State v. Elliott , 2024 Ohio 3376 ( 2024 )

[Cite as State v. Elliott, 2024-Ohio-3376.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 22AP-532
v. : (C.P.C. No. 20CR-1717)
William A. Elliott, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 3, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Taylor M. Mick, for appellee. Argued: Taylor M. Mick.
On brief: Carpenter Lipp LLP, Kort Gatterdam, and Erik P.
Henry, for appellant. Argued: Kort Gatterdam.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, William A. Elliott, appeals a judgment of the Franklin
County Court of Common Pleas that convicted and sentenced Elliott for aggravated murder,
aggravated burglary, kidnapping, and tampering with evidence. For the following reasons,
we affirm that judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} At 23 years old, Maria Best died from 44 knife wounds while lying on her
bedroom floor. Before her death, Best struggled with both developmental disabilities and
bipolar disorder. According to her mother, Best had presented two different versions of
herself. She was often complacent and “kind of shut down and just agree[d] to everything
you said.” (June 15, 2022 Tr. Vol. V at 413.) Alternatively, Best could become agitated and
unresponsive to logic.
No. 22AP-532 2
{¶ 3} Best’s mother explained that “making friends, having friends, dating, finding
somebody that she could bond with” was very important to Best. Id. at 412. Best “always
treated people as if they had good intentions,” and she was generous and giving with her
friends. Id. at 411. Best met Michael Bledsoe, her first and only boyfriend, in a homeless
shelter. Best’s mother described Bledsoe as “somebody who also struggles just to exist.” Id.
at 416. Best’s mother stated that neither Best nor Bledsoe “had the skill set to really navigate
a relationship all that well. And their approach to it was basically to be completely
inseparable. But they both struggled for certain things, like resources, money, housing,
food. And so the two of them together, they were kind of like fish trapped in a bowl that’s
too small.” Id. at 414.
{¶ 4} Best could not retain a job because she lacked basic skills like counting
money. However, Best received Social Security Disability Income because of her mental
disability. This income allowed Best independence, but Best encountered difficulties living
independently from her family because, as her mother explained, “in general, she didn’t
have the ability to gauge her environment. She had no real understanding of danger.” Id.
at 418.
{¶ 5} With the assistance of a non-profit organization, Best rented and moved into
apartment C at 1422 Phale D. Hale Drive in early March 2020. Best allowed her boyfriend,
Bledsoe, as well as two friends, Elliott and his girlfriend, Crystal Adams, to stay at her new
apartment. Best and her roommates soon met and befriended their next-door neighbor,
Jeremy Tracy, who lived in apartment B.
A. The Events of March 11, 2020
{¶ 6} On the evening of March 11, 2020, Tracy drove Best, Bledsoe, Elliott, and
Adams to Clean Rite Center, a laundromat in Whitehall. Best laundered her clothes but did
not fold them. Elliott became angry over Best’s failure to fold her clothes, and he and Best
began arguing. While waiting for the others to finish their laundry, Best and Elliott
returned to Tracy’s car. Best and Elliott continued their argument as they sat in the car,
with Best in the backseat and Elliott in the driver’s seat. A video recording of the
laundromat parking lot shows Elliott exit the car, walk to the rear passenger side door, open
it, reach in the passenger compartment, and yank at something or someone. The recording
then jumps ahead by a minute, preventing the viewer from seeing what happened next.
No. 22AP-532 3
But, as Best later explained to police officers, Elliott “pulled [her] out of the car by [her] hair
and [her] arms and threw [her] to the ground.” (Pl.’s Ex. H2, Officer Schwartz Body-worn
camera.)
{¶ 7} By the time police responded to a disturbance call at the laundromat, Elliott
had left on foot. After unsuccessfully trying to find Elliott at the laundromat, Officer Luke
Schwartz, a Whitehall police officer, spoke to Elliott by cellphone. Officer Schwartz asked
Elliott to return to the laundromat so Officer Schwartz could talk to him about what had
just happened. Elliott agreed to come back to the laundromat and said he would arrive in
about five minutes. Elliott never reappeared at the laundromat.
{¶ 8} Best told Officer Schwartz that she wanted to file charges against Elliott.
However, Best later changed her mind, telling Officer Schwartz that she “just would like to
go home and forget about it.” Id. Officer Schwartz then spoke with Elliott by cellphone
again and informed him that Best was not pursuing charges. Elliott denied assaulting Best.
Officer Schwartz warned Elliott that, “if you did it, you gotta knock that s*** off.” Id.
{¶ 9} Tracy, Best, Bledsoe, and Adams left the laundromat in Tracy’s car. Tracy
stopped two or three minutes from the laundromat to pick up Elliott. The group then
returned to 1422 Phale D. Hale Drive.
{¶ 10} Back at apartment C, Best went into the bedroom. Elliott told the others that
he had to use the bathroom, which could only be accessed through the bedroom. After
Elliott went into the bedroom, Bledsoe heard “[a] thump, like * * * a very loud noise,” and
the “next thing [he] kn[e]w there was a hole in the wall.” (June 16, 2022 Tr. Vol. VI at 856.)
In a later conversation with police, Best confirmed that Elliott had “shoved [her] into the
wall in [her] bedroom.” (Pl.’s Ex. B, Officer Wolfe body-worn camera.) Best sustained a
bruise on the left side of her forehead from hitting the wall. Photographs of Best’s bedroom
wall show cracks and gaps in the drywall creating a round depression underneath the
window.
B. The Events of March 12 and 13, 2020
{¶ 11} The next day, March 12, 2020, Tracy joined the four roommates for dinner
in apartment C. According to Tracy, Elliott became angry that Best was not eating the
dinner Adams had cooked.
No. 22AP-532 4
{¶ 12} Later that night, Tracy, Elliott, and Bledsoe traveled to West Broad Street to
pick up Elliott’s friend, Nicole White, and bring her back to 1422 Phale D. Hale Drive.
Elliott explained to White that he was aggravated with Best, and he wanted White to talk
with Best about “[h]ygiene and folding her clothes and making a room presentable for
people to walk through.” (June 21, 2022 Tr. Vol. VII at 1064.) According to White, hygiene
and order mattered to Elliott “[b]ecause [he] has OCD, everything has a place and
somewhere to go. And if it doesn’t, then it doesn’t belong there.” Id.
{¶ 13} When White told Best she needed to straighten her belongings, Best initially
complied. White helped Best fold her clothes and put them away in her dresser. While they
worked, White allowed Best to listen to music on White’s cellphone. According to White,
Elliott and Adams had taken Best’s two cellphones away from her due to the ongoing
argument between Elliott and Best. Tracy and Bledsoe also recalled that Elliott had
confiscated Best’s cellphones and had them in his possession on the night of March 12.
{¶ 14} Eventually, Best became frustrated with cleaning up her bedroom. She
wanted her cellphones back and everyone out of her apartment. Best left the apartment
and began walking toward Ohio State East Hospital (“OSU Hospital”). Elliott and White
followed Best on foot. While walking behind Best, Elliott called 911 on a cellphone and told
the 911 operator that his roommate, who he was following, had tried to commit suicide.
Elliott said that his roommate had tried to cut herself, but he had taken the knife from her.
He explained that he was following his roommate so she did not hurt herself by running
into traffic. The 911 operator told Elliott the police would respond.
{¶ 15} Columbus police officers located Best near OSU Hospital. Best immediately
asked the officers “to get these people out of my house.” (Pl.’s Ex. B, Officer Wolfe body-
worn camera.) In response to Officer Trevor Wolfe’s questions about her reported suicide
attempt, Best denied trying to hurt herself, and she showed the officers that she had no cuts
on her wrists. Best told the officers that her roommates had claimed she was suicidal
because they wanted to keep staying at her apartment. Best recounted how Elliott assaulted
her at the laundromat and how he later shoved her into her bedroom wall. She showed the
officers the bruise on her forehead. Best said that she was trying to get to her mother’s
house. She explained that the people in her apartment had taken her cellphones from her
and would not give them back. When the officers asked Best what they could do for her,
No. 22AP-532 5
Best requested the officers get the people out of her apartment and make them return her
cellphones. Best acknowledged that she was not supposed to permit anyone else to live in
her apartment, but she had allowed Elliott and the others to stay because they were like
family to her.
{¶ 16} The police officers transported Best back to 1422 Phale D. Hale Drive. At
apartment C, the police officers announced that Bledsoe, Elliott, and Adams would have to
pack their belongings and leave. Elliott became agitated and argued with the officers.
When the officers insisted that he had to move out, Elliott grabbed his jacket and walked
off. The officers then turned to Bledsoe and Adams and told them to gather their and
Elliott’s belongings. Best asked for her cellphones, and Adams threw them on the kitchen
table.
{¶ 17} As Bledsoe, Adams, and White packed, Best unsuccessfully tried to contact
her mother. Bledsoe, Adams, and White moved all the packed possessions onto the porch
outside apartment C.
{¶ 18} After Bledsoe and Adams finished moving out, Best requested that Officer
Wolfe file a report regarding the assault that occurred on March 11 when Elliott “forced
[her] into the wall” and “was beating on [her].” (Pl.’s Ex. B, Officer Wolfe body-worn
camera.) Best told Officer Wolfe that Elliott assaulted her because “he had told [her] to do
something and [she] wasn’t doing it cause they been bossing [her] around and telling [her]
what to do in [her] own house.” Id. Officer Wolfe took the report and gave Best a business
card with a report number written on it.
{¶ 19} Officer Wolfe then asked Best if she would be okay that night. Best answered
that she would, if the police removed Elliott and the others from the area. Officer Wolfe
responded that the police could not do that, and he told Best to lock her door and not go
outside.
{¶ 20} When Officer Wolfe left apartment C, Bledsoe, Adams, and White were
standing on the porch outside of apartment C talking. Officer Wolfe told the trio not to
contact Best. Adams said that they were just waiting for Tracy to return to his apartment.
{¶ 21} Upon Tracy’s arrival back at 1422 Phale D. Hale Drive, he learned what had
just transpired. Tracy agreed that Bledsoe, Adams, and Elliott could store their belongings
No. 22AP-532 6
and stay at his apartment for a couple of days. Tracy, Bledsoe, Adams, and White moved
everything from the porch into Tracy’s apartment.
{¶ 22} Elliott then called Adams looking for a ride. Tracy agreed to pick Elliott up,
and White went along as a passenger. When Tracy and White found Elliott, he was angry
because he and Adams had nowhere else to live. According to White, during the car ride
back to 1422 Phale D. Hale Drive, Elliott said “[t]hat we have to get rid of [Best].” (June 21,
2022 Tr. Vol. VII at 1073.) Tracy remembers Elliott saying that “he would take care of it”
and “I’m going to kill her.” (June 16, 2022 Tr. Vol. VI at 713.) See also id. at 760-61 (“At
first [Elliott] said if [the situation] didn’t get handled that he was going to take care of it.
And then I believe something was said that made him even more upset, * * * which made
him say that he was going to kill her.”).
{¶ 23} Tracy and White agree that when Tracy, White, and Elliott returned to Tracy’s
apartment, the former roommates called Best and spoke to her by speaker. However, Tracy
and White recall the phone conversation somewhat differently. According to Tracy, Elliott
asked Best if she would drop the charges, and Best refused. Elliott got angry and said,
“Okay, I’m going to handle it.” Id. at 716. Adams then asked Best to drop the charges, and
when Best again refused, Adams hung up. Elliott told Adams that she had 20 minutes to
talk Best into dropping the charges. After 20 minutes, Elliott said again that he was going
to handle it and asked Tracy for a screwdriver. Bledsoe asked Tracy for plastic gloves. Tracy
gave Bledsoe the gloves, told Elliott where to look for a screwdriver, and went to bed.
{¶ 24} According to White’s version of the cellphone call, Bledsoe tried to convince
Best to allow them all to return to apartment C. Best told Bledsoe that he could come back,
but the others could not. Elliott became angry when he heard that, and he and Bledsoe
argued with Best for several minutes. White told them to stop arguing with Best; she was
not going to let them into her apartment. White said that “if they [were] going to go do
what they need[ed] to do[,] then they need[ed] to go do it.” (June 21, 2022 Tr. Vol. VII at
1075.) At that point, Elliott grabbed a screwdriver and plastic gloves, Bledsoe grabbed
plastic gloves, and they both headed to Best’s apartment.
C. Elliott and White Assault Best in her Apartment
{¶ 25} In Bledsoe’s retelling of the events in apartment C, he, Elliott, and White
entered Best’s apartment by force because Best tried to barricade the door. Elliott first
No. 22AP-532 7
punched Best in the face and gave her a bloody nose. Elliott then told Best “to slit her own
neck or he would do it for her.” (June 16, 2022 Tr. Vol. VI at 871.) When Best did not do
as Elliott told her, Elliott tried to slit Best’s neck himself. Because Best was struggling to
get away, White put her foot on Best’s head to hold her in place. Bledsoe saw Elliott stab
Best in the kneecap, legs, and head, and finally, slit Best’s throat.
{¶ 26} After the initial assault on Best, Elliott told Bledsoe to get Adams from
apartment B. Bledsoe and Adams returned together to apartment C. They saw Elliott
punch Best twice. Adams said she could not be there and left. According to Bledsoe, after
that, Elliott continued to stab Best.
{¶ 27} The stress of seeing the attack on Best caused Bledsoe to start seizing. White
walked him back to apartment B, where he laid down in front of the air conditioner unit
and fell asleep. Later, he woke up when Elliott and White returned to apartment B. He
heard Elliott tell Adams that “the job [was] done.” Id. at 880. Bledsoe fell asleep once
more. He awoke when the police arrived, and he saw Elliott and White flee out the bedroom
window of apartment B.
{¶ 28} According to White, after the cellphone call with Best, only Elliott and
Bledsoe went to Best’s apartment. She and Adams stayed in apartment B until Bledsoe
returned to get them. When White and Adams arrived at apartment C, Best was lying on
the kitchen floor and Elliott was sitting in a chair in front of her. Elliott was yelling at Best
that “it would have just been easier to just to let him come back.” (June 21, 2022 Tr. Vol.
VII at 1077.) White handed Elliott a knife that had been lying on the kitchen counter. Elliott
put the knife in front of Best and told her to kill herself or he was going to kill her. Best said
that she was not going to kill herself. Elliott then pulled Best’s head up by her hair and cut
her throat. At this point, Adams left the apartment.
{¶ 29} White went to the bathroom. When she came back to the kitchen, Elliott
and Bledsoe were telling Best that “it would have just been easier to let them come back;
they wouldn’t have had to go through all of this.” Id. at 1080. A car passed by the apartment
and Best started to yell. In response, Elliott cut Best’s throat again and stabbed her in the
chest two or three times. Bledsoe started shaking, announced he was going to have a
seizure, and left Best’s apartment to lie down in apartment B. Shortly after that, White also
left for apartment B to get cigarettes and a phone charger.
No. 22AP-532 8
{¶ 30} When White returned to apartment C, she started looking for rags and
cleaning supplies to clean up the blood. Elliott was aggravated because Best was not dying
quickly enough. He kept drinking and yelling at White about Best’s failure to die, asking
White if Best was possessed.
{¶ 31} Elliott then visited apartment B for about a half hour. While he was gone,
Best asked White if she was sorry for what she and Elliott were doing. White told her no,
and to shut up and stop talking. Best attempted to crawl toward the front door, so White
kicked her in the head multiple times.
{¶ 32} When Elliott returned to apartment C, he stabbed Best in her back, buttocks,
and leg. He also stabbed her in the back of her head and the top of her head, which caused
the knife to bend. In total, White saw Elliott slit Best’s throat three times and stab her
several times.
{¶ 33} White began cleaning the blood on the floor, walls, and cabinets of the
kitchen. Elliott asked White “to hand him something that he could put inside of [Best].”
(June 21, 2022 Tr. Vol. VII at 1089.) White handed Elliott a spaghetti ladle and continued
cleaning. She did not watch Elliott use the spaghetti ladle. Elliott later handed the spaghetti
ladle back to White, and White washed it off.
{¶ 34} Around 5:00 or 5:30 a.m., Bledsoe messaged White to warn her that people
were starting to go to work, so she and Elliott needed to leave apartment C. White alerted
Elliott. She got a garbage bag and put into it bloody rags, the plastic gloves she had been
wearing, Best’s bloody clothes, and cigarette butts. White left apartment C out of the
bedroom window. When she left, Best was lying on the living room floor. Best was alive
because White saw her blink her eyes.
{¶ 35} After leaving apartment C, White went to apartment B and changed her
clothes. Elliott arrived at apartment B approximately 20 to 30 minutes later. Elliott told
White that he exited apartment C through the bedroom window, just like White had. He
also said to White that “we have to finish it tomorrow.” Id. at 1097. White understood this
to mean that they would have to get rid of Best’s body and finish cleaning apartment C the
next day.
{¶ 36} Elliott fell asleep on the couch. White remained awake, and she began talking
with Adams. Tracy woke up and left the apartment. After a while, White and Adams went
No. 22AP-532 9
outside to smoke cigarettes. White noticed a bloody glove on the ground outside of Best’s
apartment. She picked it up and put it in her pocket. A police officer pulled up in a cruiser
and told White and Adams he was there to do a wellness check. When White and Adams
told him they were fine, the officer left. White and Adams went back inside apartment B.
Soon thereafter, White and Adams heard the police outside again. They awoke Elliott, and
White and Elliott escaped out the bedroom window of apartment B.
D. Tracy’s Version of Events
{¶ 37} Although Tracy did not see or participate in the violence in apartment C, he
was not totally ignorant about it. Sometime before dawn on March 13, he woke up to walk
his dog. While Tracy was searching for his dog’s leash in his living room, Elliott appeared
at the front door of apartment B. Elliott had “a bloody knife and bloody gloves on,” and he
asked Tracy where Bledsoe was. (June 16, 2022 Tr. Vol. VI at 766.) When Tracy said that
he did not know, Elliott left. Tracy went back to his bedroom.
{¶ 38} Very early the next morning, Tracy was outside of the apartment building
walking his dog when Elliott exited apartment C. After Tracy returned to his apartment,
Tracy heard Elliott and White enter the apartment and White say that she needed to change
her clothes and shoes. White also said that she “[did]n’t think [she] could ever sleep again.”
Id. at 774.
{¶ 39} Tracy then drove his brother to a morning appointment. While driving back
to 1422 Phale D. Hale Drive, the brothers discussed what Tracy had seen and heard the
previous night and that morning. They decided that Tracy’s brother would assess the
situation by looking through Best’s bedroom window. Upon seeing Best’s half-dressed
corpse lying on the bedroom floor, Tracy’s brother told Tracy to call 911. Tracy’s 911 call
prompted the police response that caused Elliott and White to flee.
E. The Charges and White’s Plea
{¶ 40} The Columbus police arrested Elliott and White in relation to Best’s murder.
Elliott was indicted for: (1) aggravated burglary, a first degree felony in violation of R.C.
2911.11, (2) kidnapping, a first degree felony in violation of R.C. 2905.01, (3) aggravated
murder, an unspecified felony in violation of R.C. 2903.01(A), (4) aggravated murder, an
unspecified felony in violation of R.C. 2903.01(B), (5) murder, an unspecified felony in
violation of R.C. 2903.02(A), (6) murder, an unspecified felony in violation of R.C.
No. 22AP-532 10
2903.02(B), and (7) tampering with evidence, a third degree felony in violation of R.C.
2921.12. All counts other than the last count included a repeat violent offender (“RVO”)
specification pursuant to R.C. 2941.149(A). White was indicted for the same offenses, but
her indictment did not include any RVO specifications.
{¶ 41} Prior to Elliott’s trial, White agreed to plead guilty and testify truthfully
against Elliott. White agreed to enter a guilty plea to Count 1, aggravated burglary; Count
2, kidnapping; a lesser-included offense of Count 6, involuntary manslaughter; and Count
7, tampering with evidence. The state of Ohio agreed to recommend the trial court enter a
nolle prosequi for Count 3, aggravated murder; Count 4, aggravated murder; and Count 5,
murder. The state also agreed to recommend the trial court sentence White to an indefinite
sentence of 20 to 25.5 years’ imprisonment.
F. Trial Testimony and Evidence
{¶ 42} At Elliott’s trial, White, Bledsoe, and Tracy testified to the facts set forth
above. The trial court admitted into evidence video recordings from Clean Rite Center from
the night of March 11, the body-worn camera of Officer Schwartz from the night of March 11,
and the body-worn camera of Officer Wolfe from the night of March 12. The trial court also
admitted the audio recordings of Elliott’s and Tracy’s 911 calls.
{¶ 43} Additionally, the trial evidence included video recordings the Columbus
police collected from a surveillance camera located at OSU Hospital that captured the front
doors of the apartments at 1422 Phale D. Hale Drive. Due to the distance between the
camera and 1422 Phale D. Hale Drive, the recordings could not provide enough detail to
allow the viewer to discern the identities of the individuals shown on the recordings.
However, the recordings showed that at 3:15 a.m. on March 13, two individuals exited
apartment B and entered apartment C. Approximately 15 minutes later, at 3:32 a.m., three
individuals left apartment B and went into apartment C. At 5:22 a.m., someone wearing a
light-colored t-shirt left apartment C and walked into the backyard of 1422 Phale D. Hale
Drive. Approximately five minutes later, at 5:27 a.m., someone wearing a light-colored t-
shirt appeared from between the two houses immediately to the west of 1422 Phale D. Hale
Drive, walked east down Phale D. Hale Drive, and entered apartment C. At approximately
6:44 a.m., an individual wearing dark clothes walked east down Phale D. Hale Drive and
No. 22AP-532 11
entered apartment B. Finally, at approximately 7:05 a.m., an individual wearing a light-
colored t-shirt walked east down Phale D. Hale Drive and entered apartment B.
{¶ 44} In addition to the recordings, Kari Gee, who was working as a medical
laboratory scientist at OSU Hospital on March 13, testified. Gee took a cigarette break at
4:30 a.m. at a location where she could see the front doors of apartments B and C. She saw
a black male exit apartment C, go into apartment B for approximately 30 seconds to one
minute, and then reenter apartment C. Approximately 30 seconds after Gee saw the black
male reenter apartment C, she heard a woman screaming for “30 to 45 seconds, starting
and stopping as she caught her breath.” (Juen 16, 2022 Tr. Vol. VI at 673.) According to
Gee, the black male she saw was wearing coveralls and possibly a black beanie.
{¶ 45} The state also introduced physical evidence from the crime scene. The
Columbus Police Department’s crime scene search unit processed apartments B and C, as
well as the surrounding area. In a trash can in the backyard of 1422 Phale D. Hale Drive,
the crime scene search unit officers discovered a paring knife covered in blood. The knife
blade was slightly bent. White identified this knife as the knife Elliott used to stab Best.
DNA analysis of the blood on the knife blade found DNA consistent with Best.
{¶ 46} In a different trash can in the backyard of 1422 Phale D. Hale Drive, the crime
scene search unit officers found a plastic glove. That glove was identical to other gloves
contained in a box of gloves located in apartment B. DNA analysis of a swab from the
outside of that glove detected a DNA mixture consistent with Best and Elliott.
G. The Testimony of Dr. Daniels, Deputy Coroner
{¶ 47} Finally, the state called as a witness Dr. John A. Daniels, a deputy coroner for
the Franklin County Coroner’s Office, who conducted the autopsy of Best. Dr. Daniels
determined that Best’s cause of death was “[m]ultiple sharp force injuries of the head, neck,
chest and abdomen.” (June 21, 2022 Tr. Vol. VI at 803.) Best sustained 44 sharp force
injuries, but four of those wounds were more serious than the others. The first of these
serious wounds was to the left side of Best’s upper chest. This wound occurred when a
cutting instrument passed through Best’s ribs and entered the main pulmonary artery. Dr.
Daniels estimated that Best could have died from this wound in two minutes or less.
{¶ 48} Best also sustained potentially lethal wounds to her central chest and her left
anterior chest through her upper left breast. In the case of the wound to Best’s central chest,
No. 22AP-532 12
the cutting instrument entered the left pleural cavity. In the case of the wound to Best’s
anterior chest, the cutting instrument penetrated the upper lobe of Best’s left lung.
{¶ 49} Finally, Best received a potentially lethal wound on the left side of her chest.
There, the cutting instrument entered the left lobe of Best’s liver. However, because the
wound did not bleed much, Dr. Daniels opined that Best had already sustained significant
blood loss before sustaining this wound.
{¶ 50} Best also had five cut wounds stretching across her neck that penetrated to a
depth of one-quarter inch. Dr. Daniels explained that, due to the shallowness of these cuts,
they did not interfere with Best’s ability to breathe or sever any arteries, although they bled
profusely and caused Best significant pain. Best also had several bruises, which Dr. Daniels
found consistent with a prolonged death.
{¶ 51} Dr. Daniels also testified as follows:
Q: Okay. Based on your findings, are you able to make a
determination as to whether or not the wounds here were
caused by more than one person?
A: No.
Q: Why not?
A: There’s nothing necessarily specific about any of these
wounds that would identify a particular individual as having
caused them. So I can point to any one of these stab wounds
and I would not be able to say if one of them was caused by one
individual or another -- another one was caused by a different
individual. They’re all stab wounds, they result in the use of a
sharp force instrument, and that’s as far as I can go.
Q: Have you ever heard of the phrase, “Death by a thousand
cuts?[”]
A: Yes, I have.
Q: Does that apply possibly in this situation?
A: It can, because all of these wounds are actively bleeding
when they’ve been sustained. You know, individually or in
small groups, these wounds may not be lethal, but if you have
enough superficial wounds, the amount of blood loss occurring
can be significant.
No. 22AP-532 13
(June 16, 2022 Tr. Vol. VI at 821-22.)
{¶ 52} On cross-examination, Elliott’s attorney initially focused on the depth of
some of the deeper stab wounds Best sustained and the length a knife blade would have to
be to cause wounds of that depth. Elliott’s attorney and Dr. Daniels engaged in the
following colloquy:
Q: You said the depth of some of these stab wounds reached as
far as six-and-a-half inches deep?
A: Yes.
Q: Five-and-a-half inches deep?
A: Yes.
Q: What kind of blade would cause that type of depth of
penetration?
A: Well, a knife blade.
Q: Okay.
A: You have to keep in mind that the body’s surface is flexible.
Q: Okay.
A: So the depth of a knife wound can actually be slightly -- a
small amount longer than the actual blade length itself.
Q: Okay. So what would you expect, though, in terms of the --
would you expect a certain blade length or maybe not at all? In
other words, could I take a blade that was two inches and
penetrate five-and-a-half?
A: I would say no.
Q: Three inches, five-and-a-half?
A: Four inches, four-and-a-half inches, five inches might do it.
***
No. 22AP-532 14
Q: So if I had a blade that was, say, a half inch, could I have
created a stab wound where the length of the wound from the
subject is an inch-and-a-half? Are you saying I can pull it in
and go like that?
A: Well, I’m not familiar with a study where they might say a
blade of a given length to how much more you can penetrate
the body depending on amount of force used.
Q: Okay.
A: It is a recognized part of forensic pathology, however, that
you can have a stab wound that is deeper than the actual
measured length of the blade.
Obviously, there’s a realm of possibility there and a realm of
impossibility there. I don’t think, in general, a two-inch blade
in the chest where you have firm ribs could make a five-inch
depth. But I cannot tell you exactly how long a blade would
have to be to create a five-inch depth wound.
Q: Let me ask you this, Doctor. I mean, you’ve been doing this
for -- you said since 1984?
A: 1986.
Q: 1986. Does all of these injuries seem to you, in your
opinion, come from the same weapon?
A: I think it’s consistent with the same weapon. However, if
we have two similar knives, I could not distinguish between
them.
Q: Okay. So one weapon could have caused each and every one
of the wounds that you see?
A: There’s nothing about any of these wounds that would make
me think it wouldn’t -- it couldn’t be one weapon.
Q: And I think you indicated that the blade probably just -- it
makes sense that if I have some small wounds, I can take a big
blade and just stab a little bit like that, right?
A: Yes.
Q: But I need at least four inches to go that depth.
No. 22AP-532 15
A: That would be an estimate.
Id. at 833-36.
{¶ 53} On redirect, Dr. Daniels reconfirmed that an assailant could “make a wound
track that is deeper than the actual blade length” by pushing hard on the flexible surfaces
of the body. Id. at 841. On recross-examination, Elliott’s counsel handed Dr. Daniels Ex.
EE1, the knife White identified as the weapon Elliott used. Elliott’s counsel asked if Dr.
Daniels saw the length of the blade. Dr. Daniels answered, “Yes.” Id. at 845. Elliott’s
counsel then asked Dr. Daniels if the handle of a knife that size would leave bruising if such
a knife was used to penetrate five- and one-half inches. Dr. Daniels answered, “It can. It
depends how much force was applied.” Id. Elliott’s counsel asked no further questions.
{¶ 54} The jury returned a verdict finding Elliott guilty on all counts. The trial court
subsequently found that the Elliott was a repeat violent offender.
H. Dr. Daniels’ Post-Trial Email and Elliott’s Motion for a New Trial
{¶ 55} The day before the sentencing hearing, the state provided Elliott’s counsel
with an email that the prosecutor had received from Dr. Daniels after the trial had ended.
The email read:
I was just wondering how the Maria Best trial was decided. The
presentation of the knife at trial was a bit of a surprise for me.
I’m sure that there was a second knife that may not have been
kept as evidence. Just a suggestion for similar future cases, it
would be useful to show a photo of the knife in question to the
pathologist beforehand. That could avoid such ‘demonstrations’
in court.
(Court Ex. 1.)
{¶ 56} At the commencement of the sentencing hearing, Elliott’s counsel orally
moved for a new trial based on the email. In support of this motion, Elliott’s counsel
argued:
So, Judge, as part of my case in chief, our defense [was] there
were allegations that we felt there were at least two knives used
and that the testimony of the key witness in this case, Nikki
White, could have been attacked in terms of credibility because
of her testimony as to one knife. And the problem is that the
coroner is * * * sure that there was a second knife * * *.
No. 22AP-532 16
And, Judge, I think that that’s very important because * * * the
weapon that was used that was determined to be the weapon
that caused the major damage in this case had to penetrate the
victim at a five and a half, six and a half or seven inch into the
heart. * * * [A]nd I wanted the coroner to say that that knife
that they had, that the key witness, Nikki, said my client had[,]
wasn’t the murder weapon. But he * * * left [the jury] in doubt
as to that, saying it was possible, et cetera, et cetera, when all
the while he knew that there was a second knife with a longer
blade. * * *
So with that being in mind, Judge, I don’t think that Mr. Elliott
could get a fair trial with that type of doubt lingering and the
jury deciding the case based on that.
(Aug. 9, 2022 Tr. Vol. XI at 5-6.)
{¶ 57} The trial court denied the defense motion for a new trial, finding “the fact
there may have been a second knife involved really doesn’t change the result that the jurors
reached.” Id. at 8.
I. Sentence
{¶ 58} The trial court then turned to sentencing Elliott. The trial court merged
Counts 3, 4, 5, and 6 for sentencing, and the state elected to have the trial court sentence
Elliott on Count 3. The trial court sentenced Elliott to: (1) 11 to 16.5 years imprisonment
as to Count 1, plus a mandatory consecutive five-year term as to the RVO specification; (2)
11 years imprisonment as to Count 2, plus a mandatory consecutive five-year term as to the
RVO specification; (3) life imprisonment, without the possibility of parole, as to Count 3,
plus a mandatory consecutive five-year term as to the RVO specification; and (4) three years
imprisonment as to Count 7. The trial court ordered that Elliott serve Counts 1, 2, and 3
consecutively, for a total of a life sentence, plus 22 to 27.5 years imprisonment, plus an
additional five-year consecutive term for the RVO specifications. On August 22, 2022, the
trial court issued a judgment entry convicting Elliott and imposing the foregoing sentence.
II. ASSIGNMENTS OF ERROR
{¶ 59} Elliott now appeals the August 22, 2022 judgment, and he assigns the
following errors:
[1.] THE TRIAL COURT ERRED IN DENYING
APPELLANT’S MOTION FOR NEW TRIAL CONTRARY TO
HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO
No. 22AP-532 17
DUE PROCESS, CONFRONTATION, CROSS-
EXAMINATION, AND TO PRESENT A DEFENSE.
[2.] THE TRIAL COURT ERRED IN EXCLUDING
EVIDENCE FROM THE CO-DEFENDANT’S POLYGRAPH
EXAMINATIONS IN VIOLATION OF APPELLANT’S RIGHT
TO CONFRONT THE WITNESSES AGAINST HIM.
[3.] THE PROSECUTION PRESENTED IMPROPER VICTIM-
IMPACT EVIDENCE THAT INFLAMED THE JURY AND
AFFECTED THE OUTCOME OF APPELLANT’S TRIAL
CONTRARY TO APPELLANT’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR
TRIAL.
[4.] THE ADMISSION OF OTHER-ACTS TESTIMONY AND
EVIDENCE VIOLATED EVIDENCE RULES 403 AND 404
AND APPELLANT’S RIGHTS TO DUE PROCESS AND TO A
FAIR TRIAL AS GUARARTEED BY THE UNITED STATES
AND OHIO CONSTITUTIONS.
[5.] APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF
APPELLANT’S RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF
THE OHIO CONSTITUTION.
[6.] THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED
A JUDGMENT OF CONVICTION BASED ON INSUFFICIENT
EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE IN VIOLATION OF APPELLANT’S RIGHTS
UNDER THE UNITED STATES AND OHIO
CONSTITUTIONS.
[7.] THE TRIAL COURT ERRED IN NOT INQUIRING
FURTHER WHEN APPELLANT REQUESTED NEW
APPOINTED COUNSEL WHICH DEPRIVED APPELLANT
OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL.
III. LEGAL ANALYSIS
A. First Assignment of Error–Motion for a New Trial
{¶ 60} By his first assignment of error, Elliott argues that the trial court erred in
denying his motion for a new trial. We disagree.
No. 22AP-532 18
{¶ 61} Elliott sought a new trial under Crim.R. 33(A)(6), which allows a trial court
to grant a new trial “[w]hen new evidence material to the defense is discovered which the
defendant could not with reasonable diligence have discovered and produced at the trial.”
To obtain a new trial based on newly discovered evidence, a defendant must show:
that the new evidence (1) discloses a strong probability that it
will change the result if a new trial is granted, (2) has been
discovered since the trial, (3) is such as could not in the exercise
of due diligence been discovered before the trial, (4) is material
to the issues, (5) is not merely cumulative to former evidence,
and (6) does not merely impeach or contradict the former
evidence.
State v. Petro, 148 Ohio St. 505 (1947), syllabus.
{¶ 62} Here, the trial court premised its denial of Elliott’s motion on the first Petro
factor: the new evidence did not disclose a strong probability that it would change the result
if the trial court granted a new trial. The first Petro factor requires a defendant to show a
strong probability of a different result; a mere possibility of a different outcome is an
insufficient basis on which to grant a motion for a new trial. State v. Bressi, 9th Dist. No.
29257, 2020-Ohio-4, ¶ 26. Moreover, “[w]here the effect of the newly discovered evidence
is not to place sole responsibility for the crime on someone other than the defendant and to
exonerate the defendant, the [evidence] does not disclose a strong probability that it will
change the result if a new trial is granted.” State v. Phillips, 10th Dist. No. 14AP-362, 2014-
Ohio-4947, ¶ 17.
{¶ 63} Granting a motion for a new trial is an extraordinary measure that a court
should use only when the evidence presented weighs heavily in favor of the defendant.
State v. Prater, 10th Dist. No. 20AP-308, 2021-Ohio-3988, ¶ 20. A trial court’s decision
on a motion for a new trial based on newly discovered evidence is within the sound
discretion of the court. State v. Hawkins, 66 Ohio St.3d 339, 350 (1993). Consequently,
absent an abuse of that discretion, an appellate court will not reverse such a decision. Id.{¶ 64} As we stated above, the newly discovered evidence was an email from Dr.
Daniels that stated, in relevant part:
The presentation of the knife at trial was a bit of a surprise for
me. I’m sure that there was a second knife that may not have
been kept as evidence. Just a suggestion for similar future
cases, it would be useful to show a photo of the knife in question
No. 22AP-532 19
to the pathologist beforehand. That could avoid such
‘demonstrations’ in court.
(Court Ex. 1.)
{¶ 65} To review the trial court’s decision, we must give this email its reasonable
interpretation. We construe it to mean: (1) Dr. Daniels was “surprise[d]” when he was
handed Ex. EE1, the knife used in Best’s murder, because he had not previously seen it; (2)
he determined that “there was a second knife” that was used to stab Best, but that second
knife was not in evidence; and (3) in the future, Dr. Daniels recommended that the
prosecutor show coroners photographs of suspected murder weapons before their trial
testimony. Id.{¶ 66} Elliott begins his motion for a new trial by presuming Dr. Daniels determined
there was a second knife because the knife in evidence had a blade that was too short to
cause Best’s deeper stab wounds. Elliott’s counsel told this court during oral argument that
Dr. Daniels actually testified that the knife in evidence was too short to result in most, if not
all, of Best’s wounds. This misconstrues Dr. Daniels’ testimony as Dr. Daniels never
testified to this or anything like this. Moreover, Dr. Daniels’ email does not elucidate why
he determined that a second knife was used to stab Best. Defense counsel bases his theory
regarding Dr. Daniels’ reason for concluding there was a second knife on mere conjecture.
{¶ 67} Second, we reject Elliott’s contention made in the trial court that Dr. Daniels
testified “all the while [ ] kn[owing] that there was a second knife with a longer blade.” (Tr.
Vol. XI at 6.) On appeal, Elliott repeats that contention, stating Dr. Daniels testified “all the
while [ ] believ[ing] a second knife with a longer blade was involved.” (Appellant’s Brief at
19.) Dr. Daniels was not presented with Ex. EE1 until recross-examination. Dr. Daniels’
testimony regarding the number of knives involved in Best’s murder occurred before he
saw Ex. EE1. Before he saw the knife in evidence, Dr. Daniels testified that Best’s wounds
were consistent with the use of one knife. It was not until Dr. Daniels was “surprised” by
Ex. EE1 that he changed his opinion and stated that there was a second knife.
Consequently, Dr. Daniels was not hiding anything regarding a second knife when he
testified.
{¶ 68} Finally, and most importantly, even with the evidence that a second knife was
used in Best’s murder, there is not a strong probability of a different outcome. In arguing
No. 22AP-532 20
to the contrary, Elliott claims he could have used the existence of a second knife to impeach
Bledsoe and White because both denied that there was a second knife. But Elliott
misconstrues Bledsoe’s and White’s testimony. Neither Bledsoe nor White was asked about
a second knife, so neither denied the existence of a second knife. True, Bledsoe only
testified to seeing Elliott use a paring knife, and White referred to Ex. EE1 as “[t]he” knife
she saw Elliott use to stab Best. (June 21, 2022 Tr. Vol. VII at 1109.) However, given the
facts of this case, it is reasonable that Elliott used a second knife without Bledsoe or White
knowing about it.
{¶ 69} Elliott’s assault on Best lasted hours. The video surveillance recordings from
OSU Hospital show that individuals from apartment B entered apartment C at 3:15 a.m.
and 3:32 a.m. White testified that Bledsoe messaged her about 5:00 or 5:30 a.m. to warn
her that people were going to work, so she and Elliott needed to leave apartment C. The
video surveillance recordings show two individuals, presumably White and Elliott,
returning to apartment B at 6:44 a.m. and 7:05 a.m. respectively. Thus, approximately
three to four hours elapsed between the time Best’s assailants first entered her apartment
and they left.
{¶ 70} Neither Bledsoe nor White watched Elliott during the entire hours-long
attack on Best. Bledsoe suffered a seizure (or thought he might suffer a seizure) and left
apartment C. White stopped watching Elliott assault Best to clean apartment C of blood.
White also exited Best’s apartment before Elliott, leaving Elliott alone with Best.
{¶ 71} The police found three other knives similar to Ex. EE1 in apartment B, and
White identified those knives as part of a block set. Elliott could have grabbed another knife
from that set in one of his trips to apartment B and used it to inflict wounds on Best in
addition to the ones Bledsoe and White saw him inflict.
{¶ 72} We, of course, can only speculate as to when and how Elliott obtained a
second knife. We engage in that speculation merely to point out that Bledsoe’s and White’s
testimony that they saw Elliott with a paring knife is not inconsistent with Elliott also
inflicting wounds with another knife. Elliott could have stabbed Best with a second knife
when neither Bledsoe nor White were observing him assault Best. Thus, at best, Elliott’s
counsel could only use the existence of two knives to point out that Bledsoe and White did
not see Elliott stab Best each and every time because they did not see Elliott use a second
No. 22AP-532 21
knife. But Bledsoe and White had already admitted to the jury that they did not watch
Elliott inflict every wound on Best. Thus, Elliott fails to show a strong probability that
evidence of the existence of a second knife would change the outcome of his trial.
{¶ 73} In actuality, Elliott wants us to assume that because there were two knives,
there must have been two assailants. This requires immense supposition. For the sake of
argument, however, we will assume that Elliott could somehow demonstrate in a new trial
that another individual wielded the second knife.
{¶ 74} Elliott was charged with and convicted of aggravated murder pursuant to R.C.
2903.01(A). Although the indictment does not include a complicity charge, “a defendant
charged with an offense may be convicted of that offense upon proof that he was complicit
in its commission, even though the indictment is ‘stated * * * in terms of the principal
offense’ and does not mention complicity.” State v. Herring, 94 Ohio St.3d 246, 251
(2002), quoting R.C. 2923.03(F); accord State v. Hawkins, 10th Dist. No. 19AP-546, 2021-
Ohio-2899, ¶ 61 (“[A] defendant charged with an offense may be convicted of that offense
upon evidence that he was complicit in the commission of that crime regardless of whether
the indictment against him or her is stated in terms of the principal offense.”). Here,
contrary to what Elliott’s counsel told this court during oral argument, the state’s theory at
trial was that Elliott was either the principal offender or an accomplice in the aggravated
murder of Best. Additionally, the trial court instructed the jury on accomplice liability with
regard to aggravated murder pursuant to R.C. 2903.01(A).
{¶ 75} “To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal in the commission of the
crime, and that the defendant shared the criminal intent of the principal.” State v. Johnson,
93 Ohio St.3d 240 (2001), syllabus. In this case, even if the newly discovered evidence
could put a second knife in another offender’s hands, it could not remove the first knife
from Elliott’s hands. Consequently, the evidence at trial would still demonstrate that Elliott
stabbed Best numerous times, thus assisting with the murder of Best. Elliott, therefore,
would be culpable for Best’s aggravated murder as an accomplice, even if the newly
discovered evidence established that a second assailant existed.
No. 22AP-532 22
{¶ 76} As we stated above, a strong probability of a different outcome does not arise
unless the newly discovered evidence places sole responsibility for the crime on someone
other than the defendant and exonerates the defendant. Phillips, 2014-Ohio-4947, at ¶ 17.
The newly discovered evidence in this case does not meet this standard.
{¶ 77} Because the trial court did not abuse its discretion in finding no strong
probability that the newly discovered evidence would change the outcome, the trial court
did not err in denying Elliott’s motion for a new trial. Accordingly, we overrule Elliott’s first
assignment of error.
B. Second Assignment of Error—Admission of Polygraph Evidence
{¶ 78} By his second assignment of error, Elliott argues that the trial court erred in
refusing to admit into evidence the results of White’s polygraph examinations, as well as
statements White made during the polygraph examinations. We disagree.
{¶ 79} After her indictment on charges related to Best’s murder, White agreed to
undergo a polygraph examination. White, her counsel, and the state executed a stipulation
regarding the use of the results of the polygraph examination, which was filed as an entry
in White’s criminal case (hereinafter “the polygraph stipulation”). In relevant part, the
polygraph stipulation stated:
By agreement of the Defendant, the Defendant’s attorney and
the Prosecuting Attorney, Attorney for the State of Ohio,
certain understandings and stipulations have been reached and
entered into by said parties, as hereafter follow:
1. The Defendant will submit to an examination process
utilizing in part a device commonly known as a “polygraph” or
“lie detector” which examination process may involve a series
of interviews and tests employing such device.
***
3. The Prosecuting Attorney or his Assistant shall designate
the person who will administer and conduct the testing of the
Defendant, such person to be selected from those persons
employed by the Ohio State Highway Patrol as properly
trained, experienced, and qualified to conduct such testing.
4. Such person designated by the Prosecuting Attorney or his
Assistant shall be permitted, if called as a witness by the State
of Ohio or by the Defendant, to testify at trial in this cause as
No. 22AP-532 23
an “expert” regarding all aspects of the test administered, and
such testimony shall be offered and received as evidence in the
trial of this cause without objections of any kind by any party to
this Agreement except as to the weight of evidence it is to be
given.
(Oct. 21, 2022 Def.’s Mot., Ex. 2, Entry of Stipulation.)
{¶ 80} White underwent two polygraph examinations. Each examination included
a pre-test interview and the administration of polygraph tests. The polygraph examiner
produced reports after each examination that summarized what White said during the
examination. In the first report, concerning the August 13, 2021 examination, the
polygraph examiner stated he found White’s pre-test interview narrative of the events
surrounding Best’s death substantially consistent with her proffer to the prosecutor. The
examiner, however, determined Best made some changes and added certain details.
Additionally, the examiner reported that, during the polygraph testing, White denied
causing any knife wounds to Best. Due to White’s conflicting physiological responses to the
questions regarding whether she caused knife wounds to Best, the polygraph examiner
could not form an opinion as to White’s truthfulness as to those questions.
{¶ 81} In the report regarding the September 8, 2021 examination, the polygraph
examiner stated White’s pre-test interview version of events again contained minor
variances from prior interviews, as well as some additional information. In response to the
polygraph examiner’s questions, White repeated her earlier denials of stabbing Best. This
time, the polygraph examiner opined that White’s answers were deceptive.
{¶ 82} During a hearing prior to Elliott’s trial, Elliott’s counsel asked the trial court
to look at the language in White’s polygraph stipulation and determine whether that
language limited “what [he could] cross-examine a potential witness[] on.” (June 8, 2022
Tr. Vol. II at 24.) Initially, the trial court determined that Elliott’s counsel could cross-
examine White “on the fact that the report indicates that she had been deceptive.” Id. at
28. However, the court came to a different conclusion when the state reraised the issue on
the morning Elliott’s trial was scheduled to begin.
{¶ 83} On the first day of trial, the state argued that, under State v. Rowe, 68 Ohio
App.3d 595 (10th Dist.1990), Elliott had to meet the requirements set forth in State v.
Souel, 53 Ohio St.2d 123 (1978), before the trial court could admit White’s polygraph results
No. 22AP-532 24
for the purpose of impeachment. Under the first Souel requirement, the prosecuting
attorney, defendant, and defendant’s counsel must sign a stipulation allowing for the
admission of polygraph results at trial. The state argued that, in this case, it, Elliott, and
Elliott’s attorney had not signed such a stipulation, thus precluding the admission of
White’s polygraph results at Elliott’s trial. The trial court agreed, finding:
The stipulation could have been used against the co-
defendant[, White]. If [the] co-defendant had changed her
mind and decided that she wanted to go to trial, the State would
have had the opportunity to then use her own polygraph
against her. Because the stipulation doesn’t involve the
defendant, the Court finds and believes that the very first
requirement under Souel * * * was not met, that defendant was
not a party to the stipulation, and, therefore, the stipulation
cannot be used. Again, that’s * * * only to be used by a party to
the stipulation. So the Court is going to exclude the use of the
polygraph.
(June 13, 2022 Tr. Vol. III at 14-15.)
{¶ 84} On appeal, Elliott argues that the trial court erred in not permitting him to:
(1) cross-examine White with her polygraph results, (2) confront White with the
inconsistencies between her pre-trial interviews, and (3) call the polygraph examiner as a
witness and question him about White’s polygraph results and pre-trial interview
inconsistencies. We will address each argument in order.
{¶ 85} A trial court has broad discretion in deciding whether to admit or exclude
evidence. State v. Whitaker, 169 Ohio St.3d 647, 2022-Ohio-2840, ¶ 87. An appellate court
will not disturb an exercise of that discretion absent an abuse of discretion. Id.
1. Exclusion of the Polygraph Results
{¶ 86} In Souel, the Supreme Court of Ohio set forth the conditions under which a
trial court may admit polygraph results in a criminal trial. The court held:
The results of a polygraphic examination are admissible in
evidence in a criminal trial for purposes of corroboration or
impeachment, provided that the following conditions are
observed:
(1) The prosecuting attorney, defendant and his counsel must
sign a written stipulation providing for defendant’s submission
to the test and for the subsequent admission at trial of the
No. 22AP-532 25
graphs and the examiner’s opinion thereon on behalf of either
defendant or the state.
(2) Notwithstanding the stipulation, the admissibility of the
test results is subject to the discretion of the trial judge, and if
the trial judge is not convinced that the examiner is qualified or
that the test was conducted under proper conditions he may
refuse to accept such evidence.
(3) If the graphs and examiner’s opinion are offered in
evidence the opposing party shall have the right to cross-
examine the examiner respecting:
(a) the examiner’s qualifications and training;
(b) the conditions under which the test was
administered;
(c) the limitations of and possibilities for error in the
technique of p0lygraphic interrogation; and,
(d) at the discretion of the trial judge, any other matter
deemed pertinent to the inquiry.
(4) If such evidence is admitted the trial judge should instruct
the jury to the effect that the examiner’s testimony does not
tend to prove or disprove any element of the crime with which
a defendant is charged, and that it is for the jurors to determine
what weight and effect such testimony should be given.
Id. at syllabus.
{¶ 87} The Supreme Court later explained and summarized its holding in Souel:
The nature of polygraphs is different from traditional scientific
tests. Most, if not all, scientific tests involve objective
measurements, such as blood or genetic typing or gunshot
residue. In a polygraph test, the bodily response of the
examinee to his answers is dependent on the subjective
interpretation thereof by the examiner. Inasmuch as the test is
not perceived by the profession to be reasonably reliable, its
admissibility is limited in Ohio to situations where the parties
stipulate to its admission.
State v. Davis, 62 Ohio St.3d 326, 341 (1991).
No. 22AP-532 26
{¶ 88} In Souel, the Supreme Court addressed whether a court could admit a
defendant’s polygraph results. Subsequent to Souel, the question arose whether parties had
to meet the Souel requirements before a court could admit a witness’s polygraph results.
Elliott contends that this court found the Souel requirements inapplicable when a witness’s
polygraph results were at issue. We, in fact, concluded the exact opposite:
[T]he same requirements that apply to a defendant’s polygraph
testing procedure should also apply to the admissibility of any
polygraph test results in a criminal matter. These
requirements are minimum safeguards established to ensure
the fairness of proceedings. Therefore, * * * if polygraph test
results of a witness can ever be admitted, the requirements of
Souel must be met.
(Emphasis sic.) State v. Lascola, 61 Ohio App.3d 228, 236-37 (10th Dist.1988).
{¶ 89} Consistent with our conclusion in Lascola, multiple Ohio courts, including
this one, have applied the first Souel requirement when reviewing the admission or
exclusion of witness’s polygraph results. These courts have uniformly found that a trial
court may not admit a witness’s polygraph results if the prosecutor, defendant, and defense
counsel do not stipulate to the admissibility of the witness’s polygraph results at the
defendant’s trial. State v. Penque, 8th Dist. No. 99209, 2013-Ohio-4696, ¶ 34-35; State v.
Beshara, 7th Dist. No. 07 MA 37, 2009-Ohio-6529, ¶ 3, 66; State v. Rucker, 6th Dist. No.
S-99-007, 2000 Ohio App. LEXIS 3819 (Aug. 25, 2000); State v. Carroll, 9th Dist. No.
97CA006943, 2000 Ohio App. LEXIS 5975 (Dec. 20, 2000); State v. Hesson, 110 Ohio
App.3d 845, 857-59 (4th Dist.1996); Rowe, 68 Ohio App.3d at 610.
{¶ 90} Notably, our state courts are not alone in interpreting the stipulation
requirement to necessitate the participation of the parties, i.e., the defendant (along with
defense counsel) and the state, before a court may admit the results of a witness’s polygraph
results. Walker v. State, 264 Ga. 79, 80 (1994) (Emphasis sic) (“[W]here the defendant
and the state did not stipulate that the results of a polygraph test taken by a witness would
be admissible at trial, questioning the witness regarding those test results is impermissible
* * *. We find no merit in [the defendant’s] argument that [the witness’s polygraph] test
results were admissible at his trial because there was a stipulation between the State and
[the witness] to use the test results at [the witness’s] trial.”); Pavone v. State, 273 Ind. 162,
166 (1980) (“Since no written enforceable stipulation was made between the parties, the
No. 22AP-532 27
evidence of [the witness’s] polygraph tests and results was inadmissible.”); Corbett v. State,
94 Nev. 643, 645-47 (1978) (adopting the same requirements as Souel when determining
the admissibility of the polygraph results of the defendant and three eyewitnesses); State v.
Yapp, 45 Wash.App. 601, 606 (1986) (because the record did not include a stipulation by
both parties, the trial court did not err in excluding a witness’s polygraph results).
{¶ 91} The facts in this case are almost identical to Beshara. There, the Seventh
District Court of Appeals considered whether the trial court erred in preventing the
defendant from cross-examining a witness regarding a failed polygraph. In that case, prior
to the polygraph examination, the co-defendant and the state executed a stipulated
polygraph agreement permitting admission of the results at the co-defendant’s trial. When
the polygraph examiner determined the co-defendant was being deceptive regarding his
criminal involvement, the co-defendant agreed to plead guilty and testify against the
defendant. The trial court found all the polygraph evidence inadmissible at the defendant’s
trial, and the defendant appealed this ruling.
{¶ 92} On appeal, the Seventh District determined the stipulation did not satisfy the
first Souel requirement because the parties to the case had not stipulated to the use of the
polygraph results in the defendant’s trial:
There is no indication that [the defendant] himself was party to
the stipulation involving [the witness’s] polygraph test.
Further, although the State and [the witness] may have
stipulated to their use in [the witness’s] trial, there is no
indication that the State stipulated to their use in [the
defendant’s] trial.
(Emphasis sic.) Id. at ¶ 66. Thus, the court held that “the trial court did not abuse its
discretion by precluding testimony about the witness’s failed polygraph test, since [the
defendant] did not formally stipulate to the results and the state did not stipulate to its use
in [the defendant’s] trial.” Id. at ¶ 3.
{¶ 93} In this case, White, her counsel, and the state entered a polygraph stipulation
in which they agreed that the polygraph examiner could testify at White’s trial regarding
her polygraph results. Like in Bashara, there is no stipulation between Elliott, Elliott’s
counsel, and the state that Elliott could use White’s polygraph results at Elliott’s trial.
Absent such a stipulation, Elliott has not satisfied the first Souel requirement. The trial
No. 22AP-532 28
court, therefore, did not abuse its discretion in excluding White’s polygraph results from
evidence.
2. No Cross-examination on Inconsistences between Prior Pre-trial
Statements
{¶ 94} Elliott next argues that the trial court erred in not allowing him to cross-
examine White regarding the inconsistences between White’s first pre-test interview and
proffer, as well as the inconsistencies between White’s second pre-test interview and prior
statements. We disagree.
{¶ 95} “As a general rule, ‘prior inconsistent statements constitute hearsay evidence
and thus are admissible only for the purpose of impeachment.’ ” State v. McKelton, 148
Ohio St.3d 261, 2016-Ohio-5735, ¶ 128, quoting 1 Gianelli, Evidence, Section 607.4, at 482-
83 (3d Ed.2010). Evid.R. 613 governs the use of prior inconsistent statements to impeach
a witness. According to Evid.R. 613(B):
Extrinsic evidence of a prior inconsistent statement by a
witness is admissible if both the following apply:
(1) If the statement is offered solely for the purpose of
impeaching the witness, the witness is afforded a prior
opportunity to explain or deny the statement and the opposite
party is afforded an opportunity to interrogate the witness on
the statement or the interests of justice otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of
the action other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under
Evid.R. 608(A), 609, 616(A), or 616(B);
(c) A fact that may be shown by extrinsic evidence under
the common law of impeachment if not in conflict with
the Rules of Evidence.
{¶ 96} “The underlying rationale for Rule 613 is self-contradiction; it involves the
use of a witness’s own statements to contradict that witness’s present testimony.” 1
Giannelli, Evidence, Section 613.4, at 601 (4th Ed.2020). Consequently, “[t]o be
admissible, the prior statement must be inconsistent with the witness’s trial testimony.” Id.No. 22AP-532 29
{¶ 97} In the trial court, Elliott never sought to use the statements White made in
the pre-test interviews to impeach White’s trial testimony. On appeal, he does not claim he
was barred from confronting White with differences between her trial testimony and what
she said in her pre-test interviews. Rather, Elliott only contends that the trial court should
have allowed him to explore the inconsistencies between White’s various pre-trial versions
of events. Evid.R. 613(B), however, does not allow for this. Absent a conflict between
White’s trial testimony and a prior statement, Evid.R. 613(B) does not apply. Elliott does
not identify any such conflict. Therefore, we have no grounds on which to find error.
3. Exclusion of the Polygraph Examiner’s Testimony
{¶ 98} Third, Elliott argues that the trial court erred in refusing to allow the
polygraph examiner to testify regarding his findings and the statements White made during
her pre-test interviews. Elliott initially contends that the polygraph examiner could offer
an expert opinion as to White’s truthfulness without disclosing the nature of his expertise.
Elliott misses the point. The problem here is not the word “polygraph,” but the unreliable
nature of the polygraph evidence itself. Because the parties did not comply with the
safeguards set by Souel, the polygraph results were inadmissible. The polygraph examiner,
therefore, could not testify to them.
{¶ 99} We also find that a trial court cannot tell a jury a witness is an expert in
ascertaining deception and leave the jury guessing the basis of the witness’s expertise. An
expert witness cannot offer an opinion without revealing his or her expertise because,
without knowing the basis for the witness’s superior knowledge on a topic, the jury lacks
the means to assess the weight of the opinion.
{¶ 100} Elliott next asserts that the polygraph examiner could testify as to what
White said in the pre-test interviews. Elliott, however, does not explain how this testimony
amounts to anything more than inadmissible hearsay.
4. Whether Exclusion of Polygraph Evidence Violates the Right to
Confront an Adverse Witness
{¶ 101} As a final matter, Elliott argues that the exclusion of the polygraph evidence
violated his constitutional right to confront adverse witnesses because it impacted his
ability to cross-examine White. We disagree.
No. 22AP-532 30
{¶ 102} The Confrontation Clause of the Sixth Amendment to the United States
Constitution and Article I, Section 10 of the Ohio Constitution guarantee a defendant’s right
to cross-examine the state’s witnesses. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986);
State v. McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, ¶ 151. These constitutional
provisions ensure “an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense might wish.”
(Emphasis sic.) Delaware v. Fensterer, 474 U.S. 15, 20 (1985). A trial court may
constitutionally impose limits on a defense counsel’s cross-examination into the potential
biases of a prosecution witness. State v. Brunson, 171 Ohio St.3d 384, 2022-Ohio-4299,
¶ 53; accord Van Arsdall at 679 (holding that a trial court may “impose reasonable limits
on [] cross-examination [into the potential bias of a prosecution witness] based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant”).
{¶ 103} To establish the denial of the confrontation right, the defendant must first
show “he was prohibited from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of the witness.” Van Arsdall at
680; accord McAlpin at ¶ 152 (applying the same test). The defendant must then
demonstrate that the denial of the opportunity to cross-examine the witness prejudiced the
defendant. That prejudice inquiry focuses on the particular witness, not on the outcome of
the entire trial. Van Arsdall at 680. A defendant is prejudiced if “[a] reasonable jury might
have received a significantly different impression of [the witness’s] credibility had [defense]
counsel been permitted to pursue his proposed line of cross-examination.” Id.{¶ 104} As we stated above, Elliott failed to satisfy the first Souel requirement,
rendering White’s polygraph results inadmissible. Furthermore, Elliott did not establish
White’s prior inconsistent statements during the pre-test interviews as admissible under an
Ohio Rule of Evidence. Consequently, the trial court placed limitations on White’s cross-
examination to comply with Ohio law, not to stymie Elliott from appropriately cross-
examining White. Elliott, therefore, has failed to demonstrate a violation of his
confrontation right.
{¶ 105} Nevertheless, even if Elliott had shown a legitimate inability to
appropriately cross-examine White, he has not proven that that inability prejudiced him.
No. 22AP-532 31
Elliott argues that the jury needed to hear about the deceptive polygraph results and
White’s prior inconsistent statements to properly assess White’s credibility. However,
White admitted during her testimony that she had previously lied when recounting the
murder.
{¶ 106} On direct examination, White testified she provided the state information
about Best’s murder at least three different times after her arrest, but she did not tell the
“whole truth” until the final meeting. (June 21, 2022 Tr. Vol. VII at 1048-49.) White
admitted that when she first spoke to the police, she “tried to lie to them.” Id. at 1103. She
did not tell the police she assaulted Best, nor did she give the police details about what
happened the night of Best’s murder. On cross-examination, Elliott elicited the following
testimony:
Q: Now even though on several occasions when the time [the
State] had been dealing with you, they’ve caught you not being
truthful; ain’t that correct?
A: Yes.
Q: And they caught you not being truthful about your
involvement in this murder; isn’t that correct?
A: Yes.
Id. at 1131. With White already admitting to obfuscation and dishonesty, Elliott cannot
show his disallowed cross-examination would have given the jury a significantly different
impression of White’s credibility. Thus, Elliott cannot establish the prejudice necessary to
prove a violation of the confrontation right.
{¶ 107} In sum, we conclude that the trial court did not err in: (1) excluding from
evidence White’s polygraph results, (2) excluding from evidence the statements White
made during the pre-test interviews, and (3) refusing to allow the polygraph examiner to
testify. We also conclude that the trial court did not violate Elliott’s confrontation right
when it prevented his counsel from cross-examining White using the polygraph evidence.
Accordingly, we overrule Elliott’s second assignment of error.
C. Third Assignment of Error—Admission of Victim-Impact Evidence
{¶ 108} By Elliott’s third assignment of error, he argues that the admission of
victim-impact evidence violated his rights to due process, which deprived him of a fair trial.
No. 22AP-532 32
Elliott asserts two violations of due process: (1) the prosecutor engaged in misconduct
during the opening statement by commenting on Best’s disabilities and social challenges,
and (2) the admission of the testimony of Best’s mother regarding the same topics.
{¶ 109} The prosecutor began his opening statement by telling the jury that “fate
wasn’t kind” to Best. (June 14, 2022 Tr. Vol. IV at 311.) Best, he explained, “was born with
intellectual and developmental disabilities” that “made things hard for her in her life.” Id.
Best did not always show her emotions, so “people didn’t really understand how to
understand Maria.” Id. Best, therefore, struggled for acceptance by her peers. According
to the prosecutor, Best’s “desperate yearning” for acceptance “would lead to her falling in
with the wrong sort of people and these people would take advantage of her. They would
take advantage of her generosity.” Id. at 312-13.
{¶ 110} Best’s mother testified that Best was born with a developmental delay,
which became evident early in her life. As a result of this delay, Best “struggled to fit in,
make friends at school.” (June 15, 2022 Tr. Vol. V at 409.) Best “always treated people as
if they had good intentions. * * * She always wanted to help everyone.” Id. at 411.
Friendships and acceptance by others were extremely important to Best.
{¶ 111} In general, Best’s mother stated, Best “didn’t have the ability to gauge her
environment. She had no real understanding of danger.” Id. at 418. Best’s mother
described an instance where someone convinced Best to appoint them the payee to receive
Best’s Social Security Disability Income, and then that person took Best’s money. Best’s
mother said that Best and Bledsoe would call on her when they found themselves in a
dangerous situation.
{¶ 112} Best’s mother also explained that Best had been diagnosed with bipolar
disorder. Best presented herself differently depending on her mental state. Best “could be
just complacent” and “shut down and just agree[d] to everything that you said.” Id. at 413.
Alternatively, she was “very agitated” and “logic was just completely out the door.” Id. Prior
to her death, Best had undergone hospitalization to ensure she regularly received
medication for her mental disorder.
{¶ 113} Elliott claims that any reference to Best’s personal characteristics violated
his due process rights. The Due Process Clause of the Fourteenth Amendment “is a
protection against criminal trials in state courts conducted in such a manner as amounts to
No. 22AP-532 33
a disregard of ‘that fundamental fairness essential to the very concept of justice,’ and in a
way that ‘necessarily prevents a fair trial.’ ”1 Lyons v. Oklahoma, 322 U.S. 596, 605 (1944),
quoting Lisenba v. California, 314 U.S. 219, 236 (1941). The Due Process Clause prohibits
both: (1) the admission of evidence that renders a trial fundamentally unfair, Perry v. New
Hampshire, 565 U.S. 228, 237 (2012), and (2) prosecutorial misconduct, Greer v. Miller,
483 U.S. 756, 765 (1987). We will first address whether the admission of the testimony of
Best’s mother violated Elliott’s rights to due process.
1. Whether Admission of Victim-Impact Evidence Denied Elliott a Fair
Trial
{¶ 114} Ordinarily, state and federal statutes and rules govern the admissibility of
evidence. Perry at 237. Violations of the Due Process Clause occur “[o]nly when evidence
‘is so extremely unfair that its admission violates fundamental conceptions of justice.’ ” Id.,quoting Dowling v. United States, 493 U.S. 342, 352 (1990) (internal quotation marks
omitted). Courts “have defined the category of infractions that violate ‘fundamental
fairness’ very narrowly.” Dowling at 352. “The kind of foundational unfairness and
arbitrariness needed to show that a flawed state court evidentiary ruling rises to the level of
a due process violation is not a broad category.” Burger v. Woods, 515 Fed.Appx. 507, 510
(6th Cir.2013).
{¶ 115} By not objecting to the testimony of Best’s mother on due process grounds,
Elliott forfeited the issue for purposes of appeal. We, consequently, review this issue for
plain error. To establish that plain error occurred, a defendant must show that “an error
occurred, that the error was obvious, and that there is ‘a reasonable probability that the
error resulted in prejudice,’ meaning that the error affected the outcome of the trial.”
(Emphasis sic.) McAlpin, 2022-Ohio-1567, at ¶ 66, quoting State v. Rogers, 143 Ohio St.3d
385, 2015-Ohio-2459, ¶ 22.
{¶ 116} Elliott characterizes the evidence he challenges as “victim-impact
evidence.” “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. Graham,
1 Elliott claims violations of his due process rights under both the federal and state constitutions. The Due
Process Clause of the Fourteenth Amendment to the United States Constitution and the Due Course of Law
Clause in Article I, Section 16 of the Ohio Constitution provide equivalent due process protections. State v.
Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, ¶ 11.
No. 22AP-532 34
164 Ohio St.3d 187, 2020-Ohio-6700, ¶ 113. Victim-impact evidence “is admissible when
it is related to ‘the facts attendant to the offense.’ ” State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, ¶ 134, quoting State v. Fautenberry, 72 Ohio St.3d 435, 440 (1995);
accord State v. Beuke, 38 Ohio St.3d 29, 40 (1989) (“Victim background evidence may be
relevant to establishing facts of consequence or otherwise necessary to prove an element of
the crime.”).
{¶ 117} In this case, the state charged Elliott with aggravated murder under R.C.
2903.01(A), which required the state to prove Elliott caused Best’s death “purposely, and
with prior calculation and design.” Three factors guide an inquiry into whether a defendant
acted with prior calculation and design: “(1) Did the accused and victim know each other,
and if so, was that relationship strained? (2) Did the accused give thought or preparation
to choosing the murder weapon or murder site? and (3) Was the act drawn out or ‘an almost
instantaneous eruption or events’?” State v. Taylor, 78 Ohio St.3d 15, 19 (1997), quoting
State v. Jenkins, 48 Ohio App.2d 99, 102 (8th Dist.1976).
{¶ 118} We find the information Best’s mother gave regarding Best assisted the jury
in understanding Elliott’s and Best’s relationship and how it degraded so quickly. The
testimony at issue helped explain to the jury Best’s motivation for allowing Bledsoe, Elliott,
and Adams to live in her apartment, as well as Best’s willingness to maintain her
relationships with Bledsoe, Elliott, and Adams despite the friction that arose. The
testimony also elucidated Best’s reactions to Elliott, particularly her complacency when
Elliott first became violent with her and her initial compliance when Elliott demanded she
clean her room. Elliott lost the control that Best’s initial capitulation gave him when Best
sought the assistance of the police. Once Elliott lost control over Best, he decided that “he
would take care of it” he was “going to kill [Best].” (June 16, 2022 Tr. Vol. VI at 713.) The
testimony of Best’s mother, therefore, was relevant.
{¶ 119} Elliott also argues that this evidence was prejudicial because it portrayed
him as a “bad” person who bullied Best, thus inflaming the jury to convict Elliott. Best’s
mother, however, never mentioned Elliott at all during direct examination, much less
characterized him as a “bad” person. While Best’s mother told the jury about her daughter’s
developmental and mental health challenges, she neither canonized Best nor demonized
No. 22AP-532 35
Elliott. In short, the testimony was informational, not emotional. We, consequently, do
not conclude that the testimony prejudiced Elliott.2
{¶ 120} Therefore, the admission of the testimony of Best’s mother was not so
extremely unfair that its inclusion in Elliott’s trial violated fundamental conceptions of
justice. We, therefore, find no violation of Elliott’s due process rights occurred. Admission
of the testimony of Best’s mother was not error, much less plain error, warranting reversal.
2. Whether the Prosecutor Engaged in Misconduct by Commenting on
Best’s Personal Characteristics in the Opening Statement
{¶ 121} Next, Elliott argues that the prosecutor committed misconduct by
commenting about Best’s personal characteristics during the opening statement. We
disagree.
{¶ 122} “[P]rosecutorial misconduct may ‘so infec[t] the trial with unfairness as to
make the resulting conviction a denial of due process.’ ” Greer, 483 U.S. at 765, quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Prosecutorial misconduct occurs
when a prosecutor’s remarks are improper, and they prejudicially affect the defendant’s
substantial rights. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, ¶ 119.
{¶ 123} An opening statement acquaints a jury with the general nature of the case
and outlines the facts that counsel expects the evidence to show. State v. D.E.M., 10th Dist.
No. 15AP-589, 2016-Ohio-5638, ¶ 76. “ ‘During opening statement, counsel is accorded
latitude and allowed fair comment on the facts to be presented at trial.’ ” Beasley at ¶ 120,
quoting State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 157.
{¶ 124} A defendant, like Elliott, who fails to object to a prosecutor’s allegedly
improper comments has forfeited all but plain error. An appellate court will only reverse
for plain error if the defendant establishes that a conviction would not have resulted in the
absence of the allegedly improper comments. D.E.M. at ¶ 75; State v. Kenney, 10th Dist.
No. 09AP-231, 2010-Ohio-3740, ¶ 11.
{¶ 125} Here, the prosecutor based his comments regarding Best on the testimony
he expected Best’s mother to give, which we have found both relevant and non-prejudicial.
The prosecutor’s comments, therefore, constituted “fair comment” on the evidence.
2 We also note that “the Supreme Court has never held * * * that a state trial court’s admission of relevant
evidence, no matter how prejudicial, amounted to a violation of due process.” (Emphasis sic.) Blackmon
v. Booker, 696 F.3d 536, 551 (6th Cir.2012).
No. 22AP-532 36
Accordingly, we determine that no improper remarks occurred, thus precluding any error
based on prosecutorial misconduct.
{¶ 126} In sum, we find no violation of Elliott’s due process rights. We thus overrule
Elliott’s third assignment of error.
D. Fourth Assignment of Error–Admission of Other-Acts Evidence
{¶ 127} By Elliott’s fourth assignment of error, he argues that the trial court erred
in admitting other-acts evidence. We disagree.
{¶ 128} “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.” Former Evid.R.
404(B) (effective July 1, 2012 through June 30, 2022).3 However, evidence of a defendant’s
other crimes, wrongs, or acts is admissible “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” (Emphasis added.) Id. “The key [to admission] is that the evidence must prove
something other than the defendant’s disposition to commit certain acts.” Hartman, 2020-
Ohio-4440 at ¶ 22. The admissibility of other-acts evidence under Evid.R. 404(B) is a
question of law that an appellate court reviews de novo. State v. Worley, 164 Ohio St.3d
589, 2021-Ohio-2207, ¶ 117.
{¶ 129} In determining whether to admit other-acts evidence, a court must consider
whether the evidence is relevant to the particular purpose for which it is offered. Hartman
at ¶ 26. That is, the other-acts evidence must be probative of a non-propensity purpose,
such as one of the permissible purposes listed in Evid.R. 404(B). Id. Moreover, the court
must evaluate whether the non-propensity purpose relates to a material issue that is in
dispute between the parties. Id. at ¶ 27.
3 Evid.R. 404(B) was revised in 2022. Effective July 1, 2022, the rule reads in relevant part:
(B) Other crimes, wrongs, or acts
(1) Prohibited uses. Evidence of any other crime, wrong, or act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted uses; notice. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.
No. 22AP-532 37
{¶ 130} As part of its inquiry, a court must also ascertain that the party offering the
evidence has provided “ ‘substantial proof that the alleged [other] act was committed by the
defendant.’ ” Id. at ¶ 28, quoting State v. Carter, 26 Ohio St.2d 79, 83 (1971). Other-acts
evidence “ ‘is relevant only if the jury can reasonably conclude that the act occurred and
that the defendant was the actor.’ ” Id., quoting Huddleston v. United States, 485 U.S. 681,
689 (1988).
1. Relevancy Challenges to Other-Acts Evidence
{¶ 131} Here, the State offered other-acts evidence against Elliott to prove identity,
i.e., he was the person who committed the crimes charged in the indictment. Other acts are
evidence of identity where the 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.’ ” State v. Lowe, 69 Ohio St.3d 527, 531
(1994), quoting State v. Curry, 43 Ohio St.2d 66, 73 (1975).
{¶ 132} The two other acts at issue are: (1) Elliott yanking Best out of the back seat
of Tracy’s parked car at Clean Rite Center, and (2) Elliott shoving Best into her bedroom
wall. These two acts served as the impetus for Best to seek police assistance in evicting
everyone from her apartment and pressing charges against Elliott. According to the
testimony of Bledsoe, White, and Tracy, when Best would not reconsider the eviction or the
charges, Elliott entered Best’s apartment and attacked Best. Thus, the two other acts form
part of the immediate background of the crimes charged in the indictment and are
inextricably related to those crimes.4
{¶ 133} Elliott’s primary argument against the relevancy of the other-acts evidence
is that the state failed to provide substantial proof of the other acts. Elliott points out that
the video recording of the Clean Rite Center incident does not actually show him dragging
Best out of the car. Elliott is correct: the recording skips a minute and, thus, does not depict
what happened immediately after Elliott reached into the back seat and yanked at
something or someone. However, Best reported to Officer Schwartz that in that missing
minute Elliott “pulled [her] out of the car by [her] hair and [her] arms and threw [her] to
the ground.” (Pl.’s Ex. H2, Officer Schwartz Body-worn camera.)
4 Elliott contends that the other acts do not form part of the “immediate” background of the crimes because
they occurred approximately 36 hours prior to the crimes. We do not find this argument plausible.
No. 22AP-532 38
{¶ 134} Regarding the incident in Best’s bedroom, Elliott complains that “no one
actually witnessed Elliott slamming Best’s head into the wall back at the apartment.”
(Appellant’s Brief at 46.) To the contrary, Best witnessed it. She told Officer Wolfe that
Elliott had “shoved [her] into the wall in [her] bedroom.” (Pl.’s Ex. B, Officer Wolfe Body-
worn camera.) She also showed Officer Wolfe a bruise on her forehead that resulted from
her collision with the bedroom wall. Additionally, Bledsoe testified that, while Elliott and
Best were alone in the bedroom, Bledsoe heard a “thump, like * * * a very loud noise,” and
the “next thing [he] kn[e]w there was a hole in the [bedroom] wall.” (June 16, 2022 Tr. Vol.
VI at 856.) Photographs of Best’s bedroom wall show a circular hole in the drywall
underneath the window.
{¶ 135} Based on the foregoing evidence, we conclude that the state met its burden
to provide substantial proof of the other acts. The jury could reasonably conclude that both
acts occurred, and Elliott committed both acts.
{¶ 136} Elliott next challenges the relevancy of the other-acts evidence by arguing
that identity was not a material issue in dispute between the parties. Identity is at issue
when the fact of the crime is open and evident, but the perpetrator is unknown, and the
accused denies that he or she committed the crime. State v. Hernandez, 8th Dist. No.
108265, 2019-Ohio-5242, ¶ 26; State v. Fannon, 4th Dist. No. 17CA24, 2018-Ohio-5242,
¶ 74. Here, the fact of Best’s murder was open and evident, but the murderer unknown.
Because Elliott denied murdering Best, identity was a material issue in dispute.
{¶ 137} Finally, Elliott asserts that the other acts in this case cannot show identity
because they do not share common features with the crime in question. More specifically,
Elliott argues that the other acts are irrelevant to proving identity because they do not
involve stabbings and, thus, are insufficiently similar to the murder. Elliott misinterprets
the precedent he relies upon for this argument. According to that precedent, “other-acts
evidence must * * * share common features with the crime in question” “[t]o be admissible
to prove identity through a certain modus operandi.” (Emphasis added.) Lowe, 69 Ohio
St.3d at 531. Here, because the state did not offer the other-acts evidence to prove a certain
modus operandi, the other-acts evidence did not have to share common features with the
charged crime.
No. 22AP-532 39
{¶ 138} In sum, we conclude that the trial court did not err in admitting the other-
acts evidence under Evid.R. 404(B). Elliott, however, argues that even if the other-acts
evidence was admissible under Evid.R. 404(B), it was inadmissible under Evid.R. 403(A),
which requires the exclusion of relevant evidence if “its probative value is substantially
outweighed by the danger of unfair prejudice.”
2. Prejudice Challenge to Other-Acts Evidence
{¶ 139} If a court determines that the proffered evidence is admissible under
Evid.R. 404(B), it must next turn to Evid.R. 403(A) and decide whether the proffered
evidence is more prejudicial than probative. Hartman, 2020-Ohio-4440, at ¶ 29. A trial
court’s weighing of the probative value of admissible evidence against the danger of unfair
prejudice involves an exercise of judgment and, thus, is reviewed for an abuse of discretion.
Worley, 2021-Ohio-2207 at ¶ 117.
{¶ 140} “Evid.R. 403 manifests a definite bias in favor of admissibility.” State v.
Marshall, 10th Dist. No. 20AP-394, 2022-Ohio-3795, ¶ 20. Exclusion of evidence under
Evid.R. 403(A) requires more than mere prejudice, because any evidence adverse to a
party’s case could be deemed prejudicial. Worley at ¶ 125. Consequently, Evid.R. 403(A)
only mandates exclusion of “evidence that is unfairly prejudicial.” (Emphasis sic.) State v.
Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 23. “Unfair prejudice is that quality of
evidence which might result in an improper basis for a jury decision.” Id. at ¶ 24. Usually,
unfairly prejudicial evidence appeals to the jury’s emotions rather than intellect. Id.
{¶ 141} In deciding whether to exclude evidence under Evid.R. 403(A), a trial court
should view “relevant evidence, challenged as being outweighed by its prejudicial effects,
* * * in a light most favorable to the proponent of the evidence, maximizing its probative
value and minimizing any prejudicial effect to one opposing admission.” State v. Maurer,
15 Ohio St.3d 239, 265 (1984). Consequently, for evidence to be inadmissible under Evid.R.
403(A), its “probative value must be minimal and the prejudice great.” State v. Morales,
32 Ohio St.3d 252, 258 (1987); accord State v. Hicks, 10th Dist. No. 18AP-883, 2020-Ohio-
548, ¶ 21, quoting State v. Shipley, 10th Dist. No. 12AP-948, 2013-Ohio-4055, ¶ 61 (“ ‘In
order for the evidence to be deemed inadmissible, its probative value must be minimal and
its prejudicial effect great.’ ”).
No. 22AP-532 40
{¶ 142} Elliott asserts that the other-acts evidence was unfairly prejudicial because
so many of the state’s witnesses and exhibits related to the other-acts evidence. The other-
acts evidence repeatedly arose during Elliott’s trial because the two prior assaults formed
the immediate background of the charged offenses. Due to the close connection between
the other acts and Best’s murder, the probative value of the other acts was high.
Furthermore, to mitigate any possible unfair prejudice to Elliott, the trial court instructed
the jury:
[E]vidence was admitted of another act which the defendant
may have committed. You may not consider that evidence to
determine whether the defendant committed any act alleged in
the indictment. You are to consider this evidence only on the
additional issue of identity.
***
The State must prove identity beyond a reasonable doubt. If
you find that defendant committed the other act, you may not
presume that he committed the acts alleged. You may,
however, consider the other act, along with all the other
evidence, in deciding whether the State proved beyond a
reasonable doubt that the defendant, rather than some other
person, committed the offense charged.
(June 23, 2022 Tr. Vol. IX at 1432-33.) Given the broad discretion invested in the trial
court to determine prejudice and the instruction to the jury limiting the use of the other-
acts evidence, we find no error in the trial court’s determination that the other-acts evidence
did not unfairly prejudice Elliott.
3. Due Process Challenge to Other-Acts Evidence
{¶ 143} In addition to challenging the admission of the other-acts evidence under
Evid.R. 404(B) and 403(A), Elliott also argues that allowing the state to introduce the
other-acts evidence deprived him of his due process rights. As we stated above, violations
of the Due Process Clause occur “[o]nly when evidence ‘is so extremely unfair that its
admission violates fundamental conceptions of justice.’ ” Perry, 565 U.S. at 237, quoting
Dowling, 493 U.S. at 352. A defendant is not denied a fair trial, and thus due process, by
the admission of other-acts evidence that is more probative than prejudicial. Coleman v.
Mitchell, 268 F.3d 417, 440 (6th Cir.2001); Pennington v. Lazaroff, 13 Fed.Appx. 228, 232
No. 22AP-532 41
(6th Cir.2001). Consequently, the admission of the other-acts evidence in this case did not
violate Elliott’s due process rights.
{¶ 144} In sum, we conclude that the trial court did not violate Evid.R. 404(B),
Evid.R. 403(A), or the due process provisions of the federal or state constitutions in
admitting the other-acts evidence. Accordingly, we overrule Elliott’s fourth assignment of
error.
E. Fifth Assignment of Error–Ineffective Assistance of Counsel
{¶ 145} By Elliott’s fifth assignment of error, he argues that he was deprived of
effective assistance of counsel. We disagree.
{¶ 146} To prevail on an ineffective assistance claim, a defendant must meet the
two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984). First, the
defendant must show that counsel’s performance was deficient. Strickland at 687; State v.
Bradley, 42 Ohio St.3d 136, 141 (1989). To meet that requirement, the defendant must
demonstrate that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed by the Sixth Amendment. Strickland at 687. Counsel’s conduct is
deficient if it falls below an objective standard of reasonable representation. Strickland at
688; Bradley at 142.
{¶ 147} If the defendant shows that counsel’s performance was deficient, then the
second prong of the Strickland test requires the defendant to prove prejudice to prevail.
Strickland at 687; Bradley at 141-42. To demonstrate prejudice, the defendant must show
“that there is reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland at 694; accord Bradley at
142.
1. No Objection to Victim-Impact Testimony
{¶ 148} First, Elliott argues that his counsel was ineffective because he did not
object to the victim-impact testimony of Best’s mother. Trial counsel is not ineffective for
failing to object to admissible testimony. State v. Rudasill, 10th Dist. No. 19AP-61, 2021-
Ohio-45, ¶ 48; State v. Daniels, 10th Dist. No. 14AP-326, 2015-Ohio-2649, ¶ 32. As we
found above, the testimony of Best’s mother was both relevant and non-prejudicial.
Consequently, Elliott’s counsel was not ineffective for failing to object to it.
No. 22AP-532 42
2. No Objection to Tracy’s Testimony Regarding his Dog
{¶ 149} Second, Elliott contends that his counsel was ineffective because he did not
object to Tracy’s testimony regarding his dog’s reaction to Elliott. Tracy testified that he
was walking his dog early on the morning after Best’s murder when Elliott exited Best’s
apartment. Elliott picked up Tracy’s dog and started petting her. Tracy said the dog was
“shaking” and “scared.” (June 21, 2022 Tr. Vol. VI at 724.) When Elliott put the dog down,
she ran and hid underneath Tracy’s car. Tracy explained that his dog’s reaction was not
normal.
{¶ 150} The failure to object, alone, is not enough to sustain a claim of ineffective
assistance of counsel. State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, ¶ 117.
Withholding an objection may be a tactical decision because:
“experienced trial counsel learns that objections to each
potentially objectionable event could actually act to their
party’s detriment. * * * In light of this, any single failure to
object usually cannot be said to have been error unless the
evidence sought is so prejudicial * * * that failure to object
essentially defaults the case to the state. Otherwise, defense
counsel must so consistently fail to use objections, despite
numerous and clear reasons for doing so, that counsel’s failure
cannot reasonably have been said to have been part of a trial
strategy or tactical choice.”
State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 140, quoting Lundgren v.
Mitchell, 440 F.3d 754, 774 (6th Cir.2006).
{¶ 151} Considering the totality of the evidence in this case, trial counsel could
reasonably calculate that Tracy’s testimony regarding the dog would not affect the outcome
of the trial. We thus conclude that defense counsel made a strategic choice not to object.
Given the slight importance of the testimony, we find it was not so prejudicial that the
failure to object essentially defaulted the case to the state. Trial counsel, therefore, was not
ineffective in failing to object to the testimony regarding the dog’s reaction to Elliott.
3. Ineffective Cross-Examination of Tracy
{¶ 152} Third, Elliott argues that his trial counsel was ineffective in his cross-
examination of Tracy because he raised prejudicial topics. However, “[t]he extent and
scope of cross-examination clearly fall within the ambit of trial strategy, and debatable trial
tactics do not establish ineffective assistance of counsel.” Leonard, 2004-Ohio-6235, at
No. 22AP-532 43
¶ 146. When reviewing a claim of ineffective assistance of counsel, an appellate court must
not scrutinize a trial counsel’s strategic decision to engage, or not engage, in a particular
line of questioning on cross-examination. State v. Harris, 10th Dist. No. 21AP-678, 2023-
Ohio-3994, ¶ 107. Here, Elliott disagrees with the strategic decisions his trial counsel made
during Tracy’s cross-examination, but that is not a basis for a claim of ineffective assistance
of counsel.
4. Failure to Object to “Death by a Thousand Cuts”
{¶ 153} Fourth, Elliott argues that his trial counsel was ineffective because he failed
to object when the prosecutor asked Dr. Daniels, “Have you ever heard of the phrase, ‘Death
by a thousand cuts?[’] ” (June 16, 2022 Tr. Vol. VI at 822.) Elliott contends that this
question was prejudicial because it suggested that Best had literally died of a thousand stab
wounds.
{¶ 154} Elliott’s argument ignores that “death of (or by) a thousand cuts” is a
commonly used phrase that means “a succession of minor hurts that are cumulatively very
serious or annoying.” Oxford English Dictionary (2d Ed.1989) (found under the definition
of “thousand” in sense 2.b.). Dr. Daniels unequivocally testified that Best had sustained 44
sharp force injuries. After asking Dr. Daniels if he had heard of the phrase “death by a
thousand cuts,” the prosecutor asked, “Does that apply possibly in this situation?”
(June 16, 2022 Tr. Vol. VI at 822.) Dr. Daniels answered, “It can, because all of these
wounds are actively bleeding when they’ve been sustained. You know, individually or in
small groups, these wounds may not be lethal, but if you have enough superficial wounds,
the amount of blood loss occurring may be significant.” Id. In other words, Dr. Daniels
replied that Best’s wounds could fit the phrase “death by a thousand cuts” because although
most of the 44 wounds she sustained were minor, they could be very serious cumulatively.
{¶ 155} Because “death by a thousand cuts” is a commonly understood phase,
Elliott’s trial counsel had no reason to suspect that any jury member would interpret this
phrase literally. Consequently, trial counsel had no basis on which to object, and we
conclude that no prejudice resulted. Elliott, thus, cannot prevail on his claim for ineffective
assistance of counsel.
No. 22AP-532 44
5. Cumulative Error
{¶ 156} Finally, Elliott argues that trial counsel was ineffective based on the
cumulative effect of his errors during trial. Under the cumulative error doctrine, an
appellate court will reverse a conviction “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.” Graham, 2020-Ohio-6700, at ¶ 169. However,
“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.”
Id. at ¶ 170. In this case, we have found no merit in any of Elliott’s claims for ineffective
assistance of counsel and, thus, we reject his claim that the cumulation of his counsel’s
alleged errors resulted in ineffective assistance.
{¶ 157} In sum, Elliott has failed to demonstrate that his trial counsel provided
ineffective assistance. Accordingly, we overrule Elliott’s fifth assignment of error.
F. Sixth Assignment of Error–Insufficient Evidence and Against the
Manifest Weight of the Evidence
{¶ 158} By Elliott’s sixth assignment of error, he argues that his convictions are not
supported by sufficient evidence and are against the manifest weight of the evidence. We
disagree.
{¶ 159} Challenges to the sufficiency of the evidence and the weight of the evidence
are distinctly different: “ ‘a challenge to the sufficiency of the evidence attacks its adequacy
* * * while a challenge to the weight of the evidence attacks is persuasiveness.’ ” State v.
Jordan, __ Ohio St.3d __, 2023-Ohio-3800, ¶ 15, quoting Disciplinary Counsel v. Smith,
152 Ohio St.3d 337, 2017-Ohio-9087, ¶ 23. In reviewing a challenge to the sufficiency of
the evidence, an appellate court must determine “whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.” Jenks, 61 Ohio St.3d
259 at paragraph two of the syllabus, superseded by state constitutional amendment on
other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4. “[A]n
appellate court does not ask whether the evidence should be believed but, rather, whether
the evidence, ‘if believed, would convince the average mind of the defendant’s guilt beyond
a reasonable doubt.’ ” State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, ¶ 19, quoting
No. 22AP-532 45
Jenks at paragraph two of the syllabus. Whether the evidence is legally sufficient to sustain
a conviction is a question of law, which an appellate court reviews de novo. State v. Dent,
163 Ohio St.3d 390, 2020-Ohio-6670, ¶ 15
{¶ 160} When an appellate court reviews whether a conviction is against the
manifest weight of the evidence, “ ‘[t]he court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving the conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.
Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). “Sitting as the ‘thirteenth juror,’ the court
of appeals considers whether the evidence should be believed and may overturn a verdict if
it disagrees with the trier of fact’s conclusion.” Jordan at ¶ 17. However, the appellate
court’s authority to reverse on manifest-weight grounds “ ‘should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins
at 387, quoting Martin at 175.
{¶ 161} In large part, Elliott attacks the credibility of the evidence against him,
which amounts to a challenge to the manifest weight of the evidence. However, Elliott
asserts two arguments that we construe as challenges to the sufficiency of the evidence. In
the first argument, he contends that reasonable doubt exists as to whether the paring knife,
identified as Ex. EE1, was the murder weapon. In the second, he argues that he did not
tamper with any evidence because White, alone, cleaned Best’s apartment. We will address
each argument in order.
1. Sufficiency of the Evidence–Existence of a Second Knife
{¶ 162} By his first sufficiency argument, Elliott challenges his conviction for
aggravated murder in violation of R.C. 2903.01(A), which states, “No person shall
purposely, and with prior calculation and design, cause the death of another.” Here, both
Bledsoe and White testified that they saw Elliott repeatedly stab Best. Bledsoe said that
Elliott used a paring knife to stab Best, and White referred to Ex. EE1, a paring knife, as
“[t]he” knife she saw Elliott use to stab Best. (June 21, 2022 Tr. Vol. VII at 1109.) Elliott
contends that this paring knife was too short to cause Best’s deeper stab wounds and, thus,
a second, longer knife also must have been used. Apparently, Elliott believes the existence
No. 22AP-532 46
of a second knife renders the evidence inadequate to prove that he committed aggravated
murder pursuant to R.C. 2903.01(A).
{¶ 163} As we explained above, “a defendant charged with an offense may be
convicted of that offense upon proof that he was complicit in its commission, even though
the indictment is ‘stated * * * in terms of the principal offense’ and does not mention
complicity.” Herring, 94 Ohio St.3d at 251. “To support a conviction for complicity by
aiding and abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the
defendant supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the criminal intent
of the principal.” Johnson, 93 Ohio St.3d at syllabus.
{¶ 164} In this case, Bledsoe testified that he saw Elliott punch Best multiple times,
stab Best in her kneecap, legs, and head, and slit Best’s throat. White testified that she saw
Elliott cut Best’s throat multiple times, and stab Best in her chest, back, buttocks, leg, the
back of her head, and the top of her head. White explained that when Elliott stabbed Best
in the top of her head, the knife blade bent. Ex. EE1, the knife recovered from the trash can
outside of Best’s apartment, had a bent blade. White identified Ex. EE1—the paring knife—
as the knife Elliott used to stab Best.
{¶ 165} Dr. Daniels testified that the cause of Best’s death was “[m]ultiple sharp
force injuries of the head, neck, chest and abdomen.” (June 16, 2022 Tr. Vol. VI at 803.)
Most of Best’s wounds were shallow; only 5 of 44 wounds were deeper than 3 inches.
{¶ 166} The foregoing evidence, if believed, would convince a reasonable trier of
fact that Elliott repeatedly stabbed Best with the paring knife. Even if a second
perpetrator—with a second, longer knife—inflicted the deeper wounds, Elliott assisted that
perpetrator in causing Best’s death by inflicting the shallower wounds. A rational trier of
fact, therefore, could find that Elliott committed aggravated murder under R.C. 2903.01(A)
beyond a reasonable doubt.
2. Sufficiency of the Evidence–Tampering with the Evidence
{¶ 167} In his second sufficiency argument, Elliott challenges his conviction for
tampering with evidence in violation of R.C. 2921.12(A)(1), which provides, “No person,
knowing that an official proceeding or investigation is in progress, or is about to be or likely
to be instituted, shall * * * [a]lter, destroy, conceal, or remove any record, document, or
No. 22AP-532 47
thing, with purpose to impair its value or availability as evidence in such proceeding or
investigation.” Elliott argues that White, alone, altered the crime scene when she cleaned
up Best’s apartment on her own initiative.
{¶ 168} This argument, however, disregards White’s testimony that she left in Best’s
apartment a garbage bag containing bloody rags, the plastic gloves she had been wearing,
Best’s bloody clothes, and cigarette butts. White exited Best’s apartment before Elliott.
Elliott, therefore, was the last person in possession of the garbage bag. When the police
arrived at Best’s apartment, the garbage bag was gone. The logical inference is that Elliott
disposed of the garbage bag.
{¶ 169} This evidence would convince a reasonable juror that Elliott concealed
evidence relating to the investigation of Best’s murder. Consequently, a rational trier of fact
could find Elliott guilty of tampering with evidence under R.C. 2921.12(A)(1) beyond a
reasonable doubt.
3. Manifest Weight–The Credibility of Bledsoe and White
{¶ 170} In addition to attacking the sufficiency of the evidence, Elliott also argues
that his convictions are against the manifest weight of the evidence. Elliott contends that
the jury could not believe Bledsoe’s or White’s testimony because Bledsoe and White: (1)
admitted to lying when initially questioned about Best’s murder, (2) had prior convictions
and faced criminal charges related to the murder, (3) were intoxicated at the time of the
murder, and (4) had their own motive to murder Best.
{¶ 171} The credibility of the witnesses is a matter primarily for the trier of fact to
determine. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. A
reviewing court gives deference to the jury’s determination of witness credibility because
the jury “is best able to view the witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). In judging witness
credibility, a jury “may believe or disbelieve any witness or accept part of what a witness
says and reject the rest.” State v. Antill, 176 Ohio St. 61, 67 (1964). Additionally, when
deciding whether to believe a particular witness’s testimony, a jury may “ ‘consider the
reasonableness of the testimony and all the facts and circumstances surrounding the
No. 22AP-532 48
testimony.’ ” State v. Greenwood, 10th Dist. No. 19AP-683, 2021-Ohio-921, ¶ 41, quoting
State v. Brown, 10th Dist. No. 15AP-935, 2016-Ohio-7944, ¶ 35.
{¶ 172} Elliott first asserts that Bledsoe and White are not credible because they
initially lied to the police about Best’s murder. Bledsoe admitted that when he was first
interviewed, he did not tell the police what happened the night of Best’s murder because he
“was afraid for [his] life.” (June 21, 2022 Tr. Vol. VI at 886.) Bledsoe started seizing during
that first interview, which terminated the interview prematurely. Bledsoe said that he told
the truth during his second interview because he “kn[e]w that the two people,” presumably
Elliott and White, “was locked up.” Id. at 911.
{¶ 173} White also admitted that she initially lied to the police about the murder.
Defense counsel ensured that the jury knew about these lies by elicting the following
testimony on cross-examination:
Q: Now even though on several occasions when the time [the
State] had been dealing with you, they’ve caught you not being
truthful, ain’t that correct?
A: Yes.
Q: And they caught you not being truthful about your
involvement in this murder; isn’t that correct?
A: Yes.
(June 16, 2022 Tr. Vol. VII at 1131.)
{¶ 174} White stated that she was slow to share with law enforcement the full truth
about the murder because she feared “what people would think and what [her] daughters
would think.” Id. at 1049. She did not want her daughters to “look badly” on her because
she took part in the murder. Id.
{¶ 175} “[I]t is within the province of the jury to consider the inconsistencies in [a
witness’s] previous statements to police with the testimony [the witness] provide[s] at trial
and resolve them accordingly.” State v. Hart, 10th Dist. No. 17AP-659, 2018-Ohio-2907,
¶ 22; accord State v. Steward, 10th Dist. No. 19AP-28, 2020-Ohio-4553, ¶ 75, quoting State
v. Oteng, 10th Dist. No. 14AP-466, 2015-Ohio-1231, ¶ 72 (“ ‘It is the province of the
factfinder to determine the truth from conflicting evidence, whether the conflicting
evidence comes from different witnesses or is contained within the same witness’s
No. 22AP-532 49
testimony.’ ”). Although Bledsoe and White admitted they initially lied to the police, a jury
could reasonably determine that they provided believable excuses for lying and accept their
subsequent testimony.
{¶ 176} Second, Elliott argues that Bledsoe and White are not credible because they
have prior convictions and faced charges related to Best’s murder. Bledsoe testified that he
previously pleaded guilty to attempted theft, a fifth-degree felony, in 2016. However,
Bledsoe did not face charges related to Best’s murder. Although he initially testified the
state would have pursued charges against him if he had not testified against Elliott, he
clarified on redirect examination that, in fact, he had only faced arrest if he had not
complied with the subpoena to testify at trial.
{¶ 177} Unlike Bledsoe, White was charged with multiple offenses related to Best’s
murder. White agreed to enter a guilty plea to Count 1, aggravated burglary; Count 2,
kidnapping; a lesser-included offense of Count 6, involuntary manslaughter; and Count 7,
tampering with evidence. The state of Ohio agreed to recommend the trial court enter a
nolle prosequi for Count 3, aggravated murder; Count 4, aggravated murder; and Count 5,
murder. The state also agreed to recommend the trial court sentence White to an indefinite
sentence of 20 to 25.5 years imprisonment.
{¶ 178} In the plea agreement, White also agreed to plead guilty in a separate case
to one count of possession of fentanyl, a fifth-degree felony. The state agreed to recommend
that the trial court terminate the case for time already served, which exceeded the
maximum sentence for the offense.
{¶ 179} On direct examination, White admitted that the plea agreement was “a good
thing” for her, but to obtain its benefits she had to “[t]ell the truth” at Elliott’s trial.
(June 21, 2022 Tr. Vol. VII at 1060.) Elliott’s trial counsel ensured that the jury understood
that White accepted the plea agreement, at least in part, so she could negotiate a lesser
sentence than she would receive if convicted. On cross-examination, White answered as
follows:
Q: You had decided that the only way that you could get out is
to enter a plea, right?
A: Yes.
No. 22AP-532 50
Q: And that was the primary thing you talked about. You
didn’t talk about feeling guilty. You ain’t talk about anything
other than the only way I’m going to see the light of day is if I
can somehow manage to enter a plea with the State of Ohio; is
that correct?
A: Yes.
Q: Who decides whether you get this deal or not?
A: State of Ohio.
Q: The State of Ohio. They decide whether you’re telling the
truth or you’re being honest; is that correct?
A: Yes.
Id. at 1130-31.
{¶ 180} Given White’s potential motive to dissemble, the trial court instructed the
jury on how to weigh White’s testimony:
You’ve heard testimony from Nicole White[,] another person
who pled guilty to aggravated burglary, kidnapping,
involuntary manslaughter, and tampering with evidence in the
case and is said to be an accomplice. An accomplice is one who
purposely or knowingly assists another in the commission of a
crime. Whether Nicole White was an accomplice and the
weight to give her testimony are matters for you to determine
from all the facts and circumstances in evidence.
The testimony of an accomplice does not become inadmissible
because of her complicity, moral turpitude, or self-interest, but
the admitted or claimed complicity of a witness may affect her
credibility and make her testimony subject to grave suspicion,
and require that it to be weighed with great caution.
It is for you, as jurors, in light of all the facts presented to you
and from the witness stand, to evaluate such testimony and to
determine its quality and worth or its lack of quality and worth.
(June 23, 2022 Tr. Vol. IX at 1435-36.)
{¶ 181} It is within the jury’s province to believe a co-defendant’s testimony despite
her admitted involvement in the offenses and plea agreement with the state. State v.
Webster, 10th Dist. No. 20AP-171, 2021-Ohio-3218, ¶ 74; State v. Brightwell, 10th Dist. No.
No. 22AP-532 51
18AP-243, 2019-Ohio-1009, ¶ 42-44; Hart, 2018-Ohio-2907, at ¶ 21; State v. Berry, 10th
Dist. No. 10AP-1187, 2011-Ohio-6452, ¶ 18; accord State v. Williams, 8th Dist. No. 111922,
2023-Ohio-2296, ¶ 93 (holding a co-defendant’s “testimony was not ‘unworthy of belief’
simply because of his involvement in the robberies and his plea agreement with the state”).
Likewise, a jury may find a witness’s testimony credible despite his previous convictions.
Greenwood, 2021-Ohio-921, at ¶ 37, 41; State v. Taylor, 10th Dist. No. 14AP-254, 2015-
Ohio-2490, ¶ 37.
{¶ 182} The jury in this case had before it sufficient evidence to understand that the
plea agreement could possibly influence White to falsely implicate Elliott in Best’s murder.
The jury also heard the trial court’s instruction warning it to carefully consider White’s
credibility in light of her admitted participation in the crimes. Additionally, the jury
understood that Bledsoe had a previous conviction, which might cast doubt on his
truthfulness. Despite the reasons to disbelieve Bledsoe and White, the jury found both
witnesses credible.
{¶ 183} Third, Elliott argues that Bledsoe and White are not credible because both
were intoxicated when Best was murdered. White testified that at the time of the murder,
Bledsoe was drunk, and she was high on crystal methamphetamine. White, however,
maintained that the drugs she took did not affect her ability to remember. According to
White, “[t]he next day after doing drugs [she] always replay[ed] [events] * * * like a movie
[in her head].” (June 21, 2022 Tr. Vol. VII at 1102.)
{¶ 184} For the purposes of a manifest weight of the evidence review, a witness’s
intoxication “ ‘is not a sufficient basis to completely undermine his or her testimony absent
something in the record demonstrating that the intoxication rendered the witness
incapable of accurately recalling the events.’ ” State v. Harrison, 1st Dist. No. C-220171,
2023-Ohio-471, ¶ 13, quoting State v. Melton, 8th Dist. No. 103341, 2016-Ohio-1227, ¶ 7.
Here, both Bledsoe and White testified to their recall the events of Best’s murder.
Consequently, Bledsoe’s and White’s intoxication is only a factor informing the credibility
determination; it does not render their testimony per se incredible. See Melton at ¶ 7
(absent evidence that intoxication rendered a witness unable to accurately recall events,
“[i]ntoxication bears on the witness[’s] credibility, but the weight of the testimony must still
No. 22AP-532 52
be considered by the trier of fact with the ability to view and hear firsthand the witness[’s]
testimony”).
{¶ 185} Fourth, Elliott argues that Bledsoe and White are not credible because they
had their own motive to murder Best: they wanted to have a relationship, but Best—
Bledsoe’s girlfriend—stood in the way. The evidence supporting Bledsoe’s and White’s
supposed motive is weak, at best. Bledsoe testified that he and White liked each other “[a]
little bit.” (June 16, 2022 Tr. Vol. VI at 916.) He and White kissed each other once, although
Best knew about the kiss. According to Bledsoe, he would “probably” consider having
White as a girlfriend if he was not in a relationship with Best. Id. at 917. White, however,
denied wanting to date Bledsoe. She also denied ever kissing Bledsoe. White explained
that she lacked any interest in Bledsoe because she is attracted to the same sex.
{¶ 186} After reviewing each of Elliott’s challenges to Bledsoe’s and White’s
credibility, we cannot say the jury clearly lost its way. The jury was in the best position to
assess the credibility of the witnesses and their testimony. During cross-examination of
Bledsoe and White, defense counsel explored the various reasons the jury could find both
witnesses unreliable and reject their version of events. The jury, therefore, was aware of all
the credibility issues Elliott raises on appeal, and it could evaluate the witnesses’ testimony
in light of those issues. The jury found Bledsoe and White were believable witnesses.
Nothing Elliott argues on appeal makes Bledsoe’s and White’s testimony so incredible as to
render Elliott’s convictions against the manifest weight of the evidence.
4. Manifest Weight–Lack of Physical Evidence
{¶ 187} Elliott next argues that his convictions are against the manifest weight of
the evidence due to the lack of physical evidence connecting him to Best’s murder. Contrary
to Elliott’s argument, the record is not devoid of physical evidence corroborating Elliott’s
participation in Best’s murder. Tracy, Bledsoe, and White all testified that Elliott wore
plastic gloves when assaulting Best. The police found a plastic glove in a trash can in the
backyard of 1422 Phale D. Hale Drive. The state presented evidence that DNA analysis of
a swab from the outside of that glove detected a DNA mixture consistent with Best and
Elliott.
{¶ 188} Moreover, a conviction based on testimony is not against the manifest
weight of the evidence despite the lack of physical evidence. State v. Steward, 10th Dist.
No. 22AP-532 53
No. 19AP-35, 2019-Ohio-5258, ¶ 31. In other words, “ ‘[i]f testimony is believed[,] then the
lack of fingerprints, DNA, footprints or any other physical evidence does not render the
conviction against the manifest weight of the evidence.’ ” State v. Peeples, 10th Dist. No.
13AP-1026, 2014-Ohio-4064, ¶ 21, quoting State v. Jackson, 7th Dist. No. 09 JE 13, 2009-
Ohio-6407, ¶ 16.
{¶ 189} Here, the testimony of Tracy, Bledsoe, and White provides the evidence
necessary to find Elliott guilty beyond a reasonable doubt of aggravated murder, aggravated
burglary, kidnapping, and tampering with evidence. Therefore, the paucity of physical
evidence does not render Elliott’s convictions against the manifest weight of the evidence.
5. Manifest Weight–Testimony of Gee
{¶ 190} Finally, Elliott argues that his convictions are against the manifest weight
of the evidence because the black man that Kari Gee, the OSU Hospital employee, saw
walking between apartments B and C was wearing clothing that did not match Elliott’s
clothing. Gee testified that the black male she saw was wearing coveralls and possibly a
black beanie. The recording from Officer Wolfe’s body-worn camera shows that, only hours
before Best’s murder, Elliott was wearing a light-colored t-shirt, blue jeans, and a black
ballcap.
{¶ 191} Based on Bledsoe’s and White’s testimony, Elliott was the only person Gee
could have observed walking between apartments B and C at 4:30 a.m. on March 13. As
neither Tracy, Bledsoe, nor White testified that Elliott had changed his clothes prior to that
time, it appears Elliott was then wearing a t-shirt and jeans, not coveralls. Thus, Elliott has
identified an inconsistency in the evidence. While a jury may take note of inconsistencies
in the evidence and resolve or discount them, inconsistencies do not render a defendant’s
conviction against the manifest weight of the evidence. State v. Walker, 10th Dist. No.
20AP-138, 2021-Ohio-1381, ¶ 21; State v. Johnston, 10th Dist. No. 18AP-817, 2019-Ohio-
5135, ¶ 20. Consequently, Gee’s testimony regarding the apparel of the man she saw does
not provide a basis for a reversal of Elliott’s convictions on manifest weight grounds.
{¶ 192} In sum, we conclude that Elliott’s convictions are supported by sufficient
evidence and are not against the manifest weight of the evidence. Accordingly, we overrule
Elliott’s sixth assignment of error.
No. 22AP-532 54
G. Seventh Assignment of Error–Appointment of New Counsel
{¶ 193} By Elliott’s seventh assignment of error, he argues that the trial court erred
in not inquiring further when he requested new appointed counsel. We disagree.
{¶ 194} Under the Sixth Amendment to the United States Constitution, an indigent
defendant is entitled to professionally competent, effective representation. State v.
McNeill, 83 Ohio St.3d 438, 452 (1998). However, “[t]here is no constitutional right to a
‘meaningful attorney-client relationship.’ ” Id., quoting Morris v. Slappy, 461 U.S. 1, 13-14
(1983).
{¶ 195} “To discharge a court-appointed attorney, the defendant must show a
breakdown in the attorney-client relationship of such a magnitude as to jeopardize the
defendant’s right to effective assistance of counsel.” State v. Coleman, 37 Ohio St.3d 286(1988), paragraph four of the syllabus. Disagreement between a court-appointed attorney
and a client over trial tactics and strategy does not warrant a substitution of counsel. State
v. Erwin, 10th Dist. No. 09AP-918, 2010-Ohio-3022, ¶ 7; State v. Harris, 10th Dist. No.
09AP-1111, 2010-Ohio-4127, ¶ 41. Similarly, hostility, tension, and personal conflicts do
not require appointment of new counsel if they do not result in a total breakdown in
communication that interferes with the preparation and presentation of a defense. Erwin
at ¶ 7; Harris at ¶ 41. To obtain a new appointed counsel, a defendant “ ‘ “must demonstrate
‘good cause’ to warrant substitution of counsel.” ’ ” State v. Ketterer, 111 Ohio St.3d 70,
2006-Ohio-5283, ¶ 149, quoting State v. Cowans, 87 Ohio St.3d 68, 99 (1999), quoting
United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). Such good cause includes a
conflict of interest, a complete breakdown in communication, or an irreconcilable conflict
that leads to an apparent unjust result. Erwin at ¶ 7; Harris at ¶ 41. Importantly, good
cause for the dismissal of court-appointed counsel is not determined solely according to the
subjective standard of what the defendant perceives. State v. Evans, 153 Ohio App.3d 226,
2003-Ohio-3475, ¶ 31 (7th Dist.).
{¶ 196} A defendant bears the burden of demonstrating grounds for the
appointment of new counsel. State v. Griffin, 10th Dist. No. 12AP-798, 2013-Ohio-5389,
¶ 12; Erwin at ¶ 8; Harris at ¶ 42. If a defendant alleges facts which, if true, would warrant
the appointment of new counsel, the trial court must inquire into the defendant’s complaint
and make that inquiry on the record. Griffin at ¶ 12; Erwin at ¶ 8; Harris at ¶ 42. However,
No. 22AP-532 55
the “ ‘limited judicial duty [to inquire into a defendant’s complaint] arises only if the
allegations are sufficiently specific; vague or general objections do not trigger the duty to
investigate further.’ ” Johnson, 2006-Ohio-6404, at ¶ 68, quoting State v. Carter, 128 Ohio
App.3d 419, 423 (4th Dist.1998).
{¶ 197} On September 29, 2020 and November 30, 2020, the trial court received
almost identical letters from Elliott in which he complained about his court-appointed
attorney. Elliott told the court that he wanted to fire his attorney because he had only briefly
spoken with his attorney twice, and he had not yet received his discovery responses. Elliott
stated that he felt his attorney did “not have [his] best interest in mind,” and he “did not
feel [he was] getting the proper representation [he was] entitled by law.”
{¶ 198} As an initial matter, we conclude that Elliott only expressed general
dissatisfaction with his attorney when he complained that his attorney did not have his best
interest in mind and was not providing him proper representation. Such complaints do not
warrant further investigation. See State v. Phipps, 2d Dist. No. 29199, 2022-Ohio-1188,
¶ 17-18 (no duty to inquire further where the defendant requested to fire his court-
appointed attorney because he complained his attorney had not fully represented him);
Griffin at ¶ 13, quoting State v. Washington, 1st Dist. No. C-000754 2001 Ohio App. LEXIS
3604, *14 (Aug. 17, 2001) (“ ‘A trial court, without more, does not abuse its discretion in
finding that a general allegation of unhappiness with appointed counsel is so vague that it
does not require additional investigation.”).
{¶ 199} Although Elliott’s other allegations in his letters are more specific, they do
not rise to the level of good cause. Elliott did not assert a complete breakdown in
communication; instead, he merely wanted more contact with his attorney. Moreover, we
are mindful of the context in which Elliott wrote his letters. Elliott was indicted on April 17,
2020. His trial did not begin until over two years later, on June 8, 2022. Elliott,
consequently, complained about his counsel’s performance relatively early in the evolution
of his case. In that context, his letters do not show a breakdown in the attorney-client
relationship that required court inquiry, but rather betray frustration with the pace of
litigating a complicated aggravated murder case. Indeed, when the case proceeded to trial,
Elliott did not express to the trial court that he was dissatisfied with his attorney.
No. 22AP-532 56
{¶ 200} Considering the totality of the circumstances, Elliott’s complaints regarding
his court-appointed counsel did not trigger the trial court’s duty to conduct an inquiry.
Accordingly, we overrule Elliott’s seventh assignment of error.
IV. CONCLUSION
{¶ 201} For the foregoing reasons, we overrule Elliott’s seven assignments of error,
and we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
JAMISON and EDELSTEIN, JJ., concur.
_________________
JAMISON, J., concurring.
{¶ 202} Because the concurrence raises the test for admissibility in State v. Souel,
53 Ohio St.2d 123 (1979) and its progeny, I write separately.
{¶ 203} I take no issue with the recitation of facts, therefore, I adopt them fully.
Further, I agree with the majority decision’s analysis of the second assignment of error. I
would also find a different reason to restrict the use of the codefendant’s polygraph.
{¶ 204} A defendant’s right to present relevant evidence is subject to reasonable
restrictions to accommodate other legitimate interests in the criminal trial process.
See, e.g., Rock v. Arkansas, 483 U.S. 44, 55 (1987). Here, the jury heard all the relevant
details of the charged offense from the perspective of the accused, and the exclusion of the
codefendant’s polygraph results by expert testimony did not preclude him from introducing
any factual evidence.
{¶ 205} Unlike the concurring decision of Judge Edelstein, I see no reason for the
Supreme Court of Ohio to provide guidance as Souel is interpreted correctly. I would find
that appellant has no right to admit a polygraph of a separate defendant into evidence in
his or her trial. The Fifth Amendment to the United States Constitution, which applies to
the States by virtue of the Fourteenth Amendment, provides that “ ‘[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.’ ” (Emphasis added.)
Malloy v. Hogan, 378 U.S. 1, 15 (1964), fn. 1. The codefendant took the polygraph for her
benefit to potentially use it as a bargaining tool while negotiating a plea bargain or proffer
against her codefendant. The rationale they would take her polygraph test and use it in her
codefendant’s trial would undermine the binding contract between the prosecutor and
No. 22AP-532 57
defendant. Any statement differing from her polygraph results could incriminate her in the
crime of perjury and admissibility, therefore, flies in the face of the protections guaranteed
by the Fifth Amendment.
{¶ 206} Further, Souel and its progeny go toward admissibility. “A courtroom is
not a research laboratory. The fate of a defendant * * * should not hang on his ability to
successfully rebut scientific evidence which bears an ‘aura of special reliability and
trustworthiness,’ although, in reality the witness is testifying on the basis of an unproved
hypothesis * * * which has yet to gain general acceptance in its field.” United
States v. Brown, 557 F.2d 541, 556 (1977), quoting United States v. Amaral, 488 F.2d
1148, 1152 (1973). First, federal and state courts—including this court—have long
expressed skepticism of polygraph evidence. See, e.g., In re D.S., 111 Ohio St.3d 361, 2006-
Ohio-5851, ¶ 13 (“We have not adopted the unrestrained use of polygraph results at trial,
and polygraphs themselves remain controversial.”); Wolfel v. Holbrook, 823 F.2d 970, 974
(6th Cir.1987) (noting the “general skepticism that pervades the scientific community
concerning the reliability of polygraph examination”). As the United States Supreme Court
has acknowledged, “doubts and uncertainties plague even the best polygraph exams.”
United States v. Scheffer, 523 U.S. 303, 312 (1998). Such examinations may not be reliable.
See id. (“Whatever their approach, state and federal courts continue to express doubt about
whether such evidence is reliable.”). They may also cause unfair prejudice. See, e.g., State
v. Porter, 241 Conn. 57, 93 (1997) (“After reviewing the case law and the current, extensive
literature on the polygraph test, * * * we are convinced that the prejudicial impact of
polygraph evidence greatly exceeds its probative value.”). See State v. Nitso, 11th Dist. No.
2023-T-0025, 2024-Ohio-790. I would find that due to the unreliability of polygraph
evidence that the refusal to admit the codefendant’s polygraph evidence, exclusive of Souel,
was not an abuse of discretion.
{¶ 207} The rules of discovery have been liberally construed to provide a defendant
with “[a]ny written or recorded statement by * * * a co-defendant” upon demand for
discovery. Crim.R. 16(B)(1). However, providing a codefendant with the codefendant’s
statement does not guaranty admissibility during a trial. Providing the codefendant with
the statement gives the defendant the opportunity to impeach the credibility of the witness’
testimony if they offer testimony that is inconsistent to the prior statement. Also, evidence
No. 22AP-532 58
is material—or prejudicial—“ ‘ “when there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different.” ’ ” State
v. Brown, 174 Ohio St.3d 455, 2024-Ohio-749, quoting Turner v. United States, 582 U.S.
313, 324 (2017), quoting Cone v. Bell, 556 U.S. 449, 469-70 (2009). The codefendant’s
polygraph results and statements made therein were disclosed. The jury, the trier of fact,
judged the credibility of the witnesses at trial and made a determination as to appellant’s
guilt or innocence. In a few reported cases prosecutors have gone beyond stipulating to the
admissibility of test results and have agreed to the dismissal of charges on the condition
that the defendant pass a polygraph examination. See generally Annotation, 36 A.L.R.3d
1280 (1971). In some cases, the defendant had no obligations under such an agreement
other than to cooperate in the examination. People v. Reagan, 395 Mich. 306, 309 (1975);
State v. Sanchell, 191 Neb. 505, 509-10 (1974), cert. denied, 420 U.S. 909, 1975 U.S. LEXIS
461 (Jan. 27, 1975). In other cases the defendant either agreed to admit the test results,
Butler v. State, 228 So.2d 421, 424-25 (Fla.App.1969), or to enter a plea to a reduced charge
in the event he failed the examination, State v. Davis, 188 So.2d 24, 27 (Fla.App.1966).
Giannelli, Paul C., Polygraph and Deception Tests: Part II (1985), Faculty Publications,
471.
{¶ 208} A determinative factor in the reported cases has been the existence of a
statute requiring court approval for dismissals. When a trial court approved the dismissal
or was cognizant of the agreement, appellate courts have held the prosecutor bound by the
agreement on public policy grounds. Butler at 424; Davis at 28; People at 318. According
to these courts, the agreement represents a “pledge of public faith - a promise made by state
officials - and one that should not be lightly disregarded.” Davis at 27.
{¶ 209} Souel states in relevant portion:
The prosecuting attorney, defendant and his counsel must sign
a written stipulation providing for defendant’s submission to
the test and for the subsequent admission at trial of the graphs
and the examiner’s opinion thereon on behalf of either
defendant or the state.
Souel at syllabus. It is axiomatic that no defendant enters into a contract with the
prosecutor on the premise that a third-party codefendant who has not negotiated the terms
of the agreement, knowingly signed the agreement, or bargained for his own consideration,
will receive the consideration in the agreement, the admissibility of the test for their own
No. 22AP-532 59
benefit. Basic principles of contract require knowing and voluntary agreement, negotiation
of its terms, and consideration. As a stipulation is a contract, the codefendant and
prosecutor in this case never negotiated terms for appellant. Further, admissibility is still
subject to the discretion of the trial judge which in this case was denied.
{¶ 210} Because of the unreliability of the science and the failure to satisfy the first
prong of Souel’s four-part test, I concur with the majority decision to overrule Elliott’s
second assignment of error.
EDELSTEIN, J., concurring.
{¶ 211} While I have the same concerns as Judge Jamison regarding the reliability
of polygraph examination results generally, that issue is not before us in this case. I write
separately as to the second assignment of error to address the propriety of applying the
State v. Souel, 53 Ohio St.2d 123 (1978) test to factual circumstances like those presented
here.
{¶ 212} The majority resolves the issue of whether the results of a stipulated
polygraph examination taken by a codefendant turned cooperating state witness were
admissible on cross-examination of the codefendant in Elliott’s trial by applying the four-
part test set forth in Souel. In Souel, as noted by the majority, the Supreme Court was
tasked with determining whether a defendant’s own polygraph results could be admitted
as evidence in his own trial. Id. at 129. More precisely, the certified question before the
Souel court was “[w]hether the results of a polygraph examination are admissible into
evidence when the defendant, prior to the examination, consents by written stipulation to
the admissibility thereof, but withdraws his consent after the results of the test are known
but prior to introduction of the testimony at trial.” Id. Because of that framing, the Souel
decision and the first prong of its four-part test reflect the circumstances of that case—
namely, that “[t]he prosecuting attorney, defendant and his counsel must sign a written
stipulation providing for defendant’s submission to the test and for the subsequent
admission at trial of the graphs and the examiner’s opinion thereon on behalf of either
defendant or the state.” (Emphasis added.) Id. at syllabus.
No. 22AP-532 60
{¶ 213} Here, the majority overrules Ellott’s second assignment of error because he
cannot satisfy the first prong of Souel’s four-part test. Indeed, it is clear Elliott was not—
nor would he ever be—a party to his codefendant’s stipulated agreement with the state to
the admissibility of that codefendant’s polygraph examination results at that codefendant’s
trial. For this reason, I question the propriety of our continued application of a patently
unworkable test to circumstances like those presented in this case. Elliott sought to cross-
examine and impeach his codefendant, White, who testified as a state’s witness in his trial.
In her own case, White and the state entered a stipulation whereby they agreed the results
of White’s polygraph examination would be admissible as evidence in her trial. Of course,
Elliott was not a party to that stipulation, and White did not agree to undergo an additional
polygraph examination under stipulation with Elliott and the state. Suffice it to say, these
circumstances are meaningfully different from those encountered by the court in Souel.
{¶ 214} Despite these differences, appellate courts across the state, including our
own, have suggested the Souel test applies when deciding the admissibility of all polygraph
examinations. See, e.g., State v. Rowe, 68 Ohio App.3d 595, 610 (10th Dist.1990) (noting
the Souel factors must be satisfied before a witness’s polygraph examination results can be
admitted into evidence at a criminal trial); State v. Penque, 8th Dist. No. 99209, 2013-
Ohio-4696, ¶ 33-35 (applying the Souel requirements to admissibility of a witness’s failed
polygraph test); State v. Rucker, 6th Dist. No. S-99-007, 2000 Ohio App. LEXIS 3819, *7-
8 (Aug. 25, 2000) (applying the Souel test to admissibility of stipulated polygraph
examinations taken by the appellant and a witness).
{¶ 215} On close review of Souel and its progeny, however, I do not find any
mandate requiring that a defendant who seeks to use evidence of a codefendant’s polygraph
examination results at his own trial be a party to the codefendant’s written stipulation with
the state regarding the admissibility of that codefendant’s polygraph results at that
codefendant’s trial. In fact, this court seemed to acknowledge as much in State v. Lascola,
61 Ohio App.3d 228, 234 (10th Dist.1988), when we stated, “[T]he guidelines of Souel
specifically addressed the admissibility of a defendant’s polygraph test results, not those of
the complaining witness.” So, too, did the Seventh District, when it noted that “ ‘appellate
courts have not specifically ruled that a witness’s polygraph test is admissible under the
same conditions as a defendant’s polygraph test.’ ” State v. Beshara, 7th Dist. No. 07 MA
No. 22AP-532 61
37, 2009-Ohio-6529, ¶ 65, quoting State v. Hubbard, 150 Ohio App.3d 623, 2002-Ohio-
6904, ¶ 39 (7th Dist.), citing Lascola at 236.
{¶ 216} And so, our court and many of our sister districts have continued to
extrapolate from the Souel decision in circumstances like those presented here without
explicit guidance from our Supreme Court. Indeed, that is how the majority resolves
Elliott’s second assignment of error today. But, in a case like this, requiring that a
defendant be party to a codefendant witness’s stipulated polygraph examination is
unnecessary and impracticable. Instead, it seems the procedures and safeguards in this
case alleviate the primary fairness and reliability concerns that gave rise to the Souel
requirements. White, her counsel, and the state entered a polygraph stipulation and agreed
the results of her examination would be admissible in her trial. By their stipulation, White
and the state assumed the risk of error and exercised control over the procedures and other
variables that affect the accuracy of polygraph examination results. See Souel at 133, citing
Note, 48 N.Y.U.L.Rev. 339 (1973); Lascola at 234. Although Elliott was not party to this
stipulation, he sought to admit the polygraph evidence in his own trial, seemingly accepting
its questionable reliability, risk of error, and possible ramifications of its presentation as
evidence to the jury. And given Crim.R. 16(B)(1)’s requirement that the state provide a
defendant with “[a]ny written or recorded statement by * * * a co-defendant” upon
discovery demand and a criminal defendant’s federal and state constitutional rights to
confront witnesses testifying against him at trial, it is difficult to reconcile these well-
established rights and rules with case law categorically precluding, pursuant to Souel, a
defendant from questioning a codefendant testifying against him on behalf of the state
about prior statements—including those made during polygraph examination—that call
into question the credibility of that testimony.
{¶ 217} I therefore write separately to emphasize the need for clarification from the
Supreme Court on when a testifying codefendant witness’s stipulated polygraph
examination results may be admitted into evidence at a defendant’s criminal trial. As
Justices Brunner and Donnelly recently noted in opinions dissenting from the court’s
denial of jurisdiction in State v. Nitso, __ Ohio St.3d __, 2024-Ohio-2885, significant
uncertainty remains regarding the admissibility of polygraph examination results
No. 22AP-532 62
notwithstanding the fact that Souel was decided over 45 years ago. The bench, the bar, and
criminal defendants would benefit from some clarification.