State v. Skatzes (104 Ohio St. 3d 195, 2004)

Pfeifer, J.

{¶ 1} On the afternoon of April 11, 1993, inmates at the Southern Ohio Correctional Facility (“SOCF”) at Lueasville rioted and took control of L Section, one of three main prison cell blocks. On or about April 12, inmates killed inmate Earl Elder. On April 15, inmates killed Robert Vallandingham, one of eight corrections officers taken hostage during the riot. On April 21, while inmates were surrendering and releasing the remaining hostages, inmates killed inmate David Sommers. Defendant-appellant, George Skatzes, was found guilty as one of the inmates responsible for the murders of Elder, Vallandingham, and Sommers and was sentenced to death.

{¶ 2} Sometime before April 11, 1993, the Ohio Department of Health mandated that all prison inmates in Ohio’s prison system be tested for tuberculosis. The test required an injection. The Muslim inmates at SOCF, led by Carlos “Hasan” Sanders, a leader of the Muslims at SOCF, objected to that form of testing on religious grounds. Word filtered down to the Muslims that a lockdown of SOCF was going to take place on Monday, the day after Easter Sunday, April 12, 1993, to facilitate the tuberculosis testing.

{¶ 3} On the evening before the riot, April 10, high-ranking members of the Aryan Brotherhood, including Jason Robb, Dewey Bocook, and Freddie Snyder, and the Muslims, including Sanders and James Were, met in the L block gym. Upon seeing this gathering, inmate Robert Brookover knew “there was something going on.” Robb told fellow Aryan Brotherhood member Roger Snodgrass, “[B]e on [your] toes tomorrow.”

{¶ 4} On the afternoon of April 11, inmates took control of the entire L section of the prison, including cell blocks 1 through 8. Prison authorities attempted to end the takeover by negotiating over the phone with representatives of the three dominant gangs. The gangs included the Muslims, led by Sanders, who controlled L6; the Aryans, led by Jason Robb and Skatzes, who controlled L2; and the ■ Black Gangster Disciples, led by Anthony Lavelle, who controlled LI. Inmates controlled access'to and from any area of L block.

{¶ 5} Several corrections officers (“C.O.s”), including Robert Vallandingham, who was working in LI that day, were taken hostage. As the riot unfolded in its early stages, Vallandingham had locked himself in the corrections officers’ LI restroom. Inmates were able to batter open the restroom door and take him hostage. Other inmates saw Sanders and Were escort Vallandingham to L6. Other guards taken hostage were eventually held in L6 as well, except for C.O.s Darrold Clark and Jeff Ratcliff, who were confined for most of the riot in L2.

{¶ 6} During the initial stages of the riot, inmates stormed to the back stairwell of L2 where C.O. Ratcliff and inmate Earl Elder had locked themselves. Using a weight bar, inmates punched holes in the wall next to the L2 stairwell door. Ratcliff came out of the stairwell and was beaten. Inmates then brought Elder out of the stairwell and began beating him with baseball bats and stabbing him with shanks. Robb was heard telling Elder, “You want to be police, we will show you what it is to be police.” Elder was then locked in a cell in L6.

{¶ 7} Later that night, Lucky Roper, a Muslim inmate, met with Skatzes in the gym. Skatzes then went to Snodgrass and told him, “We got to go to L6.” At L6, Skatzes told Snodgrass: “I want you to take this guy out.” Then Skatzes, Roper, and Snodgrass went to the cell where Elder was being held, and Skatzes told Snodgrass, “Go ahead and take care of your business, son.” Snodgrass went into the cell and stabbed Elder numerous times. When Snodgrass came out of the cell, Skatzes put his arm around him and said, “You did a good job, brother, I am proud of you.” Elder’s body was placed in the recreation yard at 10:15 the next morning. He died from multiple stab wounds in his chest and head, as well as skull fractures.

{¶ 8} On April 12, prison authorities turned off the electricity and water in L block. Skatzes shouted from a window with a bullhorn, demanding that the authorities turn the power back on. He also had C.O.-hostage Ratcliff identify himself using the bullhorn and demand that power be restored inside L block.

{¶ 9} Within two or three days of the takeover, FBI technicians had placed microphones in the tunnels underneath L block to record inmate conversations. By the end of the riot, 591 “tunnel tapes” had been recorded.

{¶ 10} The inmate leaders negotiated over the phone with prison authorities. Inmate David Sommers controlled the phones and tape-recorded the inmate leaders during their negotiations with prison authorities. During the first half of the riot, Skatzes was one of the lead inmate negotiators. He told the prison negotiators to stop tear-gassing K block, which they were doing to quell a disturbance, or they were “going to cost an officer’s life.” As he continued to argue with authorities over the phone, Skatzes declared, “[Y]ou just cost an officer’s life.” At that time, however, the inmates had not killed a guard.

{¶ 11} At another time during the siege, Skatzes and Robb ordered a crew of inmates to make a hole in a back wall of L7. They planned to kill a C.O. and dangle his body out of the back of L7, where it could be seen from the front of the SOCF by members of the media. In addition, Skatzes instructed inmates guarding the C.O. hostages to kill them if authorities came into L block.

{¶ 12} On April 14, the inmate leaders met in L2 to discuss a solution to the stalemate on their demands. In addition to the gang leaders, including Skatzes, other inmates within the three gangs also attended the meeting. According to Lavelle, a vote was taken to kill a guard if their demands were not met. “No one spoke against doing it, so it was agreed it would happen.”

{¶ 13} Later that evening on April 14, inmate Miles Hogan overheard a conversation between Skatzes, Sanders, and inmate Stanley Cummings. They talked about the fact that someone who was supposed to kill a C.O. had backed out. Skatzes blurted out: “Fuck the CO, I will kill the CO or fuckin’ COs.”

{¶ 14} Another inmate-leader meeting took place on the morning of April 15. At that time, Skatzes got on the phone and demanded that prison authorities restore water and power within L block or “there would be a guaranteed murder.” He added, “Do your thing. 10:30 or a dead man’s out there.” He said that if the water and power were not turned back on by 10:30, “the hardliners were going to step in and take over.” At the inmate meeting of leaders, a vote was taken to kill a C.O., and a member from each inmate gang was chosen to participate in the killing. According to witnesses at the meeting, Skatzes agreed with the decision to kill a C.O.

{¶ 15} The deadline set by Skatzes passed without the water or power being restored. Officer Vallandingham was killed in L6 by Muslim inmates. Several masked inmates carried Vallandingham’s body out of L6 and down the L corridor to the gym. Skatzes walked behind those who carried the body. At 11:10 a.m., Vallandingham’s body was placed in the recreation yard. The coroner later concluded that Vallandingham had died by ligature strangulation.

{¶ 16} Negotiations resumed that afternoon, and the inmate leaders agreed to release a C.O. in exchange for allowing Skatzes to make a live radio broadcast to air the concerns and demands of the inmates. The broadcast took place that evening at 7:30 p.m. in the recreation yard. After the broadcast, C.O. Darrold Clark was released. Although he had a transcript, Skatzes’s performance was described as “rambling.” Many inmates were not pleased, and Sanders told Robb that he wanted him to make all future decisions on behalf of the Aryans. Skatzes’s role as an inmate negotiator diminished thereafter.

{¶ 17} The following day, April 16, prison officials agreed to allow inmate Cummings to broadcast inmate grievances on television, in exchange for the release of another C.O. At 1:35 p.m., C.O. Tony Demons was released while Cummings delivered his live television address.

{¶ 18} The takeover continued because Sanders and Robb reportedly wanted to break the record for the longest prison takeover in the United States. Finally, on April 20 and 21, Sanders, Robb, and Lavelle met with attorney Niki Schwartz to discuss ending the takeover. They reached an agreement, and the inmates began to surrender on April 21.

{¶ 19} Meanwhile, during a meeting in L2 between Robb, Lavelle, and Sanders, the gang leaders decided that inmate David Sommers, who controlled the phones and ran the inmates’ tape player throughout the negotiations “had to die, he knew too much.” Sommers had a reputation as a snitch before the riot. Robert Brookover also had a reputation as a snitch, but he was given a choice: kill someone or be killed. Brookover asked Skatzes if he was going to be killed. Skatzes replied, “[J]ust take care of business, be cool.”

{¶ 20} The surrender was held up for a period of time because, as Skatzes, Robb, Sanders, and Cummings told Lavelle, they had “some things [they had] to take care of.” An inmate called “Kinky” gave Brookover baker’s clothes (kitchen whites, which Brookover put on), a shank, and an extension cord. Skatzes, Snodgrass, and Bocook also changed into different clothes. When Robb arrived, the group went to L7 across the corridor from L2. Bocook instructed Brookover to retrieve baseball bats out of a guitar ease in the back of L7. When they arrived in L7, no one was there. Bocook screamed, “Where’s that bitch Sommers at.” Robb left to get Sommers from L2 and, moments later, Sommers was seen chasing Robb into L7. Brookover tackled Sommers and stabbed him. Skatzes ran up and kicked Sommers in the head. Brookover followed orders to choke Sommers with the extension cord, and then Skatzes struck Sommers in the head with a baseball bat at least three times. Brookover and the others beat and stabbed Sommers until he was dead. Then the killers cleaned themselves, burned their clothes, and surrendered to authorities.

{¶ 21} Prison authorities found Sommers’s body in L7. The coroner attributed death to a massive blow to the head leading to skull fracture, laceration of the skull, and other severe brain injuries and bleeding.

{¶ 22} The Scioto County Grand Jury indicted Skatzes on six counts of aggravated murder, two counts each for the murders of Vallandingham, Elder, and Sommers. Each murder count carried four death specifications: murder in a detention facility [R.C. 2929.04(A)(4) ], a prior aggravated murder conviction [R.C. 2929.04(A)(5) ], murder as a course of conduct [R.C. 2929.04(A)(5) ], and murder during a kidnapping [R.C. 2929.04(A)(7) ]. Skatzes was also indicted on three counts of kidnapping [R.C. 2905.01].

{¶ 23} The trial court changed venue to Montgomery County, and the case was tried before a jury. After the state presented its case, the defense called five witnesses, including former hostage C.O. Ratcliff. Skatzes testified in his own behalf. The defense claimed that Skatzes had been a peacemaker during the prison takeover and had opposed killing a C.O. Skatzes denied involvement in the Elder and Sommers murders. The jury found Skatzes guilty on all counts and specifications. After a mitigation hearing, the jury recommended death for the murders of Elder and Sommers and a life sentence for the murder of Vallandingham. The trial judge sentenced Skatzes accordingly.

{¶ 24} In January 2003, the court of appeals affirmed Skatzes’s convictions and death sentence but vacated his conviction for the kidnapping of Elder at the state’s request. The cause is now before the court upon an appeal as of right.

{¶ 25} Appellant Skatzes has raised 60 propositions of law. We have reviewed each and have determined that none justifies reversal of appellant’s convictions or his death sentence. We have also independently weighed the aggravating circumstances against the evidence presented in mitigation and have reviewed the death penalty for appropriateness and proportionality. For the reasons that follow, we affirm appellant’s convictions and death sentence.

PRETRIAL/VOIR DIRE ISSUES

Alleged Flatus in the Indictment

{¶ 26} In his first five propositions of law, Skatzes argues that each count in the indictment and each death-penalty/kidnapping specification was defective because the indictment failed to demonstrate on its face the basis for indicting him, and the indictment or specification failed to provide notice of the allegations against him. Skatzes failed to object to the form of the indictment before trial as required by Crim.R. 12(B)(2), however, and thus has waived all but plain error. State v. Frazier (1995), 73 Ohio St.3d 323, 332, 652 N.E.2d 1000. In any event, the indictments tracked the language of the definition of kidnapping in R.C. 2905.01(A) and, therefore, properly charged the offenses. State v. Murphy (1992), 65 Ohio St.3d 554, 583, 605 N.E.2d 884; State v. Landrum (1990), 53 Ohio St.3d 107, 119, 559 N.E.2d 710; Crim.R. 7(B). In addition, Skatzes obtained a bill of particulars that provided him with the information he sought and identified aggravated riot as the felony underlying the R.C. 2905.01(A)(2) kidnapping charges. Murphy, 65 Ohio St.3d at 583, 605 N.E.2d 884. Skatzes acknowledged at his arraignment that he understood the charges and waived the reading of the indictment.

{¶27} In proposition of law I, Skatzes alleges that the indictment was insufficient to charge aggravated murder involving a kidnapping because it failed to name or identify the kidnapping victims, failed to inform him of the facts and elements of the charge of kidnapping he faced, and failed to identify the applicable Revised Code section of the kidnapping charges. To the contrary, the indictments for kidnapping tracked the language of R.C. 2905.01(A) and properly charged the offenses. The bill of particulars also provided Skatzes with the information he sought. Plain error is lacking. We reject proposition of law I.

{¶ 28} In proposition of law II, Skatzes essentially repeats the same argument raised in proposition of law I but directs it toward the kidnapping-based death-penalty specifications. Again, Skatzes does not demonstrate plain error. The indictment tracked the statutory language, and the bill of particulars eliminated any confusion Skatzes may have had about the charges. We reject proposition of law II.

{¶ 29} In proposition of law III, Skatzes contends that the indictment was insufficient in naming four of the five purposes of the kidnapping statute [R.C. 2905.01(A)(1), (2), (3) and (5) ] in the disjunctive. Skatzes further asserts that the indictment failed to identify the felony underlying the kidnapping-offense alternatives charged under R.C. 2905.01(A)(2) and failed to demonstrate the basis of the grand jury findings. As noted by the court of appeals, it was apparent that the prosecution intended to show that Skatzes had engaged in kidnapping for all of the stated statutory purposes rather than just one of them. Use of the word “or” in the indictment was not vague, since the alleged purposes listed were not mutually exclusive. In addition, the bill of particulars identified aggravated riot as the felony underlying the R.C. 2905.01(A)(2) kidnapping charge.

{¶ 30} Moreover, Skatzes’s reliance on State v. Childs (2000), 88 Ohio St.3d 194, 724 N.E.2d 781, is misplaced. In Childs, we held that an indictment’s failure to allege an overt act in furtherance of an alleged conspiracy was a fatal defect. Here, the omission of the underlying felony in the indictment was remedied because the bill of particulars identified the underlying felony, as is permitted where the indictment sufficiently tracked the wording of the kidnapping statute. Murphy, 65 Ohio St.3d at 583, 605 N.E.2d 884. In addition, there is no requirement that the indictment demonstrate the basis for the grand jury’s findings. The bill of particulars serves this function. We reject proposition of law III.

{¶ 31} In proposition of law IV, Skatzes contends that the indictment was defective because it failed to identify the underlying felony in the kidnapping charge or the elements of the underlying felony. As discussed under proposition of law III, however, the indictment tracked the language of the kidnapping statute. The bill of particulars identified aggravated riot as the underlying felony and remedied any defect in the indictment. Murphy, 65 Ohio St.3d at 583, 605 N.E.2d 884. Skatzes’s claim regarding the failure to list the elements of aggravated riot was not outcome-determinative plain error since Skatzes was sufficiently informed of the charges against him in both the indictment and bill of particulars. State v. Frazier, 73 Ohio St.3d at 332, 652 N.E.2d 1000. We reject proposition of law IV.

{¶ 32} Finally, in proposition of law V, Skatzes contends that even though Ohio law does not require complicity or conspiracy to be charged in the indictment in every instance, the failure to charge complicity or conspiracy in his case means that the indictment failed to give notice of the charges. Skatzes again fails to demonstrate plain error. A charge of complicity may be stated in terms of the principal offense. R.C. 2923.03(F). See State v. Dotson (1987), 35 Ohio App.3d 135, 520 N.E.2d 240, paragraph two of the syllabus. Skatzes was on notice that evidence could be presented that he was a principal offender or complicit in the aggravated murders. The indictment and bill of particulars put Skatzes on notice of the charges he faced. We reject proposition of law V.

Prejudicial Joinder

{¶ 33} In proposition of law XV, Skatzes contends that the trial court erred in denying his motion to sever the charges against him. Skatzes asserts that joinder was prejudicial because the offenses were separate in time, method, and degree of involvement by Skatzes. “The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are of the same or similar character.’” State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293. Crim.R. 8(A) also allows joinder of two or more offenses that “are based on the same act or transactions * * * connected together or constituting parts of a common scheme or plan; or are part of a course of criminal conduct.” State v. Lorraine (1993), 66 Ohio St.3d 414, 425, 613 N.E.2d 212. An appellate court will reverse a trial court’s denial of severance only if the trial court has abused its discretion. Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293.

{¶ 34} The trial court did not abuse its discretion in denying Skatzes’s motion to sever. First, the charged offenses committed by Skatzes were part of a common scheme to gain concessions from prison authorities for inmate demands and to silence inmate snitches. Crim.R. 8(A). Second, even if Skatzes had been tried separately for his charged offenses, the state would still have been able to introduce evidence of the joined offenses as “other acts” under Evid.R. 404(B). Third, the evidence of each crime joined at trial was “simple and direct,” so that proof of the separate offenses could be readily separated. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 50-51. Thus, Skatzes was not prejudiced by joinder of offenses. See Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293. We reject proposition of law XV.

Limits on Voir Dire

{¶ 35} In proposition of law XVI, Skatzes contends that the trial court unfairly-denied him the right to explore juror attitudes on specific mitigating factors. Skatzes also alleges that the trial court erred in denying his challenge for cause of a prospective juror who expressed unwillingness to consider specific items of mitigation evidence.

{¶ 36} The trial court acted within its discretion in disallowing specific questions to individual prospective jurors on specific mitigating factors. See State v. Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304. Morgan v. Illinois (1992), 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492, does not require judges to allow individual voir dire on separate mitigating factors. See State v. Wilson (1996), 74 Ohio St.3d 381, 386, 659 N.E.2d 292. A review of the entire voir dire indicates that the detailed questioning that occurred over a ten-day period was adequate to expose faults that would render a juror ineligible. See State v. Rogers (1985), 17 Ohio St.3d 174, 17 OBR 414, 478 N.E.2d 984, paragraph three of the syllabus.

{¶ 37} The court did not abuse its discretion in denying Skatzes’s challenge for cause on prospective juror Hicks. Although Hicks stated initially that the gravity of the offenses might prevent her from considering life sentences, she specifically agreed to follow the court’s instructions, even if it involved evidence she hypothetically might be skeptical of considering. We reject proposition of law XVI.

Adequacy of Counsel

{¶ 38} In proposition of law XXXVI, Skatzes asserts that the trial court failed to conduct an adequate inquiry when he requested substitute counsel. The record indicates, however, that Skatzes never requested substitute counsel. Although Skatzes sent a letter to the trial judge addressing some specific problems and concerns about being able to review some audiotapes and other evidence, that letter is not part of the record. Nevertheless, the trial court asked both parties about the allegations in the letter and the status of discovery. The trial judge assured Skatzes that he would have the opportunity to review all the tapes. When asked by the trial judge whether he wanted to fire counsel, Skatzes denied that he was requesting that counsel be removed from the case or substituted. Skatzes opined that he and defense counsel could “iron this thing out.” We reject proposition of law XXXVI.

Death Qualification of Jury

{¶ 39} In proposition of law XLVI, Skatzes contends that death qualification of jurors violated his right to a fair and impartial jury. Death qualification of jurors during voir dire has been upheld by both the United States Supreme Court and this court. See, e.g., Lockhart v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137; State v. Moore (1998), 81 Ohio St.3d 22, 26, 689 N.E.2d 1. We summarily reject proposition of law XLVI.

Failure to Record Grand Jury Proceedings

{¶ 40} In proposition of law LIII, Skatzes argues that he was prejudiced by the state’s failure to record grand jury proceedings, contrary to State v. Grewell (1989), 45 Ohio St.3d 4, 543 N.E.2d 93, syllabus. Skatzes asserts that he was denied the opportunity “to support his case at trial upon the showing of a particularized need” for the grand jury testimony.

{¶ 41} “Grand jury proceedings are secret, and an accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy.” State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, syllabus, citing State v. Patterson (1971), 28 Ohio St.2d 181, 57 O.O.2d 422, 277 N.E.2d 201, paragraph three of the syllabus. The trial court, in its discretion, determines whether the defendant has shown a particularized need for the production of grand jury proceedings. Greer at 148, 20 O.O.3d 157, 420 N.E.2d 982. Skatzes filed a motion for disclosure of exculpatory and impeaching information and included a request that the state identify “each occasion on which any witness has testified before any court, grand jury or other tribunal or body.” At a pretrial hearing, the defense stated that it was looking for inconsistencies in the testimony of any witness from one occasion to another. The state responded that no live witnesses had appeared before the grand jury and that the defense had received summaries and transcripts of videotaped depositions that had been played before the grand jury. Defense counsel then conceded that the state’s response disposed of the motion, and the trial court opined that the issue was therefore moot.

{¶42} Nothing in the record substantiates Skatzes’s claim that grand jury proceedings were not recorded. Moreover, defense counsel not only failed to demonstrate any particularized need for the grand jury transcripts, they conceded before trial that the state’s response disposed of his motion for the grand jury transcripts. We reject proposition of law LIII.

Discovery

{¶ 43} In proposition of law LVII, Skatzes contends that the state failed to provide the defense with timely and complete discovery. Specifically, Skatzes asserts that the state failed to produce “[a]ll statements and evidence inconsistent with the State’s theory of guilt” from the State Highway Patrol’s 1,395 interviews conducted in connection with his case. Crim.R. 16(B), however, “does not authorize the discovery or inspection * * * of the statements made by witnesses or prospective witnesses to state agents.” Crim.R. 16(B)(2).

{¶ 44} The highway patrol’s 1,395 interviews following the riot constituted statements made by witnesses or prospective witnesses to state agents and were not discoverable unless they were favorable to Skatzes. See Crim.R. 16(B)(1)(f). Skatzes asserts that the state used a computer program to help sort information it obtained from these interviews and that it discarded any information considered “false” because that information would be inconsistent with its theory of the case. Skatzes provides no evidence to support this assertion; we will not presume that the state withheld exculpatory evidence from Skatzes.

{¶ 45} Skatzes next contends that not all of the 591 tunnel tapes or 17 negotiation tapes were turned over to the defense. Yet, at a pretrial hearing at the outset of voir dire, defense counsel acknowledged that it had received all of the tunnel tapes as well as copies and transcripts of the negotiation tapes.

{¶ 46} Skatzes also argues that the state failed to produce plea agreements of inmates whose statements were admitted pursuant to Evid.R. 801(D)(2)(e) as co-conspirator testimony, but who did not testify at Skatzes’s trial. In Giglio v. United States (1972), 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, the case Skatzes cites as support, the government failed to disclose an alleged promise of leniency made to its key witness in return for his testimony. Id. at 154, 92 S.Ct. 763, 31 L.Ed.2d 104. The statements of Skatzes’s co-conspirators are not “witnesses” as that term is normally defined. Thus, Skatzes has no basis to claim that the state was compelled to produce the plea agreements of inmates whose statements were admitted under Evid. R. 801(D)(2)(e).

{¶ 47} Skatzes further claims that not all scientific evidence regarding the time of Vallandingham’s death was turned over to the defense and that the missing evidence would have shown that Vallandingham died long before the meeting in which Skatzes allegedly voted to kill a guard. This claim involves the coroner’s testimony about a vitreous-eye-fluid test that led the coroner to opine that Vallandingham could have died as early as 6:00 a.m. on April 15, 1993. The coroner also testified that the test produced nothing “inconsistent with him having been killed around 10:30 on the morning of the 15th.” Nothing in the record supports Skatzes’s claim that he did not receive these test results. Neither does the record suggest that Vallandingham died “long before” the meeting in which inmate gang leaders decided to kill a guard. Finally, Skatzes did not object to the coroner’s testimony that Vallandingham died at 7:00 a.m. on April 15, plus or minus one hour, based on the results of the vitreous-fluid test. Even assuming Skatzes did not receive this test, he was not prejudiced because the coroner testified that the time of death could have been 10:30 a.m.

{¶ 48} Skatzes also asserts that not all audio- and videotapes were turned over to the defense. Skatzes does not explain or suggest what tapes should have been turned over but were not.

{¶ 49} Based on all the foregoing, we reject proposition of law LVII.

TRIAL ISSUES

Jury Instructions

{¶ 50} In propositions of law VI through XIII, Skatzes contends that he was prejudiced by several jury instructions at the close of the trial phase.

{¶ 51} In propositions of law VI and VII, Skatzes argues that the trial court improperly failed to instruct the jury to reach a unanimous decision on the following three issues: whether disorderly conduct was committed, which section of the aggravated riot statute was violated, and which of the statutorily enumerated purposes was the basis of each kidnapping charge.

{¶ 52} Skatzes’s failure to object to the instructions waives all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. Plain error “should be applied with utmost caution and should be invoked only to prevent a clear miscarriage of justice.” Id. at 14, 3 OBR 360, 444 N.E.2d 1332. Plain error exists only where it is clear that the verdict would have been otherwise but for the error. State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, Plain error is not present in this case.

{¶ 53} With regard to Skatzes’s complaint about the failure to instruct on which purpose was the basis of each kidnapping charge, Skatzes essentially argues that his right to a unanimous verdict includes a right to a unanimous theory of culpable conduct supporting that verdict. The United States Supreme Court rejected a similar argument in Schad v. Arizona (1991), 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555. In Schad, the defendant was convicted of first-degree murder after the prosecution advanced theories of premeditated murder and felony murder. The jury was not instructed to unanimously find defendant guilty based on one of the proposed theories of guilt. The Schad court found that different mental states of moral and practical equivalence (premeditated and felony murder) may serve as alternative means to satisfy the mens rea element for the single offense of murder, without infringing upon the constitutional rights of the defendant. Id. at 643, 111 S.Ct. 2491, 115 L.Ed.2d 555.

{¶ 54} The Schad court noted: ‘We have never suggested that in returning general verdicts in [eases proposing multiple theories] the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, ‘different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.’ ” Id. at 631-632, 111 S.Ct. 2491, 115 L.Ed.2d 555, quoting McKoy v. N. Carolina (1990), 494 U.S. 433, 449, 110 S.Ct. 1227, 108 L.Ed.2d 369 (Blackmun, J., concurring).

{¶ 55} The court of appeals in the instant case stated that the five purposes listed in the kidnapping statute [R.C. 2905.01(A) ] “reflect notions of equivalent blameworthiness or culpability” that justify treating them as alternative means to satisfy the mental element of a single offense. State v. Avery (1998), 126 Ohio App.3d 36, 48, 709 N.E.2d 875, citing Schad, 501 U.S. at 643-644, 111 S.Ct. 2491, 115 L.Ed.2d 555. In our view, the reasoning of Avery is logical and follows the reasoning of Schad v. Arizona. Therefore, we hold that because all the jurors in Skatzes’s case agreed on the verdict, they were not required to unanimously agree upon any one purpose for Vallandingham’s kidnapping. The trial court did not commit plain error in failing to give such an instruction. See State v. Bell (1996), 112 Ohio App.3d 473, 482-483, 679 N.E.2d 44; see, also, State v. Evans (Aug. 18, 1993), Hamilton App. Nos. C-910443 and C-910515, 1993 WL 311681.

{¶ 56} For the same reason, plain error is absent in the trial court’s failure to require unanimity from the jury on either of the two definitions of aggravated riot on which the jury was instructed. The trial court’s instruction on aggravated riot properly set forth that disorderly conduct was an element of that offense. We reject propositions of law VI and VII.

{¶ 57} In propositions of law VIII and IX, Skatzes contends that the trial court’s instructions on complicity and conspiracy were inadequate. Again, Skatzes’s failure to object to either instruction waived all but plain error. Underwood, 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus.

{¶ 58} In proposition of law VIII, Skatzes asserts that the complicity instruction was flawed in that the charge was unclear as to whether the culpable mental state required was for murder or kidnapping. The court charged the jury, “Before you can find the defendant guilty, you must find beyond a reasonable doubt that * * * the defendant, acting with the required culpable mental state for the particular offense, * * * conspired with another to commit the offenses.” Plain error is not evident. The language used by the trial court tracked the language of the complicity statute [R.C. 2923.04(A) ] and is not ambiguous. Given the clarity of the instruction, jurors would have understood this instruction to mean that they should apply the culpable mental state for the offense that they found to be the object of the conspiracy.

{¶ 59} Here, and in proposition of law IX, Skatzes asserts that the court’s instruction on conspiracy was error. The trial transcript indicates that the court stated, “You may not find * * * that the defendant conspired with others to commit an offense unless you find beyond a reasonable doubt that a substantial overt act in furtherance of such conspiracy is proved to have been done by him or by a person with whom he conspires, and that such an act wasn’t performed subsequent to the defendant’s entrance into the conspiracy.” (Emphasis added.) This instruction is plainly illogical. On its face, it required the jury to find Skatzes culpable only if his overt actions in furtherance of the conspiracy actually occurred before his involvement in the conspiracy.

{¶ 60} The record, however, contains copies of the written instructions provided to the jury during deliberations, and these written instructions correctly stated the law, using “was” instead of “wasn’t.” In addition, the trial court directed the jurors not to take notes during its charge because they would have a copy of the instructions in the jury room during deliberations.

{¶ 61} Even assuming that the court misstated the instruction, we find that any such error did not affect the outcome of Skatzes’s trial. Not only did the written instructions correctly state the law on conspiracy, the trial court encouraged the jury to rely upon the written instructions during deliberations. Moreover, given the jury’s detection of a conflict between “a” and “the” in the jury instruction and verdict form discussed in proposition of law XIII, infra, the jury likely would have noticed a conflict in logic between the oral and written instructions and would have requested a clarification had they been confused. No outcome-determinative error occurred. We reject propositions of law VIII and IX.

{¶ 62} In proposition of law X, Skatzes argues that the instruction on other-acts evidence failed to adequately inform the jury as to what acts are deemed “other acts” of the defendant and what evidence is deemed to be evidence of other acts. He also claims that testimony on other acts from “inmate snitches” is “always highly suspect.”

{¶ 63} Skatzes’s failure to object to the instruction waived all but plain error. Underwood, 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. In fact, no error occurred. The instruction given tracked the language of Evid.R. 404(B), and the trial court prefaced the instruction with language that accomplice testimony may involve special motives and that jurors should “use it with great caution and view it with grave suspicion.”

{¶ 64} Skatzes suggests that the trial court should have enumerated for the jury the other acts presented by the evidence and the evidence in support of those acts. Trial courts are not required, however, to characterize evidence or to instruct juries as to the category into which certain evidence fits. Moreover, Skatzes’s proposal appears to require that the trial court usurp the jury’s function as the finder of fact. We reject proposition of law X.

{¶ 65} In proposition of law XI, Skatzes complains about the court’s reasonable-doubt instruction based on the statutory language of R.C. 2901.05(D). We have repeatedly rejected the same argument. See State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, paragraph eight of the syllabus; State v. Jones (2000), 90 Ohio St.3d 403, 417, 739 N.E.2d 300.

{¶ 66} In proposition of law XII, Skatzes raises a number of other alleged errors in the trial-phase jury instructions and asserts that these errors, both individually and cumulatively, warrant a reversal. Skatzes’s failure to object to any of the claimed instructional errors waived all but plain error. State v. Underwood, 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. We find no plain error in any of the 12 instructional errors raised by Skatzes.

{¶ 67} Skatzes first contends that the kidnapping instruction was inadequate and failed to identify the underlying felony in the Clark and Elder kidnappings. Trial courts were not required to identify the underlying felony. See 4 Ohio Jury Instructions (2001) 148, Section 501.01(A)(2), applicable to offenses committed before July 1,1996.

{¶ 68} Skatzes contends that the complicity instruction contained a misleading definition of the crime of soliciting another to commit an offense because it diminished the character of the request required. Yet, the language of the instruction does not support his contention: “Solicit means to seek, to ask, to influence, to invite, to tempt, to lead on, to bring pressure to bear.” We also note that the instruction is taken from 4 Ohio Jury Instructions (2001) 573, Section 523.03(6), applicable to offenses committed before July 1, 1996. No plain error is evident.

{¶ 69} Skatzes contends that the instruction on “purposely” was inadequate. The instruction stated that “[t]o do an act purposely is to do it intentionally and not accidentally.” It is difficult to discern how this language would have left the jurors to simply presume, as Skatzes suggests, that anything more than an accident fit the definition of “purposely.” Moreover, the court also instructed the jury that “[a] person acts purposely when it is his specific intention to cause a certain result,” and that “[pjurpose and intent mean the same thing.” These instructions were not erroneous.

{¶ 70} Skatzes next claims error in the instructions defining aggravated riot and disorderly conduct and asserts that the term “felony” was never defined. Skatzes asserts that the jury may have presumed that it knew what conduct constituted a felony and may have convicted him on the basis of nonfelonious behavior. This argument is purely speculative. The trial court identified aggravated riot as an underlying felony to kidnapping.

{¶ 71} Skatzes asserts that the instruction on prior calculation and design allowed the jury to convict on the basis of a lesser degree of guilt than is required for prior calculation and design because the instruction did not include language that the “process of reasoning” must be in “advance of the homicide.”

{¶ 72} The trial court instructed the jury as follows: “A person acts with prior calculation and design when, by engaging in a distinct process of reasoning, he forms a purpose to kill and plans the method he intends to use to cause death. The circumstances surrounding a homicide must show a scheme designed to carry out the calculated decision or cause the death.

{¶ 73} “No definite period of time must elapse and no particular amount of consideration must be given, but acting upon the spur of the moment or after momentary consideration of the purpose to cause a death is not sufficient.”

{¶ 74} This instruction was adequate and did not constitute plain error. A clear reading of the instruction indicates that the “distinct process of reasoning” must take place before the murder because the phrase “plans the method he intends to use” contemplates future action.

{¶ 75} Skatzes next argues that the instruction on “cause” was confusing and misleading. We upheld the same instruction in State v. Jalowiec (2001), 91 Ohio St.3d 220, 230-231, 744 N.E.2d 163. Moreover, the jury was also charged on specific intent to kill.

{¶ 76} Skatzes contends that the court’s charge on the kidnapping specifications to the Vallandingham murder counts failed to identify the kidnapping victim. Given the context of the overall charge, it was clear that the victim of the kidnapping was also Vallandingham. See State v. Price (1979), 60 Ohio St.2d 136, 14 O.O.3d 379, 398 N.E.2d 772, paragraph four of the syllabus. No plain error occurred.

{¶ 77} Skatzes argues that the charge on “unanimity” was deficient because it did not tell jurors that they had to be unanimous on each element of each crime. The court’s instruction that the jury “must unanimously agree that the defendant is guilty of a particular criminal offense before returning a verdict of guilty on that offense” was adequate and, in any event, did not amount to plain error.

{¶ 78} Skatzes asserts that the trial court erred in defining “principal offender” as “one who has hands-on involvement in a homicide.” This court has held that “principal offender” means “actual killer,” State v. Penix (1987), 32 Ohio St.3d 369, 371, 513 N.E.2d 744, or “one who personally performs every act constituting the offense” of aggravated murder, State v. Getsy (1998), 84 Ohio St.3d 180, 197, 702 N.E.2d 866, or “one who directly caused the death.” State v. Stallings (2000), 89 Ohio St.3d 280, 292, 731 N.E.2d 159. The court of appeals agreed with Skatzes that “hands-on involvement” was not specific enough but held that it did not constitute plain error. We agree. The instruction pertained only to the Sommers murder. Skatzes claimed that he was not present for Sommers’s murder and first learned of it after the riot when he was in Mansfield. The state’s evidence, however, established that Skatzes was an active participant in the Sommers murder. The error in the instruction was harmless because the evidence at trial showed that Skatzes was an actual killer of Sommers. See State v. Chinn (1999), 85 Ohio St.3d 548, 559-560, 709 N.E.2d 1166.

{¶ 79} Skatzes contends that the instructions regarding the verdict forms at the conclusion of the jury charge were “too little too late” in instructing the jury to be unanimous as to any alternative presented during jury instructions. The trial court, however, specifically instructed the jury, “Before you can find the defendant guilty of an offense providing alternatives, you must be unanimous in your verdict as to any alternative.” Moreover, all of the verdict forms signed by the jury were unanimous. Given the voluminous number of verdict forms involved, the court did not commit plain error in failing to give the same instruction on every verdict form it reviewed with the jury.

{¶ 80} Skatzes asserts that the cumulative effect of the foregoing instructional errors deprived him of a fair trial. None of the claimed instructional errors have merit, and the one that was erroneous was harmless. We reject proposition of law XII.

{¶ 81} In proposition of law XIII, Skatzes asserts that the trial court, over defense objection, erroneously instructed the jury in response to a jury question. On the second day of trial-phase deliberations, the jury sent the following question to the court (as read into the record by the. trial judge): “Count 5, Specification 3, difference in words. Instructions say A, underline A, principal offender. Specifications for signature says the, underline the, principal offender.” The court responded, “The principal offender on the verdict forms should read a principal offender * * *.” Skatzes contends that the instruction was erroneous because R.C. 2929.04(A)(7) states “the principal offender” with regard to the specification. We have stated that “principal offender” means the “actual” killer and not the “sole” offender. As there can be more than one actual killer, there can be more than one principal offender. State v. Stojetz (1999), 84 Ohio St.3d 452, 458-459, 705 N.E.2d 329; State v. Keene (1998), 81 Ohio St.3d 646, 655, 693 N.E.2d 246. The trial court did not err in instructing the jury as it did. We reject proposition of law XIII.

Statements of Co-Conspirators

{¶ 82} In proposition of law XIV, Skatzes argues that the trial court erred in allowing inmate Snodgrass to testify that the Aryan Brotherhood had agreed with the Muslims regarding the treatment of white inmates during the riot. Snodgrass was not certain that it was Skatzes from whom he had heard about the alleged agreement.

{¶ 83} Snodgrass testified that he had killed inmate Elder under orders from Skatzes and that Muslim inmate Lucky Roper had talked with Skatzes in the gym prior to the Elder murder and had watched the Elder killing along with Skatzes. When the prosecutor asked Snodgrass why he and Skatzes had been involved in this murder with a Muslim, Snodgrass replied that, according to Jason Robb, the Aryan Brotherhood had made a pact with the Muslims. Snodgrass stated that Skatzes had explained the pact to him: “[N]o more white guys were going to be killed in that riot, without sanctions from the AB, * * * that if the [white guys] were to be killed, they were goin’ to be killed by their own kind or at least given that opportunity.” Snodgrass then equivocated and said he might have heard this from Robb or another Aryan leader.

{¶ 84} Skatzes claims that this testimony about the pact was inadmissible. The testimony was not inadmissible under Evid.R. 404(B), because the testimony did not refer to any prior crime, wrong, or act. If the statement was made by Skatzes, the testimony was admissible under Evid.R. 801(D)(2)(a) as an admission or statement. If the statement was not made by Skatzes, but instead by Robb or another Aryan leader, as Snodgrass conceded was possible, then the statement was admissible under Evid.R. 801(D)(2)(e), as a statement made by a co-conspirator of a party during the course and in furtherance of the conspiracy. We reject proposition of law XIV.

{¶ 85} In proposition of law XXXIII, Skatzes argues that the trial court erred in admitting, in violation of Evid.R. 404(B), improper other-acts testimony by Snodgrass of an uncharged plot to kill several inmates at the end of the riot. According to Snodgrass, near the end of the riot, he and other Aryans had learned that some inmates were planning a coup to kill Skatzes and take over negotiations to end the riot. Those inmates involved in the alleged coup were locked in a cell in the Muslim block. When the Aryans tried to obtain the inmates from the Muslims in order to kill them, the Muslims told the Aryans they would not release the inmates because they had converted to Islam. That group of Aryans then decided to kill Sommers.

{¶ 86} The testimony provided the context in which Sommers was murdered. When Skatzes and other Aryans were thwarted in their plans to kill the inmates who planned the coup, they focused their attention on Sommers. The trial court could have reasonably determined that the plot to kill other inmates was not separate from the murder of Sommers, but part of the same series of events. The testimony was not improper other-acts testimony. We reject proposition of law XXXIII.

Hearsay

{¶ 87} In proposition of law XVII, Skatzes contends that the trial court allowed inadmissible hearsay, over defense objection, when Snodgrass testified concerning a letter he had received from inmate David Snow, a member of the Aryans. Snodgrass testified that Snow wrote in the letter that inmate Brookover was “a maggot” and “a snitch” who had brought down the Aryans somehow in a murder case in Arizona. Skatzes argues that Snow’s letter was irrelevant and his objection should have been sustained. We agree. Nevertheless, Skatzes was not prejudiced. Accordingly, the error was harmless. We reject proposition of law XVII.

{¶ 88} In proposition of law XVIII, Skatzes asserts that the court erred when it overruled his objection to hearsay testimony from inmate Kenneth Hazlett. Hazlett testified that another inmate, Bobby Bass, had told Hazlett that he had been forced to carry out bodies during the riot, including the body of C.O. Vallandingham. The state contends that Bass was a forced participant in the conspiracy and that his statement was admissible as that of a co-conspirator under Evid.R. 801(D)(2)(e). The court of appeals rejected this argument but found the statement to be harmless. We agree. Bass’s statement did not implicate Skatzes, and there is no dispute that bodies were carried out of L block and onto the recreation yard during the riot. Skatzes was not prejudiced. We reject proposition of law XVIII.

Defendant’s Prior Conviction

{¶ 89} In proposition of law XIX, Skatzes notes that the trial court granted his motion to have the court, rather than the jury, determine the existence of his prior-murder-conviction specification. Skatzes contends that he was prejudiced because the prosecutor, over defense objection, cross-examined Skatzes about his prior murder conviction during his testimony and referred to the conviction, without objection, during mitigation-phase closing argument.

{¶ 90} Under R.C. 2929.022(A), Skatzes elected to have the trial judge determine his prior-conviction specification under R.C. 2929.04(A)(5). In State v. Davis (1988), 38 Ohio St.3d 361, 364, 528 N.E.2d 925, we observed that when an R.C. 2929.022(A) election is made, evidence concerning a prior murder conviction not otherwise admissible may not be introduced during the trial phase to prove an aggravating circumstance. We further noted, however, that the statute does not “provide a defendant with a blanket statutory right to preclude * * * the introduction of all evidence pertaining to prior purposeful killings which is otherwise admissible.” Id.

{¶ 91} During cross-examination of Skatzes, the prosecutor asked him: “[G]oing back to your homicide conviction, someone snitched on you in that homicide * * *, did they not?” The question arose while the prosecutor questioned Skatzes about his attitude toward snitches. Skatzes admitted that the key witness against him in the prior homicide conviction was a person who claimed to be his “partner” in the crime.

{¶ 92} The court of appeals determined that Skatzes’s feelings about snitches, and specifically the fact that a snitch’s testimony led to his prior conviction, were relevant to his motive because the state’s theory of the case was that Sommers and Elder had been killed for being snitches. The court of appeals found that R.C. 2929.022(A) does not preclude the introduction of the evidence because evidence of other crimes is admissible to show motive pursuant to Evid.R. 404(B). See State v. Davis, 38 Ohio St.3d at 364, 528 N.E.2d 925. The rationale of the court of appeals is sound. We conclude that the state’s brief inquiry during cross-examination concerning Skatzes’s prior conviction was not improper. Moreover, the defense opened the door to the prosecutor’s inquiry when it asked Skatzes during direct examination whether he had been “convicted of aggravated murder and kidnapping.”

{¶ 93} We also reject Skatzes’s claim that it was improper for the prosecutor to briefly mention his prior conviction during mitigation-phase closing argument. When the prosecutor made this reference, Skatzes had already been found guilty and convicted of the prior-murder-conviction specification by the jury. In State v. Evans (1992), 63 Ohio St.3d 231, 239, 586 N.E.2d 1042, we found that reference to a prior murder conviction during mitigation closing argument was not error “because the prior murder conviction is an aggravating circumstance.” We reject proposition of law XIX.

Scope of Cross-Examination

{¶ 94} In proposition of law XX, Skatzes argues that the trial court erred when it prevented defense counsel from impeaching inmate Brookover with specific bad acts during cross-examination. Brookover testified that he had killed only two people in his life. Skatzes contends that he was merely attempting to prove that this was a false statement, Evid.R. 608(B), and that he was not trying to prove with extrinsic evidence other homicides committed by Brookover. Skatzes made a proffer of documents, which the defense claims would have shown that Brookover killed one other person. These documents were sealed at a December 8,1994 hearing by the trial court but were apparently lost and are not part of the record on appeal.

{¶ 95} Evid.R. 608(B) provides that whether specific instances of bad conduct of a witness can be questioned during cross-examination is within the discretion of the court. State v. Kamel (1984), 12 Ohio St.3d 306, 310-311, 12 OBR 378, 466 N.E.2d 860. Evid.R. 608(B) also provides that the privilege against self-incrimination overrides the rule. Thus, Brookover could not be required to admit to any other homicide. With regard to the lost documents, the court of appeals correctly held that Evid.R. 608(B) would have precluded the introduction of general information on Brookover’s character. The record demonstrates that Brookover’s prior convictions, as well as his criminal activities in Arizona prisons dealing with drugs, were the subject of extensive cross-examination. We reject proposition of law XX.

Expert Testimony

{¶ 96} In proposition of law XXI, Skatzes contends that the trial court erred in allowing Sgt. Howard Hudson of the Highway Patrol to testify about “Stockholm syndrome.” Skatzes objected several times during Hudson’s testimony. Each time, the trial court overruled his objection. Skatzes submits that the state was required to qualify Hudson as an expert on Stockholm syndrome in order to make such testimony admissible under Evid.R. 702 and that it failed to do so.

{¶ 97} Sgt. Hudson assisted the Department of Corrections’ negotiating team during the riot because he had training in negotiations during hostage situations. Hudson explained the numerous difficulties one encounters in dealing with multiple negotiators in a hostage negotiation. Hudson further testified that the state negotiators in the SOCF riot took Stockholm syndrome into account at several points during the negotiations. Hudson’s specialized knowledge of and training in hostage negotiations and Stockholm syndrome establish that he had knowledge of a matter not possessed by the average layperson. Accordingly, he was qualified to testify as an expert on these matters under Evid.R. 702, even though the court did not formally qualify Hudson as an expert on the subject. See State v. Baston (1999), 85 Ohio St.3d 418, 423, 709 N.E.2d 128.

{¶ 98} Moreover, Hudson’s testimony was not hearsay because it did not convey a statement made by another, nor was it offered to prove that the C.O.s who were held hostage suffered from Stockholm syndrome. Hudson’s testimony was offered to explain the state’s actions in its negotiations with the inmates. Testimony offered to explain the investigative activities of witnesses, and not offered to prove the truth of the matters asserted, is admissible. State v. Thomas (1980), 61 Ohio St.2d 223, 232, 15 O.O.3d 234, 400 N.E.2d 401. We reject proposition of law XXI.

Witness Speculation Testimony

{¶ 99} In proposition of law XXII, Skatzes argues that inmate Lavelle was permitted to speculate, over objection, as to what was said on an audiotape played to the jury. In proposition of law XXIII, Skatzes contends that Lavelle was permitted to speculate, over defense objection, on Skatzes’s state of mind with regard to another audiotape. In the first instance, the audiotape was tunnel tape 61, a recording of an April 15 meeting of inmate gang leaders, including Lavelle, where a vote was taken to kill a guard. In the second instance, the audiotape, tunnel tape 67, contained a conversation about negotiations and Skatzes’s commitment to the inmates’ demands.

{¶ 100} Lavelle was present at both of the recorded conversations and possessed firsthand knowledge of what was said. He was competent to testify regarding inaudible portions of the tapes and the meaning he attributed to statements made by the other inmates heard on the tapes. Lavelle’s opinion testimony in both instances was admissible under Evid.R. 701 because his opinions as to both tapes were rationally based on his memory and perception and were helpful to the determination of a fact in issue. In both instances, Skatzes had full opportunity to cross-examine Lavelle as to what was said or meant on the tapes. Lavelle’s interpretation of what was stated in both tapes was based on his personal knowledge and perceptions of the conversations in both tapes. We reject propositions of law XXII and XXIII. See State v. Robb (2000), 88 Ohio St.3d 59, 72, 723 N.E.2d 1019.

Admissibility of Co-Conspirator Testimony

{¶101} In propositions of law XXIV, XXV, XXVI, and XXVII, Skatzes challenges the admissibility of statements made by co-conspirators in the takeover of the SOCF.

{¶ 102} In proposition of law XXIV, Skatzes asserts that the state failed to make a prima facie showing of a conspiracy by independent proof, as required by Evid.R. 801(D)(2)(e), and failed to make findings that a conspiracy existed or that Skatzes was a part of it. As a result, Skatzes contends that the co-conspirator statements were inadmissible and deprived him of a fair trial. Evid.R. 801(D)(2)(e) provides that a statement is not hearsay if it was made by a co-conspirator during and in furtherance of the conspiracy. Statements of co-conspirators are not admissible under Evid.R. 801(D)(2)(e), however, until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proof. State v. Carter (1995), 72 Ohio St.3d 545, 651 N.E.2d 965, paragraph three of the syllabus; see, also, State v. Lindsey (2000), 87 Ohio St.3d 479, 481, 721 N.E.2d 995. There is no requirement that explicit findings be made on the record. Robb, 88 Ohio St.3d at 70, 723 N.E.2d 1019.

{¶ 103} As in Robb, supra, at 69-70, 723 N.E.2d 1019, the prosecution established at trial that the entire Lueasville siege involved a major conspiracy by inmate factions. The first three witnesses who testified on behalf of the state, Steven Macko, an inmate, Sgt. Hudson of the Highway Patrol, and C.O. Darrold Clark, established the conspiracy. Macko testified about the takeover of L block, the kidnapping of Vallandingham, the relative strength of the inmate gangs, the gangs’ cooperation during the riot, and the identities of the gang leaders. Hudson provided details about the prison factions and their leaders and the tunnel taping conducted during the takeover. He also testified about the events that took place during the takeover, including the compiling of demands by the inmate gangs and their use of prison C.O.s as bargaining chips with the prison authorities. Clark, who was held hostage during the riot, testified about how the gangs cooperated in the handling of the hostages. This testimony provided the required prima facie showing of the conspiracy.

{¶ 104} Compelling evidence, independent of co-conspirator hearsay statements, established that inmate leaders conspired to take control of L block at SOCF, held hostages, threatened to kill a hostage, and later killed a hostage. We reject proposition of law XXIV.

{¶ 105} In proposition of law XXV, Skatzes contends that co-conspirator testimony is inadmissible when conspiracy is not charged as an i