State v. McKnight (107 Ohio St. 3d 101, 2005)

Alice Robie Resnick, J.

{¶ 1} Gregory McKnight, defendant-appellant, was convicted of the murder of Gregory Julious and the aggravated murder of Emily Murray and was sentenced to death. In this appeal, appellant raises 30 propositions of law. We find that none of his propositions of law have merit and affirm appellant’s convictions. We have also independently weighed the aggravating circumstances against the mitigating factors and have compared appellant’s sentence of death to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm appellant’s sentence of death.

State’s Case

{¶ 2} During early 2000, Julious lived with his girlfriend, Dana Bostic, at her home in Chillicothe. At the time, appellant was dating Lisa Perkins, who was a friend of Bostic’s. Appellant became acquainted with Julious by visiting Perkins at Bostic’s home.

{¶ 3} On Friday, May 12, 2000, at around 4:00 p.m., Bostic returned home from work and found appellant, Julious, and her daughter in the kitchen. Julious was wearing only boxer shorts. Bostic then left the house with her daughter to pick up her son.

{¶ 4} When Bostic returned after approximately one hour, appellant and Julious were no longer at the house. Bostic testified, “The door was unlocked. There was candles still burning, * * * and it was like he just ran out for a minute and he was coming right back.” Moreover, Julious’s belongings, including his clothes, personal hygiene products, and his identification card, were still in the house.

{¶ 5} When Julious did not return home, Bostic called appellant on his pager. Later that night, appellant returned Bostic’s call and put Julious on the phone. Julious told Bostic that “he was in Columbus at McKnight’s friend’s house and they were getting ready to go to a OSU block party and he would be home.” Bostic described the conversation as “very unusual” because Julious “didn’t let [her] ask him anything else” and abruptly ended the conversation. Bostic never saw or talked to Julious again.

{¶ 6} In June 2000, appellant and his wife, Kathy McKnight, acquired a trailer in a rural area near Ray, Ohio. Appellant and Kathy moved their belongings into the trailer, but they did not move in. Instead, they moved to the home of Kathy’s mother, in Gambier.

{¶ 7} In late September or early October 2000, appellant was hired as a kitchen worker at the Pirate’s Cove restaurant in Gambier. Appellant was friendly with his co-workers, and they would sometimes give him rides to his Gambier home after work.

{¶ 8} Emily Murray, a Kenyon College student, was a part-time waitress at the Pirate’s Cove. Murray lived in a Kenyon College dormitory approximately 100 yards from the Pirate’s Cove, and she drove her mother’s Subaru Outback at Kenyon.

{¶ 9} On November 2, 2000, Murray quit her job and spent her last evening working at the Pirate’s Cove. Several college friends visited Murray at the Pirate’s Cove to help celebrate her last night at work, but her friends left before Murray finished work.

{¶ 10} Appellant also worked at the Pirate’s Cove on the evening of November 2. Time cards showed that Murray finished work at 3:07 a.m. and appellant finished work at 2:59 a.m. on November 3. Nathan Justice, the bartender at the Pirate’s Cove, saw Murray looking for her keys before 3:30 a.m. No one at the Pirate’s Cove recalls seeing Murray and appellant leave together.

{¶ 11} Murray never returned to sleep in her dormitory room, and she failed to appear at a party on the evening of November 3. This absence concerned Murray’s friends because Murray had not left a message regarding her whereabouts and they could not find Murray’s Subaru Outback on campus or in Gambier.

{¶ 12} After an unsuccessful search for Murray, her friends notified Murray’s family and Kenyon College Security. A search of Murray’s dormitory room by Murray’s friend, Abigail Williams, produced Murray’s wallet, which contained her Ohio and New York driver’s licenses, credit cards, and bank card.

{¶ 13} On Sunday evening, November 5, Williams talked to appellant about Murray’s disappearance. Appellant said that he had worked that night but “left well before she did * * * [and] that he was not there so he could see her leave.” According to Williams, appellant was “very curt” and “[they] didn’t get any information. He just kind of smirked” at them. A short time after Murray disappeared, appellant told Nate Justice that “[h]e felt that [Murray] was probably dead.”

{¶ 14} On December 9, 2000, Vinton County Sheriffs Chief Deputy Charles Boyer and Deputy Matt Kight went to appellant’s trailer to serve an unrelated indictment on him, but appellant was not there. Deputy Kight ran a license check on a vehicle on the property and learned that the Subaru Outback parked behind the trailer was associated with the disappearance of Emily Murray.

{¶ 15} After obtaining a search warrant, law enforcement entered appellant’s trailer and found bloodstains on the carpet near the front door. Police followed a trail of blood down the hallway and discovered Murray’s clothed body wrapped inside a carpet in the spare bedroom.

{¶ 16} During the search, Special Agent Gary Wilgus, a crime-scene investigator with the Ohio Bureau of Criminal Identification and Investigation, found a copper bullet jacket near the bloodstained carpet in the living room. A bullet hole was found in the area of the bloodstained carpet, but investigators did not find the bullet that went through the floor. Additionally, police found five spent .357 shell casings inside a drawer in the living room, seven nine-millimeter bullets inside a drawer in the master bedroom, and a roll of bloodstained duct tape in the living room.

{¶ 17} Investigators searching the property found human bones and clothing in the cistern, the root cellar, and in a plastic bag. Police discovered that a fire had been started in the root cellar, and they recovered burned bones and pieces of clothing. The skeletal remains included most of the bones from a single human, but only six skull fragments were found. Dr. Nancy Tatarek, a forensic anthropologist, concluded that the remains were from an African-American male who was 20 to 25 years of age and six feet to six feet, six inches tall.

{¶ 18} The police identified the remains as those of Gregory Julious. Dr. Franklin Wright, a forensic dentist, positively matched the teeth and jaw bone found on appellant’s property with Julious’s dental records. Bostic also identified the remains of boxer shorts found in the cistern as those Julious was wearing the day he disappeared. Kim Zimmerman, appellant’s brother-in-law, had given police a bloodstained backpack that he had taken from the trailer’s living-room closet.

{¶ 19} Police searched the vehicle that appellant was driving when Julious disappeared, and they discovered bloodstains on the carpet underneath the rear seat. Subsequent DNA analysis showed that the “DNA from the * * * carpet [was] consistent with the DNA profile from Gregory L. Julious.” According to Diane Larson, a DNA serology analyst, the “chance of finding the same DNA profile in the population is * * * approximately 1 in 50 trillion people for the Caucasian population, one in 177 trillion in the African-American population, and 1 in 51 trillion in the Hispanic population.”

{¶ 20} Inside appellant’s Gambier home, police found an empty box of Winchester .357 magnum cartridges underneath the bed in the master bedroom, two .30 caliber bullets in the master-bedroom closet, and four nine-millimeter bullets in the basement. Police also learned that appellant had purchased three handguns from two gun shops before the murders: a Jennings nine-millimeter semiautomatic pistol purchased on February 17, 1999, an Intratec nine-millimeter pistol purchased on April 24, 1999, and a Jennings .380 caliber semiautomatic pistol bought on May 24, 2000.

{¶ 21} Dr. Dorothy Dean, Deputy Coroner for Franklin County, found that Murray had died from a single “gunshot wound to the head.” Murray was shot with a high-powered weapon, and the gun was “very, very close or touching her skin” when fired.

{¶ 22} Dr. Tatarek found that the condition of the skull fragments of Julious were “consistent with an injury by gunshot.” She also found evidence of trauma to the vertebra “caused by some sort of sharp object penetrating the person’s neck and cutting into the bone.” Moreover, trauma to two hand bones was “consistent [with] defense wounds.” Dr. Tatarek also found trauma around joints “consistent with dismemberment of a person.” The condition of the skeletal remains placed the date of death within a three- to six-month time frame that included May 12, 2000.

{¶ 23} Diane Larson concluded that the DNA profile from the bullet jacket found in appellant’s trailer was consistent with Murray’s DNA profile. The odds that the DNA from the bullet jacket was from someone other than Murray were one in 646 billion' for the Caucasian population. Larson also found that the bloodstains on the backpack and duct tape matched Julious’s DNA profile. The odds that the DNA from bloodstains on the backpack was from someone other than Julious were one in 64 quadrillion for the African-American population.

{¶ 24} Heather Zollman, a firearms expert, compared a bullet taken from a tree behind the trailer and the bullet jacket from inside the house and concluded that they were “fired [from] the same firearm.” Zollman described each as a “Remington brand 180 gram .357 magnum semi-jacketed hollow-point bullet.” She could not determine the caliber of the bullet removed from Murray’s body. Nevertheless, Zollman concluded that the lead was “consistent with having come from the bullet.” Gunpowder on the surface of the bullet fragment was also “the same type of style of flattened ball powder that is loaded by Remington in these .357 magnum cartridges.”

Defense’s Case

{¶ 25} The defense called one witness. Donald Doles, a Vinton County neighbor of appellant, testified that twice during the fall of 2000, he had observed a woman who looked like Emily Murray drive past his house in a Subaru Outback with New York license plates. When she drove past on one occasion, Doles was only ten or 12 feet away from the car when “she turned around and looked at [him] and smiled and waved.” During cross-examination, Doles did not recognize Murray’s picture, and he said that he was not 100 percent certain that the woman driving past his house was Murray.

Indictment and Trial Result

{¶ 26} The grand jury indicted appellant on one count of aggravated murder and one count of murder. Count 1 charged appellant with the aggravated murder of Murray while committing a kidnapping, Count 2 charged kidnapping, and Count 3 charged aggravated robbery. Count 6 charged appellant with the murder of Julious. Additionally, appellant was indicted for tampering with evidence in Counts 4 and 7 and gross abuse of a corpse in Counts 5 and 8. Prior to trial, Counts 4, 5, 7, and 8 were dismissed.

{¶ 27} The aggravated-murder count contained four death-penalty specifications: murder to escape detection, apprehension, trial, or punishment for another offense, pursuant to R.C. 2929.04(A)(3); murder as a “course of conduct” in killing two or more people, pursuant to R.C. 2929.04(A)(5); murder while committing or attempting to commit kidnapping, pursuant to R.C. 2929.04(A)(7); and murder while committing or attempting to commit aggravated robbery, pursuant to R.C. 2929.04(A)(7). The indictment also contained a firearm specification.

{¶ 28} Appellant pleaded not guilty to all charges. The jury found appellant guilty of Counts 1, 2, 3, and 6, and he was sentenced to death.

{¶ 29} Appellant appeals to this court as a matter of right.

Pretrial Issues

{¶ 30} Search warrant. In proposition of law V, appellant argues that his trailer was illegally searched because the affidavit supporting the search warrant included false and misleading information.

{¶ 31} “To successfully attack the veracity of a facially sufficient search warrant affidavit, a defendant must show by a preponderance of the evidence that the affiant made a false statement, either ‘intentionally, or with reckless disregard for the truth.’ ” State v. Waddy (1992), 63 Ohio St.3d 424, 441, 588 N.E.2d 819, quoting Franks v. Delaware (1978), 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667. “Reckless disregard” means that the affiant had serious doubts about the truth of an allegation. United States v. Williams (C.A.7, 1984), 737 F.2d 594, 602. Omissions count as a false statement if “designed to mislead, or * * * made in reckless disregard of whether they would mislead, the magistrate.” (Emphasis deleted.) United States v. Colkley (C.A.4, 1990), 899 F.2d 297, 301.

{¶ 32} On December 9, 2000, Vinton County Sheriffs Deputy Matt Eight observed a Subaru Outback with New York license plates behind appellant’s trailer. A police computer check connected the vehicle to Emily Murray, who was listed as a “missing endangered person.”

{¶ 33} Later that afternoon, Vinton County Chief Deputy Sheriff Charles Boyer went to appellant’s trailer and verified ownership of the Subaru by checking both the vehicle’s license plate and the vehicle identification number (“VIN”). Boyer also learned through a Knox County police dispatcher that Murray had been missing since November 3 and that Knox County authorities “had done extensive searching, [and] had the F.B.I. involved.”

{¶ 34} Boyer listed the following facts and circumstances in the affidavit to obtain a search warrant for the trailer: “Emily Sarah Murray is listed as an endangered missing person by the Knox County, Ohio Sheriffs Office, as of November 3, 2000. Earlier today while attempting to serve an indictment on Gregory McKnight at his residence, I saw a vehicle with New York license plates on it. Mr. McKnight was not at home, neither was anybody else. Prior to leaving, I ran the license plate number. It came back to Cynthia Murray with an alert for Emily Sarah Murray as an endangered and missing person. The vehicle came up missing the same time Emily did. I obtained confirmation from Knox County officials whom are traveling to Vinton County at this time.”

{¶ 35} Boyer also attached to the affidavit a missing person’s flyer regarding Murray’s disappearance. The affidavit listed “Abduction, R.C. 2905.02; Kidnapping, R.C. 2905.01; ENDANGERED MISSING PERSON” as the provisions of law violated. Later on December 9, Judge Grillo issued the search warrant.

{¶ 36} Appellant claims that the search warrant was invalid because three false statements were included in the affidavit. First, appellant asserts that Eight, rather than Boyer, saw the Subaru behind appellant’s trailer and checked the plates on the police computer. The facts do not support this allegation. After being notified that Murray’s Subaru was found behind appellant’s trailer, Boyer checked the VIN and license-plate number of the Subaru on the police computer in the sheriffs office. Boyer then went to appellant’s trailer, checked the VIN on the Subaru, and verified the vehicle’s ownership. Thus, Boyer correctly stated in the affidavit that he observed the Subaru and verified its ownership.

{¶ 37} Second, appellant contends that Boyer’s affidavit falsely states that he contacted the Knox County Sheriffs Office about Murray’s disappearance. We also reject this claim. Boyer’s affidavit does not assert that he personally contacted Knox County officials about Murray’s disappearance. The affidavit states, “I obtained confirmation from Knox County officials.” (Emphasis added.) This statement encompasses information that Boyer obtained about Murray’s disappearance through the police dispatcher.

{¶ 38} Moreover, information about Murray’s disappearance obtained through the police dispatcher was properly included in the affidavit. Courts have recognized that “ ‘effective law enforcement cannot be conducted unless police officers can act on directions and information ■ transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.’ ” Maumee v. Weisner (1999), 87 Ohio St.3d 295, 297, 720 N.E.2d 507, quoting United States v. Hensley (1985), 469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604.

{¶ 39} Third, appellant argues that the affidavit improperly listed kidnapping and abduction as the violated laws because Murray was listed only as a missing and endangered person at that point.

{¶ 40} Crim.R. 41(C) provides that a search-warrant affidavit “shall name or describe the person to be searched or particularly describe the place to be searched * * * [and] state substantially the offense in relation thereto, and state the factual basis for the affiant’s belief that such property is there located.” (Emphasis added.) See, also, R.C. 2933.23. “Crim.R. 41(C) requires a substantial statement of the offense in relation to the property to be seized and not the specific code number or title of that offense.” (Emphasis added.) Cleveland v. Becvar (1989), 63 Ohio App.3d 163, 166, 578 N.E.2d 489. Moreover, the “failure to specify the offense to which the evidence is related by name or code section in the affidavit is not constitutionally significant” and does not require suppression of evidence seized pursuant to that warrant. Id.

{¶ 41} Probable cause to search does not require proof that a crime was actually committed, merely the fair probability that evidence of a crime will be found at the location described. State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640, paragraph one of the syllabus. The facts in the affidavit fully supported a finding of probable cause: Murray had been missing for over a month and was considered a missing and endangered person; Murray and her car had disappeared at the same time from Knox County; police then discovered her car behind appellant’s trailer in an isolated part of Vinton County. Based upon these facts, the affidavit properly listed kidnapping and abduction as possible offenses, and that listing did not constitute a false and misleading statement in violation of Franks v. Delaware, 438 U.S. at 170, 98 S.Ct. 2674, 57 L.Ed.2d 667.

{¶ 42} Based on the foregoing, proposition V is overruled.

{¶ 43} Dismissal of the capital specifícations. In proposition of law VII, appellant argues that the trial court erred in reinstating the capital specifications.

{¶ 44} In a pretrial motion dated February 7, 2002, appellant’s trial counsel sought to dismiss the capital specifications due to asserted constitutional- and international-law violations. On August 8, 2002, the trial court dismissed the capital specifications, finding “that the potential impact of financial considerations could compromise the Defendant’s due process rights in a capital murder trial.”

{¶ 45} In an August 14, 2002 motion for reconsideration, the state argued that the trial court improperly usurped the state’s authority to prosecute a capital case, that none of appellant’s requests for funding had been denied, and that adequate funding was available to prosecute this capital case. On August 23, 2002, the trial court vacated its earlier ruling. The court later held that “its concern as to financial impact was based upon prospective due process considerations, rather than any actual deprivation of due process.” On September 19, 2002, the trial court held that its August 8, 2002 dismissal was “void ab initio.”

{¶ 46} Appellant argues that the trial court erred in reinstating the capital specifications. First, appellant argues that the trial court properly exercised its discretion by dismissing the capital specifications to avoid the risk of imposing an unreliable and arbitrary death sentence and thus erred by reinstating the capital specifications.

{¶ 47} However, “[t]he grand jury is the ultimate charging body, and it is within its discretion, based on the evidence presented to it, to determine for which felony an accused shall be charged.” Foston v. Maxwell (1964), 177 Ohio St. 74, 76, 29 O.O.2d 194, 202 N.E.2d 425. “Consequently, the decision whether to prosecute is discretionary and not normally subject to judicial review.” Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197; State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 27, 661 N.E.2d 180.

{¶ 48} The trial court abused its discretion by initially dismissing the capital specifications because of the “potential impact of financial considerations” on appellant’s due process rights. (Emphasis added.) See State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.o.3d 169, 404 N.E.2d 144 (“abuse of discretion” defined to mean a decision that is unreasonable, arbitrary, or unconscionable). The trial court’s concerns about inadequate funding of appellant’s capital trial were speculative and without a factual basis. The defense did not claim in the motion to dismiss that financial considerations threatened appellant’s right to a fair trial. Moreover, the prosecutor assured the court that funding was available for defense witnesses and counsel fees and that appellant’s due process rights were in no danger of being violated.

{¶ 49} We conclude that the trial court properly exercised its discretion in reinstating the capital specifications upon learning that the underlying premise for its earlier ruling was flawed. Indeed, “[a] court has the ‘inherent power to regulate the practice before it and protect the integrity of its proceedings.’ ” State v. Busch (1996), 76 Ohio St.3d 613, 615, 669 N.E.2d 1125, citing Royal Indemn. Co. v. J.C. Penney Co. (1986), 27 Ohio St.3d 31, 33-34, 27 OBR 447, 501 N.E.2d 617. Reinstatement of the capital specifications did not violate appellant’s right to a fair trial, and appellant does not argue that the defense was unprepared for trial after the capital specifications were reinstated.

{¶ 50} Second, appellant claims that constraints on the trial court’s discretion to dismiss the capital specifications were unfair and arbitrary in view of Crim.R. 11(C)(3), which states, “If the indictment contains one or more specifications, and a plea of guilty or no contest to the charge is accepted, the court may dismiss the specifications and impose sentence accordingly, in the interests of justice.”

{¶ 51} Appellant argues that Crim.R. 11(C)(3) is unconstitutional because it affords a defendant who pleads guilty the benefit of judicial discretion “in the interests of justice” while denying the same to him because he pleaded not guilty and exercised his right to a jury trial. We have rejected similar attacks on Crim.R. 11(C)(3). See State v. Dickerson (1989), 45 Ohio St.3d 206, 214, 543 N.E.2d 1250; State v. Buell (1986), 22 Ohio St.3d 124, 138, 22 OBR 203, 489 N.E.2d 795.

{¶ 52} Third, appellant asserts that the prosecutor misled the trial court by claiming that the court’s dismissal “comes at an unacceptable cost to fair justice required by Ohio’s citizens and the families of Emily Murray and Gregory Julius [sic].” Appellant makes this claim because he asserts that the Murray family did not want appellant to receive the death penalty.

{¶ 53} The prosecutor’s motion for reconsideration did not assert that the Murray family wanted the death penalty. Although Murray family members requested during the penalty phase that appellant receive life in prison rather than the death penalty, the record does not show that the prosecutor was aware of these wishes at the time of this motion. The motion related to dismissing the capital specifications because of financial considerations and had nothing to do with the Murray family’s desires concerning the death penalty. Moreover, the trial court could not have been unduly influenced by the prosecutor’s reference to the Murray family. A trial judge is presumed to consider “ ‘only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary.’ ” State v. Post (1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, quoting State v. White (1968), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 239 N.E.2d 65.

{¶ 54} Finally, appellant argues that his due process rights were violated because he waived his right to a speedy trial in exchange for an evidentiary hearing on a motion for reconsideration that was never conducted. The facts do not support this claim.

{¶ 55} On April 30, 2001, appellant filed an indefinite waiver of his right to a speedy trial. On August 21, 2002, appellant withdrew this waiver, filed a speedy-trial demand for the murder of Julious, and requested that the trial proceed as scheduled on September 23, 2002. Appellant, however, offered to waive his demand for a speedy trial on all counts if the trial court granted a full evidentiary hearing on the motion for reconsideration of the capital specifications.

{¶ 56} On August 23, 2002, the trial court vacated its earlier ruling, reinstated the capital specifications, and held that the trial would proceed on September 23, 2002. The trial court’s ruling avoided the need for an evidentiary hearing. Moreover, appellant suffered no prejudice, because the trial proceeded on the date that the defense had requested in its speedy-trial demand.

{¶ 57} Based on the foregoing, we overrule proposition VII.

{¶ 58} Pretrial publicity. In proposition of law VIII, appellant argues that the trial court erred by refusing defense requests for a change of venue and for funding to conduct a scientific jury survey.

{¶ 59} 1. Change of venue. Extensive pretrial publicity surrounded appellant’s case on television and in the newspapers. National media focused on the case after the judge dismissed the capital specifications because of financial considerations and later reinstated them.

{¶ 60} A motion for change of venue is governed by Crim.R. 18(B), which provides that “the court may transfer an action * * * when it appears that a fair and impartial trial cannot be held in the court in which the action is pending.” Crim.R. 18(B) does not require a change of venue merely because of extensive pretrial publicity. The decision whether to change venue rests in the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 116, 559 N.E.2d 710.

{¶ 61} We have stated that “ ‘a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.’ ” Id. at 117, 559 N.E.2d 710, quoting State v. Bayless (1976), 48 Ohio St.2d 73, 98, 2 O.O.3d 249, 357 N.E.2d 1035. A defendant claiming that pretrial publicity has denied him a fair trial must show that one or more jurors were actually biased. State v. Treesh (2001), 90 Ohio St.3d 460, 464, 739 N.E.2d 749. “Only in rare cases may prejudice be presumed.” Id.; see, also, State v. Lundgren (1995), 73 Ohio St.3d 474, 479, 653 N.E.2d 304; Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554-555, 96 S.Ct. 2791, 49 L.Ed.2d 683.

{¶ 62} Our review of the voir dire examination does not support appellant’s claim of prejudicial pretrial publicity. During voir dire, each seated juror was individually questioned about pretrial publicity. Although all of the jurors had some knowledge about the case, seven of the jurors had formed no opinion about it. Four other jurors were not asked whether they had formed an opinion about the case, but they agreed to disregard anything that they had heard outside court. The remaining juror stated that he had “[n]ot really formed an opinion, but it leans toward that.” Further questioning showed that this juror knew few details about the case. Finally, all 12 of the jurors agreed to set aside anything that they had heard and decide the case solely upon the evidence presented in court.

{¶ 63} Moreover, the defense did not challenge any of the seated jurors for cause due to pretrial publicity. The absence of defense challenges indicated that the defense, after voir dire was completed, was not particularly troubled by the jury’s exposure to pretrial publicity. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 52; State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 37.

{¶ 64} Appellant has not shown that any juror was biased. Under these circumstances, we find that the trial court did not abuse its discretion by refusing to change venue.

{¶ 65} 2. Scientific jury survey. The state must provide an indigent criminal defendant with funds to obtain expert assistance “only where the trial court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial.” State v. Mason (1998), 82 Ohio St.3d 144, 694 N.E.2d 932, syllabus.

{¶ 66} In his motion for an expert to conduct a scientific jury survey, appellant asserted that a “scientific survey [was] necessary to prove the obvious that because of the publicity a fair trial cannot be had within Vinton County.” Such a generalized assertion does not qualify as the “particularized showing” required by Mason, 82 Ohio St.3d 144, 694 N.E.2d 932, syllabus. Furthermore, comprehensive voir dire examination of the seated jurors about pretrial publicity negated any need for a scientific jury survey of public opinion within Vinton County. Thus, we find that appellant has failed to demonstrate that denial of the requested expert denied him a fair trial. See Mason, 82 Ohio St.3d at 152, 694 N.E.2d 932 (services of a mass-media expert unnecessary); Landrum, 53 Ohio St.3d at 117, 559 N.E.2d 710 (psychologist for jury selection unnecessary); State v. Jenkins (1984), 15 Ohio St.3d 164, 193, 15 OBR 311, 473 N.E.2d 264 (sociologist to assist voir dire unnecessary).

{¶ 67} Based on the foregoing, we find that proposition VIII has no merit.

Trial Issues

{¶ 68} Sufficiency and manifest weight of the evidence. In proposition of law I, appellant challenges the sufficiency and manifest weight of the evidence for his convictions of aggravated felony murder in Count 1, the R.C. 2929.04(A)(7) kidnapping specification, and the separately charged kidnapping offense.

{¶ 69} Although both are raised by appellant in one proposition of law, a challenge to the sufficiency of the evidence differs from a challenge to the manifest weight of the evidence. See State v. Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, ¶ 30.

{¶ 70} In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.

{¶ 71} A claim that a jury verdict is against the manifest weight of the evidence involves a different test. “ ‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717.

{¶ 72} Appellant argues that the state did not prove that he kidnapped Murray. Appellant argues that no witnesses testified that they saw him remove or restrain Murray, and no evidence was presented about where she was murdered. Appellant uses the same rationale in arguing that his convictions for these offenses are against the manifest weight of the evidence.

{¶ 73} We find that appellant’s sufficiency claims lack merit. The state proved that appellant kidnapped Murray by showing that Murray and appellant left work at approximately the same time on the night Murray disappeared, that Murray’s car was found parked behind appellant’s trailer, and that Murray’s murdered body was found rolled in a carpet inside appellant’s trailer. Further, the evidence proved that Murray did not have her wallet, driver’s licenses, and credit cards when she disappeared and that Murray did not tell anyone she was leaving the area, despite her habit of informing friends of her whereabouts. Additionally, appellant lied when Murray’s friend asked about her, and appellant also told a coworker that she was “probably dead.” Appellant also falsely told Kimberly Zimmerman that the Subaru behind his trailer belonged to his boss or a friend, “and they were down there probably hunting.”

{¶ 74} The evidence also established that the location of Murray’s murder was appellant’s trailer. A copper bullet jacket found in the living room of the trailer had Murray’s DNA on it, and a bullet hole was discovered in the bloodstained living-room carpet.

{¶ 75} We also reject appellant’s claim that the evidence was insufficient because there were no eyewitnesses. We have “long held that circumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Heinish (1990), 50 Ohio St.3d 231, 238, 553 N.E.2d 1026. Here, circumstantial evidence, forensic testimony, and appellant’s own statements proved beyond a reasonable doubt that appellant kidnapped and murdered Murray. Forensic evidence showed that the copper bullet jacket and bullets removed from a tree behind appellant’s trailer were “fired from the same firearm.” Moreover, the fact that appellant used a gun for target practice on his property linked him to the weapon that killed Murray.

{¶ 76} As to appellant’s manifest-weight challenges, this is not an “ ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 20 OBR 215, 485 N.E.2d 717. We find that the jury neither lost its way nor created a miscarriage of justice in convicting appellant of aggravated felony murder, the kidnapping-murder specification, or the separate offense of kidnapping. Proposition I is overruled.

{¶ 77} Evidentiary issues. In proposition of law III, appellant argues that the trial court erred by admitting evidence of his marital infidelity, his reaction to the presence of the police, and the introduction of victim-impact evidence.

{¶ 78} 1. “Other acts” evidence Amber Hammers and appellant worked together at Flappers Bar, a Mount Vernon bar and grill then owned by an owner of the Pirate’s Cove. Hammers testified that appellant called and asked her to go dancing with him. Hammers told appellant that she had not talked to her boyfriend about going dancing with another man, and no plans were made.

{¶ 79} Gloria Ressler and appellant worked together at the Pirate’s Cove. Ressler testified that following Murray’s disappearance, appellant called her on three occasions during November 2000 and asked “if he could come over and hang out, have a party, come out and just have [her] and him * * * out there.” Appellant also approached her at work and said, “[W]e could have a quickie and [your fiancé] wouldn’t have to know.”

{¶ 80} Lisa Perkins testified that at one point, appellant gave her a ride in his car and along the way, appellant “stopped up on the top of the hill, and * * * he just started talking and touching [her] and [they] had sex up on the hill in the car.” Dana Bostic testified that appellant had spent the night with Perkins at Bostic’s home. Following Julious’s disappearance, appellant told Bostic that “his plans were * * * to leave his wife [and] * * * come and stay with [Bostic] and Lisa at [Bostic’s] house.”

{¶ 81} Paul Amstutz, a former Pirate’s Cove delivery driver, testified about a conversation with Kathy McKnight about appellant’s whereabouts. During a food delivery to the McKnight home, Kathy indicated to Amstutz that she thought that appellant was working that evening at the Pirate’s Cove. Amstutz knew, however, that appellant was not working that evening and was instead drinking at the Pirate’s Cove bar.

{¶ 82} Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove” a defendant’s character as to criminal propensity. “It may, however, be admissible * * * [to show] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” However, “[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510 N.E.2d 343, paragraph two of the syllabus.

{¶ 83} The trial court did not abuse its discretion in admitting Hammers’s and Ressler’s testimony. That evidence related to appellant’s modus operandi, or plan. Evidence showing a modus operandi is admissible because “ ‘it provides a behavioral fingerprint which, when compared to the behavioral fingerprints associated with the crime in question, can be used to identify the defendant as the perpetrator.’ ” State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 104, quoting State v. Lowe (1994), 69 Ohio St.3d 527, 531, 634 N.E.2d 616.

{¶ 84} Hammers and Ressler helped to establish appellant’s opportunity, preparation, and plan to acquaint himself and be alone with Murray. Appellant’s phone calls to Hammers and Ressler showed that appellant developed an interest in his co-workers and asked them out. This pattern of behavior showed the likelihood that appellant also developed an interest in Murray. Thus, the jury could reasonably infer from the testimony of Hammers and Ressler that appellant had asked Murray for a ride after work.

{¶ 85} We also reject appellant’s argument that his phone calls to Ressler were not admissible because they were made after Murray’s disappearance. “[P]ursuant to Evid.R. 404(B), * * * evidence of subsequent crimes or acts of misconduct is admissible if it is relevant to an issue at trial and its probative value is not outweighed by its prejudicial effect.” Cleveland v. Dillingham (May 11, 1995), Cuyahoga App. No. 67693, 1995 WL 277105, *4. Appellant’s phone calls, though made two or three weeks after Murray’s disappearance, were relevant in establishing appellant’s modus operandi.

{¶ 86} Moreover, the trial court provided the jury with cautionary instructions on “other acts” evidence. The jury was advised: “Evidence was introduced that the defendant may have committed other acts other than the offenses with which he was charged in this case. If you find that the evidence of other acts is true * * *, you may consider that evidence only for the purpose of deciding whether it proves Gregory McKnight’s motive, opportunity, intent or purpose or plan to commit kidnapping of Emily Murray. The evidence may not be considered for any other purpose. It was not received, and you may not consider it to prove the character of Gregory McKnight in order to show that he acted in conformity with that character.” In view of these instructions and the probative value of the testimony of the two women, the trial court did not abuse its discretion in admitting this “other acts” evidence. See State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 48.

{¶ 87} We also find that the testimony about appellant’s visits to Perkins in Bostic’s home was relevant to show how appellant and Julious knew each other. Thus, the trial court did not abuse its discretion in admitting such evidence.

{¶ 88} Testimony that appellant and Perkins had sex in appellant’s car and spent the night together at Bostic’s home was not relevant and not admissible under Evid.R. 404(B). Nevertheless, we find that the impact of such testimony was minimal and not prejudicial given other compelling evidence of appellant’s guilt. See Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 49.

{¶ 89} 2. Reaction to the police. Two to three weeks before Julious was murdered, appellant, Kathy, Bostic, and Julious drove from Chillicothe to Columbus to go to a reggae club. Over defense objection, Bostic testified that when they “pulled into a parking lot [of the reggae club] * * * there was police sitting in the parking lot.” Bostic testified that appellant said, “‘There’s the police.’ And then we turned * * * out of the parking lot and we drove all the way back home.”

{¶ 90} We find that the trial court abused its discretion in admitting this testimony. Appellant’s reaction to the police occurred before he murdered either Julious or Murray. This evidence did not prove consciousness of guilt, because there was no connection between appellant’s reaction to the police and the charged offenses. Appellant’s reaction to the police, however, was not tied to any other misconduct, and he was not prejudiced by such testimony. Thus, the introduction of this evidence constituted harmless error.

{¶ 91} 3. Victim-impact comment and testimony. During his opening statement, the prosecutor stated, “Two years ago, Emily S. Murray was attending Kenyon College in Gambier, Ohio. She was in her junior year, and she was 20 years young.” Further, the prosecutor stated, “At work, Emily was well-liked. She was outgoing, she was helpful, she was a good waitress.”

{¶ 92} Thomas Murray, the victim’s father, testified that he had a “very close” relationship with his daughter. He added, “Emily was in touch with her mother or me or both of us' almost every day.” According to Thomas, Emily “was very responsible; she was just a very honest kid.” Moreover, Murray returned from a religious retreat about ten days before her disappearance and was “really excited about becoming a priest.” Thomas also testified that when he learned of his daughter’s disappearance, “it was like somebody hit [him] in the stomach with a sledgehammer.”

{¶ 93} Cynthia Murray, the victim’s mother, described a “very close relationship” with Murray, said Murray was “easy to love,” and testified that Murray “wanted to become an Episcopal priest.”

{¶ 94} Megan DiCarlo, a college friend, described Murray as “very outgoing, very social, independent, very open with people, trusting of people. Like she always looked for the best in people.” Kate Murray, another college friend, described Murray as “[v]ery outgoing, had a lot of friends, very friendly.” Kate also testified that Murray was very religious, and the tattoo of a dove on Murray’s back symbolized this interest.

{¶ 95} Michael Corrigan, the general manager of the Pirate’s Cove, stated that Murray was “courteous and cared for people, and she was a very upbeat person, fun to work with.” On the night she disappeared, Murray was “very upbeat and happy.” Nathan Justice also testified that Murray was a “very nice, happy person.”

{¶ 96} During the guilt-phase closing argument, the prosecutor described Murray’s disappearance as “every parents’ worst nightmare,” repeated Thomas Murray’s statement that “they felt as if they had been hit in the stomach with a sledgehammer,” and mentioned that “that pain in their stomach stays with them today.” The prosecutor also argued that Murray was “nice” and “kind-hearted” and might have given appellant a ride on the night she disappeared.

{¶ 97} The defense filed a motion in limine to exclude victim-impact evidence. Nevertheless, except where noted, the defense did not renew its objection to the foregoing testimony at trial and thus waived all but plain error. See Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34 (“a ruling on a motion in limine may not be appealed and * * * objections * * * must be made during the trial to preserve evidentiary rulings for appellate review”).

{¶ 98} Evidence relating to the facts attendant to the offense is “clearly admissible” during the guilt phase, even though it might be characterized as victim-impact evidence. State v. Fautenberry (1995), 72 Ohio St.3d 435, 440, 650 N.E.2d 878. Thus, testimony that Murray was friendly, outgoing, and trusting was admissible in showing the likelihood that Murray provided appellant a ride in her car on the night she disappeared. Moreover, testimony that Murray was a responsible person was admissible in showing that she would not have left campus in her car without taking her wallet and driver’s license.

{¶ 99} The defense objected to Thomas’s and Cynthia’s testimony because of the lack of foundation to prove habit but did not object to the testimony as inappropriate victim-impact evidence. Thomas’s and Cynthia’s close personal relationship and frequent contact with their daughter laid the foundation about Murray’s habit of notifying family members as to her whereabouts before making a trip, and this testimony was also admissible. Thomas’s testimony that his daughter’s disappearance was “like somebody hit [him] in the stomach with a sledgehammer” was of questionable relevance; however, such testimony did not constitute outcome-determinative plain error. See State v. Reynolds (1998), 80 Ohio St.3d 670, 679, 687 N.E.2d 1358; cf. State v. Hartman (2001), 93 Ohio St.3d 274, 293, 754 N.E.2d 1150.

{¶ 100} Testimony about Murray’s upbeat mood before her disappearance, her strong religious beliefs, and her aspirations to become an Episcopal priest was admissible in rebutting arguments that Murray might have committed suicide.

{¶ 101} Kate Murray’s testimony about the tattoo of a dove on Murray’s back was relevant in identifying Murray’s body. See State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 108 (photos of victim’s tattoo admissible to help identify the victim).

{¶ 102} As to the prosecutor’s opening statement and closing argument, the trial counsel failed to object and thus waived all but plain error. See State v. Childs (1968), 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus. There was no plain error. The prosecutor’s brief description of Murray in his opening statement simply pointed out her age and that she had attended Kenyon College, which explained why she lived in Gambier. Cf. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 56 (description of victims’ lives established that the victims had been living persons, an element of the charge of aggravated murder).

{¶ 103} The prosecutor’s remarks during closing argument also did not result in plain error. The prosecutor described Murray as a nice, kind-hearted, and helpful person to point out the likelihood that Murray provided a ride to appellant on the night she disappeared. The prosecutor’s comments about Thomas’s and Cynthia’s pain and anguish simply pointed out the obvious feelings that Murray’s parents experienced following their daughter’s death. Moreover, the prosecutor’s remarks in question were very brief and not overly emotional.

{¶ 104} Based on the foregoing, we reject proposition III.

{¶ 105} Habit evidence. In proposition of law X, appellant argues that the trial court erred by admitting habit testimony.

{¶ 106} Over defense objection, the state presented evidence of Murray’s habit of informing family and friends about her whereabouts before departing on a trip. Thomas Murray testified that her family and friends maintained close contact with Murray as to her whereabouts following Murray’s suicide attempt in May 2000. Murray exchanged phone calls and e-mails with her parents on an almost daily basis. During the fall of 2000, Murray remained in contact with her parents when she traveled to Japan and made a trip to St. Louis. Following this testimony, the prosecutor asked Thomas:

{¶ 107} “Q: Was it common for Emily to tell you where she might be going before she left?

{¶ 108} “A: Anything of significance, yes, sir.

{¶ 109} “ * * *

{¶ 110} “Q: Could you restate your answer?

{¶ 111} “A: Emily was in very close touch with us, and also with her friends, so if it was anything significant, we would have known about it, she would have told us, and she certainly would have told her friends.”

{¶ 112} Megan DiCarlo, Murray’s roommate, testified that she and Emily used a dry-erase board to leave a message “if one of [them] went somewhere.” The prosecutor also asked DiCarlo:

{¶ 113} “Q: Did Emily use the board when she took a trip, maybe a weekend or two before?

{¶ 114} “A: Uh-huh. She had gone to see a friend in Cleveland a couple weeks beforehand * * * and had left a message like filling almost the entire board about where she was going, when she planning on leaving, when she was planning on being back, who she was going to see, and a phone number for that person.

{¶ 115} “Q: The night that Emily didn’t come back, was there any notes on that board?

{¶ 116} “A: No, there weren’t.

{¶ 117} “Q: Were there any notes anywhere else in the dorm room?

{¶ 118} “A: No.

{¶ 119} “Q: Did you get any phone messages?

{¶ 120} “A: No.”

{¶ 121} Kate Murray, a former roommate, also testified about Murray’s habit of informing her friends about her whereabouts:

{¶ 122} “Q: I’m not talking about guessing what she might do in the future. While you were her roommate, while you knew her, did she ever disappear unaccounted for and then reappear and say, Well, I’m sorry, sorry?’

{¶ 123} “A: No.

{¶ 124} “Q: How do you know that?

{¶ 125} “A: I would — from personal experience of living with her, it’s a very-small campus, you see people a lot, and if she had disappeared for any amount of time, we would have noticed.

{¶ 126} “Q: Did she ever leave * * * unexpectedly?

{¶ 127} “A: Yes, one night she drove up to Cleveland to see a Mend, but then when she did go that time — and no one knew she was going — she left us a note saying where she was going.

{¶ 128} “Q: Where did she leave the note?

{¶ 129} “A: I assume in her room. I don’t know.”

{¶ 130} Evid. R. 406 provides: “Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Evid.R. 406 is identical to Rule 406 of the Federal Rules of Evidence.

{¶ 131} Evid.R. 406 does not define habit. “Habit,” however, has been defined as a “person’s regular practice of meeting .a particular kind of situation with a specific type of conduct.” See Advisory Committee’s Notes, Rules of Evidence for United States Courts and Magistrates (1973), 56 F.R.D. 183, 223. Although a precise formula does not exist for determining when the behavior may become so consistent as to rise to the level of habit, “adequacy of sampling and uniformity of response are key factors.” Id. at 224; see, also, United States v. Newman (C.A.1, 1992), 982 F.2d 665, 668; Reyes v. Missouri Pacific RR. Co. (C.A.5, 1979), 589 F.2d 791, 795. These factors focus on whether the behavior at issue “ ‘occurred with sufficient regularity making it more probable than not that it would be carried out in every instance or in most instances.’ ” Newman, 982 F.2d at 668, quoting Weil v. Seltzer (C.A.D.C.1989), 873 F.2d 1453, 1460.

{¶ 132} Murray’s father and two of her close friends established Murray’s habit of notifying friends and family members of her whereabouts before departing on a trip. Murray’s daily phone calls and e-mails with her father as to her whereabouts, and her practice of leaving notes as to her whereabouts with her Mends were “ ‘numerous enough to base an inference of systematic conduct,’ ” permitting the admissibility of the testimony. Wilson v. Volkswagen of Am., Inc. (C.A.4, 1977), 561 F.2d 494, 511, quoting Strauss v. Douglas Aircraft Co. (C.A.2, 1968), 404 F.2d 1152, 1158.

{¶ 133} We reject appellant’s argument that Murray’s behavior was a volitional act and therefore not admissible as habit evidence. Activities that are “semiautomatic or nearly nonvolitional, can be easily classified as habit.” 1 Giannelli & Snyder, Evidence (2d Ed.2001) 265, Section 406.4. For example, locking the door of a house or traveling home from work by the same route are examples of habitual acts that may become semiautomatic and thus tend to prove that one acted in a particular situation in the same manner. Id.; see, also, Cardinal v. Family Foot Care Ctr., Inc. (1987), 40 Ohio App.3d 181, 182, 532 N.E.2d 162 (“habitual acts may become semi-automatic and may tend to prove one acted in the particular case in the same manner”).

{¶ 134} Similarly, Murray’s repeated practice of notifying friends and family of her whereabouts before departing on a trip became a semiautomatic form of behavior that was admissible to prove habit. See State v. Allen (1995), 73 Ohio St.3d 626, 633, 653 N.E.2d 675 (testimony that victim was an immaculate housekeeper was admissible under Evid.R. 406 to show she would likely have wiped the defendant’s fingerprints off her glasses); see, also, Perrin v. Anderson (C.A.10, 1986), 784 F.2d 1040, 1045-1046 (five instances of violent encounters with the police sufficient to establish “habit” of reacting violently to uniformed police officers); Meyer v. United States (C.A.10, 1980), 638 F.2d 155, 156-158 (dentist’s routine to advise patients of potential risks of extractions admissible to show that he acted in conformity with that habit when dealing with the plaintiff).

{¶ 135} We also reject appellant’s argument that habit evidence should not have been admitted because the testimony did not identify a specific manner that Murray used to notify her friends and family of her whereabouts. Testimony established that e-mails, phone calls, and notes were Murray’s specific methods for notifying family and friends as to her whereabouts.

{¶ 136} Finally, sufficient examples of Murray’s conduct •,demonstrated Murray’s habit. Murray exchanged e-mails and phone calls with her parents on almost a daily basis, remained in daily contact with her father as to her whereabouts in Japan, and notified her parents about her trip to St. Louis. Moreover, college friends testified that Murray left notes and information as to her whereabouts on an erase board before departing on trips. Cf. Bollinger, Inc. v. Mayerson (1996), 116 Ohio App.3d 702, 715, 689 N.E.2d 62 (testimony about two isolated instances of alleged cheating was not sufficient evidence of habit under Evid.R. 406).

{¶ 137} The trial court did not abuse its discretion in admitting testimony about Murray’s habit under Evid.R. 406. Thus, proposition X is overruled.

{¶ 138} Gruesome photographs. In proposition of law XII, appellant argues that the trial court erred in admitting gruesome autopsy and crime-scene photographs.

{¶ 139} The defense failed to object to gruesome photographs at trial and has waived all but plain error. State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 49. The defense motion in limine to exclude crime-scene and gruesome photographs did not preserve this issue. Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34.

{¶ 140} Nonrepetitive photographs, even if gruesome, are admissible in capital cases as long as the probative value of each photograph outweighs the danger of material prejudice to the accused. State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus; State v. Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267. Decisions on the admissibility of photographs are “left to the sound discretion of the trial court.” State v. Slagle (1992), 65 Ohio St.3d 597, 601, 605 N.E.2d 916.

{¶ 141} 1. Crime-scene photographs. Appellant complains about four crime-scene photographs. State’s exhibits Nos. 47 through 49 depict Murray’s body as it was found in the carpet. State’s exhibit No. 116 depicts Murray’s fully clothed body after the carpet was unrolled. There was no plain error in admitting this evidence. These photos portrayed Murray in relation to the crime scene and illustrated the testimony of Special Agent Wilgus and others who saw the crime scene. See State v. Twyford, (2002), 94 Ohio St.3d 340, 358, 763 N.E.2d 122; State v. Hartman, 93 Ohio St.3d at 288, 754 N.E.2d 1150.

{¶ 142} 2. Autopsy photographs. Appellant also objects to nine autopsy photographs. State’s exhibit No. 144 is a photograph of the carpet before it was unrolled and contains no image of Murray’s body. State’s exhibit No. 117 is a photograph of Murray’s body from her thighs to beneath her breast line and shows that she is wearing a pair of panties with the word “Thursday” on them. That evidence was relevant because Thursday was Murray’s last day of work at the Pirate’s Cove. State’s exhibit No. 112 showed the tattoo of a dove on her back and was a prominent identifying mark on her body.

{¶ 143} State’s exhibits Nos. 119, 148, and 149 depict Murray’s right and left hands. These photographs supported the coroner’s testimony that no blood spatter was found on Murray’s hands or arms, an absence that helped show that Murray was not a suicide victim.

{¶ 144} State’s exhibit No. 147 is a decidedly gruesome photograph showing the entry gunshot wound in Murray’s head. State’s exhibit No. 146 is another gruesome photograph depicting the exit wound underneath Murray’s ear. State’s exhibit No. 145 is an X-ray of Murray’s skull showing bullet fragments lodged in her head. These photographs supported the coroner’s testimony that Murray suffered “one gunshot wound * * * coming through the brain and the neck and coming out on the left side of the neck.”

{¶ 145} No plain error occurred in admitting the autopsy photographs. The autopsy photographs depicted the' victim’s wounds, illustrated the coroner’s testimony, and helped prove appellant’s intent. See State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, ¶ 73; State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 36.

{¶ 146} We also reject appellant’s complaint about the reintroduction of the photographs during the penalty phase. The defense did not object to their reintroduction at trial, and no plain error occurred by allowing these photographs into evidence. Twyford, 94 Ohio St.3d at 358, 763 N.E.2d 122; State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542.

{¶ 147} Based on the forgoing, we overrule proposition XII.

{¶ 148} Admissibility of Murray’s notebook and notepad. In proposition of law XV, appellant argues that the trial court abused its discretion by refusing to admit all of Murray’s notebooks and notepads into evidence because they rebutted the state’s evidence that she was a happy and upbeat person.

{¶ 149} The police recovered Murray’s notebooks and notepads from her dorm room. During the defense case, trial counsel sought to introduce all of Murray’s writings into evidence. The trial court admitted most of Murray’s composition notebook into evidence.

{¶ 150} In reviewing the record, it appears that the documents admitted as defense exhibit H include Murray’s reflections about her suicide attempt on May 5, 2000, her feelings about hospitalization and therapy, her self-analysis, and a drawing of a partial stick figure being hanged. Murray’s letter to a friend dated June 14, 2000, is the latest date on any of the writings.

{¶ 151} The trial court did not admit other parts of defense exhibit H that included undated loose papers, page 12 from the notebook, a legal pad that contained a letter dated January 2, 1999, and other undated writings. These miscellaneous papers contain fictional stories, several drawings, and Murray’s reflections about life that did not