State v. Mammone (139 Ohio St. 3d 467, 2014)

Lanzinger, J.

{¶ 1} This is an appeal as of right by defendant-appellant, James Mammone III, who has been sentenced to death for the aggravated murders of his former mother-in-law, Margaret Eakin, his five-year-old daughter, Macy, and his three-year-old son, James. For the reasons explained below, we affirm Mammone’s convictions and sentence.

I. CASE HISTORY

{¶ 2} On June 17, 2009, Mammone was indicted on three counts of aggravated murder (R.C. 2903.01), one with a firearm specification (R.C. 2941.145); two counts of aggravated burglary (R.C. 2911.11(A)), each with a firearm specification; violating a protection order (R.C. 2919.27(A)(1)); and attempted arson (R.C. 2923.02(A) and 2909.03(A)(1)).

{¶ 3} Each aggravated-murder count carried two death specifications. Count One, involving Margaret’s murder, included a course-of-conduct specification (R.C. 2929.04(A)(5)) and a specification for committing her murder in the course of an aggravated burglary (R.C. 2929.04(A)(7)). Counts Three and Four charged Mammone with the aggravated murders of Macy and James, and each included a course-of-conduct specification and a child-murder specification (R.C. 2929.04(A)(9)). Mammone pled not guilty to all counts and specifications.

{¶ 4} Before trial, defense counsel filed, among other motions, a motion for a change of venue based on excessive pretrial publicity and a motion in limine to exclude all victim photographs at trial. After a hearing, the trial court denied Mammone’s motion to change venue as premature but indicated that the motion could be renewed at a later date. The court held a separate hearing on the motion in limine and denied the motion as premature. The court at a later hearing preliminarily approved the photos that the state planned to introduce as evidence but invited further argument about specific photos at trial.

A. The State’s Evidence

1. Testimony of Marcia Eakin and Other Witnesses

{¶ 5} Mammone’s trial began on January 11, 2010. The state called Mammone’s ex-wife, Marcia Eakin, to testify. Marcia testified about the breakdown of her relationship with Mammone and stated that she first told Mammone in August 2007 that she intended to leave him. On that day, Mammone stayed home from work and refused to let her or their two children, Macy and James IV, leave the family’s Canton residence. Mammone broke Marcia’s cell phone and took all the house phones. She did not leave him that day.

{¶ 6} Marcia and Mammone sought counseling, but she did not feel that the marital relationship improved. She testified that Mammone threatened her, warning that “if I tried to leave he would kill me and the children.” Unbeknownst to Mammone, Marcia contacted a lawyer to initiate the process of filing for divorce.

{¶ 7} On June 13, 2008, Mammone learned that Marcia was seeking a divorce when he intercepted a call from Marcia’s lawyer. According to Marcia, Mammone again threatened to kill her, declaring: “I told you if you tried to leave me I was going to kill you.” He told Macy and James on that date that “it was time for mommy to go to her grave.” Mammone did not let Marcia or the children out of his sight for the rest of the day.

{¶ 8} Marcia explained that she and the children managed to get away from Mammone, and she sought a civil protection order against him. On July 10, 2008, the Stark County Common Pleas Court issued a two-year protection order requiring Mammone to stay more than 500 feet away from Marcia. He was permitted only supervised contact with the children.

{¶ 9} Marcia testified that the Mammones’ divorce was finalized in April 2009. Under the final divorce decree, Mammone was permitted overnight visitation with the children four times a month and evening visitation twice a week. Marcia explained that Mammone picked up and dropped off the children at the home of her parents, Margaret and Jim Eakin, so that Mammone would not have direct contact with Marcia or know where she lived. During visits, Mammone was permitted to text Marcia about matters pertaining to the children.

{¶ 10} Marcia testified that on Sunday, June 7, 2009, Mammone picked up five-year-old Macy and three-year-old James at the Eakins’ home for a scheduled overnight visit. Mammone was driving his green BMW.

{¶ 11} Marcia met a friend, Ben Carter, to play tennis and have dinner. At 4:25 p.m., Mammone began to text Marcia. Although the two never spoke that night, they exchanged dozens of text messages over the next 15 hours, and records of these messages were introduced at trial.

{¶ 12} At first, Mammone sought advice about consoling Macy, who was upset. But he quickly shifted to blaming Marcia for the children’s suffering, texting: “How long are we going to let these children that you * * * had to have suffer?” Throughout the evening Mammone repeatedly texted Marcia, accusing her of “ruin[ing] lives” by putting herself first. He admonished her to put her children first and demanded to know what was more important than the kids at that moment. Marcia replied by texting that Mammone should “stop tormenting” the children. No fewer than five times, she offered to have Mammone return the children to her mother’s house or asked if she could meet him to pick up the children.

{¶ 13} Mammone advised Marcia in a text that he was “at [the] point of no return” and that he “refuse[d] to let gov restrict my right as a man to fight for the family you promised me.” At 9:11 p.m., he warned Marcia that “safe and good do not apply to this night my love.” Marcia promptly responded, texting: “Do not hurt them.” At 9:35 p.m., she asked him to “[k]eep them safe.” Mammone texted:

You got five minutes to call me back on the phone. I am not fucking around. I have stashed a bunch of pain killers for this nigh[t] * * * i hope u would never let happen. I have put on my wedding band, my fav shirt and I am ready to die for my love tonight. I am high as a kite * * * bring o[n] the hail of bullets if need be.

{¶ 14} At this point, Marcia called 9-1-1. The state played a recording of the call at trial. On the recording, Marcia advised the 9-1-1 operator that her children were in a car with her ex-husband, who had threatened to take “a bunch of painkillers” and had said that he was “ready to die tonight.” While Marcia was on the line with the 9-1-1 operator, the operator attempted to call Mammone, but he would not answer his phone. After speaking to the 9-1-1 operator, Marcia texted Mammone that she would not call him (in accordance with the operator’s advice), and again urged him to “keep the kids safe.” At 10:18 p.m., Marcia in a text to Mammone asked him to meet her so that she could pick up the kids. Marcia’s friend Carter confirmed that he and Marcia then drove around looking for Mammone.

{¶ 15} Marcia testified that she then contacted both Mammone’s mother and the wife of Richard Hull, Mammone’s friend and former employer. Phone records indicate that Richard Hull began to text Mammone, advising him to calm down and keep the kids safe. Hull’s texts suggested that Mammone should drop the kids off with Mammone’s mother. Hull testified that he and his father also drove around for a time looking for Mammone but did not find him.

{¶ 16} At 2:00 a.m. on June 8, Mammone sent a text to Marcia, stating, “I am not one who accepts divorce. * * * I married you for love and for life * * At 2:36 a.m., he wrote, “I am so dead inside without u. The children r painful * * * [reminders of what I have lost of myself. This situation is beyond tolerable. So what happens next?” At 2:50 a.m., Mammone reiterated in a text' to Marcia that the love of his children was “only a source of pain” without her love.

{¶ 17} Hull testified that around 3:00 a.m., he spoke to Marcia and decided not to go back out looking for Mammone because they were hopeful that everything would be fine. Marcia attempted to end her text conversation with Mammone, writing, “Pleasef ] keep kids safe good night.”

{¶ 18} At 5:34 a.m., Mammone texted Marcia: “Last chance. Here it goes.”

{¶ 19} One of the Eakins’ neighbors, Edward Roth, testified that around 5:30 a.m., he heard gunshots and screaming through his open bedroom window. Roth said that he saw a goldish-tan-colored car leaving the Eakin residence and several minutes later saw the same car returning to the street to sit in the middle of the intersection near the house. Roth called 9-1-1. A law-enforcement officer testified that he and another officer arrived to find Margaret Eakin lying severely injured on the floor of a second-floor bedroom. The officers observed two shell casings and a broken lamp.

{¶ 20} Marcia testified that she heard a car roar up her driveway around 5:40 a.m. From a second-floor bedroom window, she saw Mammone get out of the car and empty a red gasoline container onto Carter’s truck, which was parked in the driveway. She called 9-1-1, and a recording of the call was introduced at trial by the state. While Marcia was on the phone, she “heard the glass in my back door breaking in and he was inside my apartment.” She did not hear Mammone speak, but she heard something that he had thrown hit the ceiling. He then went back outside and threw things at the windows. Mammone left before two deputy sheriffs arrived. According to the deputies, the back door had been forced open, the screen-door glass was broken, and pieces of the door frame were on the kitchen floor.

{¶ 21} The deputies quickly realized that the incident at Marcia’s apartment was linked to the incident at the Eakins’ residence, but law-enforcement officers had not yet located Mammone, and they did not know whether the children were safe.

{¶ 22} At 6:04 a.m., Mammone left a voice mail on Hull’s phone, in which the jury heard Mammone confess to Hull, “I killed the kids.” Mammone’s voice mail continued:

I said it when I got locked up fucking 358 days ago that she fucking has to die and unfortunately as fucking sick as it sounds I concluded after a while that she took my family from me and the fucking way to really get her is to take fucking her mom and her kids from her. I missed her dad by a couple minutes. I drove by the house, he was there, and I fucking circled the block and he must’ve just pulled out or I’d have fucking popped his fucking ass too.

2. Testimony of Officers

{¶ 23} Sergeant Eric Risner testified that he and other officers apprehended Mammone sometime after 7:30 a.m. on June 8, 2009, in the driveway of his residence. They found Macy and James dead in the back seat of Mammone’s car, still strapped into their car seats. The children had apparently been stabbed in the throat.

{¶ 24} Officer Randy Weirich testified that he removed two items from Mammone’s car at the scene: a bloody knife from the back seat and a firearm from the front seat. The firearm had a live round in the chamber, its hammer was cocked, and the safety was off.

{¶ 25} After the vehicle was towed for processing, Officer Weirich cataloged the rest of the car’s contents. The evidence log includes ammunition for a .32-caliber gun; a backpack containing knives, heavy-duty shears, and tongs; an axe handle with nails protruding from holes that had been drilled into it; a baseball bat; a military-style bayonet; Mammone’s cell phone and a spare battery; a framed wedding photo of Marcia; and Marcia’s dried wedding bouquet. Officer Weirich also removed from the car a switchblade and a pocket knife.

3. Mammone’s Confession

{¶ 26} Mammone was arrested and transported to police headquarters. Once in custody, he signed a written waiver of his Miranda rights and gave a full confession. The state introduced an audio recording of the confession at trial.

{¶ 27} In his confession, Mammone explained that he had picked up Macy and James for visitation at about 4:00 p.m. on June 7. He then drove past Marcia’s nearby apartment. (Mammone admitted that he was not supposed to know where Marcia lived, but he had learned her new address and occasionally stalked her.) He saw a truck parked in Marcia’s driveway, and he recognized it because it had been parked there two weeks earlier. Macy told him that the truck belonged to a boy. Mammone explained that this news “didn’t make me very happy obviously.” He circled the block, and the truck was gone when he drove by again.

{¶ 28} Mammone stated that he suspected that Marcia was on a date, so he went “on the hunt” for her with the children in the back seat. He spent a few hours driving around looking for Marcia, all the while “sending [her] agitating text messages trying to get her attention.”

{¶ 29} Around 6:30 p.m., Mammone took the children to his place for dinner. As he continued to text Marcia, he was “getting to the point of no return.” He figured that he had already violated the protection order, and he had “had enough.” He said that he had long hoped that things would improve, but stated that “once I suspected that she might have a guy that she was interested in that was it for me, I can’t deal with that. It’s just not anything that I’m willing to accept.”

(¶ 30} According to Mammone, after dinner he loaded the children into a gold 1992 Oldsmobile that he had recently purchased. He stated that he had a Beretta .32-caliber automatic handgun, a gasoline container (which he later stopped to refill), a Scripto lighter, a bag full of butcher-type knives, a bayonet, a baseball bat, and another bat-type weapon he had made by driving nails through a hickory shovel handle or axe handle. He also said that he had approximately a dozen painkillers. He took one pill around 9:00 p.m. to “deaden the pain” if he was shot by police officers later that night.

{¶ 31} Mammone stated that he parked at Westminster Church (his and Marcia’s “family church”) just before 5:45 a.m. He stabbed Macy and James with a butcher knife while they were still strapped in their car seats. Mammone related that he had to stab each child in the throat four or five times, which was more than he had expected would be necessary. When detectives asked why he had stabbed the children rather than shooting them, Mammone offered three reasons: (1) noise, (2) uncertainty about whether his gun was dependable, and (3) a desire to conserve rounds for what might lie ahead.

{¶ 32} Mammone said that after killing Macy and James, he drove to the Eakins’ home at approximately 5:45 a.m. He left the children in the back seat of the car and “barged in” through the Eakins’ unlocked door carrying his Beretta. Mammone found Margaret in a guest room and shot her in the chest. The gun jammed before he could fire a second round, so he began to hit Margaret with the gun. He then beat her with a lamp until the lamp began to fall apart. Mammone managed to unjam the gun and shot Margaret in the face at close range. He told police officers that a third bullet may have fallen out of the gun when he was attempting to dislodge the slide.

{¶ 33} Mammone stated that he then drove to Marcia’s nearby apartment. The truck that he had seen the previous evening was in the driveway. He poured gasoline on the truck and attempted to light it, but the lighter fell apart in his hands.

{¶ 34} Mammone related that after he was unable to light the fire, he retrieved four weapons from his car: (1) the handgun, which he had to unjam again to prepare to fire, (2) the bayonet, which he put in his front pocket, (3) the baseball bat, and (4) the “bat type of weapon” that he had made. He smashed Marcia’s screen-door window and back door with the bat and then entered the apartment. Once inside, Mammone unsuccessfully looked for matches or a lighter. He did not go upstairs because he was concerned that Marcia or “the person that was there to protect her” might have a firearm, and he did not want to be a “sitting duck.” Mammone left the apartment and began throwing the baseball bat at a second-floor window, but he became frustrated. He searched his car for another lighter and, unable to find it, drove away.

{¶ 35} After killing his mother-in-law and breaking into Marcia’s apartment, Mammone drove around with the children’s bodies for several hours. He had expected that he would want to die after committing these violent acts, but he was surprised to find that he “didn’t really feel * * * like dying.” He also “didn’t feel like getting arrested,” so he drove in areas where he did not expect to see police officers and drove the speed limit. He claimed that he then took approximately a dozen pills — which he identified as Valium or painkillers — but not enough to cause an overdose.

{¶ 36} Mammone said that he then drove to the Independence Police Station to turn himself in, but he fell asleep in the station parking lot. When he woke, he contacted a relative who arranged for Mammone to turn himself in at a Canton park. En route to the park, Mammone decided to go by his apartment to switch to his BMW, with the idea of leaving the children in the Oldsmobile so that they would not be part of any scene at the park. But an unmarked police car was waiting for him, and he was apprehended.

{¶ 37} Mammone told officers that he had contemplated “doing this” for 22 months, but that he had initially intended to kill Marcia, not Macy and James. He said that he killed his mother-in-law because it was “a major blow to [Marcia] to not have her mother.” He indicated that hurting Marcia was one of the motives for killing Macy and James as well, but he also cited his objection to divorce as a reason for their murders. Mammone said that he did not intend to kill Marcia on June 8, but that he did plan to maim her. He had wanted to beat Marcia’s uterus area with his homemade weapon (making her unable to conceive children), to break her ankles with the baseball bat (something she feared that she had seen done in a movie), and to cut out her tongue (as punishment for not speaking to him). Mammone also said that he would have killed the man at Marcia’s apartment if he could have.

4. Forensic Evidence

{¶ 38} Dr. P.S. Murthy, the Stark County coroner, performed autopsies on Margaret, Macy, and James on June 9, 2009. He testified that he determined that the cause of death for all three victims was homicide.

{¶ 39} According to Dr. Murthy, Margaret had suffered two fatal gunshot wounds and more than 20 blunt-impact injuries and lacerations, consistent with being struck by the butt of a gun and by a household lamp. One bullet had been fired into Margaret’s left upper lip from a distance of about six to eight inches and was recovered from the occipital lobe of her brain. Another bullet pierced Margaret’s right upper shoulder, perforated her right lung, and exited through her back.

{¶ 40} Dr. Murthy testified that both children died as a result of stab wounds with exsanguination (massive blood loss). Macy had multiple stab wounds to the neck, while James had a single stab wound that went through his neck. Both children’s lungs were filled with aspirated blood. Macy’s right hand and right leg bore multiple defensive wounds, and James had a defensive wound on his right hand.

{¶ 41} According to a laboratory analyst who testified, multiple bloodstains on Mammone’s shirt at the time of his arrest had DNA profiles consistent with Margaret’s DNA. In addition, a laboratory analyst identified Mammone’s fingerprint on a lighter that officers retrieved from a flowerbed near Marcia’s apartment.

{¶ 42} Law-enforcement officers took bodily fluid samples from Mammone on the day of his arrest. According to a laboratory analyst, tests did not reveal any trace of opiates or acetaminophen in Mammone’s blood.

B. The Defense Case

{¶ 43} Mammone did not present a case in defense during the trial phase. Before the trial began, defense counsel advised the court during a bench conference that as a matter of strategy, Mammone had “elected to, in effect, concede the trial phase in this matter,” and Mammone himself informed the judge that he instead preferred to focus on the second phase of trial. During a brief opening statement, defense counsel candidly explained to the jury that Mammone did not “eontest[ ] much of the evidence and/or facts with respect to this matter.” Mammone’s counsel repeated that statement during trial-phase closing arguments, emphasized Mammone’s honesty in responding to police officers’ questioning, and urged the jury to decide the case based on the law rather than on emotion.

C. Verdict, Sentencing, and Appeal

{¶ 44} On January 14, 2010, the jury returned guilty verdicts on all counts. After a sentencing hearing, the jury unanimously recommended a sentence of death for each of the three aggravated murders. The trial court accepted the recommendation and imposed three death sentences in open court on January 22, 2010.

{¶ 45} The trial court then sentenced Mammone for his noncapital convictions. The court merged Mammone’s convictions for two of the gun specifications and also merged his convictions for violating a civil protection order and aggravated burglary of the Eakins’ home. Mammone was sentenced to a total of 27 years of consecutive imprisonment for his noncapital offenses. The trial court filed the R.C. 2929.03(F) sentencing opinion on January 26, 2010.

{¶ 46} Mammone appealed, raising nine propositions of law. We will consider Mammone’s propositions as they arose chronologically rather than in the order he presents them.

II. ANALYSIS

A. Pretrial Issues

1. Venue and Pretrial Publicity

{¶ 47} In his first proposition of law, Mammone argues that the trial court’s denial of his motion for a change of venue violated his rights to due process and to a fair trial by an impartial jury. See the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the U.S. Constitution; Ohio Constitution, Article I, Sections 5 and 16. According to Mammone, Stark County was so saturated with media coverage of his case that we should presume “prejudice from the weight of the adverse publicity” without the need for further inquiry. Alternatively, Mammone argues that we should conduct a review of the complete record and conclude that members of the jury were actually biased against Mammone due to their exposure to the extensive coverage.

a. Factual and procedural background

{¶ 48} Mammone filed a pretrial motion for a change of venue on October 1, 2009. As an appendix to the motion, Mammone attached copies of articles posted on the Canton Repository’s website, CantonRep.com, between June 9 and August 26, 2009, along with comments posted by online readers of the newspaper. He also attached copies of postings that appeared on other websites.

{¶ 49} The trial court held a venue hearing on November 12, 2009. During the hearing, Mammone submitted 11 exhibits, including coverage of his case from various radio, television, and print publications. The materials included a copy of a “confession letter” that had been published in the print version of the Repository on August 25, 2009, and posted on its website. The letter, written and sent by Mammone himself, began with the statement that it was mailed to the newspaper to “set the record straight regarding any questions and misconceptions” about the murders of Margaret, Macy, and James. Mammone argued at the hearing that in light of these materials, “an attempt to seat a jury would be likely futile,” so that the court should presume prejudice and grant his change-of-venue motion.

{¶ 50} The state countered that it would be premature to change venue before conducting voir dire, and the trial court agreed. The court expressed concern about the Repository’s publication of Mammone’s letter, but observed that “this case has not gotten nearly the type of publicity” that would require the court to grant the motion without even seeking “to review and do a voir dire of prospective jurors.” Without a thorough voir dire, the court deemed it impossible to determine whether media exposure was “so pervasive that an impartial jury [would] be impossible to seat.” As a result, the court denied Mammone’s motion as premature but left the issue open for further consideration “during and after the Voir Dire.”

{¶ 51} At the close of the venue hearing, the court advised Mammone, “I would expect you to refile at any time or reargue your motion for a change of venue.” Mammone never did so.

{¶ 52} We decline to allow Mammone to benefit from the publicity he created by submitting his own confession to the Repository. We conclude that the trial court’s denial of Mammone’s motion for a change of venue did not violate his rights to due process and to a fair trial by an impartial jury.

b. Right to a fair and impartial jury

{¶ 53} “[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). In a capital case, jurors must be impartial as to both culpability and punishment. Morgan v. Illinois, 504 U.S. 719, 726-728, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). “[W]hen it appears that a fair and impartial trial cannot be held in the court in which the action is pending,” Crim.R. 18(B) gives a trial court authority — sua sponte or upon a party’s motion — to transfer venue to another jurisdiction. See R.C. 2901.12(E); State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 33. One common argument for a venue change is that pretrial publicity has impaired a jury’s ability to be fair and impartial.

{¶ 54} The trial court has a “duty to protect” criminal defendants from “inherently prejudicial publicity” that renders a jury’s deliberations unfair. Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). However, “pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

{¶ 55} This court has repeatedly stated that “the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality” is “a careful and searching voir dire.” State v. Bayless, 48 Ohio St.2d 73, 98, 357 N.E.2d 1035 (1976); see State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 49 (listing cases). As a general rule, a trial court should therefore make “ ‘a good faith effort * * * to impanel a jury before * * * granting] a motion for change of venue.’ ” State v. Warner, 55 Ohio St.3d 31, 46, 564 N.E.2d 18 (1990), quoting State v. Herring, 21 Ohio App.3d 18, 486 N.E.2d 119 (9th Dist.1984), syllabus.

{¶ 56} That said, the United States Supreme Court has held that in certain rare cases, pretrial publicity is so damaging that prejudice must be conclusively presumed even without a showing of actual bias. See, e.g., Sheppard; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. To prevail on a claim of presumed prejudice, however, a defendant must make “ ‘a clear and manifest showing * * * that pretrial publicity was so pervasive and prejudicial that an attempt to seat a jury would be a vain act.’ ” Warner at 46, quoting Herring at syllabus; see Herring at 18 (citing judicial economy, convenience, and reducing taxpayer expense as reasons for a trial court to attempt to seat a jury prior to transferring venue to another location).

{¶ 57} We therefore must engage in a two-step analysis of venue in this case, determining first whether the jury was presumptively prejudiced against Mammone and, if not, whether Mammone has established actual juror prejudice. See Skilling v. United States, 561 U.S. 358, 381; Campbell v. Bradshaw, 674 F.3d 578, 593-594 (6th Cir.2012).

c. Prejudice should not be presumed in this case

{¶ 58} “A presumption of prejudice” because of adverse press coverage “attends only the extreme case.” Skilling at 381; see also Campbell at 593, quoting Foley v. Parker, 488 F.3d 377, 387 (6th Cir.2007) (prejudice from pretrial publicity “ ‘is rarely presumed’ ”).

{¶ 59} The doctrine of presumed prejudice “is the product of three Supreme Court decisions from the 1960’s”: Rideau v. Louisiana, Estes v. Texas, and Sheppard v. Maxwell. Hayes v. Ayers, 632 F.3d 500, 508 (9th Cir.2011). The United States Supreme Court most recently applied the doctrine in Skilling v. United States, in which the court analyzed four factors before rejecting a claim of presumed prejudice. Namely, the court considered (1) the size and characteristics of the community in which the crime occurred, (2) whether media coverage about the defendant contained “blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight,” (3) whether the passage of time lessened media attention, and (4) whether the jury’s conduct was inconsistent with a presumption of prejudice. Id. at 382-383; see United States v. Warren, 989 F.Supp.2d 494 (E.D.La.2013). However, Skilling did not hold that these four factors are dispositive in every case or indicate that these are the only relevant factors in a presumed-prejudice analysis.

{¶ 60} Here, we find that our analysis is best informed by comparing the facts of this case not to Skilling —in which prejudice was not presumed — but to the facts of the cases in which the United States Supreme Court has presumed prejudice. Two of these three cases, Estes and Sheppard, are not particularly instructive because they “involved media interference with courtroom proceedings during trial.” (Emphasis sic.) Skilling, 561 U.S. at 382, 130 S.Ct. 2896, 177 L.Ed.2d 619, fn. 14; see also Hayes, 632 F.3d at 508. In Estes, “extensive publicity before trial swelled into excessive exposure during preliminary court proceedings” as the media “overran the courtroom” and caused significant disruption. Skilling at 379-380. In Sheppard, “bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom.” Sheppard, 384 U.S. at 355, 86 S.Ct. 1507, 16 L.Ed.2d 600. The United States Supreme Court in Sheppard “upset the [defendant’s] murder conviction because a ‘carnival atmosphere’ [had] pervaded the trial.” Skilling at 380, quoting Sheppard at 358. There is no evidence of such interference here.

{¶ 61} The third case, Rideau, is most relevant to our analysis because in that case, the United States Supreme Court presumed prejudice based solely on pretrial publicity. In Rideau, the parish sheriffs office had filmed an interrogation of the defendant, during which he confessed to bank robbery, kidnapping, and murder. 373 U.S. at 724, 83 S.Ct. 1417, 10 L.Ed.2d 663. A 20-minute recording of the confession was broadcast three times on television within weeks of Rideau’s trial. Id. Audiences ranging from 20,000 to 53,000 people viewed the broadcasts, in a total population of approximately 150,000 people. Id. Under the circumstances, the United States Supreme Court concluded that “to the tens of thousands of people who saw and heard” Rideau “personally confessing in detail to the crimes,” the interrogation “in a very real sense was Rideau’s trial — at which he pleaded guilty to murder.” (Emphasis sic.) Id. at 726. As a result, the court concluded that the defendant’s subsequent trial amounted to a “hollow formality,” and it conclusively presumed prejudice. Id. at 726-727.

{¶ 62} As in Rideau, the instant case involves the widespread dissemination of a suspect’s supposed confession to crimes. Like the trial court, we believe that “the publication of the [confession] letter on the front page” of the Repository “is the thing that’s most troublesome” about the pretrial publicity in this case. A “defendant’s own confession [is] probably the most probative and damaging evidence that can be admitted against him.” Skilling at 383, quoting Parker v. Randolph, 442 U.S. 62, 72, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979) (plurality opinion). That said, pretrial publicity about a confession — even one that is inadmissible at trial — “is not in itself sufficient to require a venue transfer.” United States v. Warren, 989 F.Supp.2d at 501.

{¶ 63} Several constitutionally significant factors distinguish the print publication of Mammone’s confession from the repeated television broadcasts of Rideau’s confession that aired in 1961. First, the manner of publication differed in a crucial way. As the United States Court of Appeals for the Sixth Circuit has explained, “[T]he controlling factor in the [Rideau] decision was the fact that the public viewed the confession in a televised format.” (Emphasis sic.) DeLisle v. Rivers, 161 F.3d 370, 384 (6th Cir.1998) (en banc). “[Actually seeing and hearing the confession, as one would in a courtroom, would create a certainty of belief that would be difficult for the public to lay aside.” Id. Here, the public did not view Mammone confessing.

{¶ 64} Second, the circumstances of publication diverge from Rideau in significant ways. In Rideau, the defendant’s televised confession aired just weeks before the trial began, and roughly one-third of the entire local population viewed the broadcast. Here, Mammone’s confession letter was published a single time more than four months before his trial began. And Mammone failed to establish a level of exposure in Stark County similar to the exposure in Rideau. The trial court concluded that it was not futile to attempt to seat a jury given “the figures submitted by the Repository” about readership, “the population of Stark County,” and the considerations that the county has three newspapers and that many county residents subscribe to a fourth newspaper published outside the county. Mammone never supplemented the record or attempted to reargue this point.

{¶ 65} Third, unlike Rideau, in which the defendant played no role in the dissemination of his confession, here Mammone himself provided the confession letter to the Repository. He therefore is responsible for instigating the single most significant incident of pretrial publicity in his case, which more than anything increased that publicity to a level that he claims should have required the trial court to grant his motion to change venue.

{¶ 66} Finally, although Mammone claims that “[t]he venires were replete with potential jurors who had been extensively prejudiced by media accounts and had formed such strong opinions as to not be able or willing to change their minds,” the voir dire transcript reveals otherwise. Prejudice should not be presumed.

{¶ 67} The trial court was very conscious of pretrial publicity in Mammone’s case. Each potential juror was asked to complete an extensive publicity questionnaire, and the court permitted thorough questioning about publicity issues during small-group voir dire. Dozens of potential jurors stated that they knew nothing about the case. The court instructed the potential jurors during voir dire to disregard all information from outside sources and sought assurances that every juror would set aside any preexisting opinions and be fair to both sides. The potential jurors were reminded that the media is not always accurate, and they were warned to avoid additional publicity. Most importantly, the trial court excused potential jurors who expressed an inability to set aside preexisting opinions.

{¶ 68} Under these circumstances, we cannot conclude that extensive pretrial publicity rendered Mammone’s trial a “hollow formality.” Compare Rideau, 373 U.S. at 726, 83 S.Ct. 1417, 10 L.Ed.2d 663. As a result, we hold that this is not one of the extraordinary cases in which prejudice should be presumed based solely on the amount and nature of the pretrial publicity alone.

d. Actual prejudice does not exist in this case

{¶ 69} Having concluded that prejudice should not be presumed here, we next analyze whether actual prejudice exists. Because Mammone did not raise this objection in the trial court or seek a change of venue at any point after the pretrial venue hearing, we review this claim for plain error. See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 61 (reviewing change-of-venue claim for plain error when defendant had waived the argument). We take notice of plain error “with the utmost caution, under exceptional circumstances and only to prevent a miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. To prevail, Mammone must show that an error occurred, that the error was plain, and that but for the error, the outcome of the trial clearly would have been otherwise. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 70} Mammone levies several charges of actual bias due to pretrial publicity among members of both the jury pool and the seated jury and argues that the trial court should have ordered a change of venue. For the reasons below, we find no error in this regard, let alone plain error.

{¶ 71} First, Mammone argues that he was denied a fair trial because almost every seated juror “had either read, heard, discussed or [seen] an account of the deaths of the Mammone children and their grandmother.” But actual bias is not established simply by pointing out some degree of media exposure. See, e.g., Trimble at ¶ 63-64; State v. Maurer, 15 Ohio St.3d 239, 251, 473 N.E.2d 768 (1984). A juror -will be considered unbiased “if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin, 366 U.S. at 723, 81 S.Ct. 1639, 6 L.Ed.2d 751.

{¶ 72} Second, Mammone objects that four specific seated jurors — juror Nos. 372, 438, 448, and 461 — were biased against him. But juror Nos. 438 and 448 testified that they had not formed any opinions about the case before trial. Juror Nos. 372 and 461 admitted that they had formed some preliminary opinions, but they assured the judge that they could set these opinions aside and be fair.

{¶ 73} The trial judge is “in the best position to judge each juror’s demeanor and fairness” and thus to decide whether to credit a potential juror’s assurance that he or she will set aside any prior knowledge and preconceived notions of guilt. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 64. One factor in determining whether a trial judge reasonably accepted such assurances is how many other potential jurors admitted a disqualifying prejudice:

In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others’ protestations [of impartiality] may be drawn into question; for it is then more probable that they are part of a community deeply hostile to the accused, and more likely that they may unwittingly have been influenced by it.

Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Here, there is no evidence of such unwitting influence. For example, in the first small-group voir dire session of 12 potential jurors, only two admitted to a disqualifying prejudice based on pretrial publicity and were excused. Upon careful examination of the record, we defer to the trial court’s reasonable conclusion that the four jurors now challenged could be fair and impartial jurors.

{¶ 74} Finally, we are not persuaded by Mammone’s vague claim that the entire jury was tainted because those jurors who had been exposed to extensive publicity shared “innumerable opinions about the case” with other jurors. As explained above, Mammone has not established that any of his jurors were actually biased by pretrial publicity. Moreover, he presents no evidence that any juror improperly influenced another juror by stating an inappropriate opinion. Under the circumstances, we reject Mammone’s contention as meritless and unsupported by the record.

{¶ 75} For these reasons, we reject proposition of law I.

2. Juror Bias in Favor of the Death Penalty

{¶ 76} In his second proposition of law, Mammone argues that two of his trial jurors, juror Nos. 418 and 448, “were unfairly biased in favor of the death penalty” and made it apparent during their responses to questioning during voir dire that they “would automatically vote for the death penalty once they found Mammone guilty of the facts in this case.” He asserts that this bias violated his constitutional rights to due process, to receive a fair and reliable sentence, and to be free from cruel and unusual punishment. See the Eighth and Fourteenth Amendments to the U.S. Constitution; Ohio Constitution, Article I, Sections 9, 10, and 16.

{¶ 77} The United States Supreme Court and this court have long recognized that a defendant’s right to a fair and impartial jury extends to capital sentencing. Accordingly, “[a] prospective juror in a capital case may be excused for cause if [the prospective juror’s] views on capital punishment would ‘ “prevent or substantially impair the performance of [the prospective juror’s] duties as a juror in accordance with [the prospective juror’s] instructions and * * * oath.” ’ ” State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 38, quoting Wainmight v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). If a juror would “automatically vote for the death penalty in every case,” the juror cannot be fair and impartial because he or she “will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require [the juror] to do.” Morgan v. Illinois, 504 U.S. at 729, 112 S.Ct. 2222, 119 L.Ed.2d 492. “If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.” Id.

{¶ 78} When a defendant challenges a prospective juror for cause, the trial court’s ruling “will not be disturbed on appeal unless it is manifestly arbitrary and unsupported by substantial testimony, so as to constitute an abuse of discretion.” State v. Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997). However, a defendant who does not present a challenge for cause “waive[s] any alleged error in regard to [that] prospective juror.” Jackson at ¶ 39; see State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 102. Under those circumstances, plain-error review applies. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 89-90.

a. Juror No. 418

{¶ 79} Mammone argues that juror No. 418 was “unfairly biased in favor of the death penalty” and “could not fairly consider all the possible sentencing options in this case.” Mammone did not challenge juror No. 418 for cause, so we review this claim of bias for plain error. See id.

{¶ 80} Juror No. 418’s views on the death penalty were explored in several ways during voir dire. On her written questionnaire inquiring into her views on capital punishment, juror No. 418 stated her belief “that the punishment should fit the crime” and stated that if a defendant “is found guilty without doubt of taking another person’s life, he indeed is not entitled to live out his own life.” She indicated that the death penalty is “[generally the proper punishment” for aggravated murder, “with very few exceptions.” However, she acknowledged that “there may be circumstances — such as, mental disability — ” in which it is not appropriate. Ultimately, juror No. 418 expressed her belief “that the death penalty is appropriate in some capital murder cases.” (Emphasis added.)

{¶ 81} During voir dire, defense counsel questioned juror No. 418 to determine whether she would automatically impose a death sentence if Mammone were convicted. The juror again explained that she generally thinks “punishment should fit the crime,” but that she does not firmly believe that every murderer should receive the death penalty. She observed that “sometimes there are circumstances that you need to think about,” such as “a mental issue” or “those types of things.” In the absence of such circumstances, however, juror No. 418 stated that “it should be an eye for an eye definitely, and especially where there [are] small children involved where it sounds like there was [here].”

{¶ 82} Juror No. 418 never indicated that she would automatically impose the death penalty if Mammone were convicted. Her questionnaire and her verbal responses indicated a general preference for the death penalty for those who commit aggravated murder, but she consistently acknowledged exceptions — both before and after the trial court explained the two phases of a capital trial and the jury’s duty to weigh aggravating circumstances and mitigating factors. See State v. Stojetz, 84 Ohio St.3d 452, 460, 705 N.E.2d 329 (1999) (rejecting argument that a juror was an “automatic death penalty juror” when the juror had “expressed a willingness to take into consideration other factors, such as defendant’s background and the nature and circumstances of the crime, before deciding to render a death verdict”).

{¶ 83} “[DJeference must be accorded to the trial judge who sees and hears the juror.” Id. Here, neither the court nor the parties expressed any concern that juror No. 418 was an “automatic death” juror, even as they discussed concerns about other prospective jurors in the same small-group voir dire. Under these circumstances, we defer to the trial judge’s decision to seat juror No. 418 and find no error with respect to her service.

b. Juror No. U8

{¶ 84} Mammone also argues that juror No. 448 was “unfairly biased in favor of the death penalty” and “could not fairly consider all the possible sentencing options in this case.” As with juror No. 418, Mammone did not challenge juror No. 448 for cause, so plain-error review applies. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 89-90.

{¶ 85} During larger-group voir dire, the trial judge flagged juror No. 448 as a juror to discuss with counsel. Juror No. 448 had responded to a question from defense counsel by stating, “I think I would have some problem with” being fair given the circumstances of the case. Later, the court and counsel for both sides discussed whether to have this juror return for small-group voir dire. The prosecutor indicated that she “want[ed] the opportunity to explore why” juror No. 448 had “said I can’t be fair.” The court agreed that juror No. 448 should remain in the jury pool, and the defense made no effort to excuse the juror.

{¶ 86} Juror No. 448 first indicated his attitude toward the death penalty on his written questionnaire asking for his views on that subject. His responses revealed some tension in his thoughts about capital punishment. On the one hand, juror No. 448 wrote that he supported “the state law and right to enforce the death penalty” — which he characterized as a “God-ordained law of the land” — and he indicated agreement with the view that the death penalty is the “proper punishment in all cases where someone is convicted of aggravated murder.” On the other hand, he also wrote, “I am not sure due to my religious views if I could give a death penalty verdict.”

{¶ 87} During small-group voir dire, the judge and both parties explored this tension. Juror No. 448 assured the judge that even though he had “some religious problems with it,” he recognized the state’s authority to impose the death penalty and “would want to follow [the court’s] orders.” He later explained that even though his church “in general leans toward being” pacifistic, he “believes that an eye for an eye is in the Bible.”

{¶ 88} During prosecution questioning, juror No. 448 expressed a preference for the death penalty in all cases of aggravated murder. But he later clarified that he could not say for sure whether if there were a conviction he would sentence Mammone to death; he “would have to look at the evidence.” The prosecutor explained that mitigating factors “are things that might cause [a juror] to consider a sentence less than death,” and juror No. 448 responded that he would follow “the law of the land” and “would consider” such a sentence. The prosecutor again asked, “So you’ll follow the Judge’s instructions?” The juror said yes. But to defense counsel he again indicated in response to further questioning that if Mammone were convicted of aggravated murder, he “would tend or would vote for capital punishment.”

{¶ 89} The judge and the parties did not later specifically analyze juror No. 448’s attitudes about the death penalty because neither party challenged him for cause. However, the trial court did comment on juror No. 448’s responses when analyzing a challenge to juror No. 412. The court observed that juror Nos. 412 and 448 had both “given answers which would indicate a natural inclination to lean towards the death penalty.” But the court went on to explain that “[sjometimes in a vacuum it’s hard for jurors to articulate how they feel about [the death penalty], and so it comes down to the basics of whether or not they would follow the law fairly, and that’s why I pushed them on fairly.” The court then denied the challenge to juror No. 412, and there was no further discussion of juror No. 448.

{¶ 90} The trial judge’s comments are consistent with this court’s past observations regarding the difficulty of having prospective jurors articulate their views on capital punishment during voir dire. Many prospective jurors in a death-penalty case are being asked “to face their views about the death penalty” “for the first time” during voir dire. Williams, 79 Ohio St.3d at 6, 679 N.E.2d 646. “[I]t is not uncommon for jurors to express themselves in contradictory and ambiguous ways” in this context, “both due to unfamiliarity with courtroom proceedings and cross-examination tactics and because the jury pool runs the spectrum in terms of education and experience.” White v. Mitchell, 431 F.3d 517, 537 (6th Cir.2005), citing Patton v. Yount, 467 U.S. 1025, 1039, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Moreover, even when a prospective juror does have “very strongly held views” about the death penalty, he or she likely has “never had to define them within the context of following the law.” Williams at 6.

{¶ 91} During voir dire, both parties may be “attempting to push a prospective juror into a certain position in order to remove him or her from the jury.” Id. at 7-8. Accordingly, “it is often necessary for the trial judge to step in and provide some neutral, nonleading instructions and questions in an attempt to determine whether the prospective juror can actually be fair and impartial.” Id. at 8. It then falls naturally on the “trial judge to sort through [the] responses and determine whether the prospective jurors will be able to follow the law.” Id. at 6.

{¶ 92} In this case, neither the judge nor the parties ultimately expressed reservations that juror No. 448 was biased in favor of the death penalty. When asked, the juror agreed that he could follow the trial judge’s instructions on mitigating factors. The judge was able to “see[ ] and heart ]” juror No. 448, Waimoright v. Witt, 469 U.S. at 426, 105 S.Ct. 844, 83 L.Ed.2d 841, and therefore had “the benefit of observing [the juror’s] demeanor and body language.” Williams, 79 Ohio St.3d at 8, 679 N.E.2d 646. The judge was satisfied that juror No. 448 would follow instructions, and we defer to that judgment. See Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, at ¶40 (no abuse of discretion in denying challenge for cause when “a juror, even one predisposed in favor of imposing death, states that he or she will follow the law and the court’s instructions”).

{¶ 93} For these reasons, we reject proposition II.

B. Trial-Phase and Mitigation-Phase Issues

1. Gruesome Photographs

{¶ 94} Mammone argues in his fifth proposition of law that the trial court violated his constitutional rights by admitting “shocking and gruesome photographs” that were “irrelevant, unnecessary, cumulative, [and] repetitive.” Specifically, he challenges the admission of two categories of photos: (1) crime-scene photos of the dead children in their car seats and (2) autopsy photos of the children. According to Mammone, we should order a new trial or vacate his death sentence because these photos deprived him of due process, a fair trial, and a reliable sentencing determination. See the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution; Ohio Constitution, Article I, Sections 2, 9,10, and 16. We reject this contention.

{¶ 95} Under Evid.R. 403(A), a trial court must exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Under Evid.R. 403(B), a trial court may exclude evidence “if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.”

{¶ 96} In the context of capital trials, however, we have established “a stricter evidentiary standard” for admitting gruesome photographs and have “strongly caution[ed] judicious use.” State v. Morales, 32 Ohio St.3d 252, 257-258, 259, 513 N.E.2d 267 (1987), citing State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768, at paragraph seven of the syllabus. A gruesome photograph is admissible only if its “probative value * * * outweigh[s] the danger of prejudice to the defendant.” Morales at 258. Unlike Evid.R. 403, which turns on whether prejudice substantially outweighs probative value, this standard requires “a simple balancing of the relative values” of prejudice and probative value. Id. And even if a photo satisfies the balancing test, it can be “neither repetitive nor cumulative in nature.” Id.; see State v. Thompson, 33 Ohio St.3d 1, 9, 514 N.E.2d 407 (1987). A trial court’s decision that a photo satisfies this standard is reviewable only for abuse of discretion. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 69; Morales at 257; Maurer at 264.

a. Photos of the crime scene

{¶ 97} First, Mammone challenges the introduction of two crime-scene photos, Exhibits 2H and 21, showing Macy and James dead in their car seats. These photos depict the condition in which police officers found the child victims at the time of Mammone’s arrest. Mammone unsuccessfully sought to exclude these photos before trial and again objected to them at trial.

{¶ 98} Exhibits 2H and 21 had significant probative value. Each photo “illustrated the testimony of the detectives who described the crime scene,” and also was “probative of [the defendant’s] intent and the manner and circumstances of the victims’ deaths.” Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 134, 136; see also State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 26; Morales at 258. Detectives Weirich and Risner testified that upon arriving at the scene, they found the children dead in the back seat of Mammone’s car. Macy and James had been stabbed in the throat while strapped into their car seats, unable to move.

{¶ 99} Mammone nevertheless claims that these photos were “completely unnecessary” because he never denied murdering Macy and James and the state could have proven cause of death “in a less gruesome manner.” But we have repeatedly rejected similar arguments in the past. See Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, at ¶ 70; Maurer, 15 Ohio St.3d at 264-265, 473 N.E.2d 768. The state had the burden to prove that Mammone purposely killed the children, and these photos were probative of that issue. See Maurer at 265, quoting State v. Strodes, 48 Ohio St.2d 113, 116, 357 N.E.2d 375 (1976), vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978) (“ ‘[t]he state must prove, and the jury must find, that the killing was purposely done’ ”).

{¶ 100} Under these circumstances, we conclude that the probative value of these two photos outweighed the danger of unfair prejudice to Mammone and that the photos “were neither repetitive nor cumulative in nature.” Morales, 32 Ohio St.3d at 258, 513 N.E.2d 267. The prosecution selected, and the trial court admitted, a single photo of each child victim from 34 available crime-scene photos showing Mammone’s car with the children inside. These two photos were published to the jury only once, although two witnesses authenticated them during their testimony. Accordingly, the trial court did not abuse its discretion by admitting Exhibits 2H and 21.

b. Autopsy photos

{¶ 101} Mammone also challenges the admission of autopsy photos “of very young children.” The trial court admitted six autopsy photos of James’s injuries, Exhibits 5A-F, and seven of Macy’s, Exhibits 6A-G. Defense counsel unsuccessfully sought to exclude these photos both before trial and during the coroner’s testimony at trial. But notably, Mammone personally thanked the court during his allocution “for the discretion used in, ah, limiting the, ah, display of autopsy photos for the deceased in this matter.”

{¶ 102} Exhibits 5A-F and 6A-G had significant probative value. As mentioned above, the state was required to prove that Mammone purposely killed Macy and James. See Maurer, 15 Ohio St.3d at 265, 473 N.E.2d 768. The number and location of the children’s injuries and the resulting wounds were all probative evidence of a purpose to cause death. Id. In addition, each photo supported and illustrated the coroner’s testimony about the wounds inflicted on Macy and James and the cause of their deaths. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 148; Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, at ¶ 26; Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, at ¶ 72.

{¶ 103} As with the crime-scene photos, Mammone contends that the prejudicial impact of showing the jury gruesome autopsy photos of young children outweighed this probative value. Mammone asserts that the photos were unnecessary because he did not dispute the cause of the children’s deaths and because the state could have used testimony alone to prove the children’s injuries. But, as explained above, the state bears the burden of proof and it has no obligation to meet that burden in the least gruesome way. Consistent with our previous holdings in cases involving children, we conclude that the prejudicial impact of these autopsy photos did not outweigh their probative value. See, e.g., Vrabel at ¶ 69-72; Trimble at ¶ 142-145, 155.

{¶ 104} Further, these photos were neither repetitive nor cumulative. At trial, the state offered seven of the more than 100 photographs taken during Macy’s autopsy. Each photo presents a different injury. Exhibit 6A depicts Macy as she arrived at the coroner’s office, still strapped in her car seat. Exhibits 6B, 6D, and 6E show different knife wounds: (1) three wounds to Macy’s left lower face and upper neck, severing her esophagus and trachea, (2) a cluster of three wounds on Macy’s left neck, and (3) an exit wound. Exhibits 6C and 6F depict defensive wounds on Macy’s right hand and right leg, respectively. Finally, Exhibit 6G shows finger-shaped bruises on Macy’s left leg, consistent with someone having a firm grip on that spot.

{¶ 105} Likewise, each of the six autopsy photos of James depicts something different: (1) Exhibit 5B shows a defensive wound on James’s right palm, (2) Exhibit 5E depicts a large stab wound on James’s neck, transecting his esophagus and trachea and cutting through to his back, (3) Exhibit 5F depicts the exit wound on James’s upper left back, (4) Exhibit 5A captures a close-up of James’s hands, (5) Exhibit 5C shows a view of the stab wound on his neck from the other side of his head, and (6) Exhibit 5D shows injuries on his right arm, including the defensive wound on his right hand. Like the autopsy photos of Macy, none of these photos is cumulative or repetitive.

{¶ 106} For these reasons, we find no abuse of discretion in the admission of these autopsy photos. Mammone’s fifth proposition of law fails.

2. Prosecutorial Misconduct

{¶ 107} In his fourt