State v. Maxwell (139 Ohio St. 3d 12, 2014)

Lanzinger, J.

{¶ 1} This is an appeal as of right by defendant-appellant, Charles Maxwell, who has been sentenced to death for the aggravated murder of Nichole McCorkle.

I. Trial Evidence

{¶ 2} Evidence introduced at trial showed that McCorkle and Maxwell had a long-term relationship that began in 1999, living together on different occasions over the next few years. They had one child, C.M., nearly four years old. Nichole also had two other children, D.C. and D.K. In August 2005, she purchased a single-family home at 1046 East 146th Street in Cleveland and lived there with her father and two of the children. Maxwell had a key to the side door of the house and kept some clothes there.

The underlying assault

{¶ 3} The prosecution introduced evidence showing that on October 6, 2005, Nichole went to the hospital and received stitches for head injuries after Maxwell struck her. Police came to the hospital and took Nichole’s report about the incident. On the same date, Maxwell told John Gregg, a friend and coworker, that he had pistol-whipped Nichole. On October 13, 2005, she obtained a temporary protection order against Maxwell.

{¶ 4} Afterward, prosecutors presented felonious-assault charges against Maxwell to the grand jury. Nichole was subpoenaed to testify before it on November 23, 2005.

{¶ 5} Maxwell told Gregg that he was concerned about receiving prison time for felonious assault. Maxwell knew about the temporary protection order and that a warrant had been issued for his arrest. He had also learned that Nichole was going to testify against him at the grand jury.

{¶ 6} At Maxwell’s behest, Gregg contacted Nichole about her grand jury testimony in an effort to reduce the charges from felonious assault to a lesser offense. Gregg asked Nichole to “stick to the story that it was a simple domestic; she pushed him, he pushed her, she slipped and hit her head on the stove.”

A. Nichole’s grand jury testimony

{¶ 7} Following Nichole’s testimony on November 23, 2005, the grand jury indicted Maxwell for felonious assault, abduction, and domestic violence. Brian Mooney, an assistant prosecutor for Cuyahoga County, informed Nichole that day that the grand jury had voted to indict and told her what the charges were. Because of the Thanksgiving holiday, the indictment was not signed by the grand jury foreman and filed with the clerk of court until November 28, 2005.

{¶ 8} The evening of the grand jury’s decision, Maxwell called Gregg and said that he had been trying to talk to Nichole about her grand jury testimony but had been unable to contact her. Maxwell then called Nichole while Gregg remained on the line and heard their conversation. Maxwell asked Nichole what happened in court that day. Nichole told him, “I told the truth. I had to tell the truth.” According to Gregg, Maxwell was very upset after the phone call and said that “the bitch was going to make him kill her.” Maxwell also asked Gregg where he could get a gun.

B. The events of November 26 and 27, 2005

{¶ 9} The prosecution presented evidence that on the evening of November 26, 2005, Nichole and Willie Hutchinson met at a bar. Lauretta Kenney, Nichole’s sister, had introduced Hutchinson to Nichole after the October 6 incident. Nichole and Hutchinson arrived at the bar in separate cars and had a few drinks. When they departed, although Nichole had told Hutchinson that she would call him when she got home, she did not. But Hutchinson called Nichole, and a man answered the phone. Hutchinson then called Lauretta and told her to check on Nichole.

{¶ 10} Near 2:30 a.m. on November 27, Lauretta called Nichole, and Maxwell answered the phone. Maxwell immediately gave the phone to Nichole. Lauretta asked Nichole why Maxwell was there and told her that he needed to leave. According to Lauretta, Nichole said that “she was confused and she didn’t know what was going on.”

{¶ 11} Lauretta then drove to Nichole’s home and arrived around 2:40 a.m. but did not see Maxwell’s car on the street or in the driveway. Lauretta called Nichole, saying she was outside. Nichole “mumbled something” and then hung up. Lauretta went onto the porch, and Nichole and Maxwell were standing next to each other when Lauretta opened the screen door.

{¶ 12} Lauretta told Maxwell that he was not supposed to be there and needed to leave. Maxwell said that he was just talking to Nichole. Lauretta testified, “I told him, there’s no talking, that you needed to leave.” He then called Lauretta “a bitch” and said, “[I]f anybody’s leaving it’s going to be you.” Maxwell then stepped back and pulled a gun from his pants. Nichole screamed, “[0]h my God, Lauretta, he got a gun, run.” Lauretta then jumped off the porch and started running. Lauretta heard two gunshots as she ran across the street and heard a third gunshot after she crossed the street. Lauretta then saw Maxwell kneeling down by Nichole.

{¶ 13} C.M., a day short of four years old, was standing near Maxwell and Nichole when Lauretta came to the door. Later, when asked what she had seen, C.M. testified, “He shoot my mommy.”

{¶ 14} Maxwell ran from the house after shooting Nichole and fled down the street. Lauretta followed him for a short distance before he disappeared. Shortly afterwards, police officers and emergency medical personnel arrived on the scene. Nichole was taken to the hospital, where she died from her injuries.

{¶ 15} On the morning of November 27, Michelle Kenney, Nichole’s other • sister, called Gregg and told him that Maxwell had killed Nichole. Gregg said that he then called Maxwell and asked him if he had killed Nichole. Maxwell admitted killing her and recounted what happened. He said he had followed Nichole from her home to the bar. She went into the bar, and Maxwell waited outside in his car. He then went inside and saw Nichole and another man sitting in the back of the bar “making out.” Maxwell then returned to his car and waited. After they left the bar, he followed Nichole and the man as they drove in separate cars to Nichole’s house. Nichole kissed the man and went into her house, and the man drove away.

{¶ 16} Gregg also testified that Maxwell told him that he called Nichole after the other man drove away and asked if he could come over. Nichole said he could, and Maxwell went to her house. Maxwell answered the phone at Nichole’s house, including repeated calls from a man who asked to speak to Nichole. He also answered a call from Lauretta. Maxwell told Gregg that “they started arguing and then he confronted her about that night.” Lauretta then came to the front door, and Maxwell “opened the door[,] pointed the gun and fired but she had ran.” Then, Maxwell told Gregg, “he just turned around, shot Nichole and she fell down and * * * she moved and then he shot her again.”

C. The police investigation

{¶ 17} Police investigators found two .25 caliber shell casings inside the house. Investigators looked inside and outside the house for a third shell casing, which they never found. Investigators also did not find any bullet holes inside or outside the house.

{¶ 18} Dr. David Dolinak, a medical examiner with the Cuyahoga County coroner’s office, conducted Nichole’s autopsy. Nichole suffered two gunshot wounds to the head. One gunshot in the middle of the right eyebrow broke the bones of the eye socket. The bullet did not enter the brain but lodged in the sinuses on the right side of the nose. The other gunshot went through the left side of the head into the right side of the brain. Dr. Dolinak concluded that Nichole died from gunshot wounds to the head and that the death was a homicide.

{¶ 19} Detective James Ealey, a firearms examiner with the Cleveland Police Department, examined the two bullets recovered during the autopsy. Ealey testified that they had been fired from the same weapon. His written report stated that the bullets were “consistent with 25 auto type ammunition.”

{¶ 20} The police sought to locate and arrest Maxwell following Nichole’s death. On December 16, 2005, FBI Special Agent Robert Riddlebarger and other members of the Cleveland/Cuyahoga County Fugitive/Gang Task Force went to a Cleveland home to arrest him. After entering the home, they found Maxwell hiding in a crawl space behind a bed in a second-floor bedroom. As he was being handcuffed, Maxwell was asked whether he was armed or whether there were any weapons nearby. He replied, “I do not have a gun anymore.” A few seconds later, Maxwell blurted out that he had gotten rid of the gun that he had.

{¶ 21} The defense presented no witnesses during the guilt phase of the trial.

II. Case History

{¶ 22} Maxwell was indicted on two counts of aggravated murder. Count One charged him with the aggravated murder of Nichole with prior calculation and design. Count Two charged him with the aggravated murder of Nichole while committing kidnapping and/or aggravated burglary. Both counts contained death-penalty specifications for a course of conduct involving multiple murders or attempted murders, R.C. 2929.04(A)(5), murder while committing kidnapping or aggravated burglary, R.C. 2929.04(A)(7), murder in retaliation for testimony in a criminal proceeding, R.C. 2929.04(A)(8), and murder to escape accounting for a crime, R.C. 2929.04(A)(3).

{¶ 23} Maxwell was also charged with six additional counts: Count Three— kidnapping, Counts Four and Five — aggravated burglary, Count Six — the attempted murder of Lauretta Kenney, Count Seven — retaliation against Nichole because she filed criminal charges against him, and Count Eight — having a weapon while under disability. Counts One through Seven each contained a firearm specification.

{¶ 24} Maxwell pled not guilty to all charges and specifications. The matter proceeded to a jury trial on the first seven counts, while Maxwell waived a jury trial on Count Eight. At the close of the state’s case, defense counsel filed a Crim.R. 29 motion to dismiss the charges. The trial court granted the motion to dismiss Counts Two through Five and the felony-murder death-penalty specification but denied the motion to dismiss the other charges. The jury found Maxwell guilty of Counts One and Seven, the retaliation and murder-to-escape-accounting specifications, and two firearm specifications. He was found not guilty of Count Six and the course-of-conduct specification. Separately, the trial court found Maxwell guilty of having a weapon while under a disability.

{¶ 25} Prior to sentencing, the R.C. 2929.04(A)(3) specification was merged into the R.C. 2929.04(A)(8) specification. Following the presentation of evidence in the penalty phase of the trial, the jury recommended that Maxwell be sentenced to death. The trial court accepted the jury’s recommendation, and Maxwell was sentenced to death on Count One. He was also sentenced to five years in prison for the independent count of retaliation, three years on the firearm specification, and five years for having a weapon under a disability.

III. Issues on Appeal

{¶ 26} The principal issues for review include the adequacy of trial counsel’s preparation and presentation of mitigating evidence, the trial court’s failure to appoint a neurologist, the admissibility of Maxwell’s statements to police at the time of his arrest, and the admissibility of the medical examiner’s testimony and the autopsy report under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

{¶ 27} In this appeal, Maxwell raises 19 propositions of law. We will address the issues in the approximate order that they arose during the trial; however, we will first discuss proposition of law XV, which deals with the admissibility of the medical examiner’s testimony and the autopsy report, as those issues present novel questions of law.

Proposition of Law XV

{¶ 28} In proposition of law XV, Maxwell argues that the trial court erred by admitting the autopsy report on Nichole McCorkle and by allowing Dr. Felo, who did not conduct the autopsy, to testify about the autopsy results in violation of his Sixth Amendment right to confrontation and Crawford.

{¶ 29} Dr. David Dolinak conducted Nichole’s autopsy on November 28, 2005. The prosecution called Dr. Joseph Felo to testify about the autopsy instead of Dr. Dolinak, who at the time of trial had become the medical examiner for Austin, Texas. Maxwell objected to Dr. Felo’s testimony, citing Crawford and the best-evidence rule. The trial court cited State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, and allowed Dr. Felo to substitute as a witness. Dr. Dolinak’s autopsy report was also admitted into evidence over defense objection.

{¶ 30} Dr. Felo testified that he had reviewed the autopsy report and the autopsy photographs and x-rays of the victim and looked at tissue slides under the microscope. He discussed the external examination of Nichole that was conducted during the autopsy. He testified that there were two gunshot wounds to the head and a bruise in the midportion of the chest. He referred to the autopsy report in stating that this injury “was interpreted to be because of medical therapy, CPR, doing chest compressions.” He testified that the internal examination of the skull revealed a tear going through the right eyeball and into the brain. There was also some bleeding and bruising caused by bullets going through the brain.

{¶ 31} Dr. Felo referred directly to the autopsy report in discussing the victim’s wounds. He testified, “Gunshot wound number one is described as being in the right eyebrow” (emphasis added), and he referred to the autopsy report in describing the trajectory of the gunshot. He also testified that the bullet from the other gunshot traveled “through the scalp and through the brain and skull from the left side going towards her right side.” He used autopsy photographs to illustrate this testimony.

{¶ 32} Dr. Felo testified that microscopic examination showed the tears and bleeding caused by the bullets going through the brain, that microscopic evaluation of swabs taken from the victim’s mouth, vagina, and rectum revealed no evidence of sperm, and that stippling was found around both entrance wounds. He expressed his opinion that stippling is generally found when “it’s within 18 inches of the end of the muzzle to the target.”

{¶ 33} Although Dr. Felo testified that the Cuyahoga County coroner had established the cause and manner of death, he also provided his own opinion, stating, “The cause of Nichole Anna Maria McCorkle’s death is gunshot wounds of [the] head * * *. The manner of death is a homicide.”

DISCUSSION

{¶ 34} The Sixth Amendment’s Confrontation Clause provides, “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.” The United States Supreme Court has interpreted this to mean that admission of an out-of-court statement of a witness who does not appear at trial is prohibited by the Confrontation Clause if the statement is testimonial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177.

{¶ 35} Crawford did not define the word “testimonial” but stated generally that the core class of statements implicated by the Confrontation Clause includes statements “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Id. at 52, quoting the amicus brief of the National Association of Criminal Defense Lawyers. The Crawford opinion announced a “fundamentally new interpretation of the confrontation right.” Williams v. Illinois, — U.S. 132 S.Ct. 2221, 2232, 183 L.Ed.2d 89 (2012).

{¶ 36} We have already considered the distinction between testimonial and nontestimonial statements. In State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 88, we held that an autopsy report completed by a nontestifying medical examiner was admissible as a nontestimonial business record under Evid.R. 803(6). We held that there was no Sixth Amendment violation in admitting the autopsy report because Cranford had indicated that “business records are, ‘by their nature,’ not testimonial” and were therefore admissible. Id. at ¶ 81, quoting Cranford at 56. We stated, “An autopsy report, prepared by a medical examiner and documenting objective findings, is the ‘quintessential business record.’ ” Id. at ¶ 82, quoting Rollins v. State, 161 Md.App. 34, 81, 866 A.2d 926 (2005).

{¶ 37} After our decision in Craig, the United States Supreme Court decided that analysts who had performed laboratory tests were required to testify. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). While the dissent states that the reasoning in Craig has been undone by Melendez-Diaz, we do not agree. In Melendez-Diaz, the court held that three notarized certificates of analysis showing that a forensic analysis identified cocaine were inadmissible. Being “quite plainly affidavits,” they constituted testimonial statements because they were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ ” Id. at 310-311, quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The affidavits were also “ ‘ “made under circumstances which would lead an objective witness reasonably to believe that the statements] would be available for use at a later trial.” ’ ” Id. at 311, quoting Cranford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, quoting the amicus brief of the National Association of Criminal Defense Lawyers. Thus, the analysts who had provided the affidavits were witnesses for Confrontation Clause purposes, and the defendant had the right to confront them. Id. at 311.

{¶ 38} Shortly afterwards, we considered how foundational testimony is to be presented for DNA analysis. State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-6840, 879 N.E.2d 745. In Crager, a DNA expert from the Bureau of Criminal Identification and Investigation (“BCI”) had testified about a DNA analysis performed by another agent. Id. at ¶ 8. We held that the DNA report was a nontestimonial business record and that its introduction without the testimony of the BCI agent who prepared it did not violate Crawford. Id. at ¶ 78-79. Relying upon our earlier opinion, we stated, “The autopsy report at issue in Craig is not distinguishable from the DNA reports in this case.” Id. at ¶ 51. “As in Craig, the scientific-test reports in this case were prepared in the ordinary course of regularly conducted business and so were not testimonial.” Id. at ¶ 54. The United States Supreme Court vacated the judgment in Crager and remanded the case for further consideration in light of Melendez-Diaz. Crager v. Ohio, 557 U.S. 930, 129 S.Ct. 2856, 174 L.Ed.2d 598 (2009). Thereafter, without deciding whether Crager’s right to confront witnesses had been denied, we “vacat[ed] the judgment of the trial court and remand[ed] the cause to the trial court for a new trial consistent with Melendez-Diaz v. Massachusetts.” State v. Crager, 123 Ohio St.3d 1210, 2009-Ohio-4760, 914 N.E.2d 1055, ¶ 3.

{¶ 39} Next, the Supreme Court decided Bullcoming v. New Mexico, 564 U.S. -, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming, instead of calling the analyst who signed and certified the forensic report for blood-alcohol concentration in a DWI case, the prosecution introduced the lab report through the testimony of another analyst who had not performed or observed the analysis but was familiar with the testing procedures of the laboratory. Although the witness was a “knowledgeable representative of the laboratory” who could “explain the lab’s processes and the details of the report,” id. at 2723 (Kennedy, J, dissenting), the majority held that the surrogate witness was not a proper substitute for the analyst who had conducted the test. The court concluded, “The accused’s right is to be confronted with the analyst who made the certification * * Id. at 2710.

{¶ 40} Bullcoming also held that the blood-alcohol analysis reports were testimonial. The court stated, “In all material respects, the laboratory report in this case resembles those in Melendez-Diaz. Here, as in Melendez-Diaz, a law-enforcement officer provided seized evidence to a state laboratory required by law to assist in police investigations. * * * Like the analysts in Melendez-Diaz, [the certifying analyst] tested the evidence and prepared a certificate concerning the result of his analysis.” Id. at 2717. Thus, while the Crawford court declined to define “testimonial,” later decisions seem to explain the meaning of the word by stating that testimonial statements are those made for “a primary purpose of creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, — U.S.-, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011); see also Bullcoming at 2714, fn. 6, quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (“To rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of ‘establishing] or proving] past events potentially relevant to later criminal prosecution’ ”). If a statement’s primary purpose is anything else, the statement is nontestimonial. Its admissibility is “the concern of state and federal rules of evidence, not the Confrontation Clause.” Id.

{¶ 41} Most recently, five justices held that expert testimony from a forensic specialist did not violate a defendant’s right to confrontation. Williams v. Illinois, — U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). The expert witness testified that a DNA profile produced by an outside laboratory (Cell-mark) from a rape victim’s vaginal swabs matched the defendant’s DNA profile produced by a state police lab from the defendant’s blood sample. Id. at 2229-2230. The Cellmark report itself was neither admitted into evidence nor shown to the fact-finder. The expert witness also did not quote or read from the report or identify the report as the source of any of her opinions. Id. at 2230.

{¶ 42} Four of the five justices reasoned that the statements in the Cellmark report were nontestimonial because, first, the out-of-court statements were related by the expert solely for the purpose of explaining the assumptions on which the expert’s opinion relied and were not offered for their truth. Id. at 2240-2241. And second, even if the Cellmark report had been admitted into evidence, it was not a testimonial document, because it was not prepared for “the primary purpose of accusing a targeted individual,” which distinguished this report from the forensic reports in Melendez-Diaz and Bullcoming. Id. at 2242. Justice Thomas agreed that the expert’s testimony did not violate the Confrontation Clause, but only because the Cellmark report “lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation Clause.” Id. at 2255 (Thomas, J., concurring in judgment), quoting Bryant at 1167 (Thomas, J., concurring in judgment).

{¶ 43} The admission of the autopsy report and Dr. Felo’s testimony must now be considered in light of the foregoing cases.

Maxwell’s arguments

{¶ 44} Maxwell argues that Bullcoming prohibited Dr. Felo’s surrogate testimony about Nichole’s autopsy even though he was a “knowledgeable representative” who could explain the lab’s processes and the details of the autopsy report. Maxwell emphasizes that Dr. Felo’s testimony was introduced to prove a key fact at trial and was offered for the truth of the hearsay. Thus, Maxwell argues that he was entitled to confront and cross-examine the medical examiner who actually performed Nichole’s autopsy and wrote the report.

{¶ 45} Maxwell argues that Williams, a decision resulting from a bench trial, should be distinguished from his case, which was tried before a jury without any limiting instructions regarding the purpose for which the report could be considered. He emphasizes that the Williams plurality indicated that the DNA testimony might not have been admissible if that defendant had elected to have a jury trial.

{¶ 46} Maxwell also argues that unlike the purpose in Williams, the primary purpose of the autopsy and the related report was to establish that Nichole’s death resulted from a crime rather than an accident, suicide, or other means. Thus, Maxwell argues that Dr. Felo’s testimony and the introduction of the autopsy report resulted in a Confrontation Clause violation because the purpose was “ ‘ “to establish or prove past events potentially relevant to later criminal prosecutions,” ’ ” quoting Williams, — U.S.-, 132 S.Ct. at 2251, 183 L.Ed.2d 89 (Breyer, J., concurring), quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.

The state’s arguments

{¶ 47} The state advances three main arguments for the admissibility of the autopsy report and the deputy coroner’s testimony. First, the state argues that this court should continue to apply Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 88, in which we held that an autopsy report completed by a nontestifying medical examiner was admissible as a nontestimonial business record under Evid.R. 803(6). Second, the state argues that the coroner has a duty to conduct autopsies and maintain reports and that this duty exists entirely independently of any potential criminal prosecution that might later occur. The state also asserts that autopsy reports are not created for the purpose of litigation, because they do not identify suspects and are not accusatory in nature. Third, the state also points out that the passage of time can easily lead to the unavailability of the medical examiner who conducted an autopsy and that requiring the medical examiner who conducted the autopsy to testify would be equivalent to placing a statute of limitations on murder prosecutions.

{¶ 48} Finally, even if admission of the autopsy report and Dr. Felo’s testimony violated Maxwell’s right to confrontation, the state argues that the error was harmless beyond a reasonable doubt.

Analysis

{¶ 49} A key element in evaluating the admissibility of the coroner’s testimony and the autopsy report in light of the recent United States Supreme Court cases is the primary-purpose test, which examines the reasons for and purpose of the record in question. To determine the primary purpose, a court must “objectively evaluate] the statements and actions of the parties to the encounter” giving rise to the statements. Bryant, — U.S.-, 131 S.Ct. at 1162, 179 L.Ed.2d 93; see also Williams, — U.S.-, 132 S.Ct. at 2243, 183 L.Ed.2d 89 (plurality opinion of Alito, J.).

Coroner’s testimony

{¶ 50} Although Maxwell relies on Bullcoming, which disallowed surrogate testimony and held that the blood-alcohol reports admitted during the surrogate’s testimony were testimonial, the majority of jurisdictions that have examined this issue have concluded that a substitute examiner, on direct examination, may at least testify as to his or her own expert opinions and conclusions regarding the autopsy and the victim’s death. E.g., Commonwealth v. Avila, 454 Mass. 744, 762, 912 N.E.2d 1014 (2009) (“the expert witness’s testimony must be confined to his or her own opinions and, as to these, the expert is available for cross-examination”); Commonwealth v. Phim, 462 Mass. 470, 479, 969 N.E.2d 663 (2012) (a substitute medical examiner may not testify on direct examination as to facts and conclusions stated in an autopsy report without personal knowledge or having independently reached the same conclusion); State v. Joseph, 230 Ariz. 296, 298, 283 P.3d 27 (2012) (as long as the substitute expert reaches his or her own conclusions, the Confrontation Clause is satisfied).

{¶ 51} The Supreme Court of California, however, expanded the scope of admissible opinion testimony by a substitute examiner. The court allowed the substitute medical examiner to testify regarding his “independent opinion” as an expert witness as to the cause of the victim’s death, when that opinion was based solely on a review of the autopsy report. People v. Dungo, 55 Cal.4th 608, 618, 147 Cal.Rptr.3d 527, 286 P.3d 442 (2012). Because the expert witness did not describe the conclusions reached by the nontestifying examiner, and the expert’s descriptions were limited to objective facts, such as the condition of the victim’s body at the time of the autopsy, these types of statements were not testimonial in nature. Id. at 619.

{¶ 52} We agree. Maxwell’s argument is also not persuasive because the Williams plurality stated that the forensic report (the Cellmark report) could have been admitted into evidence without violating the Confrontation Clause. Williams, — U.S.-, 132 S.Ct. at 2242,183 L.Ed.2d 89.

{¶ 53} Dr. Felo testified that he reached his own independent judgment on the cause and manner of Nichole’s death based upon his analysis of the evidence in the autopsy report, which itself was admitted. His conclusions were the same as those in the report. But after reviewing the forensic evidence, Dr. Felo also provided some opinions that were not included in the autopsy report. For example, he provided his own conclusions about muzzle-to-target distance based on stippling around the entrance wounds on Nichole’s head. Such testimony constituted Dr. Felo’s original observations and opinions and did not violate the Confrontation Clause, because he was available for cross-examination regarding them.

Autopsy report

{¶ 54} In 2006, this court concluded that an autopsy report was a nontestimonial business record and that its admission did not impinge on a defendant’s confrontation rights. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 81-88 (applying Crawford v. Washington). Although the United States Supreme Court has decided several confrontation cases since our decision, they do not require departure from our holding in Craig.

{¶ 55} Maxwell invokes the primary-purpose test that the Williams plurality discussed. The Williams plurality stated that the Cellmark report could have been admitted into evidence because it “was not prepared for the primary-purpose of accusing a targeted individual” of engaging in criminal conduct. (Emphasis added.) Williams, — U.S.-, 132 S.Ct. at 2243, 183 L.Ed.2d 89. In contrast, Maxwell argues that the primary purpose of the autopsy and the related report was to establish that Nichole’s death was a crime. However, Maxwell fails to mention that five justices in Williams rejected the plurality’s narrowed definition of the primary-purpose test (the targeted-individual test). Id. at 2273 (Kagan, J., dissenting). Thus, Maxwell’s reliance on the plurality’s narrowed definition of the primary-purpose test is not helpful to our resolution of this issue.

{¶ 56} Meanwhile, the state urges us to continue to adhere to Craig’s holding that an autopsy report is admissible as a nontestimonial business record. But an otherwise inadmissible testimonial statement may not be admitted into evidence based upon the business-and-official-records hearsay exception. Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. 2527, 174 L.Ed.2d 314. Although documents kept in the regular course of business are ordinarily admitted into evidence under the hearsay exception, they are inadmissible “if the regularly conducted business activity is the production of evidence for use at trial.” Id. at 321. When a statement is “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” it is considered testimonial. Id. at 311, quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. Thus, labeling autopsy reports as “business records” does not end the inquiry.

{¶ 57} An analysis of the primary-purpose test bears out Craig’s conclusion that autopsy reports are nontestimonial. Autopsy reports are not intended to serve as an “out-of-court substitute for trial testimony.” Bryant, — U.S.-, 131 S.Ct. at 1155, 179 L.Ed.2d 93. Instead, they are created “for the primary purpose of documenting cause of death for public records and public health.” Carolyn Zabryeki, Comment, Toward a Definition of “Testimonial”: How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 CaLL.Rev. 1093, 1130 (2008); see also People v. Leach, 2012 IL 111534, 366 Ill.Dec. 477, 980 N.E.2d 570, ¶ 129 (a medical examiner is “charged with protecting the public health by determining the cause of a sudden death”).

Ohio statutes

{¶ 58} Ohio coroners conduct autopsies pursuant to the authority granted to them by R.C. Chapter 313. Coroners must “keep a complete record of and * * * fill in the cause of death on the death certificate, in all cases coming under [their] jurisdiction.” R.C. 313.09. The death certificate also must indicate the “manner and mode in which the death occurred.” R.C. 313.19. If the cause and manner of death are not apparent — as when someone “dies as a result of criminal or other violent means, by casualty, by suicide, or in any suspicious or unusual manner” or “when any person * * * dies suddenly when in apparent good health,” R.C. 313.12 — the coroner is notified so that an autopsy may be conducted. An autopsy is a “compelling public necessity” if it is needed to “protect[] against an immediate and substantial threat to the public health” or to assist law enforcement in conducting a murder investigation. R.C. 313.131.

{¶ 59} Although autopsy reports are sometimes relevant in criminal prosecutions, Craig rightly held that they are not created primarily for a prosecutorial purpose. Consistent with Craig, other courts have held that coroners are statutorily empowered to investigate unnatural deaths and authorized to perform autopsies in a number of situations, only one of which is when a death is potentially a homicide. People v. Leach, 405 Ill.App.3d 297, 308-309, 345 Ill.Dec. 694, 939 N.E.2d 537 (2010), affd, 2012 IL 111534, 366 Ill.Dec. 477, 980 N.E.2d 570; Dungo, 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286 P.3d 442 (testimony by a chief medical examiner who did not prepare the decedent’s autopsy report was admissible); United States v. James, 712 F.3d 79, 97 (2d Cir.2013) (autopsy report was to be considered on whether it was “prepared with the primary purpose of creating a record for use at a later trial”).

{¶ 60} Ohio courts of appeals have also continued to uphold the admissibility of autopsy reports prepared by nontestifying medical examiners since Melendez-Diaz. State v. Hardin, 193 Ohio App.3d 666, 2010-Ohio-6304, 953 N.E.2d 847, ¶ 9-20 (4th Dist.) (autopsy report prepared by nontestifying medical examiner admissible as a nontestimonial business record, since it was not prepared for purposes of litigation); State v. Zimmerman, 8th Dist. Cuyahoga No. 96210, 2011-Ohio-6156, 2011 WL 5997588, ¶ 43-45 (admissibility of autopsy report prepared by nontestifying medical examiner does not conflict with Bullcoming)-, State v. Adams, 7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719, 2012 WL 2308131, ¶ 20, 26 (Craig still controls and autopsy report is nontestimonial evidence under Crawford, as it is not made solely at the behest of police in order to convict the particular defendant); State v. Monroe, 8th Dist. Cuyahoga No. 94768, 2011-Ohio-3045, 2011 WL 2476280 (Craig not in conflict with Melendez-Diaz).

{¶ 61} As a final matter, the admissibility of autopsy reports completed by a nontestifying medical examiner presents unique policy interests that are not present in other Crawford-related evidentiary matters. A medical examiner who conducted an autopsy may be unavailable or deceased when a trial begins. And unlike other forensic tests, a second autopsy may not be possible due to cremation of the victim’s body or other loss of evidence with passage of time.

{¶ 62} Under R.C. 313.09, coroners are required to “keep a complete record of and * * * fill in the cause of death on the death certificate, in all cases coming under [their] jurisdiction.” Moreover, the scope of an examiner’s duty is the same regardless of whether criminal activity is suspected or not. The Illinois Supreme Court has recognized that in some instances, police may compel the conducting of an autopsy during investigation of a cold case for later use at trial, and in that event the autopsy may play a testimonial role. People v. Leach, 2012 IL 111534, 366 Ill.Dec. 477, 980 N.E.2d 570, ¶ 133. The dissent rejects the primary-purpose test and would hold that whether a particular autopsy report is testimonial should be determined on a case-by-case basis. But generally, autopsy reports are neither (1) prepared for the primary purpose of accusing a targeted individual nor (2) prepared for the primary purpose of providing evidence in a criminal trial. For Sixth Amendment purposes, it is only the primary purpose of a document that determines whether it is testimonial or not.

{¶ 63} Melendez-Diaz and Bullcoming, on which Maxwell relies, are readily distinguishable here. In both cases, the forensic reports were made at the request of police, for specific “evidentiary purposes” in order to aid in a police investigation. The record does not show that to be the case here. We hold that an autopsy report that is neither prepared for the primary purpose of accusing a targeted individual nor prepared for the primary purpose of providing evidence in a criminal trial is nontestimonial, and its admission into evidence at trial under Evid.R. 803(6) as a business record does not violate a defendant’s Sixth Amendment confrontation rights.

{¶ 64} Finally, the state argues that any error in admitting Dr. Felo’s testimony and the autopsy report constitutes harmless error beyond a reasonable doubt, an issue we must determine. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Even if there was error in admitting the coroner’s testimony and the autopsy report, as discussed later in proposition XIII, overwhelming evidence was introduced that established Maxwell’s guilt, and expert testimony was not crucial in proving the cause and manner of Nichole’s death. Eyewitness testimony established that Maxwell shot Nichole in the head, and two .25-caliber shell casings were found inside the house after Maxwell fled the scene. Maxwell also admitted to Gregg that he shot Nichole twice. Finally, Michelle Kenney testified that Nichole died a short time after arriving at the hospital.

{¶ 65} We will now address the remaining issues in the approximate order that they arose during the trial proceedings.

A. Pretrial and trial issues

1. Amendment of the indictment (Proposition of law II)

{¶ 66} Maxwell argues that the trial court erred by allowing the prosecutor to amend the indictment without engaging in a colloquy with the defendant to ensure that he knowingly, intelligently, and voluntarily waived his right to a grand jury.

{¶ 67} At the beginning of trial, the prosecutor sought to amend pursuant to Crim.R. 7(D) the specification that accompanied Counts One and Two that the murder occurred to escape the accounting for a crime. The specification stated, “The offender committed the offense presented above for the purpose of escaping punishment for another offense committed by him, to-wit: Rape.” The prosecutor stated that there was a typographical error and that the specification should state “felonious assault” instead of “rape.”

{¶ 68} The defense did not object to amending the specifications. Defense counsel stated, “The prosecutor raised this issue with me * * * several pretrials ago. I had an opportunity to speak to Mr. Maxwell with regards to this. I explained to him certainly we have no objection to this, and he agrees with me in terms of that, and certainly the county prosecutor can, of course, take this back to the Grand Jury to correct the typographical error, if he wishes to do so.” The prosecutor was then allowed to amend the specification. Because Maxwell failed to object to the amendment, he has waived all but plain error. See State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6.

{¶ 69} Under Crim.R. 7(D), a court may amend an indictment “at any time” if the amendment does not change “the name or identity of the crime charged.” An amendment that changes the penalty or degree of the charged offense changes the identity of the offense and is not permitted by Crim.R. 7(D). State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, syllabus. However, “[a]s long as the state complies "with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged.” State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15.

{¶ 70} The amendment to the R.C. 2929.04(A)(3) specification changed the underlying offense from rape to felonious assault. This amendment changed the elements of the specification, because proof of the defendant’s commission of the prior offense constituted an essential element of the R.C. 2929.04(A)(3) specification. See State v. Jones, 91 Ohio St.3d 335, 347, 744 N.E.2d 1163 (2001). But the name of the crime of aggravated murder was not changed; Maxwell was still charged with an R.C. 2929.04(A)(3) death-penalty specification. The amended specification also did not change the penalty or degree of the offense charged. Thus, the trial court committed no plain error in granting the state’s motion to amend the indictment.

{¶ 71} Nevertheless, Maxwell argues that the trial court did not comply with Crim.R. 7(A), because he did not properly waive his right to have the grand jury amend the indictment. Yet Maxwell was prosecuted by indictment and was sufficiently informed of the charges in the indictment. Therefore, Crim.R. 7(A) and its waiver requirements do not apply to this case. See Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, at ¶ 11.

{¶ 72} Maxwell invokes State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, overruled by State v. Homer, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45, in arguing that he had the right to have the grand jury hear and consider the essential facts underlying the amendment of the specification. In Colon, 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. Maxwell fails to explain how this holding applies to this case. Moreover, after Maxwell raised the issue in his first brief, this court overruled Colon in Homer. Thus, we reject this argument.

{¶ 73} Finally, even if the amended indictment were defective, it made no difference to the case outcome because the trial court merged the R.C. 2929.04(A)(3) specification with the murder-in-retaliation specification in R.C. 2929.04(A)(8) before the jury considered its penalty-phase verdict. We overrule proposition II.

2. Ineffective assistance of counsel (Proposition of law IV)

{¶ 74} Maxwell argues that his counsel provided ineffective assistance during jury selection and by failing to object to victim-impact evidence during the guilt phase of the trial.

{¶ 75} Reversal of a conviction for ineffective assistance requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.

{¶ 76} Maxwell first argues that trial counsel’s performance must be judged by the standards set forth in the American Bar Association (“ABA”) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev.Ed.2003). The stated objective of the guidelines is “to set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.” Guideline 1.1(A). To this end, the ABA guidelines present a detailed prescription for the legal representation of capital defendants.

{¶ 77} However, the Supreme Court has held that the ABA guidelines are “only guides” to what reasonableness means, not its definition. Strickland at 688. In Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009), the Supreme Court reversed a Sixth Circuit Court of Appeals decision that relied on the ABA guidelines to grant a capital defendant relief on the ground that his lawyers performed deficiently in investigating and presenting mitigating evidence. The Supreme Court criticized the Sixth Circuit for treating the guidelines “not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel ‘ “must fully comply.” ’ ” Id. at 8, quoting Van Hook v. Anderson, 560 F.3d 523, 526 (6th Cir.2009), quoting Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir.2006). The Supreme Court continued, “ ![W]hile States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.’ ” Id. at 9, quoting Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).

{¶ 78} Accordingly, trial counsel’s performance is reviewed under the two-prong Strickland analysis. See also State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 37-40. We now address Maxwell’s specific assertions of ineffective assistance of counsel.

a. Improper use of peremptory challenges

{¶ 79} Maxwell argues that his counsel were ineffective by improperly using peremptory challenges to eliminate women from the jury, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d-69 (1986), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

{¶ 80} In Batson, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution precludes purposeful discrimination by the state in the exercise of its peremptory challenges so as to exclude members of minority groups from service on petit juries. Id. at 89. A court adjudicates a Batson claim in three steps. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. First the opponent of the peremptory challenge must make a prima facie case of racial discrimination. Second, if the trial court finds this requirement fulfilled, the proponent of the challenge must provide a racially neutral explanation for the challenge. Batson at 96-98. Finally, the trial court must decide based on all the circumstances whether the opponent has proved purposeful racial discrimination. Id. at 98.

{¶ 81} Batson has since been extended to defense peremptory challenges, Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), and gender-based peremptory challenges, J.E.B. at 144-145.

{¶ 82} Maxwell argues that trial counsel violated the equal-protection rights of five female prospective jurors by peremptorily challenging them: Juanita Gibson, Gail Gibson-Gray, Fahtema Stephens, Carol Dardzinski, and Genevieve Torrero. Gibson, Gibson-Gray, and Stephens were also African-American. During jury selection, defense counsel peremptorily challenged Gibson and stated that she was excused “because of the tragedies that have occurred in her family.” Counsel did not make any comments with respect to his peremptory challenge of the other four female prospective jurors.

{¶ 83} Maxwell concedes that the voir dire responses of Gibson, Gibson-Gray, and Stephens provided gender-neutral reasons for trial counsel’s peremptory challenge. Maxwell notes that Gibson had been a victim of a sex offense, Gibson-Gray suffered from depression and had been hospitalized for a mental disease, and Stephens had been a victim of domestic violence. Maxwell provides no other argument to support his ineffectiveness claim regarding the peremptory challenge of these three prospective jurors.

{¶ 84} Maxwell’s remaining argument is that trial counsel were ineffective in peremptorily challenging Dardzinski and Torrero. But the record includes no discussion of a possible basis for counsel’s challenges of these two prospective jurors, because no Batson or J.E.B. objection was raised. Thus, from the record, we cannot determine whether trial counsel had racially neutral or gender-neutral explanations for the peremptory challenges and, if so, whether the trial court could have properly accepted such explanations as credible and not a pretext for racial or gender discrimination. Moreover, we cannot presume prejudice from trial counsel’s failure to raise a Batson or J.E.B. challenge. See State v. Burks, 10th Dist. Franklin No. 07AP-553, 2008-Ohio-2463, 2008 WL 2152670, ¶ 57 (court unable to consider defense counsel’s failure to raise a Batson objection on direct appeal because of an inadequate record).

{¶ 85} Yet Dardzinski’s and Torrero’s responses on the jury questionnaires appear to provide gender-neutral explanations to support the defense’s peremptory challenges. In response to the question “What is your opinion of our Criminal Justice System?” Dardzinski stated, “There are times it can be fair, but I also feel that if someone is convicted of a crime, sentencing is not harsh enough.” When asked about her views on the death penalty, Dardzinski stated, “I firmly believe in capital punishment. If someone can just go and kill someone I feel their life should be taken also.” When Torrero was asked about her feelings about the death penalty, she responded simply, “My feelings, if you can’t do the time don’t commit the crime.” Based on the foregoing, we hold that Maxwell has failed to establish that trial counsel were deficient by peremptorily challenging female prospective jurors.

b. Failure to life-quality prospective jurors

{¶ 86} Maxwell argues that trial counsel were ineffective by failing to “life-qualify” a single prospective juror pursuant to Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Morgan held that on voir dire, upon the defendant’s request, the trial court must inquire into the prospective juror’s views on capital punishment because a prospective juror who would always impose the death penalty must not be empaneled. Id. at 729-734. In the present case, the trial court received assurances from all of the seated and alternate jurors that they could vote for one of the life sentences if the state failed to prove that the aggravating circumstances outweighed the mitigating factors. Thus, counsel were not deficient by failing to also question the jurors about this matter.

c. Failure to object to characterization of the verdict as a recommendation

{¶ 87} Maxwell argues that trial counsel were ineffective by failing to object to the trial court’s instructions indicating that the jury verdict was merely a recommendation, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). But counsel did object to those instructions.

{¶ 88} Moreover, there was no Caldwell violation. In Caldwell, the jury did not receive an accurate description of its role in the sentencing process due to the prosecutor’s suggestion that the jury’s decision to impose the death penalty would not be final, because the appellate court would review the sentence for correctness. Id. at 328-329. The court concluded that the comment unconstitutionally “led [the jury] to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. But when a defendant claims that a Caldwell violation occurred, he or she “must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). No Caldwell violation occurred in the present case, since the trial court’s instructions accurately stated the law, emphasized the jury’s responsibility to impose a sentence, and did not induce reliance on the prospect of appellate review. See State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, ¶ 102.

d. Failure to object to victim-impact testimony

{¶ 89} Maxwell argues that trial counsel were ineffective by failing to object to victim-impact testimony that was presented at trial. Maxwell also challenges the introduction of this evidence in proposition of law X. But as discussed in that proposition, trial counsel were not ineffective by failing to object to this evidence, because its admission was either proper or not prejudicial.

{¶ 90} Based on the foregoing, we reject proposition IV.

3. Jury challenges (Propositions of law V and VI)

{¶ 91} In proposition of law V, Maxwell argues that the trial court had an obligation to determine sua sponte whether trial counsel had gender-neutral reasons to peremptorily challenge five female prospective jurors. Maxwell failed to assert a J.E.B. challenge at trial and thus waived all but plain error. See State v. Ballew, 76 Ohio St.3d 244, 253, 667 N.E.2d 369 (1996) (failure to raise a Batson challenge constituted waiver).

{¶ 92} In raising a J.E.B. challenge, “a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike.” J.E.B., 511 U.S. at 144-145, 114 S.Ct. 1419, 128 L.Ed.2d 89. Without an objection from either defense counsel or the prosecutor, the trial court had no obligation to raise a J.E.B. challenge on its own motion. Moreover, the record includes no discussion of a possible basis for counsel’s challenges, because a J.E.B. issue was never raised. In the absence of an adequate record, we find that no plain error occurred.

{¶ 93} In proposition of law VI, Maxwell argues that the trial court erred in denying a defense challenge against juror Gibson because she was biased. Maxwell also argues that he suffered prejudice because he was forced to use a peremptory challenge against Gibson after the trial court denied the challenge for cause.

{¶ 94} A trial court has broad discretion in determining a prospective juror’s ability to be impartial. State v. White, 82 Ohio St.3d 16, 20, 693 N.E.2d 772 (1998). Former R.C. 2313.42(J) (now R.C. 2313.17(B)(9)) stated that good cause exists for the removal of a prospective juror when “he discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as given to him by the court.” A prospective juror who has been challenged for cause should be excused “if the court has any doubt as to the juror’s being entirely unbiased.” Former R.C. 2313.43 (now R.C. 2313.17(D)); see State v. Cornwell, 86 Ohio St.3d 560, 563, 715 N.E.2d 1144 (1999). A trial court’s ruling on a challenge for cause will not be disturbed on appeal absent an abuse of discretion. Id.

{¶ 95} During voir dire, juror Gibson stated that she had been sexually assaulted about five years previously and that her assailant had been recently apprehended. Gibson did not have to testify against the defendant, because there was a plea bargain and he received a one-year sentence. Gibson stated that she had met with Carol Skutnik of the Cuyahoga County prosecutor’s office once or twice before trial. As to her dealings with the prosecutor’s office, Gibson stated, “They did everything the way they were supposed to I believe. I didn’t have any issues with them.” As a follow-up question, trial counsel asked Gibson about her experience with the prosecutor’s office: .“Do you think that’s going to somehow possibly taint the way you view this case against my client?” Gibson responded, “Why would it? No, I don’t. One has nothing to do with [the] other.”

{¶ 96} Maxwell argues that juror Gibson should have been excused as a juror because she had been the victim of a sexual assault and her previous relationship with the prosecutor’s office posed a risk that she would find the prosecutor’s case against Maxwell more credible. Yet Gibson’s answers showed that she would be a fair-minded juror. Nothing indicates that Gibson’s experiences as a sexual-assault victim would cause her to be biased against Maxwell. Gibson also assured the court that her prior dealings with a different Cuyahoga County prosecutor would not influence her consideration of Maxwell’s case. See State v. Allen, 73 Ohio St.3d 626, 629, 653 N.E.2d 675 (1995) (prospective juror whose brother was a homicide victim permitted to remain as capital juror after assuring the court that she could set that aside and remain impartial). Thus, we hold that the trial court did not abuse its discretion in rejecting this challenge for cause. We also reject Maxwell’s contention that the defense was forced to use a peremptory challenge against Gibson.

{¶ 97} Based on the foregoing, we overrule propositions V and VI.

4. Competency of child witness (Proposition of law III)

{¶ 98} Maxwell argues that the trial court erred in finding that C.M. was competent to testify at trial. He argues that the record fails to establish that C.M. was able to distinguish right from wrong and understand the difference between the truth and a lie.

{¶ 99} 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.”

{¶ 100} A trial court must conduct a voir dire examination of a child under ten years of age to determine the child’s competence to testify. In making this determination, the court must consider

(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, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). A determination of competency is within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. Id. at 250-251.

{¶ 101} C.M. was five years old when she testified. She was one day short of her fourth birthday when she witnessed her mother being killed. During the voir dire examination to determine her competency, C.M. stated the name of her brother and sister and mentioned that she attended preschool and knew her teacher’s name. She stated that her favorite TV show was “Sponge Bob” and named the characters on the show and mentioned their characteristics. C.M. also identified photographs of the different rooms in her house. C.M. showed that she knew what it meant to tell the truth and stated, “You will get in trouble” if you tell a lie. Finally, C.M. related what happened the night her mother was killed. C.M. stated that her “daddy” came to the house with a gun, that he was in her “Mommy room,” and that the three of them went downstairs. Asked what Maxwell did with the gun, she stated, “He shoot my mommy.”

{¶ 102} Following voir dire, the trial court stated, “[C.M.] is capable of receiving just impressions, she understands the importance of telling the truth, and, therefore, the Court rules that she will be allowed to testify. She’s competent as a witness in this case.”

{¶ 103} Maxwell argues that the trial court abused its discretion because nothing shows that C.M. understood the significance of upholding the oath or the consequences of lying under oath. However, tri