[Cite as State v. Barker, 2014-Ohio-4131.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2013-P-0084

 - vs - :

ADRIAN A. BARKER, :

 Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2009 CR 

00688. 

Judgment: Affirmed. 

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee). 

David L. Doughten, 4403 St. Clair Avenue, Cleveland, OH 44103-1125 (For 

Defendant-Appellant). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, Adrian A. Barker, appeals from his conviction, entered by the 

Portage County Court of Common Pleas, on one count of felony murder. For the 

reasons discussed in this opinion, we affirm the judgment of the trial court. 

{¶2} On November 19, 2009, the Portage County Grand Jury indicted 

appellant for felonious assault, a felony of the second degree, in violation of R.C. 

2903.11(A)(1), and obstructing official business, a felony of the fifth degree, in violation 
 2

of R.C. 2921.31. After Christopher Kernich, the victim in this matter, was pronounced 

dead, the grand jury filed a supplemental indictment charging appellant with two counts 

of murder in violation of R.C. 2903.02(A) and (B). Two additional misdemeanor assault 

charges were included in a supplemental indictment, filed February 26, 2010. The 

February supplemental indictment also included one count of tampering with evidence, 

a felony of the third degree, in violation of R.C. 2921.12(A)(1) and (B), and one count of 

obstructing justice, a felony of the third degree, in violation of R.C. 2921.32. In March 

2010, the grand jury filed an additional amended supplemental indictment to reflect the 

certified date of Christopher Kernich’s death. 

{¶3} Appellant was tried and convicted on the charges of felonious assault, 

felony murder, murder, and tampering with evidence. The jury acquitted appellant on 

the assault charge (which pertained to an alleged attack on an individual separate from 

the victim in this matter). On May 26, 2010, the trial court determined that the two 

counts of murder merged for purposes of sentencing and that the felonious assault and 

felony murder charge were allied offenses of similar import. The trial court then 

sentenced appellant to life in prison with eligibility for parole following 15 years for the 

murder of Christopher Kernich and a concurrent term of five years imprisonment for 

tampering with evidence. The trial court additionally ordered appellant to pay restitution 

to Christopher Kernich’s family for medical and funeral expenses. 

{¶4} Appellant appealed and, in State v. Barker, 11th Dist. Portage No. 2010-P0044, 2012-Ohio-522, this court affirmed the trial court’s judgment as it related to 

appellant’s conviction for tampering with evidence. This court further held, however, that 

the trial court did not apply the proper legal standard for determining whether lesser 
 3

included offense instructions were required. Because of this error, this court held 

appellant was entitled to a retrial for his convictions on felonious assault, felony murder, 

and murder. This court held, on retrial, the trial court was required to instruct the jury on 

assault, involuntary manslaughter, and reckless homicide, which were lesser included 

offenses of felonious assault, felony murder and murder, respectively. The matter was 

accordingly reversed and the matter remanded to the trial court for further proceedings. 

{¶5} At appellant’s retrial, many eyewitnesses testified. Although the accounts 

of the fight differed in certain respects, the witnesses for the state conveyed, for the 

most part, a similar rendition of the events they observed. A summary of the relevant 

eyewitness testimony is as follows: 

{¶6} Christopher Pataky testified that he, Kernich, Chelko, and Clements had 

been out visiting various bars on November 14, 2009. He stated each member of their 

group had been drinking, but no one was excessively drunk. Pataky, who is 6’7” and 

255 lbs, testified he consumed approximately eight beers over a four-to-five hour period; 

given his size, he testified, such a quantity of alcohol did not render him impaired. 

{¶7} While walking home, Pataky testified he was nearly struck by a white 

Honda Civic leaving the parking lot of the Firestone station located on the corner of 

Deypeyster and East Main Streets in Kent, Ohio. Pataky testified he yelled at the 

vehicle’s occupants, complaining the car nearly struck the group. According to Pataky, 

the car stopped further down East Main and parked in a driveway. Pataky testified the 

group continued down the street; he and Clements in front of Kernich and Chelko. 

Pataky stated he and Clements passed the car without incident; after passing the 

vehicle, however, he turned around and observed Chelko on the ground adjacent to the 
 4

white Civic. Pataky noticed that Kernich, who was 6’3” and approximately 200 lbs, in the 

street with Kelly, 5’10” and 235 lbs. 

{¶8} Pataky rushed to assist Chelko and, after confirming Chelko was fine, 

Pataky looked out to the street and witnessed appellant, 6’0” and approximately 180 lbs, 

and Kelly stomping on Kernich’s head. Pataky testified they looked as if they were 

enjoying it. Pataky testified he then ran toward appellant and pushed him away from 

the unresponsive Kernich. According to Pataky, after being shoved, appellant punched 

him in the lip and fled the scene. Overall, Pataky testified he witnessed appellant stomp 

Kernich two or three times. 

{¶9} Bradley Chelko, Kernich’s roommate, similarly testified that as he and his 

friends were walking down East Main, a white Honda came out of a parking lot and 

almost hit the group. The car parked up the street and as he attempted to pass by, Kelly 

pushed him into the vehicle then punched him in the face. Chelko fell back but, as he 

stood up, Chelko stated he took a swing at Kelly but missed. Chelko was subsequently 

struck in the head a second time. From this blow, he fell to the ground. When Chelko 

looked up, he noticed Kernich was in the street “squaring up” with Kelly. Chelko testified 

he then saw appellant charge Kernich and strike him with a running punch. Kernich fell 

immediately and, according to Chelko, both appellant and Kelly began kicking Kernich 

in the head and abdomen. Chelko stated he had consumed approximately five or six 

beers over the course of the night, but was able to recall the events of the night 

“clearly.” Approximately 20 minutes after the assault, Chelko later identified each 

assailant for police during a show-up identification. 
 5

{¶10} Dave Clements, Kernich’s close friend and fellow student at Kent State, 

stated he had consumed between seven and eight beers over the course of the 

evening. Similar to Pataky and Chelko, Clements testified that the white Honda nearly 

hit him and his friends, after which, words were exchanged. He stated that he and 

Pataky had passed the vehicle up the street without incident; when he turned around to 

see where Kernich and Chelko were, however, he witnessed Chelko being pushed into 

the vehicle and subsequently punched by a black male later identified as Kelly. After 

Chelko was hit, Clements stated Kernich and Kelly “squared up” in the street. 

Suddenly, Clements saw appellant run into the street, and blind-sided Kernich with a 

punch to the head that “had a lot of power behind it.” After Kernich fell, Clements 

testified he witnessed appellant stomp on Kernich’s head. 

{¶11} Clements stated he was five feet away from appellant at the time of the 

assault. He testified he was 100 percent certain appellant stomped on Kernich’s head 

twice. After the stomping, Clements testified he heard Kelly yelling at the surrounding 

crowd. As Kelly retreated, Clements testified he followed Kelly and shouted at him as 

he left. According to Clements, Kelly ultimately turned and punched Clements in the 

face. Clements later identified appellant and Kelly at a show-up identification 

approximately 20 minutes after the incident. He testified he did not see the men in 

handcuffs or in a police cruiser but, given the police presence, he knew they were being 

detained. 

{¶12} On cross-examination, Clements admitted that he was unable to say with 

certainty that the individual who punched Kernich was white or black. Nevertheless, at 
 6

trial, he testified that there was no doubt in his mind that appellant was the individual 

who had blind-sided and stomped on Kernich. 

{¶13} Thomas Coleman, a Kent State student who also worked Kent State 

campus security, testified he was on the porch of a fraternity house when he observed 

two black males accost a white male in the street. He testified he was approximately 50 

feet from the incident, and he saw a black male in a red shirt yelling at the white male. 

According to Coleman, the white male did not appear interested in fighting because he 

had his hands at his side and appeared to be walking away from the encounter. 

Coleman testified, however, that a black male in a white shirt suddenly sucker-punched 

the white male from behind. The punch was very forceful and struck the white male in 

the head. Coleman witnessed the white male collapse and hit his head on the 

pavement. Coleman could hear the thud of the victim’s head hit the street and 

analogized the sound to “dropping a bowling ball.” 

{¶14} Coleman approached the scene and witnessed appellant kicking the 

victim in the head using a “soccer ball kick.” By the time he reached the fight, Coleman 

testified he was “face-to-face, like, within arm’s reach” from appellant and Kelly. 

Coleman, who had approximately six cans of beer over the course of the night, later 

identified appellant and Kelly by photographs first published in a local newspaper 

several days after the assault. 

{¶15} Charles Johansen, another Kent State student, testified he was walking 

home after consuming three or four beers over the course of the evening. As he made 

his way down East Main Street, Johansen noticed a heated argument occurring 

between several individuals. Johansen testified he observed a taller white male and a 
 7

dark-skinned black male break away from the group, “squaring up” with one another. He 

testified a different black male charged the white male and struck the white male with an 

overhand punch to the side of the head. The white male collapsed to the ground and, 

according to Johansen, the black male who struck the victim stomped or kicked the 

latter twice in the vicinity of his head. Between 10 and 15 minutes after the assault, 

Johansen, through a show-up identification procedure, identified appellant as the 

individual who threw the punch and subsequently stomped the victim. Johansen 

testified he was aware appellant was being detained by police at the time of the showup. 

{¶16} Megan Prescott, also a student at Kent State and friend of Kernich, was 

with friends and fellow students Ali Gantz and Kerra Coticchia on the night of the 

incident. The young women were at a local bar until they left at approximately 2:00 a.m. 

Prescott testified she consumed three drinks over a four-hour period. As the girls were 

walking home, Prescott saw Kernich walking with some friends. Kernich acknowledged 

her, shouting, “[H]i, Prescott.” 

{¶17} After passing Kernich and his friends, Prescott testified she witnessed a 

white car abruptly pull into a driveway. Prescott testified she observed two black males 

yelling obscenities, then observed an individual fall against the vehicle. She stated she 

saw Kernich in the street in a boxing stance with appellant and Kelly. Appellant then 

approached Kernich from behind and punched him in the side of the head. According to 

Prescott, Kernich never saw the punch coming. She stated the punch was delivered 

with “a lot of force.” 
 8

{¶18} After Kernich fell, Prescott, who was approximately 10 to 15 feet from the 

incident, testified appellant and Kelly began kicking the side of Kernich's head like a 

“soccer ball.” Prescott stated she heard appellant exclaim “that’s what you get” as he 

and Kelly were beating the unconscious Kernich. Prescott was able to identify the 

clothing each assailant was wearing and identified appellant as the individual who first 

hit Kernich. 

{¶19} Ali Gantz was with Prescott and Coticchia that night and was also a friend 

of Kernich. She testified she had been out that night and consumed approximately 

three drinks over the course of the evening. According to Gantz, as the girls were 

walking home, she witnessed one of Kernich’s friends, with whom she was unfamiliar, 

being pushed into a white Honda. She testified she then saw Kernich in the street with a 

dark-skinned African American male, later identified as Kelly. The two men were in 

boxing stances with their hands up. Gantz testified appellant suddenly charged Kernich 

and with a “leap punch” struck Kernich in the head. According to Gantz, Kernich did not 

see it coming and the force of the blow rendered him completely unconscious. She then 

witnessed appellant kick Kernich several times in the torso “like a kickball.” Gantz 

testified she did not recall witnessing Kelly kick Kernich after he fell. Gantz testified 

there was no doubt in her mind that appellant was the individual who punched Kernich 

in the head and that appellant kicked Kernich after he was down. 

{¶20} Robert Clouden, a student at Kent State and risk manager for the 

fraternity throwing the party attended by Coleman, also witnessed a portion of the 

incident. Clouden testified he was inside the fraternity house when he heard people 

yelling “Fight. Fight. Fight.” Clouden testified he went outside and observed a light-
 9

skinned, black male wearing a white t-shirt stomping on an unconscious individual’s 

head between three and four times. Clouden left the porch and approached the scene. 

He testified he came within arm’s length of the attacker, who he later identified as 

appellant. Clouden did not see Kelly involved in the fight. Clouden testified he had only 

two Bud Lights over the course of the entire evening. Similar to Thomas Coleman, 

Clouden also identified appellant via the photograph that appeared in the newspaper. 

{¶21} On the night of the assault, Wilson Kuzyk was with his friends Robert 

Clouden and Thomas Coleman at the above-mentioned fraternity party. Kuzyk testified 

he was on the porch of the house, approximately 35 to 40 feet from the street, when he 

observed a light-skinned individual wearing a white V-neck t-shirt, later identified as 

appellant, and a stockier black male in a red V-neck t-shirt, later identified as Kelly, 

stomping the head of an unconscious male. Kuzyk approached the scene and 

eventually was within “arms length” of appellant. Then, a white vehicle with its 

headlights off swerved into the road. According to Kuzyk, Kelly entered the vehicle and 

attempted to pull appellant into the same; appellant, however, did not enter the car. As 

the vehicle drove away, Kuzyk testified appellant was aggressively challenging 

individuals in the crowd to fight him. 

{¶22} Anthony Gallas, another Kent State student, testified he was with his 

friends, Tyler Martin and Jared Bartholomew, on the night of the incident. The three 

young men had spent the evening at several bars where Gallas had between eight and 

ten beers over a four-hour period. As they were walking home, Gallas witnessed the 

fight in its entirety. Gallas testified he was about 25 feet away when he saw a white 

male in a black shirt, later identified as Kernich, and a black male in a red shirt, later 
 10

identified as Kelly, in the middle of the street, “squaring off.” He testified that a second 

black male in a white V-neck shirt, later identified as appellant, charged the white male 

at a “15-yard sprint” and punched him in the side of the head knocking the white male 

out immediately. According to Gallas, the victim was blind-sided by the blow. As the 

victim collapsed, Gallas noted, his head bounced off the pavement. Once the victim fell, 

Gallas testified that Kelly then proceeded to kick him in the top of the head while 

appellant simultaneously stomped on the victim’s head and chest “violently.” After the 

assault, Gallas testified a white car, driven by a white male, later identified as Jefferson, 

pulled up and either Kelly, appellant, or both entered the vehicle. Gallas identified both 

appellant and Kelly at the subsequent show-up identification. He further testified he 

was 100 percent certain appellant was the individual who punched and stomped 

Kernich. 

{¶23} Gallas additionally testified he witnessed Jefferson apparently exit the car 

and deliver a final kick to Kernich. On cross-examination, Gallas admitted he never 

provided this information in any prior statement. 

{¶24} Tyler Martin testified that, on the night in question, he had six drinks over 

the course of a three-hour period while out with his friends, Gallas and Bartholomew. 

As the three young men walked down East Main Street on their way home, Martin 

testified he witnessed a black male in a red, short-sleeved t-shirt, later identified as 

Kelly, “squared off” with a white male, later identified as Kernich. He then saw a second, 

lighter-skinned black male in a white V-neck shirt, later identified as appellant, charge 

Kernich at a 15-yard sprint and sucker punch Kernich from behind. Martin testified the 

victim was knocked out immediately and, as he fell, his head bounced off the concrete. 
 11

{¶25} Once the victim hit the ground, Martin testified appellant and Kelly began 

violently kicking and stomping Kernich. Martin testified appellant delivered three to four 

kicks to the helpless Kernich. After the attack, Martin testified appellant appeared to be 

almost celebrating “like he had just won something.” Appellant further threatened 

Martin as well as other bystanders, shouting “yeah, we killed that n-----. Yeah, yeah, 

we’ll kill you, too, n-----.” Martin testified appellant showed “no remorse at all.” 

Subsequently, Martin began recording appellant and Kelly with his cell phone. While 

the recording is highly pixelated, some audio can be discerned. As appellant and Kelly 

depart from the scene, Martin shouts “congratulations, you’re going to jail.” A voice can 

be heard advising “I’m getting the fuck out of here” to which Martin replies “Don’t worry, 

you’re about to get locked up.” 

{¶26} By the end of the assault, Martin testified he was within seven feet of the 

assailants and was 100 percent certain appellant and Kelly were the attackers. Martin 

immediately sought out police to give a statement and provide identification of the 

attackers. Officer Sarah Berkey, the first responding officer, testified Martin approached 

her, very upset, and, while pointing to appellant and Kelly, told the officer “don’t let them 

leave.” On cross-examination, Martin admitted he did not see well at night because he 

is blind in his left eye, as well as color blind. 

{¶27} Glenn Jefferson, a sophomore at the University of Akron and Ronald 

Kelly’s roommate, testified appellant and Kelly asked him to go to a party with them at 

Kent State on the night of November 14, 2009. He declined, but later changed his 

mind. Jefferson arrived at Kent at approximately 12:00 a.m. where he met appellant and 

Kelly at a fraternity house. The trio drank and danced until approximately 2:00 a.m., 
 12

when they left. Upon leaving the party, Jefferson testified the three young men entered 

his white Honda Civic. According to Jefferson, someone outside the vehicle yelled 

some unfriendly words at him and his companions. Jefferson testified Kelly ordered him 

to pull over. Once the car stopped, Kelly and appellant leapt out of the vehicle. 

{¶28} As Jefferson exited, he testified he was then accosted by an unknown 

male. According to Jefferson, the unidentified male took a swing at him; Jefferson 

ducked and countered with a punch, which connected; as his alleged attacker fell back, 

Jefferson testified he kicked the unidentified male in the stomach to keep him away. 

After kicking his purported attacker, Jefferson testified he looked up and saw “[Kelly] 

and [appellant] stomping some guy in the head * * *.” Jefferson testified he specifically 

witnessed Kelly stomp on the victim’s head twice and appellant stomp on the victim’s 

head once. Jefferson returned to his vehicle, ripped off his temporary tag to avoid being 

identified, and returned to the scene to pick up his companions. Kelly jumped in the car, 

but, according to Jefferson, appellant had left the immediate area. As Jefferson and 

Kelly drove up the street, they saw appellant in the parking lot of a local auto service 

business surrounded by three or four individuals. Jefferson testified he and Kelly exited 

the vehicle attempting to retrieve appellant; they were unable to get appellant in the 

vehicle and, shortly thereafter, the police arrived and surrounded Jefferson, Kelly, and 

appellant in the parking lot. 

{¶29} During his testimony, Jefferson admitted he lied to police throughout the 

course of the investigation to cover for his companions; he initially told police the fight 

was a result of a group of people threatening the three young men and casting racial 
 13

slurs at appellant and Kelly. He recanted these statements and, at trial, testified that, 

despite his numerous fabrications, he was being truthful in his testimony at trial. 

{¶30} After the prosecution rested, the defense put several witnesses on the 

stand whose statements contradicted the foregoing general rendition of events. First, 

Danielle Contradi, a Kent State student at the time of the assault, testified she provided 

an initial statement to police that a white male struck the victim in the head; she also 

stated she only saw Kelly kicking the victim while he was on the ground. On crossexamination, Contradi testified, that she did not get a good look at the assailant 

because she was focusing on Kernich. She further testified her statement was based 

upon her perception that the attacker looked white because Kelly’s skin color was 

significantly darker than the person who punched the victim from behind. Contradi 

added that she knew the individual who struck the victim had dark hair, not red hair; 

thus, she specifically excluded Jefferson as the potential suspect at the time she made 

the statement. 

{¶31} Joseph Starkey testified he witnessed Kelly and Kernich in the road as 

though they were going to fight. He stated he observed a taller African American, later 

identified as appellant, come up behind Kernich and suddenly Kernich collapsed. He 

testified, however, he did not observe appellant throw a punch. And, upon collapsing, 

Starkey testified he witnessed only Kelly kicking and stomping Kernich. 

{¶32} Jared Bartholomew testified he was with Gallas and Martin on the evening 

in question and was also a witness to the incident. In his statement to police, however, 

Bartholomew identified Kelly as the individual who punched Kernich and identified a 
 14

light-skinned male as the only party who kicked the victim. Bartholomew later identified 

the “light-skinned male” as appellant. 

{¶33} Carl Belfiore, another Kent State student, gave a written statement in 

which he asserted that, while a white male and an African-American male were squared 

up in the street, a different white male charged and knocked out the first white male. He 

further stated the African-American male proceeded to kick the unresponsive white 

male. Belfiore stated he never witnessed the individual who knocked the white male out 

throw a kick. Belfiore later identified appellant as the individual who threw the knock-out 

punch. Belfiore testified that, despite the potential conflicts in his statements, his 

identification of appellant as a white male was based upon his light complexion relative 

to Kelly. And, after seeing appellant’s picture, Belfiore testified he was certain appellant 

was the attacker. 

{¶34} Jacquelyne Slicker, another student at Kent State, testified she was 

approximately 75 feet from the incident when it occurred. In a statement to police, she 

asserted the individual who struck the victim was a white male, with dirty-blonde hair. 

Jefferson was the first individual she saw upon speaking with police, and she 

immediately identified him as the assailant. She testified, however, after observing 

appellant at the scene, she began to question her own identification. Slicker ultimately 

testified that she did not want to recant on her original identification but, after 

considering what she witnessed, she recognized she could not positively identify the 

individual who threw the initial punch. Slicker further testified that Kelly was the only 

individual she witnessed kicking the victim. 
 15

{¶35} In addition to the foregoing eyewitness testimony, DNA evidence was 

taken from blood stains found on appellant’s shirt and shoe. Sergeant Edward Wheeler, 

of the Kent Police Department, testified he arrived on the scene approximately two 

minutes after receiving the call; he later took appellant to the police station. In the 

course of his interviewing appellant, Wheeler observed what appeared to be blood on 

appellant's shirt, which appellant could not explain. Also, after appellant was arrested, a 

video taken while he was in custody depicted appellant licking his thumb and wiping the 

side of his shoe. The shirt and shoe were collected by police and analyzed by forensic 

scientists at BCI and a separate, private DNA laboratory. 

{¶36} At trial, Chad Britton, a forensic scientist at BCI, testified he tested and 

analyzed the items. Britton concluded six stains on appellant’s shirt tested 

presumptively positive for blood; similarly, appellant’s shoe tested presumptively 

positive for blood on the heel. Linda Eveleth, a forensic scientist at BCI’s DNA division, 

performed the next series of tests and issued a report concluding that a major DNA 

profile could be taken from two of the six stains. That major profile was consistent with 

the victim’s DNA. And, according to Eveleth, the expected frequency of occurrence of 

this major profile is one in 24 quintillion, 930 quadrillion unrelated individuals; a number 

that is “billions times the world’s population.” 

{¶37} Further, DeWayne Winston, a forensic scientist in the Forensic Identity 

Department at Laboratory Corporation of America, testified he received a DNA swab 

sample from BCI that was taken from appellant’s shoe. And, after testing the sample, a 

DNA profile was developed that could not exclude the victim. According to Winston, the 

probability of finding another individual in the general population that had the same DNA 
 16

profile obtained from appellant’s shoe is one in greater than six billion, 500 million, a 

figure greater than the earth’s 2010 population. 

{¶38} Finally, Dr. George Sterbenz, a forensic pathologist for the Summit County 

Medical Examiner, testified he conducted the autopsy on the victim. Dr. Sterbenz 

testified he reviewed the victim’s treatment history from the reports of the first 

responders on the scene of the assault, to the hospital medical records relating to the 

victim’s death. In light of this history, the doctor conducted a physical examination of the 

victim. In the course of the examination, the doctor documented the victim had a scalp 

laceration and a larger abrasion to the back of his head. The victim further had deep 

muscular bruising to the temporalis muscle, the muscle that attaches to the jaw and 

assists the jaw in closing. The doctor testified the victim also suffered a non-displaced 

skull fracture on the left side of his head; multiple skull bruises; subdural hemorrhaging; 

bruising and bleeding within the brain; and traumatic swelling of the brain. According to 

the doctor, the swelling of the brain caused it to be squeezed inside the cranial cavity. 

This condition, he testified, is referred to as brain herniation, which occurs when 

portions of the brain are pushed up against membranes and openings inside the cranial 

cavity. 

{¶39} The doctor explained to the jury that the victim’s treatment history and 

injuries indicated the victim’s brain began to swell immediately after the assault and, 

because of the severity of the beating, he failed to improve regardless of medical 

treatment. The continued herniation of the victim’s brain disrupted blood flow, which 

quickly compromised the brain tissue causing individual brain cells to die. Eventually, 

blood was no longer entering or leaving the brain, which resulted in death based on 
 17

neurologic criteria. The doctor concluded that the specific cause of death was cranialcerebral blunt force trauma by homicide from being struck by another person or 

persons. The doctor testified the victim suffered concussive trauma to his skull and 

brain due a combination of multiple blows to his head. In particular, the doctor testified 

the victim suffered a fall, evidenced by his contrecoup pattern contusions to his brain, 

and sustained multiple blows to the head, and the cumulative effects of the trauma was 

the proximate cause of his death. 

{¶40} After hearing the evidence, the jury returned a verdict on both counts of 

murder and the count of felonious assault. The trial court found the felonious assault 

and felony-murder counts were allied offenses of similar import and that the two counts 

of murder merged for purposes of sentencing. The state elected sentencing on the 

felony-murder count. Appellant was subsequently sentenced to life in prison with 

eligibility for parole after fifteen years and ordered the sentence to be served 

concurrently with the prison term he was already serving. 

{¶41} Appellant appeals his conviction and assigns five errors for this court’s 

review. His first assignment of error provides: 

{¶42} “The trial court erred by restricting the cross-examination of state 

witnesses regarding the identification procedures failure to meet the guidelines of R.C. 

2933.83(B) in violation of the confrontation clauses of the state and federal constitution.” 

{¶43} Under this assigned error, appellant argues the trial court unfairly 

restricted his ability to challenge Kent police officers’ identification procedures relating to 

the various show-up identifications that occurred on the night of the assault. Appellant 

contends counsel should have been permitted to cross-examine police pursuant to 
 18

procedures set forth under R.C. 2933.83, the statute providing guidelines for police in 

the context of live lineup and photo lineup identifications, he was denied his right to 

confrontation. We do not agree. 

{¶44} R.C. 2933.83 “requires any law enforcement agency or criminal justice 

entity that conducts live lineups and photo lineups to adopt specific procedures for 

conducting the lineups.” State v. Ruff, 1st Dist. Hamilton No. C-110250, 2012-Ohio1910, ¶5. The procedures include, inter alia, using “a blind or blinded administrator” 

who does not know the identity of the suspect to conduct a physical live lineup or a 

photo lineup. R.C. 2933.83(B)(1). 

{¶45} Initially, because R.C. 2933.83 governs photograph and live lineup 

procedures, it does not specifically apply to individual show-up identification procedures 

that occur shortly after a crime and take place at or near the scene of that crime. See 

State v. Pressley, 2d Dist. Montgomery No. 24852, 2012-Ohio-4083, ¶33 (holding R.C. 

2933.83 is not applicable to show up identification procedures). 

{¶46} Moreover, the statute became effective after the crimes in this case were 

committed, on July 6, 2010. Because the requirements of R.C. 2933.83 were neither 

effective at the time of the crime, nor applicable to the procedure employed by the Kent 

police, they were irrelevant to the matter sub judice. 

{¶47} The jury heard testimony from Officer Benjamin Darrah that the Kent 

Police Department had no specific policies or guidelines on how officers should conduct 

show-up identifications. It further heard testimony from Johansen, Chelko, and 

Clements relating to their show-up identification of appellant. These witnesses stated 

appellant was clearly detained at the time of the show-up. In light of the lack of defined 
 19

procedural protocol, the jury was able to consider the suggestiveness of the show-ups 

in its deliberations. We therefore conclude appellant’s right to confrontation was fairly 

preserved and the court’s disallowance of an inapplicable statute to further attack the 

weight and reliability of the identifications was a sound exercise of its discretion. 

{¶48} Appellant’s first assignment of error is without merit. 

{¶49} We shall next consider appellant’s fifth assignment of error, which 

provides: 

{¶50} “The verdicts are against the weight of the evidence.” 

{¶51} “In determining whether the verdict was against the manifest weight of the 

evidence, ‘* * * the court reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and determines whether in 

resolving conflicts in the evidence, the jury clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial 

ordered.’”(Emphasis sic.) State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. 

LEXIS 5862, *14-*15 (Dec. 23, 1994). 

{¶52} A judgment of a trial court should be reversed as being against the 

manifest weight of the evidence “only in the exceptional case in which the evidence 

weighs heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 

(1997). 

{¶53} Appellant contends inconsistencies in witness testimony militate heavily 

against his conviction. As a result, he contends the jury lost its way necessitating a 

reversal of his conviction. 
 20

{¶54} The jury found appellant guilty of both counts of murder and one count of 

felonious assault. And the court found that the two murders merged and the felonious 

assault merged with the felony murder. The state elected for appellant to be sentenced 

for felony murder. We hold appellant’s conviction for felony murder is consistent with the 

manifest weight of the evidence. 

{¶55} R.C. 2903.02(B) provides: 

{¶56} “No person shall cause the death of another as a proximate result of the 

offender’s committing or attempting to commit an offense of violence that is a felony of 

the first or second degree.” 

{¶57} R.C. 2903.11(A)(1) provides: 

{¶58} “(A) No person shall knowingly do either of the following: 

{¶59} “(1) Cause serious physical harm to another or to another’s unborn;” 

{¶60} Despite appellant’s assertions, the jury heard evidence from multiple eye 

witnesses, the great balance of whom provided a remarkably consistent version of 

events. Ten witnesses (Thomas Coleman, Charles Johansen, Dave Clements, Bradley 

Chelko, Megan Prescott, Ali Ganz, Robert Clouden, Anthony Gallas, Tyler Martin, and 

Glenn Jefferson) testified at trial that they observed a thinner, light-skinned AfricanAmerican male, wearing a white V-necked t-shirt charge and punch Kernich and 

subsequently stomp or kick the unconscious victim one or more times. Each of these 

witnesses ultimately identified appellant as the assailant committing these assaults. 

Furthermore, another witness, Christopher Pataky, testified that, while he did not see 

the initial blow that knocked Kernich to the ground, he did observe appellant stomp 

Kernich’s head two to three times. Similarly, Wilson Kuzyk stated he observed 
 21

appellant violently stomping on Kernich’s head multiple times. And, although Jared 

Bartholomew testified Kelly threw the initial punch, he also testified he witnessed 

appellant kicking Kernich while he was on the ground. 

{¶61} Although appellant produced several witnesses who originally gave 

statements that a white male punched Kernich, two of these witnesses (Danielle 

Contradi and Carl Bellfirore) later clarified that their original statements, identifying a 

white male as the assailant, were premised upon their perception that appellant 

appeared white in comparison to Kelly. A third witness, Jessica Slicker testified she 

observed a white male with dirty blonde hair throw the initial punch; on cross 

examination, however, she stated she could not positively identify the initial assailant. 

{¶62} Finally, Dr. Sterbenz testified that Kernich’s death was proximately caused 

by the cumulative effect of blunt force trauma inflicted by the initial punch, Kernich’s 

head striking the pavement, and the subsequent kicks or stomps, inflicted by both 

appellant and Kelly, to Kernich’s head. 

{¶63} Viewed in its totality, the evidence supports the reasonable inference that 

appellant, through a felonious assault, a felony of the second degree, proximately 

caused Kernich’s death. We therefore hold the jury neither lost its way nor committed a 

manifest miscarriage of justice when it returned its verdict finding appellant guilty, 

beyond a reasonable doubt, of felony murder. 

{¶64} Appellant’s fifth assignment of error is without merit. 

{¶65} We shall next consider appellant’s second assignment of error, which 

asserts: 
 22

{¶66} “The trial court erred by permitting the prosecution to introduce 

prejudicially irrelevant testimony into evidence.” 

{¶67} Appellant contends the trial court committed reversible error when it 

permitted the jury to consider irrelevant photographs of injuries to two witnesses that 

had nothing to do with the crimes charged. He further contends the court similarly erred 

when it permitted a police officer to explain a video of appellant at the police station 

instead of allowing the trier of fact to draw its own conclusions relating to the video’s 

content. We do not agree. 

{¶68} The admission or exclusion of relevant evidence lies within the broad 

discretion of a trial court, and a reviewing court should not disturb evidentiary decisions 

save an abuse of discretion that has created material prejudice. State v. Noling, 98 Ohio 

St.3d 44, 2002-Ohio-7044, ¶43, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). The 

phrase “abuse of discretion” connotes a lack of sound, reasonable, and legal decisionmaking. State v. Metter, 11th Dist. Lake No. 2012-L-029, 2013-Ohio-2039, ¶45; see 

also State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶64. 

{¶69} Unless otherwise prohibited, evidence is relevant and consequently 

admissible if it tends to make a consequential fact more or less probable. Evid.R. 401 

and Evid.R. 402. A trial court, however, must exclude relevant evidence “if its probative 

value is substantially outweighed by the danger of unfair prejudice, of confusion of the 

issues, or of misleading the jury.” Evid.R. 403; State v. Tate, 11th Dist. Lake No. 2010-

L-145, 2011-Ohio-6848, ¶44. 

{¶70} We emphasize that “[u]nfavorable evidence is not equivalent to unfairly 

prejudicial evidence.” State v. Bowman, 144 Ohio App.3d 179, 185, (12th Dist.2001). 
 23

Moreover, excluding evidence on the basis of “unfair prejudice” requires more than a 

balance of mere prejudice; otherwise, any admission adversely affecting a defendant’s 

case would be excludable pursuant to Evid.R. 403. State v. Crotts, 104 Ohio St.3d 432, 

437, 2004-Ohio-6550. Significant emphasis must therefore be placed upon the word 

“unfair.” Id.

{¶71} A defendant may suffer unfair prejudice when the admission of evidence 

could result in an improper basis for the jury’s verdict. Tate, supra at ¶50, citing State v. 

Broadnax, 2d Dist. Montogomery No. 18169, 2001 Ohio App. LEXIS 564, *8, (Feb. 16, 

2001). “‘The underlying premise of the Rule is that certain relevant evidence should not 

be admitted to the trier of fact where the admission would have an adverse impact upon 

the effectiveness or integrity of the fact finding process.’” Id., quoting Weissenberger's 

Ohio Evidence, Treatise, Section 403.1, at 81-82. Accordingly, courts have held 

“evidence that tends to arouse a jury’s emotions, evoke, in the jury, a sense of horror, or 

rouses an instinct to punish, may be considered ‘unfairly prejudicial.’” Tate, supra, 

citing Crotts, supra; see also State v. Norman, 4th Dist. Ross Nos. 08CA3059 and 

08CA3066, 2009-Ohio-5458, ¶54; State v. Harris, 7th Dist. Jefferson No. 04 JE-44, 

2006-Ohio-3520, ¶91; State v. Lloyd, 2d Dist. Montgomery No. 15927, 1999 Ohio App. 

LEXIS 1256, *39 (Mar. 31, 1999). 

{¶72} Appellant asserts that the evidence in question was either irrelevant or its 

relevance was substantially outweighed by the danger of its unfairly prejudicial effect. 

We shall first address the photographs. The photos at issue depict injuries Pataky 

sustained to his lip after Barker punched him, as well as injuries Chelko sustained to his 

head and chin when he was struck, by either Kelly, Jefferson, or both. The photos were 
 24

introduced pursuant to each witness’ testimony regarding their rendition of what 

occurred. 

{¶73} The photos were not directly relevant to the crimes with which appellant 

was charged. In this respect, the photos were irrelevant because they do not tend to 

establish a fact of consequence. Notwithstanding this point, the photos could be 

deemed relevant insofar as they tend to buttress Pataky’s and Chelko’s testimony 

regarding what they observed from their very unique perspective of the assault. 

Utilizing extrinsic evidence for this purpose, however, is prohibited by the rules of 

evidence. 

{¶74} Evid.R. 608(B) provides: 

{¶75} Specific instances of the conduct of a witness, for the purpose of attacking 

or supporting the witness’s character for truthfulness, other than conviction of crime as 

provided in Evid.R. 609, may not be proved by extrinsic evidence. 

{¶76} It appears the photos were relevant only to the extent they supported 

Pataky’s and Chelko’s credibility or character for truthfulness. Evid.R. 608(B), however, 

prohibits the use of extrinsic evidence for this purpose, regardless of its potential 

relevance. The trial court consequently erred in admitting the photos over objection. 

{¶77} Even though the trial court erred in admitting the photos, appellant 

suffered no prejudice from their introduction. As discussed under appellant’s fifth 

assignment of error, the evidence in this case, viewed in its totality, militated heavily in 

favor of a conviction. As a result, any error in admitting the photos of Pataky’s and 

Chelko’s coincidental injuries was rendered harmless. 
 25

{¶78} Next, appellant asserts he suffered prejudice when Lieutenant James Ray 

Stein was permitted to comment on a portion of the booking video in which appellant is 

seen removing something from his shoe. Appellant contends the content of the video 

was sufficient, unto itself, for the jury to consider and Lieutenant Stein’s opinions 

encroached upon the jury’s role as factfinder. We do not agree. 

{¶79} Evid.R. 701 provides: “If the witness is not testifying as an expert, the 

witness’ testimony in the form of opinions or inferences is limited to those opinions or 

inferences which are (1) rationally based on the perception of the witness and (2) 

helpful to a clear understanding of the witness’ testimony or the determination of a fact 

in issue.” 

{¶80} At the time of the crimes, Lieutenant Stein, a 32-year veteran of the Kent 

Police Department, was in charge of the detective bureau. Prior to observing the 

booking video, Sergeant Ed Wheeler had pointed out to Lieutenant Stein that appellant 

had blood on his hands. And, in the course of his experience as a police officer, 

Lieutenant Stein testified it is not uncommon for arrestees to try and discard evidence 

before they are processed. In the case of blood evidence, he testified, “they may try to 

wipe off their hands, if they were involved in an assault case or something like that.” 

With this in mind, the lieutenant testified: “I knew this was a felonious assault and there 

was blood and it involved kicking and stomping of the victim. Blood will transfer from 

one individual to another individual.” 

{¶81} After the video was played without commentary, it was re-played to allow 

the lieutenant to comment. In doing so, the lieutenant observed: 
 26

{¶82} Now [appellant] picked up one of his shoes. He’s looking at both 

sides of the shoe, decides to put them on. He looks at the - - that 

shoe, also. He licks his thumb. And now he’s wiping the side of his 

shoe off; takes his other thumb and does that same thing on the 

other shoe, too. 

{¶83} * * * 

{¶84} [Appellant is] looking at his hands right now. Sergeant Wheeler 

had pointed out to him and asked him about the blood on his 

hands, and he appears to be picking at his right hand. It’s hard to 

see what he’s doing, but, whatever he’s picking off, he’s trying to 

throw into the trash can that’s in the corner. 

{¶85} The state laid an adequate foundation for the introduction of Lieutenant 

Stein’s opinion testimony as it related to what was occurring on the video pursuant to 

Evid.R. 701. To wit: the lieutenant’s narration was based upon his perception of 

appellant and helpful to establish a clear understanding of his testimony vis-à-vis 

appellant’s behavior in the booking video. We therefore conclude Lieutenant Stein’s 

testimony was relevant and did not encroach upon the province of the jury. 

{¶86} Appellant’s second assignment of error is without merit. 

{¶87} Appellant’s third assignment of error provides: 

{¶88} “The trial court erred by permitting the prosecution to introduce 

prejudicially irrelevant testimony into evidence in violation of Evid.R. 404(B).” 

{¶89} Under this assignment of error, appellant argues the trial court committed 

reversible error when it permitted the state to introduce evidence, by way of the booking 
 27

video, that appellant was charged with a crime for which he was not on trial, namely, 

obstructing official business. Appellant contends such “other acts” evidence was 

prohibited because it suggested appellant had a propensity for criminal activity 

independent of the offenses for which he was charged. Appellant maintains allowing 

the jury to consider the irrelevant evidence that he was charged with an additional crime 

compromised his constitutional right to due process. We do not agree. 

{¶90} We first point out that the evidence upon which the obstruction charge was 

based involved the multiple inconsistent statements appellant had provided police.1

 

This evidence was introduced by way of Sergeant Wheeler’s testimony before the 

booking video was played. The video depicts an officer who, after advising appellant 

that he would be charged with felonious assault and obstruction, explains that police 

were provided with numerous witness statements directly implicating appellant in the 

assault; the officer further explained that appellant had given investigators three 

different versions of events which indicated, in light of the eye-witness’ statements, he 

was misleading or deceiving investigators. The fact that appellant was offering different 

accounts of what occurred, the basis of the obstruction charge, was cumulative of 

evidence previously introduced. Hence, the portion of the video in which appellant is 

apprised of the obstruction charge is relevant and admissible. The question, therefore, 

is whether the mere mention that appellant would be formally charged with the 

obstruction charge, a crime for which he was not on trial, was inadmissible. 

 

1. Appellant, in his brief, asserts the video was played for the purpose of arguing that appellant tried to 

hide evidence by way of wiping blood off of his shoe. He further suggests that this was the basis for the 

obstruction charge. A review of the relevant portions of the video, however, demonstrates the obstruction 

charge was premised upon the investigator’s belief that he was lying to police by virtue of his various 

inconsistent statements. Even assuming the charge was premised upon the act of blood wiping, those 

acts would be relevant to the extent it provides some evidence of guilt vis-à-vis the principle assault. 
 28

{¶91} We acknowledge that the statement regarding the charge for obstruction 

is not obviously relevant to the charges appellant was facing. Nevertheless, it is clear 

that the statement came in to emphasize (1) appellant had been positively identified as 

a participant in the assault; and (2) in light of the eye-witnesses’ identification, the police 

concluded his inconsistent statements were fabrications. In this respect, the 

introduction of the statement was for a purpose other than to establish a propensity or 

disposition on the accused’s part to commit a crime. State v. Roe, 41 Ohio St.3d 18, 24 

(1989). The Supreme Court of Ohio has held that “‘evidence of other crimes may be 

presented when “they are so blended or connected with the one on trial as that proof of 

one incidentally involves the other; or explains the circumstances thereof; or tends 

logically to prove any element of the crime charged.”’” State v. Wilkinson, 64 Ohio St.2d 

308, 317 (1980), quoting United States v. Turner, 423 F.2d 481, 483-484 (7th Cir.1970); 

accord Roe, supra. 

{¶92} Here, the evidence upon which the obstruction charge was founded was 

also crucial to the state’s evidence in the underlying murder case. In this regard, the 

crime of obstruction is significantly connected with the murder and felonious assault 

charges such that the basis for the former incidentally forms a foundation for 

establishing appellant’s involvement in each of the latter. In this respect, we discern no 

error in the court’s decision to permit the statement and deny appellant’s request for a 

mistrial. 

{¶93} Even assuming, however, the statement should have been excluded, we 

conclude, in light of the surrounding circumstances and the evidence submitted to 

support appellant’s involvement, any error in admitting it was harmless. 
 29

{¶94} Admission of improper irrelevant evidence is harmless if “the remaining 

evidence alone comprises ‘overwhelming’ proof of defendant’s guilt.” State v. Williams, 

6 Ohio St.3d 281, 290 (1983), quoting Harrington v. California, 395 U.S. 250, 254 

(1969). The jury heard evidence that appellant changed his statement several times 

after his arrest. Moreover, as discussed under appellant’s fifth assignment of error, 13 

eye-witnesses ultimately identified appellant as either the initial assailant or a participant 

in the stomping. In light of the significant evidence of appellant’s guilt, there is no basis 

for the contention that the jury premised its murder and felonious assault verdicts upon 

the arguably irrelevant fact that appellant was, at one point, charged with obstructing 

official business. We therefore hold the erroneous admission of the statement is 

therefore harmless as a matter of law. 

{¶95} Appellant’s third assignment of error lacks merit. 

{¶96} Appellant’s fourth assignment of error provides: 

{¶97} “The appellant was denied his right to the effective assistance of trial 

counsel due to counsel’s failure to object to victim-impact evidence.” 

{¶98} To establish ineffective assistance of counsel, an appellant must show 

that his attorney’s performance was deficient and that the alleged deficiencies 

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 

80 L. Ed.2d 674 (1984). Both the performance and prejudice prongs must be 

established to demonstrate counsel’s ineffectiveness. 

{¶99} An attorney’s performance is deficient if, after considering the totality of 

the circumstances, his or her representation fell below an objective standard of 

reasonableness. Id. at 688. A court, however, “must indulge in a strong presumption 
 30

that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689. Debatable trial tactics do not generally constitute deficient 

performance. State v. Phillips, 74 Ohio St.3d 72, 85 (1995), citing State v. Clayton, 62 

Ohio St.2d 45, 49 (1980). 

{¶100} With respect to the prejudice prong, an appellant must show a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. Strickland, supra, at 694. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome” of the proceeding. Id. 

{¶101} Appellant contends his counsel was ineffective for failing to object to what 

he characterizes as victim impact statements made during the guilt phase of the trial. 

Appellant points to testimony of Pataky and Chelko, who visited the victim in the 

hospital daily prior to his removal from life support, as well as the testimony of the 

victim’s father, John Kernich, who elaborated on his son’s character and what it was like 

to see him in the hospital and make funeral arrangements. Appellant asserts the 

statements were unrelated to the issue of appellant’s legal culpability and only served to 

enflame the emotions of the jury. We do not agree that counsel’s failure to object to the 

testimony at issue rendered his assistance ineffective. 

{¶102} Given the circumstances of the crime, counsel could have reasonably 

concluded objecting to the testimony of the victim’s friends and father would have made 

appellant appear callous and remorseless to the profound loss suffered by these 

individuals. Or, alternatively, counsel could have reasonably concluded that objecting to 

the testimony could have drawn additional attention to the testimony thereby 

compounding the weight of that evidence. Either way, the decision not to object falls 
 31

within the gamut of reasonable trial strategy. See State v. Brown, 8th Dist. Cuyahoga 

No. 84059, 2004-Ohio-6862, ¶38 (“[o]bjections to the testimony of the victim’s wife may 

have soured the jury. It is possible that the jurors would have viewed counsel’s 

objections as an affront to a sympathetic witness, and counsel could rationally conclude 

that an objection was not worth the risk of antagonizing the jury.”); see also State v. 

Boeddeker, 12th Dist. Clermont No. CA2009-05-029, 2010-Ohio-106, ¶19 (“had trial 

counsel objected to Cupp’s testimony, it may have negatively impacted the jury's 

opinion of Boeddeker. An objection to testimony from the victim’s mother may have left 

the jury feeling resentful that Boeddeker was trying to shield the jury from hearing more 

about [the victim.]”) Trial tactics, even those which might be considered debatable, may 

not form the basis of an ineffectiveness claim. See e.g. Phillips, supra. In this respect, 

we therefore hold counsel’s performance did not fall below an objective standard of 

reasonable representation. 

{¶103} Even if counsel’s failure to object was viewed as error, however, appellant 

suffered no ostensible prejudice as a result of the omission. Appellant has failed to 

provide a basis for his conclusion that, absent the purported victim-impact testimony, 

there was a reasonable likelihood the outcome of the trial would have been different. 

Given the surfeit of witness testimony identifying appellant as either the initial assailant, 

a participant in the stomping, or both, there is no basis for the conclusion that the 

inclusion of the victim-impact testimony contaminated the proceedings or rendered them 

unfair. 

{¶104} One final point must be addressed. The state argues trial counsel could 

not be held ineffective for failing to object to the purported victim impact testimony 
 32

because such testimony is permissible to establish the victim “had been a living 

person.” The state cites to the Ohio Supreme Court’s ruling in State v. Noling, 98 Ohio 

St. 3d 44, 2002-Ohio-7044 in support of its contention. 

{¶105}In Noling, the Supreme Court concluded no error existed when the trial 

court admitted victim impact testimony from (1) the individual who discovered the bodies 

of two murder victims and (2) the niece of the victims. The former witness was the son 

of the victims’ neighbor as well as their friend. He testified, over objection, that the 

victims enjoyed playing cards, talking to people, and working around their yard. The 

victims’ niece provided testimony regarding summers she spent with the victims. 

{¶106} The Supreme Court first noted that the trial court had sustained various 

objections relating to details of the lives of the victims. This apparently indicated the trial 

court was conscientious of the potential unfair prejudice the defendant could suffer if 

such evidence was admitted. The Court then determined the testimony challenged by 

Noling was not merely inflammatory, but actually served to establish essential features 

of the crimes charged. With respect to the individual who discovered the bodies, the 

court observed his testimony helped explain why he went to check on the victims; 

namely, they were gregarious and meticulous neighbors and, when he noticed their 

lawn mower was left out and their garage door opened, he became suspicious. The 

court also noted the testimony helped establish a time of death. 

{¶107} Further, the Court held the testimony of the niece simply established the 

victims were living human beings, “an element of the aggravated murder charge.” Id. at 

¶56. Regarding this testimony, the Court emphasized that victims can never be 

separated from a criminal act. Id. at ¶57. 
 33

{¶108} We recognize that Noling provides the state with some latitude to establish 

the seemingly tautological proposition that a victim was a living person. We do not read 

Noling, however, as giving the prosecution carte blanche to elicit emotionally evocative 

testimony regarding the victim’s life and/or death without restraint or concern for 

misconduct. The Court in Noling underscored that the testimony it considered was “not 

simply inflammatory.” Id. at ¶57. Accordingly, although the state may produce some 

evidence “proving life,” this evidence should not extend to gratuitous testimony that 

functions to simply inflame the passions of the jury. 

{¶109} With the foregoing in mind, we hold the alleged victim impact evidence in 

this case was not so inflammatory as to undermine confidence in the outcome. 

Accordingly, counsel was not ineffective for failing to object to the alleged victim impact 

evidence presented in this case. 

{¶110} Appellant’s fourth assignment of error is without merit. 

{¶111} For the reasons discussed in this opinion, the judgment of the Portage 

County Common Pleas is affirmed. 

TIMOTHY P. CANNON, P.J., 

THOMAS R. WRIGHT, J., 

concur.