he returned with two rings and some money. Heather’s aunt threw the rings in a nearby dumpster. T he police later recovered the rings, and Chelsea identified one of the rings as her mother’s. Ford also admitted to police that som eone took money and jewelry fro m the Schoberts’ home. Thus, we hold that there w as sufficient evidence to esta blish Ford’s guilt ofS UPREME C OURT OF O HIO

92 aggravated murder during an aggravated robbery, the related agg ravated-robbery death-penalty specifications, a nd the robbery offenses themselv es. 3. Aggravated Murder during Aggravated Burglary {¶ 330} Ford argues that the evidence is insufficient to support his convictions for committing aggravated murder during an aggravat ed burglary (Counts 3 and 6) and the separate aggravated-burglary offense ( Count 8) because the state failed to prove that someone was likely to be home at the time of the
offenses. {¶ 331} The aggravated-burglary statute, R.C. 2911.11, provides:

(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separate ly occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpo se to commit in the structure or in the separately secured or separat ely occupied portion of the structure any criminal offense, if any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another * * *.

{¶ 332} “Occupied structure” is defined in R.C. 2909.01:

(C) “Occupied structure” means any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer , tent, or other structure, vehicle, or shelter, or any portion thereof, t o which any of the following applies:
* * *January Term, 2019

93 (4) At the time, any person is present or likely to be present
in it.

(Emphasis added.) {¶ 333} The state charged Ford with aggravated burglary under R.C. 2911.11(A), which requires that a “person other than an accompl ice of the offender [ was ] present .” (Emphasis and brackets added. ) The evidence showed that Je ffrey
was at home at the time of the aggravated burglary. Thus, the state did not need to also prove the likelihood that J effrey or Margaret would be pre sent. {¶ 334} Ford cites State v. Fowler , 4 Ohio St.3d 16, 445 N.E.2d 1119 (1983), in arguing that the state needed additional proof that Jeffrey or Margaret were “likely to be present.” The aggravated burglary in that c ase occurred when no one was home. Under those circumstances, which are not appl icable here, this court held that “proof that a permanent or temporary habitation or dwelling has been burglarized is alone insufficient to establish the fourth element necessary to support a conviction for aggravated burglary, i.e., that the occupied structure is one at the time of the trespass in which any person is present or l ikely to be present.”
Id . at 18. Thus, Fowler is inapposite. {¶ 335} We hold that there was sufficient evidence for the jury to conc lude beyond a reasonable doubt that Ford was guilty of the two count s of aggravated murder during an aggravated burglary and of the separate aggrav ated-burglary
offense.
4. Grand Theft {¶ 336} Ford argues that there is insufficient evidence to support his conviction for the grand theft of Jeffrey’s automobile (Count 9 ) because there is no proof that he exerted con trol over the vehicle. {¶ 337} Jeffrey’s automobile was missing from his home when the murders were discovered. Based on information that Ford provided to in mate Beech, theS UPREME C OURT OF O HIO

94 police located Jeffrey’s car a short distance from where Vaughn was staying. A search of nearby drains uncovere d gloves, a knife, and a stocki ng hat. The BCI
forensic scientist determined t hat Ford could not be excluded a s a contributor to the DNA found on the stocking hat. {¶ 338} “Grand theft requires one to obtain or exert control over prope rty of another.” State v. Talley , 18 Ohio St.3d 152, 155, 480 N.E.2d 439 (1985). Ford argues that the state failed to prove that Ford took or drove J effrey’s automobile. It is unclear whether Ford or Vaug hn drove the car. But evidence shows that Ford
was in the car. He told Beech where the car could be found. E vidence linking Ford to the murders was also found in the area near the car. Thus, even assuming that Ford was not the driver, we conc lude that there was sufficient evidence for the jury to find beyond a reasonable doubt that Ford committed grand the ft as an aider or
abettor.
5. Felonious Assault of Chelsea {¶ 339} Ford contends that his convicti on for the felonious assault of Chelsea (Count 11) is against the manifest weight of the eviden ce. He argues that Joshua, Zachary, and Chelsea picked someone besides Ford from t he photo lineup as the assailant. Ford also mentions that Joshua and Zachary p rovided inconsistent accounts of what happened. {¶ 340} When reviewing a claim that a jury verdict is against the manif est weight of the eviden ce, an appellate court m ust apply the follo wing test:

“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of wit nesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarria ge of justice that the conviction mus t be reversed a nd a new trial or dered. The discretionary power to grant a new trial should be exercise dJanuary Term, 2019

95 only in the exceptional case in which the evidence weighs heavi ly against the conviction.”

State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State
v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 341} Evidence shows that on March 23, 2013, Ford attacked Chelsea in a bedroom at Zachary’s residence. According to Chelsea, Ford w anted to have sex,
but she asked him to wait. Ford then hit her in the head with a brick and stabbed her in the neck and back. Following the attack, Ford told Josh ua not to tell the truth. He also told Zachary to tell the police that Chelsea was assaul ted by some guys at a party in Kent. Chelsea testified that she was initially scar ed to tell the truth: “I thought if he would have found out, then I would be in worse co ndition than I already was.” Heather testified that Ford told her that he “st abbed [Chelsea] and he hit her upside the head with a brick,” because “she wasn’t p aying attention to him.” Ford “ultimately admitted” to detectives that “he did th is to Chelsea.” Given the strength of the trial testimony and Ford’s own admissions, we conclude that
Ford’s felonious-assault convic tion is supported by the manifes t weight of the
evidence. {¶ 342} Based on the foregoing, we rej ect proposition of law No. XII. M. Conflicting Verdicts {¶ 343} In proposition of law No. II, Ford argues that the jury returne d conflicting verdicts on the R. C. 2929.04(A)(7) death-penalty sp ecifications in the counts for the aggravated murder of Margaret. Because Ford did not object to this alleged error at trial, he forfeited all but plain error. See Ballew , 76 Ohio St.3d at 251, 667 N.E.3d 369. {¶ 344} The jury found Ford guilty of the aggravated murder of Margaret with prior calculation and design, R.C. 2903.01(A) (Count 4), a nd the aggravated murder of Margaret during an aggravated robbery, R.C. 2903.01(B ) (Count 5).S UPREME C OURT OF O HIO

96 Both counts contained identical R.C. 2929.04(A)(7) specificatio ns. 7 The jury also found Ford guilty of “prior calculation and design” in Specific ations 2 and 3 of Count 4. However, he was found guilty as the “principal offend er” in Specifications 2 and 3 of Count 5. {¶ 345} Prior to the mitigation phase, at the request of both parties, the trial court merged Count 3, to the exte nt that it related to Margaret , Count 4, and Count 5 into Count 4. Count 4 and the accompanying aggravating-circu mstances specifications for the killing of two or more people and the co mmission of an aggravated murder with prior calculation and design were submit ted to the jury in the sentencing phase. {¶ 346} Ford complains that the verdicts in Counts 4 and 5 are conflict ing. First, he argues that the state should not have been allowed to charge both that Ford acted as the principal offender (i.e., the actual killer) or, i f not the principal offender, that he acted with prior calculation and design. However, Ford acknowledges in his reply brief that the prior- calculation-and-design and the p rincipal-offender elements of R.C. 2929.04(A)(7) may be charged disjunctively. T he analysis in Ford’s reply brief reflects the proper standard of law. See State v. Cook , 65 Ohio St.3d 516, 527, 605 N.E.2d 70 (1992) (trial court may instruct the jury on priorcalculation-and-design and princi pal-offender status disjunctiv ely in the same specification). {¶ 347} Second, Ford argues that the trial court erred by accepting conflicting verdicts in Counts 4 (i.e., murder with prior calcu lation and design) and 5 (i.e., murder as the principal offender). However, the verdi cts involved separate counts. And as we have stated, “ ‘The several counts of an ind ictment containing
more than one count are not inter dependent and an inconsistency in a verdict does

7. Count 3 charged Ford with the aggravated murder (aggravated burglary) of Jeffrey or Margaret. Specifications 2 and 3 under Count 3 were the same as the speci fications underlying Counts 4 and 5. The jury also found Ford guilty of Count 3 and guilty as th e “principal offender” under Specifications 2 and 3.January Term, 2019

97 not arise out of inconsistent r esponses to different counts, bu t only arises out of inconsistent responses to the same count.’ ” State v. Adams , 53 Ohio St.2d 223, 374 N.E.2d 137 (1978), paragraph tw o of the syllabus. Moreover , the trial court’s merger of the convictions ensured that the murder of Margaret w ith prior calculation and design was the only count with R.C. 2929.04(A)( 7) specifications that was submitted for the jury’s consideration for sentencing. {¶ 348} Third, Ford cites State v. Penix , 32 Ohio St.3d 369, 371, 513 N.E.2d 744 (1987), in arguing that the alternative specifications shou ld not have been submitted to the jury. Penix held that it is error for a trial court to allow the jury to consider prior calculation and de sign together with principal-o ffender status as separate aggravating circumstances. Id . However, the present case differs from
Penix in that the prior-calculation-a nd-design and the principal-offe nder elements of R.C. 2929.04(A)(7) were charged disjunctively to the jury in a single specification. Thus, Ford’s claim that there was a Penix violation lacks merit. See
Cook at 527. {¶ 349} Fourth, Ford argues that the trial court erred by failing to in struct the jurors that to convict h im of the R.C. 2929.04(A)(7) specif ications, they had to agree unanimously on which of the two alternatives (principal o ffender or prior calculation and design) they found him guilty. The court erred by failing to provide
such instructions. See State v. Moore , 81 Ohio St.3d 22, 40, 689 N.E.2d 1 (1998). Because the defense failed to object, however, Ford has forfeit ed all but plain error

. See State v. Sowell , 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 111. No plain error occurred, because the guilty verdict as to Count 4 indicated unanimous agreement that Ford committed the murder with prior c alculation and design. {¶ 350} Finally, Ford argues that the ve rdict forms did not instruct th e jury that they could consider prior calculation and design only if t hey found that he wasS UPREME C OURT OF O HIO

98 not the principal offender. F ord did not raise an objection to the verdict forms and forfeited all but plain error. W e find that no plain error occ urred. {¶ 351} Based on the foregoing, we rej ect proposition of law No. II. N. Readmission of Trial-P hase Evidence and Testimony {¶ 352} In proposition of law No. XIV, For d argues that the trial court erred in readmitting trial-phase evidence and all the trial-phase tes timony during mitigation. {¶ 353} R.C. 2929.03(D)(1) provides that at the penalty stage of a capi tal proceeding, the jury shall consider, among other things, “any e vidence raised at trial that is relevant to the aggravating circumstances the off ender was found guilty of committing * * * [and] hear testimony and other evidence tha t is relevant to the
nature and circumstan ces of the aggravating circumstances the o ffender was found guilty of committing.” See State v. Maxwell , 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 240; State v. DePew , 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542 (1988). {¶ 354} Ford asserts that the trial court erred in readmitting this evi dence because none of it was relevant to the aggravating circumstance s. He argues that the state was merely retrying guilt in the mitigation phase. H e also argues that the prosecutor was trying to admit photographs showing blood so tha t the jury would focus on the gruesomeness of the crimes. {¶ 355} The trial court readmitted only the evidence that it deemed rel evant to the aggravating circumstances. The ring and watch recovered from the dumpster, the stocking cap with Ford’s DNA on it, the gloves worn on the night of the murder, the photographs of the Schoberts’ home, the photograph of the b loody envelope inside Margaret’s purse, and the photograph of blood on the con sole of the car were relevant to the aggravated-robbery and aggravated-burglary spec ifications. The two photographs of Margaret’s injuries and the autopsy reports and protocols for Margaret and Jeffrey were relevant to the course-of-conduct agg ravatingJanuary Term, 2019

99 circumstance. Accordingly, we find that the trial court did not abuse its discretion in readmitting this evidence, because the evidence bore some re levance to the
nature and the circumstances s urrounding the R.C. 2929.04(A)(5) course-ofconduct specification and the (A )(7) felony-murder specificatio n. See Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 189. {¶ 356} The photographs of the hat and the gloves were unnecessarily cumulative and should not have been admitted. Similarly, the p hotographs of the Family Dollar store and dumpster where the ring and watch were found lack relevance and should not have been admitted. Nevertheless, we find that the
readmission of this eviden ce was not prejudicial. {¶ 357} Ford also argues that the trial court erred by readmitting all testimonial evidence, because the jury had no way to disregard evidence that did not relate to the aggravating circumstances. However, defense counsel did not object to the readmission of the trial testimony and thus forfe ited all but plain error. {¶ 358} Ford’s primary complaint is that all testimonial evidence regar ding
the felonious assault of Chelsea was submitted for consideratio n. But the trial court’s instructions on relevancy limited the jury’s considerat ion of the trial-phase testimony to that testimony related to the aggravating circumst ances and the mitigating factors. Thus, there was no room for the jury to co nsider any evidence concerning Chelsea’s felonious assault. {¶ 359} Ford also argues that Dr. Dean’s testimony about the autopsies was not relevant to the aggravating circumstances. Even assuming t hat Dr. Dean’s testimony should not have been cons idered, we hold that no plai n error occurred. {¶ 360} Viewing the mitigation-phase instructions as a whole, we conclu de that the trial court adequately guided the jury’s consideration of the testimony during mitigation. See McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 253-254; Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 251.S UPREME C OURT OF O HIO

100 {¶ 361} Based on the foregoing, we rej ect proposition of law No. XIV.
O. Instructions on M ercy {¶ 362} In proposition of law No. XIX, For d argues that the trial court erred by denying his request for an instruction on mercy . We have consistently rejected
similar claims. See Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, at ¶ 131; State v. Lorraine , 66 Ohio St.3d 414, 417-418, 613 N.E.2d 212 (1993). And contrary to Ford’s claims, neither Kansas v. Marsh , 548 U.S. 163, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006), nor Kansas v. Carr , __ U.S. __, 136 S.Ct. 633, 193 L.Ed.2d 535 (2016), holds that a defendant is entitled to an instruction on mercy

. We reject proposition of law No. XIX.
P. Prosecutorial Misconduct {¶ 363} In proposition of law No. XIII, Ford argues that the prosecutor committed misconduct by disparaging defense counsel during the trial-phase and mitigation-phase closing arguments. Except where noted, howeve r, trial counsel failed to object and thus have forfeited all but plain error. State v. Wade , 53 Ohio St.2d 182, 373 N.E.2d 1244 (1978), paragra ph one of the syllabu s. {¶ 364} The test for prosecutorial misconduct is whether the remarks we re improper and, if so, whether they prejudicially affected the ac cused’s substantial rights. State v. Smith , 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the analysis “is the fairness of the trial, not the culpabil ity of the prosecutor.” Phillips , 455 U.S. at 219, 102 S.Ct. 940, 71 L.Ed.2d 78. 1. Trial-Phase Argument {¶ 365} First, Ford contends that the pr osecutor improperly argued: “An d I guarantee you the defense will suggest to you at points in thei r argument that you should not consider someone because of their background and tha t you would not rely on those people in the most important of your affairs.” F ord argues that the prosecutor was insinuating that the defense would try to get th e jury to do things the law does not permit. It is improper to denigrate counsel i n the jury’s presence.January Term, 2019

101 Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 123. But counsel’s argument was directed a t defense counsel’s anticipate d argument about the state’s witnesses, not defense counsel’s insincerity or imp roper motives. No plain error occurred. See Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 221. {¶ 366} Second, Ford argues that the prosecutor attempted to disparage counsel during rebuttal by arguing: “One of the things I want t o point out at the beginning of this thing is: Mr. Sinn has done what I consider t o be, you know, the Jedi mind trick. It is, you know: Look over here, don’t look a t the evidence.” But the defense had opened the door to these comments by arguing: “ [T]here is a lot more to this case than what you think you know. I mean, the pr osecutor packages it in such a way that it is just so clear that you don’t look a ny further.” Both parties have latitude in responding to ar guments of opposing counsel an d may be “colorful
or creative.” State v. Brown , 38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988). The prosecutor’s comment about “the Jedi mind trick” was a creative response to defense counsel’s argument and was not aimed at denigrating him . State v. Smith , 87 Ohio St.3d 424, 442-443, 721 N.E.2d 93 (2000). Thus, no pla in error occurred. {¶ 367} Third, Ford objects to the prosecutor’s argument about a letter from
Ford to Chelsea that was not admitted at trial:

So what does Mr. Sinn do? Mr . Sinn came up here and told you: If you can’t feel it, put your hands on it—if it is import ant, you should be able to put your hands on it, right? Why is he saying that? Because he knows that there are certain things that you can’t put your hands on.
* * * Mr. Sinn complains because we did not give you the letter that Detective Hitchings talked about that said “I love you to death”S UPREME C OURT OF O HIO

102 in it. You can imagine that letter is probably just full of se lf-serving things the defendant said, and we didn’t feel that that was imp ortant

to our case. If Mr. Sinn does, he has the le tter, he has all the discovery in this case, he has all those thin gs, he has all those interviews

.

{¶ 368} The prosecutor’s rebuttal was fair comment in the face of the defense’s argument, “I didn’t see a jail letter come into evide nce. I don’t know. You can look through 270 pieces of evidence.” “And when a piec e of evidence that comes by that’s so big to you * * * dig through the box, find i t. * * * If it is that important, hold it in your hands.” The prosecutor’s comments w ere directed at the
evidence and not counsel. {¶ 369} Fourth, Ford objects to the prosecutor’s statement, “If Mr. Sin n has some additional evidence about Zach Keys, I will charge him, to o.” But the defense had raised the possibility that Zachary was at the murder scene , the prosecutor’s
comments were aimed at the evide nce and not counsel, and nothin g improper was said. The prosecutor’s comments could also be characterized as the expression of personal opinion, but such comment s are not improper if they ar e based on the evidence presented at trial. Smith , 87 Ohio St.3d at 443, 721 N.E.2d 93. That is
what occurred here. {¶ 370} Fifth, Ford contends that the prosecutor, over defense objectio n, disparaged counsel by arguing: “One of the other things I thoug ht was really funny is—or interesting is, is that they said you don’t know the rest of the story. I didn’t hear anybody tell us the rest of the story.” But the prosecuto r’s characterization of the defense argument as “really funny” was directed at the meri ts of the argument and not counsel. Thus, no error was committed. See Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 221.January Term, 2019

103 {¶ 371} Sixth, Ford contends that the prosecutor improperly argued: “Th e other thing is, he puts that—we call it planting a seed, right? He says, ‘There is more to this case than you think you know.’ What does that mea n? It means nothing.” These were fair comments in the face of the defense argument. Moreover, nothing in these rem arks disparaged counsel. {¶ 372} Finally, Ford contends that the prosecutor attacked defense cou nsel and not the evidence in arguing: “One of the things that I alwa ys, you know, think is interesting is how a defense approaches a case. And that’s fine; they have the right to do that however they want.” These comments implied th at defense counsel’s approach in defending Ford was insincere. See LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 167 (the prosecutor i mproperly juxtaposed his “honest” case with the defense case and unfairly suggested that the defense’s case was not honestly presented). Even so, we conclu de that these were isolated comments that did not deny Ford a fair trial. Thus, n o plain error occurred. 2. Mitigation-Phase Argument {¶ 373} First, Ford objects to the pros ecutor’s argument about the valu e of mitigating evidence:

Now, the past few days may have seemed to drag out longer than you thought they were, but t hese are the w itnesses you hea rd: Kathleen Kovach. She is from the Ohio Parole Board. [Her] testimony is that individuals who receive sentences other than death and other than life without parole are eligible for parole at s ome time. Compare the value of that as a mitigating factor to the aggravating circumstances.S UPREME C OURT OF O HIO

104 {¶ 374} Ford argues that this argument disparaged counsel for spending too long in presenting mitigation. However, the prosecutor’s remar ks about the length of mitigation cannot be reasonably construed as a criticism of defense counsel. Ford also contends that the prosecutor’s request that the jury compare the “value” of mitigating evidence against the aggravating circumstances wa s improper, because the jury’s role is to consider the “weight” of mitigati ng evidence. But nothing in this argument resulted in plain error. {¶ 375} Second, Ford contends that the prosecutor’s rebuttal disparaged how defense counsel argued the case by stating:

[W]hat you just heard was not about the law, it wasn’t about th e facts, it wasn’t about mitigati on, it wasn’t about aggravating circumstances. What yo u just heard is a plea. See, when you don’t have the facts on your side, you pound the law. When you don’t have t he law on your side, you pound t he facts. And when you got neith er on your side, you beg and inte rject race. That’s what you just heard.

{¶ 376} “A prosecutor can respond to issues raised by an accused.” State
v. Cassano , 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 101. Here , in support of the defense counsel’s impassioned plea for a life se ntence for Ford rather than the death penalty, defense counsel argued the reasons why young black men like Ford never really have a fa ir chance. Ford’s counsel was arguing that mitigating factors support a life sentence; the prosecutor argu ed that the aggravating factors support the imposition of the death penalty. While the prosecutor’s remarks
here are dismissive a nd reductive, they do not rise to the leve l of plain error. {¶ 377} Third, Ford argues that the prosecutor committed misconduct during rebuttal argument by stating:January Term, 2019

105 And then: These two are us . You know, they always call us “the government.” And I always go home and tell my wife, “Hey, guess who you are sleeping with tonight, the government.” I am human. Did you think I didn’t feel bad when Mrs. Ford got up there and asked you to save her son’s life? Are you kid ding me? There wasn’t a dry eye in here.

{¶ 378} The state concedes that the prosecutor’s remarks were unnecessa ry but argues that they were just as likely an attempt at levity a s a denigration of
defense counsel. These remarks about the defense argument were improper. However, there is no reasonable basis to conclude that the resu lt of the trial would
have been different absent them. See Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 222. No plain error occurred. {¶ 379} Fourth, Ford objects to the prosecutor’s comments about his mother’s testimony: “How odd is it and ironic is it that the re ason that [Mrs. Ford] is in here crying for you, begging to you, to save her son’s li fe is because of what he did. * * * That’s mitigating? To me, that’s cruel. To ma ke your mother do that, to put your mother through that because of what you did.” These comments, as inappropriate and maybe even as inaccurate as they may have been, were directed toward Ford, and not couns el. But even if such remark s could be imputed to defense counsel, no pl ain error occurred. {¶ 380} Fifth, Ford contends that the re buttal argument disparaged coun sel by saying: “I know Mr. Sinn would not intentionally do this, bu t he kept talking to you about the aggravating circumstances and, okay, Mr. Gessner [the prosecutor] had his hand up here when he said aggravating circumstances.” But this was a response to defense counsel’s argu ment that the state would “ta lk to you about theseS UPREME C OURT OF O HIO

106 aggravating circumstances, and they keep putting their hands up real high, aggravating circumstances.” None of these comments disparaged counsel. {¶ 381} Sixth, Ford contends that the prosecutor’s rebuttal disparaged counsel by stating: “He talks about hate. He is trying to appe al to your sympathies, trying to make you feel like bad people if you were to find the aggravating circumstances outweigh the mitigating factors. Please do not f all for that one.” Ford also cites the prosecutor’s claim that defense counsel was “implying somehow that if you do your job * * * that somehow you are a bad person , and make you feel guilty and bad for following the law. Please, do not do that.” Again, both the prosecutor and defense counsel wer e attempting to persuade the jury to adopt their point of view about the appropria te punishment for Ford. Altho ugh the prosecutor’s remarks here could be viewed as manipulative, they do not rise to the level of plain

error. See Dean , 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, at ¶ 253. {¶ 382} Seventh, Ford argues that the pro secutor inappropriately argued : “And we are here to honor the law, not great speeches, racist s peeches—or speeches about racism, speeches about slavery. * * * I mean, I can’t i magine going back there after hearing that history of slavery in this country and not feeling a little awkward, maybe pandered to.” This rebuttal was a response to d efense counsel’s arguments about racism. His remar ks were directed at the merit s of that argument and not counsel. No plain error occurred. {¶ 383} Eighth, Ford asserts that the prosecutor disparaged counsel by arguing: “And I want to bring up another thing before I close h ere. They talk about his low IQ and they talk about his deficits. * * * I forget h ow he said it; it was really well done. He must have stayed up all night writing it. ” The state’s sarcastic remarks, which were directed a t counsel, were inappropriate and improper. The state concedes that the remarks were unnecessary but argues tha t they did not have any effect on the sentence. We agree. There is no reasonable basis to conclude that the sentence would have been different absent these comments, a nd no plain errorJanuary Term, 2019

107 occurred. See Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 222. {¶ 384} As a final matter, Ford argues that the cumulative effect of th e prosecutor’s sarcastic and denigra ting comments directed at def ense counsel
warrants reversal of the sentence. {¶ 385} For a prosecutor’s closing argument to be prejudicial, the rema rks must be “so inflammatory as to render the jury’s decision a pro duct solely of passion and prejudice.” State v. Williams , 23 Ohio St.3d 16, 20, 490 N.E.2d 906 (1986). To determine whether the remarks were prejudicial, we must review the closing argument in its entirety. State v. Slagle , 65 Ohio St.3d 597, 607, 605 N.E.2d 916 (1992); State v. Moritz , 63 Ohio St.2d 150, 157, 407 N.E.2d 1268 (1980). Thus, we must consider all of the prosecutor’s remarks, irrespective of whether the defense preserved an objection. Keenan , 66 Ohio St.3d at 410, 613 N.E.2d 203 (“even though the defense waived objection to many remarks, tho se remarks still form part of the context in which we evaluate the effect on the jury of errors that were not waived”). {¶ 386} The prosecutor made inappropriate sarcastic remarks twice and also denigrated counsel on one other occasion. However, these were all relatively isolated remarks that did not p ervade the prosecutor’s overall mitigation argument. By comparison, in State v. Kirkland , 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, we concluded that the prosecutor’s closing remar ks during the mitigation-phase argument were improper and “substantially prej udicial.” Id . at ¶ 96. That prosecutor had invited t he jury to consider what th e victim experienced in the last moments of life, incited the jury’s emotions throug h assertions that were not supported by the record, and ar gued that a sentence less th an death was meaningless because he was alr eady serving a life sentence. Id . at ¶ 82, 86-87. {¶ 387} Similarly, in Keenan , 66 Ohio St.3d at 405-411, 613 N.E.2d 203, we held that the prosecutor’s improper argument denied the defe ndant a fair trial.S UPREME C OURT OF O HIO

108 There, the prosecutor improperl y expressed his personal opinion about the defendant’s guilt, denigrated counsel for making objections, co nsistently substituted emotion for reasoned advocacy, and attacked the cha racter of the
defendant’s friends to attack him. Id

. {¶ 388} After reviewing the mitigation-phase closing argument in its entirety, we find that the prosecutors in Kirkland and Keenan committed far more serious and pervasive errors than the prosecutor made here. Th us, we hold that the prosecutor’s closing remarks were not substantially prejudicial and did not deny
Ford a fair trial. {¶ 389} Based on the foregoing, we rej ect proposition of law No. XIII. Q. Ineffective Assistance of Counsel {¶ 390} In proposition of law No. XX, For d raises various claims that h is counsel provided ineffective a ssistance during both phases of t he trial. {¶ 391} Reversal of a conviction for inef fective assistance of counsel requires that the defendant show , first, that counsel’s perform ance was deficient and second, that the deficient p erformance prejudiced the defen dant so as to deprive
the defendant of a fair trial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph t wo of the syllabus. 1. Failure to Follow up on Grand-Jury Motions {¶ 392} Ford argues that trial counsel provided ineffective assistance by failing to follow up on three pretrial motions related to the g rand jury: (1) a motion to disclose the names of grand-jury witnesses, (2) a request to transcribe the grandjury testimony, and (3) a request f or a pretrial copy of the gr and-jury proceedings. {¶ 393} At a hearing on November 26, 2013, the state objected to all th ree motions because the defense failed to show a “particularized ne ed” for disclosure. Defense counsel responded that a relaxed standard for the relea se of grand-jury testimony should apply in capital cases. The trial court took the motions underJanuary Term, 2019

109 advisement. At a later hearing, on February 4, 2014, defense c ounsel argued for the disclosure of grand-jury witnesses and proceedings in every capital case. On September 24, 2014, the trial court ruled that the defense had failed to meet the “heavy burden” for “the disclosure of any of the Grand Jury mat erials referred to in those three motions; theref ore, those motions will be overru led.” {¶ 394} We have recognized a limited exception to the general rule of grand

- jury secrecy: an accused is not entitled to review the transcript o f grand

- jury proceedings “unless the ends of justice require it and there is a showing by the
defense that a particularized need for disclosure exists which outweighs the need for secrecy.” State v. Greer , 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph two of the syllabus. A particularized need is established “when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny
the defendant a fair trial.” State v. Sellards , 17 Ohio St.3d 169, 173, 478 N.E.2d 781 (1985). Determining whether a particularized need exists is a matter within the
trial court’s discretion. Greer at paragraph one of the syllabus. {¶ 395} First, Ford argues that defense counsel were negligent in failing to follow up on the grand-jury motions after the November 26, 2013 hearing. However, defense counsel did follow up on the motions on Februa ry 4, 2014. This preceded the trial court’s ru ling on the motions on September 2 4, 2014. {¶ 396} Second, Ford argues that defense counsel were ineffective by failing to raise meritorious arguments in support of his motion s. He contends that the defense needed the grand-jury testimony because the lay wit nesses provided inconsistent statements. However, the mere possibility of inco nsistent testimony
does not rise to the level of a particularized need that would warrant the disclosure of grand-jury testimony. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 44. {¶ 397} Third, Ford asserts that the defense needed to know whether Detective Morrison testified before the grand jury, because he did not testify at trial,S UPREME C OURT OF O HIO

110 and perhaps the defense would ha ve called him as a witness if i t had known what he had said before the grand jury. But Ford was required to sh ow that nondisclosure of the grand-jury testimony would probably deprive him of a fai r trial. Ford’s speculative claim about Morrison f ails to make such a showing. See Lang at ¶ 45. {¶ 398} Finally, Ford argues that defe nse counsel should have argued th at the defense was unable to establish a particularized need witho ut knowing who testified before the grand jury. The same arguments have previ ously been rejected.
Id . Accordingly, we conclude that these ineffectiveness claims l ack merit. 2. Failure to Request Change of Venue {¶ 399} Ford argues that defense counsel were ineffective by failing to request a change of venue. As an initial matter, it is unclear whether defense counsel filed a motion for change of venue. Nothing in the rec ord shows that defense counsel actually filed su ch a motion. However, followi ng the end of individual voir dire, the trial c ourt stated that the defense m otion for a change of
venue was overruled. {¶ 400} Regardless, Ford cannot show that he was prejudiced by defense counsel’s alleged failure to file a motion for change of venue. Counsel may have reasonably decided as a matter of trial strategy to conduct the trial in Summit County. See State v. Frazier , 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 234; State v. Bryan , 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 156, quoting State v. Mason , 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (“reviewing
court ‘will not second- guess trial strategy decisions’ ”). And the record does not show the pervasive publicity a bout which Ford complains. {¶ 401} In addition, a change of venue is not automatically granted whe n there is pretrial publicity. Any decision to change venue rest s largely within the discretion of the trial judge. See White , 82 Ohio St.3d at 25, 693 N.E.2d 772. Also, a “defendant claiming that pretrial publicity has denied him a fair trial must showJanuary Term, 2019

111 that one or more jurors were actually biased.” State v. Gross , 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 29. {¶ 402} The jurors filled out questionnair es and were questioned about pretrial publicity. Seven of the seated jurors during delibera tions had not been exposed to any media coverage about the case. One juror heard on TV that two people died, another saw a news r eport, and a third read about the violent death of a prominent couple in the newspaper. Of the remaining two juro rs, one had heard that someone had broken into a home and killed people with a sl edgehammer. The other remembered hearing that an older man coerced a younger ma n into committing the murders and that the older man had something to do with the victims’ daughter. Moreover, all the jurors who knew about the case indicated that they could set aside their knowledge of the case and that the p retrial publicity would not affect their ability to be fair and impartial. See Frazier at ¶ 236. Thus, counsel could have reasonably decided not to request a change of venue. See Bryan at ¶ 156. Accordingly, we reject this ineffectiveness claim. 3. Failure to Question or Object t o Jurors Exposed to Pretrial Publicity

{¶ 403} Ford argues that defense counsel failed to question or object t o juror Nos. 39, 48, 72, or 78 about pretrial publicity. {¶ 404} In general, “it is for [trial] c ounsel to determine what questi ons should be asked on voir dire.” State v. Group , 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 139. “We have consistently declined to ‘seco nd-guess trial strategy decisions’ or impose ‘hi ndsight views about how curren t counsel might have voir dired the jury differently.’ ” State v. Mundt , 115 Ohio St.3d 22, 2007- Ohio-4836, 873 N.E.2d 828, ¶ 63, quoting Mason , 82 Ohio St.3d at 157, 694 N.E.2d
932. {¶ 405} Ford fails to explain what add itional information defense couns el
should have obtained from these prospective jurors or how defen se counsel could have challenged these jurors. A s discussed earlier, all the ju rors who knewS UPREME C OURT OF O HIO

112 something about the case assured the court that they could be f air and impartial. Thus, this claim lacks merit. See State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 50. 4. Failure to Exhaust Peremptory Challenges {¶ 406} Ford argues that counsel were in effective by failing to exercis e all of his peremptory challenges. {¶ 407} Decisions on the exercise of peremptory challenges are a part o f trial strategy. State v. Goodwin , 84 Ohio St.3d 331, 341, 703 N.E.2d 1251 (1999). Trial counsel, who observe the j urors firsthand, are in a much better position to determine whether a prospective juror should be peremptorily ch allenged. See
Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 99. {¶ 408} Ford argues that the defense shoul d have used their last peremp tory challenge against either juror No. 39 or No. 72 because they we re automatic-deathpenalty jurors. However, as dis cussed in proposition of law No . VI, nothing shows that either juror was biased or would automatically vote for th e death penalty. Thus,
Ford fails to show that defense counsel were deficient or that he was prejudiced by the failure to challenge these jurors. See Dean , 146 Ohio St.3d 106, 2015-Ohio4347, 54 N.E.3d 80, at ¶ 264. {¶ 409} Ford also contends that he was prejudiced because counsel’s fai lure to exhaust Ford’s peremptory challenges waived any objection to the trial court’s denial of a challenge of a juror. See Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 87. However, Ford has failed to establish that he was prejudiced by counsel’s action. T hus, we reject this claim. 5. Praising the Victims {¶ 410} Ford argues that counsel were ineffective by praising the victi ms’ character. During opening state ment, defense counsel reviewed the victims’ background, stating that Jeffrey was a “well-known and highly r egarded” attorney.
Counsel added:January Term, 2019

113 As the prosecution indicated, Attorney Schobert and his wife had been married for many, many years. They adopted two daughters. You know, there is a saying about children of adopt ion, that God blesses them because they get to choose those children

. And by every measure, the Schoberts were remarkable parents and they chose their daughters.
* * *
The Schoberts were well-known i n this community for their good works. Attorney Schobert mentored the Hoban mock trial team for years. He touched the lives of dozens of students.
* * * * * * [Mrs. Schobert] was the perfect counterpart to Mr. Schobert. And her dedication to her daughters, her love of thi s community, her work in various s ocial organizations unparallele d.

{¶ 411} The defense can legitimately c hoose a strategy that is aimed at building rapport with the jury. See Frazier , 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 225; Bryan , 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, at ¶ 168-169. It is not clear why defense counsel chose t o praise the Schoberts. However, it appears the defens e was trying to establish credibi lity with the jury by demonstrating awareness of the j urors’ likely concern for the v ictims’ family. Ford fails to establish that he was prejudiced by these comments. T hus, we reject this
ineffectiveness claim. {¶ 412} Ford also argues that defense counsel improperly interjected victim-impact evidence during t he cross-examination of Chelsea:S UPREME C OURT OF O HIO

114 Q: So who tells you that your parents are dead? Detective King?
A: Yes. Q: And at some point, that causes you a new—incredible
amount of distress?
A: Yes.

The trial court then interrupted, stating, “It seems to me you have crossed a line into victim impact information when you ask her about the incredible amount of distress that she suffered as a result of her parents dying.” Defense c ounsel replied, “Well, I guess I am just trying to establish what events took place af ter she found out her parents died.” Although this cro ss-examination was of question able relevance,
Ford does not show that he was prejudiced by such remarks. {¶ 413} Finally, Ford contends that defe nse counsel improperly mentione d victim-impact evidence before the trial court imposed sentence. Counsel stated, “The Schoberts were highly regarded in this community. Myself, throughout the course of this case, I’ve encount ered people who knew the Schob erts. They would
tell me about Mr. Schobert’s inte llect, his landscaping busines s when he was young.” The trial court inte rrupted defense counsel and advise d caution in discussing victim- impact information. {¶ 414} “Absent an indication that the t rial court considered the victi mimpact evidence in arriving at its sentencing decision, the adm ission of such evidence is not reversible error. * * * [T]his court will pre sume that a trial court considered only the relevant, material, and competent evidence in arriving at its judgment, unless the contrary affirmatively appears from the re cord

. ” State v. Myers , 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 131. No thing
shows that the trial court cons idered defense counsel’s stateme nts about the victim’s background in sentencing Ford to death. Accordingly, Ford fails to showJanuary Term, 2019

115 that he was prejudiced by defens e counsel’s improper argument. We reject this
ineffectiveness claim. 6. Requesting Excusal of Juror No. 19 {¶ 415} Ford argues that trial counsel were ineffective by requesting t he court to excuse juror No. 19 because she was a holdout juror. {¶ 416} As discussed in proposition of law Nos. VIII and IX, the defens e had unsuccessfully challenged juror No. 19 on two occasions: fi rst, because she was a paralegal and had interned for the state, and second, bec ause she attended the same church as Detective King. During the trial-phase delibera tions, the parties learned that juror No. 19 was Facebook friends with several mem bers of the prosecutor’s office. Defense counsel requested that juror No. 19 be excused, and the trial court excused her. In an interview later published i n the Akron Beacon
Journal , juror No. 19 stated that she had changed her mind and was plann ing to remove her signature from the ve rdict convicting Ford of Jeffre y’s murder when she was excused from the panel. {¶ 417} The scrutiny of counsel’s decision to request that juror No. 19 be excused requires that this c ourt make “every effort * * * to el iminate the distorting effects of hindsight, to recons truct the circumstances of couns el’s challenged conduct, and to evaluate the conduc t from counsel’s perspective at the time.”
Strickland , 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. {¶ 418} In light of the prior defense ch allenges, defense counsel acted reasonably by requesting that juror No. 19 be excused after the y learned that she was Facebook friends with the Summit County prosecutor and some of her staff. In making this decision, defense counsel could not have known t hat juror No. 19 was prepared to vote not guilty. Thus, viewed from counsel’s p erspective at the time, we conclude that counsel were not deficient in moving to excuse juror No.
19.S UPREME C OURT OF O HIO

116 7. Presentence Investigation {¶ 419} Ford argues that defense counsel were ineffective in requesting a presentence investigation (“ PSI”). R.C. 2929.03(D)(1) provides that “[a] presentence investigation or mental examination shall not be made except upon request of the defendant. Copies of any reports prepared under this di vision shall be furnished to the court, to the trial jury if the defendant was tried by a jury, to the prosecutor, and to the offender or the offender’s counsel for u se under this division.” (Emphasis added.) {¶ 420} During mitigation-phase deliberations, the trial court mentione d that defense counsel had requested a PSI and mental-health exam ination pursuant to R.C. 2929.03(D)(1). The trial c ourt raised the question whe ther the PSI and Dr. Stankowski’s report, which was c onsidered to be the mental-heal th report, should be provided to the jury. {¶ 421} Defense counsel objected to the PSI because it was completed in haste and contained damaging inf ormation as to future dangerous ness. Counsel added that they did not have an opportunity to talk with Ford b efore he spoke to the probation officer. Defense counsel requested to withdraw the P SI and wanted only Dr. Stankowski’s report to be s ubmitted. In the alternative, d efense counsel asked “that neither go in.” The trial court granted the defense requ est to withdraw the
PSI. {¶ 422} The state disputed that the PSI was completed in haste and argu ed that they would have called othe r witnesses if they had known t hat Dr. Stankowski’s report would be pr ovided to the jury. The trial c ourt then decided, “I am going to follow the statute, and both documents will go to t he jury.” After a short recess, the trial court announced that “neither document will go to the jury.”January Term, 2019

117 {¶ 423} Defense counsel submitted a request for Dr. Stankowski’s expert assistance pursuant to R.C. 2929.024. 8 Ford contends that if defense counsel had
understood that Dr. Stankowski’s assistance was requested under R.C. 2929.024, they could have gotten her repor t to the jury while avoiding th e R.C. 2929.03(D)(1) requirement that the PSI also be submitted to the jury. But ev en so, Ford was not prejudiced by the failure to sub mit Dr. Stankowski’s report to the jury, because she provided lengthy mitigation testimony that covered much of the same information contained in her report. Thus, w e hold that this ineffectivene ss claim lacks merit. 8. Deficiency in Raising I ntellectual Disability {¶ 424} Ford argues that defense counsel were ineffective in pursuing h is intellectual-disability claim. H owever, it is unnecessary to r eview this claim, because we are remanding to the trial court for further review of Ford’s intellectualdisability claim. 9. Other Ineffective-Assistance Allegations {¶ 425} Ford raises other instances of alleged ineffectiveness of couns el. But as discussed in other propositions of law, even if counsel were deficient, no prejudice resulted. Ford has fa iled to establish that he was p rejudiced by:

 counsel’s failure to object to the trial court’s and the pros ecutor’s voir dire misstatements and shorthand references to the weighing process (proposition of law No. V);

 counsel’s isolated remarks refe rring to the aggravating circu mstances as the “bad stuff”;

 counsel’s failure to more fully develop the issue of police c oercion during his April 3, 2013 interview ( proposition of law No. I);

8. R.C 2929.024 states: “ If the court determines that the defendant is indigent and that investigation services, experts, or other services are reasonably necessary f or the proper representation of a defendant charged with aggravated murder at trial or at the sen tencing hearing, the court shall authorize the defendant’s counsel to obtain the necessary servi ces for the defendant * * *.”S UPREME C OURT OF O HIO

118  counsel’s failure to request an evidentiary hearing before he was ordered to be shackled (proposition of law No. XV);

 counsel’s failure to apprise th e trial court of Crim.R. 16(I) provisions during closing arguments (proposition of law No. XVI);

 counsel’s failure to object to the verdict forms or the verdi ct that he killed Margaret with prior calculati on and design (proposition of law No. II); and

 counsel’s failure to object to the prosecutor’s improper rema rks during the trial-phase and mitiga tion-phase closing arguments (proposition of law No. XIII).
10. Cumulative Error {¶ 426} Finally, Ford argues that defense counsel’s cumulative errors a nd omissions violated his constitutional rights. However, because none of Ford’s claims of ineffective assistance has merit, he cannot establish a right to relief by simply joining these claims together. See Mammone , 139 Ohio St.3d 467, 2014- Ohio-1942, 13 N.E.3d 1051, at ¶ 173. {¶ 427} Based on the foregoing, we rej ect proposition of law No. XX. R. Sentencing Opinion {¶ 428} In proposition of law No. XVII, Ford argues that there are
numerous errors in the trial court’s sentencing opinion. {¶ 429} R.C. 2929.03(F) sets forth the findings a trial court must make when imposing a death sentence. The statute requires that the court shall state the following in a separate opinion:

specific findings as to the existence of any of the mitigating factors set forth in division (B) of section 2929.04 of the Revised Cod e, the existence of any other mitigating factors, the aggravating circumstances the offender was found guilty of committing, and theJanuary Term, 2019

119 reasons why the aggravating circumstances the offender was foun d guilty of committing were sufficient to outweigh the mitigating
factors.

{¶ 430} First, Ford argues that the trial court improperly referred to the R.C. 2929.04(A)(5) course-of-conduct spec ifications as the “multiple killing specifications.” The trial court misspoke. However, the trial court had earlier correctly identified the R.C. 2929.04(A)(5) specifications as “ a course of conduct involving the purposeful killing or attempt to kill two or more persons.” Thus, the
trial court did not mis understand the meaning of those specific ations. {¶ 431} Second, Ford argues that the trial court improperly stated that he was found guilty of “Specifications Two and Three to Counts Fou r and Five, with the determination that he committed the aggravated murder of Ma rgaret J. Schobert with prior calculation and design while committing * * * aggrav ated robbery.” This was a misstatement, because Ford was found guilty of murde r during an aggravated burglary in Specification 3. But this misstatement was harmless because the trial court correctly identified the specifications elsewhere in the opinion. {¶ 432} Third, Ford discounts the trial c ourt’s statement that it did n ot consider a list of irrelevant evidence. Ford argues, “If he ex amined them, he was aware of them and it is hard to somehow wipe that evidence from his mind in making his determination. It is like unringing his own bell.” However, Ford’s claim overlooks that “a judge is presumed to be capable of sepa rating what may be properly considered from what may not be considered.” In re Disqualification of Forsthoefel , 135 Ohio St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 9

. Ford presents nothing to overcome th at presumption. Thus, we reject this claim. {¶ 433} Fourth, Ford argues that the trial court improperly compared hi m with other family members by stating, “[M]any people grow up in circumstancesS UPREME C OURT OF O HIO

120 similar to Defendant Ford’s and do not resort to criminal condu ct. Indeed, his own sister and two step brothers, who grew up in almost the exact s ame environment are examples of how people from challenging backgrounds can liv e law abiding lives.” However, such comparison was not improper. See State v. Hanna , 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 101; Campbell , 90 Ohio St.3d at 343, 738 N.E.2d 1178. {¶ 434} Fifth, Ford contends that the trial court improperly examined a ll the statutory mitigating factors even though the defense did not pr esent evidence related to many of them. Howev er, this claim overlooks the tri al court’s statement, “The court did not consider any mitigating factors under R.C. 2 929.04 not raised by the defense (e.g., R.C. 2929.04(B)(1), (2), (5), or (6)) and has given no weight to the fact that the defense pres ented no evidence relating to those statutory factors.”
The trial court’s di sclaimer belies Ford ’s contention, and this claim is rejected. {¶ 435} Sixth, Ford argues that the trial court improperly discounted D r. Stankowski’s testimony concerning Ford’s drug and alcohol abuse . The trial court
said that Dr. Stankowski’s tes timony supported her conclusion t hat Ford has an
“alcohol use disorder” that cont ributed to his reckless or dang erous behavior. The trial court stated, “Apart fro m the impact of alcohol use on De fendant Ford’s antisocial personality disorder, t he court finds this factor to carry no weight. There
was no evidence that Defendant F ord was under the influence of alcohol at the time of the murder of Margaret Schobert.” {¶ 436} The assessment and weight to be given to mitigating evidence ar e matters for the trial c ourt’s determination. Hanna, 95 Ohio St.3d 285, 2002-Ohio2221, 767 N.E.2d 678, at ¶ 103. The trial court could properly conclude that Ford’s history of alcohol abuse was not entitled to any weight beyond that attributable to its impact on his antisocial personality disorder. However, th e trial court improperly discounted Ford’s alc ohol use by assigning no weight to it as a mitigating factor simply because he was not under the influence of alcohol at theJanuary Term, 2019

121 time of Margaret’s murder. The court’s statement in that regar d reflects an incorrect definition of mitigation, one that relates to culpabi lity, as opposed to those
factors that are relevant to whether the offender should be sen tenced to death. See State v. Goff , 82 Ohio St.3d 123, 133-134, 694 N.E.2d 916 (1998); State v. Holloway , 38 Ohio St.3d 239, 527 N.E.2d 831 (1988), paragraph one of th e syllabus (mitigation not about blam e or culpability but rather about pun ishment). {¶ 437} Seventh, Ford contends that the tr ial court improperly weighed the aggravating circumstances against the mitigating factors by con sidering him both the principal offender (i.e., the actual killer) and not the pr incipal offender. The trial court, in weighing the agg ravating circumstances against the mitigating factors, stated: “Ford purposely caused the death of Margaret J . Schobert as a part of a course of conduct involving t he purposeful killing of two or more persons by the defendant. In this case, [Ford] was the actual killer * * *. Both people were killed when the defendant inflicted multiple sledgehammer blows to their heads.” The trial court added: “The defendant also committed the Aggrav ated Murder of [Margaret] while committing or attempting to commit Aggravated Robbery and Aggravated Burglary. And he committed the Aggravated Murder wi th prior calculation and design.” These c onflicting findings were erron eous. {¶ 438} Finally, Ford argues that the trial court erred by not giving w eight to the R.C. 2929.04(B)(6) accomplice-only mitigating factor. T he trial court noted that the defense presented no argument or mitigating evidence o n this factor and did not request the jury to be instructed on it. Moreover, “[t ]he weight, if any, given to a mitigating factor is a matter for the discretion of the in dividual decisionmaker.” State v. Filiaggi , 86 Ohio St.3d 230, 245, 714 N.E.2d 867 (1999). {¶ 439} Based on the foregoing, we hold that proposition of law No. XVI I has merit. On remand, we direct t he trial court to correct the misstatements that we
have identified in its sentencing opinion.S UPREME C OURT OF O HIO

122 S. Cumulative Error {¶ 440} In proposition of law No. XXI, Ford argues that the cumulative errors during both phases of the proceedings deprived him of a fair trial and a reliable mitigation hearing. However, Ford was not prejudiced by any error at his trial. Thus, we reject this claim. T. Constitutionality {¶ 441} In proposition of law No. XXII, Ford argues that Ohio’s capital

sentencing procedures violate the Sixth Amendment right to a ju ry trial as construed
in Hurst v. Florida , __ U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). We reject this argument on the authority of State v. Mason , 153 Ohio St.3d 476, 2018-Ohio1462, 108 N.E.3d 56, which rejected the same Hurst claim. {¶ 442} In proposition of law No. XXIII, Ford challenges the constitutionality of Ohio’s death-penalty statutes and claims t hat the statutes violate
international law and treaties to which the United States is a party. We have previously rejected the same arguments. See, e.g., Thompson , 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 279-280. U. Appropriateness and Proportionality of the Death Sentence {¶ 443} In proposition of law No. XVIII, Ford argues that the death sentence is not an appropriate se ntence because of his backgrou nd, his low IQ score, and his youth at the time of the offenses. He also argues that his sentence is not proportional given similar cases in which the death penalty was imposed or could have been imposed. We will not cons ider these arguments at thi s time.
V. Conclusion {¶ 444} We affirm Ford’s convictions. How ever, we vacate the sentence and remand to the trial court to hold a new hearing to determin e Ford’s intellectual disability, see Atkins , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, and prepare a new sentencing opinion as required by R.C. 2929.03(F), correc ting theJanuary Term, 2019

123 misstatements that we have identified. The trial court shall a lso conduct whatever other proceedings are required b y law and consistent with this opinion. Judgment affirmed in part and vacated in part,
and cause remanded.
O’C ONNOR , C.J., and F RENCH , F ISCHER , and D ONNELLY , JJ., concur.
D E W INE , J., concurs in part and disse nts in part, with an opinion joi ned by
K ENNEDY , J.

_________________ D E W INE , J., concurring in part a nd dissenting in part. {¶ 445} I would affirm the trial court’ s judgment in full. The burden was on Shawn Ford to show that he is intellectually disabled. He c ame nowhere near meeting his burden—in fact the e vidence strongly supports the c onclusion that he is not intellectually disabled. Therefore, I respectfully diss ent from the majority’s judgment remanding the case for a new hearing under Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). {¶ 446} The majority takes issue with the trial court’s application of the rule
that this court laid down in State v. Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, 779
N.E.2d 1011

. Relying on the United States Supreme Court’s recent decision in
Moore v. Texas , the majority concludes that Lott is no longer good law in light of current psychological diagnostic standards. See Moore , __ U.S. __, 137 S.Ct. 1039, 1045, 197 L.Ed.2d 416 (2017). Thus, the majority holds, Ford i s entitled to a new hearing to determine whether he is intellectually disabled unde r those current standards. The problem is that the evidence adduced at the Atkins hearing that was already held shows that even unde r the most current diagnostic standards, Ford came nowhere near meeting his burden to show that he is intelle ctually disabled. Indeed, all three experts asked to opine on the matter conclude d that Ford is not intellectually disabled.S UPREME C OURT OF O HIO

124 {¶ 447} In Lott, this court confronted the task of applying the Atkins prohibition against the executi on of intellectually disabled de fendants. In addition to adopting clinical definitions of mental retardation (now int ellectual disability),
the court held that the burde n fell on the defendant to prove b y a preponderance of the evidence that he is intellectually disabled. Lott at ¶ 11-12, 21. While the majority opinion takes issue—perhaps justifiably—with the test stated in Lott for determining whether a person is intellectually disabled, there has been no suggestion that the defendant’s burden should change. And here , there is no question that Ford did no t meet that burden. {¶ 448} Ford’s own expert, Dr. Karpawich, was hamstrung in his ability to evaluate whether Ford is intellectually disabled because Ford r efused to be interviewed by him. Nevertheless, using the resources availabl e to him, Dr. Karpawich noted that Ford “has b een evaluated on many prior occ asions by educational professionals and ps ychologists, and he has never b een given the diagnoses of mental retardation/intellectual disability.” And Dr. Karpawich concluded that “[b]ased upon the available information, it is m y opinion, with reasonable scientific certainty, that there is insufficient inf ormation to conclude that
the defendant fulfills the criteria for mental retardation/inte llectual disability.” At
the Atkins hearing, Ford did not challenge h is expert’s opinion or argue t hat an
incorrect standard was used. {¶ 449} Dr. Karpawich’s opinion was echoe d by the state’s expert, Dr. Sylvia O’Bradovich, and the cour t’s expert, Dr. Katie Connell. And again, Ford did not challenge their conclusi ons. It’s not surprising, then , that the trial court
found that Ford had not met his burden to prove he has an intel lectual disability. {¶ 450} Nevertheless, the majority adopts Ford’s arguments and conclude s that he should be given a new hear ing because the rule we laid out in Lott does not apply current diagnostic standard s. Specifically, the majority reasons that the trial
court erred when it didn’t take into account the standard error of measurementJanuary Term, 2019

125 (“SEM”) in assessing Ford’s IQ scores and when it applied Lott ’s requirement that
a defendant show deficits in two areas of adaptive behavior. W hile there is room for improving the test laid out in Lott to adjust for changes in diagnostic standards, the evidence before the court reflected the experts’ applicatio n of the current standards. Thus, any problem with the Lott test was not prejudicial to Ford. Intellectual Functioning {¶ 451} In Lott , this court held that there wa s a rebuttable presumption that
a defendant was not intellectuall y disabled if his IQ was over 70. Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 12. The major ity correctly notes
that in Hall v. Florida the Supreme Court explained that “an individual’s intellectual functioning cannot b e reduced to a single numerica l score.” Hall v.
Florida , 572 U.S. 701, 713, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014); accord
Moore v. Texas , __ U.S. __, 137 S.Ct. 1039, 1050, 197 L.Ed.2d 416 (2017). Ra ther,
“the SEM means that an individua l’s score is best understood as a range of scores
on either side of the recorded score.” Hall at 713. Hall requires that a defendant facing the death penalty be able to present other evidence of i ntellectual disability, including evidence of “deficits in adaptive functioning,” when IQ test results place the defendant within a statistical range that could indicate in tellectual disability.
See id . at 724. Nothing about the trial-court decision below is at o dds with Hall. Indeed, after carefully considering the various IQ test results and expert testimony about each, the court looked to o ther evidence of intellectual disability, including Ford’s adaptive functioning. {¶ 452} Nevertheless, the major ity concludes that the trial court erred in disregarding the SEM and failing to consider that the lower end of the SEM range could include an IQ score below 70. But the court didn’t disre gard the lower end. Instead, it concluded that Ford ha dn’t met his burden of provin g he has significantly subaverage intellectual functioning. And there is overwhelming support for this finding in the record. Three out of six of Ford’s IQ scores, e ven taking the SEMS UPREME C OURT OF O HIO

126 into account, land above 70. And two of the tests that fell be low that level were uniformly discounted by all three experts on grounds that they underestimated his actual intelligence. That leaves just one test, fixed on by th e majority, which established an IQ range of 69-83. But any support for Ford’s c laim provided by that test is substantially outweighed by the other tests and by the unanimous view of all three experts who testifie d that Ford is not intellectua lly disabled. {¶ 453} Even though the IQ tests, when viewed together, support the
conclusion that Ford is not inte llectually disabled, the trial court also considered Ford’s adaptive functioning. It is thus unclear what the major ity finds lacking in the trial court’s assessment. The majority accuses the trial c ourt of “disregarding the SEM,” majority opinion at ¶ 84. But under Moore , the relevance of looking to
the SEM is that when the lower end of the SEM falls in the inte llectually disabled range, a court should also consider adaptive functioning. See Moore at __, 137 S.Ct. at 1049. That’s precisely wha t the trial court and all t hree experts did. Adaptive Functioning {¶ 454} Based on the diagnostic standards in place at the time, Lott held that to prove intellectual disability, a defendant must show “signif icant limitations in two or more adaptive skills.” Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 12. Current diagnostic standards instead ask whethe r there are significant deficits in any of three adaptive skill sets. See Moore at __, 137 S.Ct. at 1046. The majority relies on Moore to find that the trial court erred in applying the older
standards set forth in Lott . But Moore involved a much differe nt fact pattern. {¶ 455} In Moore , the Texas court not only adhered to old standards, despite evidence that the defendant had an intellectual disability as d efined under the new standards, but also refused to account for SEM in considering t he defendant’s IQ

score. See Moore at __, 137 S.Ct. at 1050. More tr oublingly, the court balance d adaptive deficits with what it considered strengths and used ev identiary factors not supported by clinical studies. Id

.January Term, 2019

127 {¶ 456} Ford’s case differs considerably. First, unlike in Moore , there is no suggestion that Ford would be found intellectually disabled wer e new standards used. Further, both the state ex pert and the court expert—the only experts given an opportunity to talk with Ford—applied current psychological sta ndards. Dr. O’Bradovich’s adaptive-behavior e valuation considered Ford’s co mmunication, daily-living, and socialization skills and concluded that the r esults were “not indicative of significant defic its in adaptive functioning.” D r. Connell explicitly
used the current DSM-5 and AA IDD-11 standards cited in Moore . Applying these standards, Dr. Connell concluded that the available evidence di d not support deficits due to intellectual disability in any of three adaptiv e behavior areas— conceptual, social, or practical . And while Ford’s expert, Dr. Karpawich, did not personally interview Ford, he a ssessed Ford’s adaptive function ing using available resources, and did not conclude t hat Ford is intellectually dis abled. Simply put, Ford came nowhere near showing by a preponderance of the eviden ce that under either set of standards, he i s intellectually disabled. {¶ 457} That isn’t to say Lott wouldn’t benefit from a reworking. There are problems inherent in incorpora ting current psychological standa rds into a test that will be used for years to come. A better rule would tie the as sessment to contemporary standards, requiring demonstration of the followin g: (1) significantly subaverage intellectual function (making clear that SEM must be considered), (2) significant deficit in adaptive functioning, as defined by psyc hological standards in place at the time of the evaluati on, and (3) onset before age 1 8. Such an adjustment
in Lott ’s rule would recognize the impor tance of looking to the expert ise of medical professionals, as noted in Lott , 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 18, and Hall , 572 U.S. at 721, 134 S.Ct. 1986, 188 L.Ed. 1007. The Flynn Effect {¶ 458} The majority also instructs the trial court to at least discuss the “Flynn Effect” even though it notes that the trial court has di scretion in decidingS UPREME C OURT OF O HIO

128 whether to apply it. The Flynn Effect arises out of the fact t hat IQ scores are normed based on comparisons to the general population. Since the gene ral population is getting more intelligent over time—at least in ways measured by IQ tests—this means that what would have been average intelligence 100 years ago (receiving an IQ score of approximately 100) woul d be at the bottom end of th e distribution now (receiving an IQ score of approximately 70). See Black v. Carpenter , 866 F.3d 734, 749 (6th Cir.2017). {¶ 459} The relevance of the Flynn Effect to the determination of intellectual disability in capital cases has never been address ed by the U.S. Supreme Court. But some have argued that taking the Flynn Effect into account can eliminate a degree of arbitrariness in IQ scores depending on w hen an IQ test was taken and when it was normed. As Dr. Flynn himself has explain ed, if two defendants of the same intelligence were tested using different tests, of which one was normed 25 years earlier and a nother was normed more recentl y, the first might show an IQ score above 70 and fa ce the death penalty, while the latter might show
a score below 70 and not. See James R. Flynn, Tethering the Elephant: Capital Cases, IQ, and the Flynn Effect , 12 Psychol.Pub.Pol’y & L. 170, 174 (2006). But this merely underscores the importance of Hall ’s reminder that rigid reliance on IQ
scores alone should be resisted. Hall at 724; see also Bonnie & Gustafson, The Challenge of Implementing Atkins v. Virginia : How Legislatures and Courts Can Promote Accurate Assessments and Adjudica tions of Mental Retardation in Death Penalty Cases , 41 U.Rich.L.Rev. 811, 841-845 (2007). {¶ 460} In this case, I would not remand for the trial court to assess the relevance of the Flynn Effect, because applying the Flynn Effec t doesn’t change the analysis. As Dr. Connell opined, the Flynn Effect would me aningfully affect only one of the IQ tests, yielding a modified IQ score of 72. The relevance of the Flynn Effect, then, is just that it might trigger a more search ing look at adaptive functioning, as required by Hall and Moore . But the trial court in this case alreadyJanuary Term, 2019

129 engaged in that more searching inquiry, with the aid of three e xperts, all of whom
concluded that Ford is not intellectually disabled.
Conclusion {¶ 461} Here, the trial court’s findings were informed by the view of medical experts, all of whom carefully looked at both Ford’s IQ scores and his adaptive functioning. Every expert opined that Ford does not h ave an intellectual disability. To remand this case in the face of such strong evi dence is simply wrong
as a matter of law. For that r eason, I respectfully dissent.
K ENNEDY , J., concurs in the foregoing opinion.

_________________ Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Hea ven R. DiMartino and Jacque nette S. Corgan, Assistant Prosecuting Atto rneys, for appellee.
Maro and Schoenike Company and Lynn A. Maro; and John B. Juhasz , for appellant. Dave Yost, Attorney General, Benjamin M. Flowers, State Solicit or, and M. Ryan Harmanis and Thomas E. Madde n, Assistant Attorneys General , for amicus curiae, Ohio Attorney General.

_________________