[Cite as State v. Eicholtz, 2013-Ohio-302.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 2012-CA-7
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 11-CR-494
v.                                                :
                                                  :
JONATHAN EICHOLTZ                                 :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellant                       :
                                                  :
                                               ...........

                                              OPINION

                              Rendered on the 1st day of February, 2013.

                                               ...........


LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

JEREMY M. TOMB, Atty. Reg. 30079664, Klein, Tomb & Eberly, LLP, 124 West Main
Street, Troy, Ohio 45373
        Attorney for Defendant-Appellant

                                              .............

HALL, J.

        {¶ 1}     Jonathan Eicholtz appeals from his conviction and sentence on charges of
aggravated burglary, abduction, and domestic violence.

         {¶ 2}        Eicholtz advances seven assignments of error on appeal. First, he contends

juror misconduct deprived him of his right to a fair trial. Second, he challenges the legal

sufficiency and manifest weight of the evidence to support his aggravated burglary conviction.

Third, he claims the trial court erred in allowing inadmissible hearsay testimony and violating

his Sixth Amendment confrontation right. Fourth, he argues that the trial court erred in

allowing the State to impeach its own witness. Fifth, he asserts that prosecutorial misconduct

deprived him of a fair trial. Sixth, he maintains that the trial court abused its discretion in

imposing maximum and consecutive sentences. Seventh, he raises a claim of cumulative error.

         {¶ 3}        The present appeal stems from events that began on May 12, 2011. At that

time, Eicholtz shared an apartment with his girlfriend, Tabitha Jackson, who worked at a local

grocery store. On the evening of May 12, 2011, Jackson had drinks at Legends bar in Enon

with two co-workers, Mike Billinghurst and Kathy Bendall, who is Eicholtz’s aunt. The

drinking continued from roughly 6:30 p.m. until 2:00 a.m. Eicholtz arrived at the bar

sometime that evening and accused Billinghurst of having a sexual affair with Jackson.

Eicholtz angrily left the bar alone after trying to start a fight. When the bar closed,

Billinghurst, Bendall, and, possibly, Jackson all went to Bendall’s home to sleep.1

         {¶ 4}       At trial, the State’s evidence established that Eicholtz later entered Bendall’s

home looking for Billinghurst and Jackson. The State presented evidence that the doors of the

home were locked and that Eicholtz entered through a dining-room window. Once inside, he

woke up Bendall’s step-daughter, Alisha, in her bedroom and asked if Jackson was there.


           1
            At trial, conflicting evidence was presented as to whether Jackson went to Bendall’s house or went directly back to the apartment
 she shared with Eicholtz. For purposes of the issues before us, this dispute is not particularly important.
                                                                                             3


Bendall apparently heard the noise and confronted Eicholtz, expressing surprise about his

presence in the home and ordering him to leave. Bendall’s husband, Brad, also questioned

what Eicholtz was doing in the home and ordered him out. The State’s evidence established

that Eicholtz responded by proceeding into a bedroom where he found Billinghurst asleep.

Eicholtz began stomping on and punching Billinghurst. Alisha called the police. Eicholtz left

before they arrived.

       {¶ 5}     Tabitha Jackson appears to have left Bendall’s home around sunrise and

returned to the apartment she shared with Eicholtz. Jackson subsequently failed to appear for

work and did not answer calls to her cell phone. Kathy Bendall’s brother, Tom Eicholtz, drove

to the apartment to check on Jackson’s welfare. Upon arriving, he knocked on the apartment

door. He then heard Jackson screaming and saw her outside wearing a bra and underwear. She

told him that Eicholtz had beaten her. He drove her to a nearby fire department, where she

reported that Eicholtz had been beating her for hours. According to the State’s evidence,

Jackson reported that Eicholtz had restrained her against her will, hitting, kicking, and choking

her, and knocking her unconscious multiple times. Jackson explained that she escaped by

jumping out a window when she heard Tom Eicholtz knocking on the front door. The State’s

evidence established that Jackson had bruises all over her body. She also complained of head

and neck pain.

       {¶ 6}     At trial, Jackson’s story changed. She insisted that Eicholtz had not hurt her.

She professed to have sustained her injuries in a fight with another woman outside Legends

bar. Kathy Bendall testified, however, that she was with Jackson the entire evening at the bar.

To Bendall’s knowledge, Jackson never went outside the bar without her and never had a fight
                                                                                                                                        4


there. In any event, Jackson claimed that she returned to her apartment after the fight and

accused Eicholtz of sleeping with this other woman. She told the jury she lied about Eicholtz

beating her to get even with him for his infidelity. Eicholtz testified in his own defense and

also denied beating Jackson. He corroborated Jackson’s claim that she angrily returned to the

apartment and accused him of cheating on her. He also testified that she told him she had

been hurt in a bar fight. As for his presence at Legends bar, Eicholtz admitted seeing Jackson

and Billinghurst there together and confronting Billinghurst. Eicholtz claimed he left the bar

and went to his apartment until around 3:30 a.m. At that time, he drove to Bendall’s house

looking for Jackson, who had not yet returned to the apartment. He testified that he expected

to find Jackson there with Billinghurst.

         {¶ 7}        Eicholtz maintained at trial that he had entered Bendall’s house multiple times

on the night in question. First, he entered through an unlocked front door. He proceeded to

Alisha’s bedroom, woke her up, and asked if Jackson was there. Alisha denied Jackson being

there, and Eicholtz left the house. According to Eicholtz, he sat in his truck thinking for a few

minutes. He then returned to Bendall’s house and found the front door locked. He proceeded

to the back door, which he remembered Kathy Bendall’s husband, Brad, having said he would

leave unlocked in case Eicholtz wanted to come over.2 Eicholtz testified that he went inside

to check a bedroom where he suspected he would find Jackson and Billinghurst together.

Before doing so, however, he went to the dining room and opened a window so he could calm

his nerves by smoking a cigarette without getting smoke in the house. To do so, he knocked


            2
           Alisha Bendall testified at trial that her father, Brad, did not particularly like Eicholtz, that the two men were not friends, and that
 Brad Bendall never had invited Eicholtz “to stay over at the house[.]” (Tr. Vol. I at 225).
                                                                                              5


out the screen. After he finished the cigarette, Kathy Bendall confronted him. She yelled at

him and denied Jackson’s presence in the house. She also made him go outside. Eicholtz

testified that after he went to the front yard, Bendall invited him back in to search for Jackson.

He accepted the invitation and checked a bedroom where he found Billinghurst on the floor by

himself. Eicholtz told the jury that he engaged in a shouting match with Billinghurst before

leaving the house when Bendall ordered him out again. Eicholtz denied hitting or kicking

Billinghurst.

       {¶ 8}    Eicholtz claimed he went back to his apartment and waited for Jackson, who

arrived around 8:00 a.m. or 9:00 a.m. He admitted arguing with Jackson but denied physically

harming her. He claimed Jackson threatened to make false charges against him before jumping

out the window in her bra and underwear when his father, Tom Eicholtz, arrived and began

knocking on the door.

       {¶ 9}    After Jackson made her allegations against Eicholtz, he fled to New Mexico.

Jackson ignored a grand jury subpoena and joined him there. Days after Jackson’s arrival,

Eicholtz was arrested and returned to Ohio. Jackson also returned to Ohio and began recanting

her allegations. Despite Eicholtz’s denials and Jackson’s recantations, the jury found him

guilty of aggravated burglary, abduction, and domestic violence. The trial court imposed an

aggregate ten-year prison sentence. This appeal followed.

       {¶ 10} In his first assignment of error, Eicholtz contends juror misconduct deprived

him of his right to a fair trial. This argument concerns juror number three, who Eicholtz claims

had her eyes closed through most of the second day of his three-day trial. Although Eicholtz

claims the juror’s actions entitled him to a mistrial or a new trial, he did not request either
                                                                                                  6


remedy below. Therefore, he acknowledges that we are limited to plain-error review. State v.

Sanders, 92 Ohio St.3d 245, 249, 2001-Ohio-189, 750 N.E.2d 90. It is well settled that plain

error does not exist unless an error is obvious and, but for the error, the outcome at trial

“clearly would have been otherwise.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,

954 N.E.2d 596, ¶ 108.

        {¶ 11} We see no plain error here. On the morning of the third day of trial, defense

counsel advised the trial court that Eicholtz had reported seeing juror number three appear to

be sleeping. The trial court responded:

                * * * I did notice that Juror #3 had her eyes shut a couple of times

        yesterday afternoon, and I tried to keep an eye on that.

                My bailiff indicated that the juror told her, my bailiff, that she has some

        kind of a condition in that, I don’t know what it is; but that sometimes she puts

        her head down and closes her eyes, but she is not sleeping. I don’t know if

        that’s the case, but I will keep an eye on her.

(Tr. Vol. III at 568).

        {¶ 12} The record contains no other information about the incident. Notably absent is

any evidence to support Eicholtz’s claim that juror number three slept through “large amounts

of critical testimony.” As noted above, the record reflects only that the juror shut her eyes a

couple of times and denied being asleep. On the record before us, we find no plain error in the

trial court’s failure to grant a mistrial or a new trial. The first assignment of error is overruled.

        {¶ 13} In his second assignment of error, Eicholtz challenges the legal sufficiency

and manifest weight of the evidence to support his aggravated burglary conviction. He makes
                                                                                             7


three arguments in support. First, he contends the elements of aggravated burglary were not

proven beyond a reasonable doubt. Second, he claims the criminal offense supporting the

aggravated burglary charge was not identified. Third, he asserts that “there were no jury

instructions to aid the jurors from losing their way in determining whether requisite elements

were met.”

       {¶ 14} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the verdict

as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000).

“An appellate court’s function when reviewing the sufficiency of the evidence to support a

criminal conviction is to examine 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. 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.

       {¶ 15} Our analysis is different when reviewing a manifest-weight argument. When a

conviction is challenged on appeal as being against the weight of the evidence, an appellate

court must review the entire record, weigh the evidence and all reasonable inferences, consider

witness 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.” State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541. A judgment should be reversed as being against the manifest
                                                                                              8


weight of the evidence “only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983)

       {¶ 16} With the foregoing standards in mind, we conclude that Eicholtz’s aggravated

burglary conviction is supported by legally sufficient evidence and is not against the weight of

the evidence. Contrary to Eicholtz’s first argument, the State proved the elements of

aggravated burglary beyond a reasonable doubt.             Eicholtz was indicted under R.C.

2911.11(A)(1), which provides: “No person, by force, stealth, or deception, shall trespass in an

occupied structure * * * when another person other than an accomplice of the offender is

present, with purpose to commit in the structure * * * any criminal offense, if any of the

following apply: (1) [t]he offender inflicts, or attempts or threatens to inflict physical harm on

another.” On appeal, Eicholtz concedes that the purpose to commit a criminal offense may be

formed during a trespass in an occupied structure. State v. Demoss, 2d Dist. Champaign No.

2001-CA-5, 2002-Ohio-1193, 2002 WL 360581, *11 (March 8, 2002).

       {¶ 17} At trial, the State presented evidence that Eicholtz trespassed in Kathy

Bendall’s home by force, stealth, or deception by entering without permission through the

dining-room window. The State’s evidence established that several other people were present

in the home. The State’s evidence also supported a finding that Eicholtz entered the home

with the purpose of confronting Jackson and Billinghurst, both of whom he expected to find

there. The State’s evidence established that Eicholtz proceeded to assault Billinghurst inside

the home by stomping on him and trying to punch him. Assault is a criminal offense, and

Eicholtz inflicted or attempted to inflict physical harm on Billinghurst.
[Cite as State v. Eicholtz, 2013-Ohio-302.]
        {¶ 18} Eicholtz argued below that he had permission to enter Bendall’s home and

that he did not assault Billinghurst. The jury was not required to believe these claims, which

were contradicted by other evidence. At trial, Kathy Bendall corroborated Eicholtz’s claim

that she invited him back into the home to look for Jackson after initially ordering him out.

(Tr. Vol. I at 205). Bendall also admitted, however, that she did not want her nephew Eicholtz

prosecuted for entering her home. (Id. at 196). Another witness, Alisha Bendall, testified that

she awoke and found Eicholtz in her bedroom. (Id. at 211). Alisha got out of bed when

Eicholtz told her he was looking for Jackson. (Id. at 212). She checked the doors and found

them locked. (Id.). She saw Kathy Bendall and her father in their bedroom. (Id. at 213-214).

Alisha then observed the dining-room window and found it open with the screen knocked out.

(Id. at 215-216). She proceeded to another bedroom where she saw Eicholtz trying to hit

Billinghurst. (Id. at 217-218). According to Alisha, Kathy Bendall and her father, Brad, tried

to break up the fight while Alisha called 911. (Id. at 220-221). Billinghurst testified that he

heard Kathy and Brad Bendall questioning why Eicholtz was in the house while he was being

assaulted. (Id. at 255). Alisha rejected the possibility that Eicholtz had entered the house

multiple times that night, as he and Kathy Bendall claimed, “unless he climbed back in

through the window * * * [b]ecause the front door was still locked.” (Id. at 235).

        {¶ 19} If Alisha Bendall’s testimony was believed, the jury reasonably could have

found that Eicholtz entered the home through a window without permission and assaulted

Billinghurst. Alisha’s testimony is materially inconsistent with Kathy Bendall’s claim that she

invited Eicholtz into the home through the front door to search for Jackson and that no

altercation occurred. According to Alisha, Kathy Bendall was in her own bedroom when

Eichotz entered the home through the window, with the doors locked, and started the fight. It
                                                                                                                                  10


is axiomatic that the credibility of witnesses and the weight to be given to the evidence are

matters for the jury to resolve. Having reviewed the trial transcript, we conclude that the State

presented legally sufficient evidence to support Eicholtz’s aggravated burglary conviction. The

conviction also was not against the manifest weight of the evidence.

         {¶ 20} Eicholtz next asserts that the State failed to identify for the jury the criminal

offense that he had the purpose to commit inside Bendall’s home. This argument lacks merit.

During closing argument, the State maintained that Eicholtz had the purpose to commit assault

and domestic violence inside the home. (Tr. Vol. III at 812). Therefore, the criminal offense at

issue was identified.

         {¶ 21} In his third argument, Eicholtz complains about the lack of a jury instruction

identifying the criminal offense he intended to commit. He argues that such an instruction was

necessary because the State identified more than one criminal offense in its closing argument.

He reasons that the absence of an instruction about the criminal offense he intended to commit

created the potential for patchwork verdict. This argument is without merit.

         {¶ 22} As an initial matter, Eicholtz has not identified anywhere in the record where

he requested a jury instruction on the need for unanimity with regard to the criminal offense he

intended to commit. We review for plain error and find none. The Ohio Supreme Court

rejected Eicholtz’s argument in State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926

N.E.2d 1239, ¶123. In so doing, it cited State v. Gardner, 118 Ohio St.3d 420,

2008-Ohio-2787, 889 N.E.2d 995, the same case Eicholtz cites.3 The Fry court reasoned:


           3
             In his brief, Eicholtz claims the Ohio Supreme Court stated the following in Gardner: “Jury instructions that allow the jury to
 disagree on the underlying crime in an aggravated-burglary case violate due process.” (Appellant’s brief at 11). This is a gross
 mischaracterization. The Ohio Supreme Court actually stated: “In determining whether jury instructions that allow the jury to disagree on
                                                                                                                                 11


                   Fry asserts that he was denied the right to a unanimous jury verdict on

        the aggravated-burglary charge because the jury was not instructed on the

        criminal offense that he intended to commit inside the residence. Consequently,

        he claims, “the jury charge allows that jury to base its verdict on alternative

        factual theories rather than upon a single incident * * *.” Therefore, “the

        resultant verdict is not unanimous.” The jury instructions on aggravated

        burglary, which tracked the indictment and the language of R.C. 2911.11(A)(1)

        and (2), stated: “[Y]ou must find beyond a reasonable doubt that * * * the

        defendant did, by force, stealth, or deception, trespass in an occupied structure

        * * * with the purpose to commit in said structure, a criminal offense.”

        (Emphasis added.) Based on these instructions, Fry argues that the jury could

        return a verdict of guilty on a finding that he had a purpose to commit some

        criminal offense without reaching a unanimous agreement as to which one.

                   Fry’s argument was rejected in State v. Gardner, 118 Ohio St.3d 420,

        2008-Ohio-2787, 889 N.E.2d 995. In Gardner, the defendant had also been

        convicted of aggravated burglary. This court held, “[A] defendant charged

        with burglary is not deprived of a unanimous verdict simply because the jury

        was not required to agree unanimously as to the nature of the crime the

        defendant intended to commit at the time he entered unlawfully into the

        victim’s building. ‘ “In situations where ‘the alternatives of the mens rea

the underlying crime in an aggravated-burglary case violate due process, a court must be guided by the evidence in the case before it and by
general principles of fundamental fairness.” (Emphasis added.) State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995,
¶70.
                                                                                                           12


       [intent] component give rise to the same criminal culpability, it does not appear

       critical that the jury may have reached different conclusions regarding the

       nature of the defendant’s intent if such differences do not reflect disagreement

       on the facts pertaining to the defendant’s conduct.’ ” ’ ” Gardner, 118 Ohio

       St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶68 * * *.

(Emphasis added.)           Fry at ¶122-123; see also State v. Lynn, 129 Ohio St.3d 146,

2011-Ohio-2722, 950 N.E.2d 931, ¶16 (recognizing that the specific crime a defendant

intended to commit inside a burglarized home is not an element of aggravated burglary that

must be included in the jury instructions); State v. Marriott, 189 Ohio App.3d 98,

2010-Ohio-3115, 937 N.E.2d 614, ¶29 (2d Dist.) (noting that jurors need not agree on the

intended criminal offense in an aggravated-burglary case).

       {¶ 23} Here the State alleged that Eicholtz had the purpose to commit an assault

against Billinghurst and/or Jackson.4 Having reviewed Fry and Gardner, we do not believe

that the trial court committed plain error by failing to require the jury to agree as to which

offense he intended to commit. The second assignment of error is overruled.

       {¶ 24} In his third assignment of error, Eicholtz claims the trial court erred in

allowing inadmissible hearsay testimony and violating his Sixth Amendment confrontation

right. Specifically, he challenges the trial court’s admission of (1) statements by Tom Eicholtz

to Kathy Bendall, (2) statements by Tom Eicholtz to Elizabeth Fallon, a family friend, (3)

statements by Tom Eicholtz to a paramedic and a deputy, (4) 911 calls by Tom Eicholtz and a

neighbor, (5) the 911 call by Alisha Bendall, (6) a nurse’s testimony about information in

         4
         Based on Eicholtz’s relationship with Jackson, an assault on her constituted domestic violence.
                                                                                           13


medical records regarding Tabitha Jackson, and (7) Jackson’s statements to Kathy Bendall,

EMT workers, a deputy, and Elizabeth Fallon.

       {¶ 25} Hearsay is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R.

801(C). Hearsay is generally not admissible, subject to several exceptions. Evid.R. 802, 803.

Several types of statements are excluded from the hearsay rule, including excited utterances,

which are “statement[s] relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.” Evid.R. 803(2). Also

excluded are present sense impressions, which are “statement[s] describing or explaining an

event or condition made while the declarant was perceiving the event or condition, or

immediately thereafter unless circumstances indicate lack of trustworthiness.” We review a

trial court’s evidentiary rulings for an abuse of discretion, provided an objection is made at

trial. State v. Cunningham, 2d Dist. Clark No. 11CA 0032, 2012-Ohio-2333, ¶22. Otherwise,

we are limited to plain-error review.

       {¶ 26} With regard to Eicholtz’s confrontation argument, the U.S. Supreme Court has

recognized that a defendant’s Sixth Amendment right to confront witnesses against him is

violated when an out-of-court statement that is testimonial in nature is admitted into evidence

without the defendant having had the opportunity to cross-examine the declarant. Crawford v.

Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Testimonial

statements include statements “‘that were made under circumstances which would lead an

objective witness reasonably to believe that the statement would be available for use at a later

trial.’” State v. Kelley, 2d Dist. Clark No. 2011 CA 37, 2012-Ohio-1095, ¶58, quoting
                                                                                            14


Crawford. “[S]tatements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of interrogation is to

enable police assistance to meet an ongoing emergency. They are testimonial when the

circumstances objectively 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.” Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d

224 (2006), syllabus.    “Typically, 911 calls made to report an ongoing emergency that

requires police assistance to resolve that emergency are not ‘testimonial’ in nature and

therefore the Confrontation Clause does not apply.” (Citations omitted.) State v. McDaniel,

2d Dist. Montgomery No. 24423, 2011-Ohio-6326, ¶24. “Despite the importance of [the

confrontation] right, a violation of the Confrontation Clause can be harmless if ‘it is clear

beyond reasonable doubt that the admission of these hearsay statements did not prejudice’ the

defendant.” (Citations omitted.) Kelly at ¶58.

       {¶ 27} With the foregoing standards in mind, we turn to Eicholtz’s arguments. He

first challenges the trial court’s admission of statements by Tom Eicholtz to Kathy Bendall. In

particular, he contends the trial court erred in admitting statements Tom Eicholtz made to

Bendall on a cell phone from his vehicle immediately after finding Jackson outside in her bra

and underwear. The record reflects that he was “frantic” as he described what he had seen

upon arriving at Jackon’s apartment. The trial court did not abuse its discretion in admitting

these statements as excited utterances. Moreover, we find no confrontation problem because

Tom Eicholtz’s statements to Bendall were not testimonial. Although the appellant also

complains about statements Tom Eicholtz made to Bendall conveying things Jackson was
                                                                                            15


telling him, the trial court instructed the jury to disregard this “double hearsay.”

       {¶ 28} The appellant next challenges the admission of statements by Tom Eicholtz to

Elizabeth Fallon, a family friend. Fallon testified that Tom Eicholtz arrived at her house in a

“[v]ery excited, very upset” state and told her that there had been an “incident,” that Jonathan

Eicholtz had beaten Jackson, and that Jackson was at the Enon Fire Department. Although

Tom Eicholtz may have been in an excited state, some of his statements may not have

qualified as excited utterances because he did not observe Jonathan Eicholtz beat Jackson. See

State v. Clemmons, 2d Dist. Montgomery No. 23237, 2010-Ohio-3109, ¶24 (noting that the

declarant must personally observe the startling event for an excited utterance). On the other

hand, Tom Eicholtz did personally observe Jackson allege that Jonathan Eicholtz had beaten

her. Jackson’s allegation itself was an excited utterance, and if that allegation was a startling

event for Tom Eicholtz, then the trial court’s ruling may have been correct. Even if we assume

error in the trial court’s ruling, however, the error was harmless because the record contains

substantial other testimony from multiple witnesses about Jackson’s allegation that Jonathan

Eicholtz had beaten her. Finally, we find no confrontation problem because Tom Eicholtz’s

statements to Fallon were non-testimonial.

       {¶ 29} The appellant next contends the trial court erred in admitting statements Tom

Eicholtz made to paramedic Kristi Morrison and deputy Chris Dolin. Morrison testified that

she was at the fire station when an SUV pulled up. The trial court sustained an objection when

Morrison testified that Tom Eicholtz exited the SUV and stated that “his son had beat[en]”

Jackson, a passenger in the SUV. The trial court limited Morrison’s testimony to things Tom

Eicholtz told her he personally had observed. We see no error in this ruling. Morrison testified
                                                                                           16


that Tom Eicholtz arrived at the fire station in a “frantic” state. This testimony supports a

finding that his statements to her about what he had seen qualified as excited utterances. We

also see no confrontation problem because Tom Eicholtz’s statements to Morrison were

non-testimonial. We reach the same conclusion regarding Tom Eicholtz’s statements to deputy

Dolin. According to Dolin, he (Dolin) arrived at the fire department and found Tom Eicholtz

“ramped up, if you will, kind of in a heightened state of excitement.” Tom Eicholtz “was just

talking really fast, loud, trying to give [Dolin] information in a short period of time.” Dolin

then testified about what Tom Eicholtz had reported personally observing when he went to

Jackson’s apartment to check on her welfare. Dolin’s testimony supports a finding that Tom

Eicholtz’s statements to him were excited utterances. With regard to the confrontation issue,

we note that the appellant did not object to Dolin’s testimony or raise a confrontation issue.

We find no plain error.

       {¶ 30} The appellant next complains about the admission of 911 calls by Tom

Eicholtz and a neighbor. He asserts that tapes of the calls were improperly admitted as

business records and were not authenticated. He also asserts that the neighbor’s call included

“improper statements” in violation of his confrontation right. The record reflects that 911 call

coordinator Michael Combs testified he “takes care of all the 911 information for the county,

all the recordings.” He explained that he “keeps and maintains” the 911 calls, which are

automatically recorded on a computer and later stored by him on CDs. He also testified about

how he retrieves 911 calls from the system. According to Combs, he keeps all of the 911 calls

in the regular course of business. At trial, he identified the recordings at issue as true and

accurate copies of 911 calls received by the Clark County 911 system.
[Cite as State v. Eicholtz, 2013-Ohio-302.]
          {¶ 31} Upon review, we believe Combs sufficiently authenticated the 911 recordings

that were played for the jury. Although we are unpersuaded that the 911 recordings necessarily

qualified as business records, 5 Tom Eicholtz’s statements were admissible as excited

utterances and the neighbor’s statements were admissible as present sense impressions. The

trial court allowed the jury to hear, as excited utterances, Tom Eicholtz’s statements to the 911

operator about what he had observed. The trial court ordered redactions to keep the jury from

hearing him tell the 911 operator that Jonathan Eicholtz had beaten Tabitha Jackson. The trial

court also allowed the jury to hear, as present sense impressions, the neighbor’s statements to

the 911 operator about what she had observed immediately before picking up the phone and

what she was observing while on the phone. We see no abuse of discretion in these rulings.

Although the appellant contends the trial court should have redacted some statements made by

the neighbor, he has not identified anywhere in the record where he requested a redaction. The

objection at trial, and the ensuing discussion about a redaction, appears to have involved Tom

Eicholtz’s 911 call. We also see no confrontation problem. The trial court reasonably could

have concluded that the 911 calls were non-testimonial. McDaniel, 2011-Ohio-6326.

          {¶ 32} Finally, even if we assume error in the admission of the 911 calls, the error

was harmless beyond a reasonable doubt in light of the other evidence presented. There was

no dispute at trial that Jackson fled her apartment crying hysterically in her bra and underwear

and claiming to have been beaten by Eicholtz, who followed her. The 911 recordings captured


             5
              “The theory underlying the business records exception to hearsay set forth in Evid. R. 803(6) is that records kept in the regular
  course of business are ordinarily accurate with respect to the purposes for which they are kept. Thus, it is reasonable to suppose that [a] 911
  taping system accurately recorded [a declarant’s] statements. * * * The 911 tape recording system can reasonably be expected to generate an
  accurate record of what is said by persons calling 911, but it cannot vouch for the accuracy of the statements made by persons calling 911.”
  State v. Johnson, 2d Dist. Montgomery No. 15253, 1996 WL 200623, *4 (April 26, 1996).
                                                                                            18


that sequence of events. The real question for the jury was whether Jackson had fled from an

extended beating or whether she had fabricated her allegations against Eicholtz to get even

with him. The 911 recordings did little to resolve that question.

       {¶ 33} Appellant Eicholtz next challenges the trial court’s admission of the 911 call

by Alisha Bendall the night he entered her house. Eicholtz contends a recording of the call

should have been excluded or at least redacted from the point Kathy Bendall took the phone

and began responding to questions from the 911 operator. The record reflects that Alisha

Bendall called 911 while Eicholtz was in the house. Kathy Bendall took the phone and told the

operator Eicholtz was not supposed to be there. Bendall added that Eicholtz appeared to have

entered by breaking in a window. She proceeded to explain why Eicholtz was in her house.

When Bendall told the operator she did not want an officer to respond to the scene, the

operator asked why. Bendall responded that Eicholtz was her nephew. Although Eicholtz

complains that Bendall’s statements were hearsay and testimonial, the record reveals no

contemporaneous objection when the State requested permission to play the recording. (Tr.

Vol. I at 221). In any event, the statements on the recording were largely cumulative of other

evidence. Alisha and Kathy Bendall both testified at trial and discussed Eicholtz’s presence in

the house. We see no reversible error.

       {¶ 34} Eicholtz also challenges the trial court’s admission of nurse Beth Hurd’s

testimony about information in medical records regarding Jackson. After reviewing a medical

chart, Hurd testified that Jackson arrived at the hospital with multiple injuries from an alleged

assault. Hurd added that a doctor’s notes showed Jackson reportedly had been hit, kicked,

choked, assaulted, and held hostage. Hurd then reviewed the results of various tests that had
                                                                                             19


been performed on Jackson, the medications she had been given, and the follow-up care that

had been recommended.

         {¶ 35} The only objection Eicholtz made to Hurd’s testimony occurred when she

consulted a medical chart to testify about Jackson’s initial complaints upon arriving at the

hospital. (Tr. Vol. II at 341). Defense counsel did not specify the basis for this objection and

made no other objections during approximately twenty pages of Hurd’s direct examination

testimony. The basis for counsel’s general objection is not apparent from the record.

Therefore, the alleged error is at least arguably waived. See Evid.R. 103(A)(1) (“Error may not

be predicated upon a ruling which admits or excludes evidence unless a substantial right of the

party is affected, and * * * [i]n case the ruling is one admitting evidence, a timely objection or

motion to strike appears of record, stating the specific ground of objection, if the specific

ground was not apparent from the context.”). In any event, Hurd’s testimony that Jackson

complained of injuries resulting from an assault was merely cumulative of other evidence

presented at trial. In fact, it was undisputed that Jackson’s injuries were caused by an assault.

The only question was whether Eicholtz assaulted her in their apartment or whether a woman

assaulted her in a bar fight. Hurd’s testimony did not address this issue. We see no reversible

error.

         {¶ 36} Finally, Eicholtz challenges the trial court’s admission of Jackson’s statements

to Kathy Bendall, paramedic Kristi Morrison, paramedic Nick Thornton, deputy Chris Dolin,

and family friend Elizabeth Fallon. Eicholtz argues that the statements were impermissible

hearsay. We disagree. The record supports a finding that Jackson made the statements not long

after jumping from the apartment window in her bra and underwear to escape from a lengthy
                                                                                                                                  20


beating and that she remained in an excited state. At a minimum, the trial court did not abuse

its discretion in concluding that the statements qualified as excited utterances. The third

assignment of error is overruled.

         {¶ 37} In his fourth assignment of error, Eicholtz argues that the trial court erred in

allowing the State to impeach its own witness. This argument concerns the prosecutor’s

examination of Kathy Bendall. Eicholtz contends the State did not satisfy the requirements for

attacking Bendall’s credibility. Specifically, he claims the State failed to show that Bendall’s

trial testimony came as a surprise and caused affirmative damage to the prosecution’s case, as

required by Evid.R. 607(A).6

         {¶ 38} “For purposes of the rule, a party demonstrates ‘surprise’ when the witness’s

trial testimony is materially inconsistent with the prior statement and counsel did not have

reason to believe that the witness would repudiate the prior statement.” State v. Travis, 165

Ohio App.3d 626, 2006-Ohio-787, 847 N.E.2d 1237 (2d Dist.), quoting State v. Fisher, 8th

Dist. Cuyahoga           No. 83098, 2004-Ohio-3123, ¶ 7. “Affirmative damage” exists when a

prosecution witness’s trial testimony contradicts, denies, or harms the State’s case. It does not

exist when a witness denies knowledge or fails to remember. Dayton v. Combs, 94 Ohio

App.3d 291, 299, 640 N.E.2d 863 (2d Dist.1993).

         {¶ 39} Here the State initially moved to have Kathy Bendall declared the court’s

witness under Evid.R. 614. The State withdrew the motion just before her testimony.

However, in so doing, the prosecutor explained: “I’ve had an opportunity to talk to Kathy


           6
             Rule 607(A) provides: “The credibility of a witness may be attacked by any party except that the credibility of a witness may be
 attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.”
                                                                                             21


Bendall and discussed her penalty, and I will withdraw this motion. * * * I may need to revisit

it at a later time if given * * * surprise.” (Tr. Vol. I at 128). We construe that passage to mean

that the prosecutor discussed the witness’s anticipated testimony and the penalty for perjury,

and was satisfied that the victim would testify consistent with her initial statements.

Thereafter, the prosecutor commenced direct examination of Bendall. After a short period of

questioning, the prosecutor sought permission to treat Bendall as a hostile witness. The

request was based on the prosecutor’s expression of surprise and a perception that Bendall was

being dishonest when asked (1) whether Mike Billinghurst ever drank, (2) where in the house

her young son slept, (3) what her step-daughter, Alisha, said upon seeing Eicholtz in the

house, and (4) whether her husband told her she forgot to lock the door or stated, as a

question, “You didn’t lock the door?” (Tr. Vol. I at 153-162). Although the prosecutor appears

to have been surprised by Bendall’s answers, we doubt whether the responses to these largely

collateral matters caused the requisite “affirmative damage” to the State’s case. But even if the

trial court erred in permitting the prosecutor to impeach Bendall on these limited issues, the

error was harmless. The only significant discussion concerned whether Bendall’s husband told

her she didn’t lock the door or questioned whether she had locked the door. We find no

likelihood that the prosecutor’s questioning on this point contributed to Eicholtz’s conviction.

       {¶ 40} The prosecutor later requested permission to treat Bendall as a hostile witness

a second time when she denied seeing Eicholtz physically attack Billinghurst inside her house.

(Tr. Vol. I at 168-169). The prosecutor told the trial court Bendall had stated earlier that

morning that Eicholtz did assault Billinghurst inside the house. (Id. at 169). The trial court

allowed impeachment of Bendall on this single issue. (Id. at 170). We see no error. The record
                                                                                           22


supports a finding of surprise based on the prosecutor’s representation to the trial court.

Moreover, Bendall’s denial of an assault inside her house was damaging to the State’s case

because it potentially negated an element of the aggravated burglary charge.

       {¶ 41} After the foregoing incident, the prosecutor treated Bendall as a cooperative

witness while refreshing her recollection on several occasions. Finally, the prosecutor inquired

about the existence of a sexual relationship between Bendall and Eicholtz and about Eicholtz

possessing pictures of Bendall in the shower. (Id. at 191-192). Bendall answered these

questions, denying a sexual relationship, and the prosecutor did not impeach her with any

prior statement. Therefore, this line of questioning did not raise an Evid.R. 607(A) issue. The

fourth assignment of error is overruled.

       {¶ 42} In his fifth assignment of error, Eicholtz identifies nine instances of alleged

prosecutorial misconduct extending from voir dire through closing arguments. He contends

the misconduct deprived him of a fair trial.

       {¶ 43} “‘The test for prosecutorial misconduct is whether the prosecutor’s acts were

improper in their nature and character and, if they were, whether the substantial rights of the

defendant to a fair trial were prejudiced thereby.’” State v. Hauptstueck, 2d Dist. Montgomery

No. 24013, 2011-Ohio-3502, ¶ 11; quoting State v. McGonegal, 2d Dist. Montgomery No.

18639, 2001 WL 1346024, *2 (Nov. 2, 2001). Upon review, we see no prosecutorial

misconduct.

       {¶ 44} Eicholtz first contends the prosecutor improperly posed hypothetical situations

to potential jurors during voir dire. The State used the hypotheticals to ensure that jurors

would follow the law and return a guilty verdict if the evidence supported one, even if the
                                                                                            23


victim did not want the defendant prosecuted. The hypotheticals were relevant to the present

case, where Kathy Bendall and Tabitha Jackson did not want to proceed with charges against

Eicholtz. Although Eicholtz contends the hypotheticals obligated jurors to commit to the guilt

of the perpetrator, the State merely ensured that jurors could vote to convict, despite the

victim’s wishes, if the evidence supported a conviction. We see no misconduct. Cf. State v.

Hazel, 2d Dist. Clark No. 2011 CA 16, 2012-Ohio-835, ¶25-30.

       {¶ 45} Eicholtz next alleges misconduct based on the prosecutor introducing

statements of Tom Eicholtz through other witnesses. As explained in our resolution of the

fourth assignment of error above, the statements at issue were admissible as exceptions to the

hearsay rule. Moreover, even if the statements were inadmissible, it is not misconduct for a

prosecutor to introduce evidence that the trial court allows. State v. Perez, 124 Ohio St.3d 122,

2009-Ohio-6179, 920 N.E.2d 104, ¶187. We reach the same conclusion with regard to

Eicholtz’s third argument, which concerns the State’s introduction of medical records. Given

that the trial court allowed this evidence to be admitted, the prosecutor did not engage in

misconduct by introducing it.

       {¶ 46} Eicholtz’s fourth argument concerns the prosecutor’s failure to call as a

witness the police officer who responded to Kathy Bendall’s home. He reasons that the

prosecutor’s failure to call the officer as a witness suggests the wrongful exclusion of

exculpatory evidence. He also argues that “not calling an otherwise available witness”

constituted a violation of his right to confrontation. These arguments lack merit. We are

unpersuaded that the prosecutor engaged in misconduct by not calling a witness. If Eicholtz

believed the responding officer possessed important information, he could have subpoenaed
                                                                                           24


the officer himself.

       {¶ 47} Eicholtz next alleges misconduct based on the prosecutor not disclosing

exculpatory information until shortly before trial. This information concerned recantations by

Tabitha Jackson to the prosecutor. The record belies the defendant’s assertion that he did not

became aware of the victim’s recantations “until a few days prior to trial.” Brief for the

Appellant at 30. Tabitha Jackson testified that she went to the office of defense counsel on

August 15, 2011, five months before the trial, and “told them that I lied on Jon.” (Tr. 535).

She then signed an affidavit to that effect. She further testified that she wrote letters to the

prosecutor, judge, defendant, and counsel during November and December 2011 indicating

that she had lied about what the defendant had done to her. (Tr. 531-538). The gist of her

testimony and letters is that she had repeatedly informed the defendant that she had lied. Even

assuming, arguendo, that the prosecutor delayed disclosing the recantations for some period of

time, Eicholtz fails to show how he was prejudiced. Jackson was extensively cross-examined

about her recantations during the trial, and defense counsel had the letters, and the affidavit,

and questioned her about them. Eicholtz does not explain how his defense would have been

different if he had known about the recantations earlier.

       {¶ 48} Eicholtz’s sixth argument concerns the prosecutor treating Kathy Bendall as a

hostile witness and impeaching her testimony. We see no misconduct given that the trial court

occasionally permitted the prosecutor to impeach Bendall. Eicholtz’s seventh argument is

equally unpersuasive. He alleges misconduct based on the prosecutor’s failure to “designate an

underlying ‘crime’ to meet the burden of proving the elements of Aggravated Burglary.” In

our analysis above, however, we found no error. We likewise find no misconduct.
[Cite as State v. Eicholtz, 2013-Ohio-302.]
        {¶ 49} Eicholtz next alleges misconduct based on the prosecutor vouching for the

credibility of witnesses. In the cited transcript pages, the prosecutor evaluated Jackson’s

testimony in light of the evidence presented. (Tr. Vol. III at 801-807). The prosecutor pointed

out inconsistencies and urged the jury to consider a possible motive to lie based on Jackson’s

professed love for Eicholtz and her desire not to see him prosecuted. “Vouching occurs when

the prosecutor implies knowledge of facts outside the record or places his or her personal

credibility in issue.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶232.

We see no vouching here, where the prosecutor addressed Jackson’s credibility in the context

of the evidence and asked the jury to make its own determination as to her truthfulness.

        {¶ 50} Finally, Eicholtz asserts that the prosecutor engaged in misconduct in a

rebuttal argument by insinuating that he was lying and by expressing a personal opinion about

his credibility. We see no misconduct. In rebuttal, the prosecutor pointed out that Eicholtz was

the only witness who enjoyed the benefit of hearing all of the State’s witnesses and seeing all

the State’s evidence. The prosecutor noted that all other witnesses had to wait in the hall until

they testified. The prosecutor then argued, without objection, that Eicholtz was able to provide

testimony that “fills all the holes.” We see no plain error as a result of this statement. The

prosecutor simply pointed out that Eicholtz was in a good position to lie, if he desired, because

he had heard all the evidence. The jury was entitled to take this fact into consideration when

assessing his credibility. Contrary to Eicholtz’s argument, the cited transcript page does not

depict an improper personal opinion by the prosecutor. The prosecutor told the jury to use its

collective “reason and common sense” to decide what to believe. The fifth assignment of error

is overruled.

        {¶ 51} In his sixth assignment of error, Eicholtz maintains that the trial court abused
                                                                                               26


its discretion in imposing maximum and consecutive sentences. He argues that the statutory

“seriousness” and “recidivism” factors do not support maximum, consecutive sentences. He

also contends the record does not support a finding that the victim suffered serious physical

and psychological harm. Finally, he asserts that the aggravated burglary involved a relative’s

house, that he had permission to enter, and that no one was harmed.

       {¶ 52} We review a felony sentence using a two-step procedure. State v. Kalish, 120

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the

sentencing court’s compliance with all applicable rules and statutes in imposing the sentence

to determine whether the sentence is clearly and convincingly contrary to law.’” State v.

Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.), quoting

Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial court decision be

‘reviewed under an abuse-of-discretion standard.’ ” Id., quoting Kalish at ¶ 4.

       {¶ 53} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. Nelson, 2d Dist.

Montgomery No. 25026, 2012-Ohio-5797, ¶62. “However, the trial court must comply with

all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12.” Id. “In addition,

under 2011 Am.Sub.H.B. 86, the trial court is obligated to make the findings required by R.C.

2929.14(C)(4) before imposing consecutive sentences.” Id.

       {¶ 54} Here Eicholtz does not argue that his sentence is contrary to law. He argues

only that the trial court’s imposition of maximum and consecutive sentences constituted an

abuse of discretion. We disagree. The record reflects that the trial court imposed consecutive
                                                                                           27


three-year prison sentences for abduction and domestic violence. The statutory maximum

sentence for these offenses was three years under R.C. 2929.14(A)(3)(b).       The trial court

also imposed a consecutive four-year prison sentence for aggravated burglary, a first-degree

felony. This four-year sentence was less than the statutory maximum.

       {¶ 55} At the sentencing hearing, the trial court gave the following explanation:

              All right. [R.C.] 2929.12(B) factors would make the defendant’s

       conduct more serious. I do find that the victim suffered serious physical harm.

       There was some evidence of some psychological harm as well.

              Under factors [that] would make his conduct less serious, I would say

       just with respect to the aggravated burglary, that he was acting under some

       provocation to the—not that anybody deliberately provoked him, but given the

       circumstances, of somebody else—him thinking somebody else was with his

       girlfriend, I suppose that’s some significant provocation.

              As far as recidivism factors, I do find that he has a history of criminal

       convictions that was set forth by the prosecutor. He’s not responded favorably

       to any sanctions previously imposed. I don’t find any genuine remorse, and I

       don’t find any factors making recidivism less likely.

              I do find that consecutive sentences are necessary to protect the public,

       to punish the offender and are not disproportionate to the conduct.

              And that his criminal history shows consecutive sentences are needed to

       protect the public; and that the harm to the domestic violence victim was so

       great that a single term does not adequately reflect the seriousness of his
                                                                                           28


       conduct.

(Disposition Tr. at 12-13).

       {¶ 56} Upon review, we find no abuse of discretion in the trial court’s weighing of

the statutory seriousness and recidivism factors. Even without regard to psychological harm,

the trial court reasonably could have concluded that Eicholtz inflicted serious physical harm

on Jackson, who was knocked unconscious three times and experienced bruising all over her

body as a result of being hit, kicked, and choked for hours. As for Eicholtz’s claim that the

aggravated burglary involved a relative’s house, we recognize that his aunt, Kathy Bendall,

resided there with her family. However, the jury’s verdict and the State’s evidence do not

support his claim that he had permission to enter the house. As for Eicholtz’s assertion that no

one was harmed, the record reflects that he did attempt to harm Mike Billinghurst inside the

house. In any event, we note that the trial court imposed a less-than-maximum sentence for the

aggravated burglary conviction.

       {¶ 57} With regard to the imposition of consecutive sentences, the trial court did not

abuse its discretion in finding consecutive sentences necessary for the reasons it stated on the

record. Specifically, the trial court reasonably imposed consecutive sentences based on

Eicholtz’s criminal history and lack of favorable response to prior sanctions, including prior

imprisonment. The record also supports the trial court’s finding that his criminal history made

consecutive sentences necessary to protect the public and that consecutive sentences were

necessary to punish Eicholtz and were not disproportionate to his conduct. Finally, the record

supports the trial court’s finding that the harm to Jackson was so great that a single prison

term did not adequately reflect the seriousness of his conduct. The sixth assignment of error is
                                                                                          29


overruled.

       {¶ 58} In his seventh assignment of error, Eicholtz raises a claim of cumulative error.

He contends the effect of the errors alleged in his first six assignments of error, even if

individually harmless, cumulatively deprived him of a fair trial.

       {¶ 59} It is true that separately harmless errors may violate a defendant’s right to a

fair trial when the errors are aggregated. State v. Madrigal, 87 Ohio St.3d 378, 397,

2000-Ohio-448, 721 N.E.2d 52. To find cumulative error, we first must find multiple errors

committed at trial. Id. at 398. We then must find a reasonable probability that the outcome

below would have been different but for the combination of separately harmless errors. State

v. Thomas, 2d Dist. Clark No. 2000-CA-43, 2001 WL 1103328 (Sept. 21, 2001). In our review

of Eicholtz’s other arguments, we found at most a few instances of harmless error. Even

considering these instances together, we find no prejudicial cumulative error. The seventh

assignment of error is overruled.

       {¶ 60} The judgment of the Clark County Common Pleas Court is affirmed.

                                                   .............

DONOVAN, J., concurs.

FROELICH, J., concurring in judgment:

       {¶ 61} I would find parts of Tom Eicholtz’s conversation with the deputy to be

hearsay to which the excited utterance exception does not apply and to be violative of the

defendant’s confrontation rights. Further, parts of Bendall’s statements to the 911 operator

appear to be hearsay and testimonial. Lastly, parts of nurse Hurd’s testimony, especially as it

related to Jackson’s reportedly having been held hostage, were not admissible.
[Cite as State v. Eicholtz, 2013-Ohio-302.]
        {¶ 62} I am also concerned about the prosecutor’s “tailoring” argument that the

defendant was able to sit at trial, listen to other witnesses, and then “fill in the holes” (i.e., lie

or “tailor” his testimony to what he heard); it was Eicholtz’s constitutional right to be present

at trial and to confront those who accused him.

        {¶ 63} The U.S. Supreme Court has held that such generic tailoring arguments are

acceptable under the Fifth, Sixth, and Fourteenth Amendments. Portuondo v. Agard, 529

U.S. 61, 73, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000). On the other hand, the highest courts in

several states have held that such an argument is improper (though these holdings either

preceded Portuondo or are based on state constitutions): State v. Walsh, 125 Haw. 271, 260

P.3d 350 (2011); State v. Jones, 580 A.2d 161 (Maine 1990); State v. Gunwall, 106 Wash.2d

54, 720 P.2d 808 (1986); State v. Hemmingway, 148 Vt. 90, 528 A.2d 746 (1987);

Commonwealth v. Person, 400 Mass 136, 508 N.E.2d 88 (1987).

        {¶ 64} And the only Ohio court to consider the question has sided with Portuondo.

State v. Griffin, 6th District Lucas No. L-98-1215, 2000 WL 1713850 (Nov. 17, 2000), based

on the U.S. Constitution.

        {¶ 65} In a different trial and appellate case, some of these issues, either individually

or cumulatively, could be dispositive. However, I agree with the majority that in light of all

the testimony and evidence, the errors in admitting these statements, often without objection,

let alone explained-objection, were harmless beyond a reasonable doubt.

                                              .............

Copies mailed to:

Lisa M. Fannin
Jeremy M. Tomb
Hon. Douglas M. Rastatter
31
