[Cite as State v. Cunigan, 2026-Ohio-3887.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: C.A. No. 30608
Appellee :
: Trial Court Case No. 2024 CR 01548
v. :
: (Criminal Appeal from Common Pleas
NICOLE CUNIGAN JR. : Court)
:
Appellant : FINAL JUDGMENT ENTRY &
: OPINION
Pursuant to the opinion of this court rendered on October 2, 2026, the judgment of
the trial court is affirmed in part and reversed in part, and the cause is remanded for further
proceedings consistent with the opinion.
Costs to be paid as follows: 50% by the appellant and 50% by the appellee.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
send a copy of the court’s ruling to each party and note that action on the docket.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
RONALD C. LEWIS, PRESIDING JUDGE
TUCKER, J., and HANSEMAN, J., concur.
OPINION
MONTGOMERY C.A. No. 30608
DAVID R. MILES, Attorney for Appellant
ANDREW T. FRENCH, Attorney for Appellee
LEWIS, P.J.
{¶ 1} Defendant-appellant Nicole Cunigan Jr. appeals from his convictions in the
Montgomery County Common Pleas Court for murder and related offenses following a trial.
For the following reasons, the judgment of the trial court is affirmed in part and reversed in
part, and the cause is remanded to the trial court for the purposes of advising Cunigan of
the requirements in R.C. 2903.42(A)(1)(a) and resentencing him.
I. Facts and Course of Proceedings
{¶ 2} On August 1, 2024, Cunigan was indicted by a Montgomery County grand jury
on two counts of purposeful murder, two counts of murder (proximate result), one count of
felonious assault (serious physical harm), one count of felonious assault (deadly weapon),
one count of involuntary manslaughter, one count of domestic violence (knowingly – 1 prior),
one count of domestic violence (pregnant victim), one count of tampering with evidence, one
count of having weapons while under a disability, and one count of unauthorized use of a
vehicle. The counts of murder, felonious assault, involuntary manslaughter, domestic
violence, and having weapons while under a disability all included three-year firearm
specifications in accordance with R.C. 2941.145. The counts of murder, felonious assault,
and involuntary manslaughter all included repeat violent offender (“RVO”) specifications in
accordance with R.C. 2941.149. The charges arose from a shooting on May 22, 2024,
during which D.J., P.T., and P.T.’s unborn child were killed inside P.T.’s home on
Shaftesbury Road in Dayton, Ohio.
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{¶ 3} On July 2, 2025, pursuant to Crim.R. 12.2, Cunigan filed a notice of selfdefense. In response, the State filed a notice of intent to offer certain evidence at trial,
some of which included parole officer testimony to disprove Cunigan’s claim of self-defense.
Defense counsel filed a response in opposition to the State’s notice and filed proposed jury
instructions requesting a self-defense instruction. Following a hearing, the trial court
preliminarily ruled that the State would be permitted to introduce testimony of Cunigan’s
parole officers in its case-in-chief at trial.
{¶ 4} Cunigan waived his right to a jury trial on the charges of domestic violence
(knowingly - 1 prior) and having weapons while under a disability, along with their attendant
three-year firearm specifications. The remaining counts and specifications were tried to the
jury. The following is a summary of the testimony and evidence presented at trial.
{¶ 5} On the morning of May 22, 2024, Dayton police officers responded to a 911 call
reporting a shooting on Shaftesbury Road. At 6:32 a.m. officers forced entry into the oneand-a-half story single family home. Officers entered the unlocked front door and observed
Jawuan Washington inside the house near the kitchen. Washington was removed from the
home, and the officers conducted a protective sweep to search for the possible shooter and
any victims. P.T.’s three-year-old twins were found in the first-floor rear bedroom and a
deceased woman, later identified as P.T., was discovered at the bottom of the basement
stairs. Washington, the 911 caller, informed police that there was another person inside
the house. During a secondary sweep, officers uncovered the body of a deceased male,
later identified as D.J., in the first-floor front bedroom laying on the bed under the covers.
There was a hole in the comforter and D.J. was holding a firearm, which was removed from
his hand. The firearm was a loaded TEC-9 9 mm handgun. A window in the bedroom was
open, and the lower window had been pushed in.
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{¶ 6} In the front bedroom, a .45 caliber fired cartridge casing was recovered from the
floor below the open window, and two .45 caliber fired cartridge casings were recovered on
the bed where D.J. had been found. Two additional .45 caliber fired cartridge casings were
recovered from the kitchen. Another .45 caliber fired cartridge casing was found in the
basement for a total of six fired .45 caliber casings. All six fired cartridge casings were later
determined to have been fired from the same gun. No spent 9 mm cartridge casings were
recovered from the scene. Testimony noted that .45 caliber bullets could not be fired from
a 9 mm handgun (the type found with the decedent D.J.) due to the difference in the diameter
of the bullets. A piece of orange hair, consistent with P.T.’s hair, was found on the floor in
the kitchen. Suspected blood was found on the living room wall, the kitchen floor and
cabinets, and on the walls and stairs leading to the basement.
{¶ 7} Washington testified that she was friends with P.T. and P.T.’s family who lived
at Summit Square Apartments. Washington was familiar with Cunigan, a.k.a. “Nico,”
through P.T. and knew Cunigan shared three children with P.T., including twins.
Washington was D.J.’s godmother.
{¶ 8} P.T. owned a white Chevrolet Malibu. On May 20, 2024, Washington was with
P.T. at Summit Square Apartments when P.T. handed the car keys to the Malibu to Cunigan.
At that time, Cunigan’s hair was styled in long dreads that were orange at the bottom and
retwisted.
{¶ 9} On the evening of May 21, 2024, P.T. asked Washington to come over.
Washington and D.J. got a ride to P.T.’s house and arrived just after 10:00 p.m. Only P.T.
and the twins were home when they arrived. Washington, D.J., and P.T. talked on the
couch in the living room at the front of the house. During that time, Cunigan texted and
called P.T. numerous times. P.T. pleaded with Cunigan to return her car, but he did not
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return her car that night. P.T., D.J., and Washington smoked some marijuana and then
Washington went to sleep on the couch in the living room around 11:30 p.m. P.T. and D.J.
were still awake when Washington went to sleep.
{¶ 10} Around 5:57 a.m., Washington awoke and heard Cunigan’s voice coming from
P.T.’s bedroom. Washington heard P.T. ask Cunigan where her car was and Cunigan
responded that he would get her car. Cunigan asked P.T. not to “police” him, meaning not
to call the police on him. Washington did not hear D.J.’s voice even though he was also in
P.T.’s bedroom. Washington saw Cunigan walk out of P.T.’s bedroom, which was the firstfloor front bedroom, and then saw him walk out the front door. Cunigan was wearing all
black, and he had his hair in the same style of dreads with orange coloring at the bottom
that she had seen him wear two days prior. P.T. followed Cunigan outside but returned
alone and locked the front door. After Cunigan left, Washington, P.T., and D.J. talked in
the living room for a few minutes. P.T. said that Cunigan had entered the house through
the window in her bedroom. Washington knew D.J. to carry a gun, but she did not see a
gun while they were in the living room. Around 6:09 a.m., P.T. and D.J. returned to P.T.’s
bedroom and Washington stayed on the couch in the living room.
{¶ 11} Shortly thereafter, Washington heard the window in P.T.’s bedroom come
down and make a loud boom. Washington heard P.T. say, “Nico, why the f * * * do you
keep doing that to my f * * * ing window?” Cunigan replied, “My bad, I didn’t mean to do
that to the window.” Washington then heard three gunshots and P.T. scream, so
Washington ran to the basement and hid under the stairs. Washington did not hear D.J.
say anything and she did not see anyone in the house when she ran to hide in the basement.
The basement stairs had open treads so that while Washington was hiding behind them,
she could see through the stairs. While in the basement, Washington heard P.T., who had
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run to the kitchen, beg for her life and yell, “Please, Nico. I’m sorry. I’m sorry. Please.
No. I’m sorry. Please. No.” Washington testified that the more P.T. pleaded, the more
she was shot. Washington knew that one shot was fired in the kitchen because she heard
P.T. slip and fall. P.T. then came down the basement stairs with her head turned back up
toward the kitchen, and she was shot one final time in the head. P.T. tumbled down the
remaining steps to the basement floor, where she was found by police. In total, Washington
heard six or seven gunshots.
{¶ 12} After P.T. fell to the basement floor, Washington saw someone take a couple
steps down the stairs; the person was wearing black Air Force One Supremes that had a
red Supreme logo on the side and black and white shoestrings. The shooter did not come
all the way down the steps but stopped and returned upstairs. Washington did not see the
shooter’s face but recognized the shoes as consistent with ones that she had previously
seen Cunigan wearing.
{¶ 13} Washington attempted to call 911 twice at 6:17 a.m. but did not know where
she was, so she looked up P.T.’s address on her phone. When Washington called 911 the
third time at 6:20:03 a.m., she whispered to the dispatcher because she did not know if the
shooter was still in the house. Once she heard the police sirens and the officers yell
“police,” she came upstairs from the basement and immediately told them that “Nico” was
the shooter. After she was outside, Washington told police that D.J. was still inside the
house, and then she helped get P.T.’s twins out of the home. She later learned from police
that D.J. had died.
{¶ 14} Dayton Homicide Detective Zach Williams responded to the shooting on
Shaftesbury Road. Detective Williams located surveillance cameras secured on the house
of one of P.T.’s neighbors. The neighbor had four cameras on the exterior of her home that
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captured video from each side of her house, one of which was pointed at P.T.’s bedroom
window that had been forced open. The neighbor provided police access to her
surveillance system, which was a motion-based DVR recording system, not a continuous
recording system. Although the surveillance video was in color, it did not have audio.
{¶ 15} The surveillance video reflected that at 5:45 a.m., a white sedan, not P.T.’s
Malibu, drove down Shaftesbury Road past P.T.’s house, turned around, and parked on the
opposite side of the street from P.T.’s house. Shortly after the car stopped, a man
approached P.T.’s bedroom window. The video depicted a black male wearing a black tshirt, dark grey and black pants, and black shoes. He had long dreadlocks colored orange
at the bottom. The man opened the window from the outside and appeared to have a
conversation with the home’s occupants. He climbed through the window and entered the
house at 5:53 a.m. Shortly thereafter, P.T. came outside to her front lawn with a phone in
her hand. The white car drove off at 5:57 a.m.
{¶ 16} At 6:15 a.m., P.T.’s Malibu backed into P.T.’s driveway, and the driver got out.
The driver was the same black male with orange-colored dreads who had been at the house
a few minutes earlier. He returned to P.T.’s bedroom window, carrying a semiautomatic
pistol on the right side of his pants. P.T.’s bedroom window was pushed in, and he
appeared to speak briefly with the occupants before firing the gun into the house. The
man’s right arm extended into the bedroom, and muzzle fire flashed from his gun. The man
then aimed the gun to the left, where D.J.’s body was later found. After firing his gun, the
man climbed into the house through the open window. A minute later, the man walked out
of the house, returned to P.T.’s car, and drove off at 6:17 a.m.
{¶ 17} Dayton Homicide Detective Angela Woody testified that she also responded
to the shooting on Shaftesbury Road. Officers obtained a search warrant for the home, and
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Detective Woody found an ultrasound in a drawer in P.T.’s bedroom. It was labeled with
P.T.’s name and dated April 11, 2024, with an estimated gestation of 10 weeks and 2 days.
{¶ 18} Officers located P.T.’s missing Malibu at the Pinewood Gardens apartment
complex in Trotwood, Ohio. The vehicle was towed and taken to the evidence garage.
The Malibu had obvious front-end damage to it, and the vehicle registration verified that P.T.
was the owner. Surveillance video from Pinewood Gardens showed that P.T.’s Malibu
entered the complex at 6:29 a.m. on May 22, 2024, and a black male with distinctive orangecolored dreads parked and exited the vehicle. He carried a small bag and was dressed in
a black t-shirt, dark grey and black pants, and black shoes, similar to the shooter at P.T.’s
house. The driver entered 60 Pinewood Circle and walked down the stairs to the lower
level.
{¶ 19} At 6:48 a.m., the Malibu driver left the apartment with another man, later
identified as Ellis Morris, the boyfriend of Cunigan’s mother, Alicia Williamson. Morris and
Williamson lived in an apartment in the lower level of 60 Pinewood Circle. Morris and the
Malibu driver got into a black Jeep and left the apartment complex. Eventually, the Jeep
returned, and the police towed it to the evidence garage. Rental paperwork for the Jeep
was found inside the car, and Morris was identified as the listed renter.
{¶ 20} Officers obtained Cunigan’s phone records and tracked his cell phone location
to Eagle Ridge Apartments.1 Surveillance video from Eagle Ridge Apartments showed that
at 7:06 a.m., Morris’s black Jeep pulled into the apartment complex. The front passenger,
still dressed in a black t-shirt, black pants, and black shoes, got out and walked into an
apartment building where Paige Dearmon lived. At 7:26 a.m., a man, later identified as
1. The name of the apartment complex changed over time and was referenced by multiple names during trial. For ease of discussion, we use only the name Eagle Ridge Apartments.
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Daquann Norman, walked out of the apartment building without a shirt on and retrieved a
white Nissan Altima. At 7:29 a.m., Cunigan, wearing a white shirt and black shorts, got into
the Altima, and he and Norman drove away.
{¶ 21} Norman testified that he was related to Cunigan and considered Cunigan his
cousin. Norman had known Cunigan since they were children, and Norman knew Cunigan
had children with P.T. At the time of trial, Norman was in a federal penitentiary in West
Virginia for violating his probation. He had prior felony convictions for robbery,
“representing disability,” and possession with intent to distribute.
{¶ 22} On the morning of May 22, 2024, Norman and his friend Derrick Hoskins were
at Paige Dearmon’s apartment at Eagle Ridge Apartments. At 6:46 a.m. on May 22, 2024,
Norman received a text message from Cunigan. Norman texted Dearmon’s address to
Cunigan so he could come over. Cunigan told Norman not to say anything to anyone,
including Hoskins. Norman testified he did not know what kind of trouble Cunigan was in,
but texted Cunigan, “U my f * * * ing Cuzin u in trouble so it’s my duty to keep u safe n * * * *
u called me not nobody els.”2
{¶ 23} Norman testified that Cunigan entered Dearmon’s apartment that morning
wearing all black. Cunigan stated that he had gotten in trouble with some people and did
not want them to see him, so Norman gave Cunigan his own shirt. Norman walked out of
Dearmon’s apartment without a shirt on and retrieved Dearmon’s white Nissan Altima. He
drove up to Dearmon’s apartment, where Cunigan got into the passenger seat wearing
shorts. Cunigan had left his pants in Dearmon’s apartment. Norman drove Cunigan to
Springfield, Ohio, to meet a girl, but the girl did not respond, so they turned around, got on
2 . All quoted texts appear in original form, including spelling and grammatical errors. Expletives included in the original texts have been redacted with asterisks.
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the interstate, and headed towards Indiana. Cunigan’s phone records confirmed that he
was in the Springfield, Ohio, area at 8:10 a.m., but then his phone was turned off.
{¶ 24} At 7:27 a.m., Norman’s phone texted “Uncle Gary,” alerting Uncle Gary that
Cunigan was with Norman and requesting that Uncle Gary contact Cunigan via Norman’s
cell phone. According to Norman, Uncle Gary was a friend of the family. Norman dropped
Cunigan off just over the Indiana border. Norman immediately turned around and drove
back to Trotwood because Dearmon wanted her car back. Police obtained Norman’s cell
phone location information, which corroborated his testimony about his travel times from
Dayton, to Springfield, to Richmond, and then back to Dayton. When Norman returned to
Dearmon’s apartment, Hoskins was wearing Cunigan’s pants. Hoskins subsequently took
them off because he claimed they were too tight. Later that day, Norman and Hoskins threw
Cunigan’s pants away in a dumpster at Norman’s mother’s house on Germantown Street.
{¶ 25} On May 24, 2024, officers went to the apartments located at 1207 Germantown
Street and recovered a pair of pants inside a grocery bag from the dumpster behind the
apartments. The pants matched those worn by the suspect in the video from the shooting
on Shaftesbury Road. The parties stipulated that scientific testing established that the
pants recovered from the dumpster had P.T.’s blood on them.
{¶ 26} Nicole Cunigan, Sr. (“Senior”), testified that he is Cunigan’s father and
Williamson is Cunigan’s mother. Senior was aware that P.T. was the mother of some of
Cunigan’s children, specifically, the twins. Senior wanted Cunigan to get a job as a model
and asked Cunigan to send photos of himself to help him get some work. On May 20, 2024,
Cunigan sent Senior a photograph of himself that had been taken that morning depicting his
orange-colored dreads, which was submitted to the jury.
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{¶ 27} Senior had been a truck driver for almost 14 years, mostly working in the tristate area. Sometime after 7:00 a.m. on May 22, 2024, while in Indiana, Senior received
texts from Cunigan and learned about what had happened at P.T.’s house.
{¶ 28} Prior to May 22, 2024, Senior owned three guns: a shotgun, a 9 mm pistol,
and a .45 caliber semiautomatic pistol. After he heard about what happened at P.T.’s
house, he discovered that his .45 caliber semiautomatic pistol was missing. Senior denied
giving his gun to Cunigan at any time in May 2024 and stated that Cunigan never returned
a gun to him.
{¶ 29} On May 23, 2024, Dayton Police Homicide Detectives David House, Melissa
Schloss, and Woody went to 60 Pinewood Circle, where they met with Williamson and
Morris. The officers were given consent to check Williamson and Morris’s apartment for
anyone else who might be present. When Detective House went into the bathroom, he
observed a paper towel bearing a handwritten number, which was later found to be Uncle
Gary’s phone number. When Uncle Gary’s phone number was run in a police database,
the number came back to Jerry Davis, a truck driver. After obtaining Davis’s phone records,
it was determined that Davis’s phone travelled to Richmond, Indiana, on the morning of
May 22, 2024.
{¶ 30} Richmond is located a few miles west of the Ohio border near the I-70 and
U.S. 40 interchange. Detectives obtained surveillance video from one of the hotels in
Richmond that was in the same area as Davis’s phone on the morning of May 22, 2024.
The surveillance video showed a red semitruck, which was leased to Davis, exit the highway
and pull to the curb in front of a fireworks store. Cunigan got into the passenger side of the
semitruck and then it pulled away at approximately 9:41 a.m. After leaving Richmond, the
semitruck drove west to Indianapolis, Indiana, and then eventually traveled east to
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Cleveland, Ohio. Davis’s phone records showed that his phone traveled to an area close
to Davis’s listed address in Cleveland. Detectives House and Woody traveled to Cleveland,
found Cunigan, and brought him back to Dayton.
{¶ 31} Seventeen-year-old C.T. was P.T.’s eldest child. Cunigan was not his father.
C.T. testified that P.T. had three children with Cunigan, including the twins. In May 2024,
C.T. lived on Shaftesbury Road with his mom, Cunigan, and his siblings, but C.T. did not
stay there all the time. Because some of C.T.’s family lived at Summit Square apartments,
C.T. often spent time there. D.J. was one of C.T.’s close friends and lived in the Whitney
Young apartments.
{¶ 32} On the night of May 21, 2024, C.T. was at Summit Square Apartments at his
friend Javon’s house. Cunigan contacted C.T. looking for P.T., but C.T. did not know where
she was. Cunigan arranged to pick up C.T. to go look for P.T. Cunigan told C.T. to bring
a gun, so C.T. brought his Taurus G2 9 mm gun. C.T. always kept his gun on him, so it
was not unusual for him to bring it along.
{¶ 33} Cunigan picked up C.T. and Javon in P.T.’s white Chevrolet Malibu. C.T.
knew Cunigan had P.T.’s car and that she had wanted it back. That night, Cunigan wore
his hair in dreads with a reddish-orange color to them. Cunigan had a gun in the cup holder
of the Malibu, but C.T. did not know the make or model of it. Cunigan showed C.T. a video
on Cunigan’s phone that depicted P.T. in bed with someone, but C.T. could not identify the
other person. Cunigan drove them to D.J.’s house at Whitney Young Apartments and
walked up to D.J.’s door. Cunigan told C.T. to call his mom while they were standing
outside D.J.’s apartment. C.T.’s phone records showed that he tried to call his mother
between 1:14 a.m. and 1:28 a.m. on May 22, 2024. C.T. finally spoke to his mother, but
she did not disclose her location. After C.T. got off the phone, Cunigan knocked on D.J.’s
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door. As the door opened, Cunigan used his feet to kick the door open, but Cunigan was
unable to get into the apartment because the person on the other side of the door was able
to shut it. C.T., Cunigan, and Javon returned to P.T.’s car, and Cunigan dropped them off
at Summit Square Apartments. Cunigan did not say where he was going after he dropped
them off.
{¶ 34} Terraesha Reed, Cunigan’s sister, testified that around 5:00 a.m. on May 22,
2024, Cunigan texted her. Cunigan asked her for a ride to pick up three of his kids who
were at P.T.’s house. Reed was aware that P.T. was the mother of Cunigan’s twins and
lived on Shaftesbury Road. Reed did not have a car, but she lived with her brother Jamari,
who was home and had a white Kia with 30-day tags. Jamari and Reed picked up Cunigan
in Dayton around 5:35 a.m. At that time, Cunigan had his hair in dreads that were colored
orange toward the bottom.
{¶ 35} They arrived at P.T.’s house about 7 minutes after picking up Cunigan and let
Cunigan out of the car. Cunigan was gone for about 10 minutes and then Reed saw
Cunigan come out of P.T.’s front door before returning to the Kia. She also saw P.T. come
outside the house before they drove away. Cunigan did not say anything about what
happened inside P.T.’s house. Reed and Jamari dropped Cunigan off at some apartments
and left.
{¶ 36} Montgomery County Sheriff’s Office Detective Sergeant Isaiah Keller was a
specialist in computer forensics and was trained to examine computers, mobile devices, and
other electronic devices. Detective Keller testified that he was given P.T.’s cell phone to
download and analyze. Using Cellebrite software, his analysis of P.T.’s phone showed that
from May 16, 2024, at 3:03:59 a.m. through May 22, 2024, at 4:46:00 a.m., Cunigan called
or FaceTimed P.T. hundreds of times. Of those attempts, 827 went unanswered, while
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74 attempts were answered. During that same time frame, P.T. contacted Cunigan 42
times, but there were no contacts from P.T. to Cunigan on May 16 or 17, 2024.
{¶ 37} In the days leading up to the shooting, Cunigan’s texts indicated that at one
point he had his father’s gun and told P.T. not to be scared of him. Cunigan also indicated
that he knew P.T. was pregnant with his child and suspected her of messing around with
other men whom he threatened to beat up. Despite P.T. telling Cunigan that she was done
with him, Cunigan repeatedly accused P.T. of cheating on him. On multiple occasions, P.T.
told Cunigan to return her car and to stay away from her. In the early morning hours of May
22, 2024, Cunigan wanted P.T. to tell her where she was located, but she refused to answer.
Around 12:30 a.m., Cunigan texted P.T. that he knew the address of the man she was with,
and he told her to tell him to come outside or he would come in. P.T. did not respond.
Cunigan told P.T. to answer the phone and asked if she had left the kids home alone.
At 3:39 a.m., Cunigan texted P.T. asking where his kids were.
{¶ 38} A video was recovered from P.T.’s phone that was taken around 5:57 a.m. on
May 22, 2024. In the video, a white Kia Optima displaying a temporary plate on the lefthand corner of the back windshield drives away from P.T. At 5:59 a.m., Cunigan texted
P.T. that he was going to get her car. P.T. responded that she had gotten their license
plate. Cunigan claimed that he was just making sure his kids were not home alone. P.T.
texted Cunigan at 6:00 a.m. that “they not gone have a car either they going to jail n that car
waved a gun bye I’ll show u,” and Cunigan asked P.T. not to call the police. P.T. then texted
Cunigan at 6:02 a.m., “They going to jail with u and u had your hand on your gun.” Cunigan
responded, “Ok, p. I ain’t know if he had one tf.” At 6:11 a.m., Cunigan texted P.T. that
she could have her car and that he would bring it to her in 30 minutes. At 6:13 a.m.,
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Cunigan texted P.T. that P.T. won and he was through. P.T. sent her final text to Cunigan
at 6:14 a.m. telling him that she was done giving him chances that he did not deserve.
{¶ 39} Dr. Sean Swiatkowski, a pathologist from the Montgomery County Coroner’s
Office, testified that he conducted the autopsies of P.T. and D.J. P.T. had an abrasion on
her left fifth finger caused by blunt force trauma. There was an entrance gunshot wound
on P.T.’s back left shoulder and a corresponding exit wound on the inside of her left arm.
The bullet traveled from P.T.’s back to the front and angled downward. Another gunshot
entrance wound was located under P.T.’s right breast with a corresponding exit wound on
the front right breast. The bullet’s direction of travel was consistent with someone shooting
P.T. from her right side. A third entrance wound was located on the top right front of P.T.’s
forehead, which corresponded with a bullet that had entered P.T.’s skull. There was no
corresponding exit wound, and a bullet was recovered from the soft tissue on the left side of
P.T.’s neck. According to Dr. Swiatkowski, the barrel of the weapon must have been above
P.T.’s head when causing this gunshot wound because the direction of travel of the bullet
was downward. Toxicology results of P.T.’s blood reflected the presence of fentanyl,
fentanyl metabolite, marijuana, and marijuana metabolite. None of these substances
contributed to the death of P.T. Dr. Swiatkowski testified that the cause of P.T.’s death was
multiple gunshot wounds.
{¶ 40} At the time of P.T.’s death, she was pregnant. The fetus inside P.T.’s uterus
was a male, and its gestational age was about 14-15 weeks based on its weight and
measurements. There was no evidence of maceration, which occurs when a fetus dies in
utero while the mother is still alive. Congenitally, the fetus appeared fine with no
abnormalities. According to Dr. Swiatkowski, it was a viable fetus at the time of death. Dr.
Swiatkowski explained that once a mother loses her circulatory ability to provide blood to
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her fetus, the fetus is unable to obtain oxygen and dies. A fetus is not viable very long after
the mother loses her circulatory function and dies. P.T. lost her circulatory function when
she succumbed to the gunshot wounds. Dr. Swiatkowski was not concerned about the level
of fentanyl in P.T.’s blood as it related to the death of the fetus.
{¶ 41} D.J. had a gunshot entrance wound to the left side of his chest with a
corresponding exit wound on his back. Near D.J.’s left wrist was a gunshot entrance wound
with a corresponding exit wound on the posterior aspect of his ring finger. D.J. had a
gunshot entrance wound to the left side of his neck with no corresponding exit wound. A
bullet was recovered from the back of D.J.’s neck. Dr. Swiatkowski testified that the
gunshot wound to the wrist could be indicative of a defensive wound. It was also possible
that D.J. was shot through the wrist and the projectile exited his finger and entered his
neck—all in one shot. D.J.’s toxicology results reflected the presence marijuana and
fentanyl as well as xylazine. Nothing in the toxicology results contributed to D.J.’s death.
D.J.’s cause of death was multiple gunshot wounds.
{¶ 42} Parole Officer Alec Sparkman testified that he worked for the Adult Parole
Authority (“APA”) and supervised individuals released from incarceration on post-release
control (“PRC”) or parole. After an individual’s release, they were required to meet with a
parole officer within 48-72 hours. Sparkman testified that he met with Cunigan and
reviewed his conditions of supervision, which Cunigan signed on January 18, 2024. This
document was admitted at trial. Cunigan’s assigned parole officer had been on vacation,
so Sparkman filled in for her to review Cunigan’s forms. The first condition of Cunigan’s
supervision required him to obey all laws and have no contact with the victim of his current
offense (the one for which he was on PRC). The third condition required Cunigan to obtain
a written travel permit from the APA before leaving the state of Ohio. The fourth condition
16
prohibited Cunigan from purchasing, possessing, owning, using, or having under his control
any firearm or ammunition.
{¶ 43} Parole Officer Elizabeth Ackerman was Cunigan’s assigned parole officer. As
part of her duties, she investigated where Cunigan planned to live upon his release.
Ackerman met with Senior, who verified it would be okay for Cunigan to live with him.
Ackerman was advised that there was a gun in the home but that it was in a locked safe.
Senior agreed that Cunigan would not have access to any guns. Therefore, Ackerman
approved Senior’s address as a location for Cunigan to live. Ackerman last saw Cunigan
in March 2024, and Cunigan never asked to change his address to any other location.
{¶ 44} Detective Melissa Schloss was the case detective assigned to investigate the
deaths of P.T. and D.J. Because the police had a named suspect, Detective Schloss
obtained Cunigan’s phone number, researched his background, and conducted a
background check on P.T. and her vehicle. P.T. was the victim of Cunigan’s prior offense,
and he was not supposed to have contact with her per his parole officer. Police never
recovered the gun used to shoot P.T. and D.J.
{¶ 45} Outside the hearing of the jury, Detective Schloss testified to a certified copy
of Cunigan’s prior conviction for felonious assault, an offense of violence. The victim of that
prior conviction in 2022 was P.T., a family or household member of Cunigan.
{¶ 46} Following the completion of the State’s case, Cunigan made a Crim.R. 29
motion, arguing there was insufficient evidence of his identity as the perpetrator. Cunigan’s
motion was overruled.
{¶ 47} The following morning, Cunigan withdrew his notice of self-defense, declined
to testify, and presented no witnesses on his behalf. In response to Cunigan’s decision to
withdraw his notice of self-defense, the State withdrew Cunigan’s signed conditions of parole
17
supervision from submission to the jury, the State advised the court it would not discuss the
PRC testimony during closing arguments, and Cunigan requested a limiting instruction from
the court relating to the PRC evidence. A limiting instruction was given to the jury.
{¶ 48} The jury returned a verdict of guilty as charged on all counts and specifications.
Before sentencing, the trial court found Cunigan guilty of domestic violence (knowingly –
1 prior) and having a weapon while under disability, along with their respective firearm
specifications. The trial court further found that Cunigan was a repeat violent offender.
{¶ 49} At sentencing, the trial court advised Cunigan of his duty to enroll as a violent
offender upon his release from prison. Defense counsel requested that all of the counts
related to each separate victim be merged into one sentence for each victim and asked the
court to impose the minimum sentence. The trial court merged the two counts of murder
and two counts of felonious assault related to D.J. into one count of murder. The trial court
merged the purposeful murder and involuntary manslaughter counts related to P.T.’s unborn
child into one count of purposeful murder. The trial court merged the two domestic violence
offenses into one count of domestic violence (knowingly – 1 prior), a fourth-degree felony.
All of the three-year firearm specifications attached to the merged counts were ordered to
run concurrently with one another.
{¶ 50} The trial court then imposed a mandatory sentence of 15 years to life in prison
for the murder charge related to P.T., plus an additional mandatory 3-year prison term for
the firearm specification and an additional 3-year prison term for the RVO specification.
The trial court imposed a mandatory sentence of 15 years to life in prison for the murder
charge related to the unborn child of P.T., plus an additional mandatory 3-year prison term
for the firearm specification and an additional 2-year prison term for the RVO specification.
The trial court imposed a mandatory sentence of 15 years to life in prison for the murder
18
charge related to D.J., plus an additional 3-year mandatory prison term for the firearm
specification and an additional 1-year prison term for the RVO specification. The trial court
imposed a stated prison term of 2 years on the charge of tampering with evidence, a term
of 180 days in jail for the charge of unauthorized use of a motor vehicle, a stated prison term
of 12 months for the charge of domestic-violence (knowingly – 1 prior) with an additional 3-year mandatory prison term for the firearm specification, and a stated prison term of 3 years
for having weapons while under disability with an additional 3-year prison term for the firearm
specification. The trial court ordered the underlying sentences to be served concurrently
with each other. But the trial court ordered the firearm specifications and RVO
specifications to be served consecutive to the underlying offenses and consecutive to each
other for an aggregate sentence of a mandatory minimum term of 39 years to life in prison.
Cunigan timely appealed.
II. Cunigan’s Convictions Are Not Against the Manifest Weight of the
Evidence and Are Supported by Sufficient Evidence
{¶ 51} Cunigan’s first and second assignments of error are interrelated and thus we
consider them jointly. The assignments of error state:
APPELLANT’S CONVICTIONS FOR THREE COUNTS OF MURDER,
DOMESTIC VIOLENCE (KNOWINGLY-PRIOR), TAMPERING WITH
EVIDENCE, UNAUTHORIZED USE OF MOTOR VEHICLE AND HAVING
WEAPONS WHILE UNDER DISABILITY (PRIOR OFFENSE OF VIOLENCE)
ARE BASED UPON INSUFFICIENT EVIDENCE.
APPELLANT’S CONVICTIONS FOR THREE COUNTS OF MURDER,
DOMESTIC VIOLENCE (KNOWINGLY-PRIOR), TAMPERING WITH
EVIDENCE, UNAUTHORIZED USE OF MOTOR VEHICLE AND HAVING
19
WEAPONS WHILE UNDER DISABILITY (PRIOR OFFENSE OF VIOLENCE)
ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 52} Cunigan argues that his convictions are against the manifest weight of the
evidence and are not supported by sufficient evidence because: (1) the State failed to prove
his identity as the perpetrator; (2) the State failed to prove that he and P.T. were family or
household members for the charge of domestic violence; (3) the State failed to prove the
viability of P.T.’s unborn child to support the murder conviction; and (4) his conviction for
tampering with evidence was not supported by sufficient evidence and was based on
testimony that was not credible. We limit our manifest weight and sufficiency analysis to
the specific arguments raised by Cunigan.
A. Standards of Review
{¶ 53} When reviewing the sufficiency of the evidence to support a criminal
conviction, an appellate court examines all the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two
of the syllabus. “The 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.” Id. “The verdict will not be
disturbed unless the appellate court finds that reasonable minds could not reach the
conclusion reached by the trier-of-fact.” State v. Dennis, 1997-Ohio-372, ¶ 51, citing Jenks
at 273.
{¶ 54} In contrast, when a conviction is challenged on appeal as being against the
manifest weight of the evidence, an appellate court reviews the entire record, weighs the
evidence and all reasonable inferences, considers witness credibility, and determines
20
whether, in resolving conflicts in the evidence, the trier of fact “‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.’” State v. Thompkins, 1997-Ohio-52, ¶ 25, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist. 1983). A judgment should be reversed as being against
the manifest weight of the evidence “only in the exceptional case in which the evidence
weighs heavily against the conviction.” Martin at 175. “[W]hen conducting a manifestweight review, appellate courts must defer to the fact-finder’s witness-credibility
determinations.” State v. Reillo, Slip Opinion No. 2026-Ohio-2701, ¶ 38. “Mere
disagreement over the credibility of witnesses is not a sufficient reason to reverse a
judgment on manifest weight grounds.” State v. Harris, 2014-Ohio-2501, ¶ 25 (10th Dist.),
citing State v. G.G., 2012-Ohio-5902, ¶ 7 (10th Dist.).
B. Identity of the Shooter
{¶ 55} In a criminal case, the prosecution must prove every element of the crime
charged beyond a reasonable doubt, including the identity of the perpetrator. State v. Tate,
2014-Ohio-3667, ¶ 15. The identity of the perpetrator may be proved by direct or
circumstantial evidence. Id. This is because circumstantial evidence has the same
probative value as direct evidence. Jenks at paragraph one of the syllabus.
{¶ 56} In this case, there is overwhelming evidence that identified Cunigan as the
perpetrator. The most damning piece of evidence is the surveillance video footage that
shows Cunigan shooting into P.T.’s bedroom window with a semiautomatic pistol and then
climbing inside the bedroom through the open window. While Cunigan is correct that no
one explicitly identified him as the individual in the surveillance video, the evidence
submitted at trial overwhelmingly identified him as the person who entered P.T.’s residence
and killed D.J., P.T., and P.T.’s unborn child.
21
{¶ 57} Washington testified that she knew Cunigan and had seen him on May 20,
2024, when P.T. let Cunigan borrow P.T.’s car. Washington described Cunigan as wearing
his hair in dreads with the bottoms colored orange and retwisted. That same day, Cunigan
sent his father a photograph of himself, which showed his distinctive, orange-colored dreads.
C.T. likewise described Cunigan as having reddish-orange-colored dreads when he saw
Cunigan in the early morning hours of May 22, 2024.
{¶ 58} Between May 20, 2024, and May 22, 2024, P.T. repeatedly asked Cunigan to
return her car—the same car that Cunigan drove C.T. in during the early morning hours of
May 22, 2024, the same car that the shooter drove to P.T.’s house at 6:15 a.m. that morning,
and the same car that Cunigan drove to Pinewood Gardens at 6:29 a.m.
{¶ 59} In the days leading up to the murder, Cunigan’s texts reflect that he was angry
about P.T. being with another man and about finding a video of P.T. engaged in sexual acts
with someone else. Cunigan threatened to beat up the other man and claimed that he knew
where the man lived. Cunigan made significant efforts to track down P.T. in the early
morning hours of May 22, 2024, including enlisting C.T. to find her.
{¶ 60} Just after 5:00 a.m. on May 22, 2024, Cunigan contacted his sister, Reed,
seeking a ride to P.T.’s house under the guise of checking on his children. Reed got her
brother Jamari to go with her to pick up Cunigan and to drive him to P.T.’s house on
Shaftesbury Road. According to Reed, Cunigan had his hair in dreads that were colored
orange toward the bottom. Jamari drove them in his white Kia with 30-day tags, the same
car that surveillance video showed driving by P.T.’s house at 5:45 a.m. and parking on the
opposite side of the street.
{¶ 61} Surveillance video showed that a black male looked into P.T.’s bedroom
window at 5:47 a.m. His hair was in dreads colored orange toward the bottom, and he wore
22
dark grey and black pants, a black t-shirt, and black shoes. He briefly left and returned at
5:49 a.m., at which point he lifted the window screen, the window, and the window shades
of P.T.’s bedroom and appeared to talk to someone inside the room. At 5:53:20 a.m., he
climbed through the window into P.T.’s bedroom. Washington testified that she heard
Cunigan talking to P.T. in P.T.’s bedroom and that she saw Cunigan leave P.T.’s bedroom
and walk through the living room and out the front door around 5:57 a.m. She testified that
Cunigan wore all black and had his hair in the same style of dreads with orange coloring at
the bottom that she had seen him wearing two days prior. Washington also testified that
P.T. asked Cunigan about the location of her car and Cunigan asked P.T. not to call the
police on him.
{¶ 62} Reed testified that Cunigan was gone for only about 10 minutes before she
saw him walk out of P.T.’s front door and return to Jamari’s car. The surveillance video
showed P.T. on her front lawn with a phone in her hand at 5:57:48 a.m. Reed testified that
she saw P.T. walk outside the house while they were in the car before they drove off. Based
on Reed and Washington’s testimony, both of whom had personally observed Cunigan and
were familiar with him, the male visitor who climbed through P.T.’s bedroom window and
walked out the front door was Cunigan.
{¶ 63} Text messages between Cunigan and P.T. beginning at 5:59 a.m. on May 22,
2024, indicated that Cunigan was going to get P.T.’s car and return it. P.T. sent Cunigan a
video at 6:00 a.m. after texting him that she had gotten their license plate and that they were
going to go to jail. A video recovered from P.T.’s phone showed a white Kia Optima with
30-day tags drive away from her. That video appears to coincide with P.T.’s 6:00 a.m. text
message and the surveillance video that showed P.T. holding up a phone as Jamari’s Kia
drove away from her house. P.T. also texted Cunigan that she saw him with a gun.
23
{¶ 64} Surveillance video showed that, at 6:15 a.m., P.T.’s white Malibu drove up to
P.T.’s house, backed into her driveway, and parked. The white Malibu was the same car
Cunigan texted that he was going to bring to her. At 6:15:56 a.m., a black male with dreads
colored orange toward the bottom, who was wearing dark grey and black pants, black shoes,
and a black t-shirt, got out of P.T.’s car and walked directly to P.T.’s bedroom window. The
man in the video wore the same outfit and had the same color and style of hair that Cunigan
had when he was at P.T.’s home less than twenty minutes before. Based on the prior
identification, it was clear this person was Cunigan. At 6:16 a.m., Cunigan lifted the window
screen and then tried to lift the window up like he had done previously, but it fell forward into
the bedroom. After knocking in the window, Cunigan lifted the window shades and
appeared to speak briefly with the occupants in the room. Washington testified that she
heard the window in P.T.’s bedroom come down with a loud boom. She then heard P.T.
say, “Nico, why the f * * * do you keep doing that to my f * * * ing window?” Washington
heard Cunigan reply, “My bad, I didn’t mean to do that to the window.”
{¶ 65} At 6:16:28 a.m., while still standing outside the window, Cunigan pulled out a
black semiautomatic handgun that had been tucked into his pants. Using his right hand, he
reached into P.T.’s bedroom window and fired his gun. A flash from the muzzle could be
seen in the video and a .45 caliber shell casing was recovered on the floor of the bedroom
just below the window. After firing the first shot, Cunigan aimed the gun to the left side of
the bedroom, the location where D.J. was found shot and killed. Two additional .45 caliber
shell casings were recovered on the bed where D.J.’s body was found. At 6:16:34 a.m.,
Cunigan crawled through the window and entered the house, just as he had done earlier
that morning.
24
{¶ 66} Washington testified that after she heard P.T. and Cunigan talking, she heard
three gunshots and P.T. scream, so she ran to the basement. While hiding in the
basement, Washington heard P.T., who had fled to the kitchen, beg for her life and yell,
“Please, Nico. I’m sorry. I’m sorry. Please. No. I’m sorry. Please. No.” Washington
knew at least one shot was fired in the kitchen because she heard P.T. slip and fall. Then,
when P.T. came down the basement stairs, she was shot one final time in the head.
Washington saw the shooter start to come down the stairs and testified that the shooter was
wearing shoes consistent with ones she had previously seen Cunigan wear. Washington
attempted to call 911 at 6:17 a.m., the same time Cunigan returned to P.T.’s car and drove
off.
{¶ 67} Six .45 caliber spent shell casings were recovered from the house, all fired
from the same gun. Senior testified that he owned a .45 caliber handgun that he discovered
missing after the shooting. Cunigan’s text messages to P.T. indicated that he had
possession of a gun that belonged to his father in the days leading up to the shooting. C.T.
testified that in the early morning hours of May 22, 2024, when Cunigan picked him up in
P.T.’s white Malibu, Cunigan had a gun in the cup holder. P.T.’s 6:02 a.m. text message to
Cunigan on May 22, 2024, reflected that she had observed Cunigan with a gun that morning.
{¶ 68} At 6:17:13 a.m., Cunigan walked away from P.T.’s house. He then got into
P.T.’s white Malibu and drove away. P.T.’s Malibu was found at the Pinewood Gardens
Apartments where Cunigan’s mother lived. Surveillance video showed the Malibu entering
the apartment complex at 6:29:47 a.m. on May 22, 2024. The Malibu parked, and Cunigan,
still wearing a black t-shirt, grey and black pants, and black shoes and sporting the
distinctive, orange-colored dreads, got out of the driver’s seat of the car. Cunigan entered
25
60 Pinewood Circle and went downstairs, the same location where Cunigan’s mother and
Morris lived.
{¶ 69} At 6:46 a.m. on May 22, 2024, Cunigan contacted his cousin Norman.
Norman texted Dearmon’s address to Cunigan, and Cunigan texted Norman not to say
anything to anyone. Although Norman claimed he did not know what kind of trouble
Cunigan was in, he nevertheless texted Cunigan, “U my f * * * ing Cuzin u in trouble so it’s
my duty to keep u safe n * * * * u called me not nobody els.”
{¶ 70} At 6:48 a.m., Cunigan walked outside with Morris and got into Morris’s rented
black Jeep. When Detective House visited the apartment after the murders, he found a
paper towel on the bathroom sink with the phone number of Jerry Davis, the same person
who picked up Cunigan in Indiana and drove him to Cleveland.
{¶ 71} At 7:06 a.m., Morris’s Jeep pulled into the Eagle Ridge apartment complex.
Cunigan, still wearing all black and donning orange dreads, got out of the Jeep and went
into Dearmon’s apartment building. Norman identified Cunigan as the individual who
entered Dearmon’s apartment that morning wearing all black. However, Cunigan changed
into a white shirt (which Norman gave to him) and shorts, leaving his pants behind.
According to Norman, Cunigan changed clothes because Cunigan claimed to have “gotten
into it” with someone and did not want to be seen.
{¶ 72} At 7:26 a.m., Norman walked out of Dearmon’s apartment building and
acquired Dearmon’s white Nissan Altima. At 7:27 a.m., Norman texted Davis and stated
that “cuz” was with him and that Davis should call his phone if Davis needed Cunigan. At
7:29 a.m., Cunigan, wearing black shorts and Norman’s white shirt, got into the passenger
side of the Altima and drove off with Norman. Norman drove Cunigan toward Springfield,
Ohio, and eventually to Richmond, Indiana. Davis texted Norman at 8:11 a.m. to “[t]ell him
26
to turn that phone off, and hit me from yo line.” Cunigan’s cell phone last pinged in
Springfield, Ohio, at 8:10 a.m. but then was turned off.
{¶ 73} Norman dropped Cunigan off in Richmond, Indiana, and returned to
Dearmon’s apartment. Cunigan was picked up in Richmond by Davis’s red semitruck and
driven first to Indianapolis and then eventually to Cleveland. After Norman arrived back in
Trotwood, Norman and Hoskins took Cunigan’s pants to Norman’s mother’s house on
Germantown Street and threw them away in a dumpster. Those pants were recovered by
police on May 24, 2024. Laboratory analysis revealed that blood found on Cunigan’s pants
belonged to P.T.
{¶ 74} While Cunigan points to the lack of fingerprint or DNA evidence to tie him to
the crime scene, the vast amount of evidence identifies him as the perpetrator. Likewise,
the fact that the murder weapon was never recovered does not preclude the jury from finding
Cunigan guilty of the offenses. Notably, after the offenses were committed, Cunigan fled
the scene to his mother’s apartment, then to Dearmon’s apartment, and then to Springfield,
Richmond, Indianapolis, and finally Cleveland, where he was eventually arrested. In that
time, Cunigan had changed clothing and driven across the state, which allowed him plenty
of time and opportunity to dispose of the weapon prior to his arrest.
{¶ 75} Cunigan also points to the lack of credibility of the witnesses, either due to
marijuana use or prior criminal history, as a basis for reversal. Based on their verdict, the
jury obviously chose to believe the State’s witnesses, which they were entitled to do. State
v. DeHass, 10 Ohio St.2d 230, 231 (1967). The jury had the opportunity to view all the
evidence, including the surveillance videos, and consider the credibility of the witnesses.
We cannot conclude that the jury lost its way in choosing to credit the testimony and
evidence presented by the State and finding Cunigan guilty of the murders and related
27
offenses. When the evidence is viewed in the light most favorable to the State, a rational
trier of fact could have found that Cunigan was the perpetrator of all the offenses.
Additionally, based upon the stipulation regarding Cunigan’s prior conviction, the trial court
had more than enough evidence to find that Cunigan was guilty of having a weapon while
under disability and domestic violence (knowingly – 1 prior).
C. Cunigan and P.T. Were Family or Household Members
{¶ 76} R.C. 2919.25(A) provides that no person shall knowingly cause or attempt to
cause physical harm to a family or household member. Cunigan argues that the State failed
to prove the element that P.T. was a family or household member. “Family or household
member” is defined in part as “[t]he natural parent of any child of whom the offender is the
other natural parent or is the putative other natural parent.” R.C. 2919.25(F)(1)(b).
{¶ 77} The testimony of several witnesses at trial established that Cunigan was the
natural parent of at least two of P.T.’s children. Washington and C.T. testified that Cunigan
was the father of P.T.’s twins as well as a third child. Cunigan’s cousin, Norman, testified
that Cunigan had children with P.T. Cunigan’s father and sister both testified that Cunigan
was the father of P.T.’s twins. Accordingly, the State proved beyond a reasonable doubt
that Cunigan and P.T. were family or household members because P.T. was the natural
parent of a child of whom Cunigan was the other natural parent. Therefore, we conclude
that Cunigan’s domestic violence conviction was not against the manifest weight of the
evidence and was supported by sufficient evidence.
D. Viability Is Not An Element of Unlawful Termination of Another’s
Pregnancy
{¶ 78} Cunigan argues that the State was required to prove that P.T.’s fetus was
viable as defined in R.C. 2901.01(B)(1)(a). We do not agree.
28
{¶ 79} Cunigan was found guilty under R.C. 2903.02(A) for purposely causing the
unlawful termination of P.T.’s pregnancy. “Unlawful termination of another’s pregnancy”
means “causing the death of an unborn member of the species homo sapiens, who is or was
carried in the womb of another, as a result of injuries inflicted during the period that begins
with fertilization and that continues unless and until live birth occurs.” R.C. 2903.09(A).
The definition of an unlawful termination of another’s pregnancy does not include the term
“viable.”
{¶ 80} In contrast, the term “viable” is applicable to any section in Revised Code Title
29 that sets forth a criminal offense involving a “person.” R.C. 2901.01(B)(1)(a). A
“person” includes “an unborn human who is viable.” R.C. 2901.01(B)(1)(a)(ii). But
because the offense for which Cunigan was convicted involved the unlawful termination of
another’s pregnancy, it required the death of an unborn human. It was not an offense
involving “a person” that included the element of viability. See State v. Cole, 2024-Ohio5303, ¶ 19 (6th Dist.) (viability is not an element of the offense of purposely causing the
unlawful termination of another’s pregnancy); State v. Pesta, 2007-Ohio-2295, ¶ 27 (12th
Dist.) (viability of the unborn child is not an element of the offense of unlawful termination of
another’s pregnancy); State v. Feller, 2012-Ohio-6016, ¶ 35 (1st Dist.) (R.C. 2903.09(A)
does not require viability because the General Assembly elected to protect the unborn
human from the moment of fertilization, not from the moment of viability). The State was
required to prove that Cunigan caused the death of an unborn member of the species homo
sapiens, who was carried in the womb of P.T., as a result of injuries inflicted during the
period that began with fertilization and that continued unless and until live birth occurred.
The State presented sufficient evidence to prove that Cunigan purposely caused the
unlawful termination of P.T.’s pregnancy when he shot P.T. repeatedly and killed her
29
knowing that she was pregnant. Further, we cannot conclude that the jury lost its way in
finding Cunigan guilty of this offense.
E. Tampering with Evidence
{¶ 81} Finally, Cunigan argues that Norman’s testimony was insufficient to sustain a
conviction for tampering with evidence. R.C. 2921.12(A)(1) defines the offense of
tampering with evidence: “No person, knowing that an official proceeding or investigation
is in progress, or is about to be or likely to be instituted, shall . . . [a]lter, destroy, conceal, or
remove any record, document, or thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation.” The “thing” involved for this offense was
Cunigan’s pants, which were worn by the shooter in the surveillance video and contained
P.T.’s blood.
{¶ 82} According to Norman, when Cunigan appeared at Dearmon’s apartment, he
changed clothes because Cunigan claimed to have “gotten into it” with someone and did not
want to be seen in the clothes he had been wearing. Norman gave the white t-shirt he had
been wearing to Cunigan, and Cunigan took off his pants, changed into shorts, and left his
pants behind at Dearmon’s apartment. Upon Norman’s return to Dearmon’s apartment
after dropping Cunigan off in Richmond, Norman and Hoskins disposed of Cunigan’s pants
in a dumpster near Norman’s mother’s house. The pants were recovered from the
dumpster two days after the shooting. When analyzed, the pants had P.T.’s blood on them.
{¶ 83} It was within the province of the jury to believe some, all, or none of Norman’s
testimony. State v. Tate, 2013-Ohio-5167, ¶ 39 (2d Dist.). It was not unreasonable for the
jury to find credible Norman’s testimony that, after murdering P.T. and D.J., Cunigan told
Norman that he needed to change his appearance to avoid recognition. This is further
supported by the surveillance video showing Cunigan’s changed appearance. Notably, the
30
evidence showed that Cunigan abandoned the pants he had worn during the shootings by
leaving them at Dearmon’s apartment, a location unconnected to Cunigan, and then fled
from the area. Cunigan shot and killed P.T. and D.J. after climbing through the window of
P.T.’s residence and proceeding through her blood-spattered kitchen, so the jury could have
reasonably inferred that Cunigan knew that his clothing contained some evidence of his
crimes or tied him to the commission of the offenses. See State v. Martin, 2017-Ohio-7556,
¶ 113. Moreover, the jury could have reasonably inferred that Cunigan knew that an official
proceeding or investigation was about to be or likely to be instituted after he murdered two
people in a residential neighborhood with surviving children in the home. See id. at ¶ 118.
Cunigan’s decision to abandon evidence at a location unconnected to him could have been
reasonably interpreted by the jury as concealing or removing a thing “with the purpose to
impair its value or availability as evidence.” R.C. 2921.12(A)(1).
{¶ 84} We conclude that the State presented sufficient evidence to permit a
reasonable juror to conclude that Cunigan committed the offense of tampering with
evidence. Further, we cannot conclude that the jury clearly lost its way and created such a
manifest miscarriage of justice that his conviction must be reversed and a new trial ordered.
This is not the exceptional case in which the evidence weighs heavily against the
convictions.
{¶ 85} Cunigan’s first and second assignments of error are overruled.
III. Cunigan’s Convictions for Murdering P.T. and Committing Domestic
Violence Against P.T. Are Not Allied Offenses of Similar Import
{¶ 86} Cunigan’s third assignment of error states:
THE OFFENSE OF MURDER (PT) AND DOMESTIC VIOLENCE
(KNOWINGLY PRIOR) ARE ALLIED OFFENSES OF SIMILAR IMPORT.
31
{¶ 87} Cunigan contends that his convictions for the murder of P.T. and domestic
violence against P.T. occurred during a continuous sequence of events and should have
been merged at sentencing. We disagree.
{¶ 88} “The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution provides that no person shall ‘be subject for the same offence to be twice put
in jeopardy of life or limb.’” State v. Ruff, 2015-Ohio-995, ¶ 10. Ohio affords the same
constitutional right. Id.; Ohio Const., art. I, § 10. R.C. 2941.25 incorporates the
constitutional protections against double jeopardy. State v. Whitfield, 2010-Ohio-2, ¶ 7.
{¶ 89} A three-part test is used to determine whether offenses should be merged in
accordance with R.C. 2941.25. Ruff at ¶ 31. The court must consider: “(1) Were the
offenses dissimilar in import or significance? (2) Were they committed separately? and
(3) Were they committed with separate animus or motivation?” Id. “An affirmative answer
to any of the above will permit separate convictions. The conduct, the animus, and the
import must all be considered.” Id. “A defendant bears the burden of establishing that
offenses should be merged as allied offenses, and we review the trial court’s merger ruling
de novo.” State v. Farra, 2022-Ohio-1421, ¶ 62 (2d Dist.), citing State v. Frazier, 2021-Ohio-4155, ¶ 20 (2d Dist.).
{¶ 90} Cunigan was convicted of domestic violence (knowingly – 1 prior) in violation
of R.C. 2919.25(A), which required the State to prove that Cunigan knowingly caused or
attempted to cause physical harm to a family or household member, P.T., and that Cunigan
had previously pleaded guilty to or been convicted of an offense involving a family or
household member at the time of the violation. Cunigan was also convicted of murder in
violation of R.C. 2903.02(A), which required the State to prove that Cunigan purposely
caused the death of P.T.
32
{¶ 91} The evidence demonstrates that the offenses of domestic violence and murder
involving P.T. were committed separately and the harm that resulted from each offense was
separate and identifiable. Cunigan first shot P.T. when she was in the bedroom while he
stood outside the bedroom window firing into the house. After P.T. was shot, she ran to the
kitchen, leaving a blood trail through the living room. While P.T. was in the kitchen,
Cunigan, who had climbed into the house through the bedroom window, shot P.T. again
while she was begging for her life. As P.T. descended the basement stairs to flee from
Cunigan, he shot her a final time in the head, resulting in her body coming to rest at the
bottom of the basement stairs.
{¶ 92} Although Cunigan’s animus for each offense may have been the same, there
was a separation of time and space, notwithstanding the offenses’ proximity in time. Each
element of the domestic violence offense was completed when Cunigan first shot P.T. in the
bedroom while he was standing outside the window. At that point, the offense of domestic
violence was completed. Only after Cunigan completed the domestic violence offense did
he then climb through the window, enter the house, pursue P.T. into the kitchen, and shoot
and kill her on the basement stairs. When one offense is completed prior to the completion
of another offense during the defendant’s course of conduct, “‘the two offenses were
committed separately for purposes of R.C. 2941.25(B), notwithstanding their proximity in
time . . . .’” State v. Mooty, 2014-Ohio-733, ¶ 49 (2d Dist.), quoting State v. Turner, 2011-Ohio-6714, ¶ 24 (2d Dist.).
{¶ 93} Moreover, the injury P.T. sustained from the shooting in the bedroom was
separate and distinct from the injury she sustained when Cunigan shot her in the head,
which led to her almost immediate death at the bottom of the stairs. After P.T. was shot in
the bedroom, she was able to ambulate and orally communicate, as demonstrated by the
33
blood trail from the bedroom to the kitchen and Washington’s testimony that she heard P.T.
begging Cunigan for her life. The coroner testified that P.T. was shot once through her right
breast and once through her arm. Although it is unknown which of those two injuries
occurred as a result of the gunshot in the bedroom, the fatal gunshot wound to P.T.’s head
did not occur until she was walking down the basement stairs.
{¶ 94} Because each of Cunigan’s offenses were committed separately and resulted
in separate, identifiable harm to P.T., the trial court did not err in refusing to merge those
offenses. Cunigan’s third assignment of error is overruled.
IV. The Trial Court’s Error in Admitting Evidence of Cunigan’s Post-Release
Control Conditions Is Harmless
{¶ 95} Cunigan’s fourth assignment of error states:
THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF APPELLANT’S
POST RELEASE CONTROL STATUS IN APPELLEE’S CASE IN CHIEF.
{¶ 96} Cunigan argues that testimony that he had been released from prison and
placed on PRC with certain conditions should not have been admitted at trial because it was
not relevant and was prohibited by Evid.R. 404(B). The State responds that, under the
unique circumstances of this case, the trial court did not abuse its discretion in admitting the
testimony. Alternatively, the State argues that if there was error, it was invited by Cunigan
and constitutes harmless error.
A. Background
{¶ 97} On July 2, 2025, Cunigan filed a notice of self-defense pursuant to
Crim.R. 12.2. According to his notice, Cunigan claimed that when he discovered D.J. in
bed with P.T., D.J. pulled out a gun, pointed it at Cunigan, and threatened to shoot him if
34
Cunigan came through the window. Cunigan claimed he fired his gun to protect himself
from serious bodily harm and/or death.
{¶ 98} In response to Cunigan’s notice of self-defense, the State filed a notice of
intent to offer certain evidence at trial. This included evidence that Cunigan was placed on
PRC and signed certain conditions, such as that he was not to have any contact with P.T.,
the victim of his prior offense, and that he was not to have or possess any firearms or
ammunition. The State further indicated its intent to show that Cunigan had provided a
home address different than P.T.’s to his parole officer. As part of its argument, the State
reasoned that because Cunigan had filed a notice of self-defense, the State could present
evidence that Cunigan was not lawfully in a place where he could claim self-defense
because he could not lawfully have contact with P.T. That evidence therefore showed that
Cunigan had a duty to retreat before using deadly force, which he did not do. The State
further argued that the evidence was admissible in the State’s case-in-chief to identify
Cunigan as the shooter.
{¶ 99} Defense counsel filed a response opposing the State’s notice of intent to offer
certain evidence. Counsel also filed proposed jury instructions requesting instructions for
self-defense.
{¶ 100} A hearing was held regarding the State’s notice of intent to offer certain
evidence at trial. At the hearing, Cunigan argued that the State could put forth the evidence
in rebuttal rather than during its case-in-chief. The State responded that if the State rested
and Cunigan put on no witnesses, then the State would be precluded from having a rebuttal
witness. In that circumstance, Cunigan could argue self-defense, but the State would not
have an opportunity to present the parole officers’ evidence to rebut the self-defense claim.
The trial court asked defense counsel if he would agree to waive a Crim.R. 29 argument
35
solely on the issue of self-defense, but defense counsel declined. The trial court
preliminarily agreed to allow the State to admit the testimony of the parole officers to counter
Cunigan’s self-defense argument.
{¶ 101} At trial, Cunigan’s attorney waived an opening statement. Evidence was
presented that P.T. and D.J. had been in the bedroom when Cunigan pushed in the window.
A loaded TEC-9 semiautomatic pistol was recovered from D.J.’s hand when his body was
discovered on the bed under the covers. There was no evidence presented that D.J. fired
the gun or pointed it at anyone.
{¶ 102} Prior to the testimony of the parole officers, a discussion was held during
which defense counsel reiterated his objection to their testimony. The trial court
summarized its prior ruling in which it permitted the testimony because the evidence was
relevant to Cunigan’s claim of self-defense and the State’s burden to demonstrate that
Cunigan was not entitled to use self-defense. Tr. 728. The court questioned defense
counsel whether he still intended to present a self-defense claim, and defense counsel
replied affirmatively. The trial court overruled defense counsel’s objection. Tr. 732-735.
{¶ 103} Parole Officers Sparkman and Ackerman then testified about Cunigan’s PRC
conditions and his expected residence upon release. The State rested its case-in-chief that
afternoon. The following morning, Cunigan declined to testify and withdrew his notice of
self-defense. In response, the State withdrew Cunigan’s conditions of supervision so that
it would not go back to the jury in deliberations. The State further agreed not to discuss the
conditions during closing arguments. Cunigan requested a limiting instruction relating to
the conditions and the evidence that there was to be no contact between Cunigan and P.T.
The trial court provided the limiting instruction.
36
B. Relevant Law
{¶ 104} “Evidence that an accused committed a crime other than the one for which
he is on trial is not admissible when its sole purpose is to show the accused’s propensity or
inclination to commit crime or that he acted in conformity with bad character.” State v.
Williams, 2012-Ohio-5695, ¶ 15, citing State v. Curry, 43 Ohio St.2d 66, 68 (1975), and State
v. Jamison, 49 Ohio St.3d 182, 184 (1990). Evid.R. 404(B), however, allows evidence of a
defendant’s other crimes, wrongs, or acts to be admitted “for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” “The key is that the evidence must prove something other than the
defendant’s disposition to commit certain acts.” State v. Hartman, 2020-Ohio-4440, ¶ 22.
{¶ 105} For other-acts evidence to be admissible, the court must find: (1) the
evidence is relevant, (2) the evidence is not offered to prove a person’s character to show
action in conformity therewith but instead is presented for a legitimate purpose in accordance
with Evid.R. 404(B), and (3) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice. State v. Graham, 2020-Ohio-6700, ¶ 72,
citing Williams at ¶ 20. Evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Evid.R. 401. “In the Evid.R. 404(B)
context, the relevance examination asks whether the proffered evidence is relevant to the
particular purpose for which it is offered, as well as whether it is relevant to an issue that is
actually in dispute.” State v. Smith, 2020-Ohio-4441, ¶ 37, citing Hartman at ¶ 26-27.
{¶ 106} “The court is precluded from admitting improper character evidence under
Evid.R. 404(B), but it has discretion to allow other-acts evidence that is admissible for a
permissible purpose.” Graham at ¶ 72, citing Hartman at ¶ 22, citing Williams at ¶ 17. “The
37
exceptions allowing the evidence ‘must be construed against admissibility, and the standard
for determining admissibility of such evidence is strict.’” State v. Conway, 2006-Ohio-2815,
¶ 61, quoting State v. Broom, 40 Ohio St.3d 277 (1988), paragraph one of the syllabus.
“The determination of whether other-acts evidence is admitted for a permissible purpose is
a question of law, which we review de novo.” State v. Echols, 2024-Ohio-5088, ¶ 30, citing
Hartman at ¶ 22.
C. Use of Deadly Force in Self-Defense
{¶ 107} In Ohio, a person is allowed to act in self-defense, which is an affirmative
defense. State v. Messenger, 2022-Ohio-4562, ¶ 21; R.C. 2901.05(B)(1). The elements
of a self-defense claim when deadly force is used are: “(1) that the defendant was not at
fault in creating the situation giving rise to the affray; (2) that the defendant had a bona fide
belief that he was in imminent danger of death or great bodily harm and that his only means
of escape from such danger was in the use of such force; and (3) that the defendant did not
violate any duty to retreat or avoid the danger.” State v. Barnes, 2002-Ohio-68, ¶ 11, citing
State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus. A person has no
duty to retreat before using force in self-defense if that person is in a place in which the
person lawfully has a right to be. R.C. 2901.09(B).
{¶ 108} R.C. 2901.05(B)(1) provides that:
If, at the trial of a person who is accused of an offense that involved the
person’s use of force against another, there is evidence presented that tends
to support that the accused person used the force in self-defense . . . the
prosecution must prove beyond a reasonable doubt that the accused person
did not use the force in self-defense . . . .
38
This statute “places the initial burden of producing evidence ‘that tends to support’ a selfdefense claim on the defendant.” State v. Bowen, 2024-Ohio-1079, ¶ 11 (2d Dist.), quoting
R.C. 2901.05(B)(1). “The standard for judging whether a defendant meets his burden and
presents legally sufficient evidence is ‘[s]imilar[ ] to the standard for judging the sufficiency
of the state’s evidence.’” (Bracketed text in original.) State v. Palmer, 2024-Ohio-539,
¶ 20, quoting Messenger at ¶ 25. “[I]f the defendant’s evidence and any reasonable
inferences about that evidence would allow a rational trier of fact to find all the elements of
a self-defense claim when viewed in the light most favorable to the defendant, then the
defendant has satisfied the burden.” Messenger at ¶ 25.
{¶ 109} Once the defendant has satisfied their burden of production, the burden then
shifts to the State to prove that the defendant did not act in self-defense. Bowen at ¶ 12,
citing Messenger at ¶ 19. The State can defeat a self-defense claim by disproving any one
of the elements of self-defense beyond a reasonable doubt. State v. Knuff, 2024-Ohio-902,
¶ 191.
D. Analysis
{¶ 110} The trial court allowed the State to present testimony from two parole officers
for the purpose of disproving Cunigan’s anticipated self-defense claim by introducing
evidence of Cunigan’s PRC condition that prohibited him from having contact with P.T.
Tr. 728. The State, however, did not limit the parole officers’ testimony to this one condition.
Instead, the State also had the parole officers testify that Cunigan was not permitted to leave
the state of Ohio without permission, was not permitted to possess a firearm, and that
Cunigan had been approved to live with his father, Senior, upon his release from custody.
None of this additional testimony was relevant to Cunigan’s self-defense claim and should
have been excluded.
39
{¶ 111} The trial court also allowed evidence that Cunigan’s PRC conditions
precluded him from having contact with P.T. because she was the prior victim of his
underlying conviction that resulted in his incarceration. Determining whether that evidence
should have been admitted is more complex. The stated purpose for admitting this
evidence was that it would have shown Cunigan was not lawfully in a place where he could
be at the time of the shooting and therefore had a duty to retreat before using deadly force,
which he did not do. Even though the PRC conditions testimony constituted propensity
evidence, it would have been admissible under Evid.R. 404(B) to counter an element of selfdefense. See State v. Nicholson, 2024-Ohio-604, ¶ 99-101 (finding other-acts evidence
was relevant to an issue in dispute to rebut defendant’s testimony that he shot the victims in
self-defense).
{¶ 112} Although Cunigan filed a notice of self-defense prior to trial and sought a jury
instruction on self-defense, Cunigan ultimately abandoned that defense. The question
before us is whether the trial court should have allowed the State to introduce the other-acts
evidence in its case-in-chief to preemptively disprove Cunigan’s anticipated self-defense
claim. We conclude that the trial court should not have allowed the State to introduce
Cunigan’s PRC conditions into evidence before legally sufficient evidence was introduced
at trial that tended to support that Cunigan had acted in self-defense.
{¶ 113} To maintain a self-defense claim, there must be evidence introduced at trial
that “tends to support” that the defendant acted in self-defense. R.C. 2901.05(B)(1).
A defendant, however, is not required to wait to put forth evidence of self-defense in his or
her case-in-chief but may instead rely on evidence elicited during the State’s case-in-chief
to satisfy his or her burden. Messenger, 2022-Ohio-4562, at ¶ 22. But regardless of when
the evidence is introduced that tends to support a self-defense claim, “the state’s burden of
40
persuasion is not triggered until the defendant produces ‘legally sufficient evidence’ for every
self-defense element.” Palmer, 2024-Ohio-539, at ¶ 19, citing Messenger at ¶ 19.
Notably, the mere filing of a notice of self-defense is not evidence presented at trial sufficient
to shift the burden to the State.
{¶ 114} We acknowledge the State’s dilemma caused by Cunigan’s late decision to
abandon his self-defense claim. During the course of trial, it is not always clear whether
the defendant’s burden of production has been met based solely on the evidence presented
in the State’s case-in-chief. But the trial judge, who is “in the best position to gauge the
evidence before the jury,” must determine whether evidence introduced in the State’s casein-chief and tending to support a self-defense claim is sufficient to shift the burden to the
State to disprove the claim. State v. Fulmer, 2008-Ohio-936, ¶ 72. The trial judge
assumes the role of gatekeeper to ascertain whether to admit other-acts evidence for a
permitted purpose. That decision in this case was dependent on the trial court first
determining whether sufficient evidence had been presented during trial that tended to
support the argument that Cunigan had used force in self-defense. In this situation, if the
trial court had concluded that the defendant had not yet met his or her initial burden of
production, then the burden would not have shifted to the State to introduce evidence to
prove that the defendant did not act in self-defense. Absent such burden shifting, the otheracts evidence should not have been admitted unless offered for a different permitted
purpose.
{¶ 115} The State acknowledged at trial that it intended to present the other-acts
evidence solely to disprove Cunigan’s self-defense claim, which was premised on Cunigan’s
filing of a Crim.R. 12.2 notice. Despite defense counsel’s significant efforts during crossexamination to obtain favorable evidence in support of a self-defense claim, there was not
41
legally sufficient evidence admitted at trial that tended to support that Cunigan used force in
self-defense. The fact that D.J. was discovered with a firearm in his hand, standing alone,
was not sufficient evidence tending to support a claim that Cunigan shot and killed the
decedents in self-defense. Therefore, at the time the State sought to introduce the otheracts evidence, the burden had not shifted to the State to disprove an element of self-defense,
and whether Cunigan had acted in self-defense was not an issue actually in dispute.
Accordingly, the other-acts evidence was not admitted for a proper purpose. This is not to
say that the State could never introduce other-acts evidence in its case-in-chief to counter a
self-defense claim, but there must first be sufficient evidence presented that tends to support
a claim that the defendant had used force in self-defense. Because that did not occur here,
the trial court erred in allowing the admission of the PRC evidence.
{¶ 116} Despite the trial court’s error in admitting the other-acts evidence, we
conclude that the error was harmless beyond a reasonable doubt. The Supreme Court of
Ohio has explained that “the real issue when Evid.R. 404(B) evidence is improperly admitted
at trial is whether a defendant has suffered any prejudice as a result. If not, the error may
be disregarded as harmless error.” State v. Morris, 2014-Ohio-5052, ¶ 25. “Crim.R. 52(A)
defines harmless error in the context of criminal cases and provides: ‘Any error, defect,
irregularity, or variance which does not affect substantial rights shall be disregarded.’” Id.
at ¶ 23, quoting Crim.R. 52(A). “Whether the defendant’s substantial rights were affected
depends on whether the error was prejudicial, i.e., whether it affected the outcome of the
trial.” State v. Jones, 2020-Ohio-3051, ¶ 18, citing State v. Fisher, 2003-Ohio-2761, ¶ 7.
{¶ 117} An appellate court must determine whether the admission of improper
evidence at trial was harmless beyond a reasonable doubt. Morris at ¶ 28. “In determining
whether to grant a new trial as a result of the erroneous admission of evidence under
42
Evid.R. 404(B), an appellate court must consider both the impact of the offending evidence
on the verdict and the strength of the remaining evidence after the tainted evidence is
removed from the record.” Id. at syllabus. “‘[A]n improper evidentiary admission under
Evid.R. 404(B) may be deemed harmless error on review when, after the tainted evidence
is removed, the remaining evidence is overwhelming.’” State v. Humphries, 2026-Ohio373, ¶ 105 (2d Dist.), quoting Morris at ¶ 32.
{¶ 118} The testimony of the parole officers in this case was limited and brief relative
to the amount of other evidence and testimony introduced at trial. In excising that evidence,
the remaining evidence of Cunigan’s guilt was overwhelming. Cunigan was observed on
video shooting into P.T.’s bedroom window where D.J. was found deceased and then
climbing into the home. Inside the home, Washington heard more shooting, heard P.T.
begging “Nico” for her life, and then saw the shooter’s shoes, which were consistent with
shoes she had previously seen Cunigan wearing. After killing P.T., Cunigan fled from the
house, changed his appearance, fled the area, and turned off his phone. Moreover, P.T.’s
blood was found on Cunigan’s pants, which were disposed of by Cunigan’s cohorts. It is
also pertinent to our analysis that the trial court provided a limiting instruction to the jury
regarding the parole officers’ testimony, which reduced any danger of unfair prejudice.
State v. McKelton, 2016-Ohio-5735, ¶ 206. This court presumes that the jury followed
those instructions. State v. Garner, 1995-Ohio-168, ¶ 39. Moreover, the State honored its
agreement not to refer to the testimony during its closing argument. The overwhelming
evidence of guilt establishes that any error the trial court may have committed by allowing
the parole officers to testify about Cunigan’s PRC conditions is harmless beyond a
reasonable doubt.
{¶ 119} Cunigan’s fourth assignment of error is overruled.
43
V. The Trial Court Did Not Abuse its Discretion in Prohibiting CrossExamination of a Witness’s Status on Intervention in Lieu of Conviction
{¶ 120} Cunigan’s fifth assignment of error states:
THE TRIAL COURT ERRED IN DENYING APPELLANT’S TRIAL COUNSEL
THE RIGHT TO CROSS-EXAMINE A STATE’S WITNESS ON CONDUCT
BECAUSE OF THE WITNESS’ STATUS OF INTERVENTION IN LIEU OF
CONVICTION.
{¶ 121} Cunigan claims that the trial court abused its discretion by refusing to allow
defense counsel to cross-examine Washington about pending criminal charges for which
Washington had been placed on intervention in lieu of conviction (“ILC”). On appeal,
Cunigan acknowledges that he could not have inquired into Washington’s offenses under
Evid.R. 609, as that rule relates to impeachment with evidence of conviction. Instead, he
argues that his counsel should have been allowed to inquire on cross-examination into the
specific instances of conduct underlying Washington’s ILC offenses pursuant to
Evid.R. 608(B). We do not agree.
{¶ 122} “Cross-examination of a witness is a matter of right, but the ‘extent of crossexamination with respect to an appropriate subject of inquiry is within the sound discretion
of the trial court.’” State v. Green, 1993-Ohio-26, ¶ 26, quoting Alford v. United States,
282 U.S. 687, 691, 694 (1931). “A trial court abuses its discretion when it acts in an
unreasonable, arbitrary or unconscionable manner.” State v. Finnerty, 45 Ohio St.3d 104,
107 (1989).
{¶ 123} “The right of cross-examination includes the right to impeach a witness’
credibility.” Green at ¶ 26. “The Ohio Rules of Evidence clearly delineate the methods by
which a party may impeach a witness. Credibility may be attacked by evidence that the
44
witness has been convicted of a crime (Evid.R. 609), or by evidence of the witness’s
character for untruthfulness (Evid.R. 608).” State v. Rodriguez, 31 Ohio App.3d 174, 176
(9th Dist. 1986), citing State v. Kamel, 12 Ohio St.3d 306 (1984). “Criminal activities not
resulting in conviction cannot ordinarily form the basis for an attack upon a witness’s
credibility.” State v. Skatzes, 2003-Ohio-516, ¶ 183 (2d Dist.).
{¶ 124} Evid.R. 608(B) provides in part that “specific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness’s character for truthfulness,
other than conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic
evidence.” Specific instances of the conduct of the witness “may, however, in the discretion
of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness’s character for truthfulness or
untruthfulness . . . .” Evid.R. 608(B). “The decision to admit evidence of earlier misconduct
of a witness for impeachment under Evid.R. 608(B) is ‘within the sound discretion of the trial
court.’” State v. Drummond, 2006-Ohio-5084, ¶ 100, quoting State v. Boggs, 63 Ohio St.3d
418, 424 (1992).
{¶ 125} Evid.R. 609, on the other hand, provides in part that evidence that a witness
“has been convicted of a crime” is admissible if (1) the crime was punishable by death or
imprisonment in excess of one year, or (2) the crime involved dishonesty or false statement,
regardless of the punishment. Evid.R. 609(A)(1) and (3). An order granting ILC does not
qualify as a conviction because the case is not yet complete while the defendant is subject
to the terms of ILC. State v. Yontz, 2022-Ohio-2745, ¶ 18.
{¶ 126} Cunigan’s trial counsel indicated a desire to cross-examine Washington
regarding her criminal offenses for which she was granted ILC. No proffer was provided as
to what questions defense counsel wished to ask or what information defense counsel
45
intended to elicit that related to specific instances of conduct. Rather, the only information
proffered was the name and level of offenses for which Washington was on ILC. The
anticipated cross-examination was therefore based on the nature of the offenses for which
Washington was on ILC, not specific instances of the conduct of the witness as Cunigan
now alleges. No information involving the specific instances of conduct was before the trial
court. Accordingly, we cannot conclude that the trial court abused its discretion in
prohibiting Cunigan from cross-examining Washington under these circumstances.
{¶ 127} Cunigan’s fifth assignment of error is overruled
VI. Admission of a Single Photograph of the Deceased Fetus was Not an
Abuse of Discretion
{¶ 128} Cunigan’s sixth assignment of error states:
THE TRIAL COURT ERRED IN ADMITTING ONE PHOTOGRAPH OF THE
FETUS INTO EVIDENCE.
{¶ 129} According to Cunigan, one coroner’s office photograph of P.T.’s deceased
fetus was admitted solely for the purpose of inflaming the jury’s passion, which was overly
prejudicial. We do not agree.
{¶ 130} The admission or exclusion of photographs of a murder victim is left to the
sound discretion of the trial court. State v. Hill, 12 Ohio St.2d 88 (1967), paragraph two of
the syllabus. “When considering the admissibility of photographic evidence under
Evid.R. 403, the question is whether the probative value of the photographic evidence is
substantially outweighed by the danger of unfair prejudice to the defendant.” State v.
Morales, 32 Ohio St.3d 252, 257 (1987). Thus, pursuant to Evid.R. 403, a trial court has
discretion to “reject an otherwise admissible photograph which, because of its inflammatory
nature, creates a danger of prejudicial impact that substantially outweighs the probative
46
value of the photograph as evidence.” Id. “Absent such danger, the photograph is
admissible.” Id. This court “will not interfere with the trial court’s balancing of
probativeness and prejudice ‘unless it has clearly abused its discretion and the defendant
has been materially prejudiced thereby . . . .’” State v. Slagle, 65 Ohio St.3d 597, 602
(1992), quoting State v. Hymore, 9 Ohio St.2d 122, 128 (1967).
{¶ 131} The photograph at issue was taken by the coroner’s office at the direction of
Dr. Swiatkowski, who performed the autopsies of P.T. and D.J. The photograph was taken
shortly after the fetus was removed from P.T.’s uterus during her autopsy. It depicts P.T.’s
deceased fetus and displays no outward signs of physical injury. Contrary to Cunigan’s
contentions, the evidence was not cumulative. The ultrasound, which was dated more than
a month prior to the murders, did not prove that P.T. was pregnant at the time of the offense
or that her unborn child died as a result of Cunigan’s actions. The photograph was
identified at trial by Dr. Swiatkowski in connection with his testimony regarding the fetus’s
estimated gestational age, sex, and physical condition. This single photograph was
probative concerning P.T.’s pregnancy and the cause of death of P.T.’s unborn child.
{¶ 132} The State had the burden to prove beyond a reasonable doubt that P.T. was
pregnant at the time of the domestic violence offense and that Cunigan purposely caused
the death of P.T.’s unborn child. “The state is entitled to offer evidence showing the cause
of death, even if the cause of death is uncontested, to give the jury an ‘appreciation of the
nature and circumstances of the crimes.’” Nicholson, 2024-Ohio-604, at ¶ 130, citing State
v. Evans, 63 Ohio St.3d 231, 251 (1992). Given that (1) only one photograph was
introduced into evidence, (2) the photograph was not unduly gruesome, and (3) it was
probative of material facts (that P.T. was pregnant at the time of the offense and the
pregnancy was terminated as a result of P.T.’s death, not the result of maceration) and was
47
illustrative of medical testimony on those issues, we are unable to conclude that the trial
court abused its discretion in determining that the probative value of this photograph was
not substantially outweighed by the danger of unfair prejudice to Cunigan. State v. Alfieri,
132 Ohio App.3d 69, 83-84 (1st Dist. 1998).
{¶ 133} Cunigan’s sixth assignment of error is overruled.
VII. Cumulative Errors Did Not Deprive Cunigan of a Fair Trial
{¶ 134} Cunigan’s seventh assignment of error states:
THE CUMULATIVE EFFECT OF TRIAL COURT ERRORS DEPRIVED
APPELLANT HIS RIGHT TO A FAIR TRIAL.
{¶ 135} Pursuant to the cumulative error doctrine, “a conviction will be reversed
where the cumulative effect of errors in a trial deprives a defendant of the constitutional right
to a fair trial even though each of numerous instances of trial court error does not individually
constitute cause for reversal.” Garner, 1995-Ohio-168, at ¶ 62. “In order to find cumulative
error, we must find: (1) that multiple errors were committed at trial, and (2) there is a
reasonable probability that the outcome of the trial would have been different but for the
combination of the separately harmless errors.” State v. Goldblum, 2014-Ohio-5068, ¶ 58
(2d Dist.), citing State v. Kelly, 2005-Ohio-305, ¶ 33 (2d Dist.).
{¶ 136} Cunigan generally argues that the trial included multiple errors that
collectively resulted in the denial of a fair trial. He appears to rely on the alleged errors
raised in his prior assignments of error to support this assignment of error. Having not
found multiple errors in his prior assignments of error, we conclude there are no cumulative
errors necessitating reversal.
{¶ 137} Cunigan’s seventh assignment of error is overruled.
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VIII. The Trial Court Failed to Make Consecutive Sentence Findings for the
Violent Offender Specifications
{¶ 138} Cunigan’s eighth assignment of error states:
THE TRIAL COURT’S SENTENCE ON VIOLENT OFFENDER
SPECIFICATIONS IS CONTRARY TO LAW.
{¶ 139} In this assignment of error, Cunigan argues that the prison terms imposed for
the three RVO specifications are contrary to law for three reasons. First, the trial court failed
to make the requisite findings under R.C. 2929.14(B)(2) to impose the discretionary prison
terms. Second, the court should have merged the RVO specifications. Third, the trial
court ordered the prison terms for the RVO specifications to run consecutively without
making the requisite consecutive sentence findings pursuant to R.C. 2929.14(C)(4). The
State disputes Cunigan’s first two arguments but concedes that the trial court failed to make
consecutive sentence findings as required under R.C. 2929.14(C)(4).
{¶ 140} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2). State v. Marcum, 2016-Ohio-1002, ¶ 21. Under
this statute, an appellate court may increase, reduce, or otherwise modify a sentence, or it
may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either: (1) that the record does not support certain specified findings (including those
in R.C. 2929.14(C)(4), which concern the imposition of consecutive sentences); or (2) that
the sentence imposed is otherwise contrary to law. R.C. 2953.08(G)(2). “Clear and
convincing evidence is that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier
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of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 141} Sentencing on an RVO specification is governed by R.C. 2929.14(B)(2).
R.C. 2929.14(B)(2)(a) addresses the discretionary imposition of an additional prison term
for an RVO specification, and R.C. 2929.14(B)(2)(b) addresses the mandatory imposition of
an additional prison term for an RVO specification. R.C. 2929.14(B)(2)(a) applies only if
R.C. 2929.14(B)(2)(b) does not apply.
{¶ 142} Taking the latter subsection first, R.C. 2929.14(B)(2)(b) states, in pertinent
part, that the trial court shall impose on an offender the longest prison term authorized or
required for the offense and shall impose on the offender an additional definite prison term
of one to ten years, in one-year increments, if the following three criteria are met: (1) the
offender is convicted of or pleads guilty to an RVO specification; (2) the offender has been
convicted of or has pleaded guilty to three or more RVO offenses in the last 20 years; and
(3) the current offense is one of the listed qualifying offenses. R.C. 2929.14(B)(2)(b)(i)
through (iii) and R.C. 2929.01(CC)(1). R.C. 2929.14(B)(2)(b) does not apply because
Cunigan has not been convicted of or pleaded guilty to three or more prior RVO offenses.
Therefore, R.C. 2929.14(B)(2)(a) applies.
{¶ 143} Pursuant to R.C. 2929.14(B)(2)(a), a trial court “may” impose upon an
offender an additional definite prison term of one to ten years, in one-year increments, if the
following five criteria are met: (1) the offender is convicted of or pleads guilty to an RVO
specification; (2) the offender is currently convicted of or pleads guilty to murder (among
other eligible offenses), and the court does not impose a sentence of life imprisonment
without parole; (3) the court imposes the maximum prison term (but not life imprisonment
without parole) or the longest minimum term for the offense; (4) the court finds that the prison
50
terms imposed are “inadequate to punish the offender and protect the public from future
crime because the applicable factors under [R.C. 2929.12] indicating a greater likelihood of
recidivism outweigh the applicable factors under that section indicating a lesser likelihood of
recidivism;” and (5) the court finds that the prison terms imposed are “demeaning to the
seriousness of the offense” after considering and weighing the seriousness factors of
R.C. 2929.12. R.C. 2929.14(B)(2)(a)(i) through (v).
{¶ 144} Cunigan was convicted of three counts of murder and their accompanying
RVO specifications and had a prior conviction for a qualifying offense, felonious assault.
Cunigan was sentenced to the maximum prison term on the murder counts that were not a
life sentence without parole, and the trial court imposed additional prison terms for each of
the three RVO specifications. It is undisputed that Cunigan fits within the definition of a
repeat violent offender in that he was being sentenced for committing murder and had
previously been convicted of felonious assault. R.C. 2929.01(CC) Nor does Cunigan
allege that the trial court could not have imposed additional prison terms for the RVO
specifications. Rather, he contends that the trial court failed to make the requisite findings
on the record to impose the discretionary prison terms. Of significance to Cunigan’s
argument, R.C. 2929.14(B)(2)(e) requires the trial court to state its findings explaining the
imposed sentence when it imposes a sentence under R.C. 2929.14(B)(2)(a).
{¶ 145} At the sentencing hearing, the trial court found that Cunigan was a repeat
violent offender, was being sentenced for murder, and the court imposed the maximum
prison sentence for the murder counts but did not impose a sentence of life imprisonment
without parole. Therefore, the criteria in R.C. 2929.14(B)(2)(a)(i) through (iii) were satisfied.
The trial court did not, however, explicitly state its findings regarding R.C.
2929.14(B)(2)(a)(iv) and (v) when it imposed the additional prison terms for the RVO
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specifications. Notably, the findings addressed in R.C. 2929.14(B)(2)(a)(iv) and (v) have
been found unconstitutional, were excised from the RVO statute in State v. Foster, 2006-Ohio-856, and have not been explicitly reenacted. State v. Oller, 2017-Ohio-7575, ¶ 8
(10th Dist.). Accordingly, the trial court was not required to state the findings in
R.C. 2929.14(B)(2)(a)(iv) and (v) prior to imposing an additional prison sentence for an RVO
specification. Id.; accord State v. Fenderson, 2023-Ohio-2903, ¶ 51 (6th Dist.) (holding that
a trial court need not make findings under R.C. 2929.14(B)(2)(a)(iv) and (v), and the
additional term of imprisonment for an RVO specification can be imposed based solely on
the factors set forth in R.C. 2929.14(B)(2)(a)(i) to (iii)); State v. Lewis, 2019-Ohio-4081, ¶ 43
(7th Dist.) (the trial court was not required to make the findings set out in
R.C. 2929.14(B)(2)(a)(iv) and (v) before sentencing the appellant on the RVO specification);
State v. Davis, 2026-Ohio-1096, ¶ 30 (12th Dist.) (judicial findings pursuant to
R.C. 2929.14(B)(2)(iv) and (v) are unconstitutional). Therefore, the trial court’s imposition
of additional prison terms was not contrary to law.
{¶ 146} Cunigan next argues that the additional prison terms on the RVO
specifications should have been merged. Cunigan, however, makes no argument about
why the specifications should have merged and cites no statute or case law in support of
this merger argument. We decline to make an argument for him and reject his contention.
State v. McKnight, 2023-Ohio-1933, ¶ 21 (9th Dist.).
{¶ 147} Finally, Cunigan argues that the additional prison terms imposed for the RVO
specifications should be served concurrently because the trial court failed to make
consecutive sentence findings. The State concedes this error, and we agree that the trial
court erred in failing to make consecutive sentence findings regarding the additional prison
terms imposed for the RVO specifications.
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{¶ 148} “Ohio law presumes that a defendant convicted of multiple crimes will serve
his sentences concurrently.” State v. Glover, 2024-Ohio-5195, ¶ 38, citing R.C. 2929.41(A).
Nevertheless, pursuant to R.C. 2929.14(C)(4), a trial court has discretion to impose
consecutive sentences if it finds that (1) consecutive service is necessary to protect the
public from future crime or punish the offender; (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the offender
poses to the public; and (3) one or more of the following findings are made:
(a) The offender committed the offenses while awaiting trial or
sentencing, was under a sanction imposed pursuant to R.C. 2929.16,
R.C. 2929.17, R.C. 2929.18, or was under post-release control;
(b) At least two of the offenses were committed as part of one or more
courses of conduct, and the harm was so great that no single prison term
adequately reflects the seriousness of the conduct;
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
R.C. 2929.14(C)(4)(a) through (c). The trial court needs only to find one of the three
potential findings under R.C. 2929.14(C)(4)(a) through (c) to impose consecutive sentences.
State v. Parrish, 2023-Ohio-2409, ¶ 24 (2d Dist.). “[A] trial court is required to make the
findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its
findings into its sentencing entry, but it has no obligation to state reasons to support its
findings.” State v. Bonnell, 2014-Ohio-3177, syllabus.
{¶ 149} While the trial court generally has discretion to impose consecutive
sentences if the consecutive sentencing requirements are satisfied, there are certain
53
circumstances that require the imposition of consecutive sentences by law. State v.
Sergent, 2016-Ohio-2696, ¶ 16. “For example, R.C. 2929.14(C)(1)(a), which requires that
any mandatory prison term for having a firearm in the commission of a felony shall be served
consecutively to any mandatory sentence imposed for the underlying felony.” Id. By
operation of law, the prison term imposed for a RVO specification must be served
consecutively to and prior to the prison term imposed for the underlying offense.
R.C. 2929.14(B)(2)(d). Therefore, the trial court was obligated to order the prison term for
each of the RVO specifications to be served consecutively to and prior to the underlying
felony offenses.
{¶ 150} However, while the sentences imposed for the RVO specifications were
required by statute to be served consecutively to and prior to their underlying felony
offenses, there is no statutory requirement for the prison terms imposed for the RVO
specifications to be served consecutively to one another. The trial court, therefore, has
discretion to order the additional prison terms for the RVO specifications to be served
consecutively to each other. State v. Krug, 2009-Ohio-3815, ¶ 174-175 (11th Dist.). But
to do so, the trial court was required to make consecutive sentence findings pursuant to
R.C. 2929.14(C)(4); it did not. Because the trial court failed to address the consecutive
sentence findings, we must reverse the judgment in part and remand the cause for a
resentencing hearing. R.C. 2953.08(G)(1). If the court on remand elects to order the
additional prison terms for each of the RVO specifications to be served consecutively to
each other, then the trial court must make the appropriate consecutive sentence findings
and include those findings in the judgment entry.
{¶ 151} Though not mentioned by either party, we note an error in the judgment entry.
The trial court failed to include the fact that Cunigan was found guilty by the court of the
54
violent offender specification on the three murder counts. This omitted fact should be
included in the new judgment entry when the trial court resentences Cunigan.
{¶ 152} Cunigan’s eighth assignment of error is sustained in part.
IX. The Trial Court Failed to Advise Cunigan of the Requirements in
R.C. 2903.42(A)(1) Prior to Sentencing
{¶ 153} Cunigan’s ninth assignment of error states:
THE TRIAL COURT FAILED TO GIVE CERTAIN ADVISEMENTS REQUIRED
BY R.C. 2903.42(A)(1)(A).
{¶ 154} In his final assignment of error, Cunigan contends that the trial court failed to
advise him of the notifications regarding his duty to enroll in the violent offender database
prior to sentencing. The State agrees with Cunigan and concedes error.
{¶ 155} Violent offenders convicted of specific offenses, including murder, are
required to enroll in the violent offender database. R.C. 2903.42(A)(1). There is a
presumption that violent offenders must enroll in the database, and enrollment is required
for a minimum of 10 years. Offenders must re-enroll in the database annually.
{¶ 156} The presumption that a person classified as a violent offender must enroll in
the violent offender database is rebuttable. To rebut the presumption, the offender must
file a motion in accordance with R.C. 2903.42(A)(2)(a) or (b), whichever is applicable, prior
to or at sentencing. The trial court is required to inform the defendant of the presumption,
of the defendant’s “right to file a motion to rebut the presumption, the procedure and criteria
for rebutting the presumption, and of the effect of a rebuttal and the post-rebuttal hearing
procedures and possible outcome.” R.C. 2903.42(A)(1). These notifications must be
provided to the defendant “before sentencing.” (Emphasis added.) R.C. 2903.42(A)(1)(a).
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{¶ 157} The record reflects, and the parties agree, that the trial court never provided
the notifications required by R.C. 2903.42(A)(1)(a) before sentencing Cunigan.
Consequently, Cunigan was never informed by the trial court of the statutory presumption
that he was required to enroll in the violent offender database and of his ability to file a written
motion to rebut the presumption. Furthermore, Cunigan was not made aware of the effect
of the rebuttal or the post-rebuttal hearing procedures and possible outcomes.
{¶ 158} We agree with the parties that the portion of the trial court’s judgment
addressing Cunigan’s duty to enroll in the violent offender database must be reversed, and
the trial court must provide Cunigan the notifications under R.C. 2903.42(A)(1)(a) and an
opportunity to file a motion to rebut the statutory presumption that he must enroll in the
violent offender database. As a reminder, these notifications and opportunity must be
provided to Cunigan before he is re-sentenced.
{¶ 159} Cunigan’s ninth assignment of error is sustained.
X. Conclusion
{¶ 160} Having sustained Cunigan’s eighth assignment of error in part and his ninth
assignment of error, the judgment of the trial court is affirmed in part and reversed in part.
The portion of the trial court’s judgment imposing Cunigan’s duty to enroll in the violent
offender database is reversed, and the matter is remanded for the trial court to advise
Cunigan of the notifications under R.C. 2903.42(A)(1)(a), to provide him an opportunity to
file a motion to rebut the statutory presumption, and to issue a new ruling on whether
Cunigan is required to enroll in the violent offender database.
{¶ 161} The portion of the trial court’s judgment ordering the repeat violent offender
specifications to run consecutively to each other is reversed, and the cause is remanded to
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the trial court for resentencing consistent with this opinion. In all other respects, the trial
court’s judgment is affirmed.
TUCKER, J., and HANSEMAN, J., concur.
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