State v. Fry (125 Ohio St. 3d 163, 2010)

Lanzinger, J.

{¶ 1} This is an appeal as of right of defendant-appellant Clarence Fry, who has been sentenced to death for the aggravated murder of Tamela Hardison.

{¶ 2} Count One charged Fry with the aggravated felony murder of Tamela Hardison while committing aggravated burglary and/or burglary, R.C. 2903.01(B). Count One included two death-penalty specifications: murder while committing, attempting to commit, or fleeing after committing aggravated burglary, R.C. 2929.04(A)(7), and murder to prevent Hardison’s testimony in another criminal proceeding or in retaliation for her testimony in any criminal proceeding, R.C. 2929.04(A)(8).

{¶ 3} Count Two charged Fry with aggravated murder by purposely killing Hardison with prior calculation and design, R.C. 2903.01(A), and Count Three charged him with felony murder, R.C. 2903.02.

{¶ 4} Fry was also charged with six additional counts: Count Four — aggravated burglary, Count Five — domestic violence on July 18, 2005, Count Six— domestic violence on July 31, 2005, Count Seven — tampering with evidence, Count Eight — -intimidation of a crime victim, and Count Nine — menacing by stalking.

{¶ 5} Fry pleaded not guilty to all charges and specifications. The jury found him guilty of all charges, and he was sentenced to death.

{¶ 6} We affirm the convictions and sentence of death, but remand for imposition of postrelease control pursuant to R.C. 2929.191 on the sentences for domestic violence, tampering with evidence, intimidation of a crime victim or witness, and menacing by stalking.

I. Trial Evidence

A. The State’s Case

{¶ 7} The state’s case revealed that early on July 18, 2005, Fry and Hardison had an argument and a fight in the Akron apartment where they lived. Akron police officers Michael Rinn and Matthew Hackathorn arrived at 12:56 a.m., found Hardison injured and frightened, and arrested Fry.

{¶ 8} Hardison filed charges against Fry for assault and aggravated menacing, both first-degree misdemeanors, and also sought a criminal stalking protection order. Later that day, Hardison went to the emergency room at Akron City Hospital, where one arm was put in a cast and she was treated for pain and bruises. She told Donnell Juersivich, a victim-assistance advocate, that she intended to follow through with the charges against Fry.

{¶ 9} The same day, Fry was arraigned in Akron Municipal Court on charges of assault and aggravated menacing. His bond was set at $10,000, ten percent. Fry was already on probation for a domestic-violence conviction. He had signed rules of probation stating that any new conviction would be a probation violation and could result in reimposition of his previously suspended prison sentence.

{¶ 10} While he was in the Summit County jail, Fry made numerous phone calls, which were recorded by the jail. Before arraignment, Fry talked to his mother about the charges and whether his probation might be revoked. Fry asked his mother to call Hardison and tell her, “I go to court tomorrow. * * * If she would drop the charges, * * * I can get out on a signature bond.” Fry mentioned that he was supposed to see his probation officer that Tuesday and worried that he might not be released on a signature bond. “I don’t know what I’m going to do. * * * I will be jammed up big time,” he said.

{¶ 11} After the arraignment, Fry asked his mother to call Hardison again and “tell her to call them people and squash that.” Fry also mentioned that he was being evicted from his apartment.

{¶ 12} Fry talked to Hardison on the afternoon of July 18. He repeatedly asked Hardison to drop the charges so he could get out of jail. Before ending their call, Fry told Hardison, “You better quit fucking with me.” He said, “You have got to talk to that lady * * * you tell her that them people coerced you into signing that thing.”

{¶ 13} Later that day, Fry told Hardison again to get him out of jail. During this conversation, Fry said, “My record is so fucked up and violent.” Fry told Hardison to say that “[t]he police scared [her] * * * into saying things.” Hardison agreed to say, “The police scared me * * * because they had guns in my face.” Fry said, “Good.”

{¶ 14} In a call on July 21, Fry told Hardison that he had paperwork she signed saying that he had assaulted and threatened to kill her. He said, “I got two of them under my belt * * * toe tags.” Fry explained that this comment meant that he had killed two people. Fry then told Hardison to “fix this, fix this.” He said, “Those two signatures you put on there. You fix that. That is all I need you to do.”

{¶ 15} Hardison’s friend Robin Brooks testified that on some date after July 18, Hardison and Brooks went to the apartment and retrieved Hardison’s clothes, a stereo, a microwave, and some dishes. Brooks testified that Hardison did not take any male clothing or a TV from the apartment. Hardison left her property with a friend who owned a furniture business. Brooks did not know whether Hardison was paid for the property.

{¶ 16} Fry’s bond was modified on July 25 to a $10,000 signature bond on the condition that he would have no contact with Hardison. Fry was also placed on day reporting. A new pretrial date was set for August 4, 2005, and he was released later that day.

{¶ 17} The next day, Fry went to the Akron Police Department and told Officer Mychal Brown that he had been released from jail for domestic violence and wanted to report a theft of property by his girlfriend. Brown told Fry to make a police report and not return to the apartment without the police.

{¶ 18} Juersivich, the victim-assistance advocate, testified that on July 28, she received a “hot line” call from Hardison, who was upset and afraid after learning that Fry had been released from jail.

{¶ 19} Hardison spent the night of July 30, 2005, at her daughter Nikita Knox’s home at 824 Ina Court in Akron. On the morning of July 31, the daughter left for work, and Hardison remained to babysit for her daughter’s three children: Jasown Bivins, age five, Jaion Bivins, age three, and Demeatrionia Blackwell, age two.

{¶ 20} The Knox home was the property of the Akron Metropolitan Housing Authority (“AMHA”). Fry had been banned from entering AMHA property between February 14, 2005, and February 14, 2006, for having no bona fide reason to be there, but had violated this ban at least twice. In the early afternoon of July 31, Fry went to the Knox home. Jasown was playing outside with his brother Jaion and a friend, eight-year-old Maurice Vinson. Jasown and Vinson testified that they saw Fry walking through the courtyard toward the back of the Knox home. Fry was wearing a yellow sleeveless shirt and carrying an empty bowl and a long butcher knife. Jasown asked Fry why he was going into the house, and Fry said, “[T]o cut potatoes.” Jasown followed Fry into the home.

{¶ 21} According to Jasown, Fry went into the living room, where Hardison was watching TV and Demeatrionia was sleeping on the couch. Jasown heard Fry ask Hardison, “Where are my clothes?” Jasown then saw Fry “cut” Hardison with the knife. Hardison told Jasown to call the police. Jasown tried, but Fry kept taking the phone from him. Fry was at the home no more than five minutes.

{¶ 22} Vinson, the eight-year-old, testified that he saw Fry “speed walking” as he left the home carrying the knife and bowl. At about the same time, Jasown ran to Vinson’s home and screamed that his grandmother had been killed. Tanya Magrell, Vinson’s mother, testified that she then called 9-1-1. On the 9-1-1 tape, Jasown can be heard identifying “Clarence” as the killer.

{¶ 23} Akron patrolman Anthony Sutton arrived at the Knox home at approximately 1:00 p.m. Sutton testified that he found the side door partially open. Inside, he found Hardison’s body on the living room couch and Demeatrionia cuddled against her. A paramedic determined that Hardison was dead.

{¶ 24} Fry was quickly identified as the primary suspect in Hardison’s killing. Police searched the area for Fry but were unable to find him. They were also unsuccessful in their search for a murder weapon. On August 3, 2005, Fry was found and arrested in Charleston, West Virginia.

{¶ 25} Corporal Keith Peoples, a Charleston police officer, transported Fry to the police station. Peoples testified that Fry did not complain of any injuries and that he did not notice any injuries to Fry’s head.

{¶ 26} While awaiting extradition to Ohio, Fry made several phone calls from the Charleston jail to his mother. The recorded calls were entered into evidence. On August 9, Fry said, “It was just meant to be, Momma. * * * Just that simple.” Fry continued, “I went in there trying to scare that girl. * * * I didn’t go in there to kill nobody. That girl attacked me, Momma. * * * The audacity.”

{¶ 27} Following Fry’s extradition to Ohio, Akron Detective Michael Shaeffer conducted a tape-recorded interview of Fry. After waiving his Miranda rights, Fry stated that Hardison had confiscated all his belongings from his apartment while he was in jail and had taken them to a consignment store to be sold. Fry also said that Hardison had taken a TV that she had stolen from her daughter. He then put “the word out” that Hardison “stole her daughter’s stuff, stole [his] stuff.” Fry stated that he was not carrying a knife when he went to the Knox home. Instead, he got the knife from the kitchen to cut the noodles that he had been eating on the way there.

{¶ 28} Fry said he entered the living room slurping the noodles. Hardison had a “pet peeve” about his slurping noodles in her presence and became angry. Fry said, “I went straight off and I got to the point I mean how the hell you gonna [rob] me * * * and I’m cussing her out something fierce. * * * I’m calling her hoes, bitches, crackhead, dicksuckers and her grandson walks in.” According to Fry, Hardison responded, “You ain’t gonna talk to me like that in front of my grandson” and hit him in the jaw with an ashtray. Fry said he started “seeing stars,” and his “vision blurred.” Hardison was on top of him, Fry said, and he heard her'say, “I’ll kill you you tell my grandson * * * shit like that.” Fry “got her up off’ him and then stabbed Hardison because “she was trying to kill” him. He stated that his Marine training took over.

{¶ 29} Fry said he handed the phone to Jasown, Hardison’s grandson, and told him to call 9-1-1. Fry then fled the apartment with the bowl of noodles, the knife, and the ashtray. He said he threw the knife away “in a yard somewhere” near the crime scene.

{¶ 30} Dr. Lisa Kohler, the chief medical examiner for Summit County, conducted the autopsy on Hardison. Hardison suffered four stab wounds to her left arm and torso. The fatal wound entered the left upper back and injured the left upper lobe of the lung, cut into the aorta, and injured the left pulmonary artery. Dr. Kohler stated that a “significant amount of force” would have been necessary to “get the knife in deep enough to damage the structures near the heart.” A drug screen was also conducted, and benzoylecgonine, a breakdown product of cocaine, was detected in Hardison’s system. Dr. Kohler ruled that the “cause of death was * * * a stab wound to the back and the manner of death was * * * homicide.”

{¶ 31} Lynda Eveleth, a forensic scientist with the Ohio Bureau of Criminal Identification and Investigation, testified that she conducted DNA testing of a bloodstain found on Fry’s yellow sleeveless shirt, which Jasown testified that he had seen Fry wearing the day of the murder. Eveleth testified that she determined that “Hardison cannot be excluded as the source of DNA from the * * * shirt.”

B. The Defense Case

{¶ 32} The defense called one witness and introduced five exhibits. Mary Reid, who lives near Knox’s Ina Court home, testified that Hardison was not wearing a cast on her arm when Hardison came to a birthday party at Reid’s house on July 30, 2005. Reid also testified that she saw Fry walk by her front door toward Ina Court with a bowl in his right hand on the morning of July 31. She testified that Fry was not carrying a knife.

{¶ 33} Defense exhibit A is a notice to Hardison that she was required to appear in court on July 18 when her application for a protective order would be considered. Defense exhibit B is the case jacket for Fry’s domestic-violence charges in Akron Municipal Court, showing that the case was assigned to Judge Williams, with pretrial dates of July 25 and August 4.

{¶ 34} Defense exhibit C documents that on July 29, 2005, Knox, Hardison’s daughter, reported that a Hitachi big-screen TV that she rented had been stolen. Defense exhibit D provides the written policy for addressing criminal trespass on AMHA property. During cross-examination of William Liska, the AMHA security director, trial counsel demonstrated that AMHA policy did not authorize trespassers to be orally notified that they were banned from the premises.

{¶ 35} Finally, defense exhibit E is a photograph taken on July 31, showing the untidy bedroom at the Knox home. Trial counsel used this photograph during Officer Sutton’s cross-examination to illustrate the clutter throughout the home.

II. Issues on Appeal

{¶ 36} The principal issues for our review are the sufficiency of the indictment under State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, the admissibility of Hardison’s statements under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, and whether the violation of Fry’s allocution right constitutes harmless error.

{¶ 37} We will examine Fry’s issues in the following order: pretrial and trial issues, penalty-phase issues, ineffective assistance of counsel issues, and, finally, the remaining issues raised.

A. Pretrial and Trial Issues

1. Sufficiency of the Indictment (Proposition of Law XI)

{¶ 38} Fry argues that his indictment for aggravated felony murder in Count One, the accompanying death-penalty specification in Specification One, and felony murder in Count Three are constitutionally defective because they fail to specify every element of the underlying offenses. In particular, he argues that some of his indictments do not specify a mens rea. Fry did not challenge the sufficiency of his indictment at trial.

{¶ 39} During the pendency of Fry’s appeal, this court decided State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (“Colon I”), which held: “When an indictment fails to charge a mens rea element of a crime and the defendant fails to raise that defect in the trial court, the defendant has not waived the defect in the indictment.” Id. at syllabus. In State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169 (“Colon II”), this court clarified that when a defendant fails to preserve objections to a defective indictment during the course of a trial, the issues are generally forfeited and must be reviewed under a plain-error analysis except in rare cases of structural error. Id. at ¶ 7.

a. Aggravated felony murder

{¶ 40} With respect to the aggravated felony-murder charge, Count One of the indictment followed the wording of R.C. 2903.01(B). The indictment alleged that Fry “commit[ted] the crime of AGGRAVATED MURDER in that he did purposely cause the death of Tamela Hardison, while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit Aggravated Burglary, and/or Burglary.” (Italics added.) The indictment specified a mens rea requirement. The culpable mental state for this offense is purpose — to “purposely cause.” R.C. 2903.01(B). See State v. Koger, 6th Dist. No. L-05-1265, 2007-Ohio-2398, 2007 WL 1452796, ¶ 30 (“aggravated felony murder requires a culpable mental state of ‘purpose’ ”). Thus, the indictment was proper because it included the culpable mental state for this offense.

{¶ 41} Fry argues that the indictment is defective because none of the elements of the underlying offense of aggravated burglary is specified in Count One. The indictment, however, included the separately charged offense of aggravated burglary in Count Four, which correctly listed the elements of this offense. The aggravated felony-murder count, read in pari materia with the related aggravated burglary count, provided ample notification of the elements of the underlying offenses that the state was required to prove. See State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 29. Thus, the indictment for Count One was not defective.

b. Felony murder

{¶ 42} Count Three of the indictment charged Fry with murder and/or felony murder under R.C. 2903.02(A) and (B). The indictment states: Fry “did purposely cause the death of Tamela Hardison, and/or did cause the death of Tamela Hardison as a proximate result of [the defendant’s] committing or attempting to commit Felonious Assault, or Aggravated Burglary, an offense of violence that is a felony of the first or second degree.” Although Fry was charged with two forms of murder in Count Three, felony murder and purposeful murder, the trial court instructed the jury on only felony murder with respect to this charge.

{¶ 43} The indictment for felony murder in Count Three does not specify a mens rea because R.C. 2903.02(B), the felony-murder statute, does not contain a mens rea component. See State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498, ¶ 31-33 (defendant may be found guilty of felony murder even if there was no intent to cause the victim’s death). Rather, a person commits felony murder pursuant to R.C. 2903.02(B) by proximately causing another’s death while possessing the mens rea element set forth in the underlying felony offense. In other words, the predicate offense contains the mens rea element for felony murder. See State v. Sandoval, 9th Dist. No. 07CA009276, 2008-Ohio-4402, 2008 WL 4026893, ¶ 21. Thus, the mens rea element need not appear in the count for felony murder as long as the mens rea component is specified in the count charging the predicate offense.

{¶ 44} Count Three specifies aggravated burglary or felonious assault as the predicate offenses for the felony murder. The offense of aggravated burglary was charged separately in Count Four. The aggravated-burglary count states: “Fry * * * did commit the crime of AGGRAVATED BURGLARY in that he did, by force, stealth, or deception, trespass in an occupied structure * * * when another person * * * was present, with purpose to commit in said structure * * * a criminal offense, and [the defendant] inflicted, threatened or attempted to inflict physical harm on Tamela Hardison, and/or [the defendant] had a deadly weapon or dangerous ordnance * * (Italics added.) The culpable mental state for aggravated burglary is “purposeful” and was properly set out in the indictment. See State v. Conley, 4th Dist. No. 08CA784, 2009-Ohio-1848, 2009 WL 1040298, ¶ 40.

{¶ 45} The mens rea for felonious assault, however, was not set forth anywhere in the indictment. The culpable mental state for felonious assault is “knowingly.” R.C. 2903.11(A)(1). Unlike aggravated burglary, felonious assault was not charged as a separate offense.

{¶ 46} The prosecutor argued that Fry committed felony murder while committing either aggravated burglary or felonious assault. However, the prosecutor did not specifically state that Fry had acted knowingly when committing felonious assault. The trial court also failed to instruct on the mens rea element of “knowingly” for felonious assault when advising the jury of the elements of this offense.

{¶ 47} Nevertheless, as in Colon II, this does not appear to be the “rare” case where a structural-error analysis is necessary. State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, ¶ 8. Aggravated burglary and felonious assault were charged as alternative offenses underlying the felony-murder indictment. Aggravated burglary was properly charged in the indictment, and the jury found Fry guilty of this separately charged offense. Thus, the felony-murder indictment did not result in structural error, because aggravated burglary was properly charged as a predicate offense.

{¶ 48} Furthermore, in Hedgpeth v. Pulido (2008), — U.S.-, 129 S.Ct. 530, 172 L.Ed.2d 388, the United States Supreme Court concluded that instructing a jury on multiple theories of guilt, one of which is invalid, is not a structural error requiring that a general verdict be set aside without regard to whether the instructional error prejudiced the defendant. Id. at 532. Hedgpeth addressed instructional error rather than a defective indictment. But Hedgpeth illustrates that an error arising in the context of multiple theories of guilt does not vitiate the remaining findings that are supported on valid grounds. The same logic would uphold Fry’s felony-murder indictment because aggravated burglary was properly charged and was sufficient to support the jury’s findings in this case. See also State v. Gray, 5th Dist. No. 2007-CA-0064, 2009-Ohio-455, 2009 WL 252366, ¶ 34-36.

{¶ 49} We therefore apply a plain-error analysis to the indictment. There is nothing in the record to show that Fry was prejudiced by the omission of mens rea in the felonious-assault allegation. Also, as previously discussed, the jury could find Fry guilty of felony murder based on the commission of aggravated burglary, which was properly charged in the indictment.

c. Death-penalty specification

{¶ 50} Count One in the indictment charged Fry with a death-penalty specification for felony murder under R.C. 2929.04(A)(7). The indictment states that “the Aggravated Murder was committed while [the defendant] was committing, attempting to commit, or fleeing immediately after committing or attempting to commit Aggravated Burglary, and [the defendant] was the principal offender in the commission of the Aggravated Murder * * *.”

{¶ 51} The felony-murder specification does not set forth the mens rea because R.C. 2929.04(A)(7) does not include a mens rea component. Aggravated burglary was charged as the sole predicate offense in Specification One. As previously discussed, aggravated burglary was separately charged, and the indictment properly alleged the mens rea for this offense. Accordingly, there was no defect in this indictment, because aggravated burglary contains the mens rea component for felony murder.

2. Multiple Murder Counts and Mens Rea (Proposition of Law XIII)

{¶ 52} Fry argues that he was improperly charged with three different counts of murder that involved three different mens rea: aggravated murder with prior calculation and design, aggravated felony murder, and felony murder. Fry asserts that the state’s simultaneous use of multiple intents to prove these different offenses violated due process. However, the defense did not object to the different murder counts and has waived all but plain error. See State v. Mills (1992), 62 Ohio St.3d 357, 363, 582 N.E.2d 972.

{¶ 53} “[T]he prosecution is entitled to offer differing theories as to what actually transpired in the commission of an offense and is therefore entitled to use its discretion in deciding which charges to level against the defendant.” State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498, ¶ 30. Here, the prosecution believed that the facts could support a conviction for murder with prior calculation and design, aggravated felony murder, and felony murder for killing Hardison. It was the jury’s duty to assess which charge, if any, was supported by the facts presented. Id.

{¶ 54} Fry invokes Smith v. Groose (C.A.8, 2000), 205 F.3d 1045, in arguing that his prosecution on the different murder charges violated due process. However, Groose is inapposite. Groose involved the state’s use of inconsistent theories in the prosecution of multiple defendants charged with the same single offense. Id. at 1049. Similarly, Fry’s reliance on the doctrine of equitable estoppel in civil cases is misplaced.

{¶ 55} As a final matter, Fry’s right to not be convicted of more than one offense based on the same conduct was not violated, because, in imposing sentence, the trial court merged the other murder counts into Count One. See State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 134-135. Thus, no plain error occurred.

3. Request for African-American Counsel (Proposition of Law XVIII)

{¶ 56} Fry argues that he was deprived of the constitutional right to the counsel of his choice because an African-American attorney was not appointed to represent him after he requested such counsel.

{¶ 57} At his arraignment, the magistrate judge appointed Lawrence Whitney to represent Fry. Whitney stated that he was qualified to sit first chair in a capital case. The judge and Fry then had the following exchange:

{¶ 58} “THE COURT: Any questions, Mr. Fry?

{¶ 59} “THE DEFENDANT: Yeah. You don’t have any black lawyers?

{¶ 60} “THE COURT: Well, you can take that up with Judge Spicer.

{¶ 61} “THE DEFENDANT: All right.”

{¶ 62} Thereafter, Fry did not request that an African-American lawyer represent him during his trial.

{¶ 63} Fry’s general inquiry about the availability of African-American attorneys did not constitute a request that an African-American attorney represent him. His failure to request that the trial court appoint an African-American attorney to represent him waived this issue. 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. The issue also lacks merit.

{¶ 64} In general, an indigent defendant does not have a constitutional right to choose the attorney who will represent him or her at state expense. See State v. Murphy (2001), 91 Ohio St.3d 516, 523, 747 N.E.2d 765; Thurston v. Maxwell (1965), 3 Ohio St.2d 92, 93, 32 O.O.2d 63, 209 N.E.2d 204; Wilson v. Parker (C.A.6, 2008), 515 F.3d 682, 696. “[T]hose who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.” Caplin & Drysdale, Chartered v. United States (1989), 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528.

4. Disclosure of grand jury proceedings (Proposition of Law XII)

{¶ 65} Fry argues that the state failed to provide the defense with exculpatory evidence that was presented to the grand jury.

{¶ 66} This court has recognized a limited exception to the general rule of grand jury secrecy: an accused is not entitled to review the transcript of grand jury proceedings “unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy.” State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph two of the syllabus. A particularized need is established “when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial.” State v. Sellards (1985), 17 Ohio St.3d 169, 173, 17 OBR 410, 478 N.E.2d 781. Determining whether a particularized need exists is a matter within the trial court’s discretion. Greer, 66 Ohio St.2d at 148, 20 O.O.3d 157, 420 N.E.2d 982.

{¶ 67} Fry did not request disclosure of grand jury evidence. However, in a pretrial motion, Fry made a Brady request for exculpatory evidence. See Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (due process requires that the prosecution provide defendants with any evidence that is favorable to them whenever that evidence is material to their guilt or punishment).

{¶ 68} Fry claims that the state violated Brady by failing to provide evidence presented before the grand jury that supported his indictment for lesser offenses than aggravated murder in Counts One and Two. Fry claims that evidence of lesser intent must have been presented to the grand jury for it to find probable cause to indict on the lesser charges of murder, involuntary manslaughter, and aggravated burglary in Counts Three, Four, and Five. Fry claims that evidence of his lesser intent would have helped show that he did not intend to kill Hardison when he entered her daughter’s house.

{¶ 69} Fry’s assertion that the grand jury considered favorable or exculpatory evidence in returning the indictment on aggravated murder and lesser offenses is totally speculative. The trial court did not abuse its discretion in finding that this unsubstantiated claim failed to establish a particularized need for such evidence. See State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 71-72; State v. Benge (1996), 75 Ohio St.3d 136, 145, 661 N.E.2d 1019; State v. Davis (1988), 38 Ohio St.3d 361, 365, 528 N.E.2d 925.

5. Competency of child witness (Proposition of Law IV)

{¶ 70} Fry argues that the trial court abused its discretion in allowing six-year-old Jasown Bivins to testify.

{¶ 71} Evid.R. 601 provides: “Every person is competent to be a witness except: (A) * * * children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.”

{¶ 72} The trial court conducted a voir dire examination of Jasown to determine his competence to testify. In making this determination, the court considered “(1) the child’s ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child’s ability to recollect those impressions or observations, (3) the child’s ability to communicate what was observed, (4) the child’s understanding of truth and falsity, and (5) the child’s appreciation of his or her responsibility to be truthful.” State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483, syllabus.

{¶ 73} Jasown was six years old when he testified but five years old when he witnessed the killing of Hardison. During the interview to determine his competence, Jasown was able to relate his name and age and the names and ages of his brother and sister. He understood that he was in court to talk about what happened to his grandmother. Jasown showed that he knew what it meant to tell the truth and stated that if he told a lie, he would get into trouble and be grounded. Jasown stated that he would tell the truth about what he saw when his grandmother was “hurt.”

{¶ 74} Following voir dire, the trial court determined that Jasown was competent to testify regarding the events of July 31, 2005. Fry argues that the trial court abused its discretion because voir dire examination showed that Jasown was unable to distinguish right from wrong and could not tell the difference between the truth and a lie.

{¶ 75} In support of this argument, Fry states that Jasown showed that he did not understand the difference between telling the truth and telling a lie when he was asked, “What does that mean if you promise to tell the truth in front of God, and the Judge, and the Court,” and Jasown answered, “[A] lie.” Fry argues that Jasown also demonstrated his incompetence when asked whether he knew the difference between right and wrong, and Jasown shook his head “no.” Fry also points out that Jasown improperly raised his left hand when the judge asked him to raise his right hand to take a practice oath. Finally, Fry asserts that Jasown’s attempt to explain the difference between telling the truth and telling a lie shows that he did not understand the difference.

{¶ 76} A child may be competent to testify even though the child is unable to recollect some facts or initially does not recognize the concept of truth, so long as other answers demonstrate that the child can perceive and recall generally and understands the concept of truthfulness. See State v. Anderson, 154 Ohio App.3d 789, 2003-Ohio-5439, 798 N.E.2d 1155, ¶ 62 (six-year-old witness competent even though she answered some questions wrong). Even though Jasown had difficulty answering some questions, his follow-up responses to other questions showed that he knew the difference between truth and falsity and understood that he should tell the truth. See State v. McNeill (1998), 83 Ohio St.3d 438, 442-443, 700 N.E.2d 596. For example, Jasown demonstrated this understanding near the end of voir dire:

{¶ 77} “THE COURT: What does it mean to tell the truth?

{¶ 78} “MR. BIVINS: If my friends told my mom something and, um, and, um, if I — and I had something, and I went to go show my mom, that’s not a lie.

{¶ 79} “THE COURT: Okay. And, again, if you tell a lie, you said you get into trouble? You get grounded?

{¶ 80} “MR. BIVINS: Yes.

{¶ 81} “THE COURT: Is it right to tell the truth?

{¶ 82} “MR. BIVINS: Yes.

{¶ 83} “THE COURT: Is it right to tell a lie?

{¶ 84} “MR. BIVINS: No.

{¶ 85} “THE COURT: Will you be able to talk to us later out in the courtroom and tell us the truth about what you saw the day your grandmother was hurt?

{¶ 86} “MR. BIVINS: Yes.”

{¶ 87} Jasown’s competence is adequately demonstrated on the record. The trial court did not abuse its discretion in finding Jasown competent.

6. Other-Acts Evidence (Proposition of Law V)

{¶ 88} Fry first argues that evidence of his prior convictions for domestic violence and arson were improperly admitted. During its case-in-chief, the state offered into evidence Fry’s three prior convictions for domestic violence and one prior conviction for arson of the dwelling of a family or household member. The defense objected. The state responded that the convictions were admissible to establish an element of the domestic-violence charges in Counts Four and Five. The trial court overruled the defense objection, but excluded Fry’s 1988 conviction for domestic violence.

{¶ 89} A violation of R.C. 2919.25(A), the domestic-violence statute, is a first-degree misdemeanor. R.C. 2919.25(D)(2). A prior domestic-violence conviction raises a later offense to a fourth-degree felony. R.C. 2919.25(D)(3). Two or more domestic-violence convictions elevate a later offense to a third-degree felony. R.C. 2919.25(D)(4). During the admission of the state’s evidence, the defense objected to the introduction of more than two convictions. The trial court sustained the objection and excluded Fry’s 1992 arson conviction.

{¶ 90} Where a prior conviction elevates the degree of a subsequent offense, the prior conviction is an essential element that the state must prove beyond a reasonable doubt. State v. Henderson (1979), 58 Ohio St.2d 171, 173, 12 O.O.3d 177, 389 N.E.2d 494. Thus, Fry’s two prior felony convictions elevated the current domestic-violence charges to third-degree felonies and were properly admitted. See State v. Day (1994), 99 Ohio App.3d 514, 517, 651 N.E.2d 52; State v. Torres, 6th Dist. No. WD-98-049, 1999 WL 173980, *3; State v. Russell, 12th Dist. No. CA-98-02-018, 1998 WL 778312, *2.

{¶ 91} The trial court also provided the jury with the following limiting instructions: “You cannot, absolutely under any circumstances, consider these convictions for any other reason except to demonstrate that they are elements of the crime of domestic violence that the State must prove to you beyond a reasonable doubt.” During the guilt-phase jury charge, the trial court repeated similar instructions. Accordingly, Fry’s first claim lacks merit.

{¶ 92} Second, Fry argues that the trial court erred in permitting Officer Michael Rinn to testify about the “cycle of violence,” thereby implying that Fry is a habitual batterer. During preliminary inquiry into his qualifications, Rinn was asked whether he had received instruction about “the cycles of violence.” The trial court sustained a defense objection to this line of questioning, and Rinn was asked no further questions on the topic. Thus, no improper evidence was elicited during Rinn’s testimony.

{¶ 93} Third, Fry argues that Donnel Juersivich, the victim-assistance advocate, improperly testified about the “cycle of violence” in Hardison’s relationship with Fry. “ ‘Generally, battered woman syndrome testimony is relevant and helpful when needed to explain a complainant’s actions, such as prolonged endurance of physical abuse accompanied by attempts at hiding or minimizing the abuse, delays in reporting the abuse, or recanting the allegations of abuse.’ ” State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91, ¶ 44, quoting People v. Christel (1995), 449 Mich. 578, 580, 537 N.W.2d 194. Here, testimony about the “cycle of violence” was relevant in explaining Hardison’s actions, such as talking to Fry twice on the phone on the day of his arrest, obtaining money to post bail, and asking the judge to drop the case. In addition, the defense was allowed to cross-examine Juersivieh on these incidents to suggest that Hardison had not felt abused. Thus, Juersivich’s testimony was proper.

{¶ 94} Fourth, Fry argues that the state improperly presented evidence that the apartment of Nikita Knox, Hardison’s daughter, had been burglarized and ransacked twice during July 2005, but that the mother-daughter relationship had not deteriorated during this time. Fry claims that Knox’s testimony implied that Fry had committed the break-ins and thefts. However, the defense failed to object to such evidence at trial and waived all but plain error. See State v. Childs, 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus.

{¶ 95} The state introduced testimony about the theft because Fry had told police that when he was in jail, Hardison had broken into her daughter’s apartment and had stolen her TV. Fry also indicated to the police that Hardison’s theft of her daughter’s TV was a reason he pursued Hardison on July 31. During his police statement, Fry also mentioned Hardison’s theft in explaining his actions when he killed her. Fry said, “[W]hy did she hit me * * * what the hell was she thinking * * * ? You done robbed me, you robbed your daughter, now you’re getting cussed out about it, then you bust me in my head, what did you think was gonna happen?” (Emphasis added.) Thus, Knox’s testimony was presented to refute Fry’s claims that Hardison had stolen the TV from her home. None of her testimony suggested that Fry had committed the break-ins. Accordingly, no plain error occurred in introducing such evidence.

7. Admissibility of Hardison’s statements (Proposition of Law VI)

{¶ 96} Fry argues that the admission of Hardison’s statements to a police officer, a nurse, and a victim’s advocate violated his Sixth Amendment right to confrontation as set forth in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.

a. Hardison’s statement to Officer Hackathorn

{¶ 97} Police arrived at Fry’s apartment building on July 18, 2005, following a call reporting a domestic disturbance. They heard screaming coming from inside the apartment. Fry was placed in handcuffs and was taken to a cruiser.

{¶ 98} Officer Matthew Hackathorn testified that Hardison was crying and shaking, as if a traumatic event had just occurred. He could see that she had “some redness to the right side of her face, some swelling that started.” Hackathorn determined that Hardison did not need emergency medical assistance. He then asked, “Can you tell me what happened?” Hardison reported that she and Fry had argued. He then struck her in the face about ten times. While she was on the ground, crying, Fry said, “If you don’t shut up, I am going to kill you.” He then picked up a leather punch from the dresser and showed it to her.

{¶ 99} Hackathorn spent 15 minutes talking to Hardison. During that time, Hardison also prepared a written statement describing what had happened. The trial court admitted Hardison’s oral statement as an excited utterance and made findings in support of the ruling. The trial court did not admit Hardison’s written statement.

{¶ 100} Evid.R. 803(2) allows a hearsay statement to be admitted into evidence if it relates “to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Hackathorn testified that Hardison was crying and shaking uncontrollably when she talked to Hackathorn. Their discussion occurred minutes after police had arrived at the scene, and the police had heard her screams outside the apartment building. The evidence reflects that Hardison’s statements were made while she was still frightened and under the stress of a startling event and were not the product of reflective thought. See State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 94, 96. Thus, the evidence supports admissibility of Hardison’s statement as an excited utterance.

{¶ 101} The trial court must also determine whether Hardison’s statements were testimonial. Crawford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. Improper admission of testimonial statements may violate the Sixth Amendment right to confrontation. Id. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177. Crawford declined to comprehensively define the term “testimonial,” opining, “Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. (Emphasis added.)

{¶ 102} In the consolidated cases of Davis v. Washington and Hammon v. Indiana (2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224, the United States Supreme Court distinguished between police interrogations that concern an ongoing emergency and those that relate to past criminal conduct. In considering whether the statements in these cases were testimonial, the court formulated the primary-purpose test: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.

{¶ 103} Hammon also involved a victim’s statements to police officers responding to a domestic-violence complaint after they had secured the scene. Id. at 817-821, 126 S.Ct. 2266, 165 L.Ed.2d 224. The Supreme Court held that these statements were testimonial and were barred by the Sixth Amendment. Id. at 829-832, 126 S.Ct. 2266, 165 L.Ed.2d 224. In Hammon, the police had questioned the victim about “possibly criminal past conduct.” Id. at 829, 126 S.Ct. 2266, 165 L.Ed.2d 224. The court stated that “there was no immediate threat” to the victim and “no emergency in progress,” because the police had separated the abusive husband from his wife. Id. at 829-830, 126 S.Ct. 2266, 165 L.Ed.2d 224. The court stated that when the officer questioned the victim, he was “not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’ ” Id. at 830, 126 S.Ct. 2266, 165 L.Ed.2d 224. The court concluded that “[o]bjectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime * * Id.

{¶ 104} As in Hammon, here there was no ongoing emergency, and Hardison was no longer in any imminent danger when she talked to Hackathorn. Fry had already been removed from the apartment and had been taken to the cruiser. Hackathorn’s primary purpose in interrogating Hardison was to investigate a possible crime. Hardison’s statements related to past events and what happened rather than what was currently happening. Accordingly, her statements were testimonial.

{¶ 105} However, the state claims that Fry forfeited his right to confront Hardison because his intentional criminal act made her unavailable to testify. The state argues that Hammon also recognized the doctrine of forfeiture by wrongdoing, which means that the admission of Hardison’s unconfronted statements did not violate the Confrontation Clause. Id. at 833, 126 S.Ct. 2266, 165 L.Ed.2d 224.

{¶ 106} But in Giles v. California (2008),-U.S.-, 128 S.Ct. 2678, 2683, 171 L.Ed.2d 488, the court recognized that this doctrine of forfeiture by wrongdoing applies only “when the defendant engaged in conduct designed to prevent the witness from testifying.” (Emphasis sic.) Id. Giles also states that “the rule * * * makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.” (Emphasis sic.) Id. at 2684.

{¶ 107} In Giles, the defendant had killed his former girlfriend. At the defendant’s murder trial, the court admitted the victim’s statements to a policeman during a domestic-violence call three weeks before the shooting. Id. at 2681-2682. Although the court vacated Giles’s conviction, it held that the forfeiture doctrine would apply in many domestic-violence cases where the victim’s statement was introduced after the victim was killed. “Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution — rendering her prior statements admissible under the forfeiture doctrine.” Id. at 2693.

{¶ 108} Similarly, the record demonstrates that Fry’s killing of Hardison was “designed” to prevent her from testifying against him in any future criminal proceedings. While in jail and awaiting a court hearing on assault charges, Fry made several phone calls to Hardison and his mother about the case. He began coercing Hardison to drop the charges against him and threatening her if she did not. After Fry received the paperwork that Hardison had signed against him, Fry told her, “You don’t know me.” He said, “I got two of them under my belt * * * toe tags.” He then told Hardison to “fix this, fix this.”

{¶ 109} The jury also found Fry guilty of Specification Two of Count One for purposely killing Hardison to prevent her testimony in another criminal proceeding or killing her in retaliation for her testimony in any criminal proceeding under R.C. 2929.04(A)(8). Thus, the jury’s verdict supports the conclusion that Fry forfeited his right to confront Hardison’s statement to police. Based on the foregoing, Hardison’s statements to Hackathorn were properly admitted.

b. Hardison’s statement to Veney

{¶ 110} On July 18, Hardison went to Akron City Hospital for medical treatment following her assault. Amy Veney, a nurse examiner with Developing Options for Violent Emergencies (“DOVE”), treated Hardison. During the course of her treatment, Veney asked Hardison a series of questions about what happened. Trial counsel objected to the admission of Veney’s testimony about what Hardison told her. The trial court overruled that objection on the basis that Hardison’s statements were for the purposes of medical treatment. See Evid.R. 803(4).

{¶ 111} Veney testified that Hardison told her she was the girlfriend of Clarence Fry, the person who hurt her. Hardison said that she had been hit in the jaw and face, grabbed by the wrist, and strangled. Hardison also said that Fry had threatened her with some kind of “poker or ice pick” and had told her “he was going to stab” her and “kill” her. In further describing what happened, Hardison reported that “Clarence came into the house ‘talking crazy’ and that he just ‘started hitting on’ ” her.

{¶ 112} Fry argues that Hardison’s statements to Veney were testimonial statements admitted in violation of the Sixth Amendment right to confrontation. We reject this argument on the basis of State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834. In Stahl, a rape victim had made statements identifying the person who raped her during an interview conducted by a nurse at a DOVE unit. Id. at ¶ 5-6. Stahl held that the victim’s statement to the DOVE nurse was nontestimonial. Id. at ¶ 48. In reaching that conclusion, this court adopted the “objective witness” test, which provides: “For Confrontation Clause purposes, a testimonial statement includes one made ‘under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use at a later trial.’ (Crawford v. Washington (2004), 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, followed.) * * * In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant’s expectations.” Id. at paragraphs one and two of the syllabus.

{¶ 113} In applying the objective-witness test, Stahl noted that the victim had already given a statement to the police identifying the perpetrator. This court stated that the victim “could reasonably have assumed that repeating the same information to a nurse or other medical professional served a separate and distinct medical purpose.” Id. at ¶ 46. Stahl concluded that the victim’s statement to the DOVE nurse was not made “ ‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ because the declarant had previously made the identifying statement to the police.” Id., quoting Crawford, 541 U.S. at 53, 124 S.Ct. 1354, 158 L.Ed.2d 177.

{¶ 114} The holding in Stahl applies to Hardison’s statements to Veney. Hardison talked to Hackathorn and identified Fry as her assailant before Veney interviewed her at the hospital. Hardison could reasonably assume that repeating the same information to Veney was for a separate and distinct medical purpose. Applying the objective-witness test, we conclude that Hardison’s statements to Veney were nontestimonial statements whose admission did not violate the Confrontation Clause.

c. Hardison’s statement to Juersivich

{¶ 115} After treating Hardison, Veney called Donnell Juersivich, a victim-assistance advocate and nighttime crisis responder, to come to the hospital and meet with Hardison. Juersivich works for a nonprofit victims’ assistance organization. Her job is to follow a victim from the scene of the crime all the way through the court system. She stated that she has received specialized training in crisis intervention and domestic violence.

{¶ 116} Juersivich talked to Hardison about developing a safety plan. Juersivich testified that during their meeting, Hardison had said that she was going to follow through with the criminal charges against Fry. Trial counsel objected to this testimony. However, the trial court overruled the objection, and Hardison’s statement was admitted under Evid.R. 803(3) as a statement of her existing, mental, emotional, or physical condition. On July 28, Juersivich received a “hot line” call from Hardison. Over defendant’s objection, Juersivich testified that Hardison told her that she was “very fearful” because Fry was out of jail on a signature bond.

{¶ 117} Fry argues that Hardison’s statements to Juersivich on July 18 and 28 were testimonial statements because it was reasonably foreseeable that they could be used in a later criminal prosecution. With respect to the July 18 statements, Juersivich, a victim-assistance advocate, was not a hospital employee and did not provide Hardison with medical care when they met and talked. Their discussion was not conducted for health-related purposes. Under these circumstances, Hardison could have reasonably believed that her statements to Juersivich “would be available for use at a later trial.” See State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph one of the syllabus. And in calling Juersivich later on July 28, Hardison was expressing concern about Fry’s release — an event that had already happened. She could have reasonably believed that her statements would be available for use at a later trial.

{¶ 118} Nevertheless, Fry foxfeited his confrontation rights by killing Hardison. As discussed above, the facts demonstrate that Fry’s killing of Hardison was “designed” to prevent her testimony against him in a criminal proceeding. Thus, in accordance with Giles v. California, — U.S.-, 128 S.Ct. at 2693, 171 L.Ed.2d 488, the doctrine of forfeiture applies, and Hardison’s statements to Juersivich were admissible.

8. Advice on testifying (Proposition of Law IX)

{¶ 119} Fry argues that the trial court violated his constitutional rights by failing to question him to ensure that he made a knowing, intelligent, and voluntary waiver of his right to testify. However, “a trial court is not required to conduct an inquiry with the defendant concerning the decision whether to testify in his defense.” (Emphasis sic.) State v. Bey (1999), 85 Ohio St.3d 487, 497, 709 N.E.2d 484.

{¶ 120} Nothing in the record suggests that Fry wished to testify but was denied the opportunity to do so. Indeed, the record shows that counsel talked with Fry at length about testifying in his own behalf, and Fry decided against it. Before the start of the defense’s case, trial counsel informed the court that Fry “categorically and emphatically” would not testify. Trial counsel stated, “We have talked to Clarence over the last couple of weeks. I have spent five or six hours * * * talking to the defendant about his testimony. * * * [H]e has not wavered in his opinion that he would not testify today.” The trial court then stated, “All right. If there was any vacillation, the Court would ask him on the record. But you are indicating to the Court that he has decided of his own volition not to testify?” Trial counsel responded, “That’s correct.”

9. Jury unanimity (Proposition of Law XIV)

{¶ 121} Fry argues that the jury was permitted to convict him of aggravated burglary, menacing by stalking, and the witness-murder specification, without reaching unanimous agreement as to the nature of the underlying offense for each charge. However, Fry failed to object to this issue at trial and has waived all but plain error. See State v. Gilbert, 8th Dist. No. 90615, 2009-Ohio-463, 2009 WL 270522, ¶ 20.

a. Aggravated burglary

{¶ 122} Fry asserts that he was denied the right to a unanimous jury verdict on the aggravated-burglary charge because the jury was not instructed on the criminal offense that he intended to commit inside the residence. Consequently, he claims, “the jury charge allows that jury to base its verdict on alternative factual theories rather than upon a single incident * * Therefore, “the resultant verdict is not unanimous.” The jury instructions on aggravated burglary, which tracked the indictment and the language of R.C. 2911.11(A)(1) and (2), stated: “[Y]ou must find beyond a reasonable doubt that * * * the defendant did, by force, stealth, or deception, trespass in an occupied structure * * * with the purpose to commit in said structure, a criminal offense.” (Emphasis added.) Based on these instructions, Fry argues that the jury could return a verdict of guilty on a finding that he had a purpose to commit some criminal offense without reaching a unanimous agreement as to which one.

{¶ 123} Fry’s argument was rejected in State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995. In Gardner, the defendant had also been convicted of aggravated burglary. This court held, “[A] defendant charged with burglary is not deprived of a unanimous verdict simply because the jury was not required to agree unanimously as to the nature of the crime the defendant intended to commit at the time he entered unlawfully into the victim’s budding. ‘ “In situations where ‘the alternatives of the mens rea [intent] component give rise to the same criminal culpability, it does not appear critical that the jury may have reached different conclusions regarding the nature of the defendant’s intent if such differences do not reflect disagreement on the facts pertaining to the defendant’s conduct.’ ” ’ ” Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 68, quoting State v. Luster (1998), 48 Conn.App. 872, 878, 713 A.2d 277, quoting State v. Suggs (1989), 209 Conn. 733, 763, 553 A.2d 1110.

{¶ 124} Based on the holding in Gardner, no plain error occurred. Fry was not deprived of a unanimous verdict when the jury was not instructed on the specific offense he intended to commit inside the residence.

b. Menacing by Stalking

{¶ 125} Fry argues that he was denied the right to a unanimous verdict on the menacing-by-stalking charge because the jury may not have reached a unanimous decision on the underlying felony enhancements to the charge.

{¶ 126} R.C. 2903.211 defines menacing by stalking:

{¶ 127} “(A)(1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.

{¶ 128} “ * * *

{¶ 129} “(1) Except as otherwise provided in divisions (B)(2) and (3) of this section, menacing by stalking is a misdemeanor of the first degree.

{¶ 130} “(2) Menacing by stalking is a felony of the fourth degree if any of the following applies:

{¶ 131} “ * * *

{¶ 132} “(b) In committing the offense * * * the offender made a threat of physical harm to or against the victim * * *.

{¶ 133} “(c) In committing the offense * * * the offender trespassed on the land or premises where the victim lives * * *.

{¶ 134} “ * * *

{¶ 135} “(e) The offender has a history of violence toward the victim or any other person or a history of other violent acts toward the victim or any other person.

{¶ 136} “(f) While committing the offense * * * the offender had a deadly weapon on or about the offender’s person or under the offender’s control.”

{¶ 137} Fry was charged with menacing by stalking with the felony enhancements of menacing by stalking by threats, trespass, a history of violence and violent acts, and the possession of a deadly weapon. The jury instructions on aggravating menacing tracked the indictment and the language in R.C. 2903.211.

{¶ 138} All the felony enhancements are “conceptually similar” for the purposes of jury unanimity because the existence of any one of these enhancements is sufficient to create a felony offense. See State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 67. In addition, a reasonable fact-finder could have found that “each means” charged as a felony enhancement was proved beyond a reasonable doubt. Id. at ¶ 49, quoting State v. Jones (2001), 96 Hawai'i 161, 170, 29 P.3d 351, quoting State v. Timley (1994), 255 Kan. 286, 289-290, 875 P.2d 242, quoting State v. Kitchen (1988), 110 Wash.2d 403, 410, 756 P.2d 105. Thus, Fry was not deprived of his right to a unanimous verdict as to the menacing-by-stalking charge. Accordingly, no plain error occurred.

c. Witness-murder specification

{¶ 139} Fry contends that he was deprived of a unanimous verdict on the witness-murder specification because the jury may have reached a verdict without coming to a unanimous decision on whether he killed Hardison to prevent her from testifying in another proceeding or whether he killed her in retaliation for her prior testimony.

{¶ 140} R.C. 2929.04(A)(8), the witness-murder specification, is one of the grounds for imposition of the death penalty. The specification includes aggravated murders committed to “prevent the victim’s testimony in any criminal proceeding” or in retaliation for “the victim’s testimony in any criminal proceeding.”

{¶ 141} The jury instructions on the witness-murder specification tracked the indictment and the language in R.C. 2929.04(A)(8).

{¶ 142} The two different purposes for killing a witness “ ‘do not create separate and distinct offenses.’ ” See State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 9