[Cite as State v. Szafranski, 2019-Ohio-4349.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                             No. 107905
                 v.                                :

JOSHUA SZAFRANSKI,                                 :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART, VACATED IN PART;
                           REMANDED FOR RESENTENCING
                 RELEASED AND JOURNALIZED: October 24, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-623028-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, Nathaniel Tosi and Jennifer Meyer, Assistant
                 Prosecuting Attorneys, for appellee.

                 Law Office of Gregory S. Robey, and Gregory Scott Robey,
                 for appellant.


EILEEN T. GALLAGHER, J.:

                   Defendant-appellant, Joshua Szafranski, appeals his convictions and

sentence. He claims the following errors:
      1. The trial court erred when it refused to allow defense counsel to
      conduct an effective voir dire, thereby denying appellant the guarantee
      of an impartial jury and equal protection of laws, in violation of the
      Sixth and Fourteenth Amendments to the United States Constitution.

      2. The state failed to present sufficient evidence to sustain convictions
      against appellant on the aggravated menacing count and the criminal
      damaging counts.

      3. Appellant’s convictions on the aggravated menacing count and the
      criminal damaging counts are against the manifest weight of the
      evidence presented and must be reversed.

      4. Appellant was denied due process of law and a fair trial by the
      cumulative errors committed by the trial court.

      5. Appellant was denied due process of law and a fair trial due to
      prosecutorial misconduct in breaching the pretrial agreement on the
      motions in limine.

      6. The trial court erred when it refused to grant appellant’s requested
      jury and limiting instructions.

      7. The trial court erred when it denied appellant’s motion for judgment
      of acquittal after verdict and/or for a new trial.

      8. The trial court abused its discretion in imposing an indefinite period
      of electronic home detention/GPS monitoring that places an unfair
      burden on appellant’s liberty and bears only a remote relationship to
      the offenses; and by failing to state the length of the community control
      period on the record; and by failing to properly consider sentencing
      criteria in issuing an unreasonable sentence.

              We find some merit to the appeal, affirm Szafranski’s convictions, but

vacate his sentence and remand the case to the trial court for resentencing.

                       I. Facts and Procedural History

              Szafranski was charged with three counts of felonious assault in

violation of R.C. 2903.11, one count of aggravated menacing in violation of R.C.

2903.21, and two counts of criminal damaging in violation of R.C. 2909.06.
Szafranski filed two motions in limine prior to trial to exclude, among other things

(1) statements of an unidentified 911 caller and an unidentified eyewitness at the

crime scene, (2) Szafranski’s participation in a diversion program from a prior case,

and (3) racial slurs Szafranski allegedly made to police at the time of his arrest.

Szafranski and the state tentatively agreed that these items would be excluded, but

their agreement was subject to change depending on the evidence adduced at trial.

              The victim, Macey Williams (“Williams”), testified that on November

3, 2017, at approximately 5:00 p.m., she was driving south on Alger Road in

Lakewood, Ohio. Her two-year old daughter and her two-year old niece were

strapped in car seats in the back seat. Williams was on her way to pick up an older

child from daycare when she stopped at a four-way stop behind a red Camry.

              While waiting at the stop, two cars pulled behind Williams. After a

few seconds, the red Camry did not move even though three cars had already

proceeded through the four-way stop from the other direction. The driver of one of

the cars behind Williams honked the horn, and Williams also honked her horn. (Tr.

298, 322.) Williams testified that the driver of the red Camry, later identified as

Szafranski, exited his car, approached Williams’s car, and asked: “What do you want,

you fucking bitch?” (Tr. 298.) According to Williams, Szafranski stood one step

away from her door and said: “Square up. Get out the car, you fucking bitch. Do

you want to square up?” (Tr. 298, 301.) Szafranski saw the two children in the

backseat and told Williams, “You’re lucky you got kids in the car so I’m going to give

your ass a pass.” (Tr. 302.)
               Thereafter, Szafranski got back in his car and reversed it toward

Williams’s car. (Tr. 303.) Williams took a picture of Szafranski’s car. (Tr. 303.) The

picture, which shows the reverse lights illuminated, was admitted into evidence.

Williams testified that she swerved around Szafranski’s car because she “imagined

he was going to * * * try and back into me.” (Tr. 304.) Shortly thereafter, Williams

called 911. (Tr. 304.)

               Williams turned onto Warren Road in Lakewood and was talking to

the 911 dispatcher when Williams observed Szafranski in her rear-view mirror. (Tr.

305.) Szafranski told Williams to open her window and again asked: “Do you want

to square up?” (Tr. 308.) Williams testified that Szafranski began “brake-checking”

her, meaning he would “speed up behind her and brake real fast.” (Tr. 305.) She

explained:

      He was acting like he was going to hit me. He would speed up and he
      would brake-check really fast. Speed up, brake-check really fast. At
      this point, I’m telling the dispatcher everything that he’s doing.

(Tr. 306.) The dispatcher told Williams to turn off the road, but Szafranski was

blocking her. (Tr. 306, 308.) Meanwhile, Szafranski continued to yell obscenities

at Williams. The dispatcher told Williams she could hear Szafranski yelling at her.

(Tr. 308-309; 911 call admitted into evidence as exhibit No. 5.) The dispatcher

advised Williams not to respond to Szafranski and to proceed to the First District

Cleveland Police station on West 130th Street. Williams told the dispatcher: “He’s

crazy, he’s cutting me off,” “he’s all over the street,” and “he’s going to kill me.”
Moments later, Williams’s car was struck by two cars at the intersection of Lorain

Road and West 140th Street in Cleveland.

               Officer William J. Haburjak (“Haburjak”), of the Cleveland Police

Department, testified that he received a call for a road-rage incident in which one

car was chasing another. (Tr. 355.) He subsequently learned that one of the cars

was involved in a crash.

               Haburjak spoke with Williams at the scene. He described her as

“crying,” and “very upset.” He explained: “She kept looking around, saying ‘Is that

him?’ ‘Is that him?’ to the cars driving by.” (Tr. 356.) Officer Haburjak ran

Szafranski’s license plate number and found his address in Vermilion, Ohio.

Thereafter, Haburjak received permission from his supervisor to arrest Szafranski

in Vermilion. Haburjak testified that as he was placing Szafranski in the back of the

police car, he yelled to his father: “I can’t believe I’m getting a felony because of that

n----r bitch.” (Tr. 362, 430, 449.)

               Detective David Pochatek, of the Cleveland Police Department,

conducted a follow-up investigation of the accident that occurred on November 3,

2017. He testified that Williams’s car was struck by one car driven by Laura

Adamczyk and another car driven by Irene Clement and that all three vehicles were

damaged. Both Williams and Clement testified that their cars were “totaled,” i.e.,

declared a total loss. (Tr. 345, 473.)

               The defense called three witnesses (1) Irene Clement, (2) Henry

Lipian, an accident reconstructionist, and (3) Szafranski, who testified on his own
behalf. Clement testified that she had the green light when she was struck by

Williams’s car. (Tr. 468.) She went, by EMS, to Fairview Hospital for treatment

after the accident.

               Lipian testified that he reviewed the police report, the police-dash-

cam video of the crash scene, and examined and measured the cars involved in the

accident, including the data stored on the airbag control module in Williams’s car.

(Tr. 489.) He opined that because the airbag control module in Williams’s car did

not record an event, there is no evidence that Szafranski struck her car and pushed

it into the intersection where her car was struck by two cars traveling in cross traffic.

(Tr. 488, 504.) Lipian further stated that although Szafranski was traveling behind

Williams’s car, there was no front-end damage to Szafranski’s car that would

indicate a collision between his car and Williams’s car.

               Szafranski testified that he overshot the intersection on Alger Road in

Lakewood and reversed his car to clear the intersection. (Tr. 528.) As he was

backing up, Williams “blared” her horn and gave him the “middle finger.” (Tr. 529.)

Thereafter, Williams crossed over the double-yellow line, cut in front of him, and

started to “brake-check” him by slamming on her brakes with nothing in front of

her. (Tr. 530.) According to Szafranski, both he and Williams kept their windows

closed throughout the entire event. He insisted: “[T]here was never a point my

window or her window was down.” (Tr. 564.) He further stated that Williams was

in the lane next to him just before the crash. He stated:
      I stopped because I didn’t have the right of way. She did not. She
      cleared the intersection going quickly and I saw what happened. * * *
      In retrospect I should have stopped to make sure everybody was okay,
      but I wasn’t involved in the accident and I didn’t realize it was a duty of
      mine to stop.

(Tr. 539-540.) Szafranski further observed: “She was paying attention to me, not

the road.” He also denied making any racial slurs when he was taken into custody

and denied he ever exited his car to threaten Williams. (Tr. 548-551.)

              After hearing the evidence, the jury found Szafranski not guilty of any

of the three counts of felonious assault, but found him guilty of one count of

aggravated menacing and two counts of criminal damaging. All three convictions

were first-degree misdemeanors. The court sentenced Szafranski to a $2,000 fine,

200 hours of community-work service, anger-management programs, and five years

of community control sanctions. He now appeals and raises eight assignments of

error, which we discuss out of order for the sake of economy.

                              II. Law and Analysis

                                   A. Voir Dire

              In the first assignment of error, Szafranski argues the trial court erred

when it refused to allow defense counsel to conduct an effective voir dire. He

contends the trial court violated his right to an impartial jury by prohibiting him

from asking any questions regarding the substantive and legal issues in this case.

              The failure to afford an accused a fair trial violates the minimum

standards of due process. Morgan v. Illinois, 504 U.S. 719, 727, 112 S.Ct. 2222, 119

L.Ed.2d 492 (1992). Due process demands that “if a jury is to be provided to a
defendant, regardless of whether the Sixth Amendment requires it, the jury must

stand impartial and indifferent to the extent commanded by the Sixth Amendment.”

Id., citing Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 13 L.Ed.2d 424

(1965).

               Thus, pursuant to R.C. 2945.27 and Crim.R. 24(B), defense counsel

has the right to conduct reasonable voir dire of prospective jurors. State v. Jackson,

107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 48. “The purpose of voir

dire examination of jurors is to determine the real state of their minds so that a fair

and impartial jury can be chosen.” State v. Anderson, 30 Ohio St.2d 66, 70, 282

N.E.2d 568 (1972), fn. 1, quoting Evans v. Mason, 82 Ariz. 40, 46, 308 P.2d 245

(1957).

               However, the manner in which voir dire is to be conducted lies within

the sound discretion of the trial court. Gwen v. Regional Transit Auth., 8th Dist.

Cuyahoga No. 82920, 2004-Ohio-628, ¶ 38 (“[A] trial court has ‘great latitude in

deciding what questions should be asked on voir dire.’”), quoting State v. Twyford,

94 Ohio St.3d 340, 345, 2002-Ohio 894, 763 N.E.2d 122. The length and scope of

voir dire are within the trial court’s discretion and may vary depending on the

circumstances of the case. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-395, 45

N.E.3d 127, ¶ 119; State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d

242, ¶ 92.

               Furthermore, “when a trial court exercises its discretion in limiting

questions during voir dire, and the party challenging that ruling does not
demonstrate that a biased jury was obtained, we cannot say that the trial court

abused its discretion.”    Vilagi v. Allstate Indemn. Co., 9th Dist. Lorain No.

03CA008407, 2004-Ohio-4728, ¶ 12, citing Krupp v. Poor, 24 Ohio St.2d 123, 265

N.E.2d 268(1970), at paragraph four of the syllabus.

               Szafranski argues the trial court unreasonably limited voir dire

because his defense counsel was not allowed to ask prospective jurors whether they

had ever experienced a road-rage incident. In making this prohibition, the trial

court told defense counsel that “[t]he case may not be argued in any way while

questioning the jurors.” (Tr. 10.) The court also stated that “[c]ounsel may not be

engaged in efforts to indoctrinate the jurors.” (Tr. 10.)

               However, by prohibiting defense counsel from discovering whether

any of the jurors were tainted by a personal road-rage experience, the essence of the

trial was never discussed. Counsel could have asked the jurors whether anyone had

had an experience with road rage without asking more specific questions about the

experience that could implant ideas as to how the evidence in this case should be

viewed. Questioning about prior road-rage experiences might have uncovered a

specific bias against someone accused of road rage.

               Nevertheless, there is no evidence that the jury was biased or partial.

Defense counsel was permitted to ask whether any of the jurors had been the victim

of a crime and whether the experience of being a victim might cause them to be

biased against the defendant. (Tr. 58-64.) Defense counsel was also allowed to

inquire as to whether any of the prospective jurors had any legal training that might
cause them to be biased against the defendant. Indeed, defense counsel was given

the opportunity to individually question each juror about his or her background and

family life.

                 Moreover, the jury acquitted Szafranski of three counts of felonious

assault and only found him guilty of two misdemeanors. And, as explained in our

discussion of the second and third assignments of error, the evidence of Szafranski’s

guilt was so overwhelming that even if the trial court erred in limiting defense

counsel’s voir dire examination of prospective jurors, the error was harmless.

Crim.R. 52(A) defines the harmless error doctrine in criminal cases and provides

that “[a]ny error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.” Since there is no evidence that the jury was biased or

partial and the outcome of the proceeding would not have been different even if

defense counsel had been allowed to questions jurors about any personal road-rage

experiences, the court’s refusal to allow such questions was harmless.

                 The first assignment of error is overruled.

               B. Sufficiency and Manifest Weight of the Evidence

                 In the second and third assignments of error, Szafranski argues his

aggravated menacing and criminal damaging convictions are not supported by

sufficient evidence and are against the manifest weight of the evidence. In the

seventh assignment of error, Szafranski contends the trial court erred in denying his

Crim.R. 29 motion for acquittal. We discuss these assigned errors together because

they are interrelated.
               A Crim.R. 29(A) motion for acquittal tests the sufficiency of the

evidence. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. We,

therefore, review a trial court’s denial of a defendant’s motion for acquittal using the

same standard we apply when reviewing a sufficiency-of-the-evidence challenge. Id.

               The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

               In contrast to sufficiency, a manifest weight of the evidence attacks

the credibility of the evidence presented and questions whether the state met its

burden of persuasion at trial. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). In a manifest challenge, the reviewing court must examine the

entire record, weigh the evidence and all the reasonable inferences, consider the

witnesses’ credibility, and determine 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. Id., citing State v.

Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

               In conducting such a review, the Ohio Supreme Court has stated that

the appellate court “sits as a ‘thirteenth juror’ and disagrees with the factfinder’s
resolution of conflicting testimony.” Id. at 546-547, quoting Tibbs v. Florida, 457

U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The Supreme Court’s

characterization of the appellate court as a “thirteenth juror” refers to the appellate

court’s “‘discretionary power to grant a new trial.’” Id. at 547, quoting Martin at 175.

As a “thirteenth juror,” the appellate court may disagree with the factfinder’s

resolution of the conflicting evidence and, in effect, create a deadlocked jury, which

requires a new trial.

               However, our status as a “thirteenth juror” is not equal to the other

twelve jurors, who are uniquely positioned to view the witnesses’ demeanor,

gestures, facial expressions, and voice inflections. These outward behaviors are not

evident in a written transcript. Demeanor is not what the witness says, but the

manner in which he or she says it. Demeanor evidence is invaluable in assessing a

witness’s credibility, yet it is totally lost in transmission to the court of appeals. It is

for this reason that “the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of facts.” State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967), paragraph one of the syllabus. “Because the trier of fact sees

and hears the witnesses and is particularly competent to decide ‘whether, and to

what extent, to credit the testimony of particular witnesses,’ we must afford

substantial deference to its determinations of credibility.” Barberton v. Jenney, 126

Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, quoting State v. Lawson, 2d Dist.

Montgomery No. 16288, 1997 Ohio App. LEXIS 3709, 4 (Aug. 22, 1997). Although

we have the discretionary power of a “thirteenth juror” to grant a new trial, that
power “‘should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.’” Thompkins at 547, quoting Martin at 175.

A finding that a conviction was supported by the manifest weight of the evidence

necessarily includes a finding of sufficiency. State v. Robinson, 8th Dist. Cuyahoga

No. 96463, 2011-Ohio-6077.

                            1. Aggravated Menacing

               Szafranski was convicted of one count of aggravated menacing in

violation of R.C. 2903.21, which states, in relevant part, that “[n]o person shall

knowingly cause another to believe that the offender will cause serious physical

harm to the person or property of the other person, * * * .” He contends his

aggravated menacing conviction is against the manifest weight of the evidence

because Williams initiated the road-rage incident by blowing her horn and

mouthing words at Szafranski and “she did not immediately call police nor take a

photo of this alleged conduct.” (Appellant’s brief at 6.) He further asserts there was

no credible evidence that Williams was afraid Szafranski would cause her serious

physical harm because she failed to follow the dispatcher’s instruction to turn off the

road onto a side street.

               However, Williams testified that Szafranski approached her car in a

confrontational manner and said: “Square up. Get out the car, you fucking bitch.

Do you want to square up?” (Tr. 298, 301.) Thereafter, he returned to his car and

reversed it towards Williams’s car. Despite Szafranski’s argument to the contrary,

Williams immediately took a photograph of Szafranski’s car in reverse.            The
photograph was admitted into evidence and shows that Szafranski’s reverse lights

were illuminated. Williams testified that she called the police as soon as she swerved

around Szafranski’s car at the four-way stop where the incident began.

              Thereafter, Szafranski chased Williams’s car south on Warren Road

in Lakewood to Lorain Road in Cleveland. Williams reported a play-by-play of

Szafranski’s actions to the 911 dispatcher during the chase. On the recording of the

911 call, the jury could hear the frightened tone of Williams’s voice. And Williams

repeatedly told the dispatcher that Szafranski was “crazy” because he was “cutting

[her] off.” She repeatedly told the dispatcher: “He’s gonna hit me” and “He’s gonna

kill me.” Indeed, the dispatcher is heard on the recording of the 911 call telling

Williams: “I heard him screaming at you.”

              When the dispatcher instructed Williams to turn off the road onto a

side street, she told the dispatcher she did not want to turn for fear that she might

end up alone with Szafranski. When asked at trial why Williams did not turn down

a side street, she stated: “Because I was scared — if I went onto a side street there

was nobody but me and him — he was really going to hurt me.” (Tr. 346.) When

asked why she did not pull over to an area where there were other people, she

explained:

      Because I thought that he was going to hurt me. He tried doing things
      while we were in this intersection where there was a lot of people so I
      figured if I was to just completely stop he was going to really hurt me.

(Tr. 347.) Williams testified that throughout the chase, Szafranski continually yelled

at her, asking her to “square up” and “pull over.” (Tr. 347.)
               Szafranski testified that Williams initiated the incident by honking

and mouthing words at him. He claimed he reversed his car because he overshot

the intersection on Alger Road. (Tr. 529.) He testified that he had to reverse his car

to clear the intersection because he was “far enough into the intersection” that he

was “blocking cross traffic.” (Tr. 557.) However, Szafranski was not stopped at a

traffic light. And since he was blocking the cross traffic, the cross traffic must have

stopped. Therefore, it would have made more sense for Szafranski to proceed

through the intersection in order to clear it rather than to reverse back to a stop sign.

Szafranski’s version of the events are simply not credible.

               By contrast, Williams’s testimony is consistent with the play-by-play

account of the events that she relayed to the 911 dispatcher in real time. Not only

did Williams tell the dispatcher she was in fear for her life, the fear in her voice is

plainly heard on the recording of the 911 call. Therefore, the manifest weight of the

evidence shows that Szafranski knowingly caused Williams to believe that he would

cause her serious physical harm.

                   2. Criminal Damaging or Endangering

               Szafranski was also convicted of one count of criminal damaging in

violation of R.C. 2909.06(A)(1), which states, in relevant part, that no person shall

knowingly “cause, or create a substantial risk of physical harm to any property of

another without the other person’s consent * * * .” Substantial risk is defined as “a

strong possibility, as contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist.”                R.C.

2901.01(A)(8).

               As previously stated, the manifest weight of the evidence shows that

Szafranski caused Williams to believe that he was going to cause her serious physical

harm. Szafranski chased Williams from the intersection of Alger Road and Delaware

Avenue in Lakewood to the intersection of Lorain Avenue and West 140th Street in

Cleveland. Williams called 911 shortly after passing Delaware Avenue and over four

minutes elapsed between the time she called 911 and her car crashed at 140th Street.

Williams reported to the dispatcher that Szafranski was chasing her and repeatedly

“cutting her off.” (Tr. 313.) Williams is heard on the 911 recording repeatedly yelling

“Go!” because Szafranski’s car kept coming close to hers. (Tr. 313.)

               Although there was no evidence to confirm Williams’s belief that

Szafranski struck her car and pushed it into the intersection where the three-car

collision occurred, the evidence unequivocally showed that Szafranski’s actions

distracted Williams such that he not only created a substantial risk that an accident

would occur, he created the circumstances that actually caused the accident. Both

Williams and Clement testified that their cars were totaled. Photographs of their

vehicles, which were admitted into evidence, show extensive damage to both cars.

Therefore, Szafranski’s two criminal damaging convictions are supported by

sufficient evidence and are not against the manifest weight of the evidence.

               The second, third, and seventh assignments of error are overruled.
                              C. Motions in Limine

               In the fifth assignment of error, Szafranski argues his right to due

process was violated as a result of prosecutorial misconduct. He contends the

prosecutor committed misconduct that prejudiced his right to a fair trial by

breaching a pretrial agreement he made to exclude from the evidence (1) an audio

recorded statement of an anonymous 911 caller, (2) the statement of unidentified

witness from the crime scene, and (3) racial slurs Szafranski allegedly made to police

at the time of his arrest.

               However, no agreement regarding the motions in limine was ever

stated on the record. Indeed, the parties discussed the motions on the record with

the court and the court indicated that it was reserving ruling on each evidentiary

item until it heard contextual evidence. (Tr. 9.)

               A motion in limine functions

      As a precautionary instruction * * * to avoid error, prejudice, and
      possibly a mistrial by prohibiting opposing counsel from raising or
      making reference to an evidentiary issue until the trial court is better
      able to rule upon is admissibility outside the presence of a jury once the
      trial has commenced.

State v. Grubb, 28 Ohio St.3d 199, 201-202, 503 N.E.2d 142 (1986). In Grubb, the

Ohio Supreme Court explained:

      A motion in limine, if granted, is a tentative, interlocutory,
      precautionary ruling the trial court reflecting its anticipatory treatment
      of the evidentiary issue. In virtually all circumstances[,] finality does
      not attach when the motion is granted.                  Therefore, should
      circumstances subsequently develop at trial, the trial court is certainly
      at liberty “* * * to consider the admissibility of the disputed evidence in
      its actual context.” State v. White, 6 Ohio App.3d 1, [451 N.E.2d 533
      (8th Dist. 1982),] at 4.

Id. Moreover, it is the judge, not the prosecutor, who has the discretion to decide

whether or not evidence is admissible at trial. State v. Bey, 8th Dist. Cuyahoga No.

106745, 2019-Ohio-1884, ¶ 47, quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d

343 (1987), paragraph two of the syllabus (“The admission or exclusion of relevant

evidence rests within the sound discretion of the trial court.”). Thus, if the trial court

admits evidence that was subject to a pretrial motion in limine, the evidence was

admitted pursuant to judicial discretion and was not the product of prosecutorial

misconduct. We, therefore, review the evidence to determine if the admission of the

evidence was an abuse of discretion.

              1. Statements of the Anonymous 911 Caller and
                    The Anonymous On-Scene Witness

               In his motion in limine, Szafranski argued that the out-of-court

statements of an unidentified 911 caller and an unidentified male at the scene of the

accident were not admissible at trial because they violated the Confrontation Clause

of the Sixth Amendment to the United States Constitution because they were not

available for trial and, therefore, would not be subject to cross-examination.

               The Sixth Amendment to the United States Constitution states: “In all

criminal prosecutions, the accused shall enjoy the right * * * to be confronted with

the witnesses against him.” Hearsay is an out-of-court statement offered to prove

the truth of the matter asserted. Evid.R. 801(C). Thus, whenever the state seeks to

introduce hearsay into evidence in a criminal proceeding, the court must determine
not only whether the evidence fits within an exception to the hearsay rule, but also

whether the introduction of such evidence offends an accused’s right to confront

witnesses against him. State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-

1228, ¶ 29.

              In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004), the United States Supreme Court held that the Confrontation Clause

bars the admission of “testimonial statements of witnesses absent from trial.” Id. at

59. The court explained that “[w]here testimonial statements are at issue, the only

indicium of reliability sufficient to satisfy constitutional demands is the one the

Constitution actually prescribes: confrontation.” This means that the state may not

introduce “testimonial” hearsay against a criminal defendant, regardless of whether

such statements are deemed reliable, unless the defendant has an opportunity to

cross-examine the declarant. Id. at 53-54, 68.

              However, the Crawford court held that the Confrontation Clause only

requires exclusion of “testimonial” as opposed to “non-testimonial” evidence. “It is

the testimonial character of the statement that separates it from other hearsay that,

while subject to traditional limitations upon hearsay evidence, is not subject to the

Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165

L.Ed.2d 224 (2006). If a statement is not testimonial, the principles embodied in

the Confrontation Clause do not apply. Whorton v. Bockting, 549 U.S. 406, 420,

127 S.Ct. 1173, 167 L.Ed.2d 1 (2007).
               Although the Crawford court did not specifically define the term

“testimonial,” it explained that hearsay statements are implicated by the

Confrontation Clause when they are “made under circumstances which would lead

an objective witness reasonably to believe that the statement would be available for

use at a later trial.” Crawford at 52.

               Two years after Crawford, the high court clarified that “[s]tatements

are nontestimonial when made in the course of police interrogation under

circumstances objectively indicating that the primary purpose of the interrogation

is to enable police assistance to meet an ongoing emergency.” Davis at 822. By

contrast, statements are testimonial when the circumstances indicate that there “is

no such ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.” Id.

See also State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534,

paragraph one of the syllabus.

               The anonymous 911 caller reported to police that there was a road-

rage incident occurring. The caller reported that the red Camry, which was driven

by Szafranski, appeared to be the aggressor. The caller notified the dispatcher of the

incident’s location in order to call police to the scene. The caller obviously reported

the incident because it posed a threat of harm to innocent bystanders on the road.

In other words, the caller’s statements were made for the primary purpose of aiding

police in addressing an ongoing emergency. Indeed, the caller was describing the

events “as they were happening.” Davis at 827. Therefore, the caller’s statements
were not testimonial hearsay and, therefore, were not barred by the Confrontation

Clause.

              By the time Officer Haburjak spoke with the unidentified male

witness at the scene of the accident, the emergency was over; the accident had

already occurred, and Szafranski had already left the scene.        Therefore, his

statements were not made for the purpose of assisting police in an ongoing

emergency. However, even if his statements were admitted in error, his statements

were harmless. Error in the admission of evidence is harmless if there is no

reasonable possibility that the evidence contributed to the accused’s conviction.

State v. Weakley, 8th Dist. Cuyahoga No. 105293, 2017-Ohio-8404, ¶ 58. The

harmless-error doctrine recognizes that errors that do not affect the outcome of a

criminal prosecution are disregarded on appeal:

      The harmless-error doctrine recognizes the principle that the central
      purpose of a criminal trial is to decide the factual questions of the
      defendant’s guilt or innocence, * * * and [to] promote[] public respect
      for the criminal process by focusing on the underlying fairness of the
      trial rather than on the virtually inevitable presence of immaterial
      error.

State v. Williams, 38 Ohio St.3d 346, 349, 528 N.E.2d 910 (1988), cert. denied, 489

U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989).

              The unidentified male witness told Haburjak that he witnessed the

crash and informed him that the red Camry had left the scene heading southbound

on West 140th Street. His statements about the accident were cumulative to the

more compelling statements made by the anonymous 911 caller and by the victim
herself on her own 911 call. Furthermore, the direction of Szafranski’s travel was

immaterial since the police discovered his location by running his license plates and

locating his residence. Therefore, even if the statements of the unidentified male

witnesses were admitted in error, the error was harmless.

                                   2. Racial Slur

               Szafranski    contends    that   either   the   prosecutor      committed

misconduct or the trial court erroneously allowed the prosecutor to admit evidence

that he used a racial slur to describe the victim at the time of his arrest.

               Although defense counsel moved, in limine, to exclude this racial

comment from the evidence, the court reserved ruling on the motion until it had

heard the evidence.      Then, during the direct examination of Haburjak, the

prosecutor asked whether Szafranski made any statements at the time of his arrest.

Without objection, Haburjak testified that as he was placing Szafranski in the back

of the police car, he yelled to his father: “I can’t believe I’m getting a felony because

of that n----r bitch.” (Tr. 362.) Officer Rutt similarly testified without objection that

he heard Szafranski say: “I have five felonies because of this n----r bitch.” (Tr. 449.)

               Because Szafranski did not object to these statements at trial, he

forfeited all but plain error. State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 90

(8th Dist.). Under Crim.R. 52(B), “plain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” In a

plain-error analysis, the appellant bears the burden on demonstrating that, but for
the error, the outcome of the trial would clearly have been different. State v. Payne,

114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.

               Szafranski argues the prosecutor offered evidence of his racial slur for

the sole purpose of inflaming the jury. However, the statement is an admission by

the defendant that placed him at the scene of the crime and is, therefore, relevant

and probative of guilt. Moreover, even if the racist statements were offered in error,

they would not have changed the outcome of the trial where the overwhelming

evidence demonstrated that Szafranski threatened and intimidated the victim and

that his actions caused the car accident that damaged the victims’ cars.

               Therefore, the fifth assignment of error is overruled.

                            D. Limiting Instructions

               In the sixth assignment of error, Szafranski argues the trial court

erred in refusing his requests for certain jury instructions.

               “In a criminal case, if requested special instructions to the jury are

correct, pertinent and timely presented, they must be included, at least in substance,

in the general charge.” Cincinnati v. Epperson, 20 Ohio St.2d 59, 253 N.E.2d 785

(1969), paragraph one of the syllabus, overruled in part on other grounds, State v.

Carter, 72 Ohio St.3d 545, 651 N.E.2d 965 (1995). However, the trial court is not

required to give a verbatim recitation of a requested jury instruction. State v.

Harris, 8th Dist. Cuyahoga No. 104329, 2017-Ohio-2751, ¶ 65. The trial court may

use its own language to communicate the same legal principles. Id., citing State v.

Sneed, 63 Ohio St.3d 3, 584 N.E.2d 1160 (1992). Furthermore, the trial court has
discretion to decide whether to give or refuse a particular instruction, and an

appellate court will not disturb that decision absent an abuse of discretion. State v.

Price, 8th Dist. Cuyahoga No. 107096, 2019-Ohio-1642, ¶ 38.

               Szafranski requested a special instruction regarding the credibility of

the victim. The trial court denied the request but included a substantially similar

instruction regarding the credibility of witnesses generally. Because the general

instruction applied equally to all witnesses, including the victim, there was no reason

to provide an additional instruction to be applied solely to the victim’s testimony.

The requested instruction was included in the substance of the general instruction

on the credibility of witnesses. Therefore, the trial court did not abuse its discretion

in refusing to give Szafranski’s requested instruction regarding the victim’s

credibility.

               Szafranski also contends the trial court erred in failing to give a

limiting instruction to advise the jury that evidence that Szafranski made a racial

slur could only be used for the limited purpose of determining whether the state

proved that he committed the alleged crimes beyond a reasonable doubt and that

the evidence could not be considered in evaluating his character, nor for any other

purpose. However, Szafranski denied that he ever made the racist comment when

he testified in his own defense and claimed that “that is not how [he] was raised.”

(Tr. 548.) Whether or not Szafranski made the racist comment became an issue of

credibility and could, therefore, be used to assess Szafranski’s credibility. Therefore,

the trial court acted within its discretion in denying the special limiting instruction.
                The sixth assignment of error is overruled.

                               E. Cumulative Error

                In the fourth assignment of error, Szafranski argues the trial court

committed cumulative errors that deprived him of his rights to due process of law

and a fair trial.

                Under the doctrine of cumulative error, a conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of the errors does not individually

constitute cause for reversal. State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623

(1995). “However, the doctrine of cumulative error is inapplicable when the alleged

errors are found to be harmless or nonexistent.” State v. Allen, 8th Dist. Cuyahoga

No. 102395, 2016-Ohio-102, ¶ 53, citing State v. Brown, 100 Ohio St.3d 52, 2003-

Ohio-5059, 796 N.E.2d 506, ¶ 48.

                Szafranski contends the trial court erred by (1) allowing the state to

recall a witness in its case-in-chief, (2) allowing the state to introduce evidence of a

racial slur, (3) refusing to admit his expert’s report into evidence, (4) allowing the

state to play a recording of the 911 call made by an anonymous witness, and (5)

allowing the state to introduce statements of an unidentified male witness at the

scene. However, as previously stated, the trial court did not err in allowing the state

to introduce evidence of the racial slur and the statements of the anonymous 911

caller. Therefore, there is no basis for a claim of cumulative error based on these

decisions. We will, therefore, limit our discussion to Szafranski’s claims that the
court erred in allowing the state to recall a witness in its case-in-chief, allowing the

state to introduce statements of an unidentified male witness from scene, and

refusing to admit his expert’s report into evidence.

                              1. Recalling a Witness

               Szafranski argues he was denied due process and a fair trial because

the court allowed the state to recall Officer Haburjak after his testimony had

concluded during the state’s case-in-chief.

               Evid.R. 611(A) provides that the trial court shall exercise control over

the mode and order of interrogating witnesses and the presentation of evidence to

ensure that the interrogation and presentation of evidence are effective in

ascertaining the truth. Whether to permit a witness to be recalled to give additional

testimony is a matter committed to the sound discretion of the trial court. State v.

Sims, 3 Ohio App.3d 321, 329, 445 N.E.2d 235 (8th Dist.1981).

               An abuse of discretion implies a decision that is unreasonable,

arbitrary, or unconscionable. State ex rel. DiFranco v. S. Euclid, 144 Ohio St.3d 571,

2015-Ohio-4915, 45 N.E.3d 987, ¶ 13.          When applying the abuse-of-discretion

standard, a reviewing court may not substitute its judgment for that of the trial

court. Vannucci v. Schneider, 2018-Ohio-1294, 110 N.E.3d 716, ¶ 22 (8th Dist.).

               After Haburjak concluded his testimony and was released from the

witness stand, the state requested permission to recall him as a witness in order to

introduce evidence of the racial slur made by Szafranski, statements of the

anonymous 911 caller, and statements of an unidentified male witness at the scene
of the car accident. Szafranski objected on the basis of unfair surprise, and violation

of the parties’ pretrial agreement on motions in limine. He also argued that because

the witness’s testimony had concluded, the state could only call him for purposes of

rebuttal.   The state asserted the evidence was necessary to rebut misleading

assertions made by the defense in opening statements.

               Defense counsel told the jury in opening statements that the state’s

entire case rested on the credibility of the victim, who fabricated the story to avoid

responsibility for causing the three-car accident. Defense counsel also suggested

that there was no other evidence to corroborate her story. Defense counsel made

these statements after obtaining an agreement from the state that it would seek to

introduce evidence of the statements of the two anonymous witnesses, who

corroborated the victim’s version of the events.

               Following the first day of trial, the state conducted research to

support its argument that evidence of the unidentified witnesses was admissible to

rebut defense counsel’s attack on the victim’s credibility in opening statements. (Tr.

389-390.) After considering the parties’ arguments and the relevant case law, the

trial court concluded that the statements of the unidentified witnesses did not

violate the Confrontation Clause because they were made to assist the police in an

ongoing emergency.1 (Tr. 427.) Moreover, the evidence was necessary to rebut the

false impression created by defense counsel that the victim fabricated the story and


      1  Although we concluded that the trial court erred in admitting statements of the
unidentified male witness at the crash scene, that error was harmless because the
witness’s statement was cumulative to other evidence.
there was no corroborating evidence. Therefore, there was no abuse of discretion in

allowing the state to recall Haburjak to provide rebuttal evidence since this evidence

was necessary for the jury to ascertain the truth.

              Szafranski also argues the trial court erred in allowing the state to

recall Haburjak in order to authenticate a dash-camera video depicting Szafranski

making the racial slur. However, Haburjak testified that Szafranski made the racial

slur during direct examination the first time Haburjak testified. (Tr. 362.) During

cross-examination, defense counsel played a portion of the dash-camera video but,

either purposefully or accidentally, omitted the footage of Szafranski making the

racial slur in an apparent attempt to discredit Haburjak by suggesting that the

recording did not exist. Haburjak repeatedly told defense counsel that he was not

playing the video long enough to reach the incriminating footage. Thus, again, the

trial court allowed the state to introduce the omitted portion of the dash-camera

video in order to present the relevant footage for the jury’s ascertainment of the

truth. We cannot say the admission of this evidence was an abuse of discretion

under these circumstances.

                         2. Defendant’s Expert Report

              Finally, Szafranski argues the trial court’s refusal to admit his defense

expert’s report into evidence deprived him of due process and a fair trial. However,

his defense expert rendered his opinions in open court and on the record for the

jury.   Furthermore, his expert’s opinion was primarily offered to show that

Szafranski did not cause the accident by intentionally rear ending Williams’s car and
pushing her into the intersection where the three-car collision occurred. His expert

testified that there was no evidence that her airbag module recorded any data to

support a finding that she was rear-ended, and there was no evidence on either

Williams’s or Szafranski’s vehicles to prove that they ever came into contact with

each other. It is likely for this reason that the jury found Szafranski not guilty of the

three counts of felonious assault; there was no evidence that he intentionally pushed

Williams and her two-year old passengers into the intersection where the crash

occurred. Therefore, there is nothing to suggest that Szafranski was deprived of due

process or a fair trial even though his defense expert’s report was excluded from the

evidence.

               The fourth assignment of error is overruled.

                F. Indefinite Period of Electronic Monitoring

               In the eighth assignment of error, Szafranski argues (1) the trial court

erred in sentencing him to an indefinite period of electronic home detention and

GPS monitoring, (2) the trial court failed to state the length of time he would be

subject to community control sanctions, and (3) the trial court failed to properly

consider the statutory sentencing criteria applicable to misdemeanor convictions.

               The trial court stated at the sentencing hearing that Szafranski would

be subject to community-control sanctions and GPS monitoring, but the court never

stated the length of time he would be subject to either community control or GPS

monitoring in open court and on the record. The journal entry states that Szafranski

was sentenced to five years of community-control sanctions and GPS monitoring
“until further order of the court.” However, because the court failed to notify

Szafranski of these facts on the record at the sentencing hearing, the sentence set

forth in the journal entry was imposed outside the defendant’s presence in violation

of Crim.R. 43(A)(1), the Fifth and Fourteenth Amendments to the U.S. Constitution,

and Article I, Section 16 of the Ohio Constitution. The sentence is, therefore,

contrary to law.

                The eighth assignment of error is sustained.

                Judgment affirmed in part, vacated in part; Szafranski’s convictions

are affirmed, but the sentence is vacated. Case remanded to the trial court for

resentencing.

      It is ordered that appellee and appellant share costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
MARY EILEEN KILBANE, A.J., DISSENTS WITH SEPARATE OPINION
MARY EILEEN KILBANE, A.J., DISSENTING:

                 I respectfully dissent. The majority finds that the trial court’s refusal

to allow defense counsel to question prospective jurors about any motor vehicle

accidents and personal road rage encounters is harmless error. I respectfully

disagree.

                 The Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution guarantee Szafranski the fundamental right to a

fair and impartial trial by a jury of his peers. As this court stated in State v.

Whitmore, 8th Dist. Cuyahoga No. 78035, 2001 Ohio App. LEXIS 1999 (May 3,

2001):

         “It is basic that litigants are entitled to have their rights tried and
         determined by a jury of impartial, unprejudiced and unbiased men and
         women. Petro v. Donner (1940), 137 Ohio St. 168, 174, 28 N.E.2d 503.
         Voir dire of the jurors ensures the litigant’s right to a fair and impartial
         jury.”

Id. at 7, quoting McQueen v. Goldey, 20 Ohio App.3d 41, 484 N.E.2d 712 (12th Dist.

1984).

                 Indeed, the purpose of a voir dire examination is to determine

whether the prospective juror is free from bias or prejudice against either litigant.

Vega v. Evans, 128 Ohio St. 535, 191 N.E. 757 (1934), paragraph one of the syllabus,

following and approving, Pavilonis v. Valentine, 120 Ohio St. 154, 165 N.E. 730

(1929), paragraph one of the syllabus; Krupp v. Poor, 24 Ohio St.2d 123, 125, 265

N.E.2d 268 (1970). During voir dire, the trial court should allow reasonable inquiry

on any relevant matter that is determinative of the issues of the case. State v.
Gaines, 8th Dist. Cuyahoga No. 91179, 2009-Ohio-622, ¶ 71, citing Dayton v. Meyer,

2d Dist. Montgomery No. 11848, 1991 Ohio App. LEXIS 1541 (Mar. 29, 1991); State

v. Black, 4th Dist. Ross No. 12CA3327, 2013-Ohio-2105, ¶ 22. In order to ensure

such a result, counsel should be afforded reasonable latitude on the voir dire

examination. Krupp at 126.

               In the instant case, defense counsel attempted to question potential

jurors if they have ever witnessed or been a victim of a road rage incident, a motor

vehicle accident, or a hit-and-run accident — encounters that are paramount to the

essence of Szafranski’s road-rage case. The trial court prohibited defense counsel

from asking prospective jurors these questions on the basis that counsel was

engaging in efforts to indoctrinate the jurors.

               Voir dire can sometimes be improperly used for purposes such as

indoctrinating the prospective jury as to the law or attempting to commit them in

advance to a position that might arise in the trial of the case. See State v. Carmon,

10th Dist. Franklin No. 75AP-583, 1976 Ohio App. LEXIS 6518, 4 (June 1, 1976).

The matter before us, however, is not one of those instances.

               The majority acknowledges that by prohibiting defense counsel from

discovering whether any of the jurors had a personal road rage experience, the

essence of the trial was never discussed. The majority also acknowledges that

questions about prior driving accidents and road rage encounters might have

revealed a specific bias or prejudice against someone accused of road rage, but
concludes that any error in limiting defense counsel’s voir dire was harmless because

of the evidence of Szafranski’s guilt was so overwhelming.

               While the facts of this case are not favorable to Szafranski, he is still

entitled to his constitutional rights. I would find that Szafranski’s fundamental and

constitutional right to a fair and impartial jury by selecting a jury of his peers was

violated when the trial court unreasonably limited defense counsel from asking any

questions paramount to Szafranski’s case. A prospective juror’s experience with

prior driving accidents and road rage encounters would obviously be relevant to the

issues of the instant case. State v. Black, 4th Dist. Ross. No. 12CA3327, 2013-Ohio-

2105, ¶ 23.

               In Black, the defendant was charged with involuntary manslaughter,

felonious assault, and failure to stop after a nonpublic road accident for hitting the

victim with his car. During voir dire, the trial court permitted the state to ask

prospective jurors about their personal history with automobile accidents. On

appeal, defendant argued that this line of questioning “was an attempt to ‘pre-try

the case’ and to ‘indoctrinate the jury,’ thus violating his right to trial by a fair and

impartial jury.” Id. at ¶ 17.

               The Fourth District Court of Appeals disagreed with the defendant,

finding, under a plain-error analysis, that the trial court did not permit improper

questions during voir dire. Id. at ¶ 23. The court reasoned, “[a] potential juror’s

experience with an automobile accident would obviously be relevant to the issues of

the instant case. Furthermore, the questions were aimed at determining whether a
potential juror might be prejudiced or biased, either in favor of or against the state’s

case.” Id.

               Likewise, the questions by defense counsel in the instant case were

not designed to indoctrinate the jurors. Rather, they sought information critical to

the essence of Szafranski’s case and would have assisted in the selection of an

impartial jury of Szafranski’s peers. Without these questions, defense counsel was

unable to ascertain which prospective jurors, if any, may have had prior road rage

encounters, motor vehicle accidents, hit-and-run accidents, or bias in any of these

situations that could have changed the outcome of Szafranski’s trial.

               Therefore, I would sustain the first assignment of error.
