State v. Dean (146 Ohio St. 3d 106, 2015)

LANZINGER, J.

{¶ 1} Jason Dean was found guilty of all charged offenses and was sentenced to death for the aggravated murder of Titus Arnold and the attempted murder of six other people. On direct appeal, we reversed Dean’s convictions, vacated the death sentence, and remanded the case for a new trial. See State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97.

{¶ 2} In this direct appeal of Dean’s convictions upon retrial, we affirm the convictions and sentence of death.

I. Trial evidence

{¶ 3} Evidence introduced at trial showed that between April 10 and 14, 2005, Dean shot at two people at a Mini Mart convenience store, committed a drive-by shooting, and was responsible for the murder of Titus Arnold.

A. Shooting at the Mini Mart

{¶ 4} The prosecution introduced evidence showing that during the early morning of April 10, 2005, Andre Piersoll and Yolanda Lyles drove to a Mini Mart. Lyles parked in front of the Mini Mart. According to Lyles, Dean approached the car and tried to sell them some pills while she had her money out. Following this conversation, Dean walked over to a two-door car, where a “tall white boy” was waiting, and left.

{¶ 5} Piersoll knew Dean and testified that he first saw him inside the store. Piersoll got some snacks and returned to the car. According to Piersoll, Dean came to the car while he and Lyles were eating and talked to him about “some Valiums.” Piersoll said he did not want to buy them.

{¶ 6} Lyles testified that she and Piersoll remained parked outside the Mini Mart for another five or ten minutes. While they were talking, Dean came around the corner of the Mini Mart and approached their car. Dean told Lyles, “Give me your money,” and started shooting at the car. Several bullets hit the windshield. Piersoll told Lyles that he had been shot. Lyles then left the parking lot and quickly drove to Mercy Hospital. Lyles noticed that until she was about a block from the hospital, the car with the shooter continued to follow them.

{¶ 7} At the hospital, Piersoll was treated for a gunshot wound to the left arm and an abrasion to the right cheek. A spent .25-caliber bullet was retrieved from the sleeve of Piersoll’s jacket. Lyles had scratches on her face but did not require treatment.

{¶ 8} The police recovered two .25-caliber shell casings outside the Mini Mart. Timothy Duerr, a forensic scientist assigned to the Firearms and Toolmarks Identification Section of the Miami Valley Crime Laboratory, determined that the two casings had been fired from the same firearm.

{¶ 9} On April 21, Detective Darwin Hicks prepared a photographic spread and showed it to Piersoll. Piersoll identified Dean as the person who shot him.

{¶ 10} Crystal Kaboos, Dean’s girlfriend at the time, testified that he showed her a newspaper article about the Mini Mart shooting. He then said that he was the shooter. Dean told Kaboos that he “ran up on the car and just fired through the windshield at the person.”

B. Drive-by shooting on Dibert Avenue

{¶ 11} Kaboos testified that on the evening of April 12, 2005, Dean talked with his brother, Mark Dean, about looking for a car and a house on Dibert Avenue in Springfield. Later that evening, Dean, Joshua Wade, and Kaboos drove to Dibert Avenue in Dean’s Buick Riviera. According to Kaboos, Wade was driving, Dean was in the front passenger seat, and she was in the back seat. Kaboos stated that Wade was armed with a “black .45” and Dean had a “smaller, silver gun.” Kaboos asked Dean and Wade what they were doing, and they said that they were “just looking for a house and a car.”

{¶ 12} Kaboos stated that when they arrived at Dibert Avenue, Wade turned off the headlights, and they drove down the street. Kaboos saw Dean and Wade stick their guns out the passenger window and fire several shots. Kaboos closed her eyes and covered her ears and ducked down in the back seat. She then felt the car speed up and turn around. But Kaboos stated that that was the last thing she remembered.

{¶ 13} Laroilyn Byrd testified that she and her sister, Jinada Madison, who lived at 604 Dibert Street, were in the living room when the shots were fired and that bullets started flying through the room. The two women took cover, and Byrd called 9-1-1 to report the shooting. Neither Byrd nor Madison was hit. Byrd then went outside and saw people come onto the porch at 609 Dibert Avenue, the house across the street.

{¶ 14} Seven people were inside the home at 609 Dibert. Shani Applin testified that Devon Williams Sr., his girlfriend, Shanta Chilton, Shanta’s brother, Hassan Chilton, Applin, and Applin’s young child, JaeAda Applin, were in the front room watching TV. Shanta’s two young children, Dyier and Samiara, were in bed inside the house.

{¶ 15} According to Shanta, Williams’s car was parked across from the house, partially in front of Byrd’s house at 604 Dibert. After hearing the gunfire and his car alarm go off, Williams and Shanta went outside to look at his car. Hassan, Applin, and JaeAda went out to the front porch. Williams noticed that his car had numerous bullet holes in it, particularly near the gas tank.

{¶ 16} Shanta testified that while they were examining Williams’s car, she noticed a car coming toward them. Shanta ran back to the house. As she got to the porch, the car stopped in front of the house. Shanta then saw a “white guy” in the car look at her and start shooting. When the gunfire erupted, everyone on the porch dove for cover. No one was injured by the gunfire, but Hassan later noticed a bullet hole in his jacket.

{¶ 17} Williams testified that he had remained by his car, an Oldsmobile, when the shooting started again. Williams saw a young person shooting at the house but did not see anyone else in the car. He later identified the shooter as Wade.

{¶ 18} Investigators found five bullet holes in the left rear quarter panel of the Oldsmobile. In addition, a .25-caliber bullet was recovered from the car’s rear window trim. Investigators also identified two bullet holes in the living-room wall at 604 Dibert. Neither bullet was recovered.

{¶ 19} Investigators found evidence that four bullets struck the front-porch area at 609 Dibert. Timothy Shepherd, a forensic criminalist with the Springfield Police Department Crime Laboratory, determined that a bullet recovered from the front-porch pillar was “probably” a .40-caliber Smith & Wesson bullet. Shepherd also determined that a spent bullet found inside the house was a .40-caliber Smith & Wesson bullet. However, no comparisons to a weapon could be made because “much of the striations and actually, the bullet jacket had been removed.”

{¶ 20} Before trial, Dean told Manns that he had been paid to do the drive-by shooting. Manns testified that Dean said that he “drove down the street, shot up the house, turned around at the end of the street, came back and shot at people coming out of the house; and one of them was holding a baby in his arms that he almost shot because the bullet actually went through his shirt sleeve.”

C. Murder of Titus Arnold

{¶ 21} Kaboos testified that in early April 2005, she was living with Dean in his parents’ home on East Liberty Street in Springfield. According to Kaboos, Dean and Wade would often go out at night and leave her at home. Dean told her that they went to local bars to “lure people out and rob them of their money.”

{¶ 22} Kaboos testified that on the night after the drive-by shooting, Dean told her that he and Wade were going to the Nite Owl Tavern to rob someone. She did not go with them. The tavern’s video surveillance system showed that Dean and Wade entered the tavern about 11:45 p.m. They left at 11:47 p.m.

{¶ 23} According to Titus Arnold’s coworker, Arnold left his work at “Visions for Youth,” a group home for troubled youth on West High Street sometime before midnight on April 13. She said that he was wearing a gold-colored jacket and carrying a backpack.

{¶ 24} Amrosetta Haile testified that she was driving on West High Street that night when a speeding car passed her and pulled into a nearby parking lot. She saw a tall man and a shorter man get out of the car and start chasing a man wearing a gold coat. She saw the taller man run back to the passenger side of the car, then saw “two blue flashes,” heard gunshots, and saw the man in the gold coat fall down. According to Haile, the two men “hovered over the body for a second” and then ran back to their car and drove away.

{¶ 25} Allison Nawman and her husband, Theador Panstingel, who lived at the corner of High and Race Streets, heard a shot outside their home at about the same time. According to Nawman, she looked out the window and saw a man she thought was about five feet six inches tall standing over a person on the ground. Nawman and her husband went outside, and she saw that man running down High Street toward a car. It appeared to her that someone was already in the car, because she saw the brake lights go on. She then saw the man who had been running get into the car, and the car left.

{¶ 26} About the same time that evening, Terri and Kari Epperson were at their mother’s home on West High Street. Terri looked out an upstairs window and noticed that a car had pulled up across the street. She saw a man running down the street with two men chasing him. Terri then went outside and saw a person get out of the driver’s side of the car, run halfway down the street, and shoot twice at the man who was running. When the shooter looked around, Terri recognized him as her cousin, Josh Wade. Wade returned to the driver’s side of the car and drove away.

{¶ 27} Kari Epperson also saw the shooting. She heard squealing tires, looked out the window, and saw a car parked across the street with the driver’s side door open. Kari then saw a man run down High Street and fire a gun twice. The shooter turned around, and Kari recognized him as Josh Wade. He returned to the driver’s side of the car and left. Kari stated that she did not see anyone else with Wade.

{¶ 28} Shortly after the shooting, police and paramedic units arrived. Arnold’s body was found near a curb in front of a pickup truck. No money was found in his clothing or his backpack.

D. Beginning of murder investigation

{¶ 29} Investigators found two .40-caliber shell casings near each other on West High Street. The closest shell casing was found more than 61 feet from Arnold’s body. Investigators also found a projectile in the driver’s side door of the pickup truck near where Arnold’s body was found. A live .25-caliber bullet was found near the parking lot across the street from where the Eppersons lived.

{¶ 30} Early in the morning of April 14, Dean and Wade went to Mark Dean’s house. Mark and Kevin Bowshier were there, getting high on cocaine. According to Bowshier, Dean and Wade “held up a bullet shell and threw it.” Dean said that they had smoked somebody and robbed him. Bowshier testified: “They had ran up behind and tackled him, and I know his gun didn’t go off; and then the kid Josh shot him, shot Titus.” Bowshier recalled that Dean and Wade said they took less than $10 from the victim.

{¶ 31} Kaboos testified that she overheard Dean and Wade on the morning of April 15 laughing over a newspaper article about Arnold’s murder. Dean told her to read the article. According to Kaboos, Dean said that they were driving down the street and saw an individual walking by himself. They stopped the car, pulled out their guns, and ordered Arnold to lie on the ground. Arnold started to run, and Dean tried to shoot him but his gun was on safety. Wade then said he had a bigger gun and shot Arnold. Dean said they robbed Arnold but got only six dollars. Kaboos testified that Dean was “bragging with a smirky grin on his face, like [he was] proud of what they had done.”

{¶ 32} Around the same time, Dean announced that he wanted everyone in his home to watch a television newscast about the Arnold murder. According to Kaboos, “Dean was standing there with his arms crossed watching it, and he was just smiling and laughing about it.”

{¶ 33} Kaboos stated that Dean carried a smaller silver handgun with wood on the handle and that Wade carried a larger caliber handgun that was originally Dean’s. Shortly after the murder, Kaboos saw Dean trade the smaller gun for drugs.

{¶ 34} Kaboos testified that shortly after the night of the murder, she ended her relationship with Dean and left the residence after Dean reunited with his former girlfriend, Ronda Sions. On April 20, Kaboos contacted the Springfield police and provided them with information about Arnold’s murder.

E.Dean’s arrest

{¶ 35} On April 21, Springfield police executed a search warrant at Dean’s residence. Detective Douglas Estep testified that he encountered Dean in the kitchen. The detective testified that Dean kept looking and smiling in the general direction of a stand behind him. A handgun was found on the shelf in the stand. The detective testified that the .40-caliber handgun admitted into evidence appears to be the gun he saw on the stand.

{¶ 36} During the search, the police found six live .380-caliber rounds in the pocket of a pair of pants, as well as an empty box of .40-caliber bullets and a box containing 18 live rounds of ammunition in a bucket in a bedroom closet. In addition, the police found a title for the Buick Riviera. The back of the title showed that Dean was the transferee. The car was parked outside Dean’s house.

F.Forensic evidence

{¶ 37} Dr. Robert Stewart, a Clark County deputy coroner, conducted the autopsy of Arnold. Arnold suffered a gunshot wound in the upper back at the base of his neck. The bullet cut the spinal cord in half and exited above the right eyebrow. Stewart stated that the gunshot wound was consistent with the victim leaning over and running from the assailant. Dr. Stewart determined that this gunshot wound was the cause of death.

{¶ 38} Timothy Shepherd, the criminalist, examined the two shell casings found at the murder scene and determined that they had been fired from the .40-caliber handgun that was found at Dean’s residence. Shepherd also examined a projectile removed from the pick-up truck near where Arnold’s body was found. He determined that it was “probably a .40 [Smith & Wesson] caliber bullet * * * fired from a weapon that had seven lands and grooves with a left-hand twist.” Shepherd was unable to identify the weapon that fired the bullet because the projectile was deformed. He testified that the class characteristics of the .40-caliber handgun found at Dean’s residence was seven lands and grooves with a left-hand twist.

G.Dean’s correspondence with Sions and Manns

{¶ 39} At trial, Dean’s girlfriend, Ronda Sions, testified that Dean told her that he and Wade were looking for a man known as O-Z on the night of Arnold’s murder. She said that Dean said they had had a run-in and they had it out for him. According to Sions, Dean called the murder a case of mistaken identity and said that they intended to shoot O-Z, not Arnold.

{¶ 40} Sions and Dean exchanged numerous letters while he was in jail. In one letter, Dean claimed that his anger and lack of control were the reasons a man he “never laid eyes on before is in his grave and * * * was shot down like an animal for no reason other than he was at the wrong place at the wrong time.” Dean added, “What’s so sad and it scares me when I think about it is the fact that I don’t care.”

{¶ 41} In another letter, Dean wrote: “I just lost control. I made a lot of mistakes and I’m gonna have to pay for them. And it is nobody’s fault but my own.”

{¶ 42} In yet another letter, Dean wrote: “Most of this shit is my fault. If I hadn’t gotten myself into all of this, none of this shit would be happening.”

{¶ 43} Dean also wrote to Sions: “Try to stay out of trouble. Baby, I don’t need no more blood on my hands or my conscience.”

{¶ 44} Dean’s letters to Sions also described his close relationship with Wade. Dean wrote:

That’s some crazy shit you was telling me about Josh is going to try and say he was scared of me. That’s some bullshit. I will call so many witnesses to testify that he looked up to me and that I treated him like a son. I let him wear my clothes, fed him and Luther, his little brother. I helped his whole family. * * * If he would just keep his fucking mouth shut, everything would be a lot better. What he and his people fail to realize is that every time he opens his mouth, he not only hurts me but himself. He is just digging himself a deeper hole. They got him so scared with this life without parole bullshit that he will say whatever they want him to say.

{¶ 45} Manns, a fellow inmate, testified that Dean talked to him about Arnold’s killing, saying: “He jumped out the car and went to rob him. Titus Arnold turned to run. He tried to fire his gun. His gun jammed, and Josh Wade jumped out of the car and shot two shots. One went into a car door, and one went into Titus Arnold’s head and killed him.”

{¶ 46} Dean also wrote several letters to Manns. In one letter, Dean wrote:

They act like I killed the president. * * * I had one hell of a time. I know that sounds crazy but you know me. I had a nice ass buick rivera power everything I had a nice system and everything * * * I was off the hook, you wouldn’t believe the shit I was doing every day. I got a lot of good stories to tell you when I get there, I say that because like I said, it don’t look good for me. * * * It was just me and my boy Joshua Wade you seen in the paper they got him charged with the same thing they got me charged with and they are gonna try him as an adult. I’m really worried about him if you know what I mean?

{¶ 47} In another letter to Manns, Dean wrote:

You are absolutely right about my situation being hopeless, but that’s life. I made my choices and I knew the consequences of my actions. I have lived my life the way I wanted, I have always done what I wanted to do when I wanted to do it and fuck what anybody had to say about it.

{¶ 48} And in yet another letter to Manns, Dean wrote:

I’m a realist bro, and I know what is in front of me and I’m gonna face it head on, you understand where I’m coming from? Because the way the law states is it doesn’t matter if I pulled the trigger or not, you know that, not to mention the fact that I’m 30 and dude was 16, I’m supposed to be the responsible adult you know.

H. Dean’s phone calls

{¶ 49} The state also played a recording of a telephone call that Dean made from prison to an unidentified male. During this phone call, Dean states, “They’re not offering no deal. * * * He’s going for the death penalty, period.” Dean then says that the reason no deal was being offered was because they had killed a “moon cricket.” Dean also discussed Wade’s involvement in the murder and the strength of the state’s case, stating: “Man, this chick seen everything. She seen it happen. They don’t got me at the scene or nothing at that murder. She done pointed the dude out at the corner (inaudible) and everything.” Dean added: This “witness came forward and ain’t nothing I can do to help him now. I mean, of course, they gonna ask me, do you know anything about this. How did you get the murder weapon in your house * * *. I bought the gun off the street.”

{¶ 50} The state also introduced the transcript of another phone call between Dean and an unidentified male. In that call, Dean complained about Wade’s statements to the police and Kaboos, stating that Wade “said all kinds of shit” and “told that girl everything, man,” and “[tjhat’s how that bitch knows everything ’cause he told her.”

I. Defense case

{¶ 51} The defense called no witnesses and presented only a photograph of Wade for the jury’s consideration.

II. Case history

{¶ 52} Dean was indicted on two counts of aggravated murder. Count Twelve charged Dean with the aggravated murder of Arnold with prior calculation and design. Count Thirteen charged him with the aggravated murder of Arnold while committing or attempting to commit aggravated robbery. Both counts contained death-penalty specifications alleging that the murder was a part of a course of conduct involving multiple murders or attempted murders, R.C. 2929.04(A)(5), and that the murder was committed while committing or attempting to commit aggravated robbery and Dean, while not the principal offender, committed the aggravated murder with prior calculation and design, R.C. 2929.04(A)(7).

{¶ 53} Dean was indicted on six counts of attempted murder: Count One— Piersoll, Count Two — Lyles, Count Seven — Shanta Chilton, Count Eight — Has-san Chilton, Count Nine — Shani Applin, and Count Ten — JaeAda Applin.

{¶ 54} Dean was also charged with eight additional counts: Counts Five and Six — discharging a firearm into an occupied structure, Counts Three and Fourteen — committing or attempting to. commit aggravated robbery, and Counts Four, Eleven, Fifteen, and Sixteen — having a weapon under a disability. Additionally, firearm specifications were included in 12 counts of the indictment.

{¶ 55} A jury found Dean guilty on every charge, and he was sentenced to death. We reversed the judgment and remanded the case for a new trial. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 3-6. Dean pled not guilty, and after a new jury was convened, he was convicted on all charges and specifications and was sentenced to death.

III.Issues on appeal

{¶ 56} Dean presents 15 propositions of law, including arguments regarding the application of the doctrine of transferred intent to the attempted-murder charges, the sufficiency of the evidence regarding the drive-by shooting at 609 Dibert Avenue, the failure to merge the offense of discharging a firearm into a habitation with the attempted-murder offenses, and the appropriateness and proportionality of the death sentence.

{¶ 57} We will address all the issues in the approximate order that they arose during the trial.

A. Pretrial and trial issues

1. Motion for separate trials (Proposition of Law XI)

{¶ 58} Dean argues that the trial court abused its discretion by denying a defense motion to order separate trials for the Mini Mart shooting (Counts One through Four), the drive-by shootings (Counts Five through Eleven), the murder of Arnold (Counts Twelve through Fifteen), and a weapons charge related to his arrest (Count Sixteen).

{¶ 59} Under Crim.R. 8(A), two or more offenses may be charged together if the offenses “are of the same or similar character, * * * or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.” In fact, “[t]he law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are of the same or similar character.’ ” State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990), quoting Crim.R. 8.

{¶ 60} Nonetheless, “[i]f it appears that a defendant * * * is prejudiced by a joinder of offenses,” a trial court may grant a severance. Crim.R. 14. “The defendant, however, bears the burden of proving prejudice and of proving that the trial court abused its discretion in denying severance.” State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 29, citing State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), at the syllabus.

{¶ 61} The state may rebut a defendant’s claim of prejudicial joinder in two ways. First, if in separate trials the state could introduce evidence of the joined offenses as “other acts” under Evid.R. 404(B), a defendant cannot claim prejudice from the joinder. Lott at 163. Second, the state can refute prejudice by showing that “evidence of each crime joined at trial is simple and direct.” Id.

{¶ 62} The different offenses were charged together because they were part of a common scheme or plan and occurred over a short period of time. Kaboos provided key testimony as to each of the offenses, and other witnesses testified regarding more than one offense. Thus, the facts indicate that joinder was proper because the offenses were part of'a continuing course of criminal conduct. See State v. Hamblin, 37 Ohio St.3d 153, 158, 524 N.E.2d 476 (1988).

{¶ 63} Dean argues that he was unfairly prejudiced by the joinder of multiple counts because many witnesses and fact scenarios, as well as offenses that occurred at different times and involved different victims, created confusion and led to an attempt to convict him based on numerous bad acts. This argument lacks merit. Counts Twelve and Thirteen of the indictment — the aggravated-murder counts — contained a specification under R.C. 2929.04(A)(5) alleging that Dean had purposefully killed or attempted to kill two or more persons as part of a course of conduct. Thus, even if these two counts had been tried separately from the other counts, the state would have had to present evidence of other acts — the attempted-murder offenses — in order to prove the specification. See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 51.

{¶ 64} In addition, the evidence of each crime was simple and direct. The state’s first witnesses testified about the attempted murders and the robbery at the Mini Mart. The next series of witnesses testified about the drive-by shooting on Dibert Avenue. The rest of the testimony focused on Arnold’s murder. It is highly unlikely that the jury would have confused the murder evidence with the other offenses. See State v. Johnson, 88 Ohio St.3d 95, 110, 723 N.E.2d 1054 (2000).

{¶ 65} Finally, Dean argues that the joinder of offenses took away his right to testify in his own behalf. Even though he did not testify, Dean argues that he might have chosen to testify about the Dibert Avenue shootings but not the Mini Mart shooting. Dean also claims that he was prejudiced because he was unable to testify regarding Wade’s actions during the drive-by shooting and Wade’s shooting of Arnold.

{¶ 66} In State v. Roberts, 62 Ohio St.2d 170, 405 N.E.2d 247 (1980), we addressed a defendant’s complaint that he was prejudiced by the joinder of charges because he wanted to testify on some charges but not others. Roberts held:

To prevail upon this issue, defendant must make a convincing showing that he has important testimony to give concerning one cause, and a strong need to refrain from testifying in the other. Defendant must produce sufficient information regarding the nature of the testimony he wishes to give in the one case, and his reasons for not wishing to testify in the other, so as to satisfy the court that his claim of prejudice is genuine.

Id. at 176. Federal cases have also indicated that a defendant’s mere desire to testify as to only one count is an insufficient reason to require severance. See, e.g., Alvarez v. Wainwright, 607 F.2d 683, 686 (5th Cir.1979); United States v. Jardan, 552 F.2d 216, 220 (8th Cir.1977).

{¶ 67} Deán has failed to present convincing reasons for his argument that he might have chosen to testify in one case but not in the other. Thus, he has not shown that he was prejudiced, as required by Crim.R. 14, or that he satisfies the standard laid out in Roberts.

{¶ 68} Based on the foregoing, we reject Proposition of Law XI.

2. Jury selection (Proposition of Law V)

{¶ 69} Dean contends that juror Nos. 342, 357, and 449 should have been removed from the jury because their answers on their jury questionnaires or during voir dire indicated that they could not be fair and impartial jurors.

a. Juror No. S57

{¶ 70} On the death-penalty questionnaire, juror No. 357 circled an answer stating that the death penalty was the “proper punishment in some eases, but not the proper punishment in some other cases.” He explained that “[e]ach case is individual & some circumstances are different” and that his main concern was that “too much time [was] spent on so many appeals.” During voir dire, juror No. 357 stated that his concern about the length and cost of appeals would not affect the way he looked at the evidence or weighed the aggravating circumstances against the mitigating factors.

{¶ 71} We have held that a “defendant in a criminal case cannot complain of error in the overruling of a challenge for cause if such ruling does not force him to exhaust his peremptory challenges.” (Emphasis added.) State v. Eaton, 19 Ohio St.2d 145, 249 N.E.2d 897 (1969), paragraph one of the syllabus, vacated in part, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750 (1972). Thus, “ ‘[i]f the trial court erroneously overrules a challenge for cause, the error is prejudicial only if the accused eliminates the challenged venireman with a peremptory challenge and exhausts his peremptory challenges before the full jury is seated.’ ” (Emphasis added.) State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 87, quoting State v. Tyler, 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990).

{¶ 72} Dean argues that seated juror No. 357 should have been excused because his feelings about the death penalty were biased. But Dean waived any objection to his service. First, he failed to challenge this juror for cause. Second, he failed to excuse juror No. 357 with a peremptory challenge and failed to exercise four of his six peremptory challenges. Thus, this claim is reviewed on the basis of plain error. See State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 79.

{¶ 73} Juror No. 357’s answers on his death-penalty questionnaire showed that he took a moderate view of the death penalty. His main concern about the death penalty concerned the lengthy appeals process. Moreover, during voir dire, juror No. 357 assured the court that he could follow the court’s instructions. Based on these answers, we hold that the trial court did not commit plain error by failing to excuse juror No. 357.

{¶ 74} Dean also argues that his counsel were ineffective by failing to challenge juror No. 357. Reversal of a conviction for ineffective assistance of counsel 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.

{¶ 75} Defense counsel were not deficient, because juror No. 357’s comments on his death-penalty questionnaire and his comments during voir dire did not disclose information that would have supported a challenge for cause. Dean also failed to establish that his counsel were ineffective by failing to peremptorily challenge juror No. 357. Juror No. 357 exhibited neither bias nor prejudice. Therefore, counsel’s failure to challenge this juror was not deficient. See State v. Lindsey, 87 Ohio St.3d 479, 490, 721 N.E.2d 995 (2000).

b. Juror No. 34,2 ■

{¶ 76} On his death-penalty questionnaire, juror No. 342 stated that the death penalty was “the proper punishment in all cases where someone is convicted of aggravated murder.” During voir dire, juror No. 342 made similar comments. Juror No. 342 acknowledged that he was “opinionated” and stated that “[p]eople do not want to be around a person who is as opinionated as me on a jury. I will do my best to convince people around me to believe in my opinions, not their own.” Despite these strongly held views, juror No. 342 stated that if Dean was convicted of aggravated murder, he would follow the court’s instructions and listen objectively to the mitigating factors and other matters that the defense would present in argument against the death penalty. Later, juror No. 342 reiterated that he would “absolutely” weigh the aggravating circumstances against the mitigating factors before deciding the sentence.

{¶ 77} Defense counsel challenged juror No. 342 for cause because of his strong views in favor of the death penalty. However, the trial court denied the challenge, stating, “[H]e held strong opinions about the death penalty; but nonetheless, he could put those aside and fairly consider the Court’s instructions.” Defense counsel later peremptorily challenged juror No. 342.

{¶ 78} Dean argues that the trial court erred by failing to remove juror No. 342 for cause because he could not be a fair and impartial juror. But Dean waived his challenge to juror No. 342 because he failed to exhaust his allotted number of peremptory challenges. Here, the trial court did not commit plain error by failing to excuse juror No. 342. Juror No. 342 told the court more than once that he would follow the court’s instructions and also stated that he could fairly consider the mitigating factors in determining punishment. Thus, the record does not show that juror No. 342 could not be a fair and impartial juror, and this claim is rejected.

c. Juror No.

{¶ 79} On his questionnaire, juror No. 449 stated, “I feel [that the death penalty] is the proper punishment for aggravated murder. In all convicted cases.” (Emphasis sic.) Juror No. 449 tempered his views during voir dire. He stated that in spite of his strong feelings about the death penalty, he would have “an open mind” about the mitigation evidence, would follow the judge’s instructions about the weighing process, and would fairly engage in that process. During further questioning, juror No. 449 assured the court that he could follow the court’s instructions in reaching his decision. Juror No. 449 added, “I think you have to listen to the mitigating factors because * * * each case is gonna be different.” The trial court overruled a defense challenge for cause against juror No. 449. Defense counsel later exercised a peremptory challenge against juror No. 449 after he was selected as an alternate juror.

{¶ 80} Dean argues that juror No. 449 should have been excused for cause because he had stated that the death penalty was the proper punishment for aggravated murder. Dean waived this argument because he failed to exhaust his allotted number of peremptory challenges. He used a peremptory challenge to eliminate juror No. 449, and this action cured any error. “ ‘So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.’ ” Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 86, quoting Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Moreover, none of the alternate jurors participated in the verdict. Thus, this claim is also rejected.

{¶ 81} Based on the foregoing, we overrule Proposition of Law V.

3. Evidentiary rulings (Proposition of Law X)

{¶ 82} Dean argues that the trial court made several erroneous evidentiary rulings that denied him a fair trial.

a. Testimony of Kaboos

{¶ 83} Dean argues that the trial court erred by allowing Kaboos to testify about Dean’s intentions to rob her and his plans to rob people at local bars. Kaboos testified that Dean told her that he had planned to rob her and her friend when he first saw them. Following a defense objection, the prosecutor claimed that Kaboos would testify that Dean decided not to rob her after he learned that she did not have any money. The prosecutor also claimed that Dean told Kaboos that he went to bars at night to rob people. Defense counsel argued that Kaboos’s testimony that Dean planned to rob Kaboos and her friend and that he went to bars to rob people was not relevant and was improper under Evid.R. 404(B) as other-acts testimony. The trial court overruled the objections, finding that the testimony was “probative of motive.”

{¶ 84} Afterward, Kaboos testified that Dean told her that “he was planning on robbing me and my friend Becky out of whatever money we had, but we didn’t have no money.” She then stated that he changed his mind but that she did not know why he changed his mind. Kaboos also testified that Dean often went out at night with Wade, leaving her at home. Kaboos testified that Dean told her that they were “gonna go to the local bars and lure people out and rob them of their money.”

{¶ 85} Dean argues that Kaboos’s testimony should not have been admitted to prove motive. Under Evid.R. 404(B), “[ejvidence of other crimes, wrongs, or acts is not admissible to prove” a defendant’s character as to criminal propensity. “It may, however, be admissible * * * [to prove] motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

{¶ 86} Dean was charged with aggravated robbery and murder while committing or attempting to commit robbery for Arnold’s death. The testimony that Dean planned to rob Kaboos and her friend and that he and Wade were going to bars to lure customers outside and rob them showed that Dean was intending to rob people around the time that Arnold was murdered and robbed. Thus, the trial court did not abuse its discretion in admitting Kaboos’s testimony as evidence of motive. See State v. Woodard, 68 Ohio St.3d 70, 73, 623 N.E.2d 75 (1993) (where defendant was charged with murder in a carjacking incident, evidence that defendant previously had 'attempted to carjack someone was evidence of motive).

{¶ 87} As a final matter, Dean argues that the trial court erred in concluding that Kaboos’s testimony met one of the purposes of Evid.R. 404(B) without explicitly analyzing whether the prejudicial impact outweighed its probative value. Under Evid.R. 403(A), relevant evidence must be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” “Even if the other-acts evidence is offered to prove a material element, the decision to admit this evidence is subject to Rule 403.” See 1 Giannelli, Evidence, Section 404.14, at 252 (3d Ed.2010). “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.

{¶ 88} We have held that “Evid.R. 403(A) establishes a standard but does not require a trial court to explicitly state in its judgment entry that the probative value of the ‘other acts’ evidence outweighs its prejudicial impact.” State v. Bey, 85 Ohio St.3d 487, 489, 709 N.E.2d 484 (1999). The probative value of Kaboos’s testimony outweighed the damage of any unfair prejudice to Dean. Thus, the trial court’s failure to explicitly state its findings on the weighing process was not reversible error.

b. Handgun and ammunition not used in crimes

{¶ 89} Dean argues that the trial court erred by admitting a .380-caliber handgun and other evidence that was seized during a search of Wade’s home. The state introduced six rounds of .380-caliber ammunition that were in pants found during the police search of Dean’s bedroom. The state also sought to introduce the .380-caliber handgun that was found during the search of Wade’s house.

{¶ 90} Defense counsel objected to the introduction of the handgun as irrelevant, because no gun of this caliber was used in any of the offenses. The state argued, “We’re attempting to show that the firearm, the .40 caliber that was issued here, is the property of Jason Dean and that Josh Wade has his own separate firearm.” The trial court overruled the defense objection, stating, “I think what it tends to show is the firearms were interchangeable.” The state was allowed to introduce the .380-caliber handgun.

{¶ 91} The admission of the .380-caliber firearm and ammunition rested upon a question of relevancy. Evid.R. 401 provides: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, at paragraph two of the syllabus.

{¶ 92} In State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, the state presented evidence about several firearms and ámmunition found in Neyland’s motel room and storage unit. The firearms were not connected to the aggravated-murder charges against Neyland. Id. at ¶ 157. The state argued that the evidence was relevant to prove Neyland’s prior calculation and design, which was an element of the aggravated-murder charges. Id. at ¶ 153. We rejected that argument because the murder weapon had been identified and admitted into evidence. Thus, the other weapons and ammunition were not relevant to proving Neyland’s prior calculation and design and should not have been admitted. Id. at ¶ 157. See also State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 105-106 (weapons found in the defendant’s basement that were not used in the murder were not relevant to prove prior calculation and design).

{¶ 93} Unlike in Neyland and Trimble, the state did not introduce multiple weapons to prove prior calculation and design. Rather, the .380-caliber handgun found in Wade’s bedroom and the .380-caliber ammunition found in the pants in Dean’s bedroom were relevant for the limited purpose of showing that Dean and Wade acted together in committing the offenses.

{¶ 94} Moreover, the prosecutor later relied on this evidence to rebut defense claims that Wade acted alone in committing the offenses. During final arguments, defense counsel asserted that Wade was acting alone: “That ain’t no little boy being scared by the sound of the big old gun he’s holding in his hand. That’s a young thug fully capable of committing this crime without guidance from anybody.” In rebuttal, the prosecutor argued:

Facts that show that they’re a team? * * * They were together all day every day for 21 days. He provided the guns; he used the .25; Josh used the .40. * * * No one’s talked about this yet. When they got rid of the .25, they replaced it with that .380. They had the .380 that was found down at Josh’s house.

How about this? The .380 rounds when they did the search warrant, the .380 rounds are found in the Defendant’s pants in his house, and the .380’s found down the street at Josh’s. That doesn’t show you that they’re working as a team? * * * Again, that’s showing you how tightly they worked together as a team.

{¶ 95} The state’s argument explains why the .380-caliber handgun and ammunition were relevant. That evidence — the weapon in Wade’s house and the ammunition in Dean’s house — tended to show that Dean and Wade acted together in committing the charged offenses. Thus, we hold that the trial court did not abuse its discretion by admitting the .380-caliber handgun and ammunition.

c. Letters and telephone calls

{¶ 96} Dean argues that the trial court erred by admitting the letters that he wrote to Manns and Sions and the telephone calls that Dean made while he was in pretrial confinement.

(1) Dean’s letters

{¶ 97} Detective Estep testified that the police obtained a search warrant and seized numerous letters that Dean had sent to Manns, an inmate at the Lebanon Correctional Institute. Estep also learned that Sions had received numerous letters from Dean. Estep talked to Sions about the letters, and the police later collected them from Sions’s house.

{¶ 98} During its case-in-chief, the state introduced redacted excerpts from letters that Dean had mailed to Manns and Sions before his trial, but the letters themselves were not admitted. Dean raises various objections to the contents of the excerpts and argues that they should not have been admitted.

{¶ 99} First, Dean argues that several excerpts from his letters should not have been admitted, because they did nothing more than show his lack of remorse for Arnold’s death. Dean complains about the following excerpt in a letter to Manns: “They act like I killed the president.” Dean also complains about the comments in another letter: “Remember they said they found a .40 Caliber pistol in my house? Well that’s the type of pistol dude got killed with, but there are no prints at all on the gun.” Dean’s statements in these letters were probative of his consciousness of guilt. Thus, this evidence was relevant to a noncharacter issue and admissible under Evid.R. 404(B).

{¶ 100} Dean argues that the following excerpt from a letter to Sions should not have been admitted, because it also showed his lack of remorse: “Anyway this dude walks up to me and says, ‘that dude you and your boy killed was my cousin’. I looked at him and said, T don’t give a fuck!’” However, Dean’s response to the accusation was admissible as an implied admission of guilt.

{¶ 101} Dean also complains that an excerpt in a letter to Sions was improperly presented to the jury:

I get so angry sometimes, and I lose control. * * * It’s the reason a man I have never laid eyes on before is in his grave and his children are wondering where their daddy is and his mother has to cry herself to sleep at night because her son was shot down like an animal for no reason other than he was at the wrong place at the wrong time. What’s so sad and it scares me when I think about it is the fact that I don’t care.

{¶ 102} These comments were also an implied admission of guilt and not barred by Evid.R. 404(B). See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 66.

{¶ 103} Second, Dean claims that excerpts from two of his letters should not have been admitted because they showed his lack of remorse and vulgarity and that he was a dangerous individual. Initially, he complains about the admissibility of a letter he wrote to Manns: “I made my choices and I knew the consequences of my actions. I have lived my life the way I wanted, I have always done what I wanted to do when I wanted to do it and fuck what anybody had to say about it.” These were probative of Dean’s consciousness of guilt.

{¶ 104} In a letter to Sions, Dean wrote, “If I could just get my hands on that motherfucker I would crush him. If I could get my hands on him, there would be another mother mourning the loss of her child.” Once again, Dean’s comments demonstrated his consciousness of guilt and were admissible.

{¶ 105} Third, Dean argues that excerpts from other letters should not have been admitted, because they showed that he was a dangerous individual with an unabashed disregard for the law. In a letter to Manns, Dean wrote: “Life’s a motherfucker ain’t it bro? This is what happens when you live life in the streets and make your own rules and laws. You lose everything every time. I will carry my burden with my head held high.” Similarly, Dean wrote Sions: “But I got caught up living the fast life, doing what comes natural to a beast like me, doing what I wanted, when I wanted, and how I wanted.” In a similar vein, Dean wrote: “Because at that point if I wanted something, I took it and damn the consequences. But that kind of thinking has led me to where I am right now, locked in a concrete and steel cage.”

{¶ 106} These excerpts all demonstrated Dean’s disregard for the consequences of his actions and were relevant to prove his involvement in the offenses. But Dean’s statements: “I will take some money, some jewelry, some dope. I will take your car and everything you own, but I would never take no pussy” were irrelevant and not admissible under Evid.R. 404(B). Nevertheless, the impact of these comments was minimal, considering the other compelling evidence of Dean’s guilt.

{¶ 107} During the trial, Dean argued that there were no eyewitnesses identifying him at the scene of Arnold’s murder and insisted that Wade was solely responsible as the killer. Yet Dean’s letters contain bits of information that show his involvement in Arnold’s murder and convey his consciousness of guilt for Arnold’s murder and the other offenses. See State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 86.

{¶ 108} The record shows that the state was careful in limiting the information that was contained in the excerpts that went to the jury. The evidence of other acts was not offered for the purpose of proving Dean’s bad character. Moreover, information that cast Dean’s character in a negative light was kept to a minimum. Thus, we hold that the trial court did not abuse its discretion in admitting the excerpts of Dean’s letters to Sions and Manns.

(2) Dean’s phone calls

{¶ 109} The state played a recording of a phone call that Dean made from jail and presented the transcript of another phone conversation that Dean made, both of which were made to an unidentified individual.

{¶ 110} During the recording, Dean stated, “They’re not offering no deal * * * He’s going for the death penalty, period.” Dean added that the reason no deal was being offered was “ ’[clause we killed a moon cricket.” Dean also discussed Wade’s involvement in the murder and the strength of the state’s case:

Man, this chick seen everything. She seen it happen. They don’t got me at the scene or nothing at that murder. She done pointed the dude out at the corner (inaudible) and everything. I mean, ain’t nothing I can do to help him. I tried to help him in the long run when we first went down. I accepted—

(inaudible)

I was rolling with it. I was carrying the weight, but then (inaudible) witness came forward and ain’t nothing I can do to help him now. I mean, of course, they gonna ask me, do you know anything about this. How did you get the murder weapon in your house and, you know, all this shit. I bought the gun off the street.

{¶ 111} Dean argues that the trial court erred by allowing this audio recording to be played because it conveyed that Dean was a racist. But Dean’s comment that they killed a “moon cricket” was an admission by Dean of his involvement in Arnold’s murder. Thus, we reject Dean’s claim that the probative value of this evidence was “minimal at best.”

{¶ 112} Other comments in the phone conversations were also relevant to the charges. Dean discusses the strong evidence linking Dean and Wade to Arnold’s murder. Moreover, Dean tells the caller that he bought the murder weapon off the street. This was also highly probative evidence linking Dean to the murder.

{¶ 113} Dean cites Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), for the proposition that this recording should not have been presented to the jury because it portrayed him as a racist. Dawson held that the First Amendment precludes a state “from employing evidence of a defendant’s abstract beliefs at a sentencing hearing when those beliefs have no bearing on the issue being tried.” Id. at 168. In Dawson, the jury was told that the defendant belonged to the Aryan Brotherhood, which was described as a white racist gang. Id. at 166. Nothing of the sort happened in this case. Dean’s comment was not a mere statement of abstract beliefs but was evidence of his involvement in Arnold’s murder.

{¶ 114} The transcript of a second phone call between Dean and an unidentified male was also presented to the jurors. In this phone call, Dean complained about Wade’s statements to the police and Kaboos that incriminated Dean in the murder. Dean stated that Wade “said all kinds of shit” and “told that girl everything man,” and “[t]hat’s how that bitch knows everything ’cause he told her.” This conversation showed Dean’s consciousness of guilt and was therefore admissible.

{¶ 115} Dean also objects that the transcript of this phone call, which had been used as an exhibit in his first trial, included the name of the case and the fact that it was from the “Guilt Phase.” It is unclear why this information was not redacted before the exhibit went to the jury. However, the trial court informed the jury that this case had been tried before and told them that they “may not consider that fact * * * for any purpose whatsoever.” Thus, there is little likelihood that the reference to the prior trial was prejudicial.

{¶ 116} Finally, Dean argues that the transcript and the recording showed that Dean was callous, vulgar, and remorseless. He argues that this evidence was particularly prejudicial because the evidence that he was involved in the drive-by shootings and Arnold’s murder was not overwhelming. However, Dean’s argument overlooks Kaboos’s testimony, which established his involvement in the Dibert Avenue shootings and his involvement in Arnold’s murder. Thus, Dean’s claim that the jury’s review of his letters and telephone conversations deprived him of a fair trial is rejected.

{¶ 117} Based on the foregoing, we overrule Proposition of Law X.

4. Playing 9-1-1 calls (Proposition of Law IX)

{¶ 118} Dean argues that he was denied a fair trial when the prosecution played two emotionally charged 9-1-1 tapes for the jury.

a. Haile’s 9-1-1 call

{¶ 119} Over defense objection, the state played a tape of the 9-1-1 call that Amrosetta Haile made following Arnold’s shooting:

Speaker One [Haile]: There was two of them. They shot this other boy in the head. He’s dead. ' I know he’s dead. He wasn’t moving. There was blood everyplace.

Speaker Two [9-1-1 operator]: You were passing by?

Speaker One: I was coming off of Light Street onto High. And these people were running from the shelter house across to this kid in the road right by the Night Owl intersection on High Street. They just shot him in the fuckin’ head with a gun.

Speaker One: * * * The two cars — the two guys in the car parked their car. This kid started running across the road that they shot. They get out of the car and run after him and popped him right in the fuckin’ road by the curb. I was right there at the track and watched them shoot this kid dead.

Speaker Two: Okay. And then they ran back to the vehicle?

Speaker One: And they ran back to the car and took off.

{¶ 120} Dean argues that the 9-1-1 tape was inflammatory and improperly played to the jurors’ emotions. He argues that most of the tape dealt with the investigation of the crime and Haile had already testified to that information during her direct examination. Thus, he argues that the 9-1-1 call should have been excluded because its prejudicial effect outweighed its probative value. See Evid.R. 403(A).

{¶ 121} Haile’s 9-1-1 call established that two males were involved in shooting Arnold. This information supported the state’s theory that Dean and Wade acted together when Arnold was killed. Though prejudicial to Dean with respect to his criminal liability, it was not unfairly so. Neither did it confuse the issues or mislead the jury. Thus, we hold that the trial court did not abuse its discretion in allowing the 9-1-1 tape to be played. See State v. Kinley, 72 Ohio St.3d 491, 497, 651 N.E.2d 419 (1995).

b. Byrd’s 9-1-1 call

- {¶ 122} Over defense objection, the state played the 9-1-1 call that Byrd made during the drive-by shooting on Dibert Avenue. Byrd told the 9-1-1 operator, “Somebody drove by and shot at the boy’s car across the street, and a couple bullets hit the house.” During the 9-1-1 call, the car returned, and shots could be heard on the tape. Byrd told the 9-1-1 operator that the car that was shot at was owned by Devon Williams and provided the following information:

Speaker One [Byrd]: Devon Williams. He’s had problems out of O-Z and Snuff. I know you know ’em.

Speaker Two [9-1-1 operator]: O-Z and Snuff is who they think it was.

Speaker One: And (Inaudible) Aaron Johnson. He’s had problems out of them lately.

Oh, this was — he said this was a white boy driving this car. They came by, shot the car first; and a bullet came through the house.

{¶ 123} Dean argues that Byrd’s statement about Williams’s problems with 0-Z and Snuff should not have been played during the 9-1-1 call. The admissibility of Byrd’s comments about O-Z involve whether her statement constitutes an excited utterance under Evid.R. 803(2). A four-part test is administered to determine the admissibility of statements as an excited utterance: (1) a startling event, (2) a statement relating to that event, (3) a statement made by a declarant with firsthand knowledge, and (4) a statement made while the declarant was under the stress of the excitement caused by the event. See 2 Giannelli, Evidence, Section 803.9, at 223-224 (3d Ed.2010); Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955), paragraph two of the syllabus; State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 166 (followingBaker).

{¶ 124} Byrd’s comments were made to the 9-1-1 operator after her house had been hit by gunshots, and her comments were made while she was under the stress of the excitement caused by the event.

{¶ 125} Byrd’s 9-1-1 call met the requirements for admissibility under Evid.R. 803(2). However, the evidence must also meet the requirements for relevancy under Evid.R. 401 before being admitted. We fail to see how Byrd’s statement claiming that O-Z was involved was relevant. Nevertheless, we hold that the admission of that statement was harmless beyond a reasonable doubt in view of other evidence establishing Dean’s guilt in the drive-by shooting. See State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 33.

{¶ 126} Based on the foregoing, we reject Proposition of Law IX.

5. Transferred intent (Proposition of Law III)

{¶ 127} Dean argues that the trial court erred in providing the jury with an instruction on transferred intent with respect to the attempted-murder’ counts.

a. Background

{¶ 128} The trial court did not give an instruction on transferred intent for any of the offenses during the original charge to the jury. But during final arguments, the prosecutor argued:

There’s a lot of evidence about intent, and you have to be cognizant of a concept called transferred intent. And also when you’re talking about prior calculation and design, if a team is going out there planning to go out and rob and kill, it’s not necessary in the prior calculation and design that you have a specific victim in mind. That’s a point that sometimes in aggravated murder cases juries get a little bit off the beaten track on.

{¶ 129} During deliberations, the jury asked: “In attempted murder does it matter if the person identified in the charge is the intended target or not?” After discussing this question with the parties, the trial court said it intended to give “an additional charge which would be a modification of Charge No. CR 417.09 from [Ohio Jury Instructions]. It’s on transferred purpose.” The trial court’s proposed instructions applied the transfer-of-purpose instruction to the attempted-murder offenses.

{¶ 130} Defense counsel stated that the proposed instruction seemed to be a correct statement of the law but objected, stating, “The instructions have been completed and given to the jurors in writing; and the appropriate answer, we think, on question^] of law should be the one akin to the one given earlier that they have the instructions. Work with them.”

{¶ 131} Defense counsel added:

[T]he State seems to be of the opinion this question is targeting the Dibert Avenue drive-by victims. If that’s correct, * * * the counts in the predicate original instructions, the verdict forms identify the names of the people on the porch. And there seems to be no valid application of the concept of transferred intent relative to that charge or that set of charges.

{¶ 132} The trial court overruled the objection and instructed the jurors as follows:

You are cautioned that this instruction doesn’t supersede anything I have given you. It doesn’t change anything that I have given you, and you are only to consider this in light of the other instructions and not give this additional instruction any undue emphasis over anything else that I have already given you.

The answer to your question and the instruction that I will now give you is that all offenses of murder, including attempted murder and aggravated murder, have as one of the essential elements that the Defendant had a purpose to cause the death of another. The purpose required is to cause t