State v. Graham (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Graham, Slip Opinion No. 2020-Ohio-6700.]

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

SLIP OPINION NO. 2020-OHIO-6700
THE STATE OF OHIO, APPELLEE, v. GRAHAM, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Graham, Slip Opinion No. 2020-Ohio-6700.]
Criminal law—Aggravated murder—Aggravating circumstances do not outweigh
mitigating factors—Convictions affirmed, death sentence vacated, and
cause remanded for resentencing.
(No. 2016-1882—Submitted October 22, 2019—Decided December 17, 2020.)
APPEAL from the Court of Common Pleas of Portage County,
No. 2016 CR 107 E.
_________________
FISCHER, J.
I. INTRODUCTION
{¶ 1} This is an appeal of right from an aggravated-murder conviction and
death sentence. A Portage County jury found appellant, Damantae Graham, guilty
of multiple offenses, including aggravated murder and three accompanying death-
penalty specifications: committing the aggravated murder during an aggravated
robbery, an aggravated burglary, and a kidnapping. The jury recommended a
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sentence of death, and the trial court accepted the recommendation and sentenced
Graham accordingly. For the reasons that follow, we affirm Graham’s convictions
but vacate his death sentence and remand the cause to the trial court for resentencing
consistent with this opinion.
II. GUILT-PHASE EVIDENCE
{¶ 2} Evidence introduced at trial showed that Graham, a 19-year-old, shot
Nicholas Massa during the robbery of an apartment in Kent, Ohio. The state
presented the testimony of, among others, the two surviving robbery victims and
Graham’s three codefendants.
A. Kremling plans to rob Haithcock
{¶ 3} Connor Haithcock, a 19-year-old, and Justin Lewandowski, a 20-
year-old Kent State University student, were roommates at the Ryan Place
apartments in Kent. Massa, an 18-year-old Kent State University student, often
visited the apartment.
{¶ 4} Haithcock sold marijuana and “dabs,” a concentrated form of
tetrahydrocannabinol, also known as THC, from the apartment. Haithcock sold
marijuana to 17-year-old Ty Kremling, his former high school classmate, on two
occasions. On those occasions, Kremling noticed that Haithcock kept marijuana
and a significant amount of money in a lockbox in the apartment.
{¶ 5} Soon after his second purchase of marijuana, Kremling decided to rob
Haithcock. On Super Bowl Sunday, February 7, 2016, he began planning the
robbery for later that day. Kremling asked two of his friends, Graham and 17-year-
old Marquis Grier, if they would like to take part in a robbery. Kremling told them
it would be easy, and he shared details with them: the location of the apartment, the
valuable items in the apartment, and the intended target of the crime (Haithcock)
and how he knew him. Graham and Grier agreed to participate.
{¶ 6} Kremling then called 17-year-old Anton Planicka, a friend who
owned a truck. Kremling told Planicka that he needed a ride to Kent to commit a

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robbery. Planicka later testified that Kremling had told him it was a “sure thing”
and had asked him if he “wanted in on it.” Planicka agreed to participate.
{¶ 7} Kremling, Grier, Graham, and Planicka met at a house on McElrath
Avenue in Ravenna. According to Planicka, Kremling said they were going to take
everything from Haithcock. Planicka testified, “He [Kremling] said that he’d been
there over the weekend and they had an Xbox One and money and drugs.” They
planned to use bandanas and hoodies cinched tightly to cover their faces.
According to Grier, he and Graham each had a .380-caliber High Point
semiautomatic handgun to use during the robbery.
B. Massa is killed during the planned robbery
{¶ 8} On the afternoon of February 7, Haithcock, Lewandowski, and Massa
were at Haithcock’s and Lewandowski’s apartment. Haithcock and Massa were
playing Xbox, and Lewandowski was hanging decorations on the wall, using a
hammer.
{¶ 9} Shortly before 4:00 p.m., Planicka, Kremling, Grier, and Graham
arrived at the Ryan Place apartment building. Planicka backed into a parking space
at a nearby business and stayed in the truck. Kremling, Graham, and Grier entered
the building, partially covered their faces with bandanas and hoodies as planned,
and proceeded to Haithcock’s and Lewandowski’s third-floor apartment. Despite
their disguises, Kremling, Grier, and Graham could be distinguished from each
other by their physical characteristics: Kremling is tall and light-skinned, Grier is
shorter than Kremling and is light-skinned, and Graham is short and dark-skinned.
{¶ 10} According to Kremling, Graham knocked on the apartment door and
Lewandowski opened it. Graham and Grier barged into the living room with their
guns drawn. Graham ordered Lewandowski to drop the hammer he was holding.
He dropped it and put his hands in the air.
{¶ 11} Graham ordered Haithcock, Lewandowski, and Massa to sit on the
living-room couches. According to Haithcock, the short, dark-skinned man (later

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identified as Graham) was doing the talking. He asked Haithcock, “Where’s the
money[?] [W]here’s the dope[?]” Haithcock said that it was all in the lockbox on
the kitchen table. Grier took the dabs and marijuana from the lockbox. Graham
put a gun to Haithcock’s head demanding money. Haithcock gave Graham $500
or $600 from his pocket. The robbers then demanded more money.
{¶ 12} Haithcock told the robbers that there might be more money in his
bedroom. Graham told Grier to take Haithcock to the bedroom to look. Kremling
accompanied them. Meanwhile, Graham stayed in the living room guarding
Massa and Lewandowski, who remained seated on the couch with their hands up.
At trial, Lewandowski described what happened next:

Nick [Massa] looked over at me and the short, dark-skinned male
[Graham] said, what the f[—-] are you looking at him for? If you
look over at him again I’m gonna shoot you. And Nick immediately
replied you’re not going to shoot me. And as soon as he did that,
the short, dark-skinned male shot him [in the chest].

C. Perpetrators flee the scene and split up
{¶ 13} After hearing the gunshot, Grier and Kremling hurried into the living
room and saw that Massa had been shot. According to Kremling, Grier asked
Graham if he had just shot him, and Graham said, “[Y]eah.” The three of them ran
out of the apartment and fled in Planicka’s truck. According to Planicka, Grier
asked Graham, “[W]hy do you have to always be doing hot sh[—] like that[?]” and
Graham replied, “He thought sh[—] was sweet and I wasn’t playing.” Graham then
gave each of them $100, from what he had taken from Haithcock.
{¶ 14} They returned to the house in Ravenna, where they divided up the
marijuana. Graham told them that they did not have to worry about getting caught,
because the gun had jammed, so the shell casing had not ejected. He showed them

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the casing. The four of them left the house separately. Graham told Grier a couple
days later that he had broken up the gun and thrown it in a wooded area.
D. Police investigation
{¶ 15} After the three robbers left his apartment, Lewandowski called 9-1-
1 and reported the shooting. Haithcock got on the phone and told the operator that
Ty Kremling was one of the robbers. During the trial, Haithcock testified that he
had recognized Kremling by “[h]is height, * * * his build, the way he carried
himself, [and] the way he walked.” Shortly after the 9-1-1 call, the police and
medics arrived, and Massa was pronounced dead at the scene.
{¶ 16} On the afternoon of February 7, Detective Richard Soika began
looking for Kremling and the getaway truck—Planicka’s green, four-door truck had
been captured on video by a camera positioned near Haithcock’s and
Lewandowski’s apartment. Soika contacted AT&T and requested that he receive
alerts on the location of Kremling’s phone. Police located Kremling in the Stow
area and arrested him. The next morning, Kremling admitted his involvement in
the robbery. Kremling said that he had not intended to kill anyone but that he had
intended to rob Haithcock for drugs and money. Kremling would not disclose the
names of the other perpetrators.
{¶ 17} On February 8, the police learned that Planicka had been the getaway
driver. Further investigation identified Graham and Grier as suspects, and the
police obtained their physical descriptions and photos. On February 10, Grier was
arrested. Grier admitted his involvement in the robbery but claimed he had not
expected anyone to get hurt. Meanwhile, the police learned that Graham was
staying at a house in Ravenna, and a task force found him hiding in a room inside
that house.
{¶ 18} On February 12, Soika interviewed Graham at the Portage County
sheriff’s office. Graham said, “I wasn’t there,” when he was questioned about his
involvement in the robbery and murder.

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E. Medical examiner’s testimony
{¶ 19} Dr. George Sterbenz, the chief deputy medical examiner for Summit
County, conducted Massa’s autopsy. He testified that Massa died from a single
bullet that entered his chest and traveled at a downward angle through his heart,
aorta, and left lung. Dr. Sterbenz stated that the wound was consistent with the
shooter’s having stood over Massa while he was seated. Based on the injuries to
Massa’s body and the lack of gunshot residue on Massa’s clothing, Dr. Sterbenz
said that the muzzle of the handgun was at least six inches from Massa when he
was shot.
III. PROCEDURAL HISTORY
{¶ 20} The state charged Graham with one count of aggravated murder and
five noncapital counts. In Count 1, the state charged Graham with the aggravated
murder of Massa during an aggravated robbery, aggravated burglary, or
kidnapping. Count 1 contained three death-penalty specifications, all under R.C.
2929.04(A)(7): (1) aggravated murder during an aggravated robbery, (2)
aggravated murder during an aggravated burglary, and (3) aggravated murder
during a kidnapping.
{¶ 21} Regarding the five additional counts, the state charged Graham with
aggravated burglary in Count 2, aggravated robbery in Count 3, kidnapping
Haithcock in Count 4, kidnapping Lewandowski in Count 5, and kidnapping Massa
in Count 6. Each count also included a firearm specification.
{¶ 22} Graham pleaded not guilty to all the charges. The jury found
Graham guilty of all charges and specifications, and it recommended that he be
sentenced to death. The trial judge accepted the recommendation and sentenced
Graham accordingly. Graham was also sentenced to serve 11 years in prison on
each of the noncapital counts and to serve a total of six years in prison on the firearm
specifications, for a total of 61 years.

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IV. ISSUES RAISED ON APPEAL
{¶ 23} Graham’s appeal raises 14 propositions of law. We will address the
issues raised in those propositions in the approximate order that they arose during
the proceedings.
A. Defense counsel failed to show particularized need for grand-jury
transcripts
{¶ 24} In proposition of law No. VIII, Graham argues that defense counsel
were ineffective because they made no effort to show a particularized need to obtain
the grand-jury transcripts. To prevail on this claim, Graham must show that
counsel’s performance was deficient and that a reasonable probability exists that
but for counsel’s errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs
two and three of the syllabus.
{¶ 25} We have recognized a limited exception to the general rule of grand-
jury secrecy: an accused is not entitled to review the transcript of grand-jury
proceedings “unless the ends of justice require it and there is a showing by the
defense that a particularized need for disclosure exists which outweighs the need
for secrecy.” State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph
two of the syllabus. A particularized need is established “when the circumstances
reveal a probability that the failure to provide the grand jury testimony will deny
the defendant a fair trial.” State v. Sellards, 17 Ohio St.3d 169, 173, 478 N.E.2d
781 (1985). Determining whether a particularized need exists is a matter within the
trial court’s discretion. Greer at paragraph one of the syllabus.
1. Defense counsel requested the grand-jury transcripts
{¶ 26} Defense counsel filed pretrial motions to (1) transcribe the grand-
jury proceedings, (2) disclose the names of the witnesses who testified before the
grand jury, and (3) obtain a transcript of the grand-jury proceedings. The trial court

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denied all three motions because defense counsel failed to show a particularized
need.
{¶ 27} Subsequently, defense counsel filed a motion for reconsideration of
the three motions, arguing:

Upon information and belief, persons who testified before the grand
jury have also given statements to law enforcement officers, or to
others who gave the information to the State’s agents; and it is
highly probable that those persons who testified before the Grand
Jury will also be called to testify for the prosecution at trial. Their
testimony before the grand jury may be inconsistent with the other
statements that they have made.

At a hearing on this motion, the prosecutor argued: “[T]here has been no showing
of any particularized need for this testimony. And I will represent to the Court that
the co-defendants [Kremling, Grier, and Planicka] did not testify at [the] grand
jury.” The trial court denied the motion for reconsideration.
2. Analysis
{¶ 28} Graham argues that defense counsel failed to raise the proper
arguments to establish a particularized need for the grand-jury transcripts. He
contends that counsel should have argued that a particularized need existed (1)
based on the possibility that he was indicted on the false testimony of a codefendant,
(2) based on the possibility that his codefendants’ trial testimonies would be
inconsistent with their grand-jury testimonies, and (3) because the grand-jury
testimony of a codefendant might implicate another person who may have been the
shooter. Graham argues that he is “entitled to a new trial with instructions to
provide the grand jury transcript to look for inconsistencies in the testimony of any
of the co-defendants who implicated him as the shooter.” (Emphasis added.)

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{¶ 29} Here, there is no possibility that Graham’s codefendants gave false
grand-jury testimony or grand-jury testimony inconsistent with their trial
testimony, because, according to the prosecutor, none of Graham’s codefendants
testified before the grand jury. The prosecutor was aware that the state had the duty
to disclose such information, if it indeed existed, given Graham’s written request,
under Crim.R. 16(B)(1). Because none of Graham’s codefendants testified before
the grand jury, counsel cannot be found deficient for failing to present a sufficient
argument to demonstrate a particularized need for the nonexistent grand-jury
testimony. Thus, Graham fails to show that defense counsel were deficient.
{¶ 30} Based on the foregoing, we reject proposition of law No. VIII.
B. Jury pool was tainted by racial slurs and racist comments
{¶ 31} In proposition of law No. I, Graham argues that three prospective
jurors made racial slurs and racist comments during individual voir dire and that
the trial court erred by failing to convene a new jury pool due to such comments.
However, defense counsel failed to object to the jury pool at trial and thus forfeited
all but plain error. To prevail, Graham must show that an error occurred, that the
error was plain, and that the error affected the outcome of the trial. State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Graham also argues that defense
counsel were ineffective by failing to request a new jury pool.
1. Racist comments and racial slurs during voir dire
a. Prospective juror No. 38
{¶ 32} Prospective juror No. 38 stated in her jury questionnaire, “Do not
like n[——-]s,” in response to the question, “Do you have any specific health
problems of a serious nature that might make it difficult or uncomfortable for you
to sit as a juror in this case?”
{¶ 33} During individual voir dire, defense counsel brought prospective
juror No. 38’s questionnaire response to the trial court’s attention. Under
questioning, prospective juror No. 38 explained, “Attitude. It’s an attitude. I

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believe there’s white and there’s black. It has nothing to do with color. * * * I see
it where I work every day. * * * [P]eople come in and they just * * * don’t care
about other people; just a bad attitude.”
{¶ 34} During general voir dire, prospective juror No. 38 was questioned
outside the presence of other jurors. She again explained her use of the N-word,
stating, “[I]t’s not a racial thing. I am not prejudice in any way.” She added:
“[T]here’s white people and black people and white n[——-]s and black n[——-]s
and Hispanic. I don’t mean that as in disrespect.” Prospective juror No. 38 was
later excused for cause.
b. Prospective juror No. 195
{¶ 35} During individual voir dire, the trial court excused prospective juror
No. 195 because the prospective juror indicated he would lean toward imposing a
death sentence if the jury found the defendant guilty. The following day,
prospective juror No. 187 informed the court that prospective juror No. 195 made
a derogatory comment that included a racial slur in the presence of their small-
group panel before prospective juror No. 195 was excused. Prospective juror No.
187 reported that prospective juror No. 195 had stated, “I wonder how much we
paid for that n[——-]’s suit.”
{¶ 36} Under questioning, prospective juror No. 187 stated that having
heard the comment would not affect her ability to be fair and impartial. The trial
court then questioned the four remaining prospective jurors from that small-group
panel. Prospective juror No. 185 had heard nothing derogatory. Prospective juror
Nos. 188, 193, and 194 had heard the comment, but each stated that the comment
would not affect his or her ability to be fair and impartial. None of the prospective
jurors who heard prospective juror No. 195’s comment served on the jury.
c. Prospective juror No. 64
{¶ 37} During individual voir dire, the prosecutor questioned prospective
juror No. 64 about his views on the death penalty:

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[The prosecutor]: * * * So the imposition of the death
penalty is not automatic; is it in your mind?
Prospective Juror: No. You can’t just go out and lynch
somebody like, you know, in 1835 or something.
[The prosecutor]: Okay. Fair enough.
Prospective Juror: I watch a lot of Gunsmoke.

Defense counsel later used a peremptory challenge to remove prospective juror No.
64 from the panel.
2. Analysis
{¶ 38} There is no presumption that an entire jury panel is tainted when a
prospective juror makes improper comments in the presence of other prospective
jurors. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127,
¶ 149-150. The party challenging the entire jury panel has the burden to show either
that the jurors were unlawfully empaneled or that they could not be fair and
impartial. Id. at 150. But nothing in the record supports either finding.
a. Racist comments and racial slurs did not taint the jury
{¶ 39} Graham argues that other prospective jurors may have been present
in the jury room while prospective juror No. 38 was being questioned and may have
overheard her racist comments and racial slurs. But this assertion is not supported
by the record. At the beginning of individual voir dire, the trial court informed the
prospective jurors: “At this time, we are going to go back into the jury room and
you will be brought in one at a time to be questioned by the court and then by the
attorneys.” (Emphasis added.) And before prospective juror No. 38 was
questioned, the court reporter noted: “Individual voir dire conducted in the jury
room, outside the presence of other prospective jurors.” (Emphasis added.) Thus,
the record does not support a finding that the jury was tainted by prospective juror

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No. 38’s comments and slurs, because those comments and slurs were not made or
referred to in the presence of other prospective jurors.
{¶ 40} As for prospective juror No. 195, at least four prospective jurors
heard his derogatory comment while they were waiting to be questioned. But
because prospective juror No. 195 was the last prospective juror to be questioned
during individual voir dire, the number of prospective jurors who were able to hear
his comment was quite small, as many had left the courtroom after participating in
individual voir dire. Furthermore, none of those prospective jurors was considered
for selection before the jury was seated. Thus, there is no possibility that the jury
was tainted by prospective juror No. 195’s comment.
{¶ 41} Graham also claims that prospective juror No. 64’s comment about
lynchings in 1835 was racist and may have tainted the jury. Prospective juror No.
64 explained that he had made this comment because he “watch[es] a lot of
Gunsmoke,” a TV western. But no other prospective jurors heard this comment.
Thus, there is also no support that prospective juror No. 64’s comment tainted the
jury.
b. Trial court conducted appropriate inquiry
{¶ 42} Graham argues that in light of the comments made by prospective
juror Nos. 38, 195, and 64, the trial court should have questioned all the remaining
prospective jurors to protect against a tainted jury pool. But the trial court properly
addressed comments that were brought to its attention. First, the trial court
questioned prospective juror No. 38 about the racial slur on her questionnaire
outside the presence of other prospective jurors. Nothing indicates that any other
prospective juror was aware of prospective juror No. 38’s use of the racial slur.
Second, the trial court questioned all the prospective jurors on the small-group
panel that overheard prospective juror No. 195’s derogatory comment. These jurors
indicated that the comment would not have any impact on their ability to be fair
and impartial. Moreover, none of these prospective jurors was seated on the jury.

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{¶ 43} Graham contends that the comments made by these three prospective
jurors demonstrated the need for a new jury pool. But speculation as to bias among
the prospective jurors does not justify quashing the entire venire. See London v.
Scurry, 12th Dist. Madison No. CA95-10-033, 1996 WL 406263, *2 (July 22,
1996). And Graham points to no evidence showing that any other prospective juror
harbored racial bias. Thus, he has not established that the trial court should have
questioned other prospective jurors about their racial views or convened a new jury
pool.
{¶ 44} Graham cites State v. Feagin, 5th Dist. Richland No. 05 CA 1, 2006-
Ohio-676, ¶ 18, in arguing that the trial court should have conducted a further
inquiry to protect against a tainted jury pool. In Feagin, a prospective juror referred
to the defendant as “the crook” during voir dire. Id. at ¶ 12. The trial court excused
the prospective juror but did not question the remaining prospective jurors to
determine whether the comment had caused them to be prejudiced against the
defendant. On appeal, the Fifth District rejected the defense’s claim that the trial
court should have questioned the other prospective jurors, in part because defense
counsel failed to show that the juror’s comment “irreparably tainted the jury panel’s
objectivity.” Id. at ¶ 25. Thus, Feagin does not support Graham’s argument.
c. Batson does not apply
{¶ 45} Graham invokes Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986), in arguing that “issues involving racial prejudice among a
jury” cause structural error and thus his conviction is subject to automatic reversal.
In Batson, the United States Supreme Court outlined a three-part test for evaluating
whether a prosecutor’s use of peremptory challenges constituted a constitutional
violation. Id. at 96. But Graham fails to explain how Batson applies here.
Moreover, neither the prospective jurors who made the racist comments nor the
prospective jurors who heard the comments were seated on the jury that decided
Graham’s guilt and sentence.

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d. Counsel were not ineffective during voir dire
{¶ 46} As a final matter, Graham argues that defense counsel were
ineffective during voir dire. To establish ineffective assistance, Graham must (1)
show that counsel’s performance “fell below an objective standard of
reasonableness” as determined by “prevailing professional norms” and (2)
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; see also Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373, at paragraphs two and three of the syllabus.
{¶ 47} First, Graham argues that defense counsel were ineffective by failing
to move for a new jury pool after some prospective jurors made racial slurs and
displayed racial bias. However, defense counsel had no grounds for requesting a
new jury pool after prospective juror No. 38 was excused and the prospective jurors
who had heard prospective juror No. 195’s derogatory comment assured the court
that they could remain fair and impartial. Nothing suggested that the entire jury
pool was tainted simply because two prospective jurors made racist comments. See
State v. Hairston, 4th Dist. Scioto No. 06CA3087, 2007-Ohio-4159, ¶ 17. Thus,
this ineffective-assistance-of-counsel claim lacks merit.
{¶ 48} Second, Graham argues that defense counsel failed to ask the
prospective jurors a single question about race during voir dire. When a capital
defendant is accused of interracial murder, defense counsel are “entitled to engage
in racial-bias inquiry,” but they are not required to do so. (Emphasis deleted.) State
v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 217-218. As we
have explained, “the actual decision to question on racial prejudice is a choice best
left to a capital defendant’s counsel.” State v. Conway, 108 Ohio St.3d 214, 2006-
Ohio-791, 842 N.E.2d 996, ¶ 33. Counsel has to “weigh the risks inherent in
interrogating prospective jurors on the sensitive question of racial prejudice.” State
v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 207.

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{¶ 49} Defense counsel elected not to question prospective jurors about
race. But the record indicates that defense counsel were attuned to issues of racial
bias. Defense counsel spotted prospective juror No. 38’s racist comment on her
questionnaire and brought it to the court’s attention. Defense counsel also filed a
motion to include additional questions on the juror questionnaire about possible
racial bias. Because counsel were alert to the possibility of racial bias, their
decision not to question jurors on that topic appears to have been a deliberate
tactical choice.
{¶ 50} Nevertheless, Graham characterizes defense counsel’s motion to
expand the questionnaire as “a minimal effort to uncover potential racism.”
Graham’s argument is insufficient to overcome the strong presumption that counsel
“made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 51} Under the circumstances, we hold that counsel were not deficient by
failing to make further inquiry on the topic of racial bias. Moreover, Graham
cannot establish prejudice, because there is no evidence that any seated juror
actually harbored racial bias. See State v. Thompson, 141 Ohio St.3d 254, 2014-
Ohio-4751, 23 N.E.3d 1096, ¶ 234.
{¶ 52} Based on the foregoing, we reject proposition of law No. I.
C. Improper admission of testimony describing Graham’s lack of
cooperation and emotion during police interview
{¶ 53} In proposition of law No. V, Graham argues that police testimony
about his postarrest refusal to speak to detectives violated his right to remain silent
and his right to a fair trial. He also argues that defense counsel were ineffective in
that they failed to object to such testimony.

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1. Detective Soika’s testimony
{¶ 54} During the state’s case-in-chief, Detective Soika testified that he
interviewed Graham after his arrest. Soika testified about Graham’s demeanor
during the interview:

Q [prosecuting attorney]: And can you describe for us his
demeanor, what kind of characteristics he’s exhibiting at this point
and time?
A: Well, I’ve been a cop for a while, and I’ve interviewed a
lot of people. * * * Um, after talking to the first two involved in
this, I kind of—I don’t know, I thought maybe I’d get some
information out of Damantae * * * but I tried to talk to Damantae
Graham, and I got nowhere. * * * It’s hard to explain, but it’s just,
um, his demeanor, I mean, he didn’t look nervous, he didn’t blink,
he didn’t—
MR. BEANE [defense counsel]: Objection, Your Honor.
THE COURT: Overruled.
Q [prosecuting attorney]: Continue, please.
A: I mean, * * * trying to talk to him, it was just * * * it was
pretty much like no one I’ve ever interviewed. I mean, usually I can
talk pretty well to people and get a rapport or something, you know,
some kind of a response, but it was just a blank slate, blank stare,
you know. Myself, I tried to talk to him, other detectives tried to
talk to him, and it was just the same, you know, blank stare, no
emotion.
MR. BEANE: Your Honor, I would like for the record to
reflect my continuing objection to this line of questioning.
THE COURT: It will so reflect. * * *

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***
Q [prosecuting attorney]: Okay. Did Mr. Graham make any
statements at all about his involvement when being confronted with
this matter?
A: I believe the only thing he said was, “I wasn’t there.”

2. Standard of review
{¶ 55} Graham contends that we should review the admission of Soika’s
testimony for plain error. But because defense counsel objected to the admission
of the testimony, we review any error under the harmless-error standard in Crim.R.
52(A). State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15.
Under that rule, the state bears the burden of demonstrating that the error did not
affect the substantial rights of the defendant. Id.
3. Analysis
{¶ 56} Graham, citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49
L.Ed.2d 91 (1976), argues that Soika’s testimony improperly used his postarrest
silence against him in violation of his constitutional rights. In Doyle, the United
States Supreme Court held that use of a defendant’s postarrest post-Miranda silence
for impeachment purposes violates the Due Process Clause of the Fourteenth
Amendment because although “the Miranda warnings contain no express assurance
that silence will carry no penalty, such assurance is implicit to any person who
receives the warnings.” Doyle at 618; see Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). Further, the court held that “every post-arrest
silence is insolubly ambiguous because of what the State is required to advise the
person arrested.” Doyle at 617.
{¶ 57} Ten years later, the court was confronted with the issue whether a
defendant’s postarrest post-Miranda silence was admissible as substantive
evidence of guilt in the state’s case-in-chief. Wainwright v. Greenfield, 474 U.S.

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284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). The court held that such use violated
the defendant’s due-process rights, noting that “breaching the implied assurance of
the Miranda warnings is an affront to the fundamental fairness that the Due Process
Clause requires.” Wainwright at 291; see also State v. Leach, 102 Ohio St.3d 135,
2004-Ohio-2147, 807 N.E.2d 335, ¶ 16-17.
{¶ 58} Soika advised Graham of his Miranda rights at the outset of the
interview, but Graham did not invoke them. Instead, he told investigators, “I wasn’t
there,” when asked about the murder. Thus, Soika’s testimony that Graham
exhibited a “blank stare, no emotion” and was uncooperative during the interview
was not a comment on his Fifth Amendment right to remain silent. See State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 130; State v. Gillard,
40 Ohio St.3d 226, 231, 533 N.E.2d 272 (1988), abrogated on other grounds, State
v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997).
{¶ 59} We note that Soika’s testimony about Graham’s demeanor was
permitted under Evid.R. 701, which governs opinion testimony by lay witnesses.
That rule 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.”
{¶ 60} Soika’s testimony satisfied both requirements of Evid.R. 701. Soika
observed Graham’s demeanor, and Graham’s reactions were relevant in showing
his evasiveness. See Davis at ¶ 118-120 (testimony that the defendant was “non-
committal, very wishy washy” about whether he knew the victim when he was
shown the victim’s photo was relevant in demonstrating evasiveness); State v.
Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 118-125 (detective’s
testimony about the defendant’s reaction to the news of his wives’ murders
admissible as lay opinion).

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 January Term, 2020

{¶ 61} Graham cites United States v. Ursery, 109 F.3d 1129 (6th Cir.1997),
in arguing that repeated efforts to use a defendant’s postarrest silence show the
state’s intent to violate the Fifth Amendment. Ursery addressed the defendant’s
claim that the prosecutor, during her closing argument, improperly commented on
the defendant’s decision not to testify. Id. at 1134. But Ursery is inapposite
because Soika’s testimony had nothing to do with Graham’s decision not to testify.
{¶ 62} As for Graham’s ineffective-assistance-of-counsel claim, that
argument lacks merit because, as noted above, defense counsel did object to Soika’s
testimony.
{¶ 63} Based on the foregoing, we reject proposition of law No. V.
D. Improper admission of other-acts evidence
{¶ 64} In proposition of law No. IV, Graham argues that the prosecutor
introduced other-acts evidence in violation of Evid.R. 404(B) when (1) during his
opening statement, he said that Graham was known to carry a weapon and described
a picture on Kremling’s cell phone as depicting Graham “wielding his two guns,”
(2) he elicited testimony that Graham was known to carry a gun, and (3) he
introduced a photograph of Graham holding two handguns. Graham failed to object
to the opening statement or the evidence at trial and thus forfeited all but plain error.
See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23.
1. Relevant facts
{¶ 65} During his opening statement, the prosecutor said:

Now, Damantae Graham is known to carry weapons, to have
a weapon, and this day [the day of the murder] he has with him his
weapon, 380 semi-automatic pistol. And in addition, in the course
of planning their robbery at this house on McElrath Street in
Ravenna, he provides Marquis Grier * * * with a weapon, also. So
we have two guns amongst the three of these robbers. * * *

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***
[Kent police] get Ty Kremling’s cell phone. They find Ty
Kremling, download his cell phone. There’s pictures of Ty with
guess who, Damantae Graham wielding his two guns in the picture.

{¶ 66} During the state’s case-in-chief, the prosecutor asked Kremling,
“Did you know Damantae to carry a weapon, carry a gun?” Kremling answered,
“Yeah, I knew he had one.” Kremling also testified that Graham and Grier had
been carrying handguns during the robbery. Kremling said he did not know the
type of handguns they were carrying but he knew they were not revolvers.
{¶ 67} The state introduced a photo of Graham, Kremling, and another
person that had been retrieved from Kremling’s cell phone. The photo, state’s
exhibit No. 18, shows a smiling Graham holding two handguns. Kremling testified
that the photo was taken at the McElrath Avenue house “a few days before the
incident.”
{¶ 68} Grier testified that he and Graham each carried a .380-caliber High
Point semiautomatic handgun during the robbery. Grier stated that his handgun had
gone missing a week before the incident but that on the day of the robbery, Graham
had given it back to him. When asked whether he knew what had happened to
Graham’s gun, Grier said that a couple days after the murder, Graham told him that
he had broken up his gun and thrown it in a wooded area.
{¶ 69} Lewandowski testified that the barrel of the handgun that Graham
used to kill Massa was “squared off.” He said, “[The gun] was not a revolver. It
was a semi-automatic.”
{¶ 70} The trial court admitted state’s exhibit No. 18, without objection, at
the close of the state’s case.

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 January Term, 2020

2. Analysis
{¶ 71} Evid.R. 404(A) is a general prohibition on using evidence of a
person’s character to prove that he acted “in conformity therewith on a particular
occasion.” Evid.R. 404(B) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.

{¶ 72} In State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983
N.E.2d 1278, ¶ 20, we set forth a three-part analysis for determining the
admissibility of other-acts evidence: to be admissible, (1) the evidence must be
relevant, Evid.R. 401, (2) the evidence cannot be presented to prove a person’s
character to show conduct in conformity therewith but must instead be presented
for a legitimate other purpose, Evid.R. 404(B), and (3) the probative value of the
evidence cannot be substantially outweighed by the danger of unfair prejudice,
Evid.R. 403. The admissibility of other-acts evidence pursuant to Evid.R. 404(B)
is a question of law. State v. Hartman, ___Ohio St.3d ___, 2020-Ohio-4440,
___N.E.3d___, ¶ 22. The court is precluded from admitting improper character
evidence under Evid.R. 404(B), but it has discretion to allow other-acts evidence
that is admissible for a permissible purpose. Hartman at ¶ 22, citing Williams at
¶ 17.
a. Prosecutor’s statement
{¶ 73} We first briefly evaluate whether the prosecutor’s statement that
Graham possessed a gun was improper “evidence.” During his opening statement,
the prosecutor said, “Damantae Graham is known to carry weapons, to have a

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weapon, and this day [the day of the murder] he has with him his weapon, 380 semi-
automatic pistol.” (Emphasis added.)
{¶ 74} An attorney’s opening statement is an outline of what the attorney
expects the evidence to be at trial. See State v. Clay, 181 Ohio App.3d 563, 2009-
Ohio-1235, 910 N.E.2d 14 (8th Dist.), ¶ 45; see also Parrish v. Jones, 138 Ohio
St.3d 23, 2013-Ohio-5224, 3 N.E.3d 155, ¶ 22. It is designed to help the jury follow
the evidence as it is presented; it is not evidence. See Clay at ¶ 45; Crane v.
Sowders, 889 F.2d 715, 718 (6th Cir.1989) (“The concept that opening statements
are not evidence is too elemental to deserve discussion”). The trial court in this
case informed the jury as much in its jury instructions. Because the prosecutor’s
statement that Graham was “known to carry weapons” was not “evidence,”
Graham’s contention that such statement was impermissible under Evid.R. 404(B)
lacks merit.
b. Testimony about gun possession
{¶ 75} We next address Kremling’s testimony, in response to the
prosecutor’s questions, that Graham possessed a gun. Under the first part of the
Williams test, we must determine whether this evidence was relevant. The question
is not whether the evidence was relevant to the ultimate question of guilt but
whether the evidence was relevant to the particular purpose for which it was
offered. Hartman, ___Ohio St.3d ___, 2020-Ohio-4440, ___N.E.3d___, at ¶ 26.
“[T]he other-acts evidence must be probative of a ‘purpose other than the person’s
character or propensity to behave in a certain way.’ ” Id., quoting United States v.
Gomez, 763 F.3d 845, 860 (7th Cir.2014). Testimony that a defendant was seen
with a gun—not necessarily the gun involved in the offense—has been held to be
admissible when the witness’s sighting had “temporal and spatial proximity to the
crime in question.” State v. Crosby, 186 Ohio App.3d 795, 2010-Ohio-1584, 928
N.E.2d 795, ¶ 13 (8th Dist.), citing State v. Davis, 8th Dist. Cuyahoga No. 35421,
1977 WL 201136 (Jan. 6, 1977). While questioning Kremling, the prosecutor asked

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 January Term, 2020

whether Kremling knew Graham to carry a gun, and Kremling answered that he
knew Graham had one.
{¶ 76} Assuming that information was relevant, the prosecutor’s
questioning and Kremling’s testimony fail the second part of the Williams analysis
because it appears the state’s purpose was precisely the purpose forbidden by
Evid.R. 404(B), as propensity evidence. See Williams, 134 Ohio St.3d 521, 2012-
Ohio-5695, 983 N.E.2d 1278, at ¶ 20; Hartman at ¶ 21. Generalized statements
and testimony that a defendant is known to carry a gun are generally inadmissible
because they are meant to portray the defendant as a violent person who regularly
carried guns. See Crosby at ¶ 14; State v. Robinson, 7th Dist. Jefferson No. 05 JE
8, 2007-Ohio-3501, ¶ 55. Kremling’s elicited testimony on this subject was meant
to prove Graham’s character and that he acted in conformity therewith. See State
v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 157.
{¶ 77} Moreover, we hold that Kremling’s testimony that he knew Graham
had a gun also fails the third part of the Williams test, because it had little probative
value and any value was substantially outweighed by the danger of unfair prejudice.
{¶ 78} Thus, Kremling’s testimony that he knew Graham to carry a gun was
improper.
c. Photo of Graham holding two guns
{¶ 79} We next evaluate the photo of Graham under the Williams test.
Graham contends that the two handguns in the photo were not connected to the
murder. The state never recovered the murder weapon. But the state argues that
either gun depicted in the photo could have been the murder weapon. Evidence
presented at trial suggests that the handguns in the photo may have been the
handguns used in the crimes. Kremling testified that the photo was taken at the
McElrath Avenue house “a few days before the incident.” As noted above, courts
have allowed into evidence testimony that the defendant was seen with a gun—not
necessarily the gun involved in the offense—based on the “temporal and spatial

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proximity” of the sighting to the crime in question. Crosby, 186 Ohio App.3d 453,
2010-Ohio-1584, 928 N.E.2d 795, at ¶ 13.
{¶ 80} Grier also testified that he and Graham each carried a .380-caliber
semiautomatic handgun during the crimes. And Lewandowski testified that the gun
used to shoot Massa was not a revolver but a semiautomatic gun.
{¶ 81} Graham claims that it requires speculation to conclude that the guns
in the photo were the guns used in the crimes, because no evidence connected the
guns in the photo to the crimes. But “ ‘[u]ncertainty whether the weapons evidence
was actually used in the crime goes to the weight of such evidence, not its
admissibility.’ ” Commonwealth v. Williams, 58 A.3d 796, 801 (Pa.Super.2012)
(upholding admission of photo of defendant in possession of weapon similar to the
one used to commit the charged offenses), quoting Commonwealth v. Owens, 929
A.2d 1187, 1191 (Pa.Super.2007).
{¶ 82} Finally, Grier testified that he lost his handgun a week before the
robbery but that on the day of the robbery, Graham had given it back to him, which
shows that Graham had Grier’s handgun before the crimes. This is a further
indication that the two handguns Graham is holding in the photo may have been the
two handguns used in the crimes.
{¶ 83} Thus, we conclude that the photo had some relevance and satisfies
the first part of the Williams test.
{¶ 84} Turning to the second part of the Williams test, we must determine
whether the photo was presented as character evidence, which is impermissible, or
whether it was presented for a legitimate purpose. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20; Evid.R. 404(B). The photo shows a
smiling Graham holding two handguns, with one of them pointing toward the
camera.
{¶ 85} Graham invokes State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-
8011, 92 N.E.3d 821, in arguing that the photo showing him holding the firearms

24
 January Term, 2020

violated Evid.R. 404(B). In Thomas, the victim died from a stab wound to the neck.
Without objection, the state introduced five knives that were seized from the
defendant’s residence but were unrelated to the murder. The prosecutor described
them to the jury as “ ‘full Rambo combat knives.’ ” Id. at ¶ 48. This court held
that the admission of the knives violated Evid.R. 404(B) and amounted to plain
error because the state knew that the knives were not used in connection with the
murder. Id. at ¶ 45, 49. This court added, “It is apparent that the state offered this
evidence to portray Thomas as a person of violent character who had acted in
conformity with his propensity to kill—a use of evidence prohibited by Evid.R.
404(B) * * *.” Id. at ¶ 48.
{¶ 86} Graham argues that the admission of the photo showing him holding
and posing with the guns was similar to the admission of the knives in Thomas
because the guns in the picture were not connected to the murder. But unlike in
Thomas, in this case, the state sought to prove that the handguns in the photo were
the same handguns used during the robbery and murder. Thus, Graham’s reliance
on Thomas is misplaced.
{¶ 87} The state argues that the photo of Graham holding the two guns was
admissible to prove the identity of the shooter, because Graham told investigators,
“I wasn’t there,” which placed the identity of the shooter in dispute.
{¶ 88} Other acts can be evidence of identity in two situations. State v.
Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). “First are those situations
where other acts ‘form part of the immediate background of the alleged act which
forms the foundation of the crime charged in the indictment,’ and which are
‘inextricably related to the alleged criminal act.’ ” Id. at 531, quoting State v.
Curry, 43 Ohio St.2d 66, 73, 330 N.E.2d 720 (1975). “Other acts may also prove
identity by establishing a modus operandi applicable to the crime with which a
defendant is charged. ‘Other acts forming a unique identifiable plan of criminal
activity are admissible to establish identity under Evid.R. 404(B).’ ” Lowe at 531,

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quoting State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990), syllabus.
“ ‘Modus operandi’ literally means method of working.” Hartman, ___Ohio St.3d
___, 2020-Ohio-4440, ___N.E.3d___, at ¶ 37. “It is evidence of a signature,
fingerprint-like characteristics unique enough ‘to show that the crimes were
committed by the same person.’ ” Id., quoting Weissenberger, Federal Evidence,
Section 404.17 (7th Ed.2019).
{¶ 89} Here, the photo was not admissible to prove identity. It did not show
that Graham was at the apartment at the time of the crimes or directly tie him to
those crimes. The photo also fails to establish modus operandi because it provides
no “behavioral fingerprint” associated with the crimes in question. See Lowe at
531; Hartman at ¶ 38. Thus, the state’s theory for the admissibility of the photo
lacks merit.
{¶ 90} Therefore, even though the photo may have had some relevance, it
was introduced to suggest that Graham has a propensity for gun violence and to
imply that he acted in conformity with that character on the day of the crimes at
issue. We hold that the photo fails the second part of the Williams test.
{¶ 91} Finally, we also conclude that the photo fails the third part of the
Williams test, because the probative value of the photo was substantially
outweighed by the danger of unfair prejudice. The photo was probative because it
showed handguns that might have been used in the crimes. On the other hand, the
photo, which shows a smiling Graham pointing a handgun at the camera, was highly
prejudicial. The trial court also provided no limiting instructions that this evidence
was not being offered to prove Graham’s character. Compare Williams, 134 Ohio
St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 24 (limiting instructions
lessened the prejudicial effect of other-acts testimony). Thus, we conclude that the
photo fails to satisfy the third part of the Williams test.
{¶ 92} Therefore, we hold that the photo was improperly admitted.

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 January Term, 2020

3. No plain error
{¶ 93} As discussed earlier, to establish plain error, Graham must show that
an error occurred, that the error was plain, and that the error affected the outcome
of the trial. Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. Graham cannot meet
his burden to prove that the prosecutor’s statement, Kremling’s testimony, or the
introduction of the photo prejudiced him by affecting the outcome of the trial, in
light of the remaining evidence of Graham’s guilt. Such evidence included
Lewandowski’s eyewitness testimony describing the shooter, a description that
matched Graham, and Grier’s and Kremling’s testimony that Graham admitted that
he had shot Massa during the robbery. Thus, no plain error occurred.
{¶ 94} Based on the foregoing, we reject proposition of law No. IV.
E. Prosecutor bolstered witness credibility
{¶ 95} In proposition of law No. III, Graham argues that the prosecutor
improperly bolstered the credibility of two of his codefendants, Kremling and Grier.
However, defense counsel failed to object at trial and therefore Graham has
forfeited all but plain error. See Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873
N.E.2d 306, at ¶ 23. Graham also argues that defense counsel were ineffective by
failing to object to the prosecutor’s bolstering during his opening statement, his
closing rebuttal argument, and his questioning of the codefendants.
{¶ 96} First, Graham argues that the prosecutor improperly vouched for the
testimonies of Kremling and Grier during his opening statement. It is improper for
a prosecutor to vouch for the credibility of a witness at trial. Vouching occurs when
the prosecutor implies knowledge of facts outside the record or places his or her
personal credibility in issue. See, e.g., State v. Myers, 154 Ohio St.3d 405, 2018-
Ohio-1903, 114 N.E.3d 1138, ¶ 145; Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880
N.E.2d 31, at ¶ 232. A prosecutor also may not express his or her personal belief
or opinion as to the credibility of a witness. State v. Williams, 79 Ohio St.3d 1, 12,
679 N.E.2d 646 (1997).

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{¶ 97} During his opening statement, the prosecutor stated that Kremling
and Grier lied to the police about the robbery and murder after they were first
arrested. The prosecutor added that they were “eventually prevailed upon by their
parents, their girlfriends and, eventually, their attorneys to tell the truth, come clean.
And they agree[d] to cooperate and give truthful statements.” No vouching
occurred. The prosecutor neither implied knowledge of out-of-court information
nor placed the prosecutor’s own credibility in issue. The prosecutor merely
discussed the circumstances leading to Kremling’s and Grier’s eventual decision to
cooperate with police, and the testimony at trial supported his statements. See State
v. Cody, 8th Dist. Cuyahoga No. 77427, 2002-Ohio-7055, ¶ 35. No error occurred.
{¶ 98} Second, Graham argues that the prosecutor improperly vouched for
Kremling and Grier during his closing rebuttal argument. During rebuttal, the
prosecutor addressed defense counsel’s closing-statement attack on Kremling’s and
Grier’s credibility. The prosecutor stated:

Three young men took that stand and implicated themselves in
aggravated murder; testified under oath that they committed
aggravated murder. The testimony they gave on that witness stand
is admissible against them at their own trials. * * *
***
What does matter here though is that they tell the truth
because nobody is gonna talk to them or their attorneys if they’re
lying or not being truthful and they know that.
* * * Every action that Marquis [Grier] and Ty [Kremling]
and Graham took inside that apartment was corroborated by the two
occupants of the apartment. Every one consistent down to the last
detail. * * *

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 January Term, 2020

And you heard them testify the co-defendants themselves
have been separated for the past eight months. They’ve been
isolated from each other for the last eight months for that very
reason.
The version is the same, identical because it’s the truth. You
all know that when you make up a story and you lie it’s different
every time you tell it. You can’t keep it straight. That’s how you
catch people in lies. * * * If they’re lying something is gonna
change. But the truth is the truth is the truth. It always stays the
same. And that’s what you heard from the witness stand.

{¶ 99} None of these comments were improper. They neither implied
knowledge of out-of-court information nor placed the prosecutor’s own credibility
in issue. Each comment dealt with matters that the jury could properly consider in
evaluating Kremling’s and Grier’s credibility: Kremling and Grier each admitted
unfavorable facts about their participation in the crimes, they had been separated
from each other for the past eight months and yet their testimonies were consistent,
the details given in their testimonies were corroborated by the victims’ testimonies,
and they were motivated to tell the truth. See Myers, 154 Ohio St.3d 405, 2018-
Ohio-1903, 114 N.E.3d 1138, at ¶ 147. “This type of argument is not improper
vouching when, as here, the prosecutor is responding to defense counsel’s attacks
on a witness’s credibility and refers to facts in evidence that tend to make the
witness more credible.” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836
N.E.2d 1173, ¶ 120. No error occurred.
{¶ 100} Finally, Graham argues that the prosecutor improperly bolstered
the credibility of Kremling and Grier by asking them about the truthfulness of their
testimony. Kremling testified that he initially lied to the police about the crimes.
He explained that he later told the truth: “[W]e all got caught, um, and I came to

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talk to you [the prosecutor]. That’s when I first told the truth.” The prosecutor then
asked, “Are you telling the truth today?” Kremling responded, “Yes, I am.”
Similarly, Grier testified that he initially lied to the police but that he decided to tell
the truth after talking to his father, his girlfriend, and his lawyer. The prosecutor
then asked, “Are you telling the truth today?” Grier answered, “Yes.”
{¶ 101} “Both at common law and under the Federal Rules, the general
norm is that the witness’s proponent may not bolster the witness’s credibility before
any attempted impeachment.” 1 McCormick, Evidence, Section 33, at 250 (8th
Ed.2020). Similarly to Fed.R.Evid. 608(a), Ohio Evid.R. 608(A) provides that
“evidence of truthful character is admissible only after the character of the witness
for truthfulness has been attacked by opinion or reputation or otherwise.” Here, the
prosecutor asked the witnesses, “Are you telling the truth today?” before their
credibility had been attacked on cross-examination. Although that question should
not have been asked, we conclude that the prosecutor did not give either Kremling
or Grier more credibility in asking it, because both witnesses swore to tell the truth
before they testified. See State v. Howard, 2d Dist. Montgomery No. 20575, 2005-
Ohio-3702, ¶ 46. Thus, no plain error occurred.
{¶ 102} As for his ineffective-assistance-of-counsel claims, Graham fails to
show that he was prejudiced by any of the alleged failures by defense counsel,
particularly given the overwhelming evidence of his guilt.
{¶ 103} Based on the foregoing, we reject proposition of law No. III.
F. Improper admission of victim-impact evidence
{¶ 104} In proposition of law No. VI, Graham argues that the trial court
erred by admitting victim-impact testimony during the guilt phase of the trial. We
agree, but we conclude that Graham was not prejudiced by the admission of this
victim-impact evidence.

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 January Term, 2020

1. Joe Massa’s testimony
{¶ 105} During the guilt-phase proceedings, over the defense’s objection,
Joe Massa (“Mr. Massa”), the victim’s father, testified about his son’s life,
expressing great pride in his son’s achievements, acknowledging the future plans
and dreams that his son had and that he had for his son, conveying to the jury the
immense amount of love and admiration he had for his son, and identifying some
of the ways in which his life has changed as a result of his son’s death and some of
the difficulties that a life without him will bring. The testimony spanned 10 pages
of the guilt-phase transcript, with the state asking Mr. Massa approximately 20
questions regarding his son.
{¶ 106} Mr. Massa testified that Nick was the third oldest of his four
children. He stated, “Nick was the ideal son; fun, very curious, so I had the full-
time job teaching Nick ‘cause he was constantly full of questions, constantly
wanting to learn, um, kept me very busy, very busy.” Mr. Massa said, “[Nick]
really got into woodworking at an early age with my—my father-in-law. Nick was
definitely a mama’s boy ‘til he got older and then he started to become a daddy’s
boy.” Mr. Massa expressed that Nick loved building things, and he reminisced
about how he and Nick had built a bench in the garage, and said that Nick had
gotten “some new tools because he had some things that he wanted to build this
summer.”
{¶ 107} When asked about Nick’s education, Mr. Massa stated that his son
had gone to Westlake High School and that he had been interested in science and
then had become more interested in business. Mr. Massa said that he had been
surprised at Nick’s interest in business and then stated, “I think he started to grasp
a little bit more of what I was doing * * * ‘cause I’m in business. * * * [And] he
became more and more of wanting to be successful and making us proud to the
point where * * * he pretty much vowed that he would have a great job and buy us
a home in Florida.” When asked whether his son had had any jobs, Mr. Massa said,

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“Nick delivered papers at a very early age,” and Mr. Massa listed several other jobs
Nick had held over the years, noting that one reason Nick worked was to help him
pay for the family’s fish tank.
{¶ 108} The prosecutor inquired about the fish tank. Mr. Massa then
described his son’s passion for caring for the fish in the fish tank in the family living
room and his influence in replacing the family’s small fish tank with a 55-gallon
salt-water fish tank. Mr. Massa began by explaining that Nick “kept bugging” him
and eventually convinced him to get a larger fish tank. Mr. Massa informed the
jury that Nick took care of that tank and then “started pushing” him to get a salt-
water tank. Mr. Massa testified that he had owned a salt-water fish tank as a child,
so he knew that “there was a lot to it” and he was really “not up to doing it,” but
Nick had talked him into it. Then Mr. Massa explained the complex salt-water-
tank system that Nick had installed and described it as “unbelievable.” While
explaining the complexities of the system, Mr. Massa said, “I can’t even—I’m
learning,” and he stated, “Nick has left me with a lot with this fish tank. I’m having
to learn on my own, but I’m getting there.”
{¶ 109} The prosecutor then asked Mr. Massa why Nick had decided to
attend Kent State University and what he had been studying there. Mr. Massa
informed the jury that his son had been studying business at the university. Mr.
Massa said, “I attended Kent in 1979. I didn’t make it through graduation. I think
Nick wanted to do what I couldn’t. In fact, we know he did.” Mr. Massa added,
“And we were both getting * * * set for him to be able to help me with my business
* * *. * * * I was really looking forward to Nick being able to give me some advice
on what he’s learning in today’s business, possibly working with me a little bit this
year so he can learn my side, helping each other out there.”
{¶ 110} According to Mr. Massa, on the day before his son’s death, his wife
told him that their son had sent her a text indicating that he was having a “miserable
day.” Mr. Massa explained to the jury, “Nick had just gotten his first real girlfriend

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and I think I said something like he’s probably having some love problems, which
I was having a hard time with knowing that I was having to share Nick with
somebody else.” Not long after his wife told him that information, Mr. Massa saw
a car pull up and his son came “running up the drive all happy.” Mr. Massa testified
that his son had brought Haithcock and Lewandowski to the house, introduced
them, and showed them around. Mr. Massa commented, “And I remember standing
at the door looking—so proud of him that he picked up new friends so quickly.
Because his roommate, who was one of his best friends, had left after the first
quarter, so Nick was very alone and he already picked up what he thought were
new friends. And just watching Nick be the leader that I knew he was and was
gonna be.”
{¶ 111} Mr. Massa stated that when Nick was preparing to leave with his
friends, Nick indicated that he would come home the following weekend. Mr.
Massa told Nick before he left, “Nick, you have no idea how proud I am of you and
how much I love you.” Mr. Massa continued, “And he hugged me and said I love
you, too, dad. And that’s the last time I got to talk to him. He—he was my best
friend.”
{¶ 112} The state then had Mr. Massa identify Nick’s photograph. Mr.
Massa stated, “This is my son Nick and I know he’s with me right now.” Following
Mr. Massa’s testimony, the state introduced Nick’s photograph into evidence.
2. Analysis
{¶ 113} Victim-impact evidence includes evidence relating to the victim’s
personal characteristics and the impact that the crimes had on the victim’s family.
State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 259;
Payne v. Tennessee, 501 U.S. 808, 817, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
The admission of such evidence is limited to the sentencing phase of the death-
penalty proceedings. See R.C. 2930.13, 2930.14(A), and 2947.051; Article I,
Section 10(a)(A)(3), Ohio Constitution. We have “permitted victim-impact

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testimony in limited situations in capital cases when the testimony is not overly
emotional or directed to the penalty to be imposed.” (Emphasis added.) State v.
Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 79. And we have
upheld the admission of this testimony at the guilt phase of the trial only when the
evidence was relevant to the facts attendant to the offense. State v. Fautenberry,
72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995); see McKelton at ¶ 259; Evid.R.
402 (evidence that is not relevant is not admissible).
a. Mr. Massa’s testimony was irrelevant
{¶ 114} Graham argues that Mr. Massa’s testimony had nothing to do with
the facts of the case and was presented solely to prejudice the jury. The state argues
that Mr. Massa’s testimony was used to prove that Nick was a living person and
was permissible because the testimony was not overly emotional and did not
address the penalty.
{¶ 115} To be admissible at trial, evidence must be relevant. Evid.R. 402.
The state cites State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88,
¶ 56, in arguing that Mr. Massa’s testimony was admissible to prove that Nick had
been a living person, which is an element of an aggravated-murder charge. The
state further argues that Nick’s pre-death photograph was admissible for purposes
of identifying the victim, see State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,
767 N.E.2d 166, ¶ 57, and that Mr. Massa identified the photograph of his son
during his testimony.
{¶ 116} In Noling, we upheld the admission of a neighbor’s testimony that
the victims had been gregarious and meticulous, but we noted that the neighbor’s
testimony helped explain why the neighbor had gone to check on the victims and
also helped to establish a time of death. Noling at ¶ 56. And we upheld the
admission of a relative’s testimony that had “simply established that the [victims]
had been living persons.” Id. at ¶ 55-56. The limited testimony presented in Noling
is in sharp contrast to Mr. Massa’s detailed testimony about his son. While Mr.

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Massa identified his son’s photograph, the remainder of his testimony went beyond
what was necessary to prove that his son had been a living person. Thus, we reject
this rationale for permitting significant portions of Mr. Massa’s testimony.
{¶ 117} At a sidebar discussion during the trial, the prosecutor also argued
that Mr. Massa’s testimony was admissible as long as it did not “touch on
recommendations to the Court as to penalty or sentencing.” It is true that Mr. Massa
did not mention penalties during his testimony. However, the fact that Mr. Massa’s
testimony was not directed to the penalty to be imposed does not mean that the
prosecutor could elicit testimony about Nick’s life and the impact his death has had
upon his father, especially when that testimony provided the jury with no relevant
facts attendant to the offense and the jury had already received evidence that Nick
had been a living person from Haithcock’s and Lewandowski’s testimony.
{¶ 118} The state also relies on State v. Maxwell, 139 Ohio St.3d 12, 2014-
Ohio-1019, 9 N.E.3d 930, in arguing that Mr. Massa’s testimony was admissible.
In Maxwell, we upheld the admission of testimony about the victim’s family and
her divorce during the guilt phase of trial, because such testimony provided
background information about the victim’s relationship with the defendant and the
witnesses who testified. Id. at ¶ 134-137. Maxwell is not instructive here, because
Mr. Massa’s testimony did not provide relevant background regarding the
circumstances of Nick’s death.
{¶ 119} The state elicited victim-impact testimony from a justifiably
grieving father during the guilt phase of the trial, and much of that testimony had
nothing to do with the crime. See State v. McKnight, 107 Ohio St.3d 101, 2005-
Ohio-6046, 837 N.E.2d 315, ¶ 99 (father’s statement that “his daughter’s
disappearance was ‘like somebody hit [him] in the stomach with a sledgehammer’
was of questionable relevance”). This testimony was irrelevant and should not have
been admitted at trial.

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b. Mr. Massa’s testimony did not prejudice Graham
{¶ 120} Having concluded that the trial court erred in admitting Mr.
Massa’s testimony, we must determine whether the testimony resulted in reversible
error. To determine whether an error affected the substantial rights of the defendant
and requires a new trial, we must ascertain “(1) whether the defendant was
prejudiced by the error, i.e., whether the error had an impact on the verdict, (2)
whether the error was not harmless beyond a reasonable doubt, and (3) whether,
after the prejudicial evidence is excised, the remaining evidence establishes the
defendant’s guilt beyond a reasonable doubt.” State v. Arnold, 147 Ohio St.3d 138,
2016-Ohio-1595, 62 N.E.3d 153, ¶ 50 (lead opinion), citing State v. Harris, 142
Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37 (setting forth the three-part
analysis for determining whether the error affected the substantial rights of the
defendant and thus requires a new trial).
i. The standard for determining whether testimony is overly emotional
{¶ 121} For purposes of analyzing whether the admission of Mr. Massa’s
testimony constituted reversible error in this case, we focus on whether the
testimony was overly emotional.
{¶ 122} The victim-impact testimony that we have upheld as admissible or
deemed not prejudicial in other cases was not overly emotional. See State v.
Reynolds, 80 Ohio St.3d 670, 679, 687 N.E.2d 1358 (1998); State v. Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 237. The “overly emotional”
standard is derived from this court’s decision in Reynolds. See Reynolds at 679.
{¶ 123} Testimony is overly emotional when it is likely to inflame the
passions of the jurors and elicit a purely emotional response that would inhibit the
jurors from making an objective and rational determination regarding the
defendant’s guilt and/or the appropriate punishment. See People v. Simon, 1
Cal.5th 98, 138, 375 P.3d 1, 204 Cal.Rptr.3d 380 (2016) (emotional testimony is
permissible if it is relevant and is not inflammatory rhetoric that elicits purely

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emotional or irrational responses from the jurors); see also People v. Weaver, 53
Cal.4th 1056, 1082, 273 P.3d 546, 139 Cal.Rptr.3d 355 (2012) (“testimony was
emotionally wrenching, [but] it was not so extreme as to divert the experienced trial
judge’s attention from his proper role,” and the judge stated that it did not cause
him to “ ‘react with a rash or purely subjective response’ ”); State v. Bernard, 608
So.2d 966, 970-972 (La.1992) (when determining whether testimony was overly
emotional, a court analyzes whether the testimony inserted arbitrary factors that
likely influenced the jurors’ decisions).
{¶ 124} This court has yet to adopt or set a standard in determining whether
the admission of victim-impact testimony resulted in error. In making this
determination in the past, we have generally simply described the testimony and
then stated whether or not the testimony was overly emotional and/or resulted in
error. See, e.g., Reynolds at 678-679; State v. McNeill, 83 Ohio St.3d 438, 446-
447, 700 N.E.2d 596 (1998); State v. Hartman, 93 Ohio St.3d 274, 292, 754 N.E.2d
1150 (2001); State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d
315, ¶ 91-99; Lang at ¶ 235-238; State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-
1019, 9 N.E.3d 930, ¶ 136-137; State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-
4347, 54 N.E.3d 80, ¶ 239-241; State v. Obermiller, 147 Ohio St.3d 175, 2016-
Ohio-1594, 63 N.E.3d 93, ¶ 103-104.
{¶ 125} In fact, it would not be prudent for us to establish a rigid set of
factors to employ in evaluating this testimony, given the variables present in each
case. This is apparent from our review of our precedent and that of our sister courts
across the country. See, e.g., Malone v. State, 2007 OK CR 34, 168 P.3d 185, ¶ 62
(whether testimony is too emotional is a subjective determination); Salazar v. State,
90 S.W.3d 330, 336 (Tex.Crim.App.2002), quoting Mosley v. State, 983 S.W.2d
249, 262 (Tex.Crim.App.1998) (“there is no ‘bright and easy line’ for deciding
precisely what evidence is and is not admissible as either victim character or victim
impact evidence”). Nevertheless, we believe it may be helpful to trial courts and

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parties if we set forth a nonexhaustive list of factors that may be used in making
this determination, with the understanding that these factors may not be applicable
in every case and that in other cases, other relevant factors may be identified and
applied.
{¶ 126} We find the following factors relevant to making the determination
in this case: (1) the length of the victim-impact testimony, see Lang, 129 Ohio St.3d
512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 238 (witnesses briefly summarized the
victims’ lives); Lambert v. State, 675 N.E.2d 1060, 1065 (Ind.1996) (victim-impact
testimony that spanned 29 transcript pages was not brief and the error in admitting
it was not harmless); State v. Taylor, 669 So.2d 364, 371 (La.1996) (victim-impact
testimony took up only 10 pages of a 793-page penalty-phase transcript, and any
possible prejudicial effect was diluted by the defendant’s presentation of a lengthy
and detailed mitigation case); Malone at ¶ 60-61 (victim-impact testimony that took
up 36 pages of the transcript, 28 pages of which was uninterrupted, detailed
narrative, went well beyond the limitations for appropriate victim-impact
evidence); (2) whether witnesses, jurors, and audience members showed physical
signs of emotion during the testimony, see Reynolds, 80 Ohio St.3d at 678-679, 687
N.E.2d 1358 (court noted that witness became distraught when asked about the
effect his mother’s death had on him, but it found that the victim-impact statement
was not overly emotional); State v. Glassel, 211 Ariz. 33, 54, 116 P.3d 1193 (2005)
(although victim-impact testimony was emotional and caused the witnesses and
jurors to cry, it was not unduly prejudicial, because senseless murders create strong
emotional responses); Lawler v. State, 276 Ga. 229, 232, 576 S.E.2d 841 (2003)
(record showed that witnesses and jurors became emotional during victim-impact
evidence but there were no outbursts or displays of emotion that would have unduly
prejudiced the defendant); (3) the detail and depth of the victim-impact testimony
with regard to the murder victim, see Salazar at 336 (the case law allowing states
to put on evidence providing a glimpse into the victim’s life and background is not

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an invitation to give a replay of the victim’s life); Malone at ¶ 60 (victim-impact
statements were never meant to be eulogies); (4) whether the victim-impact witness
used emotionally charged language, State v. Rose, 231 Ariz. 500, 513, 297 P.3d 906
(2013) (court noted that it did not condone the vengeful language used by the
victim-impact witness or her reference to the defendant as a “cop killer”); Conover
v. State, 1997 OK CR 6, 933 P.2d 904, 920 (statements that the victim was
“butchered like an animal” and that the defendant “butchered him” have no place
in a victim-impact statement), abrogated on other grounds, Bosse v. Oklahama, __
U.S. __, 137 S.Ct. 1, 196 L.Ed.2d 1 (2016); (5) the number of victim-impact
witnesses, see Lawler at 232 (five victim-impact witnesses testified, but because
each witness’s testimony was brief, the trial court did not abuse its discretion in
allowing the testimony); and (6) our precedent in similar cases involving allegedly
overly emotional victim-impact testimony, see Wilks at ¶ 79; see also People v.
Verdugo, 50 Cal.4th 263, 298, 236 P.3d 1035, 113 Cal.Rptr.3d 803 (2010) (in
determining whether victim-impact testimony was admissible, the California
Supreme Court compared the testimony to victim-impact testimony that it had
found admissible in the past). Clearly, this list is not exhaustive, and it also should
not be treated as a checklist. We list these factors merely as matters to be
considered.
ii. Mr. Massa’s testimony was not overly emotional
{¶ 127} Applying the analysis articulated above to the facts of this case, we
conclude that Mr. Massa’s testimony was not overly emotional; however, we
acknowledge that this is a close call.
{¶ 128} In this case, Mr. Massa’s testimony takes up 10 pages of the guilt-
phase transcript (which, excluding voir dire, covers 562 pages), and those 10 pages
include 20 or so questions asked by the prosecutor and three instances of
uninterrupted narrative by Mr. Massa. The length of this testimony is not
overwhelming in comparison to the length of testimony permitted by our sister

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courts. See, e.g., People v. Dykes, 46 Cal.4th 731, 782, 209 P.3d 1, 95 Cal.Rptr.3d
78 (2009) (victim-impact testimony was not too lengthy when one witness’s
testimony covered 5 pages of transcript, a second covered 9 pages of transcript, and
the third covered 18 pages of transcript); Taylor, 669 So.2d at 371 (victim-impact
testimony took up only 10 pages of a 793-page penalty-phase transcript, and any
possible prejudicial effect was diluted by the defendant’s presentation of a lengthy
and detailed mitigation case); State v. Washington, 355 Or. 612, 658, 330 P.3d 596
(2014) (witness testimony that covered 23 pages of a 2,000-page guilt-phase
transcript and that contained minimal victim-impact evidence was harmless).
However, the length of Mr. Massa’s victim-impact testimony is not insignificant,
given that the testimony was irrelevant and therefore inadmissible during the guilt
phase of the proceedings.
{¶ 129} The record does not indicate that there were any physical
manifestations of emotion by Mr. Massa, the jury, or members of the audience. But
the testimony presented a detailed description of Nick, which was elicited by the
state from his grieving father. Mr. Massa discussed his son’s life at length—his
accomplishments and future aspirations—and not only conveyed to the jury his
sincere love for and admiration of his son, whom he called his “best friend,” but
also identified the effect that his son’s death had on some of his own home
responsibilities. Mr. Massa recounted for the jury the last words that he spoke to
his son and the last words his son spoke to him. And he further informed the jury,
when identifying Nick’s photograph, “This is my son Nick and I know he’s with
me right now.” While Mr. Massa was the only victim-impact witness to testify
during the trial, it is hard to imagine that it was not impactful—the jury was left
with a loving father’s last memory of his only son prior to the state’s resting its
case.
{¶ 130} Mr. Massa’s impactful testimony is not unlike some of the other
victim-impact testimony that we have permitted in previous cases. In Reynolds, 80

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Ohio St.3d 670, 687 N.E.2d 1358, the victim’s son testified that his mother was
from a large family, that her house had been the gathering place for the family, and
that she was a special part of their lives. Id. at 678. The son also became distraught
when trying to speak about the impact that his mother’s death had upon him,
eventually stating that his mother had been looking forward to his daughter’s
wedding and that his other daughter had lived with her for a brief period of time
and noting that his daughters missed their grandmother very much. Id. Reviewing
for plain error, this court determined that the victim-impact testimony was not
overly emotional or directed to the penalty to be imposed, and this court stated that
it could not say that the sentence would have been otherwise but for the victim-
impact evidence. Id. at 679.
{¶ 131} And in Hartman, 93 Ohio St.3d 274, 754 N.E.2d 1150, the victim’s
mother had briefly discussed the victim’s early life, her schooling, and her close-
knit family, and she had summed up the impact of her daughter’s death on the
family by stating, “[I]t’s been around nine months now since our daughter Winda
was brutally murdered. It has been an extremely bad time for us and will be from
now on. She’ll never leave our heart.” Id. at 292. This court determined that the
victim-impact testimony in Hartman was not “overly emotional.” Id.
{¶ 132} The most recent death-penalty case in which we discussed victim-
impact testimony is Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092.
In that case, the victim’s older sister presented victim-impact evidence during her
direct examination. Id. at ¶ 78. She testified that the victim loved her nieces and
nephews and she had a close relationship with her siblings. Id. She said: “[The
victim] had a beautiful heart, and she was smart, caring, funny. She loved to make
people laugh. And whenever she was anywhere, like she commanded attention.
When she was present, you knew she was in the room. It’s just like she had this
personality where like people just gravitated to her * * *.” (Ellipsis sic.) Id. We

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determined that the brief testimony was not overly emotional and that no plain error
occurred in admitting the testimony. Id. at ¶ 80.
{¶ 133} Here, the state elicited from Mr. Massa a detailed description of
Nick’s life, how much Nick was loved and admired by his father, and the additional
responsibilities placed on Mr. Massa as a result of Nick’s death. This testimony is
impactful and leaves a lasting memory of the uniqueness of Nick Massa, but we
cannot say that it inflamed the passions of the jurors, eliciting a purely emotional
response that inhibited the jurors from making objective and rational decisions
regarding Graham’s guilt or the appropriate punishment. Therefore, we conclude
that it was not overly emotional.
iii. Graham was not prejudiced by the erroneous admission of Mr. Massa’s
victim-impact testimony
{¶ 134} As noted above, Mr. Massa’s testimony was irrelevant but not
overly emotional. We conclude that Graham was not prejudiced in the guilt phase
of the trial by the trial court’s error in admitting this testimony, because, even
assuming that the error was not harmless, when that improper testimony is excised,
the remaining evidence properly admitted at trial established Graham’s guilt
beyond a reasonable doubt. See Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62
N.E. 3d 153, at ¶ 51. Most important, Lewandowski observed the shooter and
provided a description that matched Graham, as compared to his codefendants, and
Grier and Kremling testified that Graham had admitted that he shot Nick.
{¶ 135} We also hold that this guilt-phase testimony did not prejudice
Graham in the mitigation phase, because although Mr. Massa’s testimony was
impactful, it was not overly emotional. Moreover, the trial court instructed the jury
not to be influenced “by any consideration of sympathy or prejudice” and to make
its findings “without bias, sympathy or prejudice.” We presume the jury followed
the trial court’s instructions. See State v. Treesh, 90 Ohio St.3d 460, 480, 739
N.E.2d 749 (2001).

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{¶ 136} But it is essential that we emphasize that the proper time for victim-
impact evidence is at sentencing. See R.C. 2930.13, 2930.14(A), and 2947.051;
Ohio Constitution, Article I, Section 10a(A)(3); State v. White, 85 Ohio St.3d 433,
445, 709 N.E.2d 140 (1999) (the “statutory scheme is silent as to how victim-impact
evidence may be presented to juries in capital cases,” and thus, the General
Assembly has yet to expand victim-impact evidence in capital cases to the extent
allowed in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720
[emphasis sic]). Victim-impact testimony is admissible during the guilt phase of
the proceedings only when it is relevant to the commission of the offense and it is
not overly emotional. When such evidence is improperly admitted in the guilt
phase of the proceedings, it increases the likelihood that arbitrary factors will
influence the jury’s decisions, which increases the possibility that a reversal will be
required. See Bernard, 608 So.2d at 972; Lang, 129 Ohio St.3d 512, 2011-Ohio-
4215, 954 N.E.2d 596, at ¶ 237 (“This court has permitted victim-impact testimony
in limited situations in capital cases when the testimony is not overly emotional or
directed to the penalty to be imposed”). Although it is clear that the trial court erred
in admitting Mr. Massa’s testimony in this case, we conclude that the admission of
the testimony did not constitute reversible error.
{¶ 137} Based on the foregoing, we reject proposition of law No. VI.
G. Failure to present mitigating evidence
{¶ 138} In proposition of law No. VII, Graham asserts that defense counsel
were ineffective by failing to adequately prepare and present mitigating evidence.
He specifies three alleged inadequacies: counsel (1) presented only one expert
witness, (2) failed to call any family members during mitigation, and (3) failed to
properly assist him in preparing for his unsworn statement.
{¶ 139} “The defense decision to call or not call a mitigation witness is a
matter of trial strategy. * * * Debatable trial tactics generally do not constitute
ineffective assistance of counsel.” State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-

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6207, 857 N.E.2d 547, ¶ 116. Counsel in a capital case have an “obligation to
conduct a thorough investigation of the defendant’s background” to determine the
availability of mitigating evidence. Williams v. Taylor, 529 U.S. 362, 396, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000). But “ ‘strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.’ ” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156
L.Ed.2d 471 (2003), quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80
L.Ed.2d 674.
{¶ 140} As an initial matter, nothing in the record shows that defense
counsel did not conduct an adequate investigation. Counsel hired a psychologist
and a mitigation specialist. Billing records show that James Crates, the mitigation
specialist, spent numerous hours conducting his investigation between May 6 and
November 8, 2016. Billing records also show that Dr. Thomas Swales, the
psychologist hired by the defense, spent several hours testing and evaluating
Graham between May 11 and November 9, 2016. Although the record does not
show the full extent of defense counsel’s investigation into mitigation, “we cannot
infer a defense failure to investigate from a silent record,” State v. Were, 118 Ohio
St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 244.
{¶ 141} First, Graham argues that counsel should have called more than one
expert witness. During mitigation, Dr. Swales testified about Graham’s difficult
childhood, his family’s history of mental illness and domestic violence, his
marijuana dependence and Xanax addiction, and his ability to adjust to prison life.
Dr. Swales also conducted testing of Graham, which showed that he has an IQ of
99. He testified that Graham’s youthfulness, his association with the “wrong
crowd,” and his lack of maturity were mitigating factors the jury should consider.
{¶ 142} “The decision to forgo the presentation of additional mitigating
evidence does not itself constitute proof of ineffective assistance of counsel.” State
v. Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47 (1997). “ ‘Attorneys need not

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pursue every conceivable avenue; they are entitled to be selective.’ ” State v.
Murphy, 91 Ohio St.3d 516, 542, 747 N.E.2d 765 (2001), quoting United States v.
Davenport, 986 F.2d 1047, 1049 (7th Cir.1993). Dr. Swales provided
comprehensive testimony about mitigating factors the jury should consider.
Moreover, Graham fails to identify other experts that defense counsel should have
called. This claim rests on mere speculation and is insufficient to establish
ineffective assistance. See State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641,
952 N.E.2d 1121, ¶ 119.
{¶ 143} Second, Graham argues that defense counsel were ineffective by
failing to call any of Graham’s family members during mitigation. Graham asserts
that his grandmother, mother, and/or sister should have been called as mitigation
witnesses.
{¶ 144} Dr. Swales testified that he had talked with Graham’s grandmother,
mother, and sister and learned “what his life was like.” He described Graham’s
chaotic childhood, his mother’s use of a belt to discipline Graham, and the family’s
history of mental illness, domestic violence, and drug abuse. Dr. Swales noted that
in the year before the murder, Graham’s grandmother was convicted of domestic
violence, following a confrontation with Graham’s mother and sister. Dr. Swales
added, “[E]ven though Damantae wasn’t there, wasn’t the victim of domestic
violence, it just shows you the adverse childhood experiences that this kid was
experiencing during his childhood, which may be different from yours or different
from mine or other people.”
{¶ 145} Dr. Swales relayed to the jury what Graham’s family members told
him about Graham’s dysfunctional family life. We decline to speculate whether
Graham’s family could have provided other favorable mitigating testimony or
would have been effective witnesses themselves. We conclude that counsel’s
decision not to call any family member as a mitigation witness was a “tactical

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choice” that cannot rightly be viewed as ineffective assistance of counsel. See
Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, at ¶ 121.
{¶ 146} Finally, Graham complains that defense counsel were ineffective
in preparing him to give an unsworn statement. Graham presents no evidence that
his counsel failed to prepare him for his statement, which was as follows: “I would
like to say my heart goes out to the victim’s family. Um, I know they probably
can’t forgive this, but mistakes do happen and people do learn from mistakes and I
just hope the jury will understand that and give me a chance to learn.” When asked
whether he had anything further to say, Graham replied, “No. That’s all.” Graham,
“not counsel, had the choice whether to testify or give an unsworn statement.”
(Emphasis added.) State v. Brooks, 75 Ohio St.3d 148, 157, 661 N.E.2d 1030
(1996). And it was Graham, not his counsel, who testified. There is simply no
evidence that counsel did not prepare Graham for his statement. Furthermore, “the
decision to give an unsworn statement is a tactical one, a call best made by those at
the trial who can judge the tenor of the trial and the mood of the jury.” Id. Thus,
Graham cannot demonstrate that counsel were ineffective for allowing him to make
this brief statement.
{¶ 147} Based on the foregoing, we reject proposition of law No. VII.
H. Defense counsel failed to utilize an investigator
{¶ 148} In proposition of law No. X, Graham argues that defense counsel
were ineffective by failing to use a defense investigator.
{¶ 149} Again, to prove ineffective assistance of counsel, Graham must
demonstrate that counsel’s performance fell below an objective standard of
reasonable representation and that there exists a reasonable probability that but for
counsel’s deficient performance, the result of the trial would have been different.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraphs two and three of the
syllabus; Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674.

46
 January Term, 2020

{¶ 150} Graham contends that defense counsel were ineffective by failing
to accept the trial court’s offer to appoint an investigator. During pretrial
proceedings, the prosecutor mentioned that the state would not object to the
appointment of an investigator to assist the defense in gathering mitigating
evidence. The trial court informed defense counsel, “[I]f you determine that you
need an investigator, the Court is willing to appoint an investigator.” (Emphasis
added.) Defense counsel never requested an investigator.
{¶ 151} Counsel has a duty “to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.” Strickland
at 691; see State v. Decker, 28 Ohio St.3d 137, 140, 502 N.E.2d 647 (1986).
Graham argues that the failure to hire an investigator hindered the defense’s ability
to show that another person may have shot Massa. But Lewandowski and
Haithcock and Graham’s codefendants established that Graham was the killer.
Lewandowski described seeing a man matching Graham’s description shoot Massa.
And Haithcock was in the bedroom with Grier and Kremling (whom Haithcock
recognized despite Kremling’s attempt to hide his face) when the shot was fired,
which ruled them out. Moreover, Grier and Kremling testified that Graham had
admitted shooting Massa, and Planicka, who testified that Kremling, Grier, and
Graham arrived at and fled from the scene in his truck, corroborated Grier’s and
Kremling’s testimony. Thus, using an investigator would not have helped the
defense to identify someone else as the killer.
{¶ 152} Further, Graham presents nothing to show that defense counsel
were deficient by not requesting an investigator to help collect mitigating evidence.
As discussed regarding proposition of law No. VII, Crates, the mitigation specialist,
spent numerous hours conducting his investigation. Graham does not identify any
information that an investigator would have uncovered that Crates failed to obtain.
In fact, it would be impossible to make such a showing without relying on evidence

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outside the record, which is not permissible in a direct appeal. See State v.
Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 171.
{¶ 153} Graham also argues that defense counsel should have used an
investigator to locate and bring to court more mitigation witnesses. As discussed
regarding proposition of law No. VII, the mitigation specialist spoke to several of
Graham’s family members before trial. Graham does not identify other witnesses
who should have been located. Moreover, “[t]he defense decision to call or not call
a mitigation witness is a matter of trial strategy.” Elmore, 111 Ohio St.3d 515,
2006-Ohio-6207, 857 N.E.2d 547, at ¶ 116.
{¶ 154} We reject proposition of law No. X.
I. Improper trial-court order permitting consumption of alcohol during
sequestration
{¶ 155} In proposition of law No. II, Graham argues that the trial court erred
by issuing an entry allowing the jurors to consume alcohol during sequestration.
But defense counsel failed to object to the entry at trial and therefore Graham has
forfeited all but plain error. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-
4642, 873 N.E.2d 306, at ¶ 23. Graham also argues that defense counsel were
ineffective by failing to object to the trial court’s order.
{¶ 156} The trial court filed a judgment entry on jury sequestration during
the guilt-phase deliberations, which included the following order:

After all deliberations have been concluded for any
particular day of deliberations, any jurors so desiring may have
alcoholic beverages between the hours of 6:00 p.m. and 10:00 p.m.
each night, provided the total amount of beverages consumed by any
juror each night shall not exceed three cocktails, three glasses of
wine and three bottles or cans of beer. The cost of such beverages
shall be paid for by the individual juror.

48
 January Term, 2020

{¶ 157} Graham argues that the jurors may not have been competent to
serve due to the possibility that they consumed a substantial amount of alcohol
during sequestration. But the record shows that the jurors were never sequestered
overnight. On November 3, 2016, the jurors began guilt-phase deliberations at
11:27 a.m. and concluded them that same day. Thus, the trial court’s order never
took effect.
{¶ 158} Graham also cannot show that defense counsel were ineffective by
failing to object to this order, since the jury was never sequestered in the evening
during deliberations.
{¶ 159} In his reply brief, Graham presents a new argument. He asserts that
the order allowed the jurors to consume up to three alcoholic beverages in their
homes on the night before the mitigation hearing began and thus minimized the
seriousness of their duties. “Appellate courts generally will not consider a new
issue presented for the first time in a reply brief.” State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 18. But regardless, the trial court’s
order did not apply to the jurors’ use of alcohol at home. Thus, no error occurred.
{¶ 160} We reject proposition of law No. II.
J. Defense counsel’s heavy caseload and cumulative error
{¶ 161} In proposition of law No. XI, Graham raises an ineffective-
assistance claim by arguing that defense counsel were unable to adequately defend
him because of his lead counsel’s heavy caseload. Graham also argues that the
cumulation of defense counsel’s errors resulted in his being denied the effective
assistance of counsel. As noted previously in this opinion, both deficient
performance and prejudice are required to justify reversal based on ineffective
assistance of counsel. See Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at
paragraphs two and three of the syllabus; Strickland, 466 U.S. at 687, 104 S.Ct.
2052, 80 L.Ed.2d 674.

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1. Defense counsel’s caseload
{¶ 162} Graham complains that Anthony Koukoutas, his lead defense
counsel, was working on two other death-penalty cases at the same time that he was
defending him. During a hearing in March 2016, Koukoutas informed the court
that he was defending a capital case in Mahoning County starting in June 2016 and
another capital case in Stark County beginning at the end of September 2016.
Graham also mentions that Koukoutas told the court at a July hearing, “I only got
three hours of sleep last night, so I’m a little bit out of it,” and that Koukoutas spent
a day attending a Continuing Legal Education (“CLE”) course during the trial. (We
note that the court was not in session on the day of the CLE course.)
{¶ 163} Graham does not explain in what way he believes Koukoutas failed
to adequately prepare for and investigate his case. Voir dire in his case did not
begin until October 25, 2016, and the record does not show whether Koukoutas
actually went to trial in the other capital cases or indicate how much time
Koukoutas spent preparing for them. Graham was also represented by cocounsel,
Frank Beane, and Graham does not raise issues regarding Beane’s caseload.
{¶ 164} Graham cites State v. Lorraine, 11th Dist. Trumbull No. 2003-T-
0159, 2005-Ohio-2529, and State v. Burke, 10th Dist. Franklin No. 04AP-1234,
2005-Ohio-7020, in arguing that a capital defendant has the right to two capital-
qualified attorneys at all stages of the litigation and that both must be available,
engaged, and prepared to litigate the case. Those cases held that a capital defendant
pursuing an Atkins claim for the first time in a postconviction petition was entitled
to the appointment of two certified attorneys. Lorraine at ¶ 51; Burke at ¶ 46; see
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (Eighth
Amendment to the United States Constitution prohibits the execution of an
intellectually disabled defendant). Neither of those cases addressed a defense
counsel’s caseload when he or she is preparing for trial in a capital case.

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 January Term, 2020

{¶ 165} Indigent capital defendants are generally represented by multiple
attorneys, and the attorneys may be supported by a team of other professionals,
which may include a mitigation specialist and mental-health professionals, as was
the case here. Appt.Coun.R. 5.10(A). Lead counsel “bear[s] overall responsibility
for the performance of the defense team,” but it is expected that he or she will
“allocate, direct, and supervise the work of the defense team.” Appt.Coun.R.
5.10(B). See Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, at
¶ 55 (“The rules do not require both appointed counsel to be present at every pretrial
hearing or every moment of trial”). Moreover, there is no requirement that
appointed counsel represent only one capital defendant at a time.
{¶ 166} Finally, Graham asks that we consider Appt.Coun.R. 5.06,
“Workload of counsel,” when deciding whether his right to effective assistance of
counsel was violated. That rule states:

(A) Consideration by Court. In appointing an attorney as
counsel for an indigent defendant in a capital case * * *, the court
shall consider the nature and volume of the workload of the attorney
to ensure the attorney, if appointed, can direct sufficient attention to
the defense of the case and provide competent representation to the
defendant.

(Boldface sic.)
{¶ 167} The day after appointing defense counsel, the trial court discussed
setting a tentative trial date. Koukoutas informed the court that he had two pending
death-penalty cases set for trial, one in June and one in September. The trial court
said, “[Y]ou’re going to be back to back to back.” Koukoutas expressed concern
that an August trial date would not leave enough time to gather all the material that
he needed. The trial court responded, “You can ask for a continuance.” It does

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appear from the record that the trial court only belatedly considered counsel’s
workload. However, Graham fails to show how he was prejudiced. Moreover,
when defense counsel expressed concern about having time to prepare for trial, the
trial court assured counsel that he could request a continuance if necessary, and the
trial ultimately did not start until October 25.
{¶ 168} In conclusion, Graham fails to demonstrate that Koukoutas
provided ineffective assistance, and this claim is rejected.
2. Cumulative error
{¶ 169} In State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus, we recognized the doctrine of cumulative error.
Under this doctrine, a conviction will be reversed when the cumulative effect of
errors in a trial deprives a defendant of a fair trial even though each of the numerous
errors does not individually constitute cause for reversal. Id.; see also State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223.
{¶ 170} As an initial matter, Graham asks that we overrule State v. Hill, 75
Ohio St.3d 195, 661 N.E.2d 1068 (1996). He asserts that Hill holds that ineffective
assistance of counsel cannot be found based on cumulative error, but this is a
misinterpretation of Hill. Hill rejected a claim of cumulative error, stating, “Hill
received a fair trial, few errors were found, and any error found did not prejudice
his substantial rights. Such errors cannot become prejudicial by sheer weight of
numbers.” Id. at 212. Hill does not hold that cumulative errors can never result in
ineffective assistance of counsel. Each assertion of ineffective assistance of
counsel going to cumulative error depends on the merits of each individual claim;
when none of the individual claims of ineffective assistance of counsel have merit,
cumulative error cannot be established simply by joining those meritless claims
together. See, e.g., State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d
80, ¶ 296; State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d
1051, ¶ 173.

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 January Term, 2020

{¶ 171} Graham argues that Hill must be overruled to comply with Sixth
Circuit precedent. Graham invokes Campbell v. United States, 364 F.3d 727 (6th
Cir.2004), which states that “trial-level errors that would be considered harmless
when viewed in isolation of each other might, when considered cumulatively,
require reversal of a conviction.” Id. at 736, citing United States v. Parker, 997
F.2d 219, 221 (6th Cir.1993). But Graham fails to mention that Campbell further
states that “the accumulation of non-errors cannot collectively amount to a
violation of due process.” (Emphasis added.) Id. In any event, nothing in Hill
conflicts with Campbell.
{¶ 172} There is no merit to Graham’s assertion that the cumulation of
counsel’s alleged errors resulted in ineffective assistance, because with regard to
only one claim did we find that counsel erred—counsel’s failure to object to the
admission of the photo of Graham holding two firearms—and that error did not
result in prejudice that deprived him of a fair trial. As explained in discussing other
propositions of law, Graham failed to establish ineffective assistance of counsel
based on counsel’s (1) failure to be prepared because of lead counsel’s involvement
in two other death-penalty cases, (2) failure to challenge a jury pool tainted by racial
prejudice, (3) failure to object to the trial court’s order permitting the jurors to
consume alcoholic beverages during sequestration, (4) failure to object to a
photograph showing Graham with two firearms, (5) failure to hire an investigator,
and (6) failure to call more witnesses during mitigation. See State v. Clinton, 153
Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 41.
{¶ 173} Based on the foregoing, we reject proposition of law No. XI.
K. Sentencing opinion
{¶ 174} In proposition of law No. XIV, Graham argues that the trial court’s
sentencing opinion should have mentioned that he is an African American male.

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{¶ 175} R.C. 2929.03(F) sets forth the findings a trial court must make
when imposing a death sentence. The statute requires that the court state in a
separate opinion

its specific findings as to the existence of any of the
mitigating factors set forth in division (B) of section 2929.04
of the Revised Code, the existence of any other mitigating
factors, the aggravating circumstances the offender was
found guilty of committing, and the reasons why the
aggravating circumstances the offender was found guilty of
committing were sufficient to outweigh the mitigating
factors.

{¶ 176} The sentencing opinion in this case discusses the mitigating factors
presented at trial. The sentencing opinion does not mention that Graham is African
American.
{¶ 177} Graham argues that the trial court should have mentioned that he is
African American, because of the racial slurs and racist comments that were made
by some members of the jury pool. However, as discussed regarding proposition
of law No. I, the trial court excused the prospective jurors who made racist
comments and racial slurs. The trial court did not need to discuss those incidents
in its sentencing opinion. Accordingly, we hold that the trial court committed no
error by not mentioning that Graham is African American in its sentencing opinion.
{¶ 178} Based on the foregoing, we reject proposition of law No. XIV.
L. Constitutionality of death sentence for a defendant who was under 21 at
time of crime
{¶ 179} In proposition of law No. IX, Graham essentially argues that
imposing a death sentence on a capital defendant who was under 21 years old at the

54
 January Term, 2020

time of the crime violates the Eighth Amendment. Graham does not raise a similar
argument under Article I, Section 9 of the Ohio Constitution. Because Graham
failed to raise this issue at trial, he has forfeited all but plain error. Graham also
argues that defense counsel were ineffective by failing to raise this issue at trial.
{¶ 180} Graham turned 19 years old the month before he committed these
crimes. Graham asserts his belief that all the other inmates currently on Ohio’s
death row were older than 19 years and one month when they committed their
capital crimes. But we have upheld death sentences in cases in which the defendant
committed aggravated murder at the age of 19 or younger. See State v. Pickens,
141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 252 (age 19), overruled
on other grounds, State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d
475; Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 337 (age
19); State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 203
(age 18); Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 149 (age
18); and State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 98
(age 18).
{¶ 181} In Roper v. Simmons, 543 U.S. 551, 568, 575, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005), the United States Supreme Court held that it was unconstitutional
to impose a death sentence on anyone who was under 18 years of age at the time of
the offense. In reaching this conclusion, the court referred to “ ‘the evolving
standards of decency that mark the progress of a maturing society’ to determine
which punishments are so disproportionate as to be cruel and unusual.” Id. at 561,
quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)
(plurality opinion).
{¶ 182} Extrapolating from this decision, Graham argues that “it is
possible” that the United States Supreme Court could extend Roper to find that a
defendant who turned 19 the month before committing the offense is
constitutionally barred from receiving a death sentence. But because the United

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States Supreme Court has drawn the line at 18 for Eighth Amendment purposes,
state courts are not free to invoke the Eighth Amendment as authority for drawing
it at a higher age. See In re Phillips, 6th Cir. No. 17-3729, 2017 WL 4541664, *2-
3 (July 20, 2017) (no authority exists at the present time to support the argument
that a defendant who was 19 years old at the time of the offense is ineligible to
receive a death sentence). “It has long been settled that the Supremacy Clause binds
state courts to decisions of the United States Supreme Court on questions of federal
statutory and constitutional law.” State v. Burnett, 93 Ohio St.3d 419, 422, 755
N.E.2d 857 (2001). And as the United States Supreme Court has cautioned,

[i]f a precedent of [the United States Supreme Court] has
direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, the [lower courts]
should follow the case which directly controls, leaving to
[the United States Supreme Court] the prerogative of
overruling its own decisions.

Rodriquez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct.
1917, 104 L.Ed.2d 526 (1989). Roper is controlling, and we must follow it. We
do not find plain error.
{¶ 183} As for his ineffective-assistance-of-counsel argument, Graham
does not show that counsel were ineffective by failing to challenge the imposition
of a death sentence due to Graham’s age at the time of the crime. Graham has not
shown that there was a reasonable probability that the outcome of the proceeding
would have been different based on this constitutional claim.
{¶ 184} Based on the foregoing, we reject proposition of law No. IX.

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 January Term, 2020

M. Violation of Hurst v. Florida
{¶ 185} In proposition of law No. XII, Graham argues that Ohio’s capital-
sentencing procedures violate the Sixth Amendment right to a jury trial as construed
in Hurst v. Florida, __U.S.__, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). In Hurst,
the United States Supreme Court held that Florida’s capital scheme violated the
Sixth Amendment because it “required the judge alone to find the existence of an
aggravating circumstance,” id. at 624, and the jury was “not require[d] * * * to
make the critical findings necessary to impose the death penalty,” id. at 622. In
State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, we held that
Ohio’s death-penalty scheme is not unconstitutional under Hurst.
{¶ 186} But Graham asks us to overturn Mason, arguing that a trial court’s
fact-finding, even if it mirrors the jury’s fact-finding, violates the Sixth
Amendment. Graham cites no authority for this claim. And his arguments are
similar to those that were raised and rejected in Mason. Id. at ¶ 39-42. Therefore,
we reject proposition of law No. XII.
N. Proportionality review by trial court
{¶ 187} In proposition of law No. XIII, Graham contends that his death
sentence is unconstitutional because the trial court did not “evaluate [it] for
proportionality in relation to other heinous crimes.” This claim fails.
{¶ 188} Contrary to Graham’s claims, R.C. 2929.05(A) does not require a
trial court to engage in proportionality review. Instead, this provision requires an
appellate court to review every death sentence for proportionality. By contrast,
R.C. 2929.03(F) sets forth the requirements for a trial court’s sentencing opinion in
a capital case. This provision says nothing about the trial court’s conducting a
proportionality analysis.
{¶ 189} Therefore, we reject proposition of law No. XIII.

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V. INDEPENDENT SENTENCE EVALUATION
{¶ 190} Having completed our review of Graham’s propositions of law, we
are required by R.C. 2929.05(A) to independently review Graham’s death sentence
for appropriateness. In conducting this review, we must determine whether the
evidence supports the jury’s finding of aggravating circumstances, whether the
aggravating circumstances outweigh the mitigating factors, and whether death is
the appropriate sentence. R.C. 2929.05(A); see State v. Johnson, 144 Ohio St.3d
518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 99.
A. Aggravating circumstances
{¶ 191} Graham was convicted of murdering Massa while committing
aggravated robbery, R.C. 2929.04(A)(7), while committing aggravated burglary,
R.C. 2929.04(A)(7), and while committing kidnapping, R.C. 2929.04(A)(7). The
evidence at trial supports the jury’s findings of guilt as to the three aggravating
circumstances.
B. Mitigating factors
{¶ 192} Against these aggravating circumstances, we must weigh any of the
relevant mitigating factors provided in R.C. 2929.04(B). These factors include
 the nature and circumstances of the offense, R.C. 2929.04(B),
 the history, character, and background of the offender, R.C. 2929.04(B),
 whether the victim of the offense induced or facilitated it, R.C.
2929.04(B)(1),
 whether it is unlikely that the offense would have been committed but for the
fact that the offender was under duress, coercion, or strong provocation, R.C.
2929.04(B)(2),
 whether, at the time of committing the offense, the offender, because of a
mental disease or defect, lacked substantial capacity to appreciate the

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criminality of the offender’s conduct or to conform the offender’s conduct to
the requirements of the law, R.C. 2929.04(B)(3),
 the youth of the offender, R.C. 2929.04(B)(4),
 the offender’s lack of a significant history of prior criminal convictions and
delinquency adjudications, R.C. 2929.04(B)(5),
 if the offender was a participant in the offense but not the principal offender,
the degree of the offender’s participation in the offense and the degree of the
offender’s participation in the acts that led to the death of the victim, R.C.
2929.04(B)(6),
 and any other factors that are relevant to the issue whether the offender
should be sentenced to death, R.C. 2929.04(B)(7).
1. Graham’s background
{¶ 193} Graham was the second child born to his mother, and she had him
when she was 19 years old. He had very little contact with his father, who was
often in and out of prison. Graham did not have a consistent home environment, as
he lived off and on with his maternal grandmother throughout his childhood.
{¶ 194} Graham was also exposed to domestic violence in his home life.
Graham’s mother raised Graham the way that she was raised and disciplined him
with a belt. According to Dr. Swales, the psychologist hired by the defense, in the
year before the murder, Graham’s grandmother was convicted of domestic violence
for a confrontation she had with Graham’s mother and his sister. Even though
Graham was not the victim of that instance of violence, as Dr. Swales said, it is an
example of “the adverse childhood experiences that [Graham] was experiencing
during his childhood.”
{¶ 195} Further, although Graham lived in well-kept homes with his mother
and grandmother, the homes were located in neighborhoods in which there was
substantial drug activity. Dr. Swales stated: “[Graham] got involved in the wrong

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crowd. He was one of those adolescents who got socialized into aggression because
that’s what his friends were doing, all kinds of ridiculous things that no rational
person, no person in their right mind would do.”
2. Mental-health and substance-abuse issues
{¶ 196} In addition to the adverse environmental factors, the evidence in
the record shows that Graham suffered from both mental-health issues and
substance-use disorder. Graham was diagnosed with two mental-health issues:
oppositional defiant disorder and conduct disorder. See Cavanagh, Quinn, Duncan,
Graham & Balbuena, Oppositional Defiant Disorder Is Better Conceptualized as a
Disorder of Emotional Regulation, Journal of Attention Disorders, 21(5), 381-389
(2017), abstract available at https://doi.org/10.1177/1087054713520221 (accessed
Oct. 8, 2020) [https://perma.cc/K7AP-MAUL] (oppositional defiant disorder is
better classified as a disorder of emotion regulation rather than as behavior
disorder); Noordermeer, Luman & Oosterlaan, A Systematic Review and Meta-
analysis of Neuroimaging in Oppositional Defiant Disorder (ODD) and Conduct
Disorder (CD) Taking Attention-Deficit Hyperactivity Disorder (ADHD) Into
Account, Neuropsychology Review, 26(1), 44–72 (2016), available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4762933/ (accessed Oct. 8, 2020)
[https://perma.cc/JW2U-SFRR] (oppositional defiant disorder and conduct
disorder are the most commonly diagnosed mental-health conditions in childhood).
Despite these mental-health issues and despite the fact that Graham clearly had
problems stemming from these issues, Graham did not receive treatment. Dr.
Swales testified that testing confirmed that Graham was not faking his mental-
health issues.
{¶ 197} Graham’s substance-abuse problems further contributed to his
behavioral issues. Graham was marijuana dependent. He first used marijuana
when he was in seventh grade, and he began using it on a daily basis as a teenager.

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 January Term, 2020

Despite his pediatrician’s knowledge of his usage, Graham was not referred for
treatment.
{¶ 198} It was only after intervention from the juvenile court that Graham
received some treatment for substance-use disorder related to his marijuana usage.
However, Dr. Swales testified that Graham received inadequate treatment for his
issues. Graham attended seven counseling sessions, and the counselor
recommended additional counseling and anger management. Graham’s mother did
not participate in these sessions, and she discontinued the sessions because she did
not feel they were necessary.
{¶ 199} Graham’s substance-abuse problems escalated when he became
addicted to Xanax and used it in combination with Adderall occasionally. Dr.
Swales testified that Graham was “using massive amounts of Xanax on a daily basis
at the time of this instant offense.” Graham admitted to Dr. Swales that “he would
use a high amount, one to one-and-a-half bars of Xanax per day.” Dr. Swales
testified that taking such a dosage every day would result in aggression, irritability,
sleep difficulties, and tremors. Graham told Dr. Swales that while on Xanax, he
was more aggressive and got into unprovoked fights with his friends. Dr. Swales
testified: “In my opinion, it’s unlikely that [Graham] would’ve committed the
offense of murder, but for the fact he was addicted to Xanax, a benzodiazepine. I
believe that the Xanax led to the disinhibited behavior and the aggression.”
3. Age
{¶ 200} Graham had only recently turned 19 years old when he committed
these crimes with three 17-year-olds. Dr. Swales mentioned Graham’s youth as a
mitigating factor, stating that at 19 years old, Graham “didn’t demonstrate a
maturity of an adult in any of the decisions that he made.”
4. Adjustment to prison life
{¶ 201} Graham succeeded when he had structure and was sober. Graham
received As and Bs in elementary school. He started having behavioral problems

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in middle school and his grades worsened (his GPA fell to 1.0), he was truant, and
he ran away from home, all while using marijuana on a daily basis. Graham’s
grades ranged from Bs to Fs in the 9th and 10th grades. He repeated the 10th grade.
Graham was sent to the Multi-County Juvenile Attention System, a program for
delinquent youth, and was almost a straight-A student when he finished. But he
did not attend school beyond the 11th grade.
{¶ 202} Additionally, during the ten months that Graham was in custody at
the Portage County jail awaiting trial in this case, he committed no major violations.
Accordingly, Dr. Swales testified that he believes that Graham would adjust well
to prison.
5. Unsworn statement
{¶ 203} Graham, in an unsworn statement, expressed sympathy and
requested an opportunity to learn from his mistakes. He said, “I would like to say
my heart goes out to the victim’s family. Um, I know they probably can’t forgive
this, but mistakes do happen and people do learn from mistakes and I just hope the
jury will understand that and give me a chance to learn.”
C. Weighing
{¶ 204} We must determine whether the felony-murder aggravating
circumstances that were found by the jury outweigh the mitigating factors presented
in this case beyond a reasonable doubt. R.C. 2929.05(A) and 2929.03(D)(1); see
Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, at ¶ 140. We
determine that they do not.
{¶ 205} The following mitigating factors enumerated in R.C. 2929.04(B)
do not contribute any mitigating weight: the nature and the circumstances of the
offense, R.C. 2929.04(B); inducement by the victim, R.C. 2929.04(B)(1); offender
under duress, coercion, or strong provocation, R.C. 2929.04(B)(2); offender lacked
substantial capacity due to mental disease or defect, R.C. 2929.04(B)(3); offender’s
lack of significant criminal history, R.C. 2929.04(B)(5); and offender was not the

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principal offender, R.C. 2929.04(B)(6). Massa’s tragic and senseless death was a
result of a poorly thought out and horrifically executed robbery of a drug dealer by
a group of teenagers. It is true that Graham was not the mastermind—it was
Kremling, his 17-year-old friend who recruited him and the other teenagers, Grier
and Planicka, to participate in the robbery of Kremling’s former classmate and
drug-dealing acquaintance, Haithcock. But it was Graham, according to his
codefendants, who led the charge into the apartment, demanded and collected
money from Haithcock, ordered two of the victims, Massa included, to wait on the
couch, and then shot Massa when his authority was challenged.
{¶ 206} Nevertheless, there is strong and compelling mitigating evidence
regarding Graham’s history and background and other mitigating factors
enumerated in R.C. 2929.04(B)—youth of the offender (R.C. 2929.04(B)(4)) and
the catchall provision (R.C. 2929.04(B)(7))—that have significant weight.
{¶ 207} This court must consider Graham’s youth as a mitigating factor
pursuant to R.C. 2929.04(B)(4). We acknowledge that this court has not always
considered the youth of the offender to be a strong factor, and it has occasionally
given it nominal weight. See State v. Goodwin, 84 Ohio St.3d 331, 350, 703 N.E.2d
1251 (1999) (offender’s age of 19 entitled to “nominal weight”), writ of habeas
corpus granted in part on other grounds sub nom. Goodwin v. Johnson, N.D.Ohio
No. 1:99CV2963, 2006 WL 753111 (Mar. 22, 2006); Noling, 98 Ohio St.3d 44,
2002-Ohio-7044, 781 N.E.2d 88, at ¶ 149 (“We do not * * * necessarily regard age
as a strong or compelling mitigating factor”). However, there is more recent case
law in which this court has given youth somewhat more weight in this analysis. See
Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 203 (the
defendant’s youth provided “some weight” in mitigation; the defendant was only a
few months over 18 at the time of the offenses); Lang, 129 Ohio St.3d 512, 2011-
Ohio-4215, 954 N.E.2d 596, at ¶ 337 (the defendant’s youth provided significant
mitigating weight; the defendant turned 19 a few days before committing the

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offenses ); Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, at ¶ 252
(the defendant’s youth provided significant mitigating weight; the defendant was
19 at the time of the offenses). Therefore, we consider Graham’s youth—he turned
19 the month before he committed the offenses with three teenagers—to be a factor
that carries significant weight.
{¶ 208} We also find that Graham’s background is entitled to some weight.
Evidence presented at trial demonstrated that Graham had a troubled upbringing.
He grew up in a dysfunctional family in an unstable home environment, where he
observed combative and violent behavior by his immediate family members and
was the recipient of corporal punishment at the hand of his mother. We have
“seldom given decisive weight” to this factor, Hale, 119 Ohio St.3d 118, 2008-
Ohio-3426, 892 N.E.2d 864, at ¶ 265, but the mitigating evidence presented in this
case demonstrates that Graham’s history and background are entitled to some
weight. See State v. Bey, 85 Ohio St.3d 487, 508, 709 N.E.2d 484 (1999) (history
and background including unstable and abusive home environment entitled to some
weight in mitigation); Hale at ¶ 265 (history and background including one unstable
and irresponsible parent and an unstable home environment entitled to some weight
in mitigation).
{¶ 209} Graham also has a history of mental-health issues. He has been
diagnosed with oppositional defiant disorder and conduct disorder. While these
disorders do not qualify as mitigating under R.C. 2929.04(B)(3), see State v.
Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 298, they are
serious disorders experienced by some children and adolescents, and Graham did
not receive adequate treatment for them. Thus, we give some weight to Graham’s
mental-health problems under R.C. 2929.04(B)(7). See Clinton, 153 Ohio St.3d
422, 2017-Ohio-9423, 108 N.E.3d 1, at ¶ 296.
{¶ 210} To make matters worse, Graham was dependent on marijuana and
never received adequate treatment for this dependency—neither his pediatrician

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nor his mother sought treatment for his marijuana use. It was not until the juvenile
court intervened that Graham received some treatment, but that treatment was
minimal, and it was deemed inadequate by the psychologist hired by the defense.
Even assuming arguendo that his brief treatment regimen was adequate by medical
standards, Graham’s substance-abuse issues only escalated throughout his teen
years, with Graham becoming addicted to Xanax and occasionally using Adderall.
It was this addiction to Xanax that caused Graham to become less inhibited and
more aggressive. Thus, we give Graham’s substance-abuse issues some weight in
mitigation. See State v. Tibbetts, 92 Ohio St.3d 146, 174, 749 N.E.2d 226 (2001)
(“we have accorded some weight to drug addiction in mitigation”).
{¶ 211} From Dr. Swales’s testimony outlining Graham’s mental-health
and substance-abuse issues and his educational successes and failures, we can see
that Graham does well when he is in a stable and structured environment and is not
on drugs. He succeeded academically when placed in a structured environment by
the juvenile court, and he did not commit any major infractions while in jail
awaiting trial. Further, Dr. Swales’s opined that Graham would adapt well to prison
life. Therefore, we give some weight as a mitigating factor under R.C.
2929.04(B)(7) to Graham’s ability to adapt to life in prison. See State v. Foust, 105
Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 200.
{¶ 212} Finally, Graham’s expression of sympathy toward Massa’s family
is also entitled to some weight. See Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562,
114 N.E.3d 1092, at ¶ 244.
{¶ 213} There is no doubt that Graham’s murder of Massa was a senseless,
horrific, and appalling act. But considering the aggravating circumstances and
weighing them against the mitigating factors in this case, we do not find that the
aggravating circumstances outweigh the mitigating factors beyond a reasonable
doubt. Viewing the mitigating factors cumulatively, “the mitigation evidence

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militates against imposing the death sentence,” see Johnson, 144 Ohio St.3d 518,
2015-Ohio-4903, 45 N.E.3d 208, at ¶ 139.
{¶ 214} We recognize that we have upheld death sentences in other cases
in which the offender was 19 or younger, had mental-health and substance-abuse
issues, and had an unstable home life, see, e.g., State v. Raglin, 83 Ohio St.3d 253,
699 N.E.2d 482 (1998), and State v. Spivey, 81 Ohio St.3d 405, 692 N.E.2d 151
(1998). But those cases are distinguishable given developments in the case law on
the weight to be given to the mitigating factors of youth and mental-health issues.
And we must independently examine each case on its own unique facts.
{¶ 215} Our conclusion is supported by our decision in Johnson, a case in
which this court vacated the defendant’s death sentence based on the cumulative
weight of the mitigating factors. Like Graham, Johnson entered a residence to
commit robbery and murdered a person inside. But Johnson was also similar to
Graham in that he was 19 at the time of the murder, he had had a troubled childhood,
suffered from mental-health issues, and was dependent on drugs, including
marijuana. We found in that case that the aggravating circumstances did not
outweigh the cumulative effect of the mitigating evidence beyond a reasonable
doubt, based upon the specific facts of that case. And we find similarly today.
{¶ 216} Thus, based upon an independent review of the evidence, we cannot
conclude that the aggravating circumstances that Graham was found guilty of
committing outweigh the mitigating factors present in the case beyond a reasonable
doubt. R.C. 2929.05(A). Therefore, a sentence of death is not appropriate in this
case.
VI. CONCLUSION
{¶ 217} We affirm Graham’s convictions. We vacate his death sentence
and remand the cause to the trial court for resentencing consistent with R.C.
2929.06.
Judgment of convictions affirmed,

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 January Term, 2020

death sentence vacated,
and cause remanded.
O’CONNOR, C.J., and FRENCH, J., concur.
DONNELLY, J., concurs, with an opinion.
STEWART, J., concurs in judgment only.
KENNEDY, J., concurs in judgment only in part and dissents in part, with an
opinion joined (except for paragraphs 246-257 and 263) by DEWINE, J.
_________________
DONNELLY, J., concurring.
{¶ 218} Respectfully, I concur in the court’s judgment affirming the
convictions entered against appellant, Damantae Graham, vacating his death
sentence, and remanding the cause for a resentencing hearing in accordance with
R.C. 2929.06(A). I agree with the majority’s determination pursuant to its
independent sentence evaluation that a sentence of death is not appropriate in light
of the unique aggravating and mitigating factors in this case. But I would fully
address Graham’s argument on the proper scope of proportionality review. I
believe that a sentence of death is disproportionate and excessive in this case and
that Graham’s death sentence would need to be vacated irrespective of the court’s
conclusion that the aggravating circumstances that Graham was found guilty of
committing did not outweigh the mitigating factors beyond a reasonable doubt.
{¶ 219} I recognize that my position is outside the norm, since this court
has never once in the entire history of proportionality review reversed a death
sentence on the ground that it was “excessive or disproportionate to the penalty
imposed in similar cases,” R.C. 2929.05(A). The norm is wrong. Proportionality
review in Ohio is woefully superficial and perfunctory, and it fails both to comply
with the plain language of R.C. 2929.05(A) and to ensure basic constitutional
protections.

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{¶ 220} Although states are not constitutionally required to enact
proportionality-review laws, Pulley v. Harris, 465 U.S. 37, 43-44, 104 S.Ct. 871,
79 L.Ed.2d 29 (1984), Ohio has had such a law in place since 1981, R.C. 2929.05,
Am.Sub.S.B. No. 1, 139 Ohio Laws, Part I, 1, 17-18 (effective Oct. 19, 1981). But
when this court applies the proportionality provision of R.C. 2929.05(A), it does
not actually provide meaningful review of the issue so as to prevent the arbitrary,
capricious, and disproportionate imposition of the death penalty, which is
constitutionally required, Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976) (lead opinion), citing Furman v. Georgia, 408 U.S. 238, 310,
92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (White, J., concurring); see also Pulley at 54
(Stevens, J., concurring in part and concurring in the judgment). In other words,
the form is not constitutionally required, but the substance is. And in Ohio we have
it backwards: we have the form but lack the substance.
{¶ 221} If Ohio had an adequately narrow pool of offenses that were
eligible for the death penalty, then a statutorily mandated check on the
proportionality of the sentence might not be necessary. See Zant v. Stephens, 462
U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (“an aggravating
circumstance must genuinely narrow the class of persons eligible for the death
penalty and must reasonably justify the imposition of a more severe sentence on
the defendant compared to others found guilty of murder”). An adequately
narrowed classification of capital aggravated murder alone might ensure that
“sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed.” Jurek v. Texas,
428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), quoting Furman at 310
(Stewart, J., concurring). But Ohio’s classification scheme is not adequately
narrow, and our pool of death-eligible offenses is enormous. Any murder that
occurs in conjunction with a felony such as robbery is eligible.1 Felony murder is

1. R.C. 2903.01 provides:

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 January Term, 2020

particularly problematic under Ohio’s statutory scheme because the felony is the
element that elevates the murder offense to aggravated murder, R.C. 2903.01(B),
and the felony is also the element that elevates the maximum penalty for aggravated
murder from life imprisonment to death, R.C. 2929.04(A)(7); R.C. 2929.02. A
cold-blooded murderer who acted with prior calculation and design and committed
the murder in a particularly brutal manner is not eligible for the death penalty unless
an additional aggravating factor under R.C. 2929.04(A) can be proved. But every
single robbery-murder is eligible for the death penalty without the need to prove
any additional factor.
{¶ 222} Given the extreme breadth of the death-eligible category of
offenses in Ohio—particularly felony murder—our proportionality review is all the
more important in order to ensure that the death penalty is not imposed
“capriciously or in a freakish manner,” Gregg at 195 (lead opinion). This court’s
practice, though, is to dispose of the proportionality issue with a single sentence,
indicating that the death penalty has been imposed at some point in history in a
capital case involving the same aggravating factor or factors. See, e.g., State v.
Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, ¶ 116; State v. Jones,
135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 266; State v. Frazier, 115
Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 270; State v. Hoffner, 102
Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 121; State v. Thomas, 97 Ohio
St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 124; State v. Bays, 87 Ohio St.3d
15, 34, 716 N.E.2d 1126 (1999). This approach is overly narrow, and its result is
overbroad.

(B) No person shall purposely cause the death of another * * * [in
conjunction with] kidnapping, rape, aggravated arson, arson, aggravated
robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a
person is present or likely to be present, terrorism, or escape.
***
(G) Whoever violates this section is guilty of aggravated murder * * *.

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{¶ 223} The court’s approach is overly narrow because it compares the case
at hand solely to other cases in which the death penalty was imposed, and the cases
cited as being similar are often not factually comparable. I agree with the statement
of United States Supreme Court Justice Stevens that consideration of similarly
situated defendants who have not been sentenced to death “is an essential part of
any meaningful proportionality review,” Walker v. Georgia, 555 U.S. 979, 980, 129
S.Ct. 453, 172 L.Ed.2d 344 (2008) (Stevens, J., statement respecting the denial of
certiorari). Moreover, the plain language of R.C. 2929.05 obligates this court to
compare more than just cases in which the death penalty was imposed.
{¶ 224} Our obligation to consider similarly situated defendants receiving
varying penalties is clear from the words that the General Assembly chose to use
in the proportionality provision of R.C. 2929.05. When “determining whether the
sentence of death is appropriate,” we are required to “consider whether the sentence
is excessive or disproportionate to the penalty imposed in similar cases.”
(Emphasis added.) R.C. 2929.05(A). There are two distinct words for punishment
in this sentence—“sentence” and “penalty.” First, it refers to “the sentence of
death” and then “the sentence” as shorthand for “sentence of death.” Second, it
refers to “the penalty” in similar cases. If the General Assembly had intended to
limit the comparison solely to death sentences, it would have used “sentence” or
“death sentence” for the second term. But the General Assembly did not do that.
It used the more expansive term “penalty.” The phrasing of R.C. 2929.05
commands this court to compare the different penalties imposed in similar cases; it
plainly does not instruct us to compare the different circumstances underlying
identical death sentences.
{¶ 225} The result of this court’s typical proportionality “review” is
overbroad because its one-sentence analysis is no more than a confirmation that the
murder offense in the case fits within the expansive category of death-eligible
offenses. The “analysis” does nothing to narrow that category and therefore does

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nothing to “justify the imposition of a more severe sentence on the defendant
compared to others found guilty of murder,” Zant, 462 U.S. at 877, 103 S.Ct. 2733,
77 L.Ed.2d 235. The fact that this court does not perform effective proportionality
reviews does not mean that every case upholding a death sentence permits a
disproportionate sentence to be carried out, but it does mean that the court does not
identify the sentences that are so disproportionate that they violate fundamental
constitutional principles.
{¶ 226} I believe that the appropriate course is for this court to depart from
the charade of proportionality review described above. Justifying such a departure
is not particularly complicated, since this court’s decisions that set the tone for
proportionality review provided remarkably little analysis in support. State v.
Jenkins, 15 Ohio St.3d 164, 209, 473 N.E.2d 264 (1984); State v. Steffen, 31 Ohio
St.3d 111, 123, 509 N.E.2d 383 (1987).
{¶ 227} In Jenkins this court baldly stated, with no analysis whatsoever, that
R.C. 2929.05 does not require the court to include noncapital murder cases in its
death-penalty proportionality review. Id. at 209. It noted, though, that R.C.
2929.021, which directs clerks of trial courts to notify this court of all capitally
charged cases filed in their courts regardless of the outcome, is an important tool
for proportionality review. Id. at 208-209.
{¶ 228} This court in Steffen did not go much further than Jenkins in its
analysis to justify its refusal to provide meaningful proportionality review and
instead leaned heavily on the unfounded notion that “logic dictates” the result.
Steffen at 123. The only specific justification it provided for so limiting the pool of
cases for comparison was that “[c]omparison with cases not passed upon by the
reviewing court would be unrealistic since the reviewing court could not possess
the requisite familiarity with the particular circumstances of such cases so essential
to a determination of appropriateness,” id. This reasoning appears to be at odds
with the language in Jenkins indicating that all capitally charged cases, regardless

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of the outcome, should be used for comparison, id. at 208-209. Moreover, if this
court had actually followed Steffen in the last 33 years, one would expect to see at
least one example of this court’s overturning the death sentence in a case after a
thorough comparison of the circumstances of the case with the particular
circumstances of cases that this court had previously reviewed. But there is no such
example. We have spent decades debunking the notion that “a court cannot make
a meaningful proportionality review unless the pool of cases is restricted to those
which the reviewing court has itself decided,” id. at 123, by refusing to provide
meaningful proportionality review with the pool of cases that this court itself has
decided.
{¶ 229} While the doctrine of stare decisis is certainly “of fundamental
importance to the rule of law,” Wampler v. Higgins, 93 Ohio St.3d 111, 120, 752
N.E.2d 962 (2001), the doctrine “should not be, and has never been, used as the
sole reason for the perpetuation of a stated rule of law which has proved to be
unsound and unjust.” Carter-Jones Lumber Co. v. Eblen, 167 Ohio St. 189, 196-
197, 147 N.E.2d 486 (1958). The holding announced in Jenkins and Steffen works
an unjust result, and this court’s reliance on the cases over the decades has done
nothing to strengthen their logic. This court has not considered the rationale (or
lack thereof) of the holding but has instead parroted it over and over through the
decades. Our rejections of arguments in favor of an appropriate proportionality
review have been as terse and meaningless as the proportionality review itself. See,
e.g., State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 249;
State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 183;
State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 151.
Because this court’s precedent regarding proportionality review offers not justice
but unfairness, departure from the precedent is justified. See Clark v. Southview
Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438, 628 N.E.2d 46 (1994).

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 January Term, 2020

Moreover, it would work no hardship on this court to simply stop emptily invoking
it.
{¶ 230} In cases, like this one, that involve black defendants and white
victims, it is “abundantly clear that there is a special risk of arbitrariness” in the
prosecution of capital offenses. Walker, 555 U.S. at 980, 129 S.Ct. 453, 172
L.Ed.2d 344 (Stevens, J., statement respecting the denial of certiorari). In Ohio, as
elsewhere, black defendants with white victims are far more likely to receive the
death penalty than all other defendants facing capital charges. See Grosso, O’Brien
& Roberts, Local History, Practice, and Statistics: A Study on the Influence of Race
on the Administration of Capital Punishment in Hamilton County, Ohio (January
1992-August 2017), 51 Colum.Hum.Rts.L.Rev. 902, 931-932 (2020) (in cases in
which the state seeks a death sentence, a black defendant in a case with at least one
white victim is 5.33 times more likely to receive a death sentence). I believe we
are statutorily and constitutionally required to undertake a more expansive
proportionality review in cases such as this one that carry a special risk of
arbitrariness.
{¶ 231} In this case, Graham fatally shot Nicholas Massa while Graham
was helping his friend rob the friend’s drug dealer. A criminal case involving a
fatal shooting during a robbery is not uncommon. It is a sad reality, but it is a reality
nonetheless. Even a cursory review of the most recent appeals involving a fatal
shooting during the course of a robbery shows that the death penalty is not usually
sought, let alone imposed, for this type of crime. See State v. Cannon, 9th Dist.
Lorain No. 19CA011536, 2020-Ohio-3765; State v. Rogenski, 7th Dist.
Columbiana No. 18 CO 0019, 2020-Ohio-1360; State v. Smith, 1st Dist. Hamilton
No. C-180227, 2020-Ohio-649; State v. Ocasio, 5th Dist. Licking No. 2019 CA
00013, 2019-Ohio-5396; State v. Mondie, 8th Dist. Cuyahoga No. 108030, 2019-
Ohio-5337; State v. Johnston, 10th Dist. Franklin No. 18AP-817, 2019-Ohio-5135;
State v. Hodge, 10th Dist. Franklin No. 18AP-95, 2019-Ohio-4012; State v. Hale,

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8th Dist. Cuyahoga No. 107646, 2019-Ohio-3276; State v. Riggins, 1st Dist.
Hamilton No. C-180069, 2019-Ohio-3254; State v. Howell, 8th Dist. Cuyahoga No.
107545, 2019-Ohio-3182; State v. Walker, 2d Dist. Montgomery No. 28111, 2019-
Ohio-3121; State v. Johnson, 8th Dist. Cuyahoga No. 107427, 2019-Ohio-2913;
State v. Snowden, 2d Dist. Montgomery No. 27948, 2019-Ohio-2840; State v.
Brown, 7th Dist. Columbiana No. 18 CO 0025, 2019-Ohio-2717; State v. Burke,
11th Dist. Trumbull Nos. 2018-T-0032 and 2018-T-0035, 2019-Ohio-1951.
{¶ 232} If “the infliction of a severe punishment is ‘something different
from that which is generally done’ in such cases * * *, there is a substantial
likelihood that the State, contrary to the requirements of regularity and fairness
embodied in the [Cruel and Unusual Punishments] Clause, is inflicting the
punishment arbitrarily.” Furman, 408 U.S. at 276-277, 92 S.Ct. 2726, 33 L.Ed.2d
346 (Brennan, J., concurring), quoting Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct.
590, 2 L.Ed.2d 630 (1958), fn. 32. To impose capital punishment here, in light of
the cases listed in the prior paragraph, would be arbitrary. Simply put, this should
not be a death-penalty case.
{¶ 233} I want to emphasize that I have no pity for Graham, and I do not
wish to downplay the unspeakable tragedy that befell Nicholas Massa and all those
who loved him. A murder is an extreme and despicable act. It may end only one
life but it ruins many others. An act of murder should not be taken lightly, and it
deserves severe punishment. But the inquiry in a death-penalty proportionality
review is not whether the murderer in the case should be punished but is instead
whether the murder—among all other murders, which are also despicable and leave
endless heartbreak in their wakes—is a murder for which the death penalty is
appropriate. The death penalty must be reserved for only the worst among murder
offenses. See Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d
1 (2005); Atkins v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 153 L.Ed.2d 335

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 January Term, 2020

(2002). The murder in this case was cold, heartless, and senseless, but it is not the
kind of murder offense for which the death penalty is appropriate.
{¶ 234} Accordingly, I would find merit in Graham’s assertion that a
proportionality review should include an evaluation of the sentence “in relation to
[the sentences imposed for] other heinous crimes.” Because the death penalty in
this case would be disproportionate to the penalty found in similar cases, the death
penalty should not have been imposed and I would vacate Graham’s death sentence
on this additional ground.
_________________
KENNEDY, J., concurring in judgment only in part and dissenting in
part.
{¶ 235} I concur in the majority’s affirmance of appellant Damantae
Graham’s convictions. I write separately, however, to address the advisory opinion
the majority issues purporting to resolve Graham’s proposition of law No. VI. And
I dissent from the majority’s vacation of the death sentence. Contrary to the
majority’s determination, based on our precedent, the aggravating circumstances of
aggravated robbery, aggravated burglary, and kidnapping do outweigh the
mitigating factors in this case. And contrary to the concurrence’s determination, a
sentence of death in this case is proportionate to the penalty imposed in other
aggravated-murder cases with the same aggravating circumstances. Therefore, I
concur in the judgment in part and dissent in part.
{¶ 236} An 18-year-old victim, Nick Massa, died at the hands of a 19-year-
old armed robber, Damantae Graham. Nick did not provoke Graham, did not
attempt to flee, and did not incite the escalation of violence. Nick and the other
victims of the armed robbery were compliant with the demands of the armed
robbers, but Graham nevertheless cold-bloodedly killed Nick.
{¶ 237} Three robbers stormed into the apartment in which Nick was
visiting with his friends. Two of the robbers were armed with .380-caliber High

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Point semiautomatic handguns, and they had their guns drawn. The armed robbers
ordered Nick to sit on the couch with his hands in the air, and Nick complied. The
resident of the apartment gave the armed robbers everything they demanded.
Graham told Nick not to look at the other victim who was sitting next to Nick on
the couch or he would shoot him. In response Nick said, “You’re not going to shoot
me.” Graham then pulled the trigger of his .380-caliber High Point and blew a hole
in Nick’s chest, killing him. When one of Graham’s accomplices asked him why
he did it, Graham said, “He thought sh[—] was sweet and I wasn’t playing.”
{¶ 238} During the guilt phase, which is sometimes referred to as “the trial
phase,” of Graham’s trial, over defense counsel’s objection, the trial court admitted
the victim-impact testimony of Nick’s father, Joe Massa (“Mr. Massa”).
{¶ 239} At the beginning of the penalty phase of the death-penalty trial, the
trial court instructed the jury:

The State will address the aggravating circumstances of which
[Graham] was found guilty and the Defense will address mitigating
factors. In this case, the aggravating circumstances are precisely
those set out in your verdict on Specifications Two, Three, Four to
the first count of the indictment. They are also as follows:
The offense was committed while [Graham] was
committing, attempting to commit or fleeing immediately after
committing or attempting to commit the offense of aggravated
robbery and [Graham] was the principal offender in the commission
of the offense; or the offense was committed while [Graham] was
committing or attempting to commit or fleeing immediately after
committing or attempting to commit the offense of aggravated
burglary, and [Graham] was the principal offender in the
commission of the offense; or the offense was committed while

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[Graham] was committing or attempting to commit or fleeing
immediately after committing or attempting to commit the offense
of kidnapping, and [Graham] was the principal offender in the
commission of the offense.
These aggravating circumstances were proven in the trial
phase and it is not necessary for the [state] to present further
evidence to you regarding these aggravating circumstances.
However, only these aggravating circumstances may be considered
by you during this sentencing proceeding. * * *
***
* * * The aggravating circumstances will be weighed against
the mitigating factors that have been or will be presented.
Mitigating factors are factors about an individual or an offense that
weigh in favor of a decision that a life sentence rather than a death
sentence is appropriate.

{¶ 240} The trial court concluded the preliminary instructions to the jury by
explaining the jury’s role:

Again, you’ll be deciding whether the [state] has proved
beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors. If you find the aggravating
circumstances outweigh the mitigating factors, then you must find
that the death sentence be imposed upon [Graham]. However, if you
find that the [state] did not prove beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating factors, then you
will enter a verdict imposing one of the life sentences * * *.

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{¶ 241} During opening statements of the penalty phase, only defense
counsel referred to Mr. Massa’s victim-impact testimony, by contrasting Graham’s
childhood with Nick’s:

Ladies and gentleman, on February 7th of this year, two lives
intersected and, tragically, one of those lives ended, and that was the
life of Nicholas Massa. And you heard from Joe Massa, his dad,
who got up on the stand and talked to you about the impact it’s had
on his family, the loss that he feels. The pride in his voice as he
spoke about Nicholas[’s] accomplishments.
There was something else that you can get from what Joe
Massa was saying. You could see how involved he was in his son’s
life. You can see how much effort he put into making sure that his
son grew up right, and that’s important for you to keep in mind.

{¶ 242} And during closing arguments, only defense counsel mentioned the
presence of the Massa family in the courtroom and the pain that they feel for the
loss of Nick’s life.

I know that [Nick’s] family has been here throughout the
entire trial and I know—no, I’m not gonna say that. I don’t know
the pain they’re going through. I hope I never feel that pain. And
it’s tragic that they lost their son and your heart goes out to them.

{¶ 243} After the close of arguments, the trial court gave the jury further
instructions:

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 January Term, 2020

The procedure that you must follow in arriving at your
verdict in this phase of the trial is prescribed by law, and in this
regard, you shall consider all of the testimony and evidence relevant
to the aggravating circumstances [Graham] was found guilty of
committing and mitigating factors raised at both phases of the trial,
the statement of [Graham], the mental examination report and final
arguments of counsel. You shall then decide whether the [state]
proved beyond a reasonable doubt that the aggravating
circumstances outweigh the mitigating factors present in this case.
***
Some of the evidence and testimony that you considered in
the trial phase of this case may not be considered in this sentencing
phase.
For purposes of this proceeding, you are to consider only that
evidence admitted in the trial phase that is relevant to the
aggravating circumstances of which [Graham] has been found guilty
and to any of the mitigating factors.
* * * You will also consider all of the evidence admitted
during the sentencing phase together with [Graham’s] own
statement.

{¶ 244} The trial court specifically excluded from the jury’s consideration
guilt-phase Exhibits 17, 21, and 23 and “any corresponding testimony.” Guilt-
phase Exhibit 23 was the photograph of Nick that was identified by Mr. Massa
during his victim-impact testimony.
{¶ 245} Thereafter the trial court gave a final instruction:

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You must not be influenced by any consideration of
sympathy or prejudice. It is your duty to carefully weigh the
evidence, to decide all disputed questions of fact, to apply the
instructions of the court to your findings, and to render your verdict
accordingly. In fulfilling your duty, your efforts must be to arrive
at a just verdict. Consider all the evidence and make your findings
with intelligence and impartiality, and without bias, sympathy or
prejudice.

I. Graham’s Sixth Proposition of Law
A. The majority’s response to Graham’s sixth proposition of law is advisory
{¶ 246} The majority casts Graham’s sixth proposition of law as arguing
that “the trial court erred by admitting victim-impact testimony during the guilt
phase of the trial.” Majority opinion at ¶ 104. But that is not what Graham argues
in his sixth proposition of law.
{¶ 247} Proposition of law No. VI states, “Graham did not receive a fair
trial due to the trial court permitting, over objection, an improper victim impact
statement to the jury during guilt phase of the trial constituting prosecutorial
misconduct.” In support of his proposition of law Graham advances two
arguments.
{¶ 248} Graham’s first argument is that the trial court’s “sole purpose” in
overruling his objection to the testimony of Mr. Massa was to “cause prejudice, to
intentionally violate [Evid.R.] 403.” In support of that argument, Graham cites
State v. Gross, 97 Ohio St. 121, 2002-Ohio-5524, 776 N.E.2d 1061, for the
proposition that victim-impact testimony is admissible during the guilt phase of a
death-penalty trial when the testimony concerns the circumstances surrounding the
commission of the murder.

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{¶ 249} Graham’s second argument in support of his sixth proposition of
law is that the prosecutor committed misconduct when he introduced Mr. Massa’s
victim-impact testimony during the guilt phase in order to “use emotion, rather than
facts and law, to influence [the] jury” and thereby violated Graham’s right to due
process and a fair trial. Graham cites State v. Thompson, 33 Ohio St.3d 1, 15, 514
N.E.2d 407 (1987), to support his argument.
{¶ 250} By recasting Graham’s proposition of law, the majority loses its
way and issues an advisory opinion on whether Mr. Massa’s victim-impact
testimony was overly emotional. That issue—whether the victim-impact testimony
of Mr. Massa was overly emotional—is not raised by Graham in proposition of law
No. VI or advanced in his arguments in support of his proposition of law. Graham
never cites or directs this court’s attention to the watershed case regarding the
admissibility of victim-impact testimony in a death-penalty case, Payne v.
Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), or our case
adopting the reasoning of Payne, State v. Fautenberry, 72 Ohio St.3d 435, 650
N.E.2d 878 (1995). Graham’s only use of the word “emotion” in his argument in
support of his sixth proposition of law is in relation to his argument that the
prosecutor engaged in prosecutorial misconduct.
{¶ 251} Our longstanding policy is not to address an unbriefed issue. State
v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 17, citing
State v. Carter, 27 Ohio St.2d 135, 139, 272 N.E.2d 119 (1971). This practice also
applies in death-penalty appeals. E.g., State v. Roberts, 150 Ohio St.3d 47, 2017-
Ohio-2998, 78 N.E.3d 851, ¶ 85; see also State v. Sowell, 148 Ohio St.3d 554, 2016-
Ohio-8025, 71 N.E.3d 1034, ¶ 22 (capital case in which we ordered briefing on an
issue not raised by the parties).
{¶ 252} The rationale for this policy is that “ ‘ “appellate courts do not sit
as self-directed boards of legal inquiry and research, but [preside] essentially as
arbiters of legal questions presented and argued by the parties before them.” ’ ”

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(Brackets sic.) Quarterman at ¶ 19, quoting State v. Bodyke, 126 Ohio St.3d 266,
2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and
dissenting in part), quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
{¶ 253} The process of judicial review depends on the parties to identify,
preserve, and present issues for appeal. See Sizemore v. Smith, 6 Ohio St.3d 330,
333, 453 N.E.2d 632 (1983), fn. 2, (“justice is far better served when [this court]
has the benefit of briefing, arguing, and lower court consideration before making a
final determination”). An appellate court is not obligated to conduct legal research
or create arguments on behalf of the parties. Quarterman at ¶ 19. As Judge Richard
Posner once put it, “we cannot write a party’s brief, pronounce ourselves convinced
by it, and so rule in the party’s favor. That’s not how an adversarial system of
adjudication works.” Xue Juan Chen v. Holder, 737 F.3d 1084, 1085 (7th
Cir.2013).
{¶ 254} These concerns are even stronger in this case. The majority
constructs a novel test for determining whether testimony is overly emotional. That
new test will apply widely outside the confines of this case without the issue’s ever
having been subjected to adversarial briefing. And given the overwhelming
evidence establishing that Graham is guilty of the offenses and capital
specifications of which he was convicted, it is striking to me that the majority feels
compelled to abandon its role as a neutral arbitrator of questions that have been
tested in the crucible of the adversarial process. Courts “ ‘do not, or should not,
sally forth each day looking for wrongs to right. We wait for cases to come to us,
and when they do we normally decide only questions presented by the parties.’ ”
Greenlaw v. United States, 554 U.S. 237, 244, 128 S.Ct. 2559, 171 L.Ed.2d 399
(2008), quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir.1987)
(Arnold, J., concurring in the denial of rehearing en banc).
{¶ 255} In fact, we have held that it is reversible error for a court of appeals
to “decide cases on the basis of a new, unbriefed issue without ‘giv[ing] the parties

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notice of its intention and an opportunity to brief the issue.’ ” (Brackets sic.) State
v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, quoting State
v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988). With
the benefit of adversarial briefing, we may have received arguments and authority
counselling against the adoption of today’s test that the majority has failed to
anticipate. Rather than deny the parties notice and an opportunity to be heard, this
court should hold itself to the same standard that it holds other Ohio courts to,
exercise a modicum of judicial restraint, and refrain from creating a new test for
overly emotional evidence that no one has asked this court to adopt.
{¶ 256} And one can only ponder what Graham would have said in his own
defense had he been given the opportunity. Would he have asserted that there were
matters outside the record, such as unrecorded signs of emotion by Mr. Massa or
the jurors, that the court should consider? We will never know.
{¶ 257} In reaching its decision, the majority “answers a question that is not
necessary to resolve this case and is, therefore, dicta or advisory.” State v.
Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 32 (Fischer, J.,
concurring). And “ ‘[t]he problem with dicta, and a good reason that it should not
have the force of precedent for later cases, is that when a holding is unnecessary to
the outcome of a case, it may be made with less care and thoroughness than if it
were crucial to the outcome.’ ” Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753, at ¶ 89 (O’Donnell, J., concurring in part and dissenting in part),
quoting Bauer v. Garden City, 163 Mich.App. 562, 571, 414 N.W.2d 891 (1987).
B. The admission of Mr. Massa’s victim-impact testimony was not the result of
prosecutorial misconduct
{¶ 258} Because Graham’s second argument in support of proposition of
law No. VI is easily dispensed with, I begin with it.
{¶ 259} Prosecutorial misconduct results from an improper action or
inaction of the prosecutor. See State v. Thompson, 141 Ohio St.3d 254, 284, 2014-

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Ohio-4751, 23 N.E.3d 1096, ¶ 162 (to evaluate allegations of prosecutorial
misconduct a reviewing court must determine whether the prosecutor’s conduct
was improper). Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407, illustrates the
distinction perfectly. In Thompson, the prosecutor, during closing arguments of the
guilt phase of a death-penalty trial, commented on three separate occasions about
the defendant’s refusal to testify on his own behalf. Id. at 3.
{¶ 260} In this case, the prosecutor intended to call Mr. Massa as a witness
during the guilt phase of the death-penalty trial. Graham objected to the testimony,
and the trial court denied the objection and permitted Mr. Massa to testify. The
prosecutor had no control over the determination whether to permit the testimony
of Mr. Massa. That decision was within the sole province of the trial court. See
Calderon v. Sharkey, 70 Ohio St.2d 218, 436 N.E.2d 1008 (1982) (the
determination of the admissibility of evidence relating to a medical expert’s bias
and pecuniary interest is within the sound discretion of the trial court).
{¶ 261} I turn now to Graham’s first argument in support of his sixth
proposition of law—whether the trial court erred in admitting the victim-impact
testimony of Mr. Massa during the guilt phase of the death-penalty trial and if so,
whether that error affected Graham’s substantial rights.
C. The trial court committed harmless error in admitting Mr. Massa’s victim-
impact testimony during the guilt phase of the death-penalty trial
{¶ 262} Evidence must be relevant to be admissible. Evid.R. 402. Evid.R.
403(A) prohibits the admission of 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.” Exclusion of such evidence is mandatory. In
Gross, this court held that victim-impact testimony is relevant and admissible
during the guilt phase of a death-penalty trial when the testimony concerns the
circumstances surrounding the commission of the murder. Id., 97 Ohio St.3d 121,
2002-Ohio-5524, 776 N.E.2d 1061, at ¶ 62.

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{¶ 263} Because Graham objected to the admission of Mr. Massa’s
testimony during the guilt phase, the harmless-error standard applies. See State v.
Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15 (if a defendant
has objected to an error in the trial court, an appellate court reviews the error under
the “harmless error” standard in Crim.R. 52(A)). In State v. Morris, this court
adopted a new harmless-error test for instances when the erroneous admission of
evidence during a defendant’s trial affected his or her nonconstitutional rights. Id.,
141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153. Such error is deemed
harmless under Crim.R. 52(A) if the state demonstrates that the erroneous
admission was harmless beyond a reasonable doubt and that the error did not
contribute to the defendant’s conviction. Id. at ¶ 28-30. While I adhere to the views
expressed in my dissent in Morris and continue to believe that Morris was wrongly
decided, it remains binding precedent as to the standard of review that applies in
determining whether the erroneous admission of evidence was harmless.
{¶ 264} I agree with the majority that Mr. Massa’s victim-impact testimony
did not concern the circumstances surrounding the commission of the murder and
that the trial court erred in admitting his victim-impact testimony during the guilt
phase of the death-penalty trial. But that determination does not end the inquiry.
It is only when the error prejudiced the defendant that a new trial is warranted. In
this case, because “[t]he remaining evidence properly admitted at trial established
Graham’s guilt beyond a reasonable doubt,” majority opinion at ¶ 134, the trial
court’s error was harmless.
{¶ 265} Because there is no evidence of prosecutorial misconduct and the
trial court’s error in admitting Mr. Massa’s victim-impact testimony during the guilt
phase of the death-penalty trial was harmless, the majority properly rejects
Graham’s proposition of law No. VI.
{¶ 266} Therefore, I concur in the portion of the judgment affirming
Graham’s convictions.

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D. Carryover effect
{¶ 267} Graham does not argue in his sixth proposition of law, or in any
other proposition of law, that there was prejudicial carryover effect from the
admission of Mr. Massa’s victim-impact testimony in the guilt phase of the death-
penalty trial to the penalty phase. And the better course is for courts not to sua
sponte raise and address unbriefed issues “not only out of respect for the adversarial
process but also because it leads to better decision-making.” Turner v. CertainTeed
Corp., 155 Ohio St.3d 149, 2018-Ohio-3869, 119 N.E.3d 1260, ¶ 80 (DeWine, J.,
concurring in judgment only). And even though judicial restraint counsels against
addressing this unbriefed issue, the majority nevertheless tackles it, despite having
already determined that Mr. Massa’s testimony was not overly emotional and
therefore not prejudicial.
{¶ 268} That decision by the majority—to grapple with this issue—results
in its sidestepping what the trial court actually did in preserving Graham’s right to
a fair trial during the penalty phase. Also, by fashioning the issue for itself, the
majority allows Graham’s invited error to vanish from sight.
{¶ 269} The trial court’s preliminary penalty-phase jury instructions
explained to the jury its task: weighing the aggravating circumstances, proved by
the state in the guilt phase, against any mitigating factors that had been presented
in the guilt phase or that would be presented during the penalty phase. After closing
arguments in the penalty phase, the trial court told the jury to “consider all of the
testimony and evidence relevant to the aggravating circumstances * * * and
mitigating factors raised at both phases of the trial, the statement of [Graham], the
mental examination report and final arguments of counsel.” (Emphasis added.) In
the trial court’s directive to the jury the court reiterated that the jury could “consider
only that evidence admitted in the trial phase that is relevant to the aggravating
circumstances of which [Graham] has been found guilty and to any of the mitigating
factors.” (Emphasis added.) The jury was informed: “[T]he aggravating

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circumstances are precisely those set out in your verdict on Specifications Two,
Three, Four to the first count of the indictment.” The trial court then defined
“mitigating factors” as “factors about an individual or an offense that weigh in favor
of a decision that a life sentence rather than a death sentence is appropriate.” The
trial court then specifically excluded certain guilt-phase evidence from the jury’s
consideration during the penalty phase—relevant here, Exhibit 23, the photograph
of Nick that Mr. Massa identified during his testimony—and any of the testimony
corresponding to that evidence.
{¶ 270} Mr. Massa’s victim-impact testimony was not relevant evidence to
either the aggravating circumstances or the mitigating factors, and the trial court
specifically excluded it from the jury’s consideration. And to further ensure that
the jurors did not allow any other considerations to influence their penalty-phase
deliberative process, the trial court instructed the jury that it “must not be influenced
by any consideration of sympathy or prejudice.” Rather, the jury was told,
“[c]onsider all the evidence and make your findings with intelligence and
impartiality, and without bias, sympathy or prejudice.” This court has long
recognized that “[a] jury is presumed to follow the instructions given to it by the
trial judge.” State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1,
¶ 52; accord Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d
727 (2000) (“A jury is presumed to follow its instructions”); State v. Garner, 74
Ohio St.3d 49, 59, 656 N.E.2d 623 (1995) (jury is presumed to follow curative
instructions given it by a trial judge in a death-penalty case). And nothing in the
record before this court rebuts that presumption.
{¶ 271} Lastly, although the majority does not address it—if there was any
error during the penalty phase regarding Mr. Massa’s victim-impact testimony—it
was invited by Graham, an error which he cannot now benefit from. Only defense
counsel discussed Mr. Massa’s victim-impact testimony during opening statements,
reminding the jurors that it was “important for [them] to keep in mind” “how much

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effort [Mr. Massa] put into making sure that his son grew up right.” And during
closing arguments, only defense counsel mentioned the presence of the Massa
family in the courtroom and the pain they must feel over the loss of their son.
{¶ 272} This court has recognized that a defendant may not “ ‘take
advantage of an error which he himself invited or induced.’ ” Sowell, 148 Ohio
St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, at ¶ 50, quoting Hal Artz Lincoln-
Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502
N.E.2d 590 (1986), paragraph one of the syllabus. And we recently applied this
principle in State v. Grate, ___ Ohio St.3d ___, 2020-Ohio-5584, ___ N.E.3d ___
¶ 197, holding that the accused invited any error in replacing a juror when defense
counsel moved to excuse the juror.
{¶ 273} Because Graham did not argue prejudicial carryover effect of Mr.
Massa’s victim-impact testimony from the guilt phase to the penalty phase, I would
not address the issue; I address the issue here only because the majority does. If
the jurors considered Mr. Massa’s testimony in the penalty phase, that error was
invited by Graham. Moreover, if there was any error, I agree with the majority that
Graham was not prejudiced by it.
II. Independent Sentence Review
{¶ 274} When this court is considering a case involving the imposition of
capital punishment, R.C. 2929.05(A) requires that we

review and independently weigh all of the facts and other evidence
disclosed in the record in the case and consider the offense and the
offender to determine whether the aggravating circumstances the
offender was found guilty of committing outweigh the mitigating
factors in the case, and whether the sentence of death is appropriate.

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{¶ 275} To determine whether the sentence of death is appropriate, the
statute directs the court to “consider whether the sentence is excessive or
disproportionate to the penalty imposed in similar cases.” Id. It also requires that
this court

review all of the facts and other evidence to determine if the
evidence supports the finding of the aggravating circumstances the
trial jury * * * found the offender guilty of committing, and * * *
determine whether the sentencing court properly weighed the
aggravating circumstances the offender was found guilty of
committing and the mitigating factors.

Id.
{¶ 276} The majority here overrides the jury’s verdict and the trial court’s
independent finding that the aggravating circumstances outweighed the mitigating
factors beyond a reasonable doubt. The majority affords great weight to
insubstantial and unsubstantiated testimony from Graham’s mitigation witness, and
in the process, sets a new low bar for death-penalty defendants to overcome.
Graham was a bright young man who had a rocky childhood and a self-described
but unproved addiction to Xanax. He was not thrust by his circumstances onto an
unchangeable course that led to aggravated murder. The aggravating circumstances
heavily outweigh the mitigating factors in this case.
A. Aggravating circumstances
{¶ 277} I agree with the majority that the evidence at trial supports the
jury’s findings of guilt as to the three aggravating circumstances—aggravated
robbery, aggravated burglary, and kidnapping.

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B. Mitigating factors
{¶ 278} Against these aggravating circumstances, we are to weigh the
following mitigating factors set forth in R.C. 2929.04(B):
 the nature and circumstances of the offense,
 the history, character, and background of the offender,
 whether the victim induced or facilitated the offense, R.C. 2929.04(B)(1),
 whether it is unlikely that the offense would have been committed but for the
offender’s being under duress, coercion, or strong provocation, R.C.
2929.04(B)(2),
 whether at the time of committing the offense the offender, because of a mental
disease or defect, lacked substantial capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law, R.C.
2929.04(B)(3),
 the youth of the offender, R.C. 2929.04(B)(4),
 the offender’s lack of a significant history of prior criminal convictions and
delinquency adjudications, R.C. 2929.04(B)(5),
 if the offender participated in the offense but was not the principal offender, the
degree of his participation in the offense and in the acts that led to the victim’s
death, R.C. 2929.04(B)(6),
 and any other factors relevant to the issue whether the offender should be
sentenced to death, R.C. 2929.04(B)(7).
{¶ 279} The majority concludes that only the following mitigating factors
deserve weight in this case: (1) Graham’s background, (2) his age at the time of the
offense—19, and (3) the catchall provision for other relevant factors, i.e., Graham
(a) suffered mental-health and substance-abuse issues, (b) had adjusted well to
prison life, and (c) made an unsworn expression of remorse, see State v. Kirkland,
140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 158, 160-161 (history of

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drug and alcohol abuse and unsworn expressions of remorse considered); State v.
Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 261 (history of
mental-health problems considered).
C. Weighing of aggravating circumstances and mitigating factors
{¶ 280} The majority recognizes that the nature and the circumstances of
the offense and the mitigating factors set forth in R.C. 2929.04(B)(1), (2), (3), (5),
and (6) fail to offer anything in mitigation. Nevertheless, the majority finds that it
“cannot conclude that the aggravating circumstances that Graham was found guilty
of committing outweigh the mitigating factors present in the case beyond a
reasonable doubt,” majority opinion at ¶ 216.
{¶ 281} In reaching this conclusion, the majority elevates age to an almost
all-consuming factor, improperly considers Graham’s alleged addiction to Xanax
and abuse of Adderall, overstates the difficulty of Graham’s childhood, and ignores
established precedent. When the mitigation factors that are supported by credible
evidence are considered, and when the evidence is not distorted and is regarded in
the context of our precedent, the obvious conclusion is that the aggravating
circumstances outweigh the mitigating factors in this case.
1. Youth
{¶ 282} After recognizing that this court has upheld death sentences for
defendants who were 19 years old at the time of their crimes, the majority explains
that there have been “developments in the case law on the weight to be given to the
mitigating factors of youth and mental-health issues.” Majority opinion at ¶ 214.
But the majority neglects to explain what those developments are. It is possible
that the majority is referring to the categorical ban of the death penalty for
defendants under the age of 18 set forth in Roper v. Simmons, 543 U.S. 551, 578,
161 L.Ed.2d 1, 125 S.Ct. 1183 (2005), but that ban does not apply to defendants
who committed their crimes after they turned 18 years old. In Graham v. Florida,
560 U.S. 48, 74-75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the court prohibited

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the imposition of a life-without-parole sentence on a juvenile offender who
committed a crime other than a homicide. The court explained that under the
Constitution, juveniles should be treated differently from adults for purposes of
punishment. But again, Graham was not a juvenile when he murdered Nick. Or
perhaps the majority considers the developments in the law to be the assignment of
“significant weight” to the factor of youth in two previous cases from this court.
See State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 337
(offender’s youth at time of offense, age 19, accorded significant weight); State v.
Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 252 (offender’s
youth at time of offense, age 19, accorded significant weight), overruled in part on
other grounds, State v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149 N.E.3d 475,
¶ 35.
{¶ 283} However, in assigning “significant weight” to the offenders’ youth
in Lang and Pickens, this court did not expound upon its reasoning for so doing.
Instead, the court made perfunctory statements. From this, it is disingenuous to
find that there have been developments in our case law with respect to how the
mitigating factor of youth is to be considered. This is particularly true given that
in both cases, after giving significant weight to the factor of youth, the court
stressed that it had upheld the death penalty in cases in which the defendant
committed aggravated murder at Lang’s and Pickens’s age or younger. Lang at
¶ 337; Pickens at ¶ 252. And in both Lang and Pickens, this court upheld the death
sentences. Lang at ¶ 342; Pickens at ¶ 258.
{¶ 284} Also, State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45
N.E.3d 208, counters any argument that after Lang and Pickens, this court has
always assigned the factor of youth significant weight. In Johnson, the offender
was 19 years old at the time of the aggravated murder. Despite the recent
“significant weight” assigned to the factor of youth in Lang and Pickens, the

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Johnson court assigned “some weight” to Johnson’s youth. Id. at ¶ 133. And,
again, the court did so without offering any discussion of its reasoning.
{¶ 285} Contrary to the majority’s assertion, there have been no
developments in the law on the weight of the mitigating factor of youth in young
adults. Rather, we give some degree of weight to youth because it is a mitigating
factor under R.C. 2929.04(B)(4) and because 18 is the minimum age for death-
penalty eligibility, see, e.g., State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304,
776 N.E.2d 26, ¶ 98; see also State v. Hill, 64 Ohio St.3d 313, 335, 595 N.E.2d 884
(1992).
{¶ 286} Accordingly, I would give some weight to Graham’s youth.
2. Mental health and substance abuse
{¶ 287} The majority also asserts that there have been recent developments
with respect to the weight to be given to the mitigating factor of mental health.
Again, this sweeping statement is unsupported by analysis or authority. However,
our capital-case jurisprudence reveals that the majority’s position is without
support.
{¶ 288} We have consistently accorded some weight to mental-health
issues that are considered under R.C. 2929.04(B)(7). See State v. Froman, __ Ohio
St.3d __, 2020-Ohio-4523, __ N.E.3d __, ¶ 182 (some weight given to the evidence
of the offender’s depression); Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45
N.E.3d 208, at ¶ 134 (some weight given to the evidence of the offender’s mental
illness and addiction); Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d
596, at ¶ 336 (some weight given to the fact that the offender suffered from
depression). And we have also considered whether there is a significant connection
between the offender’s mental illness and the murder. Id.
{¶ 289} Graham’s expert witness, Dr. Thomas Swales, testified that
Graham did not have a major depressive disorder, schizophrenia, bipolar disorder,
or a schizoafffective disorder, i.e., he did not have a “serious mental illness” as the

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expert understood the term. Graham did have behavioral problems and had been
diagnosed with oppositional defiant disorder when he was 12 years old. He
received treatment for that disorder, seven sessions with a counselor, which his
mother made sure he attended.
{¶ 290} Dr. Swales testified that the “worst” of Graham’s problems was an
addiction to Xanax. I disagree with the majority’s determination that Graham’s
alleged addiction to Xanax, and his use of it in combination with Adderall, is a
mitigating factor. Graham’s alleged addiction is based on Dr. Swales’s testimony.
However, Dr. Swales’s testimony is not credible evidence.
{¶ 291} Dr. Swales acknowledged that “anybody could say, well, I have a
drug abuse problem.” “So,” he said, “that’s why you try to investigate the
background, the history, interview relatives, look at all the records and see if there’s
any other evidence.” However, as Dr. Swales admitted, there is no corroboration
for Graham’s self-reported alleged Xanax addiction and abuse of Adderall. None
of the family members who Dr. Swales interviewed indicated that Graham abused
Xanax or Adderall, let alone that he was addicted to Xanax. While Graham’s
mother confirmed that Graham began using cannabis at 15, she was unaware of any
other drug abuse. His juvenile-court records and medical records also indicate his
use of cannabis, but there is no mention of Graham’s using or abusing Xanax or
Adderall in those records. And Dr. Swales saw no evidence that Graham had ever
tested positive for Xanax or that any therapist had ever detected a Xanax addiction.
{¶ 292} Additionally, Dr. Swales testified that Graham stated that he was
using a high amount—one to one-and-a-half bars—of Xanax daily. Dr. Swales
opined that taking “such large quantities” of Xanax would result in “aggression,
irritability, sleep difficulties, [and] tremors.” He also stated that “using high
amounts of Xanax * * * leads you to act without thinking. And this * * * can lead
to aggressive behavior.”

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{¶ 293} However, additional testimony by Dr. Swales undermines the
credibility of these statements. He acknowledged that he did not know how many
milligrams a bar of Xanax contains or “the actual potency of the drug,” since
Graham had obtained the bars on the street. But Dr. Swales also acknowledged the
limits of his knowledge, stating that he is “not a prescriber in the state of Ohio” and
that he is unaware of the therapeutic dosages of Xanax to treat conditions for which
it is generally prescribed, such as anxiety, panic disorders, and insomnia.
{¶ 294} Dr. Swales’s testimony does not support finding (1) that Graham
was abusing Xanax or (2) that Graham was consuming a high amount of Xanax.
Accordingly, Graham’s alleged addiction to Xanax cannot be considered as a
mitigating factor under R.C. 2929.04(B)(7). See State v. Spivey, 81 Ohio St.3d 405,
428, 692 N.E.2d 151 (1998) (existence of R.C. 2929.04(B)(3) mitigating factor not
established by a preponderance of the evidence because, inter alia, there was no
credible evidence that appellant acted uncontrollably at the time of the murder).
{¶ 295} Graham, however, was diagnosed with cannabis dependence in
2013. He used marijuana every day, starting at around age 15. According to Dr.
Swales, Graham never received drug treatment.
{¶ 296} Based on the foregoing, I do not find the evidence of Graham’s
addiction to Xanax or his use of Xanax in combination with Adderall to be credible.
I also am compelled to note, because the majority does not, that even though
voluntary intoxication is not a strong mitigating factor, we have accorded some
weight to drug addiction. State v. Tibbetts, 92 Ohio St.3d 146, 174, 749 N.E.2d
226 (2001).
{¶ 297} Therefore, I would assign some weight to Graham’s mental-health
issues and marijuana dependence.
3. History and background
{¶ 298} The majority finds the evidence regarding Graham’s “troubled
upbringing” and “unstable home environment” to be “strong and compelling

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mitigation evidence.” Majority opinion at ¶ 208, 206. While Graham’s childhood
and home life may not have been ideal, the majority mischaracterizes the evidence
and fails to consider the evidence in its entirety. Moreover, it fails to compare
Graham’s upbringing to those of defendants in cases in which we found the
defendant’s background to be a mitigating factor.
{¶ 299} Graham’s father was absent from his life, but his mother and
grandmother were not. And the evidence shows that Graham’s mother was actively
involved in his upbringing. She sought help when Graham repeatedly ran away,
took him to counseling sessions, and kept him in school until Graham dropped out
after the 11th grade.
{¶ 300} While there were times when Graham’s family had to live with his
grandmother, he was never homeless. Additionally, Dr. Swales had the opportunity
to visit the mother’s house. While it was located in a housing project, Dr. Swales
described it as “very neat and clean, pretty nice.”
{¶ 301} Graham was the recipient of corporal punishment with a belt, but
not so hard as to leave marks, and the family was never involved with child-
protective services. Indeed, Dr. Swales opined that the fact that Graham was
disciplined with a belt by this mother did not characterize him as an abused child.
{¶ 302} Also important are Graham’s educational achievements. Dr.
Swales reviewed his transcripts and testified that in the 11th grade, Graham was
“an A student in English, algebra, environmental sciences, American government,
physical education, art, positive life skills and technology, [and he received] a B in
health and C in business employability.” And although he did drop out of school
before graduation, “he passed all of his Ohio graduation test requirements and was
advanced [in] math, accelerated in reading, proficient in writing, science and social
studies.” Dr. Swales testified that he had given Graham an IQ test and he scored a
99, which would be that of a “typical kid,” according to Swales.

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{¶ 303} The majority’s position is not supported by our precedent. We have
recognized that a defendant’s “childhood suffering is relevant, but only to the extent
his ‘criminal * * * acts are attributable to’ it.” (Ellipsis sic.) State v. Campbell, 95
Ohio St.3d 48, 53, 765 N.E.2d 334 (2002), quoting California v. Brown, 479 U.S.
538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring).
Without this connection, a defendant’s childhood experience should be accorded
minimal weight in mitigation. See Campbell at 51-54; State v. Madison, 160 Ohio
St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867, ¶ 241 (“this court has seldom given
strong weight to a defendant’s unstable or troubled childhood”); State v. Kirkland,
160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 174 (“we have seldom
ascribed much weight in mitigation to a defendant’s unstable or troubled
childhood”).
{¶ 304} Graham’s childhood is far from the bleak portrayal depicted by the
majority. And perhaps most importantly, the majority never connects Graham’s
upbringing to the offenses he committed in this case. Therefore, I would find that
Graham’s history and background is entitled to minimal weight.
4. This court’s prior weighing of factors in comparable cases
{¶ 305} The majority acknowledges that in both Spivey, 81 Ohio St.3d 405,
692 N.E.2d 151, and State v. Raglin, 83 Ohio St.3d 253, 699 N.E.2d 482 (1998),
we upheld the death sentence when “the offender was 19 or younger, had mental-
health and substance-abuse issues, and had an unstable home life.” Majority
opinion at ¶ 214. However, without any substantive analysis, the majority
dismisses both by stating that they “are distinguishable given developments in the
case law on the weight to be given to the mitigating factors of youth and mental-
health issues.” Majority opinion at ¶ 214. The majority, however, provides no
support for these broad, sweeping statements. Because it can’t.
{¶ 306} Examining Spivey and Raglin, and a third case, State v. Stallings,
89 Ohio St.3d 280, 731 N.E.2d 159 (2000), reveals that they are more analogous

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to, than distinguishable from, this case. And in each of those cases, this court
upheld the death penalty.
{¶ 307} In Spivey, Warren Spivey broke into Veda Eileen Vesper’s
residence, attacked her, stabbed her multiple times, and beat her to death. Id. at
405. He also robbed her of jewelry and other personal property and fled in her
automobile. Id.
{¶ 308} We found that the state had proved one aggravating circumstance—
aggravated robbery or aggravated burglary—beyond a reasonable doubt. Id., 81
Ohio St.3d at 420, 692 N.E.2d 151, fn. 2. The Spivey court found the nature and
circumstances of the offense revealed nothing of mitigating value. Id. at 424. The
only applicable mitigating factors were the offender’s youth (age 19 at the time of
the offense), history and background, and psychological problems (attention-deficit
disorder, alcohol and marijuana abuse/possible dependency, borderline personality
disorder with schizoid and antisocial features). Id. at 422, 424, 428.
{¶ 309} We characterized Spivey’s childhood as “very difficult and
troubled.” Id. at 424. During his childhood, he was treated as an outcast by his
family members. Id. Spivey suffered convulsions as a toddler. Id. at 420. His
mother felt resentment toward him because she felt “he was interfering with her life
because of his various medical and behavioral problems.” Id. at 420. She
eventually “stopped seeking medical care and treatment for [Spivey’s] convulsions
and, as he matured, his seizures began to manifest themselves in forms of rage and
anger.” Id.
{¶ 310} During Spivey’s childhood, his mother “told him that she hated him
and wished that he had never been born.” Id. Her resentment of Spivey led her to
verbally and physically abuse him. Id. He was also physically abused by his father.
Id. And on at least one occasion, Spivey was sexually assaulted by his cousin’s
uncle. Id. at 421.

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{¶ 311} His mother did little to address the constant trouble Spivey got into
at home and school. Id., 81 Ohio St.3d at 420, 692 N.E.2d 151. The family failed
to follow through on professional recommendations for Spivey’s treatment, which
included medication, further evaluation, and family counseling. Id. at 421.
{¶ 312} Spivey also suffered from physical and mental problems or
deficiencies. Id. at 424. As a child, he was diagnosed with XYY Syndrome, a
genetic chromosome abnormality. Id. at 421. A few aspects of XYY Syndrome
are increased risk of behavioral problems, mental disease, and committing criminal
acts. Id. at 422. One expert testified that Spivey also suffered from “ ‘[c]onduct
disorder, unsocialized, nonaggressive,’ ‘[d]evelopmental language disorder,
receptive type,’ and ‘[a]ttention deficit disorder without hyperactivity.’ ” Id. at 422.
Another expert diagnosed Spivey “as suffering from * * * ‘alcohol and marijuana
abuse, possible dependency,’ and a ‘borderline personality disorder with schizoid
and anti-social features.’ ” Id.
{¶ 313} We found that each of the mitigating factors were entitled to some
weight in mitigation. Id. at 424. However, when the court weighed the aggravating
circumstance against the evidence presented in mitigation, we determined that the
aggravating circumstance outweighed the mitigating factors beyond a reasonable
doubt. Id. at 429. We affirmed his sentence of death. Id.
{¶ 314} We reached the same conclusion in Raglin, 83 Ohio St.3d 253, 699
N.E.2d 482. Walter Raglin was looking for someone to rob when he saw Michael
Bany, a musician who was leaving an engagement, and approached him from
behind in a parking lot. Id. at 253-254. Raglin pulled out a pistol and demanded
money; Bany gave him $60. Id. at 254. Raglin then asked whether Bany’s vehicle
had an automatic or manual transmission, and when Bany failed to answer and
turned toward Raglin, Raglin shot him in the side of the neck, killing him. Id.
{¶ 315} We held that the state proved the aggravating circumstance of
aggravated robbery beyond a reasonable doubt. Id. at 266-267. The nature and

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circumstances of the offense revealed nothing of mitigating value. Id. at 273. The
applicable mitigating factors were Raglin’s history and background, his youth (age
18 at the time of the offense), his expressions of remorse and sorrow, and his
cooperation with police and the fact that Raglin may have, due to a mental disease
or defect, lacked the capacity to conform his conduct to the requirements of the law.
Id. at 272-273.
{¶ 316} We found that Raglin “lacked appropriate parental support and
guidance, his family life was chaotic, the conduct of his mother was reprehensible,
and the resulting situations [he] was subjected to during his formative years [were]
nothing short of atrocious.” Id. at 272. His father was incarcerated on several
occasions for drug-related offenses. Id. at 267. His mother spent some nights in
jail for prostitution and often abandoned him and his siblings for days or a week at
a time while she was “running the streets and getting high.” Id. When Raglin was
approximately nine years of age, his mother allowed him to drink alcohol and
smoke cigarettes and she directed him to steal money to support her drug habit. Id.
She used her monthly government-assistance checks to purchase drugs. Id. at 268.
As a preteen, Raglin accompanied his mother to drug deals as a form of protection
for her. Id.
{¶ 317} His family moved from place to place during his childhood, and his
living conditions were deplorable. Id., 83 Ohio St.3d at 267, 699 N.E.2d 482. “The
homes were characterized by extreme filth and inadequate facilities. Some of the
places were infested with mice and insects.” Id. At one point, he lived with his
mother and some of his siblings in tack rooms near the horse stables at a racetrack
where his mother’s boyfriend worked. Id. The tack rooms were very small and
lacked a kitchen, electricity, plumbing, and privacy. Id.
{¶ 318} Raglin’s sister recounted childhood instances in which he “had
engaged in self-destructive behavior, including jumping out of windows, putting
firecrackers in his shoes, and shooting himself in the leg.” Id. at 268. He spent

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time in several juvenile facilities and at one point, underwent psychiatric
evaluation. Id.
{¶ 319} During the penalty phase, appellant gave an unsworn statement. He
repeatedly expressed sorrow for the pain and grief he had caused to Bany’s family,
to society, and to his own family. Id. at 269. He also stated, “[K]nowing that I took
a person’s life * * * haunts me every second and every minute of my life. It’s going
to be with me forever.” Id. He expressed his belief that he deserved a life sentence
and not the death penalty. Id.
{¶ 320} An expert testified that “the results of [Raglin’s] psychological
testing were consistent with the profile of a person who lacks a well-developed
sense of self, who is prone to ‘problems with impulse control and his thinking that
are greatly in excess of those that other people experience,’ and who has ‘real
difficulties with his mood.’ ” Id., 83 Ohio St.3d at 270, 699 N.E.2d 482. The expert
diagnosed Raglin as “suffering from adjustment disorder with depressed mood,
cognitive disorder, alcohol-related disorder, cannabis-related disorder, borderline
personality disorder, and antisocial personality disorder.” Id.
{¶ 321} We found that Raglin’s childhood, history, and family background
were entitled to some meaningful weight in mitigation. Id. at 272. The factor of
youth was assigned some weight in mitigation. Id. at 273. Raglin’s various
psychological conditions were given limited weight. Id. And his cooperation with
police and expressions of remorse and sorrow were assigned “some, but very little,
weight in mitigation.” Id.
{¶ 322} We recognized that the combined mitigating factors in Raglin were
stronger than the typical mitigation presented in death-penalty cases. Id. at 274.
Nonetheless, we concluded that the mitigating factors were “heavily
counterbalanced” by the aggravating circumstance that Raglin was found guilty of
committing. (Emphasis added). Id.

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{¶ 323} In Stallings, Michael Stallings, along with a gang accomplice,
sought to rob Eric Beverly, a reputed local marijuana dealer. Id., 89 Ohio St.3d
280, 731 N.E.2d 159. Stallings entered the apartment of Beverly’s girlfriend and
demanded money and marijuana from Beverly. Id. He then shot 16-year-old
Rolisha Shephard, while she was holding her 14-month-old son. Id. at 280-281.
{¶ 324} The state proved two aggravating circumstances—aggravated
robbery and aggravated burglary—beyond a reasonable doubt. Id. at 300. This
court found that the nature and circumstances of the offense revealed nothing of
mitigating value. Id. The applicable mitigating factors were Stallings’s youth (age
20 at the time of the offense), history and background, psychological problems
(attention-deficit/hyperactivity disorder (“ADHD”), expressions of remorse,
adjustment to prison life, and cooperation with police. Id.
{¶ 325} Stallings’s cousin testified that Stallings had had a difficult
childhood. She said he was raised in “ ‘the projects’ ” by a mother who did not
work and was neglectful of Stallings and his siblings. Id. at 298. The “ ‘kids were
filthy from head to toe’ and half-starving most of the time.” Id. They relied on
friends for clothing. Id. Stallings did, however, have an aunt he was very close to,
who looked after him when she could. Id.
{¶ 326} The jail chaplain testified that Stallings had shown “ ‘a great deal
of remorse’ about what happened to Shephard and the fact that her son will be raised
without a mother.” Id., 89 Ohio St.3d at 298-299, 731 N.E.2d 159. He noted that
Stallings “participates in Bible study” and visits with clergy. Id. at 299. He
expressed the opinion that Stallings “would be able to lead a useful life in prison if
his life [was] spared.” Id.
{¶ 327} The investigating detective agreed that Stallings had cooperated
and admitted his involvement in the offense when he was questioned. Id. He
recounted that Stallings cried during his confession and said “he could not sleep

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and would ‘wake up in the middle of the night[,] reliving the incident and * * *
screaming.’ ” (Brackets and ellipsis sic.) Id.
{¶ 328} Childhood medical reports revealed that Stallings “suffered from
‘mild mental retardation’ and some ‘psychotic-like symptoms,’ ” and “described
him as ‘undersocialized, troubled and bewildered,’ and ‘inclined to fantasize.’ ” Id.
A psychologist testified that Stallings suffered from ADHD, had a below average
IQ, and tended to be a follower. Id. Stallings also had a history of “very severe
head injuries” and alcohol and drug abuse. Id.
{¶ 329} In an unsworn statement, Stallings expressed his remorse and
sorrow to Shephard’s family. Id., 89 Ohio St.3d at 299, 731 N.E.2d 159. He
expressed that he “ ‘never meant to kill’ ” her, and he asked the jury to spare his
life. Id.
{¶ 330} The court assigned Stallings’s “upbringing and difficult childhood”
and youth some weight in mitigation. Id. at 300. It gave modest weight to
Stallings’s mental condition, limited intellect (below average IQ), remorse,
adaptability to life in prison, and cooperation with police. Id. at 300-301. The court
found that the aggravating circumstances outweighed the combined mitigating
factors beyond a reasonable doubt and that the death sentence was appropriate. Id.
{¶ 331} The mitigation evidence presented in Spivey, Raglin, and Stallings
is similar to Graham’s mitigation. They all were young—between 18 and 20 years
old—when they committed their offenses. Each suffered from varying mental-
health issues. And all four men had had troubled childhoods. However, in this last
regard, Graham’s mitigation pales in comparison. He did not experience parental
rejection or physical and verbal abuse or suffer as a result of substance abuse by
the adults in his life. To the contrary, Graham’s mother cared for him and attempted
to get Graham the counseling help he needed. And he was provided the basic
necessities of life, did not live in squalor, was adequately fed, and remained in
school through the 11th grade, passing all his Ohio graduation test requirements.

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{¶ 332} In Spivey and Raglin, the offenders’ youth, history and background,
mental health, and, in Raglin’s case, other mitigating factors, did not overcome a
single R.C. 2929.04(A)(7) aggravating circumstance. Spivey, 81 Ohio St.3d at 429,
692 N.E.2d 151; Raglin, 83 Ohio St.3d at 274, 699 N.E.2d 482. And in Stallings,
the mitigating factors did not overcome two aggravating circumstances. Here, there
are three aggravating circumstances: Graham committed aggravated murder during
the course of an aggravated burglary, an aggravated robbery, and an aggravated
kidnapping. Therefore, Graham’s mitigation offers nothing that weighs more
heavily against the aggravating circumstances of his offense than was offered in
Raglin, Spivey, and Stallings.
{¶ 333} The majority contends that its position finds support in Johnson,
144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208. But the majority gives only
generalities about Johnson’s mitigation evidence. However, as seen above, details
matter.
{¶ 334} In Johnson, Rayshawn Johnson entered Shanon Marks’s home and
murdered her with a baseball bat in the course of committing burglary and robbery.
Id. at ¶ 3, 8. Johnson received a new mitigation hearing after the Sixth Circuit Court
of Appeals affirmed the granting of a writ of habeas corpus. Id. at ¶ 103-104. We
recognized our previous holding that the state had proved two aggravating
circumstances—aggravated robbery and aggravated burglary—beyond a
reasonable doubt. Id. at ¶ 101, citing State v. Johnson, 88 Ohio St.3d 95, 114, 723
N.E.2d. 1054 (2000). We found that the applicable mitigating factors were the
offender’s youth (age 19 at the time of the offense), history and background, mental
health, substance addiction, limited intellectual ability, remorse, adjustment to life
in prison, and transformation since the offense. Id. at ¶ 130-136.
{¶ 335} Johnson’s family life was truly dysfunctional. Marian Faulkner,
Johnson’s maternal grandmother, become pregnant with Johnson’s mother,
Demeatra Johnson, at 17. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45

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N.E.3d 208, at ¶ 108. Faulkner admitted that when she was raising Demeatra,
alcohol was her priority, not parenting. Id. at ¶ 109. She regularly went to bars and
drank so heavily that she passed out. Id.
{¶ 336} Demeatra began taking drugs by age nine and eventually
exchanged “sex for drug money, rides in cars, and a place to stay.” Id. at ¶ 110. At
age 16, she became pregnant with Johnson. Id. at ¶ 111. She reportedly continued
to consume drugs and alcohol while pregnant. Id.
{¶ 337} When Johnson was several months old, Demeatra moved with him
to North Carolina to live with his father. Id. at ¶ 112. They lived in a shack that
lacked electricity and water, and they did not always have food or diapers. Id.
“Demeatra regularly put Johnson in a closet if he cried, sometimes for an entire
day. She mashed up Percocet, Percodan, or heroin and put it in Johnson’s bottle or
applesauce so he would sleep. She also gave him beer.” Id. Once, Demeatra was
angry with Johnson’s father for beating her and Johnson, so she set the bed on fire
while Johnson’s father was in it. Id.
{¶ 338} Demeatra and Johnson eventually returned to Ohio. Johnson, 144
Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, at ¶ 113. Demeatra got pregnant
again and gave birth to another son; however, she continued to do drugs and neglect
the boys. Id. Faulkner cared for her two grandsons, but she resented having to do
so. Id. She eventually took formal custody of them. Id.
{¶ 339} Although Faulkner tried to be a good parent to her grandsons,
alcohol was still more important to her. Id. at ¶ 114. She always had alcohol with
her and “regularly experienced pounding headaches, hangovers, and blackouts, and
drove drunk.” Id. She stated that when she was hungover she would whip her
grandsons with a leather belt and an iron cord and hit them with a bat. Id. Faulkner
stopped drinking by the time Johnson was in middle school. Id.
{¶ 340} Demeatra was still involved in Johnson’s life. Johnson at ¶ 115.
When he was 12 or 13, “[s]he taught him how to drink, smoke marijuana, and cut,

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cook, and deal cocaine.” Id. Faulkner testified that by that point, Johnson was out
of control: “[h]e disobeyed, caused trouble at school, stole, drank, and ran away.”
Id. He was repeatedly in court for offenses like drug abuse and stealing money. Id.
{¶ 341} An expert described Johnson’s family as “very dysfunctional.” Id.,
144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, at ¶ 119. Demeatra,
Faulkner, and Johnson’s great-grandmother each had mental-health issues, abused
alcohol, and neglected and abused her children. Id. The expert “explained that this
familial dysfunction likely caused a series of problems for Johnson, contributing to
his mental-health problems and addiction.” Id. at ¶ 120. Johnson was not taught
the difference between right and wrong or how to make good choices, and he did
not witness positive social interactions. Id. Rather, he was taught how to sell drugs
and observed his mother exchanging sexual favors for drug money. Id.
{¶ 342} Johnson was diagnosed “with dependencies on alcohol and
marijuana and with dysthymia, a form of depression most often found in people
with dysfunctional family backgrounds.” Id. at ¶ 122. The expert opined that
Johnson’s efforts at treatment for addiction were likely unsuccessful because he did
not also receive treatment for his mental-health problems. Id. The expert described
Johnson’s use of alcohol and drugs around the time of Shanon’s death as
“excessive.” Id. at ¶ 123.
{¶ 343} Johnson had a low average IQ (83) and did not perform well in
school. Id. at ¶ 121. For a time, he took Ritalin for ADHD. Id. Johnson was
placed in a special class after the schools he attended identified him as
developmentally handicapped. Id.
{¶ 344} Testimony was also presented about Johnson’s life since his
conviction in 1998. Id. at ¶ 124. He had earned his GED and had held multiple
jobs while in prison. During his 14 years of incarceration he had received only two
incident reports, and neither of them had resulted in discipline. Id. He was also
involved in a prison ministry. Id. at ¶ 127.

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{¶ 345} Johnson’s teenage son testified about his deep love for his father
and their prison visits. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d
208, at ¶ 126. “He stated that Johnson counsels him to avoid drugs, stay in school,
keep out of trouble, and be godly.” Id. He expressed his desire to be able to
continue to talk to his father and asked the jury not to impose the death penalty,
saying, “ ‘That’s all I got left.’ ” Id.
{¶ 346} In Johnson’s unsworn statement, he “accepted full responsibility
for his actions and offered his ‘deepest and most sincere apology.’ ” Id. at ¶ 128.
“He explained that he had been a different man 14 years before, one who relied on
drugs and alcohol to escape reality. He had no father, only a drug-addicted mother
who encouraged him to use drugs and alcohol.” Id. Now, he said, he is sober, the
Lord is present in his life, and he is trying to be a father to his son and counsel him
against using drugs. Id. He expressed his belief that he could “mentor young men
with addictions and help them learn to change.” Id.
{¶ 347} Johnson stated that Shanon did not deserve to die and expressed his
wish that he could bring her back. Id. at ¶ 129. He said that he prayed nightly for
Shanon’s family and recognized that his apology is not enough. Id. “Johnson asked
for forgiveness and mercy and apologized again to both Shanon’s family and his
own.” Id.
{¶ 348} Johnson also expressed remorse near the time of Shanon’s murder.
After he was arrested, he admitted to Faulkner that he had murdered Shanon. He
cried, apologized, and said that he needed help because he is crazy. Id. at ¶ 116.
{¶ 349} The similarities between Graham and Johnson begin and end with
the fact that they were 19 at the time of their offenses and expressed remorse for
their actions—though Graham’s expression of remorse was focused more on his
own ability to learn from his mistakes than it was regret for what he had done. He
said, in his extremely brief unsworn statement: “First off, I would like to say my
heart goes out to the victim’s family. Um, I know they probably can’t forgive this,

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but mistakes do happen and people do learn from mistakes and I just hope the jury
will understand that and give me a chance to learn.”
{¶ 350} We noted in Johnson that Johnson’s dysfunctional upbringing
doomed him from the start. Id., 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d
208, at ¶ 137. The same cannot be said of Graham. Johnson’s evidence of mental
health and addiction issues is stronger. His intellectual ability was limited;
Graham’s is not. He suffered from a diagnosed mental illness; Graham does not.
Johnson’s mother trained him to be a criminal; Graham’s did not. Finally, as 14
years had passed since the offense, the court considered testimony that Johnson had
changed and had benefitted from being part of a structured prison environment.
{¶ 351} Johnson is no more on point than Spivey and Raglin are
distinguishable. The majority merely offers a comparison of categories of
mitigation, failing to discuss the substance of the mitigation offered by each
defendant. However, it is the substance that matters.

[E]vidence about the defendant’s background and character is
relevant because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems,
may be less culpable than defendants who have no such excuse.

Brown, 479 U.S. at 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (O’Connor, J., concurring).
This is why “the individual assessment of the appropriateness of the death penalty
is a moral inquiry into the culpability of the defendant, and not an emotional
response to the mitigating evidence.” Id.
{¶ 352} In this case, Nick had fully surrendered to Graham’s demands, was
sitting on the couch with his hands in the air, offering no resistance, and presenting
no threat when he was killed. Nick had done nothing to escalate the violence.

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Graham could have simply taken the money and marijuana and left. Instead, when
Nick said, “You’re not going to shoot me,” Graham pulled the trigger of his .380-
caliber High Point semiautomatic handgun and blew a hole in Nick’s chest, killing
him. Why? Because, as Graham put it to his coconspirators immediately
afterwards, “He thought sh[—] was sweet and I wasn’t playing.” In other words,
he murdered Nick because Nick doubted that Graham could be so inhumane as to
kill him for no reason. This was a cold-blooded, senseless murder that Dr. Swales
blames on Graham’s self-described addiction to Xanax. But Graham displayed a
disdain for human life for which no drug could be blamed.
{¶ 353} The aggravating circumstances are entitled to significant weight.
By way of counterbalance, our case law dictates that the mitigating factors are
entitled to nominal, little, weak, modest, or some weight, and the combined weight
of the mitigating factors does not come close to the great weight of the aggravating
circumstances in this case. The analysis offered by the majority in finding
otherwise is not persuasive. This is a watershed case, and in all future death-penalty
cases, we will be required to follow it with regard to the weight of mitigating
factors. If the majority wishes to change how this court weighs aggravating
circumstances and mitigating factors in death-penalty cases, then it should have the
courage to say that that is what it is doing, instead of insisting that it is merely
following precedent. The majority should fully develop its reasoning so that all of
Ohio—judges, lawyers, victims’ families, and would-be assailants—knows what is
happening here and what the majority’s holding means for the future. Without that
explanation, today’s result seems arbitrary.
{¶ 354} The majority fails to make the necessary moral inquiry today and
instead, gives an emotional response to unconvincing and unsubstantiated
testimony. This court has never overturned a death sentence in a case with so little
mitigation. An inquiry into Graham’s moral culpability exposes that the

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aggravating circumstances outweigh the cumulative effect of the mitigating
evidence beyond a reasonable doubt.
D. Proportionality
{¶ 355} As the United States Supreme Court has explained,
“proportionality” traditionally refers to “an abstract evaluation of the
appropriateness of a sentence for a particular crime.” Pulley v. Harris, 465 U.S.
37, 42-43, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). And that court “has occasionally
struck down punishments as inherently disproportionate, and therefore cruel and
unusual, when imposed for a particular crime or category of crime.” Id. at 43.
{¶ 356} Graham’s sentence is not disproportionate in this traditional sense.
It is well settled that it is constitutional to impose the death penalty for the
commission of a murder in the course of a robbery. McCleskey v. Kemp, 481 U.S.
279, 306, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Gregg v. Georgia, 428 U.S. 153,
187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (a death sentence is not invariably
disproportionate to the crime of deliberate murder); State v. Smith, 80 Ohio St.3d
89, 123, 684 N.E.2d 668 (1997) (“Imposing the death penalty in this case is neither
excessive nor disproportionate when compared with the penalty imposed in other
cases of felony-murder during an aggravated robbery”).
{¶ 357} The United States Supreme Court has recognized that the Eighth
Amendment to the United States Constitution does not compel state courts to
review death sentences to ensure that they are proportionate to the punishment
imposed on others convicted of the same crime. Pulley at 43. This court has
likewise rejected the argument that “proportionality review must encompass not
only cases where the death penalty was sought, but cases where it could have been,
but was not.” State v. Steffen, 31 Ohio St.3d 111, 122, 509 N.E.2d 383 (1987).
{¶ 358} Nonetheless, the General Assembly has provided for a form of
proportionality review. R.C. 2929.05(A) states that “[i]n determining whether the

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sentence of death is appropriate, * * * the supreme court shall consider whether the
sentence is excessive or disproportionate to the penalty imposed in similar cases.”
{¶ 359} In State v. Jenkins, our first case to apply the statute, we explained
that “R.C. 2929.05 does not require a comparison of sentences in non-capital
murder cases for proportionality review.” Id., 15 Ohio St.3d 164, 209, 473 N.E.2d
264 (1984). And in Steffen, we clarified that “only convictions of a capital crime
are relevant for comparison purposes,” id. at 123, because “a court cannot make a
meaningful proportionality review unless the pool of cases is restricted to those
which the reviewing court has itself decided,” id. “Comparison with cases not
passed upon by the reviewing court would be unrealistic since the reviewing court
could not possess the requisite familiarity with the particular circumstances of such
cases so essential to a determination of appropriateness.” Id.
{¶ 360} We have adhered to this interpretation of R.C. 2929.05(A) for
decades. And we have consistently rejected arguments that we should revisit that
interpretation. E.g., State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114
N.E.3d 1092, ¶ 249; State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89
N.E.3d 554, ¶ 183; Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034,
at ¶ 151.
{¶ 361} The doctrine of stare decisis is fundamental to the rule of law.
Wampler v. Higgins, 93 Ohio St.3d 111, 120, 752 N.E.2d 962 (2001). Adherence
to prior precedent “promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial process.” Payne,
501 U.S. at 827, 111 S.Ct. 2597, 115 L.Ed.2d 720. And stare decisis is most
compelling when precedent involves statutory construction; courts often justify
their “extraordinary reluctance to overturn statute-based precedents” by citing the
legislature’s prerogative “to correct erroneous interpretations of legislative intent.”
Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 6, 539 N.E.2d 103 (1989).

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{¶ 362} But rather than “correct” our interpretation of R.C. 2929.05(A), the
General Assembly has amended the statute twice since we construed it in Jenkins
and Steffen and retained the same language requiring the court to “consider whether
the sentence is excessive or disproportionate to the penalty imposed in similar
cases.” See Am.Sub.S.B. No. 1, 139 Ohio Laws, Part I, 1, 17; Am.Sub.S.B. No. 4,
146 Ohio Laws, Part IV, 7815, 7819; Sub.S.B. No. 107, 147 Ohio Laws, Part IV,
7435, 7436.
{¶ 363} We have long recognized that when the legislature amends a statute
and retains language that has been construed by this court, it is presumed to have
adopted our construction of the statute:

“Where a statute is construed by a court of last resort having
jurisdiction, and such statute is thereafter amended in certain
particulars, but remains unchanged so far as the same has been
construed and defined by the court, it will be presumed that the
Legislature was familiar with such interpretation at the time of such
amendment, and that such interpretation was intended to be adopted
by such amendment as a part of the law, unless express provision is
made for a different construction.”

State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 25,
quoting Spitzer v. Stillings, 109 Ohio St. 297, 142 N.E. 365 (1924), syllabus.
{¶ 364} In amending R.C. 2929.05(A), the General Assembly has not
abrogated our holding that the statutory proportionality review does not require a
comparison to sentences in noncapital murder cases. We are obligated to adhere to
that construction today.
{¶ 365} The concurring opinion asserts that “[p]roportionality review in
Ohio is woefully superficial and perfunctory” and that it fails “to comply with the

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plain language of R.C. 2929.05(A).” Concurring opinion, ¶ 219. However, we
have applied our interpretation of R.C. 2929.05(A) in reviewing the
appropriateness of death sentences in countless cases, and if a change in the statute
is to be made, it is up to the General Assembly to make it. Graham himself does
not advocate for a new interpretation of this court’s role in reviewing
proportionality under R.C. 2929.05(A) but rather contends only that “[a] death
sentence lacks proportionality when a trial court fails to review all other death
penalty specification indictments throughout the state of Ohio.” Yet even in
support of that argument, he points to no evidence in the record and no sentences
imposed in other cases supporting his claim that his death sentence is
disproportionate.
{¶ 366} The concurrence states that “[e]ven a cursory review of the most
recent appeals involving a fatal shooting during the course of a robbery shows that
the death penalty is not usually sought, let alone imposed, for this type of crime.”
Concurring opinion at ¶ 231. But whether to charge the accused with capital
specifications is a matter of prosecutorial discretion, and the concurrence makes
little allowance for a difference in the facts of each case.
{¶ 367} The first case cited by the concurrence, State v. Cannon, tells us
simply that “gunfire broke out in the apartment” during the robbery. Id., 9th Dist.
Lorain No. 19CA011536, 2020-Ohio-3765, ¶ 17. In State v. Rogenski, 7th Dist.
Columbiana No. 18 CO 0019, 2020-Ohio-1360, ¶ 15, and State v. Brown, 7th Dist.
Columbiana No. 18 CO 0025, 2019-Ohio-2717, ¶ 2, it was unknown whether the
defendant or a codefendant was the principal offender, while in State v. Snowden,
2d Dist. Montgomery No. 27948, 2019-Ohio-2840, ¶ 5, a codefendant had admitted
shooting the victim. State v. Riggins, 1st Dist. Hamilton No. C-180069, 2019-Ohio-
3254, ¶ 3, and State v. Walker, 2d Dist. Montgomery No. 28111, 2019-Ohio-3121,
¶ 18, were cases involving multiple shooters. The state relied on circumstantial
evidence in State v. Ocasio, 5th Dist. Licking No. 2019 CA 00013, 2019-Ohio-

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5396, and State v. Mondie, 8th Dist. Cuyahoga No. 108030, 2019-Ohio-5337, and
the evidence in State v. Johnson, 8th Dist. Cuyahoga No. 107427, 2019-Ohio-2913,
¶ 23, showed only that the accused aided and abetted the murder. And in State v.
Hale, 8th Dist. Cuyahoga No. 107646, 2019-Ohio-3276, the defendant had a
colorable claim of self-defense.
{¶ 368} My point is not to distinguish all of these cases from Graham’s but
rather to show that there may be numerous considerations that affect the
prosecutor’s charging decisions, many of which will not be apparent from an
appellate court’s opinion or even from the record. Considerations might include
the prosecutor’s evaluation of the evidence and witness credibility, the existence of
direct evidence of guilt, and the relative culpability of the accused and the existence
of mitigation factors that might weigh against seeking the death penalty. Judicial
opinions usually do not provide that information, especially when the sufficiency
of the evidence is not an issue. This is why this court concluded in Steffen that “a
court cannot make a meaningful proportionality review unless the pool of cases is
restricted to those which the reviewing court has itself decided.” Id., 31 Ohio St.3d
at 123, 509 N.E.2d 383. “Comparison with cases not passed upon by the reviewing
court would be unrealistic since the reviewing court could not possess the requisite
familiarity with the particular circumstances of such cases so essential to a
determination of appropriateness.” Id.
{¶ 369} The same flaw undermines the concurrence’s assertion that there is
a disproportionate number of death sentences in cases involving black defendants
and white victims. How are we to know the race of the accused and the victim
without examining the record in each comparable case? How does this court have
the capacity to compare objectively the sentences imposed in all cases involving
murders committed during the course of a robbery? How can this court fairly
decide which offender was appropriately charged with capital specifications and
which was not?

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{¶ 370} The concurring opinion does not answer these questions and
instead simply concludes: “The death penalty must be reserved for only the worst
among murder offenses. * * * The murder in this case was cold, heartless, and
senseless, but it is not the kind of murder offense for which the death penalty is
appropriate.” Concurring opinion at ¶ 233.
{¶ 371} The United States Supreme Court has held that “[c]apital
punishment must be limited to those offenders who commit ‘a narrow category of
the most serious crimes’ and whose extreme culpability makes them ‘the most
deserving of execution.’ ” Roper, 543 U.S. at 568, 125 S.Ct. 1183, 161 L.Ed.2d 1,
quoting Atkins v. Virginia, 536 U.S. 304, 319, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002). But the General Assembly has established the system for determining when
offenders are the worst of the worst by setting forth the crimes that merit capital
punishment and by requiring the weighing of aggravating circumstances and
mitigating factors. The concurring opinion takes issue with the policy choices that
the General Assembly has made. But absent a showing that Ohio’s death-penalty
statutes are unconstitutional, this court lacks authority to second-guess the
legislature’s public-policy decisions, and it should not do so in the guise of a
proportionality review.
{¶ 372} Applying R.C. 2929.05(A) as we have for decades allows us to
decide the issue whether Graham’s sentence is proportional to his crimes. This
court has affirmed death sentences imposed on other defendants who were 19 years
old when they committed murder and who were found guilty of a robbery-murder
aggravating circumstance. State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903,
114 N.E.3d 1138; State v. McNeill, 83 Ohio St.3d 438, 700 N.E.2d 596 (1998);
State v. Woodard, 68 Ohio St.3d 70, 623 N.E.2d 75 (1993). The death sentence
imposed in this case is therefore not disproportionate to sentences imposed in
similar cases.

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{¶ 373} For these reasons, I concur in judgment only in part and dissent in
part.
DEWINE, J., concurs in the foregoing opinion except for paragraphs 246-
257 and 263.
_________________
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J.
Holder, Assistant Prosecuting Attorney, for appellee.
Donald Hicks; and the Law Office of Donald Gallick, L.L.C., and Donald
Gallick, for appellant.
_________________

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