[Cite as State v. Haywood , 2017-Ohio-8299.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. DESHANON HAYWOOD Appellant C.A. No. 28040

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2013 05 1404 (A)

DECISION AND JOURNAL ENTRY Dated: October 25, 2017

CARR, Judge. {¶1} Defendant-Appellant, Deshanon Haywood, ap peals from his convictions in the Summit County Court of Common Pleas. This Court affirms.

I. {¶2} During the early morning hours of Apr il 18, 2013, four people were murdered in the basement of an apartment on Kimlyn Circle in Akron. R.R., one of the victims, resided at the apartment and had received a sizeable amount of heroin the night before his murder. The three other victims found alongside him were K.W., his girlfriend; M.N., a female friend of K.W.; and K.D., a male friend of R.R.’s. The police found th e apartment in disarray when they arrived on scene and suspected that the victims were killed during the course of a robbery and/or burglary. When the police obtained R.R.’s cell phone records, they learned that Haywood was the last person to call R.R. and brought him in for que stioning. The police then later examined Haywood’s cell phone records and learned that Haywood had received incriminating messages2

from another man, Derrick Brantley, around th e time the murders were believed to have occurred. Following additional investigation, the police arrested both Haywood and Brantley in conjunction with the murders. {¶3} A grand jury indicted Haywood on: (1) four counts of aggravated murder; (2) four counts of aggravated felony murder with aggravat ed robbery as the predicate offense; (3) four counts of aggravated felony murder with kidnapp ing as the predicate offe nse; (4) one count of aggravated felony murder with aggravated burglar y as the predicate offense; (5) four counts of aggravated robbery; (6) four counts of kidnapping ; (7) one count of aggravated burglary; and (8) one count of having a weapon unde r disability. With the exception of the having a weapon under disability count, each of Haywood’s counts also contained an attendant firearm specification. Additionally, all of his aggravated murder and aggravated felony murder counts contained four attendant capital specifications. Following a lengthy period of motion practice, the matter was

set for trial. {¶4} The same trial judge initially presided over Haywood’s and Brantley’s cases. Brantley’s trial occurred first, and a jury f ound him guilty. The mitiga tion phase of his trial ended a few weeks before Haywood’s trial was set to begin, and his jury recommended life without the possibility of parole. Following that recommendation, the trial judge questioned whether the State ought to pursu e the death penalty against Haywood. The judge spoke with the victims’ families about the death pe nalty and then spoke with seve ral prosecutors in chambers, wherein she asked them to dismiss the capital spec ifications. She also later contacted the Chief Counsel of the prosecutor’s offi ce and encouraged him to dis miss the capital specifications. Nevertheless, the State decided to pursu e the death penalty against Haywood.3

{¶5} Near the conclusion of voir dire, the St ate attempted to strike Juror 18, an African-American juror who was morally opposed to the death penalty. Haywood objected on

the basis of Batson , and, after hearing argument, the trial judge rejected the State’s peremptory challenge. The trial judge offered as rationale for her ruling that Haywood was “entitled to one juror at least that looks like him.” The State, th erefore, renewed its request to strike Juror 18

when another African-American was seated. It did so twice more when two additional AfricanAmerican jurors were seated, but the trial court repeatedly denied the State’s requests to strike Juror 18. Eventually, the entire jury panel was selected, and, over the State’s objection, Juror 18 remained on the panel. {¶6} Once the panel was selected, the State asked the trial judge not to swear in the jury. The State requested a brief delay to research its options and, possibly, to file an affidavit of disqualification. Although the trial judge st rongly opposed a delay in the proceedings, she agreed to the delay after the State expressed its concern that swearing in the jury would cause jeopardy to attach. She conclude d the day’s proceedings without swearing in the jury, and, the following day, the State filed an affidavit of disq ualification. The trial judge then sent the jury home until the issue of her disqualification could be resolved. {¶7} The trial judge ultimately recused hersel f from the proceedings, and a new trial judge was appointed. The State then filed a moti on to quash the jury venire based on the fact that the first judge’s biased rulings had tain ted the selection proce ss. Haywood responded in opposition, but the court later granted the State’s reque st to quash the venire. Consequently, jury selection began anew. {¶8} Haywood’s trial went forward with a new jury and resulted in guilty verdicts. Sentencing did not occur, however, because Hayw ood filed a motion for a new trial. It was his4

contention that the State had engaged in misconduct by failing to disclose the fact that two of its witnesses had received favorable treatment in exchange for their testimony. A period of motion filing and argument resulted in the parties stipulating to a new trial. As such, the court vacated the guilty verdicts, quashed the jury, and set the matter for another trial. The trial court also authorized the use of a special pr osecutor to handle the retrial. {¶9} There is no dispute that the State pr osecuted Haywood based on a theory of complicity. At the conclusion of his retrial, the jury found him guilty of (1) complicity to commit the aggravated felony murders of M.N. and K.W., based on the predicate offenses of aggravated robbery, kidnapping, and aggravated burglary; (2) complicity to commit the aggravated robbery of R.R.; (3) complicity to commit the kidnappings of M.N. and K.W.; 1 and (4) five capital specifications pe rtaining to M.N. and K.W. Haywood was found not guilty on each of his remaining counts and specifications, and the jury later recommended that he receive life in prison with the possibility of parole. The court sentenced him to life in prison with the possibility of parole after 35 years. {¶10} Haywood now appeals from his convictions and raises ten assignments of error for our review. For ease of analysis, we rearra nge and consolidate severa l of the assignments of

error. II. ASSIGNMENT OF ERROR I

PROSECUTORIAL MISCONDUCT DEPRIVED DESHANON HAYWOOD OF HIS DUE-PROCESS, FAIR-TRIAL, AND DOUBLE-JEOPARDY RIGHTS.

1 Although the jury also found Haywood guilty of complicity to commit aggravated burglary with respect to M.N. and/or K.W., the trial court later dismissed that charge based on a defect in the indictment.5

ASSIGNMENT OF ERROR II THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT QUASHED THE FIRST DEATH-QUALIFIED AND LAWFULLY-SELECTED JURY. ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DELAYEDIMPANELING THE FIRST DEATH-QUALIFIED AND LAWFULLYSELECTED JURY. {¶11} Haywood’s first three assignments of error all stem from his assertion that this matter ought to have been heard by the first jury that the parties selected. He argues that the first trial judge abused her discretion when she agreed to delay impaneling that jury. He also argues that the second trial judge abused his discretion when he quashed the first jury without a sound reason for doing so and without considering reasonabl e alternatives. Finally, he argues that the State engaged in misconduct when it raised unsupporte d claims of judicial bias and secured the first jury’s dismissal. Haywood asks this Court to vacate his convictions and bar his re trial based on violations of his due process and double jeopar dy rights. For the reasons that follow, we reject Haywood’s arguments. {¶12} “A trial court may order a mistrial where some intervening error prejudicially

affects the merits of the case and the substan tive rights of one or both of the parties.” State v.

Sutton , 9th Dist. Medina Nos. 2066, 2067, 1992 Ohio App. LEXIS 2916, *6 (June 3, 1992). Mistrials may be declared during trial or during ju ry selection, prior to the jury being sworn in.

Id. at *5, fn.1. See also State v. Stambaugh , 2d Dist. Miami No. 2008 CA 42, 2009-Ohio-7050, ¶

7-46. [A] trial judge is in the best position to determine whether the situation in [the] courtroom warrants the declaration of a mistrial. In examining the trial judge’s exercise of discretion in declaring a mistrial, a balancing test is utilized, in which the defendant’s right to have the charge s decided by a particular tribunal is weighed against society’s interest in the efficient dispatch of justice. “[A]6

defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter , 336 U.S. 684, 689 (1949). Where the facts of the case do not refl ect unfairness to the accused, the public interest in insuring that justice is served may take precedence. (Internal citations and ellipses omitted.) State v. Glover , 35 Ohio St.3d 18, 19 (1988). Because the decision to grant or deny a mistrial lies in a trial court’s sound discre tion, this Court reviews

that decision for an abuse of discretion. State v. Dickerson , 9th Dist. Summit No. 22536, 2005- Ohio-5499, ¶ 6. {¶13} When a trial court acts within its discre tion in declaring a mistrial, the Double Jeopardy Clause generally w ill not bar a retrial. Glover at 21. An exception exists and retrial is barred where “the judge’s action was instigated by prosecutorial misconduc t designed to provoke [the] mistrial * * *.” Id. In those instances, the Double Jeopa rdy Clause will not permit a retrial.

State v. Anderson , 148 Ohio St.3d 74, 2016-Ohio-5791, ¶ 32, quoting Glover at syllabus. Yet, jeopardy does not attach in a jury trial “until the jury is impaneled and sworn.” State v. Gustafson , 76 Ohio St.3d 425, 435 (1996). {¶14} The record reflects that Haywood’s first ju ry was not impaneled after voir dire because the first trial judge granted the State’s request for a delay in the proceedings. The first trial judge did not declare a mistrial at that point, but simply agreed to preserve the status quo for an evening while the State conducted research a nd decided whether to file an affidavit of disqualification. In essence, th e trial court granted the State’s motion for a brief continuance. Haywood argues that it was unreasonable for the c ourt to do so because the State did not have a legitimate basis to request the delay.7

{¶15} “[T]he decision to grant or deny a con tinuance lies within the sound discretion of

the trial court * * *.” State v. Bennett , 9th Dist. Lorain No. 12CA010286, 2014-Ohio-160, ¶ 22. In reaching its decision, the court should consider the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigan ts, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whet her the defendant contributed to the circumstance which gives rise to the requ est for a continuance; and other relevant factors, depending on the unique facts of each case. State v. Unger , 67 Ohio St.2d 65, 67-68 (1981). The court must balance “‘any potential prejudice to a [party against] concerns such as a court’s right to contro l its own docket and the public’s interest in the prompt and efficient dispatch of justice.’” (Alteration sic.) State v. Sauto , 9th Dist. Summit No. 26404, 2013-Ohio-1320, ¶ 17, quoting In re C. G. , 9th Dist. Summit No. 26506, 2012-Ohio-5999, ¶ 8, quoting Unger at 67. {¶16} Upon review, we cannot conclude that the first trial judge abused her discretion when she granted the State’s request for a continua nce. The record reflects that the State sought one very brief delay for the purpose of deciding wh ether to file an affidavit of disqualification. As support for its request, the State specifically noted its concern that the judge (1) had not allowed it to strike a juror who was morally oppos ed the death penalty, and (2) had encouraged prosecutors, on two separate occasions, to dismi ss the capital specifications against Haywood. The State also specifically noted its concern that its options for redress might be limited if the jury was sworn in and jeopardy was allowed to att ach. By affording the State a continuance, the first trial judge gave the State an opportunity to f ile its affidavit and stay the proceedings so that its concerns could be addressed before the matter proceeded any further. See R.C. 2701.03(D)(1) (affidavit of disqualification di vests judge of jurisdiction until the Chief Justice rules upon the affidavit). Because this was a death penalty case, the stakes at trial were extremely high for both8

sides, and any prejudice Haywood suffered as a result of the delay was minimal, given that the judge’s ruling merely preserved the status quo for a day. See Sauto at ¶ 17. Under these facts and circumstances, it was not unreasonable for the court to permit the continuance out of an

abundance of caution. {¶17} Because the first trial court judge recused herself before the Chief Justice ruled on the State’s affidavit of disqualification, there was never a determinati on made regarding her alleged bias. Following her recusal, however, the State maintained that her bias had tainted the jury selection process. The State asked the sec ond trial judge to quash the jury that had been selected, and Haywood opposed the State’s motion. The second trial judge did not adopt the State’s rationale, but ultimately agreed to quash the jury based on the “untenable position” in which he had been placed. The second trial judge found that he lacked jurisdiction to decide his colleague’s alleged bias and, likewise, to judge “as an appellate reviewer” whether she had made appropriate decisions during th e jury selection process. Ne vertheless, he found that “the integrity of the judicial system” would be placed in jeopardy if he were to proceed with the trial when the case was “so potentially clouded in erro r.” He decided “under these extraordinary

circumstances” to err on the side of caution and order the jury selection process to start anew. {¶18} Haywood argues that the State engaged in misconduct by essentially goading the trial court into declaring a mistrial and quashing the first jury. He argues that the bias claims the State raised were meritless and were asserted strictly to avoid trying the case before a jury it found unfavorable. On a related note, he argues th at the second trial judge abused his discretion when he quashed the first jury based on the State’s meritless allegations. He asserts that the court failed to undertake a sound reasoning process or to consider reasonable alternatives such as reconfirming the jury in que stion or replacing Juror 18 with an alternate juror.9

{¶19} In deciding whether a prosecutor’s conduct rises to the leve l of prosecutorial misconduct, a court de termines if the prosecutor’s actions we re improper, and, if so, whether the defendant’s substantial rights were actually prejudiced. State v. Smith , 14 Ohio St.3d 13, 14 (1984). “[A] judgment may only be reversed for prosecutorial misconduct when the improper conduct deprives the defenda nt of a fair trial.” State v. Knight , 9th Dist. Lorain No. 03CA008239, 2004-Ohio-1227, ¶ 6, citing State v. Carter , 72 Ohio St.3d 545, 557 (1995). {¶20} Much of Haywood’s argument is premis ed on his assertion that the State “fabricated” allegations of judicial bias in this matter. We note that our review of his argument is somewhat hampered because we lack jurisdiction “‘to determine a claim that a common pleas judge is biased or prejudiced.’” Wilburn v. Wilburn , 169 Ohio App.3d 415, 2006-Ohio-5820, ¶ 10 (9th Dist.), quoting Jones v. Billingham , 105 Ohio App.3d 8, 11 (2d Dist.1995). As noted below, the authority to make that determination rests exclusively with the Chief Justice. See

State v. O’Neal , 9th Dist. Medina No. 06CA0056-M, 2008-Ohio-1325, ¶ 15. This Court, therefore, cannot determine whether the first trial judge in this matter was, in fact, biased. Our

review is limited to a determination of whethe r the State engaged in misconduct when it asked the first trial judge not to impanel the jury, file d an affidavit of disqua lification, and later moved to quash the jury. {¶21} The record does not support Haywood’s assertion that the State’s actions amounted to an attempt to manipulate the proceed ings. Regardless of whether the first trial judge was actually biased, the conduct underlying the State’s allegations against her is a matter

of record. There is no evidence that the State a ccused the first trial judge of conduct that she did not, in fact, commit. Nor is there evidence th at the State’s actions amounted to tactical scheming. For instance, the State did not seek repeated continuances, wait until the trial had10

progressed to seek the judge’ s removal, file and dismiss one or more affidavits of disqualification, or change its position once the fi rst trial judge recused herself. The State requested a single, brief continuance at the c onclusion of voir dire, f iled its affidavit of disqualification the very next day, and pursued the matter with the second trial judge after the first judge’s recusal. The State’s actions, in and of themselves, do not warrant a finding of misconduct. Accordingly, we must conclu de that Haywood’s prosecutorial misconduct argument lacks merit. {¶22} Finally, we cannot conclude that the sec ond trial judge abused his discretion when he quashed the first jury and essentially entered a mistrial in this matter. See Sutton , 1992 Ohio App. LEXIS 2916, at *6. As noted, “‘[a] defendant’s valued right to have his trial completed by a particular tribunal must in some instances be s ubordinated to the public’s in terest in fair trials designed to end in just judgments.’” Glover , 35 Ohio St.3d at 19, quoting Wade , 336 U.S. at 689. The second trial judge was in the best position to determine that these proceedings were “so potentially clouded in error” that a fair trial before the first jury would have been impossible.

See Glover at 19. Although Haywood claims that th e second trial judge failed to consider reasonable alternatives before announcing his deci sion, the record reflects that the judge spoke with the parties about other altern atives before issuing his ruling. Indeed, the judge specifically inquired why it would not be sufficient to simply strike Juror 18 from the panel and replace him with one of the alternates. The State responded in writing and explained in detail how the first judge’s ruling affected the use of its peremptory challenges and caused it to augment its strategy in the selection process. In choosing not to e ither reconfirm Juror 18 or replace him with an alternate, the second trial judge avoided serious questions about the effects of the first trial judge’s rulings. “The trial court, in its disc retion, could properly dismi ss the venire and, on the11

facts of this case, we find no abuse in the trial court’s exercise of that discretion.” Sutton at *7. Further, we reject Haywood’s contention that the lower court’s actions offended his Double Jeopardy rights. Because the first jury was never sworn in, Haywood’s Double Jeopardy rights had not yet attached when the second trial judge dismissed the venire an d ordered a retrial. See Gustafson , 76 Ohio St.3d at 435; Sutton at *8. As such, Haywood’s first, second, and third assignments of error are overruled.

ASSIGNMENT OF ERROR IV

THE VOLUNTARY JUDICIAL RECUSAL WAS AN ABUSE OF DISCRETION. {¶23} In his fourth assignment of error, Haywood argues that the first trial judge in this matter abused her discretion when she voluntarily recused herself from the proceedings following allegations of bias. This Court, how ever, “is without authority to review a matter involving the disqualifi cation of a judge.” O’Neal , 2008-Ohio-1325, at ¶ 15. “Matters of disqualification of trial judges lie within the exclusive jurisdiction of the chief justice of the Supreme Court of Ohio and [her] designees.” Id. Accord Dennie v. Hurst Const., Inc. , 9th Dist. Lorain No. 06CA009055, 2008-Ohio-6350, ¶ 15-16; State v. Smith , 9th Dist. Lorain No. 98CA007169, 2000 Ohio App. LEXIS, *7 (Mar. 15, 2000) (court of appeals lacks authority to review recusal decisions). Consequently, this Court cannot address th e merits of Haywood’s fourth assignment of error.

ASSIGNMENT OF ERROR VI

DESHANON HAYWOOD’S CONSTITUTIONAL RIGHTS TO COUNSEL AND AGAINST SELF-INCRIMINATION WERE VIOLATED WHEN THE TRIAL COURT ADMITTED HIS IN CUSTODY, NON- MIRANDIZED STATEMENTS.12

{¶24} In his sixth assignment of error, Haywood argues that the trial court erred when it refused to suppress statements he ma de to the police in the absence of Miranda warnings. For the reasons that follow, we reject his argument. {¶25} It is undisputed that, early in their i nvestigation, the police identified Haywood as a person of interest and intervie wed him while he was in jail on an unrelated matter. At no point during the interview did the police Mirandize h im. According to Haywood, his rights were violated when the trial court admitted his “in custody, non- Mirandized statements.” Yet, he “has

not identified the statements which he believes we re obtained in violation of his rights and has not pointed to the portions of the record on wh ich [his] assignment of error is based.” State v.

Tuck , 146 Ohio App.3d 505, 510 (9th Dist.2001). Hi s brief only addresses the question of custodial interrogation; not any pr ejudice that ensued as a result of his having made certain, inculpatory statements. Because Haywood has not pointed this Court to any inculpatory statements or explained how the court’s ruling prejudiced him, this Court will not address his argument that he was subjected to custodial interrogation. See State v. Jenkins , 9th Dist. Lorain No. 15CA010826, 2016-Ohio-5190, ¶ 14; Tuck at 510. Haywood’s sixth assignment of error is

overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED IN DENYING DESHANON HAYWOOD’SCRIM.R. 29 MOTION FOR ACQUITTAL, AND VIOLATED HIS DUEPROCESS AND FAIR-TRIAL RIGHTS WHEN IT ENTERED CONVICTIONS IN THE ABSENCE OF SUFFICIENT EVIDENCE. {¶26} In his fifth assignment of error, Hayw ood argues that the trial court erred by denying his Crim.R. 29 motion for acquittal beca use his convictions are based on insufficient evidence. Specifically, he argues that his mere presence at the scene of the crime was13

insufficient to establish his complicity. We do not agree that the trial court erred by denying his

motion. {¶27} Crim.R. 29(A) provides, in relevant part: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment * * * if the evidence is insufficient to sustain a conviction of such offense or o ffenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case. When reviewing the sufficiency of the evidence, this Court must review the evidence in a light most favorable to the prosecution to determine whether the evidence before the trial court was

sufficient to sustain a conviction. State v. Jenks , 61 Ohio St.3d 259, 279 (1991). An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to exa mine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. at paragraph two of the syllabus. {¶28} Relevant to this appeal, a person commits aggravated felony murder when he “purposely cause[s] the death of another * * * while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, * * * aggravated robbery, * * * [or] aggravated burglary * * *.” R.C. 2903.01(B). A person commits kidnapping when he, “by force, threat, or d eception, * * * remove[s] another from the place where the other person is found or restrain[s] [t hat person’s] liberty * * * [t]o facilitate the commission of any felony or flight thereafter * * * [o r] [t]o terrorize, or to inflict serious physical

harm on the victim or another * * *.” R.C. 290 5.01(A)(2), (3). A person commits aggravated robbery when he, in attempting or committing a thef t offense, either (1) “[has] a deadly weapon14

on or about [his] person or under [his] control and either display[s] the weapon, brandish[es] it, indicate[s] that [he] possesses it, or use[s] it”; or (2) “[i]nflict[s], or attempt[s] to inflict, serious physical harm on another.” R.C. 2911.01(A)(1), (3). A person commits aggravated burglary when he, by force, stealth, or deception, [] trespass[ es] in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another; [or] * * * has a deadly weapon or dangerous ordnance on or about [his] person or under [his] control. R.C. 2911.11(A)(1), (2). {¶29} “[A] defendant charged with an offense may be convicted of that offense upon proof that he was complicit in its commission * * *.” State v. Herring , 94 Ohio St.3d 246, 251 (2002). For a person to be convicted of complicit y by aiding and abetting another in a crime,

“the evidence must show that the defendant supported, assisted, encour aged, cooperated with, advised, or incited the principal in the commission of the crime * * *.” State v. Johnson , 93 Ohio St.3d 240 (2001), syllabus. “The criminal intent of the aider and abettor ‘can be inferred from the presence, companionship, and conduct of th e defendant before and after the offense is

committed.’” State v. Smith , 9th Dist. Summit No. 25650, 2012-Ohio-794, ¶ 7, quoting In re

T.K. , 109 Ohio St.3d 512, 2006-Ohio-3056, ¶ 13. “As with proof of any element of an offense, complicity may be proved by circumstantial evidence, which has the same probative value as

direct evidence.” Smith at ¶ 7. {¶30} I.L. testified that he was good friends with R.R., one of the victims in this matter, and that R.R. went by the nic kname “Dutch.” R.R. lived in a townhouse-style apartment on Kimlyn Circle along with his girlfriend K.W., anot her one of the victims in this matter. I.L. testified that he went to the apartment on the evening of April 17, 2013, to spend time with R.R.15

and several other individuals, one of whom was a man named A.T. I.L. acknowledged that he was a heroin dealer at the time and that, while at R.R.’s apartment, he made arrangements to purchase 100 grams of heroin from a third party in a nearby parking lot. I.L. testified that R.R.

knew about the transaction and was also a heroin dealer. Before leaving R.R.’s apartment that evening, I.L. divided the heroin and gave 30 grams of it to R.R. to sell. {¶31} I.L. testified that R.R. was enjoying in creasing success as a dealer around the time of his murder. Though I.L. supplied R.R. with a sizeable amount of heroin, he stated that R.R.’s increasing success caused him concern because he feared that someone might try to rob R.R. I.L. testified that, a few days before the mu rders, he gave R.R. a .40 caliber handgun for protection. Not until after R.R.’s murder did I.L. learn that R.R. was touting his success on social media. The pictures R. R. posted showed him holding substantial amounts of money, and at least one depicted him with I.L.’s handgun tucked into his waistband. {¶32} I.L. testified that he and R.R. spoke to each other daily. When he tried to call R.R. the next day, however, someone else answered R.R.’s cell phone. I.L. then hung up and tried again, but another stranger answered. At that point, I.L. became concerned and asked his wife to drive him over to R.R.’s apartment. Once there, he found the front door to the apartment open and items strewn about inside. He stated th at there were “[c]lothes, shoes, shoeboxes, [and] things everywhere” and that the apartment ha d not looked that way when he was there the previous evening. I.L. found a bullet casing on the floor in the living room and continued to walk around the apartment until he noticed that th e door to the basement was open. He then peeked down the stairs and saw someone’s leg at the bottom. In the basement, I.L. found R.R.’s body along with three other bodies. He testified that he recognized K.W. and K.D., a friend of16

R.R.’s, but that he also saw the body of a female he did not recognize. Once he realized all four individuals were deceased, I.L. left the apartment and contacted the police. {¶33} A.T. testified that he was at R.R.’s apartment on the evening of April 17th, along

with I.L. and several other indi viduals. He acknowledged that he was a drug dealer at the time and knew that R.R. sold drugs out of his apartment . He maintained, however, that he did not see any drug transactions that evening and, at the time, did not know about the 100 grams of heroin that I.L. bought. A.T. estimated that he spent ab out an hour or less at R.R.’s apartment before he decided to drive to a nearby dancing club for a few drinks. He testified th at he went by himself and stayed for a drink or two before leaving and driving to a different dancing club down the street. He stated that both K.W. and M.N. worked as dancers at the second club and happened to be there that evening. {¶34} While at the second club, A.T. saw K.R.W ., another friend whom he had not seen

for some time. He testified that he and K.R.W. shared a few dr inks over the course of an hour and that K.W. and M.N. joined them. Eventually, the four decided to go to a restaurant together.

A.T. testified that he drove the two women while K.R.W. rode separately in a cab. The group went to a restaurant in Akron where they shared a meal. They paid their bill at 1:40 a.m. on April 18th, as evidenced by a timestamped photograph the State procured from the security footage at the restaurant. After they did so, A.T. drove all four of them to M.N.’s apartment in

East Akron. {¶35} A.T. testified that although K.W. was R.R.’s girlfriend he also had a sexual relationship with her. He testified that, after they arrived at M.N.’s apartment and relaxed a bit,

he had sex with K.W. while K.R. W. had sex with M.N. Afterwar ds, the group relaxed a bit more

before A.T. decided to leave. A.T. testified that he offered to drive K.W. home and that she17

convinced M.N. to come with her. He stated that he was very intoxi cated and tired, but drove K.R.W. to a nearby store parking lot to meet his cab before driving both girls back to Kimlyn Circle. A.T. watched as the girls exited the car and approached R.R.’s front door, but left before they went inside. From there, A.T. drove back to his home in Chapel Hill. {¶36} Not long after A.T. arrived home, K.W. called his cell phone. He testified that K.W. wanted him to drive back to R.R.’s apartment because she and M.N. could not get inside. A.T. did not leave his home, but spoke with K. W. twice more on the phone. He testified that K.W. described not being able to get inside because Dutch (i.e., R.R.) was “playing” and “act[ing] like he [could not] open the door.” Th e State then asked A.T. whether he had previously testified under oath that it was either Dutch or “Dougie” that K.W. said she saw inside. A.T. eventually agreed that he had testified to that effect, and numerous other witnesses identified Haywood as “Dougie.” The State pr oduced evidence that the phone calls between A.T. and K.W. took place at 3:37 a.m ., 3:40 a.m., and 3:46 a.m. on April 18th. {¶37} K.R.W. also testified at trial and confirmed that he spent the evening of April 17th and the early morning hours of April 18th with A.T., K.W., and M.N. Much like A.T., he described how the group unexpectedly met at a dancing club before eating together at a restaurant and going to M.N.’s apartment. He confirmed that he had sex with M.N. at her apartment while A.T. had sex with K.W. He also confirmed that A.T. and the women later dropped him off to meet his cab. K.R.W. testified that he did not speak with A.T. again until the next day when A.T. called. On the phone, A.T. told him that “everybody was dead; they killed the girls and [R.R.] and [K.D.].” A.T. also late r told K.R.W. that he had spoken with K.W. after driving her to R.R.’s apartment. According to K. R.W., A.T. told him that K.W. “said she seen either Dutch or Dougie running around” inside the apartment. He specified that he spoke with18

A.T. several times on the phone and at least once A. T. said it was Dutch, bu t another time he said it was Dougie that K.W. saw inside. Additionally, K.R.W. testified that both he and A.T. knew about the 100 grams of heroin that had been delivered to R.R.’s apartment the previous evening. {¶38} The State set forth evidence that Hayw ood called a man named D.W. during the late evening hours of April 17th and the early morning hours of April 18th. D.W. testified that he was very close with Haywood and also a blood relative of Haywood’s significant other. He stated that he was at home when Haywood ca lled and asked him to follow Haywood to an

undisclosed location. D.W. acknowle dged that he was a drug dealer at the time and that it was not unusual for him to accompany Haywood on trips. He also acknowledged that the car he was driving at the time was not his own, but belonged to a drug user who had loaned it to him in exchange for heroin. D.W. testified that Hayw ood arrived at his house not long after his phone call and had Brantley in the passenger’s seat of his car. D.W. confirmed that he had known Brantley for a long time and was aware that he had a reputation for being a “hothead” as well as for carrying a gun. After Haywood and Brantley arrived, the three departed, with D.W. following behind Haywood’s car. D.W. testified that he ultimately parked on Gurley Avenue at Brantley’s direction. {¶39} D.W. testified that he parked his car towards Kimlyn Circle and waited there for a long time while Brantley and Haywood left on foot . During that time, D.W. made and received several phone calls and te xt messages. The State produced D. W.’s phone records as part of its case-in-chief and the records show that D.W.: (1) received calls from Haywood’s cell phone at 12:11 a.m. and 1:42 a.m.; (2) called Haywood’s cell phone at 1:27 a.m., 2:45 a.m., and 2:47 a.m.; (3) received multiple messages and calls from Ha ywood’s significant other between 11:47 p.m. and 2:46 a.m.; (4) received phone calls from two different cell phone numbers linked to Brantley19

at 2:52 a.m., 3:57 a.m., and 4:12 a.m.; and (5) called one of Brantley’s cell phones at 4:15 a.m.

and the other at 4:57 a.m. and 6:08 a.m. Detectiv e Robert Moledor, a cellular analysis expert for the State, testified that the calls D.W. made or received between 1:42 a.m. and 4:57 a.m. were all routed through a cell phone tower that serviced the area around R.R.’s apartment. Meanwhile, the call he placed at 6:08 a.m. was routed th rough a tower that serviced the area around his

home. {¶40} D.W. testified that his cousin, Haywood’s significant other, called him several times that evening because she was trying to locat e Haywood. He stated that he attempted to call Haywood to tell him that she was looking for him, but never actually succeeded in reaching Haywood when he called. Meanwhile, he indicat ed that he spoke with Brantley because Brantley called to check that he was still parked outside. D.W. testified that he could not recall speaking with Brantley more than once, although his phone records showed multiple calls between his and Brantley’s cell phones. {¶41} D.W. stated that he eventually saw Haywood and Brantley making their way back to his car at a “fast pace walk.” He could not recall what time they returned, but stated that the sun had not yet risen. Once they reached D.W.’s car, Brantley sat down in the front passenger’s seat and Haywood sat down in the back. D.W. noticed that Brantley was carrying a bag containing a white substance and was attempting to cover the bag with a t-shirt. The appearance of the substance was consistent with heroin or possibly cocaine, and D.W. estimated that the

amount he saw would be worth a few thousand do llars. According to D.W., after Brantley was seated inside the car, he stated that he had “double back[ed]” to “make sure the people was dead” and that he would “take it to his grave.” D.W. testified that neither he, nor Haywood responded20

to Brantley’s statements. D.W. then dropped off Haywood and Brantley at a nearby bar and

drove home. {¶42} The State produced a significant amount of testimony in this case from analysts who examined the cell phone records of Haywood, the victims, and many of the individuals who testified. Detective Guy Sheffi eld examined R.R.’s cell phone a nd testified that Haywood’s cell phone number was saved in its contact s list. He stated that R.R.’s cell phone contained instant messages to and from Haywood’s cell phone, dating from February 2013 through April 2013. Within those messages, the two made plans to meet at R.R.’s apartment on Kimlyn Circle and discussed various drug transacti ons. Detective Sheffield testified that the last stored contact between the two phones took place on April 18th when Haywood’s phone called R.R.’s phone at

1:10 a.m. {¶43} Detective Moledor examined Haywood’s cell phone records for content as well as to plot the general location of the phone at the time s various calls were eith er made or received. He testified that calls Haywood’s phone made at 1:47 a.m. and 5:01 a.m. were routed through a cell phone tower that served the area around R.R.’s apartment. In between that time period, Haywood’s phone received multiple calls and text messages, but the phone was turned off. Detective Moledor was able to conclude the phon e was off because it did not download all of the text messages it received during that timeframe until 5:02 a.m., meaning that the device was turned back on at that point. Though Haywood’s phone was turned off during that time frame, Moledor testified that he received two particular messages of interest. The first message, sent at 2:10 a.m. from Brantley’s phone, read: “kill both these n**gas.” The second message, sent at 2:48 a.m. from Brantley’s phone read: “I’m bout to shoot Dutch go get da s*** and then I’m gonna kill both des n**gas but u got to hur ry up so we can get up out of here.”21

{¶44} The State produced evidence that Hayw ood’s significant other attempted to contact him 18 times between 1:14 a.m. and 3:27 a.m. on April 18th. Detective Moledor read Haywood’s significant other’s text messages at trial, all of which ex pressed her increasing frustration at her inability to locate or hear from Haywood. Detective Moledor testified that Haywood did not respond to the messages until the following afternoon, beginning at 12:17 p.m. At that point, Haywood sent several messages in which he apologized for not being available the previous evening. One of the messages read: “I know you’re mad but * * * I wasn’t doing you wrong in no way besides not telling I was gone B out that late I wasnt out enjoying myself * *

*.” {¶45} Detective Moledor also examined Br antley’s cell phones as part of his investigation. He testified that calls Brantle y’s phones made between 1:49 a.m. and 4:15 a.m. were routed through a cell phone tower that se rved the area around R.R.’s apartment. He

confirmed that several of those calls were made to or received from the phone number associated

with D.W. He also noted that one of the calls that appeared in Brantley’s phone records, which occurred at 2:54 a.m., took place between Brantley ’s two cell phones. That is, one of the cell phones called the other cell phone. Detective Moledor testified th at Brantley received a call from Haywood’s cell phone at 5:01 a.m. and that call evidenced the fact that Brantley’s phone was no longer located in the area of the crime scene. He further testified that, later that same day, Brantley’s cell phone received a picture me ssage from Haywood’s cell phone. The picture was a screen shot image of an Akron Be acon Journal article about the murders. {¶46} Dr. Dorothy Dean, the Deputy Medical Examiner for Summit County, autopsied

all four of the victims in this matter. She testified that the victims suffered from a number of gunshot wounds, but did not have an y other visible injuries. Dr. Dean estimated that the victims22

died approximately 10 to 12 hours before investigators came on scene, placing their estimated times of death between 2:00 a.m. and 4:00 a.m. on the morning of April 18th. She testified that

each of the victims had been shot in the head and that K.W., R.R., and K.D. also had other gunshot wounds. Specifically, K.W. had two other wounds, R.R. had three other wounds, and K.D. had eight other wounds. Dr. Dean was unable to determine the order of the shots or the position of the victims at the time they were s hot. She testified that several of the bodies contained bullet fragments or loose bullets, so she collected those in her examination and provided them to law enforcement. A firearms analyst later testified that at least two guns were used to kill the victims. He specified that he ex amined nine .40 caliber casings that were all fired from the same gun and three .9 millimeter casings th at were all fired from a second gun. There is no dispute that the police did not find any guns at the crime scene, including the .40 caliber gun that I.L. gave to R.R. a few days before his murder. {¶47} Detective Anna Romito, a member of the crime scene unit, testified regarding certain items that the police found at R.R.’s ap artment. A shoebox that was located near the

basement door contained a small baggy with 1.32 grams of heroin inside it. Another shoebox that the police found on the kitchen counter containe d a digital scale and small paring knife while a sandwich bag box that the police found nearby contained a small baggy with .98 grams of

heroin inside it. Detective Ro mito testified that the cabinets in the kitchen were found open and the counter was littered with a variety of items. She stated that other it ems were also strewn about the apartment and its appearance was consiste nt with the appearance of burglarized homes she had seen throughout her career. She testified that the police were able to find a fingerprint on the shoebox from the kitchen counter, and a forens ic analyst later testified that the fingerprint matched Haywood’s left thumbprint.23

{¶48} Lieutenant David Whiddon was in charge of the murder investigation here and testified that the police initiall y interviewed Haywood a few days after the murders because they learned that he was the last pe rson to call R.R. on his cell phone before his murder. At the time, Haywood was serving a few days in jail on an unre lated matter, so the po lice had him transported to the police station for his interview. During th e interview, Haywood indicated that the last time he had been at R.R.’s apartment was perhaps the weekend before the murders occurred. He denied that he was at the apartment on April 17t h or April 18th. When the police pressed him for information about who might ha ve committed the murders or w ho might know something about the murders, Haywood supplied them with A.T. ’s nickname and the nickname of a third

individual. He never drew thei r attention to Brantley as a possible culprit. Nevertheless, the State produced evidence that Haywood quickly made attempts to reach Brantley once back at the jail. {¶49} The State produced evidence that Haywood called his significant other from jail

after his interview and that she reached out to Brantley that same afternoon. Haywood’s significant other sent Brantley several instant messages that read: (1) “Dougie told me to call you. Where my baby?? I DON’T appreciate you ignoring me”; (2) “We got to talk”; and (3) “Now they got [R.R.’s] phone?? Your number in there.” When Haywood finally spoke with Brantley later that evening he informed him that he had been interviewed about the murders. During the conversation, Brantley specifically asked Haywood where his cell phone was. {¶50} Viewing all of the evidence in a light most favorable to the State, we must

conclude that the State set forth evidence from which a rational trier of fact could have concluded that Haywood aided a nd abetted Brantley in the murders of R.R., K.W., and M.N. and in the other charges associated with their murders. See Jenks , 61 Ohio St.3d at 279. The State24

set forth evidence that Haywood and Brantley were together at the time of the murders and spent several hours in the area encompassing the crime scene. There was evidence that another drug dealer had received a large heroin shipment there the previous evening and had split the shipment with R.R. There also was evidence that multiple people knew about the shipment and that R.R.’s apartment was in a state of disarray, consistent with ransacking, when the police arrived. The police found Haywood’s thumbprin t on a shoebox in the kitchen, amidst open

cabinet doors and other items strewn about the coun ter. Additionally, phone records showed that Haywood was the last person to call R.R. at 1:10 a.m. An hour later, Brantley sent Haywood a text message reading “kill both these n**gas” an d a later message instructing Haywood to “go get da s***” while he shot R.R. A rational trie r of fact could have concluded that Haywood was not only present at R.R.’s apartment at the time of the murders, but “supported, assisted, encouraged, cooperated w ith, advised, or incited [Brantley] in the commission of the crime * *

*.” Johnson , 93 Ohio St.3d 240 at syllabus. Accordingly, Haywood’s fifth assignment of error

is overruled.

ASSIGNMENT OF ERROR IX

THE TRIAL COURT ERRED AND VIOLATED DESHANON HAYWOOD’S DUE-PROCESS AND FAIR-TRIAL RIGHTS WHEN IT ENTERED CONVICTIONS THAT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶51} In his ninth assignment of error, Haywood argues that his convictions are against the manifest weight of the evidence. His brief cites to the manifest weight standard and then simply asks this Court to review “[t]he framewor k of the evidence and verdicts described in the [sufficiency] assignment of error” under that standard. Yet, “suffi ciency and manifest weight are two separate, legally distinct arguments.” State v. Vicente-Colon , 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20. Beyond making a bl anket statement that his convictions25

are against the manifest weight of the ev idence, Haywood has not “challenged any of the evidence the State set forth as ‘unreliable or lacking credibility.’” State v. Jackson , 9th Dist. Summit No. 28192, 2017-Ohio-635, ¶ 14, quoting State v. Smith , 9th Dist. Summit No. 27877, 2016-Ohio-7278, ¶ 16. This Court will not develop a manifest weight argu ment on his behalf. See State v. Sadeghi , 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 32. Haywood has not shown that this is the exceptional case where the trier of fact lost its way in convicting him. See

id. at ¶ 33. Thus, his ninth assignment of error is overruled.

ASSIGNMENT OF ERROR VIII

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED INADMISSIBLE HEARSAY TESTIMONY AND PERMITTED IMPROPER IMPEACHMENT RELATED TO THAT TESTIMONY. {¶52} In his eighth assignment of error, Hayw ood argues that the trial court abused its

discretion when it admitted certain statements that K.W. made while on the phone with A.T. He

asserts that the statements we re improperly admitted because they amounted to hearsay and were elicited only after the State impeached its own witness. For the reasons that follow, we reject Haywood’s eighth assignment of error. {¶53} The decision to admit or exclude evidence lies in the sound discretion of the trial

court. State v. Sage , 31 Ohio St.3d 173, 180 (1987). “Absent an issue of law, this Court, therefore, reviews the trial c ourt’s decision regarding evidentiary matters under an abuse of

discretion standard of review.” State v. Aguirre , 9th Dist. Lorain No. 13CA010418, 2015-Ohio922, ¶ 6. An abuse of discretion indicates that the trial court’s attit ude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not substitute its judgment for that of

the trial court. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621 (1993).26

{¶54} At trial, A.T. testified th at he spoke with K.W. on the phone after leaving her at R.R.’s apartment. As previously noted, K.W. called A.T. because she could not get inside the apartment. A.T. testified that K.W. described not being able to get inside because Dutch (i.e., R.R.) was “playing” and “act[ing] like he [could no t] open the door.” The State then asked A.T. whether he had previously testified under oath that it was either Dutch or “Dougie” that K.W. said she saw inside. A.T. eventually agreed that he had testified to that effect, but also stated that he could no longer remember what name K.W. sa id and that he was intoxicated and very tired when he spoke with K.W. {¶55} The trial court admitted K.W.’s statements through A.T. as a present sense impression and allowed the State to confront A.T. with his previous testimony on the basis of surprise. Haywood argues that K.W.’s statements did not meet the requirements for the present sense impression exception because the circumstances under which th ey were made “indicate[d] [a] lack of trustworthiness.” Evid.R. 803(1). According to Haywood, because A.T. admitted that he was intoxicated and very tired when he spoke with K.W., his recollection of her alleged statements was untrustworthy. He also argues that the State should not have been allowed to impeach A.T. under Evid.R. 607. {¶56} We begin by addressing Haywood’s asserti on that the trial court erred when it allowed the State to impeach A.T. with his former testimony. Evid.R. 607(A) allows a party to confront his own witness with a prior inconsis tent statement for the purpose of attacking the witness’ credibility “only upon a showing of surpri se and affirmative damage.” The rule does not apply, however, when the calling party introduces the prior statement as substantive evidence (i.e., for the purpose of proving the truth of th e matter asserted therein) rather than for impeachment purposes. See State v. Stover , 9th Dist. Wayne No. 13CA0035, 2014-Ohio-2572, ¶27

17, citing State v. Bethel , 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 182-185. See also Evid.R. 607(A) (providing that the rule does not apply to statements admitted pursuant to certain hearsay exceptions). In those instances, the calling pa rty may confront his witness with the prior statement so long as it satisfies one of the hearsay exceptions. See Stover at ¶ 17. Accord State

v. Hoehn , 9th Dist. Medina No. 03CA 0076-M, 2004-Ohio-1419, ¶ 30-33. {¶57} The record reflects that th e State asked A.T. about his prior testimony not to impeach his credibility, but to establish its truth. Specifically, the State sought to introduce as substantive evidence that K.W. said she saw either Dutch or Dougie inside R.R.’s apartment. Haywood has not explained Evid.R. 607(A)’s application in this instance. See App.R. 16(A)(7). Moreover, even assuming that the State’s purpose in questioning A.T. was to impeach his credibility rather than to prove the truth of hi s prior statements, Haywood has made no attempt to address the elements of Evid.R. 607( A) in his brief. This Court w ill not construct an argument or conduct an analysis on his behalf. See Cardone v. Cardone , 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998) (“If an argument exists that can support [an] assignment of error, it is not this [C]ourt’s duty to root it out.”). Accordingly, insofar as it pertains to improper impeachment, we reject Haywood’s argument. {¶58} One of the exceptions to the general bar against the admission of hearsay testimony is the present sense impression excepti on. That exception permits a party to introduce “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately th ereafter unless circumstances indicate lack of trustworthiness.” Evid.R. 803(1). “Such statements are generally held to be trustworthy because they are made at the time of, or immediately followi ng an event without sufficient time to reflect upon the event.” State v. Williams , 9th Dist. Lorain No. 09CA009679, 2010-Ohio-3667, ¶ 28.28

{¶59} Haywood argues that A.T.’s statements were not admissible under the present sense of impression exception because A.T. admitted that he was intoxicated and very tired when he spoke with K.W. Given A.T.’s admissi on to that effect, Haywood argues that the

“circumstances indicat e lack of trustworthiness,” and the St ate could not rely on Evid.R. 803(1). Evid.R. 803(1). In so arguing, Haywood misunders tands the application of the rule in this instance. A.T.’s prior statement was not subjec t to the present sense impression requirements. Rather, it was admissible as a prior statement by a witness. See Evid.R. 801(D)(1). Evid.R. 803(1) only applied to K.W.’s statement to A.T ., so any questions about the circumstances of his trustworthiness were irrelevant to the issue of whether her statement satisfied the hearsay exception. Any questions Haywood had about A.T.’s trustworthiness or ability to accurately recall K.W.’s statements were questions of weight, rather than admissibility. {¶60} Although the trial court base d its decision to admit A.T.’s prior statement on other grounds, “this Court may affirm [a trial court’s] ul timate decision on other legally correct grounds.” State v. Calise , 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 42. Upon review, we

cannot conclude that the court erred when it admi tted the testimony at issue here. Accordingly, Haywood’s eighth assignment of error is overruled.

ASSIGNMENT OF ERROR VII

PROSECUTORIAL MISCONDUCT DEPRIVED DESHANON HAYWOOD OF HIS DUE-PROCESS AND FAIR-TRIAL RIGHTS. {¶61} In his seventh assignment of error, Ha ywood argues that prosecutorial misconduct deprived him of a fair trial. We disagree. {¶62} As previously noted, in deciding whether a prosecutor’s conduct rises to the level of prosecutorial misconduct, a c ourt determines if the prosecutor’s actions were improper, and, if so, whether the defendant’s substantia l rights were actually prejudiced. Smith , 14 Ohio St.3d at29

14. “[A] judgment may only be reversed fo r prosecutorial misconduct when the improper conduct deprives the defenda nt of a fair trial.” Knight , 2004-Ohio-1227, at ¶ 6, citing Carter , 72

Ohio St.3d at 557. The defendant must show that , but for the prosecutor’s misconduct, the trier

of fact would not have convicted him. State v. Lollis , 9th Dist. Summit No. 24826, 2010-Ohio4457, ¶ 24. “The touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 140, quoting Smith v. Phillips , 455 U.S. 209, 219 (1982). {¶63} Haywood alleges two instances of prosecutorial misconduct. First, he argues that the prosecutor engaged in misconduct when he repeatedly relied on Haywood’s post- Miranda silence to attack his credibility. Second, he argues that he was denied a fair trial because “this record demonstrates that the final-trial jury observed many indications that there had been previous official proceedings, if not previous trials.” We a ddress Haywood’s second contention

first. {¶64} There is no evidence in the record that the jury here learned about Haywood’s prior trial as a result of any misconduct on the part of the State. It is undisputed that Haywood had more than one trial in this matter and that the majority of the witnesses who testified against him testified at his prior trial. The question of how to refer to his prior trial was an issue that the trial court raised before opening statements. When the court proposed referring to the earlier trial as a hearing that occurred under oath, defe nse counsel responded that it was “significant,” for purposes of impeachment, to be able to stress to the jury that certain witnesses had potentially “lie[d] in front of a judge and a jury under oath * * *.” Defense counsel then objected when the

court ruled that the first trial s hould be called a prior hearing under oath rather than a trial. Moreover, defense counsel (1) was the first to broach the subject of the prior trial in opening30

statements, noting that one of the witnesses had “given testimony under oath in a prior hearing”; (2) was the first to ask a witness about the pr ior proceedings on cross-examination, inquiring whether the witness recalled having “testified in this case already” under oath; and (3) repeatedly relied on testimony given at the first trial as an impeachment tool on cross-examination. Haywood has not shown that the jury learned of his prior trial as a result of prosecutorial misconduct. Further, given defense counsel’s actions in the court below, Haywood cannot now argue that any references the State made to the prior proceeding in this matter deprived him of a fair trial. We reject Hayw ood’s argument to the contrary. {¶65} Next, we address Haywood’s conten tion that the prosecutor improperly commented on his right to remain silent. Haywood testified in his own defense at trial. It was his testimony that he was present at R.R.’s apartment when the murders occurred, but that it was Brantley who committed the murders. While testifying, he admitted that he had an interview with the police a few days after the murders and repeatedly lied and provided the detectives with false leads. He testified that he did not go to the police right after the murders because he was scared and “thinking [he would] get in trouble just for being there * * *.” He also testified that he misled the police during his interview because he was afraid how Brantley might react if he thought he had cooperated. {¶66} On cross-examination, the State asked Ha ywood whether, when he testified on direct examination, it was the first time anyone in law enforcement had heard the version of events that he described. Haywood agreed th at it was the first time and, while he had the opportunity to tell the police the true story, he did not. The State asked Haywood multiple questions about whether, before testifying, he had the benefit of hearing the testimony in prior proceedings, reading the transcript in Brantley’s trial, and hearing the State set out its accomplice31

liability theory. Additionally, the State asked Haywood whether “[f]or two years now, * * * [he] [had] allowed people to accuse [A.T.] of being a murderer[.]” The State also referenced in closing argument the fact that Haywood had lied to the police, had waited more than two years to tell his story, and had only told his story with the benefit of having heard the testimony in the prior proceedings. {¶67} Even assuming that, at some point, the Stat e’s questions or argument went beyond proper impeachment and amounted to improper co mment on Haywood’s right to remain silent, the record reflects that the pr osecutor’s improper argument c onstituted harmless error beyond a

reasonable doubt. See State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 162. Haywood was convicted as an accomplice, not the principa l offender, and, by hi s own testimony, he was with Brantley at R.R.’s apartment when the victims were murdered. Although he claimed that he was merely present at the apartment and not direct ly involved in the crimes that occurred there, the State produced a significant am ount of circumstantial evidence to the contrary. The State produced evidence that the apartment had been ransacked and that Haywood’s thumbprint was

on one of the items strewn about the kitchen count er. The State also pr oduced evidence that, at the estimated time of the murders, Haywood receive d text messages from Brantley reading: “kill both these n**gas” and “I’m bout to shoot Dutch go get da s*** and then I’m gonna kill both des n**gas but u got to hurry up so we can get up out of here.” Having carefully reviewed the record and all of the evidence in this matter, we cannot conclude that Haywood was materially prejudiced by the prosecutor’s misconduct, if any, as there was overwhelming evidence of his guilt. See, e.g., State v. Dalton , 9th Dist. Summit No. 17659, 1996 Ohio App. LEXIS 5124, *17 (Nov. 20, 1996). As such, his seventh a ssignment of error is overruled.32

ASSIGNMENT OF ERROR X

THE TRIAL COURT VIOLATED DESHANON HAYWOOD’S DUEPROCESS AND FAIR-TRIAL RIGHTS THROUGH CUMULATIVE ERROR. {¶68} In his tenth assignment of error, Haywood argues that cumulative errors deprived him of a fair trial. Yet, cumulative error exists only where the errors during trial actually “deprive[d] a defendant of the constitutional right to a fair trial.” State v. DeMarco , 31 Ohio St.3d 191 (1987), paragraph two of th e syllabus. “‘[T]here can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial.’” State v. Hill , 75 Ohio St.3d 195, 212 (1996), quoting United States v. Hasting , 461 U.S. 499, 508-509 (1983). To support a claim of cumulative error, there must be multiple instances of harmless error. State v.

Garner , 74 Ohio St.3d 49, 64 (1995). “Because this Court did not find multiple instances of error, the cumulative error doctrine does not apply.” State v. Jamison , 9th Dist. Summit No. 27664, 2016-Ohio-5122, ¶ 40. Haywood’s tenth assignment of error is overruled.

III. {¶69} Haywood’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27.33

Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

HENSAL, P. J. SCHAFER, J. CONCUR.

APPEARANCES: TIMOTHY YOUNG, Public Defender, and PETER GALYARDT, Assistant Public Defender, for Appellant. TIMOTHY J. MCGINTY, Prosecuting Attorney, and MAHMOUD AWADALLAH, BRIAN RADIGAN, and ANTHONY T. MIRANDA, Assistant Prosecuting Attorneys, for Appellee.