State v. Sowell (148 Ohio St. 3d 554, 2016)

O’Donnell, J.

{¶ 1} Anthony Sowell appeals from the judgment of the Cuyahoga County Common Pleas Court in connection with 11 capital convictions and sentences of death arising out of the serial killing of 11 women in Cleveland, Ohio. Sometime before October 28, 2009, Sowell kidnapped and murdered these 11 women and buried or concealed them at his home located at 12205 Imperial Avenue on the east side of Cleveland. Members of the Cleveland Police Department investigating a rape complaint against Sowell discovered the bodies of Diane Turner and Telacia Fortson in Sowell’s house. Police later found the bodies of eight more women and the skull of another woman in or around the home, and they obtained additional evidence demonstrating that Sowell had attempted to kill three other women.

{¶ 2} A grand jury returned an 85-count indictment against Sowell, and following trial in common pleas court, a jury convicted him of 11 counts of aggravated murder, each containing death-penalty specifications, and recommended death sentences for each of the 11 aggravated murders. The trial court accepted those recommendations and sentenced Sowell to 11 death sentences on those counts.

{¶ 3} After review, we affirm Sowell’s convictions and death sentences.

Facts and Procedural History

{¶ 4} On October 28, 2009, a member of the Cleveland Police Department, investigating a rape complaint filed by Latundra Billups, obtained warrants to arrest Sowell and to search his home at 12205 Imperial Avenue in Cleveland. When officers executed the search warrant the next evening, Sowell was not at home. In a room on the third floor of the house, however, police found two decomposed female corpses lying on the floor, which DNA analysis later confirmed were the bodies of Diane Turner and Telacia Fortson.

{¶ 5} Police obtained another warrant the next day and resumed searching Sowell’s house, this time accompanied by personnel from the county coroner’s office and a cadaver dog. They located a body beneath the basement staircase covered by a large mound of dirt and two more on the third floor, one inside a black plastic bag and one in a crawlspace concealed beneath more dirt. DNA analysis identified the body in the basement as Janice Webb, the body in the bag as Nancy Cobbs, and the body in the crawlspace as Tishana Culver.

{¶ 6} In the backyard, the cadaver dog alerted to a spot near the back porch, where police located another body buried in a shallow grave that DNA analysis identified as Tonia Carmichael.

{¶ 7} The next day, on October 31, Sowell was seen on Mount Auburn Avenue by a member of the public who had recognized him from news broadcasts. Police were alerted and Sowell was arrested.

{¶ 8} On November 3, police obtained another search warrant for Sowell’s residence and this time arranged for a backhoe to be brought to the property. They uncovered four more corpses and from DNA analysis eventually identified them as the bodies of Michelle Mason, Kim Smith, Amelda Hunter, and Crystal Dozier. In addition, a human skull, which DNA analysis eventually identified as belonging to Leshanda Long, was found in a black plastic bag inside a red bucket in the basement. No other parts of her body were located.

{¶ 9} Autopsy results showed that Culver had suffered a fractured hyoid bone in her neck, suggesting manual strangulation. Seven bodies — Carmichael, Cobbs, Dozier, Fortson, Hunter, Mason, and Webb — had ligatures around their necks, and the coroners concluded that their deaths had been caused by ligature strangulation. The coroners further concluded that Long, Smith, and Turner were killed by “homicidal violence” of “undetermined” type. Other evidence showed that six bodies — Carmichael, Cobbs, Culver, Dozier, Smith, and Webb— had bindings, or the remains of bindings, around their wrists and/or ankles.

{¶ 10} Following the investigation, a grand jury returned an 85-count indictment against Sowell. Counts 1 through 66 dealt with the 11 murder victims. Regarding each victim, the grand jury indicted Sowell on two counts of aggravated murder: one for prior calculation and design, R.C. 2903.01(A), and one for felony murder, R.C. 2903.01(B), predicated on kidnapping.

{¶ 11} Each aggravated-murder count had 15 death-penalty specifications. Two felony-murder specifications pursuant to R.C. 2929.04(A)(7) were attached to each count — the first was predicated on kidnapping to terrorize or inflict serious physical harm on the victim and the second was predicated on kidnapping to engage in sexual activity with the victim against the victim’s will.

{¶ 12} In addition, each aggravated-murder count had 13 course-of-conduct specifications pursuant to R.C. 2929.04(A)(5), alleging that the murder was part of a course of conduct involving the purposeful killing of or attempt to kill two or more victims. Each course-of-conduct specification cited one of the other murders or attempted murders in this case as part of the course of conduct engaged in by Sowell.

{¶ 13} Each aggravated-murder count and most of the noncapital counts also included a sexual-motivation specification pursuant to R.C. 2941.147, a sexually violent predator specification pursuant to R.C. 2941.148, a repeat-violent-offender specification pursuant to R.C. 2941.149, and a prior-conviction specification reflecting a prior conviction of attempted rape.

{¶ 14} With respect to each murder victim, the indictment charged two counts of kidnapping: one under R.C. 2905.01(A)(3) (having a purpose to terrorize or to inflict serious physical harm) and another under R.C. 2905.01(A)(4) (having a purpose to engage in sexual activity with the victim against the victim’s will). Finally, the indictment charged one count of abuse of a corpse and one count of tampering with evidence with respect to each aggravated murder victim.

{¶ 15} Counts 67 to 85 charged Sowell with crimes against Latundra Billups, Shawn Morris, and Gladys Wade, each of whom survived their encounters with Sowell. As to these victims, whom the state identified as Jane Does in the original indictment, Sowell was charged with two counts of kidnapping, pursuant to R.C. 2905.01(A)(3) and (A)(4), and one count of attempted murder, pursuant to R.C. 2923.02 and 2903.02(A). Sowell was also charged with two counts of rape committed against both Billups and Morris and one count of attempted rape committed against Wade. Additionally, he was charged with two counts of felonious assault pertaining to Billups and one count each with regard to Morris and Wade. Finally, he was indicted for one count of the aggravated robbery of Wade.

{¶ 16} After the state’s presentation of evidence during the guilt phase of the trial, the defense moved for acquittal. The trial court granted the motion as to Counts 88, 39, and 40 (felony-murder and kidnapping of Long) and Specifications 1, 2, and 16 (felony murder and sexual-motivation specifications) to Count 37 (aggravated murder of Long with prior calculation and design).

{¶ 17} The defense did not call any witnesses in its case-in-chief, but it submitted a number of exhibits into evidence before it rested. The jury returned verdicts finding Sowell not guilty of Count 85 (aggravated robbery of Wade) but guilty of all other counts and specifications.

{¶ 18} Prior to the penalty phase of trial, the trial court merged the aggravated-murder counts for sentencing purposes. The state elected to proceed under R.C. 2903.01(A), and thus, the jury considered 11 counts of aggravated murder. Pursuant to the state’s election, the counts based on R.C. 2903.01(B) were not submitted to the jury during the penalty phase of the trial.

{¶ 19} At the conclusion of its penalty-phase deliberations, the jury recommended death sentences for each of the 11 aggravated murders. The trial court accepted the recommendations and sentenced Sowell to death on each of the 11 counts.

{¶ 20} Sowell appealed as of right to this court pursuant to Article IV, Section 2(B)(2)(c) of the Ohio Constitution.

Courtroom Closures

{¶ 21} The trial court conducted an in camera session on July 21, 2010, involving a hearing on Sowell’s motion to suppress statements he made to police, and subsequent in camera sessions from June 6 through 21, 2011, relating to the individual voir dire of prospective jurors on attitudes toward the death penalty, pretrial publicity, and requests to be excused for hardship reasons.

{¶ 22} Although Sowell did not present a proposition of law challenging the courtroom closures and thus failed to preserve the issue for appeal, see generally State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, on September 3, 2014, we ordered additional briefing on whether these closures denied Sowell his Sixth Amendment right to a public trial. 140 Ohio St.3d 1411, 2014-Ohio-3785, 15 N.E.3d 881.

The Suppression Hearing

{¶ 23} Sowell moved to suppress statements made during a series of police interrogations on the basis that he had not been properly advised of his Miranda rights and that he did not knowingly, intelligently, and voluntarily waive them because he suffered from a psychotic disorder or severe mental illness.

{¶24} The trial court determined that due to the sensitive nature of the evidence regarding Sowell’s mental health issues and the potential prejudice to the jury pool, it would conduct the suppression hearing in camera. Defense counsel objected for the record.

{¶ 25} At the hearing, the state presented testimony from police officers and video recordings of Sowell’s interrogation. In those recordings, Sowell never admitted to murdering the 11 victims and denied having any memory of killing them or knowing that their bodies were buried and hidden on his property. He explained that he had encountered various women, mostly from the Mount Pleasant area of Cleveland where he lived, and from time to time he would hear a “voice” saying something about “bad people”; then he would “go blank” or “black out.” Sowell described dreams in which he “hurt somebody” by choking a woman with his hands. Sowell stated that after these dreams, he would wake up and would find that the woman had left without saying goodbye. When he woke from his dreams, his body felt “tired” as if he had been working.

{¶ 26} He said that he had dreamed about the “bad ones” who were doing drugs or soliciting on the street when they had children or families, and he described himself as “the punisher.” These women needed to be punished because they were “cons” who tried to “hustle” him out of money and drugs. Sowell explained that the voice in his head told him what he was “supposed to do. It’s like I was supposed to rape these girls.” Sowell admitted that all the women found in the house were bad, and he was able to give descriptions of some of the victims.

{¶ 27} The trial court denied the motion to suppress these statements, finding that Sowell knowingly, intelligently, and voluntarily had waived his Miranda rights during the police interviews and that his statements were neither coerced nor the result of a psychosis that interfered with his ability to make free and rational choices.

{¶ 28} The Sixth Amendment right to a public trial is a protection for the accused and extends to a hearing on a motion to suppress evidence. Waller v. Georgia, 467 U.S. 39, 46-47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). However, “the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Id. at 45. Accordingly, “the party seeking to close the [suppression] hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 48, citing Press-Enterprise Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).

{¶ 29} The Supreme Court in Waller recognized that the accused “should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee” during a suppression hearing, id. at 49, noting that the benefits of a public trial are “intangible, difficult to prove, or a matter of chance,” id. at fn. 9. Yet it held that the remedy for the violation in that case was not a new trial but a new suppression hearing, because “[i]f, after a new suppression hearing, essentially the same evidence is suppressed, a new trial presumably would be a windfall for the defendant, and not in the public interest.” Id. at 50. The court concluded that “[a] new trial need be held only if a new, public suppression hearing results in the suppression of material evidence not suppressed at the first trial, or in some other material change in the positions of the parties.” Id.

{¶ 30} The trial court in this case identified an overriding interest for conducting the hearing in camera, stating on the record that it had closed the courtroom “due to the sensitive nature of the evidence and potential for suppression of evidence that, if released to the public at this time, would potentially prejudice any jury pool.” Thus, the trial court undoubtedly recognized that given the intense media interest generated by Sowell’s trial involving the serial killing of 11 women in Cleveland, closing the suppression hearing was necessary'to guarantee Sowell a fair trial and to avoid tainting the jury pool with statements that he would encounter various “bad” women in his neighborhood, hear a voice telling him to rape them, black out, and then dream of strangling them before waking to find them gone.

{¶ 31} As the Supreme Court explained in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966),

Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. * * * If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.

Id. at 362-363. The court also noted that a trial court has a duty to protect the accused from “inherently prejudicial publicity which saturate[s] the community.” Id. at 363.

{¶ 32} Although the trial court recognized the high degree of public interest in the trial as well as the potential for publicity to prejudice Sowell’s right to a fair public trial, it did not make an express finding that the limited closure of the proceeding was in fact no broader than necessary to protect that interest. Nonetheless, it is apparent from the record that the trial judge concluded that the closure of the suppression hearing was no broader than necessary to protect Sowell’s right to a fair proceeding and to avoid prejudice to the jury pool. This case is factually distinguishable from Waller, where the trial court closed a seven-day suppression hearing to avoid revealing the contents of a two-and-one-half-hour wiretap audio recording, so that “the closure was far more extensive than necessary.” 467 U.S. at 49, 104 S.Ct. 2210, 81 L.Ed.2d 31. Here, closure was limited to considering the suppression of Sowell’s statements, and the court specifically stated that it would reopen the courtroom for argument on other matters. Thus, the trial court obviously concluded that closure was necessary to protect Sowell’s right to a fair trial, but it failed to state that finding on the record. From our review of the record, we are convinced that closure was no broader than necessary to protect that interest.

{¶ 33} Nor did the trial court state on the record that it had considered reasonable alternatives to conducting the suppression hearing in camera, but it is obvious that the court had no reasonable alternative other than to close that limited proceeding to the public in order to protect the right of the accused to a fair public trial. The trial court understood that if Sowell’s statements were publicized but subsequently suppressed, then his right to a fair trial by an impartial jury would be compromised. Other than closing the hearing, there was no way for the court to examine the admissibility of Sowell’s statements without also possibly exposing those statements and prejudicing potential jurors.

{¶ 34} Because the trial court identified an overriding interest supporting closure of the suppression hearing and because the record demonstrates that closure was narrowly drawn and limited in scope and was the only reasonable option to protect that interest, the trial court did not abuse its discretion in ordering the limited closure of the courtroom.

{¶ 35} Waller is factually distinguishable from this case, but even if Waller requires this court to presume prejudice from the closure of a suppression hearing, the remedy the Supreme Court adopted there is not applicable here. In Waller, the essence of the state’s case against the accused consisted of wiretaps and other evidence that, if suppressed, could have precluded the state from obtaining a conviction. Explaining that “the remedy should be appropriate to the violation,” the Supreme Court ordered a public suppression hearing and held that a new trial would be required only if the new hearing resulted in a “material change in the positions of the parties.” (Emphasis added.) Waller at 50.

{¶ 36} That is not the case in this instance, however, because even if we presume prejudice from the closure of the courtroom, a new suppression hearing would not result in a material change in the positions of the parties. Based on the record, any reasonable jurist would find that Sowell knowingly, intelligently, and voluntarily waived his Miranda rights. Even assuming that Sowell’s statements to police would have been suppressed at a public hearing, the omission of those statements from the evidence presented at trial would not have affected the outcome. As we explained in State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 87, “[if] a new hearing could not materially change the position of the parties, there is no need for either a new hearing or a new trial.”

{¶ 37} Although Sowell’s statements to police are incriminating, the state presented overwhelming independent evidence of guilt supporting Sowell’s convictions and sentence.

{¶ 38} Police located ten bodies and one human skull on Sowell’s property; eight of the victims appeared to have been strangled to death, and many of the bodies were found nude or nude from the waist down and/or had bindings, or the remains of bindings, around their wrists and/or ankles. The condition of the bodies establishes Sowell’s course of conduct in kidnapping women, sexually assaulting them, and strangling them to death. And significantly, five of Sowell’s victims survived and testified at trial, providing proof of his course of conduct.

{¶ 39} One, Vanessa Gay, testified that in September 2008, Sowell brought her to the third floor of his home to úse drugs but then punched her in the face, ordered her to take off her clothes, and repeatedly raped her over several hours. When Sowell permitted her to go to the bathroom, she saw something in a room off the hallway that looked like a headless body, propped up in a seated position and “taped up.” When she returned to the bedroom, Sowell said repeatedly, “You’re going to tell, I know you’re going to tell,” but she persuaded him to let her go.

{¶ 40} Another victim, Gladys Wade, testified that in December 2008, she had declined Sowell’s invitation to drink with him and was walking down Imperial Avenue when he grabbed her clothing, dragged her toward his house, and choked her until she lost consciousness. She awoke in Sowell’s house, and he ordered her to remove her clothes and punched her in the face. When she clawed his eyes and tried to escape, he began strangling her, saying, “you can scream all you want, you’re going to die.” She fought Sowell off, made it out of the house, and flagged down a police cruiser. Although Sowell was arrested, he was later released because the arresting officer mislabeled the offense on the incident report.

{¶ 41} A third female, Tanja Doss, testified that she had previously dated Sowell and had accepted an invitation to “get high” at his house in April 2009. After they watched a basketball game and smoked crack, Sowell seized her by the throat and began choking her, saying, “you can be the next crack head bitch dead up in the street and nobody give a fuck about you.” She complied with his order to remove her clothes, and she lay down on the bed, “curled up in * * * a fetal position,” and cried herself to sleep. The next morning, Sowell acted as if nothing had happened. Doss made up a story about going to see her granddaughter in the hospital, and he let her leave.

{¶ 42} Another victim, Latundra Billups, testified that she had previously smoked crack on the third floor of Sowell’s house and that sometime in September 2009, she accompanied him to drink beer with him at his home. After they smoked crack, Sowell took her to a room on the second floor that was empty except for a blanket and a piece of an extension cord. He hit her hard in the face, ordered her to remove her clothes, and raped her. As he was raping her, he placed the extension cord around her neck and choked her until she blacked out. When she awoke hours later, Sowell appeared “startled” and “shocked.” He told her that he was going to kill her and himself “because he knew he was going to jail,” but she persuaded him to release her.

{¶ 43} A fifth victim, Shawn Morris, testified that she met Sowell one morning in October 2009 and went to his home to drink and smoke crack. She left after five hours, but she came back to retrieve her identification card after she realized that she had left it in his house. After he opened the door and she came inside, Sowell placed her in a chokehold, forced her upstairs, ordered her to remove her clothes, and violently raped her. When he left the room to close windows to prevent her screaming from being heard, she escaped through a third-floor window and hung naked from a ledge. Sowell tried to pull her back in, but when he could not, he “shoved [her] down as hard as he could.” She fell to the ground, was seriously injured, and lost consciousness. Bystanders testified that Sowell, who was also naked, tried to bring her back inside the house while she was unconscious and bleeding, but a crowd had gathered and tried to prevent him from moving her due to the extent of her injuries. Although Sowell later did move her to the door of his house, emergency personnel arrived and transported her to the hospital.

{¶ 44} These five witnesses not only established a behavioral fingerprint identifying Sowell as the person who murdered the 11 women found in his house and buried in his yard, but also their testimony showed that he engaged in a course of conduct in which he lured women to his home with the promise of drugs and then kidnapped, sexually assaulted, and strangled them to death. See State v. Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). If there were any doubt that it was Sowell who murdered these women, it was eviscerated by the testimony of Wade, Billups, and Morris that he also tried to kill them.

{¶ 45} In his opening brief filed in this court, Sowell did not challenge the trial court’s ruling at the suppression hearing, nor did he challenge the sufficiency of the evidence supporting the convictions. Rather, his attorneys recounted the history of his case and wrote: “The jury, any jury, would find Sowell guilty of the 22 counts of aggravated murder. The jury, any jury, would find Sowell guilty of at least one Course of Conduct specification for each aggravated murder.” 'Sowell argued that based on the “overwhelming evidence” of guilt, the only reasonable strategy at trial was to concede guilt rather than pursue a defense that there was reasonable doubt as to who killed the victims. These admissions fortify the conclusion that the trial court’s error in closing the suppression hearing prior to admitting Sowell’s statements to police was not material.

{¶ 46} Accordingly, overwhelming independent evidence of guilt proves beyond a reasonable doubt that Sowell committed the aggravated murders of 11 women and the felony-murder and course-of-conduct death specifications associated with those counts, including the pattern of behavior engaged in by Sowell, his course of conduct, his identification by those who escaped together with the site of the killings, and the elaborate efforts to conceal the bodies. And with respect to the 11 death sentences imposed in this case, the evidence establishes that the aggravating circumstances overwhelmingly outweigh the mitigating factors.

{¶ 47} Thus, even if Sowell’s statements to police were suppressed, he would have been convicted and sentenced to death. Because the admission of his statements did not affect the outcome of the trial and because a new suppression hearing would not result in a material change in the positions of the parties, ordering a new suppression hearing would be a vain act, “an empty formality,” and just the type of “windfall” for the defendant that Waller sought to avoid. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 87.

Individual Voir Dire

{¶ 48} The court also closed the courtroom during the individual voir dire of prospective jurors. Not only did the defense not object to the closure, but it also filed a “Request for Individually Sequestered Voir Dire” specifically asking that individual voir dire take place “outside the presence and hearing of other members of the venire” and specifically requesting “individual sequestered voir dire unthin the Court’s chambers.” (Emphasis added.) In addition, at a pretrial conference on November 23, 2010, defense counsel asked that voir dire be conducted “individually and in camera.” (Emphasis added.) Defense counsel argued that “it would be better to do this limited individualized questioning in chambers so the jurors don’t have to worry about the camera and that their responses will be broadcast, etc.” Counsel noted, “My experience is [that in-chambers voir dire] encourages the jurors to be more forthright” and “will put the jurors more at ease and get more honest answers.” Later, counsel again asked the court to “please note our pi-eference of doing things in chambers initially.”

{¶ 49} After the completion of the individual voir dire and at the request of the prosecution, the trial court stated on the record its reasons for closing the courtroom for individual voir dire. The prosecutor then asked whether Sowell was willing to affirmatively consent to the procedure the trial court had used, but defense counsel declined, stating: “We waive nothing, your Honor.”

{¶ 50} The doctrine of invited error specifies that a litigant may not “take advantage of an error which he himself invited or induced.” Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. “This court has found invited error when a party has asked the court to take some action later claimed to be erroneous, or affirmatively consented to a procedure the trial judge proposed.” State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000). Moreover, the doctrine of invited error applies to the erroneous closure of courtroom proceedings. See State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 64, citing State v. Seiber, 56 Ohio St.3d 4, 17, 564 N.E.2d 408 (1990).

{¶ 51} Sowell contends that his request for individually sequestered voir dire sought only to have each prospective juror’s voir dire conducted outside the presence of other prospective jurors. He denies that his motion requested that the individual voir dire also be closed to the public. However, a request for an “in chambers” or “in camera” voir dire is equivalent to a request to exclude the public, since a judicial chambers “is ordinarily not accessible to the public.” State v. Wise, 176 Wash.2d 1, 12, 288 P.3d 1113 (2012). “In camera” has been defined to mean either “[i]n the judge’s private chambers” or “[i]n the courtroom with all spectators excluded.” (Emphasis added.) Black’s Law Dictionary 878 (10th Ed.2014). Moreover, a trial court may not exclude cameras from “court proceedings that are open to the public.” See Sup.R. 12(A). Thus, defense counsel’s explicit request for voir dire in chambers, with cameras excluded, cannot be interpreted as anything but a request to close the proceedings to the public. Further, defense counsel stated that the defense was not waiving the right to a public trial only after the closed individual voir dire that counsel had requested was completed.

{¶ 52} Accordingly, Sowell invited the court to close the individual voir dire in this case, and pursuant to the invited-error doctrine, he is not entitled to complain of an error that he himself induced the trial court to commit.

{¶ 53} Thus, Sowell’s supplemental propositions of law are overruled.

Change of Venue

{¶ 54} In the first proposition of law, Sowell contends that prejudicial pretrial publicity denied him a fair trial, that the publicity was so pervasive that the trial court should have presumed prejudice, and that the court erred by denying his requests for a change of venue.

{¶ 55} The voir dire began in June 2011, more than 18 months after the discovery and exhumation at Sowell’s home located in a major metropolitan area. Although Sowell refers to Cleveland as a “small city,” the pool of jurors was drawn from Cuyahoga County, whose population in the 2010 Census was 1,280,122. See www.census.gov/2010census/popmap/ipmtext.php?fl=39:39035 (accessed Oct. 17, 2016).

{¶ 56} The larger the community, the more likely that impartial jurors can be found within it. See State v. Gribble, 165 N.H. 1, 19-20, 66 A.3d 1194 (2013). And “[i]t is well recognized that in a small rural community ‘in contrast to a large metropolitan area, a major crime is likely to be embedded in the public consciousness with greater effect and for a longer time.’ * * * Thus both the size and the character of the county’s population, while not determinative, are factors to be considered.” People v. Hamilton, 48 Cal.3d 1142, 1158, 259 Cal.Rptr. 701, 774 P.2d 730 (1989), quoting People v. Martinez, 29 Cal.3d 574, 581, 174 Cal.Rptr. 701, 629 P.2d 502 (1981).

{¶ 57} The record indicates widespread knowledge of the case in Cuyahoga County. Almost 200 prospective jurors completed a questionnaire containing a question about pretrial publicity. Responses to that question indicate that only about six of the prospective jurors had not been exposed in some form to pretrial publicity about the case. During voir dire, 128 members of the venire were questioned about pretrial publicity. Of these, all but three had been exposed to some pretrial publicity about Sowell’s case, but 62 of them stated that they had not formed an opinion about the case and could set aside whatever they had heard; 17 others had formed opinions about Sowell’s guilt but stated that they were able to set their opinions aside and decide the case on the basis of the evidence presented in court. Eight others had formed opinions, but the court excused them for other reasons. Only 22 jurors were excused for cause on the ground that they had formed opinions that they could not set aside.

{¶ 58} Sowell relies on Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), where “370 prospective jurors or almost 90% of those examined on the point * * * entertained some opinion as to guilt,” and 268 — over 62 percent of those examined on pretrial publicity — were actually excused “as having fixed opinions as to the [accused’s] guilt.” That is not the circumstance exhibited in this case, and Irvin is therefore factually distinguishable. The publicity prior to Sowell’s trial was not so pervasive that Sowell was denied a fair trial.

{¶ 59} In State v. Lundgren, 73 Ohio St.3d 474, 479-480, 653 N.E.2d 304 (1995), we held that the court had not abused its discretion in denying a change of venue under circumstances comparable to those in this case:

The trial court selected a jury following an extensive eight-day voir dire which included individualized questioning as to the impact of pretrial publicity. The trial court readily excused those in the venire who had formed fixed opinions or were otherwise unsuitable. The jurors selected did not appear to have been excessively exposed to media publicity. Those who said they held views expressed tentative impressions and all of the jurors selected promised to set aside any information received or views held and decide the case only on the evidence offered at trial. Despite the fact that pretrial publicity was extensive, the trial judge was in the best position to judge each juror’s demeanor and fairness. [The accused] has not established the rare case in which prejudice is presumed.

(¶ 60} Similarly, here, we cannot conclude that the trial court abused its discretion in denying Sowell’s motions for change of venue. We overrule this proposition of law.

Voir Dire

Discussion of Mitigating Factors

{¶ 61} Sowell’s second proposition of law asserts that the trial court impermis-sibly restricted voir dire of prospective jurors by refusing to let defense counsel inquire of them regarding their understanding of and attitudes toward the mitigating factors that could arise based on the evidence in the case. This claim is not well taken. In State v. Jones, 91 Ohio St.3d 335, 338, 744 N.E.2d 1163 (2001), this court held: “During voir dire, a trial court is under no obligation to discuss, or to permit the attorneys to discuss, specific mitigating factors.” Thus, this proposition of law is overruled.

Challenges for Cause

{¶ 62} The third proposition of law contends that the trial court erred in overruling challenges for cause to a number of prospective jurors.

{¶ 63} On a challenge for cause, “[t]he ultimate question is whether the ‘juror sw[ore] that he could set aside any opinion he might hold and decide the case on the evidence, and [whether] the juror’s protestation of impartiality [should be] believed.’ ” (Brackets sic.) White v. Mitchell, 431 F.3d 517, 538 (6th Cir.2005), quoting Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). A trial court’s resolution of a challenge for cause will be upheld on appeal unless it is so unsupported by substantial testimony that it constitutes an abuse of discretion. State v. Tyler, 50 Ohio St.3d 24, 31, 553 N.E.2d 576 (1990); State v. Wilson, 29 Ohio St.2d 203, 211, 280 N.E.2d 915 (1972).

Death Qualification

{¶ 64} A defendant has a constitutional right to exclude for cause any prospective juror who will automatically vote for the death penalty. Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). “A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.” Id. at 729.

{¶ 65} Question 7 on the jury questionnaire asked: “In your opinion, is the death penalty the only appropriate sentence in a case involving the purposeful killing of 11 people * * * at separate times over a two and one-half year period or would a sentence of life in prison without the possibility of parole also be an appropriate sentence?” Sowell contends that several prospective jurors answered this and other questions in a way that shows them to be automatic votes for a death sentence in the event of conviction.

{¶ 66} In response to this question, Juror 23 wrote: “Yes, the death penalty is appropriate if found guilty.” However, in response to a different question asking jurors to state “your GENERAL FEELINGS regarding the death penalty” (boldface and capitalization sic), Juror 23 stated: “an eye for an eye seems fair depending on the circumstances. But I think it’s on a case by case basis.” On Question 8, asking whether a life sentence with possible parole after 25 or 30 full years could be appropriate, Juror 23 wrote: “I’m not sure if any of these questions can be answered without first hearing the facts.” And on Question 9, which asked: “What would be important for you to know in deciding whether to impose a life sentence without the possibility of release or a sentence of death?” the juror wrote: “Everything.” The answers to Questions 8 and 9 support the trial court’s finding that Juror 23 was not an automatic-death-penalty juror.

{¶ 67} That is further confirmed by Juror 23’s voir dire, which Sowell glosses over in his focus on the questionnaire. Juror 23 said: “[E]very situation is different, but * * * if someone knowingly and purposely kills another human being, * * * you would have to look at their reasons for it, and why, and * * * if * * * they knew exactly what they were doing, then I think they should also die.” Juror 23 later disagreed when defense counsel suggested that the following statement represented his views: “[RJegardless of the second phase, if you take a life * * * in phase one, if you’re found guilty, and you’ve taken a life, then your life must be taken.” Juror 23 responded: “No. * * * I said on a case-by-case circumstance.” He stated that he could consider each of the life alternatives if the aggravating circumstances were outweighed by the mitigating factors. Thus, the record supports the trial court’s ruling on Sowell’s challenge for cause.

{¶ 68} On the questionnaire, Juror 46 answered the question regarding whether the death penalty was the only appropriate sentence by stating, “I strongly believe he should go straight to death row with no chance of appeals. The only decision left to be made is the date of his execution.” However, on voir dire she said she could consider all three of the lesser options. When asked about what she had written on her questionnaire, she stated: “My answer is based on all of the * * * information that I had going into this case, without knowing the evidence, without knowing * * * any other * * * details.” She stated: “Those are my views, but * * * if I was chosen as a juror, I would take it as my job, I would take it seriously and I would leave all of that at the door.” Accordingly, the record supports the trial court’s denial of Sowell’s for-cause challenge to this juror.

{¶ 69} Juror 60 was asked during voir dire if he would consider a defendant’s background in deciding on a sentence. Juror 60 agreed “[o]nly to the extent that it was part of the evidence presented by either side or both sides * * *. If that was part of the evidence * * * as to what happened and why and so on, only to that extent. Otherwise, no.” He then stated that he would consider “all factors that are relevant presented by both sides,” but “[o]nly relevant factors.” He clarified that if either side brought up something that was “totally irrelevant to what is being discussed,” he would “disregard that as a nonissue.”

{¶ 70} The defense challenged Juror 60 for cause on the ground that he “has his own concept of what is relevant, which may be inconsistent with what the law says.” The trial judge overruled the challenge. The judge found that Juror 60’s answer indicated that he “doesn’t take any preconceived opinions with him concerning anything” and “would consider all factors.”

{¶ 71} Juror 60 was not an automatic-death-penalty juror and thus had not “already formed an opinion on the merits.” Morgan, 504 U.S. at 728, 112 S.Ct. 2222, 119 L.Ed.2d 492. Moreover, the trial court appears to have understood Juror 60’s statement that he would “disregard” evidence that was “totally irrelevant to what is being discussed” as meaning that he would give no weight to evidence that he did not find to be mitigating. The judge’s view of Juror 60’s words is reasonable.

{¶ 72} Question 8 on the jury questionnaire asked: “In your opinion, in a case [involving the purposeful killing of 11 people], would a sentence of life in prison with the possibility of parole after either 25 full years of imprisonment, or 30 full years of imprisonment, also be an appropriate sentence?” Sowell claims that several prospective jurors should have been disqualified because their answers to Question 8 indicated that they were unable to consider the full range of possible life-sentencing options.

{¶ 73} Juror 21 answered “No” to Question 8 with no elaboration. But, while the defense challenged Juror 21 for cause, it did not challenge him on the ground Sowell now cites — his alleged inability to consider the full range of sentencing options. Moreover, as Sowell concedes, Juror 21 stated during voir dire that he could fairly consider a life sentence with possible parole after either 25 or 30 full years.

{¶ 74} Juror 22 answered “No” to Question 8 without further elaboration. But on voir dire, she stated that she could fairly consider the options of life with possible parole after 25 or 30 full years.

{¶ 75} Juror 24 said during voir dire that she “would not lean toward” life with parole eligibility after 25 full years and that she “tvould be more negative toward that.” When asked what her answer “today” would be to Question 8 about a life sentence with possible parole, she said: “My answer today is leaning toward no. I might have a little bit of flexibility, but I am definitely leaning towards no.” This answer applied to the parole-after-25-years life sentence; asked about life with possible parole after 30 years, she stated: “That’s a possibility that I may be more flexible and say possibly.” But she repeated that she could not fairly consider life with possible parole after 25 years.

{¶ 76} After follow-up questioning about some of the concepts, the prosecutor asked Juror 24 to explain her answer on the questionnaire stating that a sentence of life with possible parole after 25 or 30 years would not be appropriate. Juror 24 stated: “[F]rom what you’re saying to me, it changed my opinion on the no.” (Emphasis added.)

{¶ 77} Under defense questioning, she again stated that she could not fairly consider a life sentence with parole eligibility after 25 years:

MR. PARKER: * * * So the question is, even though Mr. Sowell * * * in this hypothetical, he’s been found guilty of aggravated murder and * * * at least one of the specifications * * *, under that situation * * * can you fairly consider a sentence of 25 full years of imprisonment before the possibility of parole?

JUROR NO. 24: I was given the option of 30 prior, and it seems to make a difference to me.

MR. PARKER: Okay, we’ll ask both. Let’s start with 25.

JUROR NO. 24: No.

MR. PARKER: The answer for 25 is no?

JUROR NO. 24: Yes.

MR. PARKER: You’d have an easier time with 30?

JUROR NO. 24: Easier time with 30.

MR. PARKER: Twenty-five, your answer is no.

JUROR NO. 24: No.

(Capitalization sic.)

{¶ 78} Finally, the trial judge explained to the juror that “we’re not asking you to choose a sentence today” and then stated:

The only thing we want to know is * * * if the State is not able to prove that death is an appropriate sentence, would you be able to consider all three of those life options?

In other words, I think the question is going to be are you going to rule out one right off the bat, because that’s the way you feel today, and there is nothing that is going to change your mind?

JUROR NO. 24: You really helped clarify it, my answer is not no, it’s yes.

THE COURT: You would consider all three?

JUROR NO. 24: I would in that case.

(Capitalization sic.)

{¶ 79} Juror 24’s final response suggests that her earlier answers were the product of confusion. Once the specifics were clarified for her, her answer was “not no, it’s yes.” This final response indicated that she would consider all three life options.

{¶ 80} Juror 34 answered “No” without elaboration to Question 8 regarding the propriety of a life sentence with possible parole. However, on voir dire, he was asked if “after listening to everything, after weighing everything,” he could “fairly consider a sentence of * * * 25 full years to life?” He said: “Yes, I probably could.”

{¶ 81} Juror 36 indicated on her questionnaire that death or life without parole would be the only appropriate sentences and that life with possible parole after 25 or 30 years would not be appropriate. At one point during voir dire, she appeared to reiterate that opinion. However, the trial court asked her whether she could consider all three sentencing options, and she stated that she could.

{¶ 82} Juror 62 indicated on her questionnaire that a life sentence with possible parole after 25 or 30 years would not be an appropriate sentence, in her opinion. On voir dire, asked again to give “just [her] opinion,” she stated that death was the only appropriate penalty for the purposeful, planned killing of an innocent person. Nevertheless, when asked on voir dire if she could consider the options of “25 full years to life” or “30 full years to life,” Juror 62 stated that she could consider both “after hearing the facts.”

{¶ 83} In each of these instances, the trial court determined that the juror’s protestation of impartiality should be believed. See Patton, 467 U.S. at 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847. And in each instance, the trial court’s determination was supported by “substantial testimony” given by each juror. Tyler, 50 Ohio St.3d at 31, 553 N.E.2d 576. Each challenged juror indicated that he or she was able to put aside his or her opinion that a life sentence involving possible parole was inappropriate for a case similar to this one.

{¶ 84} The trial court did not abuse its discretion when it accepted the sworn statements of these jurors on voir dire that they could set aside the opinions they had expressed on the questionnaire. It was the trial court’s province to determine each juror’s credibility, and the record does not show that the trial court abused its discretion with respect to any of these jurors.

Pretrial Publicity or Knowledge of Case

{¶ 85} Juror 22, who has been mentioned previously, answered yes to a question on her questionnaire asking whether she had “read, seen or heard media accounts” of this case. She wrote that she recalled “[h]ow they kept finding more & more bodies buried in and around this man’s house. And the painfull [sic] reactions of so many families * * *.”

{¶ 86} On voir dire, Juror 22 admitted forming an opinion “[t]hat more than likely Mr. Sowell was * * * the perpetrator” because “[t]he evidence that I heard through the media pointed in that direction.” However, she specifically stated on voir dire that she would set aside that opinion and anything she had previously heard and would base her decision solely on the evidence that would come before her. She also stated that she had not been “glued to the TV wanting to know” about the murders. And while she recalled seeing televised reports on the finding of the bodies, she did not “know * * * any fine details.”

{¶ 87} When the defense challenged Juror 22 for cause, counsel argued that her “body language” contradicted her promise to set aside what she had heard about the case. The trial judge rejected that claim: “I don’t think there was any body language that would indicate that she was trying to say two different things.” This is the type of credibility determination that falls within the trial court’s discretion. We decline to disturb it.

{¶ 88} Juror 62, who has been mentioned previously, disclosed on voir dire that she had once lived across from Sowell’s house on Imperial Avenue. The defense challenged this juror for cause in part because, according to defense counsel, “it seems that she has quite a bit more information about the particular case than I think she’s really telling us.” However, nothing in the record supports that impression. Juror 62 had lived on Imperial Avenue “about 30 years earlier” and for only “a couple of months.” Her decades-old connection with the area provides no reasonable basis to disturb the trial judge’s decision to deny the challenge for cause.

{¶ 89} None of the claims in this proposition of law justify a finding that the trial court abused its discretion in denying these challenges for cause. This proposition is not well taken.

Guilt Phase

Use of Initials to Sign Verdicts

{¶ 90} In the tenth proposition of law, Sowell argues that 195 of the 196 verdicts the jury returned failed to comply with the requirement of Crim.R. 31(A) and R.C. 2945.171 that the verdict be “signed” by the jurors.

{¶ 91} When the court submitted the case to the jury during the guilt phase of trial, it noted that the jury would probably have “a couple hundred verdict forms * * * compiete.” The judge said: “In order to facilitate that, * * * I think you can sign your names to the first series of verdict forms and perhaps even initial after your name so we have an idea or recognition of your initials. Then you can probably use your initials after that because as long as we know that it’s your mark and that it is your verdict, then it is a proper form.”

{¶ 92} After the jury was instructed to deliberate, defense counsel objected to the trial court’s decision to permit the jurors to complete the verdict forms by initialing them. The jurors completed the verdict forms as suggested by the trial court.

{¶ 93} Crim.R. 31(A) provides: “The verdict shall be unanimous. It shall be in writing, signed by all jurors concurring therein, and returned by the jury to the judge in open court.” Likewise, R.C. 2945.171 provides: “In all criminal cases the verdict of the jury shall be in writing and signed by each of the jurors concurring therein.”

{¶ 94} Sowell contends that “signed,” as used in Crim.R. 31(A) and R.C. 2945.171, requires more than mere initials — that these provisions create a “requirement of signing one’s name.” The state argues that initials can constitute a signature if the juror initialing the verdict form so intends and if there is no prejudice from the use of initials.

{¶ 95} In cases involving statutory interpretation, the court “must begin [its] analysis by examining the language of the statute.” State v. Hanning, 89 Ohio St.3d 86, 91, 728 N.E.2d 1059 (2000). “Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” R.C. 1.42.

{¶ 96} The term “signed” is not limited in meaning to the writing of one’s name in full. Black’s Law Dictionary defines the verb “sign” as follows: “To identify (a record) by means of a signature, mark, or other symbol with the intent to authenticate it as an act or agreement of the person identifying it * * *.” (Emphasis added.) Black’s at 1593. See also 2 Burrill, Law Dictionary and Glossary 467 (2d Ed.1860) (signature may be “expressed by the party’s initials”); 2 Rapalje & Lawrence, A Dictionary of American and English Law 1192 (1883) (“a person signs a document when he writes or marks something on it in token of his intention to be bound by its contents”).

{¶ 97} In construing the term “signed,” we note that Crim.R. 1(B) provides that the Rules of Criminal Procedure “shall be construed and applied to secure the fair, impartial, speedy, and sure administration of justice, simplicity in procedure, and the elimination of unjustifiable expense and delay.” See also R.C. 2901.04(B).

{¶ 98} We conclude that the term “signed,” as used in Crim.R. 31(A) and R.C. 2945.171, is not limited to full signatures and that Crim.R. 31(B) will permit jurors to use their initials to sign verdict forms at the direction of a trial court in the exercise of its discretion. Doing so will promote speed, administration of justice, and simplicity in procedure. Nor can we see any reason to suppose that our construction in this instance would hinder the “fair, impartial, speedy, and sure administration of justice.”

{¶ 99} Our conclusion in this case recognizes that the jurors had 196 verdict forms to sign during the guilt phase of the trial, and in these circumstances, we do not believe that the trial court acted unreasonably, unconscionably, or arbitrarily by permitting jurors to sign one verdict form with their full signatures and then permitting them to use their initials to signify assent to the 195 remaining verdicts. Nothing in the record suggests that any of the jurors did not actually initial the verdict forms or that they did not intend their initials to function as their signatures. Accordingly, we overrule this proposition of law.

Admission of Victimr-Impact Evidence

{¶ 100} In the sixth proposition, Sowell alleges that the trial court violated his constitutional rights by admitting victim-impact evidence during the guilt phase of trial, when family members of the victims testified about the victims. Sowell, however, fails to identify any specific testimony that should have been excluded and states in general terms that the state called 21 witnesses whose testimony filled 800 pages contained within nine volumes of transcript. “We are not obligated to search the record or formulate legal arguments on behalf of the parties * * *." Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 19. Accordingly, this proposition of law is overruled.

Indictment

Death Specifications

{¶ 101} In the 11th and 12th propositions of law, Sowell takes issue with the manner in which the death specifications were alleged in the indictment and with the instructions submitted to the jury.

Course-of-Conduct Specifications

{¶ 102} The 11th proposition of law alleges that the state charged Sowell with duplicative course-of-conduct specifications.

{¶ 103} The indictment charged Sowell with 13 course-of-conduct death specifications for each count of aggravated murder. Each course-of-conduct specification charged him with a course of conduct consisting of the purposeful killing of the victim named in the aggravated-murder count and the purposeful killing (or attempt to kill) one of the other victims. For example, Count 1 charged Sowell with the aggravated murder of Tonia Carmichael. Specification 3 to Count 1 charged that the aggravated murder of Carmichael “was part of a course of conduct in which the offender purposely killed Tonia Carmichael and also purposely killed Nancy Cobbs.” Specification 4 was identical, except that Tisha-na Culver’s name was substituted for that of Cobbs. Thus, each victim of aggravated murder or attempted murder was named in a separate course-of-conduct specification.

{¶ 104} We have repeatedly held that this is not the correct way to allege course-of-conduct specifications under R.C. 2929.04(A)(5). “Multiple course-of-conduct specifications are duplicative and must be merged at the sentencing phase. * * * In fact, such multiple course-of-conduct specifications should not even be included in an indictment.” State v. Mitts, 81 Ohio St.3d 223, 231, 690 N.E.2d 522 (1998). “Each aggravated murder count should thus contain only one specification that [the defendant’s] acts were part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons.” State v. Spisak, 36 Ohio St.3d 80, 84, 521 N.E.2d 800 (1988).

{¶ 105} However, we have also stated: “[I]f such multiple specifications are included in an indictment, the ‘trial court should instruct the jury in the penalty phase that those duplicative specifications must be considered merged for purposes of weighing the aggravating circumstances against the mitigating factors.’ ” Mitts at 231, quoting State v. Garner, 74 Ohio St.3d 49, 53, 656 N.E.2d 623 (1995). As Sowell concedes, in this case, the trial court did instruct the jury that the duplicative course-of-conduct specifications were merged into a single course-of-conduct specification.

{¶ 106} Sowell contends, however, that the trial court’s correct instruction to the jury to consider only one course-of-conduct specification for each aggravated murder was insufficient to prevent prejudice. He argues that “the spillover effect of having previously determined 13 course-of-conduct specifications is inescapable and necessarily tainted the weighing process.” This contention is speculative at best and inconsistent with the presumption that jurors follow the instructions given by a trial court judge. See, e.g., State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 54.

{¶ 107} Sowell also points out that the prosecutor’s closing penalty-phase argument repeatedly stressed the number of victims involved in this case. However, there was nothing unfairly prejudicial in asking the jurors to consider the number of murders and attempted murders. The jury is required to consider evidence relevant to “the nature and circumstances of the aggravating circumstances.” R.C. 2929.03(D)(1). Even though there was only one course of conduct, the number of murders and attempted murders making up that course of conduct is relevant to the nature and circumstances of the aggravating circumstance.

{¶ 108} Accordingly, Sowell’s 11th proposition is overruled.

Felony-Murder Specifications

{¶ 109} The felony-murder specifications attached to each aggravated-murder count charged that Sowell either “was the principal offender in the commission of the Aggravated Murder, or, if not the principal offender, committed the Aggravated Murder with prior calculation and design.” During the guilt phase of the trial, when instructing the jury on the felony-murder specification, the court did not instruct the jurors that in order to convict Sowell of that specification, they had to agree unanimously on which of these two alternatives (principal offender or prior calculation and design) they found Sowell guilty.

{¶ 110} Sowell’s 12th proposition of law correctly notes that the trial court’s failure to so instruct constitutes error. See State v. Moore, 81 Ohio St.3d 22, 40, 689 N.E.2d 1 (1998).

{¶ 111} Sowell’s contention is that the jury may have reached “patchwork verdicts” on the specification, i.e., finding him guilty of the specification without unanimously finding that one of the two alternatives had been proven. Sowell concedes, however, that he failed to object at trial, and therefore plain error is the appropriate standard of review.

{¶ 112} Plain error does not exist in this instance, because the jury unanimously found Sowell guilty of each of the aggravated-murder counts. And for each victim, one of the aggravated-murder counts alleged that Sowell acted with prior calculation and design. Those verdicts reflect the jury’s unanimous determination that Sowell had committed each of the murders with prior calculation and design. Hence, contrary to Sowell’s argument, there is no possibility that the trial court’s omission of the unanimity instruction in this case led to a patchwork verdict. See State v. Woodard, 68 Ohio St.3d 70, 75, 623 N.E.2d 75 (1993); Moore at 40, citing State v. Burke, 73 Ohio St.3d 399, 405, 653 N.E.2d 242 (1995).

{¶ 113} Thus, Sowell cannot demonstrate that the outcome of the guilt phase clearly would have been different but for the alleged error. No plain error is present, and Sowell’s 12th proposition is overruled.

“Carboiu-Copy” Rape Counts

{¶ 114} The indictment aga