State v. LaMar (95 Ohio St. 3d 181, 2002)

Cook, J.

{¶ 1} The appellant, Keith LaMar, was convicted of murdering five prison inmates during the infamous April 1993 riot at the Southern Ohio Correctional Facility (“SOCF”) in Lucasville. The trial court sentenced LaMar to death for four of these murders. For the reasons that follow, we affirm.

I. Factual Background

{¶ 2} On the afternoon of April 11, 1993, a group of Muslim inmates seized control of cellblock “L” (“L-Block”) at SOCF. The rioting inmates took several guards hostage and locked inmates considered “snitches” into various cells in the L-6 section of L-Block. The Muslim inmates maintained control of unit L-6 while two other dominant groups — the Aryan Brotherhood (a racist group of white inmates) and the Black Gangster Disciples (a prison gang) — controlled other units within L-Block.

{¶ 3} On the day of the riot, LaMar was an SOCF inmate serving a sentence of eighteen years to life for a 1989 murder conviction. LaMar, who was not a Muslim, did not plan or participate in the prison takeover and was in the prison recreation yard when the riot began. But after the commotion began, LaMar and two other inmates, Louis Jones and Derek Cannon, went back inside L-Block to check the personal belongings in their respective cells. When the three were unable to get back outside because the Muslims had closed access to and from L-Block, LaMar said to Jones and Cannon, “Ain’t no need in us staying in here getting caught up in something we’re not a part of. Let’s kill all the snitches and get out to the yard.”

{¶ 4} LaMar approached Cecil Allen, a leader of the Muslim group of inmates, and asked, “if we kill the snitches, could we be let out to the yard so we don’t be a part of this?” Allen consulted with the Muslim leadership and returned a few minutes later to tell LaMar that the “orders has [sic] been granted to kill the snitches.”

{¶ 5} After Allen granted permission to “kill the snitches,” LaMar, Jones, and Cannon walked around the L-Block corridor to enlist other inmates to help them. Eventually, the group recruited Hiawatha Frezzell (a.k.a. “Pittsburgh”), Eric Scales (a.k.a. “Tiger”), Derrick Mathews, Rasheem Matthews, Albert Young (a.k.a. “Da-Da”), and Gregory Curry to join the newly formed death squad. LaMar’s group proceeded to unit L-2, where they retrieved bats, shovels, and weight bars to use as weapons. The men also wore masks fashioned from T-shirts, towels, and bandannas.

{¶ 6} After arming and disguising themselves, LaMar and his group returned to L-6. Inmate Timothy Grinnell was operating the console that controlled the cell doors within L-6. LaMar led his group to the upper tier of the cellblock and instructed Grinnell to open a cell occupied by Andre Stockton. After Grinnell complied with the demand, LaMar and Curry entered the cell and beat Stockton with a shovel and a baseball bat. Other members of the group dragged Stockton from the cell and participated in the beating.

{¶ 7} After beating Stockton, the group went downstairs to the lower tier of L-6. LaMar yelled at Grinnell to open the cells occupied by inmates Ellis Walker and Darrell Depina. After Walker refused to comply with LaMar’s command to come out of the cell, LaMar and Curry dragged him to the main floor of the cellblock and beat him repeatedly. Other members of the death squad also participated in Walker’s beating. LaMar then ordered Depina out of his cell. When Depina refused, LaMar entered the cell and hit him several times before dragging him to the main floor, as he had done with Walker. LaMar continued to beat Depina with a baseball bat, striking him several times. Other members of LaMar’s group joined in beating Depina, who died from his injuries.

{¶ 8} When LaMar finished beating Depina, he ordered Grinnell to open a cell occupied by Bruce Vitale. When Vitale refused to come out of the cell, LaMar hit him on the head with a shovel. LaMar continued beating Vitale on the head and at one point knocked a tooth out of Vitale’s mouth. Vitale tried to defend himself by crawling under the bed, but LaMar and Curry dragged him out of the cell and continued the beating, joined by other members of the death squad. At one point, LaMar told Jones, “I didn’t bring you all in here to stand around,” when he noticed that Jones was not participating in the assault. Vitale was still alive when the group left him but died after Frezzell and another member of LaMar’s group stabbed and beat him again.

{¶ 9} LaMar continued on to a nearby cell occupied by Thomas Taylor, another suspected snitch. Before LaMar could order Taylor’s cell opened, a Muslim inmate named Harris intervened and told LaMar that Taylor was under Muslim protection. LaMar angrily pushed Harris out of the way, saying, “If he [Taylor] is in there, he’s a snitch. Fuck it. Kill him.” After Taylor told LaMar that he was not a snitch, LaMar agreed to spare Taylor’s life, but only if Taylor would kill Albert Staiano, who was locked in an adjacent cell, To save his own life, Taylor agreed. LaMar ordered Taylor’s and Staiano’s cells opened and commanded one of the other inmates to give a baseball bat to Taylor. Staiano tried to run from his cell, but fell to the ground when Frezzell tripped him. Taylor hit Staiano over the head several times with the baseball bat and then, after the bat broke, with a fire extinguisher. Other death-squad members, not including LaMar, joined in the assault and stabbed Staiano repeatedly. When the beating ended, LaMar ordered Taylor to return to his cell. Taylor eventually pleaded guilty to involuntary manslaughter for his role in Staiano’s death.

{¶ 10} The death squad’s next stop was a cell occupied by Michael Trocadero and four to five other inmates. LaMar ordered Grinnell to open the cell, but Grinnell refused, saying that the Muslim leadership did not want those inmates killed. As LaMar and his group began to leave L-6, it passed the cell of William Svette, an elderly inmate who used a walker to move himself around. Svette, who appeared to have been beaten earlier, cursed the death squad with obscenities and racial epithets. On LaMar’s order, Grinnell opened Svette’s cell, where LaMar and Curry beat Svette over the head with a baseball bat and a shovel. LaMar started to leave the cell but returned to beat Svette again after noticing that Svette’s legs were moving.

{¶ 11} Svette remained alive after the death squad left his cell. A short time later, on Grinnell’s instructions to make sure all of the victims in L-6 were dead, inmate Eric Girdy struck Svette across the head twice more with a baseball bat. Svette continued to live after Girdy’s beating and was still alive after inmate Robert Bass, on orders from one of the Muslim inmates, dragged Svette’s body to a ramp near a prison recreation area. Svette eventually died after yet another inmate, Freddie Frakes, beat him yet again with a baseball bat.

{¶ 12} After finishing their rampage, LaMar and the others left L-Block and joined the large contingent of inmates gathered in the recreation yard. Many of the participants in the L-6 killings remained together and discussed what had transpired. During this time, LaMar saw inmate Dennis Weaver in the recreation yard and told Curry, “I wish Weaver was in there. I’d have killed him, too.”

{¶ 13} Early the following morning, law enforcement officers surrounded the approximately three hundred inmates gathered in the recreation yard and herded them to a gymnasium on the SOCF grounds, where the inmates were handcuffed and taken to various cells around the prison. LaMar occupied a cell in K-Block with nine other inmates: Scales, Frezzell, Weaver, William “Geno” Washington, Jeffrey Mack, Michael Childers, Ricky Rutheford, William Bowling, and John Malveaux. These ten inmates remained in the cell without incident for the rest of the day.

{¶ 14} The next day, however, tensions began rising in the cell. LaMar and Scales began harassing Weaver, accusing him of being a snitch and telling him that “all snitches should be killed.” Weaver denied being a snitch and urged his fellow cellmates to protest what he perceived as mistreatment of the inmates who were not involved in the riot. LaMar became incensed by Weaver’s comments, yelled “shut up, snitch,” punched Weaver in the face, and relegated him to a corner of the cell. Scales and Mack also joined in the attack on Weaver. LaMar later ordered that Weaver, Malveaux, Bowling, and Childers be tied up.

{¶ 15} Later that day, LaMar announced to the cellmates that “I want Mr. Weaver dead. I want that snitch dead right now.” LaMar then accused Bowling of being a snitch and threatened to kill Bowling if Bowling did not kill Weaver. LaMar untied Bowling, handed him some string, and watched Bowling choke Weaver. LaMar also threatened Rutheford, who then aided Bowling in the assault by holding Weaver’s feet. LaMar became impatient with Bowling’s progress and told Childers, “[I]f you want to live, if you ain’t no snitch, then you help kill him.” LaMar then untied Childers, who complied with LaMar’s order by choking Weaver, using the ropes with which LaMar had tied Childers’s wrists. When Childers began hitting and kicking Weaver, LaMar told him to “just strangle him” because LaMar wanted “to make it look like he hung hisself.” LaMar aided Childers by stuffing toilet paper and pieces of plastic down Weaver’s throat in an effort to silence him. Weaver eventually died while Childers was choking him.

{¶ 16} After Weaver died, LaMar instructed Bowling and Malveaux to move the body to a corner of the cell. He also ordered them to tie a string from a cell mattress around Weaver’s neck “and hook it to the coat hook to make it look like a suicide.” And before corrections officers removed Weaver’s body, LaMar instructed everyone in the cell to tell them that Weaver had killed himself.

{¶ 17} The grand jury indicted LaMar on nine counts of aggravated murder for his role in the deaths of Depina, Vitale, Staiano, Svette, and Weaver. Five of the aggravated-murder counts alleged that LaMar killed each of the victims with prior calculation and design. R.C. 2903.01(A). The remaining counts charged LaMar with murdering Depina, Vitale, Staiano, and Svette while committing or attempting to commit kidnapping. R.C. 2903.01(B). In addition, the grand jury charged LaMar with four death-penalty specifications attached to the first eight counts of the indictment: R.C. 2929.04(A)(4) (murder committed in a detention facility); (A)(5) (prior murder conviction); (A)(5) (murdering two or more victims); (A)(7) (murder committed while committing or attempting to commit kidnapping). The ninth count, charging Weaver’s murder, alleged only three of these specifications; it did not charge LaMar with the kidnapping specification.

{¶ 18} At trial, LaMar testified on his own behalf and denied committing any of the five murders. LaMar testified that he was in the recreation yard when the riot began and went back inside L-6 briefly to get his personal belongings. LaMar explained that while inside, he spoke briefly with Allen after Grinnell had accused LaMar of trying to “get guys out the cells.” According to LaMar, Allen did not believe Grinnell and allowed LaMar to leave the cellblock. LaMar testified that he returned to the recreation yard and never went back into L-6 that day. He told the jury that he stayed in the recreation yard until the early morning hours of April 12, when corrections officers and state troopers surrounded the yard and ordered the inmates into the gymnasium. LaMar’s alibi testimony was corroborated by four inmate witnesses who each testified to having seen and talked to LaMar in the yard during the early stages of the riot.

{¶ 19} LaMar also testified to the events surrounding Weaver’s murder, which took place after officers placed the two men, along with eight others, in a holding cell in K-Block. LaMar stated that he and Scales argued with Bowling about the distribution of food and admitted to punching Bowling in the face. He denied, however, tying up other inmates or assaulting Weaver. According to LaMar, Bowling tied up Childers and started punching Weaver after Weaver came to Childers’s defense. LaMar testified that Bowling then grabbed Weaver around the neck in a “half Nelson” until Weaver lost consciousness. Bowling then untied Childers, who also choked Weaver until Weaver died. LaMar admitted lying to investigators about the events leading to Weaver’s death, but said that he lied because he didn’t “want nothing to do with it.”

{¶ 20} Two defense witnesses corroborated LaMar’s account of Weaver’s murder. Inmate Cory Perkins, who was in an adjacent cell, testified that he heard Bowling call Weaver a “snitch.” Perkins also testified that he heard someone else in the cellblock suggest that Weaver be killed. William Washington, who was in the K-Block cell with LaMar and Weaver, also corroborated LaMar’s story by identifying Bowling and Childers as the inmates who killed Weaver. According to Washington, LaMar did not touch Weaver, did not order anyone to hurt Weaver, and did not say anything about Weaver. On cross-examination, however, the prosecution impeached Washington with a prior statement in which he identified LaMar as one of Weaver’s assailants.

{¶ 21} The jury returned guilty verdicts on all the charges and specifications alleged in the indictment. Following the penalty-phase proceedings, the jury recommended the death penalty for the murders of Depina, Vitale, Svette, and Weaver. For Staiano’s murder, the jury found that LaMar should be sentenced to life imprisonment with parole eligibility after thirty years. The trial court issued a sentencing opinion in which it agreed with the jury’s recommendation and sentenced LaMar to death for the murders of Depina, Vitale, Svette, and Weaver. LaMar appealed to the Fourth District Court of Appeals, asserting nineteen assignments of error. The court of appeals overruled each of the assignments and affirmed the convictions and death sentence. The cause is now before this court upon an appeal as of right.

II. Settled Issues

{¶ 22} LaMar presents twenty propositions of law for our review. Although R.C. 2929.05 grants a capital defendant an appeal of right to this court, we are not required to discuss in opinion form each proposition raised in the appeal. State v. Davis (1996), 76 Ohio St.3d 107, 110, 666 N.E.2d 1099. We may therefore summarily overrule those propositions of law that this court has previously resolved and address only those issues that warrant discussion. Id. See, also, State v. Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568.

{¶ 23} Accordingly, we summarily overrule LaMar’s eighteenth proposition of law challenging the constitutionality of death-penalty proportionality review under R.C. 2929.05. See, e.g., State v. Smith (1997), 80 Ohio St.3d 89, 118, 684 N.E.2d 668; State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus. We also overrule LaMar’s twentieth proposition of law, which challenges the constitutionality of Ohio’s deathrpenalty statutory scheme on various grounds. We have considered all of these arguments and summarily reject them. See, e.g., State v. Stallings (2000), 89 Ohio St.3d 280, 297, 731 N.E.2d 159; State v. Mills (1992), 62 Ohio St.3d 357, 371-372, 582 N.E.2d 972; State v. Seiber (1990), 56 Ohio St.3d 4, 15-16, 564 N.E.2d 408. In neither proposition does LaMar offer any arguments that this court has not already rejected.

III. Pretrial Issues

A. Failure to Disclose Exculpatory Evidence

{¶ 24} In his first proposition of law, LaMar asserts that the state failed to disclose material evidence tending to exculpate him in the murders, thereby denying him his constitutional right to a fair trial. See Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Prior to trial, LaMar’s counsel asked the state to produce all evidence of an exculpatory nature, as required by Crim.R. 16(B)(1)(f). The state’s response did not provide a complete list of inmate statements, purportedly because of concerns about the safety of inmates who had given statements to law enforcement about the events of the SOCF riot. Instead, the state submitted to the trial court an eleven-page document containing summaries of inmate interviews.

{¶ 25} At a pretrial hearing, the trial court read summaries of inmate statements from the bench and, with a few exceptions, did not identify who made them. The contents of the summaries varied widely, ranging from useless information (e.g., “He was in a cell adjoining K-2-36 but gave no useful information”) to pure speculation (e.g., “He was in an adjoining cell to K-2-36 and heard a commotion and thought Weaver hung himself’) to statements with exculpatory value (e.g., “he observed Eskridge kill Svette in L-corridor”; “[h]e was in an adjoining cell * '* * and identified Greg Curry telling Keith LaMar to kill Weaver because he was a snitch”). Many of the statements, however, corroborated LaMar’s participation in the killings, while other statements named other assailants without eliminating LaMar as a participant.

{¶ 26} After reading all of the summaries, the trial court granted a continuance to the defense and authorized funds for a second defense investigator to conduct additional interviews of inmate witnesses. The trial court did not, however, require the prosecution to provide the full statements (i.e., contents of the statement with the name of the inmate who gave it) to the defense. Instead, the court ordered the prosecution to provide the defense with the names of forty-three inmates who gave statements to law enforcement. Although the prosecution complied with the trial court’s directive and provided a list of forty-three names, it did not match the statements with the names supplied.

{¶ 27} Suppression by the prosecution of evidence that is favorable to the accused and “material either to guilt or to punishment” is a violation of due process. Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215. Evidence suppressed by the prosecution is “material” within the meaning of Brady only if there exists a “reasonable probability” that the result of the trial would have been different had the evidence been disclosed to the defense. Kyles v. Whitley (1995), 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131 L.Ed.2d 490; see, also, United States v. Bagley (1985), 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. As the United States Supreme Court has stressed, “the adjective [‘reasonable’] is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434, 115 S.Ct. 1555, 131 L.Ed.2d 490; see, also, Strickler v. Greene (1999), 527 U.S. 263, 289-290, 119 S.Ct. 1936, 144 L.Ed.2d 286.

{¶ 28} Assuming arguendo that the prosecution “suppressed” the evidence LaMar complains of within the meaning of Brady we find no due process violation. On the record before us, we find no reasonable probability of a different trial outcome had the defense received the full statements. Many of the statements identified LaMar as a participant in the murders. And statements identifying other inmates as participants did not exculpate LaMar because each victim had been attacked by multiple assailants. Cf. State v. Waddy (1992), 63 Ohio St.3d 424, 433, 588 N.E.2d 819 (holding evidence not to be material within the meaning of Brady when the evidence did not eliminate the defendant as the perpetrator). Finally, with respect to murders in cellblock L-6, none of the statements assisted LaMar’s alibi defense (i.e., that LaMar was in the recreation yard at the time of the killings). In short, nothing in the contents of the statements “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555, 131 L.Ed.2d 490.

{¶ 29} As a separate Brady claim, LaMar argues that the trial court should have found a Brady violation and granted his motion for a new trial after defense counsel discovered that the prosecution had provided complete inmate statements — the same material the defense had requested at the pretrial hearing in LaMar’s case — in the criminal trials of two other SOCF inmates (Derek Cannon and Rasheem Matthews). LaMar argues that the disclosure in these two noncapital cases undercuts the prosecution’s proffered reason (i.e., inmate safety) for failing to disclose the information in his case. As we stated above, however, the statements were not material to LaMar’s case within the meaning of Brady. We therefore reject this argument.

{¶ 30} In his final Brady claim, LaMar claims that he should have received a new trial in light of evidence the defense discovered after trial. The evidence consisted of (1) Ohio State Highway Patrol summaries of two statements given by inmate Willie Kastner to investigators and (2) transcripts of interviews conducted by law enforcement officers with inmates David Hackett, Tyronne Golphin, Gerald Kelly, William Turner, and Daniel Davidson. These witnesses identified several persons other than LaMar as being involved in the murders of Vitale, Staiano, Depina, and Svette. LaMar further notes that the interviews with Hackett and Davidson suggest that Vitale and Staiano may not have been dead at the time their assailants left L-6. Because the state failed to disclose these potentially exculpatory statements, LaMar argues that there has been a Brady violation warranting a new trial.

{¶ 31} We reject this Brady claim for reasons similar to the ones we stated above. While these statements identified other inmates, none of them exonerated LaMar. At best, these witnesses established that there were several persons who joined in beating the L-6 victims to death. The state’s theory all along was that LaMar was one of many assailants who participated in murdering the victims in L-6. Therefore, the existence of this evidence does not undermine our confidence in the trial outcome.

{¶ 32} Finding no Brady violation that would warrant reversal, we reject LaMar’s first proposition of law.

B. Allegations of a Biased Judge

{¶ 33} The trial court’s treatment of the exculpatory evidence complained of in the first proposition of law also forms the basis of LaMar’s second proposition of law. Because of the trial judge’s actions, LaMar contends that he was deprived of his constitutional right to a fair trial before an impartial judge.

{¶ 34} It is well settled that a criminal trial before a biased judge is fundamentally unfair and denies a defendant due process of law. See Rose v. Clark (1986), 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460; Tumey v. Ohio (1927), 273 U.S. 510, 534, 47 S.Ct. 437, 71 L.Ed. 749. We have described judicial bias as “a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will' be governed by the law and the facts.” State ex rel. Pratt v. Weygandt (1956), 164 Ohio St. 463, 58 O.O. 315, 132 N.E.2d 191, paragraph four of the syllabus; see, also, Cleveland Bar Assn. v. Cleary (2001), 93 Ohio St.3d 191, 201, 754 N.E.2d 235. LaMar argues that the trial judge exhibited bias by “actually aid[ing] the prosecution in intermingling names, adding irrelevant inmate names and generally obfuscating the information that appellant was clearly entitled to.” We do not agree.

{¶ 35} We first note that LaMar did not raise the issue of judicial bias in his appeal to the court of appeals. He has therefore forfeited this claim. State v. Jalowiec (2001), 91 Ohio St.3d 220, 224, 744 N.E.2d 163. Moreover, LaMar failed to avail himself of the procedures described in R.C. 2701.03, which allows a party to file an affidavit of bias and prejudice with this court seeking disqualification of a biased judge.

{¶ 36} Even if LaMar had raised this issue before the court of appeals, we would find no merit to his contention. LaMar relies on a general characterization of unfairness‘and bias by the trial court during the March 6,1995 pretrial hearing to support his claim, without referring to any specific evidence of bias. But viewing the transcript as a whole, and taking all of the judge’s comments in them proper context, we see nothing to suggest that the trial court harbored a hostile feeling of ill will toward either LaMar or his attorneys during the course of the trial. We accordingly reject the second proposition of law.

C. Pretrial Discovery

{¶ 37} As a branch of his fourth proposition of law (alleging prosecutorial misconduct in various respects), LaMar argues that the prosecution improperly withheld discovery before trial. Specifically, LaMar alleges that the prosecutor (1) ignored the trial court’s order to provide transcripts of statements given by inmate witnesses, (2) repeatedly refused the trial court’s orders to fully answer defense interrogatories in support of the defense’s motion to dismiss on selective-prosecution grounds, and (3) failed to disclose summaries of inmate statements on grounds of “confidentiality” and inmate safety, only to turn them over in other cases. We construe LaMar’s argument, which asserts many of the same claims raised in the first proposition of law, as asserting violations of the discovery provisions contained in Crim.R. 16.

{¶ 38} Violations of Crim.R. 16 by the prosecution may result in reversible error only upon a showing that (1) the prosecution’s failure to disclose was a willful violation of the rule, (2) foreknowledge of the information would have benefited the accused in preparing a defense, and (3) the accused has suffered prejudice. State v. Joseph (1995), 73 Ohio St.3d 450, 458, 653 N.E.2d 285. For the reasons we stated in overruling the first proposition of law, LaMar cannot establish prejudice because there was no reasonable probability of a different trial result even if the prosecution had disclosed the inmate statements LaMar complains of. And as for the prosecutor’s alleged failure to answer defense interrogatories relevant to LaMar’s selective-prosecution claim, LaMar’s claim likewise fails. As we shall explain infra in disposing of the seventh proposition of law, LaMar did not make a prima facie showing of selective prosecution. Because he did not produce credible evidence of selective prosecution, he was not entitled to discovery on the issue. United States v. Armstrong (1996), 517 U.S. 456, 468-469, 116 S.Ct. 1480, 134 L.Ed.2d 687. We accordingly reject LaMar’s pretrial-discovery argument.

D. Limitations on Jury Voir Dire

{¶ 39} LaMar’s third proposition of law attacks the trial court’s actions during jury selection. He argues that the trial court unreasonably and arbitrarily prevented him from “inquiring into' proper subjects of voir dire including factors affecting credibility, the meaning of the presumption of innocence, defendant’s right to remain silent, the burden of proof, and the juror’s ability to follow instructions.” LaMar cites numerous instances from voir dire when the trial court sustained prosecution objections to defense counsel’s questions relating to areas such as (1) a potential juror’s methods of evaluating a witness’s credibility, (2) whether the juror could convict just because LaMar presented no evidence, and (3) how a juror would feel if LaMar did not testify at trial. At one point, the trial court fined one of LaMar’s attorneys $50 after the attorney, in apparent frustration, complained (in the presence of the jury venire) that he was “not getting a fair trial in this case” if he was not allowed to delve into certain- areas with the potential jurors during voir dire.

{¶ 40} Crim.R. 24 and R.C. 2945.27 afford both prosecution and defense counsel the opportunity to conduct reasonable voir dire of prospective jurors. Nevertheless, the length and scope of voir dire fall within a trial court’s sound discretion and vary depending on the circumstances of a given case. State v. Lundgren (1995), 73 Ohio St.3d 474, 481, 653 N.E.2d 304. Accordingly, we will not find prejudicial error in how the trial court qualified venirepersons “as fair and impartial jurors” unless the appellant can show “a clear abuse of discretion.” State v. Cornwell (1999), 86 Ohio St.3d 560, 565, 715 N.E.2d 1144; see, also, State v. Beuke (1988), 38 Ohio St.3d 29, 39, 526 N.E.2d 274. A trial court does not abuse its discretion unless it acts arbitrarily, unreasonably, or unconscionably. State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144.

{¶ 41} We find no abuse of discretion warranting reversal in this case. The voir dire limitations cited by LaMar paint an incomplete picture of how the trial court conducted the jury-selection process. At one point, when defense counsel expressed concerns that the trial court was limiting his ability to ask jurors “what their opinion will be if [LaMar] does not take the stand,” the court agreed to allow him to inquire into this area with appropriate questions phrased in terms of the jurors’ ability to follow instructions. The trial court also reconsidered its position on objections previously sustained and allowed the defense to “get back into that area [of credibility].” As a result, the defense was allowed to ask numerous questions of prospective jurors about their methods of assessing credibility, how they would feel if LaMar exercised his right to refuse to testify, and their views on the concept of reasonable doubt. Thus, notwithstanding LaMar’s arguments to the contrary, the record shows that defense counsel was allowed some latitude to explore these areas. Viewed in its entirety, we find no undue restriction in the manner the trial court conducted voir dire and therefore reject LaMar’s third proposition of law.

E. Selective Prosecution

{¶ 42} In the seventh proposition of law, LaMar contends that he is the victim of selective prosecution. LaMar, who is African-American, argues that the trial court should have dismissed the indictment against him on grounds that the state chose to prosecute him for capital offenses because of his race. Although the state prosecuted numerous inmates for murders committed during the SOCF riot, LaMar states that he was the only inmate charged with capital murder for killing other inmates.

{¶ 43} The decision whether to prosecute a criminal offense is generally left to the discretion of the prosecutor. United States v. Armstrong, 517 U.S. at 464, 116 S.Ct. 1480, 134 L.Ed.2d 687. That discretion is, however, subject to constitutional equal-protection principles, which prohibit prosecutors from selectively prosecuting individuals based on “ ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” Id., quoting Oyler v. Boles (1962), 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446. Although a selective-prosecution claim is not a defense on the merits to the criminal charge itself, a defendant may raise it as an “independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” State v. Getsy (1998), 84 Ohio St.3d 180, 203, 702 N.E.2d 866; see, also, Armstrong, 517 U.S. at 463, 116 S.Ct. 1480, 134 L.Ed.2d 687.

{¶ 44} To support a claim of selective prosecution, “ ‘a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.’ ” State v. Flynt (1980), 63 Ohio St.2d 132, 134, 17 O.O.3d 81, 407 N.E.2d 15, quoting United States v. Berrios (C.A.2, 1974), 501 F.2d 1207, 1211. In this case, LaMar has failed to satisfy either prong.

{¶ 45} LaMar asserts that out of the more than twenty-five inmates who were indicted for homicide offenses relating to the SOCF riot, he was the only one charged with capital murder for “killing only inmates.” LaMar also states that four other inmates, at least one of whom was white, were charged with noncapital offenses for participating in the same murders for which LaMar was convicted. Even accepting these assertions as true, LaMar fails to satisfy the first prong of the Flynt analysis because he has not shown that the state has treated him differently from other similarly situated individuals. The state built its case against LaMar on the theory that he organized and led a small group of inmates on a murderous rampage. The state presented considerable evidence that LaMar acted in a leadership role and participated in all five murders by either beating his victims or forcing other inmates to kill. Because of LaMar’s extensive involvement, we cannot conclude that he was “similarly situated” with other inmates charged with noncapital offenses.

{¶ 46} LaMar also fails to satisfy the second Flynt prong. There is no evidence to suggest that the prosecution singled him out for death-penalty prosecution because of his race. Just two years ago, in fact, this court affirmed the convictions of a white inmate who received the death penalty for aggravated murders committed during the SOCF riot. See State v. Robb (2000), 88 Ohio St.3d 59, 723 N.E.2d 1019. Although LaMar emphasizes that Robb involved a white inmate convicted of killing both an inmate and a corrections officer, we fail to see how this distinction matters for purposes of a selective-prosecution analysis. And even if it did, LaMar has done nothing more than make a bald assertion of differing treatment motivated by race. Absent some demonstration of an invidious motive, this court will not presume intentional or purposeful discrimination from a mere showing of different treatment. State v. Freeman (1985), 20 Ohio St.3d 55, 58, 20 OBR 355, 485 N.E.2d 1043.

{¶ 47} Under this proposition of law, LaMar also argues that the trial court erred when it denied his motion to dismiss the indictment on selective-prosecution grounds without stating its essential factual findings, as required by former Crim.R. 12(E) (now Crim.R. 12[F]). There was no such error in this case, however, because LaMar failed to request the findings he now claims were necessary. See State v. Eley (1996), 77 Ohio St.3d 174, 179, 672 N.E.2d 640. By failing to invoke the rule, LaMar has forfeited any error. Id. We reject LaMar’s seventh proposition of law.

F. Prejudicial Joinder

{¶ 48} In his eighth proposition of law, LaMar argues that the trial court should have granted his pretrial motion to sever count nine of the indictment, alleging aggravated-murder and death-penalty specifications for Weaver’s murder, from the remaining eight counts. LaMar claims that the Weaver count should have been tried separately from the other counts because the allegations relating to Weaver’s murder “were quite different” from the allegations relating to the deaths of the other four victims. LaMar further contends that he was unduly prejudiced by the joinder of all nine counts because “trying these cases together gave the benefit to the state of permitting the jury to infer from the evidence presented in the deaths of the first four victims that Mr. LaMar was quite capable of directing the death of Dennis Weaver two days later.”

{¶ 49} “The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are of jthe same or similar character.’ ” State v. Lott (1990), 51 Ohio St.3d 160, 163, 555 N.E.2d 293. Crim.R. 8(A) also allows joinder of two or more offenses that “are based on the same act or transaction, 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.” Notwithstanding the policy in favor of joinder, an accused may move to sever counts of an indictment on the grounds that he or she is prejudiced by the joinder of multiple offenses. See Crim.R. 14. An appellate court will reverse a trial court’s decision to deny severance only if the trial court has abused its discretion. Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293.

{¶ 50} The state may rebut a defendant’s claim of prejudicial joinder in two ways. The first way is by satisfying the “other acts” test. Id. 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. Id. See, also, State v. Coley (2001), 93 Ohio St.3d 253, 259-260, 754 N.E.2d 1129. The state may also negate a claim of prejudice by satisfying the less stringent “joinder test,” which requires a showing “that evidence of each crime joined at trial is simple and direct.” Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293; see, also, State v. Torres (1981), 66 Ohio St.2d 340, 344, 20 O.O.3d 313, 421 N.E.2d 1288.

{¶ 51} The trial court did not abuse its discretion by denying severance in this case because the state satisfied both tests. Even if the state had tried the Weaver count separately from the others, the evidence of LaMar’s participation in the L-6 murders would have been admissible under Evid.R. 404(B). The rule allows the admission of other-acts evidence for purposes other than proving that the accused acted in conformity with a particular character. In this case, count nine of the indictment contained an R.C. 2929.04(A)(5) specification alleging that LaMar had murdered Weaver as part of a “course of conduct” that involved the “purposeful killing of or attempt to kill” two or more persons. Even if this count had been tried separately, the state would have had to present some evidence of the L-6 murders in order to prove this specification. Thus, there would have been a valid noncharacter purpose for admitting evidence of the other murders. Cf. State v. Wilkinson (1980), 64 Ohio St.2d 308, 317, 18 O.O.3d 482, 415 N.E.2d 261 (noting the admissibility of other-crimes evidence when “ ‘ “they are so blended or connected with the one on trial as that proof of one * * * tends logically to prove any element of the crime charged,” ’ ” quoting United States v. Turner [C.A.7, 1970], 423 F.2d 481, 483-484, and United States v. Wall [C.A.7, 1955], 225 F.2d 905, 907).

{¶ 52} Even if we were to hold that.evidence of the L-6 murders would not have been admissible “other acts” in a separate trial for Weaver’s murder, we are. satisfied that the evidence for Weaver’s murder was sufficiently “simple and direct” to negate LaMar’s claims of prejudicial joinder. As LaMar’s brief acknowledges, the Weaver murder occurred two days after the L-6 murders in a different cellblock and was accomplished by strangulation rather than bludgeoning. Accordingly, it is highly unlikely that the jury was confused as to which evidence tended to show that LaMar killed Weaver and which tended to show that he killed the L-6 victims. See, e.g., Coley, 93 Ohio St.3d at 260, 754 N.E.2d 1129.

{¶ 53} The eighth proposition of law is overruled.

IV. Trial Phase Issues

A. Gruesome Photographs

{¶54} In the fifth proposition of law, LaMar contends.that the trial court prejudiced his defense by allowing the prosecution to admit “gruesome and misleading photos” into evidence. In particular, LaMar challenges the admission of Svette’s postmortem photographs. LaMar contends that Svette’s photographs were particularly prejudicial in light of evidence that (1) Svette had multiple assailants apart from LaMar’s group and (2) the photos did not depict how Svette looked after the death squad left his cell. LaMar further argues that the prejudicial effect of all the admitted photographs was exacerbated by the prosecution’s use of them during closing arguments.

{¶ 55} “Properly authenticated photographs, even if gruesome, are admissible in a capital prosecution if relevant and of probative value in assisting the trier of fact * * * as long as the danger of material prejudice to a defendant is outweighed by their probative value and the photographs are not repetitive or cumulative in number.” State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph seven of the syllabus. We review a trial court’s decision to admit photographs under an abuse-of-discretion standard. State v. Morales (1987), 32 Ohio St.3d 252, 258, 513 N.E.2d 267. We will not disturb a trial court’s balancing of the probative value against the prejudicial effect unless the trial court has “ ‘clearly abused its discretion and the defendant has been materially prejudiced thereby.’ ” State v. Slagle (1992), 65 Ohio St.3d 597, 602, 605 N.E.2d 916, quoting State v. Hymore (1967), 9 Ohio St.2d 122, 128, 38 O.O.2d 298, 224 N.E.2d 126; see, also, State v. Phillips (1995), 74 Ohio St.3d 72, 78, 656 N.E.2d 643.

{¶ 56} We agree with LaMar that the two Svette photographs he challenges here — Exhibits 20H and 20K — were decidedly gruesome. Each depicted Svette’s head split open at the crown, with Exhibit 20K showing a portion of Svette’s bloodied brain. In addition, Exhibit 20H offered a frontal view of Svette’s head, allowing jurors to see that Svette’s face was also beaten badly. Notwithstanding the nature of the photographs, however, we cannot say that the trial court erred in admitting them. Both photographs supported the forensic pathologist’s testimony that Svette had sustained four major blows to the head and that any of the four was sufficient to cause death. Even though there was testimony from an inmate witness that Svette’s head “wasn’t that far open” when LaMar had finished beating him, the court was well within its discretion to admit the photos and afford the jury an opportunity to see the effects of all of the blows to Svette’s head, including any inflicted by LaMar. Inasmuch as LaMar inflicted at least one of the major blows that could have been sufficient to cause Svette’s death, the photographs helped establish LaMar’s intent to Mil by graphically portraying the force with which Svette was beaten. See State v. Tibbetts (2001), 92 Ohio St.3d 146, 156, 749 N.E.2d 226.

{¶ 57} LaMar also complains about the trial court’s admission of mugshot-style photographs showing Svette, Staiano, Depina, Vitale, and Weaver while all were still alive. We reject LaMar’s arguments as to these photos. Pre-death photographs are relevant and admissible for purposes of identifying the victims. See State v. Davie (1997), 80 Ohio St.3d 311, 325, 686 N.E.2d 245; State v. Roe (1989), 41 Ohio St.3d 18, 22-23, 535 N.E.2d 1351. LaMar’s fifth proposition of law is overruled.

B. Hearsay Testimony

{¶ 58} LaMar’s sixth proposition of law attacks the trial court’s admission of “highly prejudicial hearsay evidence.” Inmate Robert Bass, who witnessed the actions of LaMar’s death squad at L-6 on the day of the SOCF riot, testified that he heard Allen tell LaMar, “Get your boys together and come on. Come with me.” The trial court overruled defense objections to this testimony.

{¶ 59} Out-of-court statements offered to prove the truth of the matter asserted within them are generally inadmissible as hearsay. Evid.R. 801 and 802. If a statement is not offered for the truth of the matter asserted, however, it is not prohibited by the hearsay rule and will be admissible, subject to the standards governing relevancy and undue prejudice. State v. Maurer, 15 Ohio St.3d at 262-263, 15 OBR 379, 473 N.E.2d 768. Accordingly, “testimony which explains the actions of a witness to whom a statement was directed, such as to explain the witness’ activities, is not hearsay.” Id. at 262, 15 OBR 379, 473 N.E.2d 768.

{¶ 60} In this case, the trial court properly overruled LaMar’s objection because Allen’s statement was not offered for its truth. Rather, the prosecution offered it to show that LaMar was the target of Allen’s command. Allen’s comment was therefore admissible as a nonhearsay statement showing that LaMar heard Allen’s instruction and acted upon it.

{¶ 61} LaMar’s counsel also objected to testimony by Bass about a statement made by Cannon. Bass testified that Cannon asked Bass whether he had. seen LaMar before the group had embarked on its plan to Mil snitches in L-6. The trial court properly overruled the hearsay objection because Cannon’s question was not a “statement” within the meaning of the hearsay rule. Evid.R. 801(A) defines a “statement,” for hearsay purposes, as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.” (Emphasis added.) “An ‘assertion’ for hearsay purposes ‘simply means to say that something is so, e.g., that an event happened or that a condition existed.’ ” (Emphasis sic.) State v. Carter (1995), 72 Ohio St.3d 545, 549, 651 N.E.2d 965, quoting 2 McCormick on Evidence (4th Ed.1992) 98, Section 246. Inasmuch as Cannon’s question asserted nothing “because a true question or inquiry is by its nature incapable of being proved either true or false,” it cannot be hearsay within the meaning of Evid.R. 801. Id.

{¶ 62} We accordingly overrule the sixth proposition of law.

C. Sufficiency of Evidence

{¶ 63} In his ninth, tenth, and eleventh propositions of law, LaMar argues that the evidence was insufficient to support several of his convictions. He therefore argues that the trial court should have granted his Crim.R. 29 motions for acquittal with respect to Svette’s murder, the course-of-conduct specification attached to Weaver’s murder, and the kidnapping specification attached to the murders of Depina, Vitale, Staiano, and Svette.

{¶ 64} When reviewing the sufficiency of evidence to support a criminal conviction, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; see, also, Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. When conducting this review, we do not weigh the evidence; our inquiry is limited to whether reasonable minds could reach the conclusion reached by the trier of fact. See Tibbetts, 92 Ohio St.3d at 162, 749 N.E.2d 226. Issues concerning the weight given to the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus.

1. Aggravated Murder of Svette

{¶ 65} In connection with Svette’s death, LaMar was convicted of aggravated murder under R.C. 2903.01(B), which at the time of the SOCF riot provided:

{¶ 66} “No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping * * *.” 139 Ohio Laws, Part I, 1, 3.

{¶ 67} LaMar insists that the state did not present sufficient evidence showing that he caused Svette’s death. He points to testimony showing that others beat Svette and that Svette remained alive after LaMar and his group allegedly left L-6 after their rampage. LaMar also emphasizes testimony attesting to the fact that Svette’s postmortem photographs did not accurately depict how Svette looked after LaMar and his group beat him. Because of all these factors, LaMar contends that there is insufficient evidence to support a conclusion that he “caused the death of William Svette.” At best, he contends, there was sufficient evidence only of attempted murder. We reject LaMar’s argument.

{¶ 68} At least two witnesses testified that LaMar struck Svette’s head multiple times with either a shovel or baseball bat. One of the witnesses added that LaMar even went back to Svette’s cell to beat him a second time after noticing that Svette was still alive. Furthermore, the forensic pathologist who testified for the state opined that Svette sustained four major blows to his head with a heavy object and that any one of those would have independently killed Svette. The jury was well within its province to infer that LaMar had struck one ■ of those blows.

{¶ 69} The fact that others assaulted Svette and perhaps hastened his death does'not undermine the sufficiency of the evidence to convict LaMar. Despite the actions of inmates Girdy and Frakes, who, according to witness testimony, finished Svette off, the evidence at trial supports an inference that LaMar’s actions bore a causal connection to Svette’s death. An offender who has inflicted injuries capable of causing death cannot escape culpability for homicide simply because intervening assailants have inflicted injuries that also contributed to the victim’s death. See State v. Keene (1998), 81 Ohio St.3d 646, 655, 693 N.E.2d 246; see, also, People v. Bailey (1996), 451 Mich. 657, 676-678, 549 N.W.2d 325; Holsemback v. State (Ala.Crim.App.1983), 443 So.2d 1371, 1381-1382. Because sufficient evidence supports the conclusion that LaMar caused Svette’s death, we overrule the ninth proposition of law.

2. Course-of-Conduet Specification for Weaver’s Murder

{¶ 70} With respect to Weaver’s murder, LaMar argues that the evidence is insufficient to support his conviction for one of the capital specifications. Specifically, LaMar argues that the state failed to present sufficient evidence that Weaver’s murder “was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons.” R.C. 2929.04(A)(5). Even assuming that he participated in the four murders committed in L-6, LaMar urges that “there is no evidence that the Weaver killing was related” to them because Weaver’s murder involved “a different scheme and a different mode of operation” and took place at a different time. We are not persuaded.

{¶ 71} The “course of conduct” specification applies to multiple murders that an offender commits as part of a continuing course of criminal conduct, even if the offender does not necessarily commit them as part of the same transaction. See State v. Benner (1988), 40 Ohio St.3d 301, 304-305, 533 N.E.2d 701. In this case, a reasonable jury could have found that the circumstances surrounding the Weaver murder were intertwined with the four murders in L-6 that took place two days earlier. The state presented testimony that LaMar and his group murdered the L-6 victims and Weaver as part of a concerted effort to kill “snitches” at SOCF, indicating a common motive for all of the killings. And even though the Weaver murder happened at a different time than the other four murders, that fact does not preclude a finding of sufficient evidence to support a conviction for the course-of-conduct specification. Conduct taking place over several days may satisfy the R.C. 2929.04(A)(5) specification so long as the offender’s actions were part of a continuing course of criminal conduct. See, e.g., State v. Dunlap (199), 73 Ohio St.3d 308, 316, 652 N.E.2d 988 (two murders, ten days apart, committed in two states); State v. Fautenberry (1995), 72 Ohio St.3d 435, 444, 650 N.E.2d 878 (five murders committed in four states during a five-month period). The tenth proposition of law is overruled.

3. Kidnapping Specifications

{¶ 72} With respect to four of the victims — Depina, Vitale, Staiano, and Svette — the jury found LaMar guilty of the death-penalty specification alleging that he committed the murders while “committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnapping.” R.C. 2929.04(A)(7). LaMar contends that there was insufficient evidence of kidnapping to support a conviction for this specification.

{¶ 73} The trial court instructed the jury on the definition of kidnapping set forth in R.C. 2905.01(A)(3), which states:

{¶ 74} “No person, by force, threat, or deception * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:

{¶ 75} “* * *

{¶ 76} “(3) To terrorize, or to inflict serious physical harm on the victim or another.”

{¶ 77} In State v. Maurer, 15 Ohio St.3d 239, 242-243, 15 OBR 379, 473 N.E.2d 768, this court considered a constitutional challenge to the validity of the R.C. 2929.04(A)(7) specification. The defendant argued that “in virtually every aggravated murder the victim will be restrained from liberty for the purpose of terrorizing or the infliction of serious physical harm” and that the specification therefore violated the constitutional requirement that aggravating circumstances adequately distinguish between offenses that are death-eligible and those that are not. See, generally, Godfrey v. Georgia (1980), 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398. This court rejected the argument by interpreting the R.C. 2929.04(A)(7) specification to require proof of something more than a restraint or movement incidental to the commission of a murder. That is, the court held that R.C. 2929.04(A)(7) requires “prolonged restraint, secretive confinement, or significant movement apart from that involved in the underlying crime in order to justify the application of the aggravating circumstance of kidnapping.” Maurer, 15 Ohio St.3d at 243, 15 OBR 379, 473 N.E.2d 768; see, also, State v. Jenkins (1984), 15 Ohio St.3d 164, 197-198, 15 OBR 311, 473 N.E.2d 264; State v. Logan (1979), 60 Ohio St.2d 126, 135, 14 O.O.3d 373, 397 N.E.2d 1345.

{¶ 78} LaMar argues that there was not enough evidence of either prolonged restraint, secretive confinement, or significant movement to sustain a conviction on the kidnapping specification. For example, he argues, the evidence showed that Depina and Vitale were beaten inside their respective cells and in the range immediately in front of the cells. As to the Staiano murder, LaMar points to evidence that Staiano tripped and fell as he tried to escape his cell, after which Taylor attacked him. And with respect to the Svette murder, LaMar argues that there was no evidence suggesting that LaMar restrained Svette or removed him from his cell. Accordingly, LaMar contends that any restraint or movement was merely incidental to the beatings, distinguishing this case from others in which we have upheld convictions for the R.C. 2929.04(A)(7) specification.

{¶ 79} If our focus were confined solely to the circumstances immediately preceding the murder of each victim, LaMar would have a substantial argument that any movement or restraint associated with any of them was incidental, at best, to the vicious assaults that caused their deaths. But beyond the evidence of movement incidental to the killings themselves, there was evidence that rioting inmates confined their victims in various cells and would not allow them to escape to the recreation yard with the nonrioting inmates. There was evidence that Allen, while each victim was locked in a cell, told LaMar and his group to “kill the snitches.” Thus, a reasonable jury could find that the inmates in control of L-6 confined suspected snitches for the purpose of terrorizing or inflicting serious physical harm. Cf. State v. Simko (1994), 71 Ohio St.3d 483, 488-489, 644 N.E.2d 345 (finding sufficient evidence to support kidnapping specification when defendant restrained and terrorized victim for approximately a half-hour before murdering her as she tried to escape); State v. Seiber, 56 Ohio St.3d at 14-15, 564 N.E.2d 408 (kidnapping specification supported by evidence that, prior to shooting the victim, the defendant restrained bar patrons by ordering them on the floor and blocking exits). In turn, a reasonable jury could conclude that LaMar assumed control over the victims’ confinement after Allen relayed the order for LaMar to “kill the snitches.” Indeed, there was evidence that LaMar ordered Grinnell to open each victim’s cell, supporting the inference that LaMar had some measure of control over the physical location and movement of the victims. Construing the evidence most strongly in the prosecution’s favor, as we are required to do in a sufficiency-of-the-evidence inquiry, there was sufficient evidence that LaMar was at least an aider and abettor in the victims’ confinement and thus capable of being “prosecuted and punished as if he were a principal offender” in the kidnappings. R.C. 2923.03(F); see, also, State v. Bies (1996), 74 Ohio St.3d 320, 325, 658 N.E.2d 754. We therefore conclude that the trial court properly overruled LaMar’s Crim.R. 29 motion for acquittal on the kidnapping specifications.

{¶ 80} The eleventh proposition of law is overruled.

D. Surprise Testimony

{¶ 81} LaMar’s thirteenth proposition of law asserts that the defense was unfairly prejudiced by “surprise” testimony on cross-examination by William “Geno” Washington, a defense witness. Washington was one of the ten inmates, including LaMar and Weaver, placed in the K-Block cell after corrections officers cleared the recreation yard on the morning after the riot began. On direct examination by defense counsel, Washington testified that Bowling and Childers had killed Weaver. He also testified that LaMar did not say anything about Weaver, did not order anyone to kill Weaver, and did not touch Weaver. On cross-examination, however, the state impeached Washington with the contents of an interview during which he told an investigator, among other things, that LaMar was one of the persons responsible for Weaver’s murder. Washington repeatedly denied any memory of making the statement. LaMar argues that the defense was “completely surprised” by Washington’s prior statement and that a new trial was therefore warranted.

{¶ 82} LaMar’s counsel, citing Washington’s testimony, filed a post-trial motion for new trial under Crim.R. 33(A)(3). This rule allows for a new trial on the grounds of “surprise which ordinary prudence could not have guarded against.” To warrant a new trial, the surprise of which the defendant complains must have materially affected the defendant’s substantial rights. A reviewing court will not disturb a trial court’s decision granting or denying a Crim.R. 33 motion for new trial absent an abuse of discretion. See State v. Schiebel (1990), 55 Ohio St.3d 71, 76, 564 N.E.2d 54.

{¶ 83} LaMar has not met his burden of establishing an entitlement to a new trial under Crim.R. 33(A)(3). Although LaMar’s counsel claimed surprise in his motion for new trial, he did not raise this issue during Washington’s testimony. A trial court acts well within its discretion to deny a post-trial Crim.R. 33(A)(3) motion when defense counsel fails to raise the issue of surprise during trial. We accordingly reject the thirteenth proposition.

E. Newly Discovered Evidence

{¶ 84} In the twelfth proposition of law, LaMar claims that he was entitled to a new trial on the grounds of newly discovered evidence. Following trial, LaMar’s attorneys moved for a new trial under Crim.R. 33(A)(6) after two inmates, James Were and Derek Cannon, had contacted them with information about LaMar’s case. Were signed an affidavit stating that he was present in L-6 at the time of the murders and that LaMar did not participate in them. Were also stated that other inmates had been “displeased” with LaMar for refusing to participate in the riot and “considered him a traitor and coward.” Cannon provided LaMar’s attorneys with two letters that inmate Anthony Walker had written to Rasheem Matthews, an alleged member of the group that attacked the L-6 victims. In one letter, Walker wrote that “LaMar’s trail [sic] starts on Monday so try and stay up on it althrough