State v. Lang (129 Ohio St. 3d 512, 2011)

O’Donnell, J.

{¶ 1} This is an appeal as of right by defendant-appellant, Edward Lang. A jury convicted him of the aggravated murder of Marnell Cheek and Jaron Burditte and of aggravated robbery, with each count carrying gun specifications, and it recommended the sentence of death for the aggravated murder of Cheek and life with no possibility of parole for the murder of Burditte. The trial court accepted those recommendations and sentenced Lang accordingly. The court also imposed a ten-year term of imprisonment for the aggravated-robbery conviction and a three-year term for the gun specifications, which it had merged for sentencing.

{¶ 2} We affirm Lang’s convictions and sentences of death and life without parole, but we remand for the proper imposition of postrelease control pursuant to R.C. 2929.191 on his sentence for aggravated robbery.

State’s Case

{¶ 3} The state’s case revealed that at 9:36 p.m. on October 22, 2006, Canton police officer Jesse Butterworth was dispatched to a traffic accident with injuries on Sahara Avenue in Canton. At the scene, Butterworth observed that a Dodge Durango had crashed into the back of a parked car. He discovered that the two people inside the Durango had been shot in the back of the head. They were later identified as Jaron Burditte, the driver, and Marnell Cheek, the front-seat passenger.

{¶ 4} Police investigators found a bag of cocaine in Burditte’s hand. Investigators examining the inside of the Durango recovered two shell casings in the backseat area and a spent bullet in the driver’s side door pocket. Additionally, two cell phones were found in the car, and a third cell phone was found in Burditte’s pocket.

{¶ 5} One of the cell phones recovered from the Durango showed that calls had been received at 9:13 p.m. and 9:33 p.m., which was close to the time of the murders. Police learned that these calls had been made from a prepaid cell phone that was not registered in anyone’s name. Phone records for the cell phone showed that two calls had been made to the phone number of Teddy Seery on the afternoon and evening of the murders.

{¶ 6} On October 24, 2006, Sergeants John Gabbart and Mark Kandel interviewed Seery. Following that interview, the police identified Lang as a suspect in the murders.

{¶ 7} At trial, Seery testified that he and Lang were together almost every day during the summer of 2006. Lang called Seery on the evening of October 22, but Seery did not recall what they discussed. On the morning of October 23, Seery was informed by another friend that someone had been murdered on Sahara Avenue. Lang came to Seery’s house later that day.

{¶ 8} During the visit, Seery asked Lang “what happened at Sahara,” because Lang stayed in that area. Lang told Seery that “he killed two people up there” that “[t]hey were going to rob.” Lang then described what had occurred: “[H]e had called the guy up and the guy came and he saw there was a girl in the car. The guy passed him up. He called him back. The guy came back around, and he got in the car.” Lang then said that he had gotten into the car and had “shot them * * * [t]wice.” However, Lang did not tell Seery whom he was with or explain why he had shot the two people.

{¶ 9} The police obtained a warrant for Lang’s arrest. On the evening of October 24, 2006, the police stopped Lang as he was parking his girlfriend’s car at a local apartment. Lang gave police a false name when asked his identity, but police established his identity and arrested him. Police officers seized a 9 mm handgun and ammunition that had been wrapped inside a towel and were resting on the rear passenger floorboard of the car.

{¶ 10} On October 25, 2006, Sergeants Gabbart and Kandel interviewed Lang. After waiving his Miranda rights, Lang told police that on October 22, Antonio Walker had come to his house and had told him “he had somebody that [they] could rob.” Lang agreed to join him. After Walker gave him Burditte’s phone number, Lang called Burditte and made arrangements to purchase a quarter-ounce of crack cocaine for $225. Burditte and Lang agreed to meet later that night “off of 30th Street and Sahara,” and Burditte said he would call Lang when he got close to that location.

{¶ 11} Lang stated that he gave his gun to Walker before they left the house because Walker had told him, “[A]ll [Lang] had to do was just be in the car with him basically.” As they walked to the meeting location, Walker told Lang how the robbery was going to take place: Walker said they were going to get in the car and hold Burditte up, and he told Lang which direction to run afterwards.

{¶ 12} After reaching the meeting location, Burditte called Lang and told him that he was “right around the corner.” After Burditte drove past them, Lang said that Walker had called Burditte on Lang’s cell phone and told him where they were. The car then pulled up in front of Lang and Walker. Lang then described what happened: “I walked like on the other side of the car [and] I get in the back seat behind the passenger and he got in the back seat behind the driver. * * * We jumped in the car and he put the gun up dude head [sic] and told dude that he wanted everything and like in a moment of seconds he fired two shots. And I jumped out the car.”

{¶ 13} Lang stated that they went to Walker’s apartment after the shootings. Lang asked Walker why he shot the two people, and Walker said that “he felt as though dude was reachin’ for somethin’. * * * And he wasn’t * * * sure.” Lang stated that he vomited in a bag. Lang also called “[his] home boy E” to get the gun melted down and disposed of. In the meantime, Walker wiped down the gun. Walker also told Lang that they needed to get rid of the cell phone, and Lang gave it to him. Walker then dismantled the phone and went outside to throw it in the dumpster.

{¶ 14} During the interview, Lang told police that he was surprised that Walker had shot the victims because the “plan was just to rob him.” Lang also said, “I did not wanna do it. * * * He wanted to do it. * * * I just went with him for, that was my gun I needed some money.”

{¶ 15} On October 26, 2006, Walker turned himself in to the police after learning that the police were looking for him. Walker then talked to the police about the murders.

{¶ 16} At trial, Walker testified that on the evening of October 22, 2006, he, Lang, and Tamia Horton, a girlfriend of Lang, were at Horton’s apartment. Lang had a gun out and said that he “needed to hit a lick” (commit a robbery) because he “needed some money.” Lang mentioned that they could rob “Clyde,” who was Jaron Burditte. Walker knew Burditte because they had been in the same halfway house together in 2004.

{¶ 17} Walker agreed to help Lang rob Burditte because he was also “short on money.” Their plan was to arrange to buy drugs from Burditte and then rob him when he showed up for the sale. Lang then called Burditte and arranged to buy a quarter ounce of crack cocaine from him later that night.

{¶ 18} Shortly thereafter, Lang and Walker walked to their meeting location on Sahara Avenue. Lang loaded his 9 mm handgun while they waited for Burditte to arrive. When Burditte’s Durango drove past them, Lang called Burditte and told him where they were. Burditte then arrived at their location and stopped in front of Lang and Walker.

{¶ 19} According to Walker, Lang got into the backseat on the driver’s side of the Durango. Walker did not get into the Durango, explaining, “It didn’t feel right to me.” Walker then heard two gunshots and saw Lang get out of the vehicle and start running. Walker saw the Durango “crash[ ] up into the yard.”

{¶ 20} Lang and Walker separately ran to Horton’s apartment. Lang vomited in the bathroom. Walker asked whether Lang was all right, and Lang said, “[E]very time I do this, this same thing happens.” Walker testified that he never saw Lang’s handgun after they reached his apartment. He also denied throwing away Lang’s cell phone.

{¶ 21} Michael Short, a criminalist with the Canton-Stark County crime lab, testified that none of the fingerprints collected matched Lang’s or Walker’s. Short also examined the handgun seized from Lang’s vehicle and the spent bullet recovered from the Durango. He testified that testing showed that the handgun had fired the spent bullet. Testing also showed that the two cartridge cases found in the Durango’s backseat had been ejected by this handgun.

{¶ 22} Michele Foster, a criminalist with the Canton-Stark County crime lab, examined Lang’s clothing. Blood was found on Lang’s red T-shirt and pants, but DNA testing showed that it was Lang’s blood. No blood was found on Lang’s coat, knit hat, white T-shirt, or the athletic shoes that were taken from the car. Soiling was also noticed on Lang’s athletic shoes, jacket, and pants.

{¶ 23} Foster also examined Walker’s clothing. She found no blood on the hooded sweatshirt or the athletic shoes that Walker said he was wearing on October 22. But tan-colored soiling with fragments of dried plant material was noticed on the exterior of both his shoes.

{¶ 24} Foster conducted DNA testing of a swab taken from the trigger grips, slide, and magazine release on the 9 mm handgun. Foster detected low levels of DNA from at least two individuals on the swab. Foster testified, “Walker is not the major source of DNA that we detected from the swabbing of the pistol.” She also testified, “[W]e can say that Edward Lang cannot be excluded as a possible minor source to the DNA that we found on the weapon.” Because of the low level of DNA, Foster testified, “we can’t say to a reasonable degree of scientific certainty that this person is the source. In this particular case, the chance of finding the major DNA profile that we found on that pistol is 1 in 3,461,” which is to say that “1 of 3,461 people could possibly be included as a potential source of the DNA.”

{¶ 25} Dr. P.S.S. Murthy, the Stark County coroner, conducted the autopsies on Cheek and Burditte. Murthy testified that Cheek was shot at close range above the left ear. The gunshot traveled “left to right, downwards, and slightly backwards” and exited behind Cheek’s right ear. Cheek’s toxicology report was negative for the presence of any drugs or alcohol.

{¶ 26} Dr. Murthy testified that Burditte was shot in the back of the head. The trajectory of the shot was downward, and the bullet exited through the left side of the victim’s mouth. Dr. Murthy determined that the gunshot was a “near contact entrance wound” to the head. Burditte’s toxicology report was positive for benzoylecognine, which is the metabolite for cocaine, and THCA, which is marijuana. Dr. Murthy concluded that a gunshot wound to the head was the cause of death for both victims.

{¶ 27} The defense presented no evidence during the guilt phase.

Case History

{¶ 28} Lang was indicted on two counts of aggravated murder pursuant to R.C. 2903.01(B). Count One charged Lang with the aggravated murder of Burditte while committing or attempting to commit aggravated robbery and/or aiding another in so doing. Count Two charged Lang with the aggravated murder of Cheek while committing or attempting to commit aggravated robbery and/or aiding another in so doing.

{¶ 29} Counts One and Two included death-penalty specifications for a course of conduct, R.C. 2929.04(A)(5), and for committing or attempting to commit aggravated robbery as the principal offender in the commission of the aggravated murder or, if not the principal offender, committing the aggravated murder with prior calculation and design, R.C. 2929.04(A)(7). Both counts also included gun specifications.

{¶ 30} Count Three charged Lang with aggravated robbery. This charge also included a gun specification.

{¶ 31} Lang pleaded not guilty to all charges. However, the jury found him guilty of the aggravated murders of Cheek and Burditte and of aggravated robbery, along with the associated gun specifications. The jury’s verdict included findings that Lang was guilty as the principal offender (the actual shooter) of the two victims. Lang was sentenced to death for the murder of Cheek, to life without parole for the murder of Burditte, and to ten years in prison on the aggravated-robbery count. The court merged the gun specifications, for which it imposed an additional three-year term of imprisonment. Lang seeks reversal of his convictions and sentence in 22 propositions of law.

Pretrial and Trial Issues

{¶ 32} Sufficiency of the indictment. In proposition of law III, Lang argues that his indictment for aggravated robbery in Count Three is constitutionally defective because it fails to specify the mens rea element of the offense. Lang argues that the defective charge also affects Counts One and Two because aggravated robbery was the predicate felony for both aggravated-murder charges. He also argues that the death-penalty specifications for felony murder under R.C. 2929.04(A)(7) are defective because the predicate felony was aggravated robbery.

{¶ 33} We have considered similar arguments in prior eases. Lang’s proposition of law is not well taken.

{¶ 34} Count Three of the indictment, the aggravated-robbery charge, followed the wording of R.C. 2911.01(A)(1). The indictment alleged that Lang “did, in attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, have a deadly weapon on or about his person or under his control, to-wit: a Firearm, and did either display the weapon, brandish it, indicate that he possessed it, or used said weapon, and/or did aid or abet another in so doing, in violation of Section 2911.01(A)(1) of the Ohio Revised Code.” Lang did not object to the indictment at trial.

{¶ 35} Lang invokes State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 {“Colon /”), in arguing that the indictment’s failure to allege the mens rea for the offense of aggravated robbery constitutes structural error. In Colon I, this court held that the omission of a mens rea allegation in the indictment was a structural defect that rendered the conviction improper. Id. at ¶ 19. Further, we held that the issue could be raised for the first time on appeal. Id. However, 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.

{¶ 36} In State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, this court overruled Colon I and Colon II to the extent that they held that such indictments are defective. Id. at ¶ 45. Homer holds, “An indictment that charges an offense by tracking the language of the criminal statute is not defective for failure to identify a culpable mental state when the statute itself fails to specify a mental .state.” Id. at paragraph one of the syllabus. Homer also holds that a defendant’s failure to make a timely objection to a defect in an indictment constitutes waiver of all but plain error. Id. at paragraph three of the syllabus.

{¶ 37} Based on Homer, the failure to include a mens rea element in Lang’s indictment for aggravated robbery did not constitute plain error, because the indictment tracked the language of R.C. 2911.01(A)(1). For the same reasons, we reject Lang’s argument that the aggravated felony-murder charges and the R.C. 2929.04(A)(7) specifications must be dismissed.

{¶ 38} Based on the foregoing, we overrule proposition III.

{¶ 39} Disclosure of grand jury testimony. In proposition of law VI, Lang argues that the trial court erred by denying his request for grand jury testimony.

{¶ 40} Lang made various pretrial motions requesting the names of the witnesses who testified before the grand jury and the transcripts of the grand jury testimony. The trial court ruled that the defense had failed to provide “any particularized need” for the transcripts and denied the request. The trial court also denied the defense motion to disclose the names of the grand jury witnesses. In a subsequent judgment entry, the trial court stated that it had reviewed the grand jury transcripts, which included the testimony of four witnesses, and determined that “the defendant has not provided a particularized need for the transcripts” and has “not met the burden to establish the disclosure” of them. The trial court also found that “no exculpatory or other information which must be disclosed to the defendant exists within said transcripts.” The transcripts were sealed and made part of the appellate record.

{¶ 41} We have recognized a limited exception to the general rule of grand jury secrecy: an accused is not entitled to review the transcript of grand jury proceedings “unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy.” State v. Greer (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, paragraph one of the syllabus.

{¶ 42} Lang argues that the trial court erred by failing to disclose the grand jury testimony of his codefendant, Walker. But review of the grand jury testimony shows that Walker never testified before the grand jury. Thus, this claim lacks merit.

{¶ 43} Lang also makes a generalized argument that he needed the grand jury testimony to prepare for cross-examination of the witnesses and to adequately prepare for his defense. Lang also argues that he was unable to establish a particularized need without knowing who testified at the grand jury or the content of their testimony.

{¶ 44} Lang’s speculative claim that the grand jury testimony might have contained material evidence or might have aided his cross-examination does not establish a particularized need. See State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 68-69 (rejecting claim that the grand jury “must have” considered favorable or exculpatory evidence in returning the indictment); State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 71 (rejecting claim that “it seems apparent” that grand jury witnesses made statements that “may” have been inconsistent with other statements or “may” have contained other unspecified “exculpatory or impeachment information”); State v. Webb (1994), 70 Ohio St.3d 325, 337, 638 N.E.2d 1023 (rejecting claim that grand jury testimony might have aided cross-examination by revealing contradictions).

{¶ 45} Lang’s assertion that he did not know who testified during the grand jury or what they said provides no excuse for failing to establish a particularized need. Lang was required to show that nondisclosure of the grand jury transcripts would probably deprive him of a fair trial. Greer, 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph three of the syllabus. Lang has failed to make such a showing, and nothing in the record (including the testimony under seal) supports it here. We find that the trial court did not abuse its discretion in ruling that Lang failed to establish a particularized need for the grand jury testimony.

{¶ 46} Based on the foregoing, we reject proposition VI.

{¶ 47} Juror misconduct. In proposition of law I, Lang argues that he was denied a fair trial because one of the jurors was related to Marnell Cheek, one of the victims.

{¶ 48} Before she was seated as a juror, juror No. 386 failed to disclose that her stepfather was Cheek’s brother. Juror No. 386 failed to mention this relationship on either her juror questionnaire or her pretrial-publicity questionnaire. When asked to disclose her “personal knowledge” about the shooting deaths, juror No. 386 wrote, “Well the newspaper stated that both of them were shot execution style in the back of the heads over drugs.” When asked to disclose what she had “heard, read, discussed or seen” concerning the shootings “from any source including * * * friends, neighbors, relatives, co-workers or family,” juror No. 386 wrote, “None.”

{¶ 49} Juror No. 386 also failed to disclose her relationship to Cheek during voir dire. Juror No. 386 indicated that she learned about the shootings from reading the newspaper but provided no further information about her relationship to Cheek during the questioning.

{¶ 50} Following the testimony of the state’s first two witnesses, the prosecutor notified the court that Cheek’s father had informed him that “Juror No. 386’s mother is married to Marnell’s brother.” The trial court stated that he would address the matter during the “very next break.”

{¶ 51} After the testimony of two more witnesses, the trial court, the prosecutor, and the defense counsel questioned juror No. 386 about her relationship to Cheek. Juror No. 386 acknowledged, “My mom is married to [Cheek’s] brother” and that she had failed to previously disclose that information. Juror No. 386 also stated that she knew two of the spectators in the courtroom who were related to her mother through marriage. Juror No. 386 stated that she had met Cheek and had attended her funeral. However, juror No. 386 said that she had not talked to her mother, other relatives, or anybody else about the case. Despite her relationship to Cheek, juror No. 386 stated that she could remain fair. Finally, juror No. 386 stated that she had not talked to any of the other jurors about her relationship to Cheek.

{¶ 52} Following questioning, the prosecution moved to excuse juror No. 386, and the defense agreed. The trial court excused juror No. 386 and instructed her not to talk with any of the jurors about the case or why she was excused from the jury. Before leaving the courtroom, juror No. 386 reiterated that she had not previously talked to other jurors about this matter.

{¶ 53} Before the trial continued, the trial court informed the jurors that juror No. 386 had been excused because “she may have had a relative relationship with either a witness or a party or somebody that was involved in the case.” The trial court then asked the jurors as a group whether any of them had had any discussions with juror No. 386 about this matter, and they indicated that they had not. The trial then resumed.

{¶ 54} First, Lang argues that the presence of juror No. 386 on the jury, even for a short period of time, deprived him of an unbiased jury. Yet “due process does not require a new trial every time a juror has been placed in a potentially compromising situation. * * * Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer [v. United States (1954), 347 U.S 227, 74 S.Ct. 450, 98 L.Ed. 654] * * * ” Smith v. Phillips (1982), 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78; see also Remmer (when integrity of jury proceedings is in question, court “should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate”). Moreover, “a court will not reverse a judgment based upon juror misconduct unless prejudice to the complaining party is shown.” State v. Keith (1997), 79 Ohio St.3d 514, 526, 684 N.E.2d 47.

{¶ 55} Nothing in the record supports Lang’s claim that the jury was tainted by the presence of juror No. 386. Before being excused, juror No. 386 assured the court that she had not talked to any of the other jurors about her relationship to Cheek. The other jurors also indicated during group questioning that they had had no conversations with juror No. 386 about this matter. Thus, Lang’s bias claim is speculative and unsupported by the evidence.

{¶ 56} Second, Lang argues that the trial court erred by failing to excuse juror No. 386 from the jury immediately after being informed of the juror’s relationship to the victim. Lang contends that the continued presence of juror No. 386 during the testimony of two more witnesses tainted the jury.

{¶ 57} Defense counsel requested that the trial court talk to juror No. 386 before other witnesses testified, to eliminate any risk that the juror’s presence might taint the jury. The trial court replied, “There is no risk at this point. * * * We will do it at the very next break. We will do it before this juror has any opportunity to go down and talk to the jury. We won’t let the juror leave the courtroom before she has a chance to go down and talk to them.” The trial court then questioned juror No. 386 at the next break, and the juror was excused before she had had an opportunity to talk with the other jurors. Thus, this claim lacks merit.

{¶ 58} Finally, Lang argues that the trial court failed to conduct a hearing into the juror’s misconduct and its possible effect on the other jurors as required by Remmer, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654, and State v. Phillips (1995), 74 Ohio St.3d 72, 88-89, 656 N.E.2d 643. Remmer set forth the procedures that a trial court should follow for inquiring into possible jury misconduct: “The trial court should not decide and take final action ex parte * * * but should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” Remmer at 229-230, 74 S.Ct. 450, 98 L.Ed. 654.

{¶ 59} The trial court conducted a Remmer hearing in the presence of the prosecutor, defense counsel, and the accused. The trial court and both counsel questioned juror No. 386. During questioning, juror No. 386 discussed her relationship to Cheek, admitted that she had failed to disclose this information to the court, and assured the court that she had not discussed this matter with any of the other jurors. Thereafter, the trial court questioned the other jurors as a group and obtained their assurance that they had not discussed this matter with juror No. 386. Neither the state nor the defense counsel objected to the questioning or requested an additional inquiry. Under these circumstances, we hold that no further inquiry was required.

{¶ 60} Nevertheless, Lang argues that the trial court was obligated to individually question each of the jurors to ensure that juror No. 386 had not spoken to them about Cheek. The trial court asked the jurors as a group: “Is there any member of the jury — I will take your silence if none did — but is there any member of the jury that she did discuss this with at all?” The trial court then stated, “I take it by your silence that she did not.”

{¶ 61} No case authority support’s Lang’s position. “The scope of voir dire is generally within the trial court’s discretion, including voir dire conducted during trial to investigate jurors’ reaction to outside influences.” State v. Sanders (2001), 92 Ohio St.3d 245, 252, 750 N.E.2d 90. The trial court’s questioning and the jurors’ negative response obviated the need for individual questioning. Moreover, neither the state nor the defense requested that the trial counsel individually question the jurors following this response. Thus, the trial court did not abuse its discretion by stopping there. See State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 192; State v. Henness (1997), 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (upholding trial court’s failure to question each juror individually).

{¶ 62} However, Lang contends that the trial court should have individually questioned juror No. 387, because the judge noted that juror No. 386 and juror No. 387 were seated next to each other and had been friendly. But juror No. 386 assured the court that she had not talked to juror No. 387 about Cheek. Juror No. 387’s silence during group questioning indicated that she had not talked to juror No. 386 about her relationship to any parties involved in the case. The trial court was permitted to rely on juror No. 387’s silence in determining that juror’s impartiality. See McKnight at ¶ 191. Trial counsel’s failure to ask juror No. 387 any questions about possible conversations with juror No. 386 also indicated that the defense was satisfied with juror No. 387’s response. Thus, the trial court did not abuse its discretion by failing to interrogate juror No. 387 individually.

{¶ 63} Based on the foregoing, we overrule proposition I.

{¶ 64} DNA evidence. In proposition of law II, Lang argues that expert testimony about DNA evidence linking him to the murder weapon was unreliable and should not have been admitted. He asks us to reconsider our holding in State v. D’Ambrosio (1993), 67 Ohio St.3d 185, 616 N.E.2d 909.

{¶ 65} Michele Foster provided expert testimony about the DNA found on the handgun used in the killings. She stated that DNA was detected from “at least two individuals” at three different locations on the handgun. The prosecutor then questioned Foster about the comparison of Lang’s and Walker’s DNA with the DNA found on the handgun:

{¶ 66} “Q: Do you have an opinion as to a reasonable degree of scientific certainty as to whose DNA appears on that handgun?

{¶ 67} “A: In this particular case, we can say that Antonio Walker is not the major source of DNA that we detected from the swabbing of the pistol.

{¶ 68} “In this case we, based on our comparison, we can say that Edward Lang cannot be excluded as a possible minor source to the DNA that we found on the weapon.

{¶ 69} “Q: When you say not excluded, what do you mean by that?

{¶ 70} “A: Well, in this particular case, because we had such low level DNA, we can’t say to a reasonable degree of scientific certainty that this person is the source.

{¶ 71} “In this particular case, the chance of finding the major DNA profile that we found on that pistol is 1 in 3,461,” meaning that “1 of 3,461 people could possibly be included as a potential source of the DNA.”

{¶ 72} Lang argues that Foster’s DNA testimony suggested that Lang was the source of the DNA even though she could not testify that he was the source “to a reasonable degree of scientific certainty.” Therefore, he maintains, the testimony should not have been allowed. Lang failed to object to such evidence at trial, however, and thus waived all but plain error. State v. Childs (1968), 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus.

{¶ 73} Evid.R. 702(C) requires that an expert’s testimony be based on “reliable scientific, technical, or other specialized information.” Under Evid.R. 702(C), if the expert’s “testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:

{¶ 74} “(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts or principles;

{¶ 75} “(2) The design of the procedure, test, or experiment reliably implements the theory;

{¶ 76} “(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.”

{¶ 77} In D’Ambrosio, 67 Ohio St.3d at 191, 616 N.E.2d 909, the court held that expert witnesses in criminal cases can testify in terms of possibility rather than in terms of a reasonable scientific certainty or probability. The treatment of such testimony involves “an issue of sufficiency, not admissibility.” Id.; see also State v. Jones (2000), 90 Ohio St.3d 403, 416, 739 N.E.2d 300. “ ‘Questions about the certainty of the scientific results are matters of weight for the jury.’ ” State v. Allen, 5th Dist. No. 2009-CA-13, 2010-Ohio-4644, 2010 WL 3784818, ¶ 157, quoting United States v. Brady (C.A.6, 1979), 595 F.2d 359, 363.

{¶ 78} Expert testimony regarding DNA evidence is similarly treated. In State v. Pierce (1992), 64 Ohio St.3d 490, 597 N.E.2d 107, the court concluded that the trial court had properly admitted calculations as to the frequency probabilities of DNA evidence. Pierce held, “[Questions regarding the reliability of DNA evidence in a given case go to the weight of the evidence rather than its admissibility. No pretrial evidentiary hearing is necessary to determine the reliability of the DNA evidence. The trier of fact, the judge or jury, can determine whether DNA evidence is reliable based on the expert testimony and other evidence presented.” Id. at 501.

{¶ 79} Foster’s DNA testimony was admissible and did not result in plain error. Lang offered no evidence challenging the DNA evidence or the manner in which the samples were tested or collected, preferring to rely upon cross-examination of the expert. During cross-examination, Foster acknowledged that the DNA profile could not be entered into the Combined DNA Index System (“CODIS”), because there was such a small amount of DNA. Foster stated that the “statistic has to be more than 1 in 280 billion” to “say to a reasonable degree of scientific certainty [that] this person is a source.” These answers weakened the certainty of the DNA evidence. But the jury remained free to assign this evidence whatever weight it deemed proper in arriving at the verdict.

{¶ 80} Nevertheless, Lang attacks the admissibility of the DNA evidence on several grounds. First, Lang argues that this court should overrule DAmbrosio, 67 Ohio St.3d 185, 616 N.E.2d 909, because its application to criminal but not civil cases denies him equal protection of the laws.

{¶ 81} Ohio has a split application of Evid.R. 702. Criminal cases adhere to the D’Ambrosio standard in allowing expert opinion in terms of possibilities to be admitted under Evid.R. 702. In contrast, Ohio courts require expert opinions in civil cases to rise to the level of probabilities before being admitted under Evid.R. 702. See Stinson v. England (1994), 69 Ohio St.3d 451, 633 N.E.2d 532, paragraph one of the syllabus; see also Jurs, Daubert, Probabilities and Possibilities, and the Ohio Solution: A Sensible Approach to Relevance Under Rule 702 in Civil and Criminal Applications (2008), 41 Akron L.Rev. 609, 630.

{¶ 82} The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Section 1, commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause does not prevent all classification, however. It simply forbids laws that treat persons differently when they are otherwise alike in all relevant respects. Nordlinger v. Hahn (1992), 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1. Lang’s equal protection argument can be rejected because criminal defendants and civil litigants have vastly different stakes and concerns and are not similarly situated. See Mason v. Home Depot U.SA., Inc. (2008), 283 Ga. 271, 274-275, 658 S.E.2d 603 (rejecting equal protection claim challenging more stringent requirements for admission of expert testimony in tort actions than in criminal cases).

{¶ 83} Second, Lang argues that the admission of Foster’s expert testimony denied him his Sixth Amendment right to confrontation, because of his inability to confront a scientifically unreliable possibility. The Confrontation Clause of the Sixth Amendment to the United States Constitution gives the accused the right to be confronted with the witnesses against him. However, the Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Emphasis sic.) Delaware v. Fensterer (1985), 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15.

{¶ 84} The trial court placed no limitations on the scope of cross-examination of Foster. Moreover, the record shows that Foster’s cross-examination undermined the reliability of the DNA evidence by bringing out that such a small amount of DNA was found on the handgun that the DNA profile could not be entered into the CODIS database. Thus, we also reject this argument.

{¶ 85} Third, Lang argues that the admission of the DNA evidence failed to meet the Evid.R. 401, 402, and 403 requirements, which address “relevancy and its limits.”

{¶ 86} Evid.R. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The “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. Foster’s DNA testimony was relevant because it tended to link Lang to the handgun used to kill the two victims.

{¶ 87} In addition to relevancy, Evid.R. 403 requires a court to weigh the probative value of the evidence against the danger of unfair prejudice, confusion of the issues, or misleading the jury and to exclude evidence more prejudicial than probative. When considering evidence under Evid.R. 403, the trial court is vested with broad discretion. See State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 40.

{¶ 88} Lang argues that the DNA testimony should have been excluded because Foster’s conclusions could not be made to a reasonable degree of scientific certainty, and it thereby misled the jury. Yet DNA evidence was highly probative in showing that Lang could not be excluded as a contributor of the DNA found on the handgun. DNA evidence also helped corroborate other evidence showing that Lang was the principal offender. Questions about the certainty of the DNA results went to the weight to be assigned to the evidence and not to its admissibility. See State v. Allen, 5th Dist. No. 2009-CA-13, 2010-Ohio-4644, 2010 WL 3784818, ¶ 157.

{¶ 89} Lang also argues that the DNA evidence should have been excluded because the prosecutor improperly used it during his final argument to assert that the DNA proved that Lang was the actual killer. But the trial court was not required to exclude Foster’s testimony because the prosecutor might later use such evidence with damaging effect during his final argument. “Unfair prejudice ‘ “does not mean the damage to a defendant’s case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.” ’ ” United States v. Bonds (C.A.6, 1993), 12 F.3d 540, 567, quoting United States v. Schrock (C.A.6, 1988), 855 F.2d 327, 335, quoting United States v. Mendez-Ortiz (C.A.6, 1986), 810 F.2d 76, 79. Moreover, the record shows that the prosecutor’s comments, which were not objected to, represented “fair inference.” See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 213-214. No plain error occurred.

{¶ 90} As a final matter, Lang argues that the improperly admitted DNA evidence requires reversal of his convictions because the state cannot prove beyond a reasonable doubt that this evidence did not affect the jury’s decision. However, we reject this claim because the DNA evidence was properly admitted.

{¶ 91} Based on the foregoing, we overrule proposition II.

{¶ 92} Prior consistent statements. In proposition of law VII, Lang argues that Walker’s prior consistent statements were improperly admitted under Evid.R. 801(D)(1)(b), a hearsay rule, and violated his Sixth Amendment right to confrontation.

{¶ 93} During the state’s direct examination, Walker testified about his plea deal. He said that he had pleaded guilty to two counts of complicity to murder with firearm specifications and one count of complicity to commit aggravated robbery with a firearm specification. Walker also testified that he had received concurrent sentences for these offenses of “18 to life.” The prosecutor then elicited the following testimony:

{¶ 94} “Q: And what were you asked to do because you were given that sentence?

{¶ 95} “A: Testify.

{¶ 96} “Q: Testify, how?

{¶ 97} “A: To give truthful testimony of the events of October 22.

{¶ 98} “Q: And that’s the same story that you gave Detective Kandel when you were arrested on October 27?

{¶ 99} “A: Yes.

{¶ 100} “Q: Before you had any deal?

{¶ 101} “A: Yes.”

{¶ 102} Evid.R. 801(D)(1)(b) authorizes the admission of prior consistent statements that are offered to rebut charges that the testimony is influenced by an improper reward. It provides:

{¶ 103} “(D) Statements which are not hearsay. A statement is not hearsay if:

{¶ 104} “(1) Prior statement by witness. The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is

{¶ 105} “ * * *

{¶ 106} “(b) consistent with declarant’s testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive * * (Boldface and italics sic.)

{¶ 107} Prior consistent statements that an offering party seeks to introduce to rehabilitate its witness must have been made before the alleged influence or motive to fabricate arose to be admissible under this rule. See Tome v. United States (1995), 513 U.S. 150, 157-158, 115 S.Ct. 696, 130 L.Ed.2d 574; State v. Nichols (1993), 85 Ohio App.3d 65, 71, 619 N.E.2d 80; State v. Patel, 9th Dist. No. 24030, 2008-Ohio-4693, 2008 WL 4227143, ¶ 9.

{¶ 108} Lang argues that Walker’s police statement should not have been admitted as a prior consistent statement, because it was made after his motive for fabrication arose. However, defense counsel failed to object to the admission of the statement at trial and waived all but plain error. See Childs, 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus. An alleged error is plain error only if the error is “obvious,” State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, and “but for the error, the outcome of the trial clearly would have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. Notice of plain error “is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.

{¶ 109} During his opening statement, defense counsel told the jury that Walker had entered into a plea agreement that allowed him to plead guilty to lesser charges. Defense counsel also informed the jury that in exchange for this deal, Walker signed an agreement to “testify truthfully at any proceeding, including trials, involving the case of [his] Co-Defendant, Edward Lang.” Defense counsel recited Walker’s agreement: “I further understand that if I fail to cooperate and testify truthfully as agreed, this agreement and sentence can be voided by the State of Ohio, and I can be prosecuted to the fullest extent as allowed by law including have a consecutive sentence imposed.” Defense counsel then concluded his opening statement by stating: “[A]fter you have heard all of the evidence you will come to the conclusion that the only evidence against Eddie Lang are the statements of a person or persons with an interest in the case.” (Emphasis added.)

{¶ 110} Defense counsel’s opening statement implied that Walker had had a motive to lie because of the favorable terms of his pretrial agreement. This was an allegation of recent fabrication or improper influence that allowed the state to introduce Walker’s prior consistent statements to rehabilitate his testimony. See State v. Wolff, 7th Dist. No. 07 MA 166, 2009-Ohio-2897, 2009 WL 1710736, ¶ 78 (allegations of recent fabrication during opening statement provided grounds for admitting prior consistent statement).

{¶ 111} Furthermore, Walker had made the statements at issue before he entered into his pretrial agreement. See State v. Howe (Sept. 30, 1994), 2d Dist. App. No. 13969, 1994 WL 527612, *9 (prior consistent statement made before an offer of leniency admissible following a defense allegation that the offer established a motive to falsify); State v. Mullins (1986), 34 Ohio App.3d 192, 197, 517 N.E.2d 945. Thus, no error, plain or otherwise, occurred when the trial court admitted Walker’s prior consistent statements.

{¶ 112} Lang invokes Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, in arguing that Walker’s testimony about his prior consistent statements violated his right to confrontation because those first statements had not been subject to cross-examination. In Crawford, the Supreme Court held that the Confrontation Clause bars “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 53-54.

{¶ 113} Lang argues that Walker’s prior statement violated Crawford, because he did not have an earlier opportunity to cross-examine Walker about his police statement. But Walker testified at trial and was subject to cross-examination. “[WJhen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. * * * The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Id. at 59, fn. 9. Accordingly, we reject Lang’s Crawford claim.

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

{¶ 115} Inflammatory evidence and gruesome photographs. In proposition of law VIII, Lang argues that the prosecutor elicited irrelevant and inflammatory evidence. He also argues that the trial court erred in admitting gruesome crime-scene and autopsy photographs. He claims that the Rules of Evidence prohibit the introduction of this information.

{¶ 116} Under Evid.R. 404(B), “Evidence of other crimes, wrongs, or acts is not admissible to prove” a defendant’s character in order to show criminal propensity. “It may, however, be admissible * * * [to show] proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

{¶ 117} 1. Inflammatory evidence. First, Lang argues that Walker improperly testified, over defense objection, that Lang wore red all the time. However, the trial court sustained the defense objection when the prosecutor asked Walker whether he was “familiar with the significance of red.”

{¶ 118} Lang argues that Walker’s testimony about the color red should not have been admitted because the implication was that Lang was a member of the “Bloods” gang. The state counters that the testimony that Lang wore red was relevant in showing his familiarity with firearms and the drug culture, and it contends that the very nature of these crimes pointed to gang-related homicides. However, no evidence was presented at trial linking the two murders to gang activity. Accordingly, testimony that Lang frequently wore red was irrelevant and should not have been admitted. But the testimony was brief, and no explanation was presented linking the color red to gang activity. Given the substantial evidence of Lang’s guilt, such testimony constituted harmless error.

{¶ 119} Second, Lang argues that Sergeant John Dittmore, a Canton police officer, improperly testified that he supervises the police department’s “Gang Unit.” But trial counsel’s failure to object to this testimony waived all but plain error. Childs, 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus.

{¶ 120} Lang argues that testimony about Dittmore’s duties with the gang unit implied that he was involved in the investigation because of Lang’s gang activity. In response, the state argues that Dittmore’s testimony about his duties was relevant because of the possible gang-related nature of these crimes. This testimony was irrelevant and should not have been admitted, because there was no evidence linking the murders with gang activity. However, this testimony did not result in plain error in this case. Dittmore’s testimony made no reference to Lang’s gang involvement or affiliation, if any. Dittmore also testified that he worked closely with narcotics investigators, which would have explained why he was involved in this murder investigation.

{¶ 121} Third, Lang argues that Walker and Seery improperly testified that Lang’s nickname was “Tech,” or “Tek.” Lang claims that this nickname suggested that he was familiar with guns and was violent, because “Tech” is shorthand for a type of 9 mm handgun. However, Lang failed to object to this testimony and thus waived all but plain error.

{¶ 122} There was no testimony explaining the meaning of Lang’s nickname or its association with a 9 mm handgun. It is speculative to conclude that the jurors made such a connection. Thus, no plain error occurred. See State v. Gillard (1988), 40 Ohio St.3d 226, 230, 533 N.E.2d 272 (testimony that defendant’s nickname was “Dirty John” was not plain error).

{¶ 123} Fourth, Lang argues that Sergeant Dittmore’s testimony improperly suggested that Lang had previously purchased illegal drugs. Dittmore testified, over defense objection, that drug dealers do not sell drugs and deal with people they do not know. During redirect examination, Dittmore clarified that “small amounts of crack cocaine that are bought on the street, the street level dealers will sell to anybody. But larger amounts as in a quarter ounce of powder or crack or whatever is a larger amount of drugs * * *. That’s going to be done more surreptitiously behind the scenes, and those people generally know each other.” But Lang did not object to this testimony and waived all but plain error.

{¶ 124} Dittmore’s redirect testimony showed the likelihood that Lang knew Burditte when he called him and set up the drug deal for a quarter ounce of crack cocaine. Such testimony was relevant because Lang told police he did not know Burditte prior to calling him. It also suggested that Lang’s motive to kill Burditte was to avoid identification. Thus, Dittmore’s redirect testimony was relevant and did not constitute plain error.

{¶ 125} Fifth, Lang argues that Walker improperly testified that after the murders, Lang vomited and said, “[E]very time I do this, this same thing happens.” Lang claims that the prosecution used this testimony to imply that Lang had previously killed someone. However, defense counsel’s failure to object to this testimony waived all but plain error.

{¶ 126} Lang’s conduct and comments after the murders were relevant in reflecting his consciousness of guilt. See State v. Richey (1992), 64 Ohio St.3d 353, 357, 595 N.E.2d 915. Moreover, the prosecution made no attempt to use Lang’s comments as showing that he had previously murdered other people. No plain error occurred.

{¶ 127} Sixth, Lang argues that his statement admitting that he might be guilty of conspiracy to commit murder was improperly admitted. During the state’s case-in-chief, the prosecution played the tape-recorded statement that Lang made to the police. The trial court, over defense objection, allowed the prosecutor to play a segment of the tape that included Lang’s admission to conspiracy to commit murder:

{¶ 128} “(Officer) Kandel: * * * When everything went bad and you felt so bad about it, why didn’t you call the police?

{¶ 129} “Lang: Basically that he used my gun and then that I was in the car when that shit happenin’. And then as though, you know what I’m sayin’, that’s conspiracy to murder.

{¶ 130} “ * * *

{¶ 131} “Kandell: That’s what you believe?

{¶ 132} “Lang: Yeah. If you right there at the scene of a crime and you witness somethin’ or you bein’ a part of somethin’ no matter how much you played a part in it, if you involved in it, * * * that’s conspiracy to murder.” (Emphasis added.)

{¶ 133} After the tape was played, the trial court provided the jury with the following limiting instructions: ‘You may have heard in the statement some references by both sides to a concept known as conspiracy to murder. I would indicate to you that there are no charges in this case that alleged conspiracy to murder. You may take the Defendant’s statement or the statements of the officers if they deal with the facts of this case, but not as they may discuss any legal conclusions because they may be correct or incorrect legally.”

{¶ 134} Lang’s opinion that he might be guilty of conspiracy to commit murder was irrelevant. No prejudicial error, however, resulted from playing this segment of Lang’s statement, because the trial court’s limiting instructions ensured that the jury did not improperly consider it. See State v. Noting, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 49; State v. Heinish (1990), 50 Ohio St.3d 231, 241, 553 N.E.2d 1026.

{¶ 135} Seventh, Lang argues that Walker falsely testified that he did not know the make and model of the murder weapon. Walker testified that he saw Lang with a handgun before the murders. He testified, “[I]t was a grey and black gun. I didn’t know what kind of gun it was at the time, but I found out it was a .9 [sic] millimeter.” Walker later testified that while waiting for Burditte to arrive at the meeting point, Lang had trouble placing a round in the handgun. Walker also testified that he knew how to chamber a round on a 9 mm handgun.

{¶ 136} Lang claims that Walker’s familiarity with how to load a 9 mm handgun shows that Walker lied when he said that he did not know the make and model of Lang’s handgun. However, Walker’s statement that he knew how to load a 9 mm handgun does not establish that Walker lied when he stated, “I didn’t know what kind of gun it was at the time.” Walker’s credibility was a matter for the jury to decide after they heard his testimony. Moreover, the defense failed to object to such testimony and waived all but plain error. No plain error occurred.

{¶ 137} Finally, Lang argues that unreliable DNA evidence was improperly admitted. But as discussed in proposition II, this argument lacks merit.

{¶ 138} 2. Gruesome photographs. Lang argues that the trial court erred in admitting two gruesome crime-scene photographs and three gruesome autopsy photographs. However, trial counsel failed to object to this evidence at trial and waived all but plain error with respect to those exhibits. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 132.

{¶ 139} In capital cases, nonrepetitive photographs, even if gruesome, are admissible as long as the probative value of each photograph substantially outweighs the danger of material prejudice to the accused. State v. Morales (1987), 32 Ohio St.3d 252, 257, 513 N.E.2d 267; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus. 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.

{¶ 140} State’s exhibit No. 33-P is a decidedly gruesome photograph showing the bodies of Cheek and Burditte inside the Durango after the shooting. This photograph was probative of Lang’s intent and the manner and circumstances of the victims’ deaths. See State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 92. No plain error resulted from admitting this photograph.

{¶ 141} State’s exhibit No. 33-R. shows where a shell casing was found on the bloodstained area behind the passenger seat. However, the “photos of blood stains * * * do not have a shock value equivalent to a photograph of a corpse. The term ‘gruesome’ in the context of photographic evidence should, in most cases, be limited to depictions of actual bodies or body parts.” State v. DePew (1988), 38 Ohio St.3d 275, 281, 528 N.E.2d 542. Thus, the photograph of the bloodstains was not precluded from admission into evidence.

{¶ 142} State’s exhibits Nos. 31A and B are autopsy photographs depicting the entry and exit gunshot wounds on Cheek’s head. State’s exhibit No. 32B depicts the exit wound of the gunshot through Burditte’s mouth. Although these photographs are gruesome, each of them supported the coroner’s testimony and provided a perspective of the victims’ wounds. No plain error occurred in admitting these photographs. See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 148.

{¶ 143} Based on the foregoing, proposition VIII is overruled.

{¶ 144} Instructions. In proposition of law IV, Lang argues that the trial court’s instructions on the R.C. 2929.04(A)(7) specification failed to provide the jury with the option of finding that he was guilty under either the principal-offender element or the prior-calculation-and-design element of that specification.

{¶ 145} Lang failed to object to these instructions and waived all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 3 OBR 360, 444 N.E.2d 1332, syllabus. Moreover, defense counsel’s proposed instructions included the language that Lang now contends was erroneous. Thus, the defense invited any error and may not “ ‘take advantage of an error which he himself invited or induced.’ ” State v. Bey (1999), 85 Ohio St.3d 487, 493, 709 N.E.2d 484, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph one of the syllabus.

{¶ 146} During final instructions, the trial court advised the jury that it could find Lang guilty of aggravated murder in Counts One and Two if the jurors found that he “purposely caused the death” of the victims “while committing, attempting to commit, or fleeing immediately after committing or attempting to commit the offense of aggravated robbery and/or did aid or abet another in so doing.”

{¶ 147} The trial court also advised the jury that it could find Lang guilty of Specification Three, the felony-murder death-penalty.specification that accompanied Counts One and Two, if it found that the “State proved beyond a reasonable doubt that the aggravated murder as set forth in [Counts One and Two] was committed while the Defendant was committing * * * the offense of aggravated robbery and the Defendant was the principal offender in the commission of the aggravated murder.” The trial court advised the jury that the term “principal offender” meant the “actual killer.”

{¶ 148} Lang argues that the trial court’s instructions on the R.C. 2929.04(A)(7) specifications were incomplete because they did not advise the jury of the option of finding him guilty of the “prior calculation and design” alternative as set forth in the statute. Lang also argues that the jury may have found him guilty because the jurors were presented with an all-or-nothing choice between finding him guilty as the shooter or acquitting him. Compare Beck v. Alabama (1980), 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392.

{¶ 149} Pursuant R.C. 2929.04(A)(7), a defendant found guilty of aggravated murder may also be found guilty of this death-penalty specification if the defendant committed one of the enumerated felony murders and was either “the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated murder with prior calculation and design.” (Emphasis added.)

{¶ 150} In Beck, the United States Supreme Court struck down an Alabama statute that prohibited lesser-included-offense instructions in capital cases. In so holding, the court stated, “[0]n the one hand, the unavailability of * * * convicting on a lesser included offense may encourage the jury to convict for an impermissible reason — its belief that the defendant is guilty of some serious crime and should