[Cite as State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677.]




              THE STATE OF OHIO, APPELLEE, v. JONES, APPELLANT.
           [Cite as State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677.]
Criminal law—Aggravated murder—Death penalty affirmed.
    [No. 2008-0525—Submitted July 10, 2012—Decided December 6, 2012.]
           APPEAL from the Court of Common Pleas of Summit County,
                                    No. CR07 04 1294.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} This is a death-penalty direct appeal as of right. A Summit County
jury convicted appellant, Phillip L. Jones, of numerous crimes in connection with
the murder and rape of Susan Yates and unanimously recommended that he be
sentenced to death. The trial court accepted that recommendation and sentenced
Jones accordingly.
        {¶ 2} For the following reasons, we affirm Jones’s convictions and
sentence of death.
                                      BACKGROUND
                             Facts and Procedural History
        {¶ 3} Jones was charged with one count of aggravated murder, one count
of murder, and two counts of rape.
        {¶ 4} Count 1 charged Jones with the aggravated murder of Yates while
committing rape.         The count included a death-penalty specification for
committing, attempting to commit, or fleeing immediately after committing or
attempting to commit rape and that Jones was the principal offender in the
commission of the aggravated murder, R.C. 2929.04(A)(7). Count 2 charged
                                  SUPREME COURT OF OHIO




Jones with the murder of Yates. Counts 3 and 4 charged Jones with rape.1 All
four counts included specifications charging Jones as a repeat violent offender.
         {¶ 5} Jones pled not guilty, and the case proceeded to trial.
                                  The state’s case-in-chief
                                 The criminal investigation
         {¶ 6} At around 6:20 a.m. on April 23, 2007, Richard Wisneski was
jogging his usual route on the paved path through Mount Peace Cemetery in
Summit County when he discovered a woman’s body. The body was lying face
up on the ground next to the path and in front of some headstones. Wisneski ran
out of the cemetery. After unsuccessfully attempting to flag down a motorist,
Wisneski ran to a McDonald’s restaurant and called 9-1-1.
         {¶ 7} Police officers arrived at the cemetery shortly thereafter and quickly
determined that the woman, later identified as Susan Marie Christian Yates, was
dead. Yates was wearing a brown sundress under a denim skirt and vest, a denim
jacket, and a bra. Her skirt was torn. So was her bra, which had been ripped at
the connecting fabric between the cups and was turned around on her torso. Her
shoes, a denim hat, and a pocketknife were on the ground near her body. Yates’s
face and neck had numerous bruises. A small, plastic, glow-in-the dark cross had
been placed over her right eye.
         {¶ 8} The police searched the scene and collected evidence, including two
buttons that they found on the roadway, 27 and 44 feet from the body, that
appeared to match buttons on Yates’s dress. One of Yates’s earrings was also
recovered from the roadway.


1. The trial court instructed the jury that Count 3 referred to vaginal rape and Count 4 referred to
anal rape.




                                                 2
                                January Term, 2012




       {¶ 9} The police were not able to immediately identify Yates because she
did not have any identification on her and none of the officers recognized her.
Later that same day, Yates was identified through her fingerprints, but her name
was not released to the media. The next day, April 24, an article in the Akron
Beacon Journal newspaper reported that the body of an unnamed woman had been
found in the cemetery.
       {¶ 10} Around 4:00 p.m. that day, Jones was watching the news on
television and reading the newspaper. Afterwards, he and his wife, Delores, had a
conversation about the news. Shortly thereafter, the couple walked to a nearby
store, and Jones bought some cigarettes. Upon returning home, Delores got in her
car and drove to the home of her friend, Charletta Jeffries.
       {¶ 11} Delores arrived at Jeffries’s home between 4:30 p.m. and 5:00 p.m.
Delores ran up Jeffries’s stairs and screamed, “He did it, he did it.” Jeffries
asked, “He, who?” and Delores replied, “My husband, Phil.” Jeffries then asked,
“Did what?” and Delores responded, “Murdered the woman.” Jeffries then asked,
“What woman?” and Delores replied, “The woman that they found in the
cemetery.”
       {¶ 12} Delores then called the police, told them that she had information
about the woman found at the cemetery, and asked to speak to “somebody in
charge.”
       {¶ 13} Shortly after the phone call, Detective Richard Morrison arrived at
Jeffries’s home. Delores was hyperventilating and acting “hysterical.” Morrison
asked Delores, “Do you have something you need to tell me?” Delores replied,
“My husband is the one that killed that girl in the cemetery.” Morrison then
asked, “How do you know this?” and Delores said, “Because he told me her name
was Susan. Isn’t it Susan?”
       {¶ 14} Delores also disclosed that she had arrived home on April 22 at
around 10:30 p.m., and Jones was not there. Delores was unable to determine



                                         3
                              SUPREME COURT OF OHIO




Jones’s whereabouts, and she spent the night with her mother. Between 7:00 and
8:00 the next morning, Delores returned home and found Jones asleep in bed. She
noticed that Jones had a scratch on his shoulder and lip.
          {¶ 15} During further questioning at the police department on April 24,
Morrison showed Delores the cross found over Yates’s eye. Delores said that she
did not recognize it. Later that evening, police officers accompanied Delores to
her home, where she collected clothing and her jewelry box before going to a
domestic-violence shelter.
          {¶ 16} On April 25, Delores notified police that she had found a glow-in-
the-dark cross in her jewelry box and that it was similar to the cross found at the
cemetery. Delores testified that Jones had given her the glow-in-the-dark cross in
June 2006 and that she knew that Jones kept another glow-in-the-dark cross in his
wallet.
          {¶ 17} Based on the information learned from Delores’s interview, the
Akron Police Department issued a “be on the lookout” for Jones. Thereafter, the
police secured an arrest warrant for Jones.
                                      The arrest
          {¶ 18} At around 11:00 p.m. on April 24, police spotted Jones driving near
his home and arrested him. Jones was briefly interviewed at the police station
that night and stated only, “[A]ll I’m going to say about this is that it was an
accident.”
          {¶ 19} Investigators examined Jones’s car and took swabbings from the
interior of the vehicle. Subsequent testing found no evidence that the victim had
ever been in the car.
                                     The autopsy
          {¶ 20} The chief deputy medical examiner for Summit County, George
Sterbenz, M.D., conducted the autopsy on Yates. Dr. Sterbenz noted abrasions on
the upper chest, collar bones, neck, and jaw line. Yates had bruising around her




                                          4
                               January Term, 2012




right eye and scalp and smaller abrasions over her arms, legs, feet, and back. Dr.
Sterbenz also noted that the “blows caused abrasions * * * all over the neck and
jaw and over the collar bones and shoulders.”          There were “gouging” or
“fingernail type abrasions” on her neck, right thumb, and elbow. Petechiae, or
“pinpoint type hemorrhages,” were found on her face and in her eyes. Yates’s
larynx was fractured in two places: the hyoid bone and the thyroid cartilage.
       {¶ 21} Dr. Sterbenz concluded that Yates died from asphyxia by
strangulation. He opined that Yates had been dead for 6 to 12 hours before her
body was found.
       {¶ 22} Dr. Sterbenz also concluded that Yates had been sexually assaulted.
There were extensive vaginal injuries, including bruising of the fatty and
muscular tissues that form the deep wall of the vagina. He opined that such
injuries may have been caused by “a fist * * * or very large rigid foreign object.”
He also found a wadded Kleenex or toilet-type paper inside Yates’s vagina.
       {¶ 23} There was also a significant amount of internal, deep bruising to
the anus and rectum. Dr. Sterbenz stated that a long and rigid object likely caused
these injuries from the object’s having been violently “placed into the anus” and
“jammed up into the rectum.” A twig was also found in the fecal material inside
the rectum about four to six inches from the anal opening.
       {¶ 24} A toxicology screen detected the presence of cocaine and alcohol.
Yates’s blood-serum level of alcohol was .096 percent.
                              The forensic evidence
       {¶ 25} Evidence collected during the criminal investigation and the
autopsy was sent for testing to the Ohio Bureau of Criminal Identification and
Investigation (“BCI”).
       {¶ 26} Dale Laux, a forensic scientist at BCI in charge of examining
samples to identify body fluids, found sperm on the vaginal swabs taken from
Yates. He also detected sperm on stains found on the inside of Yates’s skirt. No



                                         5
                             SUPREME COURT OF OHIO




seminal fluid was detected on the rectal swabs or on tissue paper found near the
body.
        {¶ 27} Laux forwarded the samples that tested positive for sperm to Stacy
Violi, a DNA examiner at BCI, for DNA testing. Violi concluded, “Phillip Jones
cannot be excluded as a source of semen on the vaginal swabs and cuttings from
the skirt.”   Violi testified, “Based on the national database provided by the
Federal Bureau of Investigation, the expected frequency of occurrence of the
DNA profile identified in the sperm fraction of the vaginal swabs and the cuttings
from the skirt * * * is one in three sextillion, thirteen quintillion unrelated
individuals.” In other words, Violi explained that she would have to test more
than three sextillion individuals before finding the same DNA profile.          The
world’s population is less than seven billion people.
        {¶ 28} Violi also tested swabs obtained from the surface of Yates’s breast.
Violi concluded that “[t]he DNA profile from the breast swabs is a mixture of at
least two individuals. The major DNA profile is from an unknown male. The
minor DNA profile is consistent with contributions from Susan Yates.” Violi also
tested the cross, but did not find enough DNA to make a comparison.
                                Other acts evidence
        {¶ 29} In 1990, Jones had pled guilty to two counts of attempted rape. He
was sentenced to an indefinite prison term of four to 15 years. Jones served 14
years and two months in prison before being released in July 2004.
        {¶ 30} A victim, T.J., who had been 16 years old at the time of the assault,
testified at Jones’s capital trial about the 1990 assault. She recalled that on the
evening of April 16, 1990, Jones, who was a friend of T.J.’s older sister, requested
that T.J. accompany him and some of his friends on a drive to look for T.J.’s sister
and to attempt to buy some marijuana. Ultimately, Jones dropped the others off at
their homes but drove T.J. to a wooded area near a park. Jones stopped the car
and pulled himself close to T.J. As T.J. tried to fight Jones off, he put his hands




                                         6
                                January Term, 2012




around her neck and started choking her. T.J. opened the car door and half of her
body fell out.
       {¶ 31} Jones exited the car from the driver’s side, took hold of T.J., and
forced her up a hill into a wooded area. Jones continued to choke T.J. and also
tried to remove her clothing while he threatened her, beat her on the back, and
attempted to anally rape her.
       {¶ 32} A police car arrived and parked behind Jones’s car. A police
officer got out of the car and started shining lights around the area. Jones put a
hand over T.J.’s mouth and a hand on her throat and threatened to kill her if she
said anything. He then attempted to rape her anally. After the police officer
drove away, Jones took T.J. back to his car and choked and vaginally raped her.
       {¶ 33} Afterwards, Jones told T.J. that he would kill her if she told anyone
what he had done. He then drove her home and dropped her off around the corner
from her house. T.J. ran home and told her family what happened; her sister
called the police. The police arrived and interviewed T.J. and then took her to the
hospital for treatment.
       {¶ 34} During the trial for the crimes at issue in this appeal, the state
introduced T.J.’s medical records, which reflect her treatment at the hospital after
the sexual assault in 1990, as well as the certified judgment entry reflecting
Jones’s convictions for the crimes against T.J.
                                   Defense case
       {¶ 35} Jones testified in his own behalf.
       {¶ 36} At the outset of his testimony, he addressed T.J.’s testimony. Jones
stated that he had first met T.J. around November 1989. Jones said that they had
had sex “[a]t least several, maybe four times” before the rape. Jones claimed that
the sexual intercourse in the park that formed the basis of the 1990 conviction had
been consensual.




                                         7
                            SUPREME COURT OF OHIO




       {¶ 37} Jones said he never choked T.J. and could not have done so
because he has limited mobility in his right arm, which he asserted had been
shattered in late 1989 and had led to the surgical removal of the radius bone.
       {¶ 38} Jones testified that T.J. may have claimed that she was raped
because he had told her that he was not going to leave his girlfriend, Christy
Harmel. Nevertheless, Jones explained why he had pled guilty to two counts of
attempted rape: “[I]t was my understanding that, the plea agreement, I would be
granted super shock probation within 18 months to two years. But it didn’t work
out that way.”
       {¶ 39} Jones then testified about his relationship with Yates. Jones stated
that he first met Yates in February or early March 2007. Jones had taken Yates,
who was then homeless, to his house while his wife was at work; he let her
shower, eat, and take some cigarettes. In late March, Jones saw Yates at a
McDonald’s restaurant and gave her some money to buy food.
       {¶ 40} At around 8:45 p.m. on April 22, Jones was driving on Balch Street
in Akron and saw a man hitting a woman on the sidewalk. Jones stopped to assist
the woman, who was defending herself with a knife. Jones recognized the woman
as Yates. Jones broke up the fight and told Yates to get in his car. Jones and the
man were “tussling,” and Jones alleged that the man punched and scratched Jones.
The man then fled the scene.
       {¶ 41} Jones returned to the car to find Yates making a “primo” cigarette
by inserting crack cocaine into a nicotine cigarette. Jones stated that Yates
appeared “kind of battered” from the fight, and her skirt was ripped. She did not
have a purse. Yates smoked the cigarette and said she wanted more cocaine.
       {¶ 42} Jones drove Yates to the apartment of Deitra Snodgrass because he
thought Snodgrass might know someone who was selling crack. Jones and Yates
arrived at the apartment and had a short conversation with Snodgrass, but left the
apartment without any crack. Thereafter, Jones and Yates bought crack from a




                                         8
                               January Term, 2012




man on a street corner. Jones also purchased some beer and wine at a drive-
through market. Jones testified that he had one beer, and Yates drank the rest.
       {¶ 43} Jones and Yates decided to go to Mount Peace Cemetery to avoid
the police and arrived at 9:00 or 9:30 p.m. Jones had worked as a groundskeeper
at the cemetery, and his father had been buried there the previous June.
       {¶ 44} Yates prepared three more “primo” cigarettes and smoked them.
Jones spread a blanket on the ground, and they got on it and started kissing and
hugging. Yates then urinated in the street, wiped herself with tissue that she had
in her pocket, and then left the tissue on the roadway in the cemetery.
       {¶ 45} According to Jones, he and Yates decided to have vaginal
intercourse and did so while he was wearing a condom. He testified that Yates
was not wearing underwear and that she had pulled up her skirt and the dress she
was wearing underneath. Jones testified that they did not have anal intercourse
and that he did not do anything to Yates’s anal area.
       {¶ 46} Jones testified that Yates told him she wanted to have “rough” sex.
According to Jones, Yates told him to put his hands around her throat and restrain
her breathing as she neared orgasm. Jones placed one hand around her throat
while they engaged in vaginal intercourse. At some point, he “heard like a crack,
cracking sound or popping sound.” Jones realized that Yates was not moving. He
stopped having sex with her and then noticed that the condom had broken. He
purportedly used CPR to try to revive Yates but was unsuccessful.
       {¶ 47} Once Jones realized that Yates was dead, he panicked because he
“had a rape case.” He retrieved his blanket—which was partially underneath
Yates and partially tangled on Yates’s neck—put the blanket in the trunk, and left
the cemetery. Around 10:30 or 10:45 p.m., Jones arrived home. Delores was
home; he told her that he had been out and had broken up a fight.
       {¶ 48} On April 24, Jones read a newspaper article about the police
finding a dead woman in Mount Peace Cemetery. Around 4:00 p.m., Jones had a



                                         9
                             SUPREME COURT OF OHIO




conversation with Delores. Jones and Delores then walked to a nearby store to
buy cigarettes. After returning home, Delores left the house, but Jones did not
know where she went.
        {¶ 49} Jones then contacted his sister, Yolanda, and drove to her home.
They talked, and Jones decided to turn himself in to the police that night. Later
that evening, Jones drove back to his house to see if Delores had returned home.
The police then stopped and arrested him.
        {¶ 50} Jones testified that Yates’s death was “an accident.” Jones said, “I
guess it * * * went too far, [I] applied too much pressure.” Jones testified that he
did not leave the cross that was found over Yates’s eye. And he denied ever
seeing the cross that his wife had found in her jewelry box.
        {¶ 51} During cross-examination, the state presented a life-size doll and
told Jones to demonstrate how he strangled Yates as he had testified on direct,
which Jones attempted to do. Jones also testified that he did not cause the injuries
to Yates’s face and neck and that he had no explanation for the twig found in
Yates’s rectum or her anal injuries, except to say that “some other guy” might
have caused them.
        {¶ 52} Jones did not notify the police after he left the cemetery because he
thought they would accuse him of intentionally killing Yates. Jones stated that he
threw his used condom onto the ground in the cemetery and also left some beer
cans.
        {¶ 53} Deitra Snodgrass testified on Jones’s behalf. She said that Jones
and a tall, slender African-American woman came to her apartment during the
spring of 2007. Snodgrass testified that the woman was wearing a long, “full-
length” denim skirt that was either split or ripped on the side. The woman had
bruises on her face, and her face was swollen. Snodgrass had a short conversation
with them, and they left.




                                         10
                               January Term, 2012




        {¶ 54} During cross-examination, Snodgrass conceded that she did not
come forward until Jones’s brother, whom she referred to as “Uncle Wayne,”
approached her approximately one week before she took the witness stand and
told her that she might need to testify. Snodgrass conceded that the day before
she testified, she had told a detective that the woman’s denim skirt was short, not
long.
                                Rebuttal testimony
        {¶ 55} Dr. Sterbenz refuted Jones’s testimony.             After using the
demonstrative doll to confirm Jones’s version of Yates’s death, Dr. Sterbenz
explained the ways in which the physical evidence contradicted Jones’s
testimony.
        {¶ 56} Detective Terrence Hudnall testified that the police found no wine
bottle and no beer cans in the cemetery. A used condom was found about 100
yards from the body, but it was not broken.
                             The verdict and sentence
        {¶ 57} The jury found Jones guilty of all counts and specifications. Jones
was sentenced to death for the aggravated murder of Yates. He was sentenced to
20 years in prison for the two rape convictions. The court also sentenced Jones to
10 years in prison for the repeat-violent-offender specifications in Counts 3 and 4
and ordered that they be served concurrently with each other, but consecutively to
the sentence imposed in Counts 3 and 4, for a total of 30 years.
        {¶ 58} In his appeal here, Jones presents ten propositions of law in an
effort to reverse his convictions. We now turn to those claims.
                                    ANALYSIS
                                  Jury selection
        {¶ 59} Excusal of death-scrupled jurors. In proposition of law VI, Jones
argues that the trial court improperly excused two prospective jurors for cause
who were not unequivocally opposed to the death penalty.



                                        11
                              SUPREME COURT OF OHIO




          {¶ 60} A juror may be excused for cause if his views on capital
punishment “would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.” Adams v. Texas, 448
U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); State v. Bethel, 110 Ohio
St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 118. A trial court’s resolution of a
challenge for cause will be upheld on appeal so long as it is supported by
substantial testimony. State v. Wilson, 29 Ohio St.2d 203, 211, 280 N.E.2d 915
(1972).
                                Prospective juror Pan
          {¶ 61} First, Jones argues that the trial court abused its discretion by
excusing prospective juror Pan. Jones claims that Pan should not have been
excused for cause, because he had indicated on his jury questionnaire and during
voir dire that he could impose the death penalty.
          {¶ 62} In fact, Pan provided contradictory answers on his juror
questionnaire and during voir dire. Pan wrote on his questionnaire, “If there is no
doubt, death penalty is OK!” During initial voir dire questioning, Pan stated, “I
mean, find guilty, was criminal, would be for the death penalty.”
          {¶ 63} But Pan changed his responses about his views on the death penalty
as the questioning continued. Pan indicated that he favored life without parole
rather than the death penalty. Pan explained that he had problems understanding
some of the questions and legal terminology when he initially expressed his views
about the death penalty. Nevertheless, Pan indicated that he could vote for the
death penalty in some situations. After additional questioning, however, Pan
stated that he would be against imposing the death penalty.
          {¶ 64} Over defense objection, the trial court excused Pan for cause and
stated:




                                         12
                                 January Term, 2012




                 I thought Doctor Pan has a real problem with the language
       and understanding, and clearly his testimony here is diametrically
       opposite of what he had written on his questionnaire, but it was
       clear that he did not understand what was taking place, and * * *
       based thereon he was excused having said the maximum that he
       could find a verdict for would be prison.


       {¶ 65} “ ‘The fact that the defense counsel was able to elicit somewhat
contradictory viewpoints from * * * jurors during his examination does not, in
and of itself, render the court’s judgment erroneous.’ ” State v. Beuke, 38 Ohio
St.3d 29, 38, 526 N.E.2d 274 (1988), quoting State v. Scott, 26 Ohio St.3d 92, 98,
497 N.E.2d 55 (1986). Moreover, it is the trial court’s responsibility to determine
which answers reflect a prospective juror’s true state of mind. See State v. Group,
98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 66.
       {¶ 66} Pan’s responses to questions about the death penalty showed that
he could not vote for the death penalty. Additionally, Pan changed his answers
about the death penalty because of language problems and his difficulty in
understanding the nature of capital proceedings. Thus, the trial court did not
abuse its discretion in excusing this juror.
                              Prospective juror Powell
       {¶ 67} Second, Jones argues that the trial court abused its discretion in
excusing prospective juror Powell. Jones claims that Powell should not have been
excused, because he stated that he could vote for the death penalty under certain
circumstances.
       {¶ 68} During voir dire, Powell stated that he would have a “real problem”
in voting for the death penalty. Powell stated that the only exception would be if
“there was a videotape and confession by the individual, they were caught red-
handed * * * [o]r they requested that they be put to death, rather than spend their



                                          13
                            SUPREME COURT OF OHIO




life in prison.” Powell also stated, “I can’t imagine that I could take that step,
especially knowing that maybe five years from now they come up with a law that
says we are not going to do that [impose capital punishment] anymore.” Over
defense objection, Powell was excused for cause.
       {¶ 69} Powell expressed severe doubts about his ability to impose a death
sentence when required by law. Instead, Powell expressed his willingness to
impose the death penalty only under very narrow circumstances, none of which
were present in this case. Thus, the trial court did not abuse its discretion in
excusing this juror.
       {¶ 70} Because the record supports the trial court’s decision to excuse
these prospective jurors, we reject proposition VI.
                                Evidentiary issues
       {¶ 71} Demonstrative evidence. In proposition of law I, Jones argues that
the trial court abused its discretion by allowing the state to use a demonstrative
doll during its cross-examination of him and during the rebuttal testimony of the
medical examiner, Dr. Sterbenz.
       {¶ 72} On direct examination, Jones testified that Yates died while they
were having “rough” sex. Jones stated that as the two began having sex, Yates
asked him to place his hands around her throat in order to restrain her breathing as
she came close to orgasm. Defense counsel queried, “You have your hands, at
least one or both, around her throat; is that correct?” Jones answered, “One of
them.” Jones further testified that he then heard “a crack, cracking sound or
popping sound” and noticed that Yates was not moving.
       {¶ 73} Before Jones’s cross-examination began, the prosecutor told the
court that he anticipated calling Dr. Sterbenz as a rebuttal witness and therefore
requested that Dr. Sterbenz be permitted to observe the state’s cross-examination
of Jones. The defense objected to Dr. Sterbenz’s observing Jones’s testimony. It
also objected to Jones’s demonstration on the doll.




                                         14
                                      January Term, 2012




         {¶ 74} As to the doll, defense counsel argued only:


         [W]e will object to having the State request that Mr. Jones perform
         any type of act on any type of—if I can use the phrase—


The court finished defense counsel’s sentence by saying, “Demonstrative doll.”
Defense counsel continued:


         A doll, all right, your Honor. We are going to object to that. The
         doll is no way close to the body size of Susan Yates. And so what
         we are going to do is state an objection to this. Your Honor, I
         don’t think it is a fair comparison; besides the doll is not alive.


         {¶ 75} The prosecutor responded, “I have not raised the issue of the doll
yet. I didn’t mention that, but actually the doll is the same size as Ms. Yates,
approximately the same weight and height.”2 The trial court ruled, “Note the
objection. He may use it.”3
         {¶ 76} But the trial court sustained the objection to the state’s request for
Dr. Sterbenz to observe Jones’s cross-examination. The prosecutor then informed
the court of the state’s alternative plan to convey Jones’s demonstration to the
medical examiner:




2. The doll was not marked as an exhibit and is not part of this record. In any event, Jones has
abandoned the argument that the doll was dissimilar in size to the victim.

3. Jones asserts that the prosecutor should not have been allowed to use the demonstrative doll,
because the defense was surprised that it would be used. Yet defense counsel never mentioned
surprise in his objection. And the record does not support Jones’s claim. We disagree that
defense counsel exhibited surprise by, in objecting to the doll’s use, stating only, “It destroys the
cross-examination for our side * * *.”




                                                 15
                              SUPREME COURT OF OHIO




               Mr. LoPrinzi (the prosecutor): So we are clear on the
       record, I’m going to have Mr. Jones demonstrate on the dummy
       what he did, and * * * I will redemonstrate for the doctor,
       hopefully accurately. I’ll do the best I can. I would rather have the
       doctor see what he does, even if he’s just in for that portion.
               Mr. O’Brien (defense counsel):        It destroys the cross-
       examination for our side, your Honor.
               The Court: You will do the best you can, and if he’s not
       doing it right, they will make that clear. The defense will make
       that clear.


                           Use of the demonstrative doll
       {¶ 77} During cross-examination, the prosecutor asked Jones to use a life-
sized doll to demonstrate how he accidentally killed Yates, as he had described on
direct examination. The record is far from clear, but it does reflect that Jones left
the witness stand and performed some type of demonstration.
       {¶ 78} The following exchange took place during the demonstration:


               Q (the prosecutor): Can you show me how you grabbed
       her neck? I assume * * * you were laying [sic] on top of her,
       correct?
               A (the defendant): Yes, sir, I was.
               Q: Okay. And you used both hands to do it?
               A: Yes, sir.
               Q: All right. And how hard did you do it?
               A: I was just like applying pressure up here.
               Q: Just like that?
               A: Yes.




                                         16
                                January Term, 2012




               Q: No movement?
               A: I was * * * having sex with her also at the time.
               Q: I’m talking about with your hands around her neck.
               A: Just like this.
               Q: That was it, steady pressure, just like that?
               A: I believe so, yes.
               ***
               Q: And other than what you are showing us right there,
       you did nothing else?
               A: I was like this, and I was coming—I mean I was having
       sex, and I was putting my weight on her like that, both arms, like
       that.
               ***
               Q: And then you heard the pop?
               A: Yes, sir.
               Q: And when you heard the pop, did she stop moving?
               A: Yes, sir.
               ***
               Q: All right. Now you can get up. You can get up.
               The Court: I think he can sit down.
               Mr. LoPrinzi: Yes.
               The Court: You can sit down, Mr. Jones.


       {¶ 79} At the start of Dr. Sterbenz’s rebuttal testimony, trial counsel
objected to the prosecutor’s being allowed to attempt to replicate Jones’s
demonstration with the doll. The trial court overruled the objection and stated,
“[T]he jury will remember what was produced now and determine whether it is




                                         17
                              SUPREME COURT OF OHIO




the same, similar or not at all.” The prosecutor then used the doll in framing the
following question:


                Q:    Doctor, the defendant indicated he put both hands
        around her neck in this fashion, was up on both feet, over the top
        of her engaged in intercourse with all his weight pressed on her
        neck in that fashion, never did anything additional but put pressure.
                During that period of time, she was moving her arms on his
        arms, mumbling and engaging in sex, sexual activity with him or
        sex act, at which time he heard a pop in her neck area. She
        stopped moving. He then stopped choking her, and she was dead
        as he tried to revive her.


        {¶ 80} The prosecutor then asked Dr. Sterbenz “whether that scenario is
consistent with [his] medical findings.”       Before providing his opinion, Dr.
Sterbenz took the doll and expressed his understanding of what he had just been
told:


                A (Dr. Sterbenz): I’d like to clarify the circumstances or
        the terms * * * I will refer to as strangulation, for purposes of
        being very clear here, and I’m interpreting this as * * * a
        description of how the event occurred, I’m interpreting as any
        other hypothetical that I would have placed before me and asked
        my opinion[.]
                Q (the prosecutor): That’s what we are asking.
                ***
                The Witness: One, can I approach the dummy?
                The Court: You may.




                                         18
                                 January Term, 2012




               A:    What you are telling me is that the person, this
       individual is forward on—I mean, straddling this person and the
       hands are placed about the neck, gripping the neck, right and left
       hand gripping the neck.
               Also what you are telling me is that, I’m interpreting at
       least, if I’m wrong I would like to be corrected, that the hands
       other than gripping the neck and squeezing the neck, are otherwise
       static on the neck.
               Q: That’s his testimony.
               ***
               A: I’m also assuming that the individual themself [sic],
       this case a dummy, is not in any way moving their hands in such a
       way to claw or grab or try to pry the hands off of her neck?
               Q: That’s his testimony.
               A: Okay. And that the weight of this individual is in front
       to back direction as I am demonstrating, as I’m positioned here. I
       mean, front to back of the dummy, pushing front, pushing straight
       down, not to the side or anything. * * * [I]t is just pushing down
       on the neck and squeezing the neck.
               Q: That’s how it was shown.


       {¶ 81} Dr. Sterbenz opined that the physical evidence did not support
Jones’s explanation about how Yates had died.         Dr. Sterbenz explained that
“[s]imply placing hands on the neck and squeezing would not yield that type of
pattern of injury” that Yates suffered. He stated that the fractures of the cornu and
hyoid bone resulted from a “violent squeezing force to the neck.” Dr. Sterbenz
also testified that “asphyxiation takes quite a number of minutes to occur, and
after unconsciousness occurs, the pressure then needs to be maintained until death



                                          19
                                  SUPREME COURT OF OHIO




is accomplished. And she has quite a bit of obvious petechia[e] on her face and
eyes indicating that this is the type of pressure that occurred.”
                                        Applicable law
         {¶ 82} Demonstrative evidence is admissible if it satisfies the general
standard of relevance set forth in Evid.R. 4014 and if it is substantially similar to
the object or occurrence that it is intended to represent. State v. LaMar, 95 Ohio
St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 90; State v. Palmer, 80 Ohio St.3d
543, 566, 687 N.E.2d 685 (1997). The admission of demonstrative evidence is
subject to Evid.R. 403.5 The trial court has discretion to determine whether
demonstrative evidence is helpful or misleading to the trier of fact. State v.
Cowans, 87 Ohio St.3d 68, 77, 717 N.E.2d 298 (1999). A trial court’s ruling on
the admission of demonstrative evidence is reviewed under the abuse-of-
discretion standard. State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940
(2002). See also Travers, Propriety of Requiring Criminal Defendant to Exhibit
Self, or Perform Physical Act, or Participate in Demonstration, During Trial and
in Presence of Jury, 3 A.L.R.4th 374 (1981).
         {¶ 83} We will address the two prongs of admissibility in turn.
                                           Relevance
         {¶ 84} The prosecutor’s use of the doll during cross-examination of Jones
and during Dr. Sterbenz’s rebuttal testimony was relevant to Jones’s claim that he
had accidentally killed Yates. See State v. Landrum, 53 Ohio St.3d 107, 111, 559
N.E.2d 710 (1990), quoting Hanoff v. State, 37 Ohio St. 178 (1881), paragraph
one of the syllabus.


4. “ ‘ Relevant evidence’ means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Evid.R. 401.

5. “Although relevant, evidence is not admissible if its probative value is substantially outweighed
by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid.R.
403(A).




                                                20
                               January Term, 2012




       {¶ 85} In Landrum, the defendant testified on his own behalf during his
murder trial. On direct examination, Landrum stated that he used a knife only to
threaten the victim and that he did not cut the victim’s throat. Id. at 109. During
cross-examination, the prosecutor handed the knife to the defendant and asked
him to hold the knife just as he had on the night of the murder. Id. at 110. As an
initial matter, we noted, “[T]he cold record does not reflect theatrics as Landrum
claims.” Id. at 111. We then found no plain error in the court’s allowing the
demonstration because it was relevant to impeach the defendant. Id., quoting
Hanoff, paragraph one of the syllabus. In so holding, we explained, “ ‘Where
upon a trial of an indictment the defendant offers himself as a witness, and
testifies in his own behalf, he thereby subjects himself to the same rules, and may
be called on to submit to the same tests as to his credibility as may legally be
applied to other witnesses.’ ” Id., quoting Hanoff, paragraph one of the syllabus.
       {¶ 86} Jones’s demonstration showed how he placed his hands around
Yates’s neck, as he had described on direct examination. But Jones’s story
changed. On direct examination, Jones expressly testified that he used one hand
to restrain Yates’s breathing. On cross-examination, Jones demonstrated that he
had used two hands to do so. This discrepancy is obvious from the record and
would have been glaring to the jurors.
       {¶ 87} Similarly, the prosecutor and Dr. Sterbenz used the doll during Dr.
Sterbenz’s rebuttal testimony to clarify Jones’s explanation about what happened
with Yates. In turn, Dr. Sterbenz used autopsy photographs to explain that it was
physically impossible for Jones to have killed Yates in the manner that he had
demonstrated.
       {¶ 88} First, Dr. Sterbenz explained that Jones’s placing of his hands on
Yates’s neck and squeezing would not produce the complex pattern of abrasions
that were present on Yates’s neck. To the contrary, Yates had upward abrasions
that were consistent with a force “where there is twisting of one surface against



                                         21
                             SUPREME COURT OF OHIO




the other, possible for skin to skin contact with very vigorous activity, but a soft
ligature in between, such as twists of clothing about the neck is certainly another
definite consideration.”   Dr. Sterbenz explained in contrast, “Simply placing
hands on the neck and squeezing would not yield that type of injury.” In addition,
the severity of the bruising on Yates’s neck was not consistent with simply
squeezing but rather “shows a violent act, level of force, and that is commonly
conceived as or interpreted as violent.”
       {¶ 89} Next, Dr. Sterbenz explained that Jones’s explanation that Yates’s
arms were not near her neck as Jones “restrained her breathing” was not credible
because Yates’s neck had “gouging,” “fingernail type” injuries, which “speak[ ]
to the concept that the victim is grasping at their neck and also clawing to try to
move, remove whatever is the strangulation force around her neck.”
       {¶ 90} Dr. Sterbenz further explained that Yates had a bruise on the left
side of her neck that was not a mark that would be left by a hand. “This is not a
hand mark, this is no kind of mark that would be simply imparted by a hand
statically squeezing the neck by any means.” He also referred to a “big broad
abrasion under the chin” that could not be explained by Jones’s version of events.
       {¶ 91} Regarding internal injuries, Dr. Sterbenz explained that there was a
“hemorrhage along the left side of the larynx surrounding the blood vessels on the
left side of the neck” that was inconsistent with Jones’s explanation. Rather, that
injury would be caused “from vigorous moving, vigorous, violent movement at
the neck.”
       {¶ 92} Dr. Sterbenz explained that one would expect to find the thyroid
cartilage to be fractured under Jones’s version of events—and it was. But he
explained that Yates’s fracture was a crack that was less than a centimeter and,
from his professional experience with autopsy procedures, he knew that such a
fracture would not produce a “pop.” The medical examiner addressed each of the




                                           22
                                January Term, 2012




remaining fractures that he found in Yates’s neck and explained that none of them
would produce a “pop.”
       {¶ 93} Additionally, Dr. Sterbenz pointed out that Jones had claimed that
there was no other movement. But the autopsy revealed large bruises on the back
of the head that indicated that Yates’s head had been subjected to a “pounding
action.”
       {¶ 94} Finally, Dr. Sterbenz explained that if Yates had gone limp and
died immediately thereafter—as Jones claimed—one would expect to find some
kind of injury to the spinal cord. Dr. Sterbenz found no such injury. Instead, Dr.
Sterbenz discovered that Yates had fracturing of the larynx, which “is not going to
result in a neurologic injury that would result in her suddenly going limp and
sudden death.” To further explain, Dr. Sterbenz testified that Yates died from
strangulation relating to neck compression, which restricts the blood flow and
which would have had to have been maintained for some time after Yates became
unconscious.    In sum, Dr. Sterbenz found all of Jones’s explanation of the
strangulation to be inconsistent with the autopsy.
       {¶ 95} Jones’s demonstration directly aided the jury in understanding, and
thus assessing, the credibility of his version of events. Likewise, use of the
demonstrative doll during rebuttal aided the medical examiner’s understanding of
Jones’s explanation of the critical events and his ability to scientifically assess
Jones’s story. In turn, the jury was aided by Dr. Sterbenz’s opinion.
       {¶ 96} We readily conclude that the demonstrative evidence was relevant
to Jones’s claim that he accidentally killed Yates.
                                     Similarity
       {¶ 97} The demonstrations were the same as or similar to the events that
they were intended to represent. Jones’s demonstration involved testimony about
his own conduct.       Before providing the relevant testimony, Jones twice
unequivocally stated that he recalled the night of Yates’s murder. In any event,



                                         23
                             SUPREME COURT OF OHIO




any dissimilarity between Jones’s demonstration on the doll and his actions with
Yates did not give rise to unfair prejudice. See Moore v. Texas, 154 S.W.3d 703,
708 (Tex.App.2004) (defendant’s use of a doll during cross-examination was fair
comparison to act in question because defendant demonstrated his own conduct).
       {¶ 98} And nothing in the record indicates that the prosecutor’s and the
medical examiner’s use of the doll during rebuttal was different from Jones’s
demonstration. Indeed, Jones’s counsel lodged no objections to the accuracy of
the replications and engaged in no cross-examination based on any alleged
discrepancies.
       {¶ 99} Further, the trial court, which viewed the doll before ruling on its
use, did not abuse its discretion in concluding that the demonstrative doll could be
used because it was similar in size to the victim. “ ‘An exhibit is not necessarily
incompetent because it fails to show some exact thing in connection with the
subject under investigation, provided it shows some matter bearing directly upon
the matter under investigation, with an explanation of how it differs from that
which is being investigated.’ ” State v. Cowans, 87 Ohio St.3d 68, 77, 717 N.E.2d
298 (1999), citing Cleveland Provision Co. v. Hague, 20 Ohio C.C. (N.S.) 34, 41
Ohio C.C. 223, aff’d, 87 Ohio St. 483, 102 N.E. 1121 (1912), and citing State v.
Palmer, 80 Ohio St.3d 543, 564-566, 687 N.E.2d 685 (1997).
       {¶ 100} In any event, Jones no longer claims that the use of the doll was
unfair because of its lack of similarity to the victim. Indeed, he now concedes
that “[t]he doll was approximately the same size of Ms. Yates.” Thus, nothing
shows that the trial court abused its discretion because of the doll’s alleged lack of
similarity to the victim.
                                    Evid.R. 403
                                  Unfair prejudice
       {¶ 101} Jones contends that the use of the doll resulted in unfair prejudice
because it improperly “focused the jury’s attention on only the cross-examination




                                         24
                                     January Term, 2012




of Appellant, to the exclusion of the rest of the evidence.” Jones did not raise this
objection at trial; therefore, he has waived all but plain error. See State v. Hale,
119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 58. Neither plain nor
any other error occurred.
         {¶ 102} As an initial matter, we, like the court in Landrum, note that the
cold record does not reflect the theatrics Jones claims occurred at trial. While
conceding that the record is “not entirely clear,” Jones suggests that “it appears
Appellant was asked to lay [sic] on top of the doll, apply pressure to the neck with
both hands, mimicking having sex.”6
         {¶ 103} A review of the transcript reveals that Jones was never asked to
simulate sexual intercourse with the doll. And there is no reason to believe that
he, in fact, did engage in such a simulation.                 We once again consider the
following exchange for example:


                  Q (the prosecutor): Can you show me how you grabbed
         her neck? I assume * * * you were laying [sic] on top of her,
         correct?
                  A (the defendant): Yes, sir, I was.
                  Q: Okay. And you used both hands to do it?
                  A: Yes, sir.
                  Q: All right. And how hard did you do it?
                  A: I was just like applying pressure up here.
                  Q: Just like that?
                  A: Yes.
                  Q: No movement?


6. At oral argument, counsel for Jones also argued that the court ordered Jones to “simulate the sex
acts” and “the strangulation.” The record does not reflect that the trial court issued any such
directives to Jones.




                                                25
                            SUPREME COURT OF OHIO




               A: I was * * * having sex with her also at the time.
               Q: I’m talking about with your hands around her neck.


       {¶ 104} This exchange reveals that the prosecuting attorney questioned
Jones about the placement of his hands around Yates’s neck, the amount of
pressure he applied to her neck, and the movement of his hands on her neck.
When Jones referred to the sexual intercourse, it was the prosecuting attorney
who actually redirected Jones to the strangulation.
       {¶ 105} Indeed, Jones’s demonstration related to the strangulation, which
he claimed to be accidental, not to the intercourse, which he claimed to be
consensual.   And the medical examiner’s clarifying questions and rebuttal
testimony focused squarely on the position of Jones’s hands around Yates’s neck
and the nature and direction of the pressure that Jones claimed to apply.
       {¶ 106} Moreover, the prosecutor used the doll only during a short
segment of his cross-examination of Jones and the rebuttal testimony of Dr.
Sterbenz. The transcript of the guilt phase of the trial is more than 2,000 pages;
the portion reflecting the use of the demonstrative doll by both witnesses totals
seven pages, strongly suggesting that the demonstration was not unduly
sensational or prolonged.
       {¶ 107} Finally, the demonstration was not per se unfairly prejudicial in
requiring Jones to leave the witness stand to conduct the demonstration.
Prosecutors are allowed to ask the defendant during cross-examination to step
down from the stand and demonstrate his or her conduct.
       {¶ 108} In State v. Harris, 2d Dist. No. 94 CA 37, 1995 WL 614348 (Oct.
18, 1995), the defendant testified that he did not intend to kill the victim when he
fired shots. Id. at *5. The prosecutor then asked the defendant during cross-
examination to step down from the stand and to demonstrate the angle at which he
had held the gun when he fired the shots.        The prosecution also asked the




                                        26
                                     January Term, 2012




defendant to approximate, by reference to another person involved in the
demonstration, the distance that had existed between himself and the objects
struck by the bullets. Id. The state used this demonstration to show that it was
physically impossible for a bullet fired as the defendant demonstrated to have
struck the objects he indicated.             Id.     In upholding the admission of the
demonstration, the court stated, “It related directly to the veracity of Harris’s
sworn statements and was a proper subject of cross-examination.” Id. We adopt
Harris’s reasoning and likewise conclude that the demonstration here related
directly to Jones’s veracity and was a proper subject of cross-examination.
         {¶ 109} We reject Jones’s claim that the demonstration was unfairly
prejudicial.
                     Confusion of the issues and misleading the jury
         {¶ 110} The prosecutor’s purpose in using the demonstrative doll was
obvious and would not have confused the issues or misled the jury. The entire
case turned on Jones’s claim that he had accidentally killed Yates while they were
having rough sex. His demonstration and the prosecutor’s use of the doll during
rebuttal were plainly for the purpose of impeaching Jones and to counter his
testimony, which—if believed—would have constituted a defense to all of the
charges contained in the indictment.
         {¶ 111} Based on the foregoing, we overrule proposition I.
         {¶ 112} Excited utterances by Jones’s wife. In proposition of law II,
Jones argues that the trial court erred in admitting his wife’s statements to Jeffries
and Detective Morrison as excited utterances. Jones contends not only that the
statements did not meet the definition of excited utterance, but that their
admission violated the spousal privilege and the Confrontation Clause.                        For
clarity’s sake, we will address Jones’s spousal-privilege claim first.7

7. In light of the dissent’s mischaracterization of the presentation of witnesses, we are compelled
to point out that although we address Delores’s testimony first, she was the seventh witness to




                                                27
                                   SUPREME COURT OF OHIO




                                        Spousal privilege
         {¶ 113} Spousal privilege is codified at R.C. 2945.42 and provides:


         Husband or wife shall not testify concerning a communication
         made by one to the other, or act done by either in the presence of
         the other, during coverture, unless the communication was made or
         act done in the known presence or hearing of a third person
         competent to be a witness, or in case of personal injury by either
         the husband or wife to the other * * *.


         {¶ 114} The R.C. 2945.42 privilege belongs to the nontestifying spouse.
State v. Savage, 30 Ohio St.3d 1, 2, 506 N.E.2d 196 (1987). “Spousal privilege
cannot be waived unilaterally and allows a defendant to prevent his or her spouse
from testifying [as to privileged communications] unless one of the statute’s
exceptions applies.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873
N.E.2d 858, ¶ 55, fn. 3.
                                       Delores’s testimony
         {¶ 115} Before trial began, the trial court advised Jones’s wife, Delores,
that she did not have to testify against Jones because he was her husband. Delores
said that she wished to testify.8 But because Jones asserted spousal privilege, the

testify on behalf of the state. Curiously, the dissent claims the following order of witnesses:
Delores, Jeffries, Morrison. In fact, the order was exactly the opposite. The dissent’s
misstatement was presumably made for dramatic effect in order to make the claim that after
Delores’s testimony, “the jurors were left on the edges of their respective seats” awaiting
testimony from Detective Morrison and Jeffries about the content of Jones’s statements to
Delores. It is concerning that the misstatement was possibly made out of a lack of familiarity with
the record. Given the interests at stake in this case, either is irresponsible. As the dissent explains
in another context, “the order of events is critical.”

8. Evid.R. 601 provides, “Every person is competent to be a witness except: * * * (B) A spouse
testifying against the other spouse charged with a crime except when * * * (2) the testifying
spouse elects to testify.” Spousal competency is not an issue because Delores elected to testify.
Indeed, Jones does not challenge Delores’s testimony on the basis of spousal competency.




                                                  28
                                 January Term, 2012




trial court ruled that Delores would not be allowed to testify “as to anything
[Jones] told her relative to this matter.”
          {¶ 116} Consistent with that ruling, Delores testified during the state’s
case-in-chief that at around 4:00 p.m. on April 24, Jones was at home reading the
newspaper and watching the news on television. She testified that she and Jones
had a conversation about something that was on the news, but she did not testify
about what they discussed. “A little while later,” they walked to a store because
Jones wanted to get some cigarettes.
          {¶ 117} After returning home, Delores drove to the home of her friend,
Jeffries. Delores testified that she was “[h]ysterical, upset, and hyperventilating.”
Delores also testified that she arrived at Jeffries’s home and told Jeffries what her
husband had said.
          {¶ 118} Delores and Jeffries then called the police; Delores spoke to
someone at the detective bureau and stated that she “wanted to speak to somebody
in charge” about the dead woman found in the cemetery. Shortly thereafter,
Detective Morrison arrived at Jeffries’s home, and Delores told him what Jones
had said. Delores stated that when she talked to Morrison, she was still upset and
scared.
          {¶ 119} Delores was not asked—and did not testify—as to the
communication between her and Jones. Therefore, Delores’s testimony did not
violate Jones’s spousal privilege.
                         Jeffries’s and Morrison’s testimony
          {¶ 120} Jones contends that his spousal privilege was violated by the trial
court’s permitting Jeffries and Detective Morrison to testify that Delores had told
them that Jones had told her that he killed the woman found in the cemetery. We
reject this argument because spousal privilege is wholly inapplicable to the
testimony of a third party. See State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-
6179, 920 N.E.2d 104.



                                             29
                            SUPREME COURT OF OHIO




        {¶ 121} In Perez, police investigators recruited the defendant’s wife to
visit her husband in jail and “do some taped conversations.” Id. at ¶ 108. Perez’s
wife agreed to allow her conversations with Perez to be recorded. Id. Before
trial, Perez filed a motion to suppress the taped conversations on the ground that
their admission would violate the marital privilege. Perez argued that admitting
the taped conversation was equivalent to allowing his wife to testify to the content
of the conversation. Id. at ¶ 112. The trial court allowed the tapes to be played at
trial. Id. at ¶ 109.
        {¶ 122} We held that the admission of the taped conversations did not
violate R.C. 2945.42 because they were not introduced by way of the defendant’s
wife’s testimony. Id. at ¶ 120-122. We emphasized, “R.C. 2945.42 specifies that
a ‘[h]usband or wife shall not testify concerning a communication made by one to
the other * * *.’ (Emphasis added.) Thus, on its face, the statute does no more
than preclude a spouse from testifying to the other spouse’s statements.”
(Emphasis sic.) Id. at ¶ 113.
        {¶ 123} In so holding, we agreed with the Michigan Supreme Court’s
analysis in People v. Fisher, 442 Mich. 560, 503 N.W.2d 50 (1993). Perez at
¶ 114. In Fisher, the court held that Michigan’s spousal-privilege statute, which
provided that one spouse could not, without the other’s consent, “ ‘be examined
as to any communication made by one to the other during the marriage,’ ” did not
apply to preclude a sentencing court’s consideration of out-of-court hearsay
statements made by the defendant’s wife. Id. at 568, quoting Mich.Comp.Laws
600.2162.
        {¶ 124} Fisher had fatally stabbed the boyfriend of his estranged wife,
Mary. Id. at 563. At trial, Fisher claimed that he had accidentally stabbed the
victim when he (Fisher) came to Mary’s aid as her boyfriend was physically
abusing her. Id. at 564. The jury rejected Fisher’s version of the events and
convicted him of second-degree murder. Id. At sentencing, the court considered




                                        30
                               January Term, 2012




statements that were attributed to Mary and that were contained in the presentence
report. Id. at 565-566. The report reflected, among other things, that Mary told a
police officer that Fisher had admitted to her that he had stabbed the victim on
purpose. Id. at 566. In holding that Michigan’s spousal privilege did not apply,
Fisher concluded:


                 The statute provides that neither spouse may “be
       examined” with respect to any communication made by one to the
       other during the marriage. This phrase, “be examined,” connotes a
       narrow testimonial privilege only—a spouse’s privilege against
       being questioned as a sworn witness about the described
       communications. In other words, the spouse must testify for the
       privilege to apply. The introduction of the marital communication
       through other means is not precluded.


Fisher at 575.
       {¶ 125} In Perez, we agreed with and relied on Fisher’s analysis in
concluding that Ohio’s statutory spousal privilege did not apply to evidence
introduced through a third party:


       “In construing a statute, we may not add or delete words.” State v.
       Hughes (1999), 86 Ohio St.3d 424, 427, 715 N.E.2d 540. R.C.
       2945.42 states that a “[h]usband or wife shall not testify
       concerning a communication made by one to the other * * *.”
       Like the phrase ‘be examined’ in Michigan’s statute, the word
       “testify” in R.C. 2945.42 clearly precludes the spouse’s testimony.
       Just as clearly, it does not preclude “introduction of the marital
       communication through other means.”



                                       31
                              SUPREME COURT OF OHIO




Perez at ¶ 120, quoting Fisher, 442 Mich. at 575, 503 N.W.2d 50.
       {¶ 126} We noted that our decision was in accord with the fundamental
principle of construing privileges narrowly. Id. at ¶ 121 (“Privileges are to be
construed narrowly because they impede the search for truth and contravene the
principle that the public has a right to everyone’s evidence”); see also Trammel v.
United States, 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980).
       {¶ 127} And the Perez holding was also in accord with long-standing
precedent. In Hanley v. State, 5 Ohio C.D. 488, 12 Ohio C.C. 584, 1896 WL 558
(1896), a decision of one of our appellate courts that was published more than a
century ago, the defendant had been convicted of bigamy. At trial, the state
sought to introduce into evidence a letter that Hanley had written to his first wife,
which contained expressions that indicated that their marriage continued. Id. at
489. The letter was authenticated by the marshal of Sandusky, who testified that a
woman who claimed to be the defendant’s first wife had delivered it to him
voluntarily.   Id.   Hanley unsuccessfully moved to suppress the letter on the
ground that its admission would violate Ohio’s spousal-privilege statute. Id.
       {¶ 128} The appellate court affirmed the use of the letter, explaining that
the plain language of the statute “only provides that the husband or wife shall not
testify * * *. It does not prevent the introduction of [a spousal communication]
into evidence.” Id. at 491.
       {¶ 129} The court further explained that the spousal-privilege statute was
generally understood not to provide protection to spousal communications that
had been disclosed to a third party. Id. As the court wrote:


       [I]f either of these parties divulge these things by giving the
       written communication to another, or if that communication is
       disclosed by a robbery of the mails, or otherwise, and it gets into




                                         32
                                January Term, 2012




       the hands of a third person, and the issue be raised, it is clear that
       that third person may, if he be a witness in the case, offer that
       communication.


Id.
       {¶ 130} Resolution of Jones’s claim requires only a straightforward
application of Perez. Because the content of the conversation between Jones and
Delores was not introduced by way of Delores’s testimony, R.C. 2945.42 is
wholly inapplicable.
                       Admission of out-of-court statements
       {¶ 131} We now turn our attention to the rules that apply to the admission
of these out-of-court statements—the federal Confrontation Clause and our Rules
of Evidence. In doing so, we first more fully detail the relevant trial testimony.
                        Jeffries’s and Morrison’s testimony
       {¶ 132} Jeffries testified that Delores arrived at her home between 4:30
and 5:00 p.m. on April 24. Delores immediately ran upstairs to Jeffries. Delores
was “upset” and “screaming.” Jeffries noticed that Delores was wearing shoes
even though Delores knew that the rule was no shoes inside the house. Jeffries
and Delores then had the following exchange:


               A: I said: Delores, take your shoes off. And that’s when
       she begins to say: He did it, he did it.
               ***
               Q: And you said what now?
               A: He, who? And she said: My husband, Phil. And I
       said: Did what? And she said: Murdered the woman. And I said:
       What woman? And she said: The woman that they found in the
       cemetery.



                                         33
                                 SUPREME COURT OF OHIO




        {¶ 133} Jeffries testified that Delores then called the police. Delores was
“really upset” and kept dialing the wrong number. Morrison arrived at Jeffries’s
home “[p]robably ten minutes” after the phone call.
        {¶ 134} Morrison testified that he had been assigned to investigate Yates’s
murder and that another detective, Detective Urbank, had called him at home
around 5:00 p.m. on April 24 and said that a woman wanted to speak with the
detective working on the case of the dead woman found at the cemetery. Urbank
told Morrison that the woman was emphatic that she wanted to speak to someone
working that day.
        {¶ 135} Morrison drove to Jeffries’s home immediately after the call and
met Delores inside the house.9 Morrison described his meeting with Delores:


                 A: I couldn’t quite figure her out at first, she kept running
        back and forth, looking out the windows and pacing, making sure
        no one was coming.            She was hyperventilating and basically
        hysterical with me. And basically I said: Look, you called me.
        And that’s when I asked her: Do you have something you need to
        tell me? You called me out. And she said: My husband is the one
        that killed that girl in the cemetery.
                 Mr. O’Brien (defense counsel): Objection, hearsay.
                 The Court: Note the objection, overruled.
                 Q: And when she told you that, * * * what was your
        response?


9. Jeffries testified that when Detective Morrison arrived to interview Delores, Jeffries excused
herself because she did not want to hear the discussion between Delores and Detective Morrison.
Yet the dissent blames the majority for “ignoring the fact that Delores repeated the story to
Detective Morrison in Jeffries’s home in the presence of Jeffries.” (Emphasis added.) The “fact”
relied on by the dissent is, in fact, fiction.




                                               34
                               January Term, 2012




               A: I was as shocked as anybody. I actually had to ask her,
       tell her to calm down: Are you sure? How do you know this?
       And she said: Because he told me her name was Susan. Isn’t it
       Susan? Is it Susan?
               ***
               Q: Delores Jones tells you that her husband is the one that
       killed the woman in the cemetery, and that he told her * * * the
       woman’s name is Susan?
               A: Yes.
               Q: And you indicated previously that that information had
       not been released to the press, correct?
               A: That was only known to us.


       {¶ 136} Admission of an out-of-court statement must comport with both
constitutional dictates and evidentiary law. Crawford v. Washington, 541 U.S.
36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Because certain testimonial
statements are barred by the Confrontation Clause of the Sixth Amendment to the
United States Constitution irrespective of their admissibility under the Rules of
Evidence, we undertake the constitutional inquiry first. See id.
                                 Crawford inquiry
       {¶ 137} The Confrontation Clause of the Sixth Amendment to the United
States Constitution provides: “In all criminal prosecutions, the accused shall enjoy
the right * * * to be confronted with the witnesses against him.” Admission of an
out-of-court statement of a witness who does not appear at trial is prohibited by
the Confrontation Clause if the statement is testimonial unless the witness is
unavailable and the defendant had had a prior opportunity to cross-examine the
witness. Crawford at 54.




                                        35
                             SUPREME COURT OF OHIO




       {¶ 138} At the threshold, we hold that even though Delores testified at
trial, she was unavailable for purposes of the Confrontation Clause because Jones
had invoked the spousal privilege.
       {¶ 139} The facts of Crawford are substantially similar to those of this
case as to the unavailability of the witness. In Crawford, the defendant invoked
the marital privilege to keep his wife, Sylvia, from testifying against him at trial.
Id. at 40. During trial, the state played the wife’s tape-recorded statement to
police that described the offense he committed. Id. Noting that the wife had
admitted facilitating the offense, the state invoked the hearsay exception for
statements against penal interest. Id. Crawford countered that admitting this
evidence violated his Sixth Amendment rights. Id. During appeals in state court,
the state had argued that Crawford waived his right to confrontation when he
neglected to call his wife to testify. State v. Crawford, 147 Wash.2d. 424, 429, 54
P.3d 656 (2002). The Supreme Court of Washington rejected this argument and
held that the defendant did not waive his right to confrontation when he invoked
the marital privilege. It reasoned that “forcing the defendant to choose between
the marital privilege and confronting his spouse presents an untenable Hobson’s
choice.” Id. at 432.
       {¶ 140} The Supreme Court expressly did not reach the waiver argument
because the state did not challenge that portion of the decision. Crawford, 541
U.S. at 42, 124 S.Ct. 1354, 158 L.Ed.2d 177, fn. 1. Nevertheless, it did conclude
that “[i]n this case, the State admitted Sylvia’s testimonial statement against
petitioner, despite the fact that he had no opportunity to cross-examine her. That
alone is sufficient to make out a violation of the Sixth Amendment.” (Emphasis
added.) Id. at 68.
       {¶ 141} Similarly here, the state does not argue that Jones waived his
Sixth Amendment right to confront Delores by invoking the spousal privilege.
See State v. Keairns, 9 Ohio St.3d 228, 460 N.E.2d 245 (1984), paragraph one of




                                         36
                                     January Term, 2012




the syllabus (Confrontation Clause requires the prosecution, as the proponent of
the evidence, to show unavailability of a witness). Nor does the state argue that
Jones had (but failed to pursue) the opportunity to cross-examine Delores while
she was on the stand.
        {¶ 142} Consistent with Crawford, we hold that Delores was unavailable
as a witness because Jones invoked the spousal privilege and that he had had no
prior opportunity to cross-examine her.10 In doing so, we, as in Crawford, need
not reach the waiver issue because it has not been asserted by the state.
        {¶ 143} Thus, the admission of Delores’s statements pass constitutional
muster only if they are nontestimonial for purposes of the Confrontation Clause.
Accordingly, we must now determine whether Delores’s statements to Morrison
and Jeffries were testimonial. Doing so involves different inquiries for Morrison
and Jeffries, because Morrison was a responding police officer.
                                   Statements to Morrison
        {¶ 144} In Crawford, the court explained that whatever else the term
“testimonial evidence” covers, “at a minimum, it applies to * * * prior testimony
at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177.
Since then, the court has expended considerable effort expounding on the
meaning of “testimonial” in the context of police interrogation.
        {¶ 145} Two years after its decision in Crawford, the court revisited the
issue in the consolidated cases of Davis v. Washington and Hammon v. Indiana,
547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In these cases, the court
distinguished between police interrogations that concern an ongoing emergency


10. This finding does not conflict with our holding in State v. Perez, 124 Ohio St.3d 122, 2009-
Ohio-6179, 920 N.E.2d 104. In Perez, the defendant claimed that he was denied his right to
confrontation because tape-recorded conversations between him and his wife were played during a
police officer’s testimony rather than during his wife’s testimony. Id. at ¶ 126. In rejecting that
claim, we did not address the issue of his wife’s unavailability because of spousal privilege.




                                                37
                              SUPREME COURT OF OHIO




and those that relate to past criminal conduct.       In considering whether the
statements made in the context of these two different scenarios were testimonial,
the court formulated the primary-purpose test:


               Statements 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. 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.


Id. at 822.
        {¶ 146} Davis involved statements that a domestic-violence victim made
to a 9-1-1 operator identifying her assailant and describing his whereabouts
immediately after an assault.      Id. at 817-819.   Applying the test, the court
determined that “the circumstances of [the 9-1-1] interrogation objectively
indicate its primary purpose was to enable police assistance to meet an ongoing
emergency.” Id. at 828. The court reasoned that “the nature of what was asked
and answered [during the 9-1-1 call], again viewed objectively, was such that the
elicited statements were necessary to be able to resolve the present emergency,
rather than simply to learn (as in Crawford) what had happened in the past.”
(Emphasis sic.) Id. at 827. In addition, the call “was plainly a call for help
against bona fide physical threat” and involved “frantic answers” given “in an
environment that was not tranquil, or even (as far as any reasonable 911 operator
could make out) safe.” Id. Accordingly, the court held that these statements were
nontestimonial. Id. at 828.




                                         38
                               January Term, 2012




       {¶ 147} Hammon involved a victim’s statements to police officers
responding to a domestic-violence complaint after they had secured the scene. Id.
at 819-820. The court held that these statements were testimonial and were barred
by the Sixth Amendment. Id. at 829-832. The court stated that there was “no
immediate threat” to the victim and “no emergency in progress,” because the
police had separated the abusive husband from the wife. Id. at 829-830. The
court reasoned that when the officer questioned the victim, he was “not seeking to
determine (as in Davis) ‘what is happening’ but rather ‘what happened.’ ” Id. at
830. The court concluded that “[o]bjectively viewed, the primary, if not indeed
the sole, purpose of the interrogation was to investigate a possible crime * * * .”
Id.
       {¶ 148} In Michigan v. Bryant, __U.S.__, 131 S.Ct. 1143, 1156, 179
L.Ed.2d 93 (2011), the court provided further explanation of the “ongoing
emergency” discussed in Davis.       In Bryant, police officers responding to a
shooting call found the victim, Anthony Covington, lying on the ground with a
gunshot wound.     Id. at 1150.   Police officers asked Covington “ ‘what had
happened, who had shot him, and where the shooting had occurred.’ ” Id.,
quoting People v. Bryant, 483 Mich. 132, 143, 768 N.W.2d 65 (2009). Replying
that “Rick” (the defendant) had shot him, Covington told the police that he had
gone to Rick’s house and had a conversation with him through the back door. Id.
Covington explained that when he turned to leave, he was shot through the door
and then drove to the gas station where the police found him. Id. Covington died
within hours. Id. At trial, police officers who spoke with Covington testified
about what Covington had told them. Id. The perpetrator was at large.
       {¶ 149} The United States Supreme Court held that Covington’s
identification and descriptions of Bryant and the location of the shooting were
nontestimonial statements because the primary purpose of the statements was to
enable police to meet an ongoing emergency. Bryant at 1166-1167. In reaching



                                        39
                             SUPREME COURT OF OHIO




its decision, the court provided further clarification of the “ongoing emergency”
circumstance that occurs in the context of a nondomestic dispute that “extends
beyond an initial victim to a potential threat to the responding police and the
public at large.” Id. at 1156.
       {¶ 150} Bryant emphasized that in assessing whether a statement is
testimonial in such a case, the ultimate inquiry focuses on whether the primary
purpose of the interrogation is to meet an ongoing emergency or to establish past
events for later criminal prosecution. Id. at 1156-1157. In such an inquiry, a
court must “objectively evaluate the circumstances in which the encounter
occur[red] and the statements and actions of the parties.” Id. at 1156. The focus
is not on the subjective or actual purpose or intent of the interrogator or the
declarant, but on “the purpose that reasonable participants would have had” under
the same circumstance. Id. The court cautioned that the focus must be on the
perspective of the parties at the time of the interrogation, and not based on
hindsight, for “[i]f the information the parties knew at the time of the encounter
would lead a reasonable person to believe that there was an emergency, even if
that belief was later proved incorrect, that is sufficient for purposes of the
Confrontation Clause.” Id. at 1157, fn. 8.
       {¶ 151} The court also emphasized that “whether an emergency exists and
is ongoing is a highly context-dependent inquiry.” Bryant, ___ U.S. ___, 131
S.Ct. at 1158, 179 L.Ed.2d 93. The court noted that “[d]omestic violence cases
like Davis and Hammon often have a narrower zone of potential victims than
cases involving threats to public safety.” Id. The court explained that “[a]n
assessment of whether an emergency that threatens the police and public is
ongoing cannot narrowly focus on whether the threat solely to the first victim has
been neutralized because the threat to the first responders and public may
continue.” Id. The court also stated that “the duration and scope of an emergency
may depend in part on the type of weapon employed.” Id. In Bryant, the victim




                                        40
                                January Term, 2012




had been mortally wounded, the weapon was a gun, and the police had not known
the identity of the shooter. Under these circumstances, the shooter continued to
pose a threat to Covington and possibly others because he was still on the loose.
Id. at 1166.
       {¶ 152} The court also noted, as it had in Davis, that “ ‘a conversation
which begins as an interrogation to determine the need for emergency assistance’
” can “ ‘evolve into testimonial statements.’ ” Id. at 1159, quoting Davis, 547
U.S. at 828, 126 S.Ct. 2266, 165 L.Ed.2d 224. The court explained:


               This evolution may occur if, for example, a declarant
       provides police with information that makes clear that what
       appeared to be an emergency is not or is no longer an emergency
       or that what appeared to be a public threat is actually a private
       dispute. It could also occur if a perpetrator is disarmed, surrenders,
       is apprehended, or, as in Davis, flees with little prospect of posing
       a threat to the public.       Trial courts can determine in the first
       instance when any transition from nontestimonial to testimonial
       occurs, and exclude “the portions of any statement that have
       become testimonial * * *.”


Id. at 1159, quoting Davis at 829.
       {¶ 153} The court stressed that “whether an ongoing emergency exists is
simply one factor—albeit an important factor—that informs the ultimate inquiry
regarding the ‘primary purpose’ of an interrogation.” Id. at 1160.
       {¶ 154} Another factor involves the informality of the encounter, because
“formality suggests the absence of an emergency and therefore an increased
likelihood that the purpose of the interrogation is to ‘establish or prove past events
potentially relevant to later criminal prosecution.’ ” Id., quoting Davis at 822. In



                                           41
                            SUPREME COURT OF OHIO




Bryant, the police encountered a “fluid and somewhat confused” situation. Id. at
1166. Their questioning lacked formality because it “occurred in an exposed,
public area, prior to the arrival of emergency medical services, and in a
disorganized fashion.” Id. at 1160.
        {¶ 155} The court also stated that “the statements and actions of both the
declarant and interrogators provide objective evidence of the primary purpose of
the interrogation.” Id. The court stated, “Davis requires a combined inquiry that
accounts for both the declarant and the interrogator. In many instances, the
primary purpose of the interrogation will be most accurately ascertained by
looking to the contents of both the questions and the answers.” Id. at 1160-1161.
Additionally, the court stated, “Objectively ascertaining the primary purpose of
the interrogation by examining the statements and actions of all participants is
* * * the approach most consistent with our past holdings.” Id. at 1162.
        {¶ 156} Viewed objectively, the totality of circumstances surrounding
Delores’s statements to Morrison demonstrate that the “primary purpose” of
Morrison’s questioning was to obtain information about Yates’s murder. We
recognize that some of the facts tend to demonstrate that initially Jones appeared
to pose a continuing threat to Delores and maybe others. When Morrison arrived
at Jeffries’s home, he was unsure of what he was going to encounter. He found
Delores, who was “hysterical” and afraid and who “kept running back and forth,
looking out the windows and pacing, making sure no one was coming.”
Moreover, this encounter occurred at Jeffries’s home, an informal setting, and not
the police station.
        {¶ 157} On the other hand, Morrison was not dispatched to an active
crime scene, unlike in Bryant and Davis. He went to Jeffries’s home because he
was told that a person had information about Yates’s death. Her body had been
found the previous day at a different location. No gun was involved in Yates’s
killing. Thus, although the police were still trying to identify and apprehend an




                                        42
                                January Term, 2012




at-large perpetrator, Morrison’s arrival at Jeffries’s home and his contact with
Delores did not occur in the midst of an ongoing emergency as in Davis and
Bryant. And they were not faced with the same type of ongoing threat as in
Bryant. Moreover, Morrison’s arrival at Jeffries’s home greatly reduced any
immediate threat to Delores.
       {¶ 158} From Delores’s perspective, she called police to report that her
husband had confessed to killing the woman found in the cemetery. She insisted
on speaking with “someone in charge.” And although Delores was nervous and
afraid, there is no indication that Jones had threatened her in any way.
       {¶ 159} For all of these reasons, we conclude that Delores’s statements to
Morrison were testimonial, and their admission into evidence violated the
Confrontation Clause.
                               Statements to Jeffries
       {¶ 160} Delores’s    statements    to   Jeffries   do   not     involve   police
interrogation. Therefore, in order to resolve the Confrontation Clause question,
we look to State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834,
paragraph one of the syllabus, which sets forth the applicable test.
       {¶ 161} In Stahl, we adopted the “objective-witness test” for out-of-court
statements made to a person who is not law enforcement. We explained that such
a statement is testimonial for Confrontation Clause purposes if the witness would
have reasonably believed that her statement would be available for use at a later
trial. Id. The focus is on “the expectation of the declarant at the time of making
the statement; the intent of a questioner is relevant only if it could affect a
reasonable declarant’s expectations.” Id. at paragraph two of the syllabus.
       {¶ 162} Delores’s statements were made to a friend after Delores arrived
at her home. Delores was crying and hysterical when she told Jeffries that her
husband had told her that he killed the woman found in the cemetery.                An
objective witness would not reasonably believe that Delores’s statements to her



                                         43
                              SUPREME COURT OF OHIO




friend while in an emotional state, repeating what her husband had told her, would
be available for later use at trial. Indeed, Delores did not call the police until after
she told Jeffries what Jones had told her.
       {¶ 163} Ohio courts of appeals have reached the same conclusion in
similar situations. See State v. Zadar, 8th Dist. No. 94698, 2011-Ohio-1060, ¶ 38
(statements to a friend and a therapist not testimonial under “objective witness”
test); State v. Peeples, 7th Dist. No. 07 MA 212, 2009-Ohio-1198, ¶ 31 (statement
to a friend not testimonial because objective witness would not reasonably believe
that the statement would later be used at trial).
       {¶ 164} For all of these reasons, we conclude that Delores’s statements to
Jeffries were not testimonial, and their admission into evidence did not violate the
Confrontation Clause.
                         Admissibility under Evid.R. 803(2)
       {¶ 165} Having determined that Delores’s statement to Jeffries was not
testimonial and therefore was not barred by the Confrontation Clause, we must
also now decide whether the statement was admissible under our rules of
evidence.
       {¶ 166} An excited utterance is “[a] statement 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).     A four-part test is applied to
determine the admissibility of statements as an excited utterance:


               (a) that there was some occurrence startling enough to
       produce a nervous excitement in the declarant, which was
       sufficient to still his reflective faculties and thereby make his
       statements and declarations the unreflective and sincere expression
       of his actual impressions and beliefs, and thus render his statement
       of declaration spontaneous and unreflective,




                                          44
                                   January Term, 2012




                  (b) that the statement or declaration, even if not strictly
       contemporaneous with its exciting cause, was made before there
       had been time for such nervous excitement to lose a domination
       over his reflective faculties so that such domination continued to
       remain sufficient to make his statements and declarations the
       unreflective and sincere expression of his actual impressions and
       beliefs,
                  (c) that the statement or declaration related to such startling
       occurrence or the circumstances of such starling occurrence, and
                  (d) that the declarant had an opportunity to observe
       personally the matters asserted in his statement or declaration.


(Emphasis sic.) Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955),
paragraph two of the syllabus, followed and approved in State v. Taylor, 66 Ohio
St.3d 295, 301, 612 N.E.2d 316 (1993), fn. 2.
       {¶ 167} First, Jones’s confession to Delores that he killed a woman was
startling enough to produce sufficient nervous excitement to prompt Delores to
make the excited utterance to Jeffries.          See State v. Bealer, 12th Dist. No.
CA2002-3-056, 2003-Ohio-2114, ¶ 24 (defendant’s confession and description of
a murder was a startling event).
       {¶ 168} Second, Delores’s statements to Jeffries were made while she was
still under the stress of the startling occurrence, even though they were not
contemporaneous with Jones’s confession.


                  There is no per se amount of time after which a statement
       can no longer be considered to be an excited utterance. The central
       requirements are that the statement must be made while the




                                            45
                             SUPREME COURT OF OHIO




       declarant is still under the stress of the event and the statement may
       not be a result of reflective thought.
               Therefore the passage of time between the statement and
       the event is relevant but not dispositive of the question. “[E]ach
       case must be decided on its own circumstances, since it is patently
       futile to attempt to formulate an inelastic rule delimiting the time
       limits within which an oral utterance must be made in order that it
       be termed a spontaneous exclamation.”


(Emphasis sic.) Taylor at 303, quoting State v. Duncan, 53 Ohio St.2d 215, 219-
220, 373 N.E.2d 1234 (1978).
       {¶ 169} Less than an hour had elapsed between Jones’s confession and
Delores’s utterance to Jeffries. Delores went on a short walk with Jones and then
drove alone to Jeffries’s home during that time. Jeffries testified that Delores was
highly upset and screaming when she entered Jeffries’s home.           Delores ran
upstairs and blurted out that Jones had killed the woman found in the cemetery.
Thus, Delores was under the influence of the startling occurrence when she made
her excited utterance to Jeffries. See State v. Wallace, 37 Ohio St.3d 87, 90-91,
524 N.E.2d 466 (1988) (affirming admission of statements as excited utterances
even though there was a 15-hour interval between the startling occurrence and the
utterance and even though the declarant was unconscious for part of that time);
State v. Baker, 137 Ohio App.3d 628, 649, 739 N.E.2d 819 (12th Dist.2000)
(admitting testimony notwithstanding a several-hour interval between startling
occurrence and utterance).
       {¶ 170} Jones argues that Delores’s statements were not made under the
stress of the startling event because Delores responded to Jeffries’s questions.
However, we have held:




                                         46
                                 January Term, 2012




       [T]he admission of a declaration as an excited utterance is not
       precluded by questioning which:          (1) is neither coercive nor
       leading, (2) facilitates the declarant’s expression of what is already
       the natural focus of the declarant’s thoughts, and (3) does not
       destroy the domination of the nervous excitement over the
       declarant’s reflective faculties.


Wallace, paragraph two of the syllabus.
       {¶ 171} Delores told Jeffries, “He did it, he did it” before Jeffries asked
any questions.     Jeffries questioned Delores immediately thereafter.          This
questioning prompted Delores to reveal that she had been speaking about her
husband and the dead woman found in the cemetery. Jeffries’s questions to
Delores were clarifying, not leading. And they helped Delores express the focus
of her thoughts. Finally, Delores responded to these questions while she was
“hysterical” and highly excited. Accordingly, Delores’s statements did not lose
their character as “excited utterances” just because she was, in part, answering
questions.
       {¶ 172} Finally, the statements meet the third and fourth requirements of
the Potter test. Because these requirements are factually inextricably intertwined,
we will address them together.
       {¶ 173} Delores’s statements related directly to the startling event, i.e.,
what Jones had told her, and Delores was with Jones when he admitted killing the
woman who was found at the cemetery. The rationale behind Potter’s fourth
requirement is to ensure the reliability of a declarant’s excited utterance. Id., 162
Ohio St. at 496-498, 124 N.E.2d 140. Delores’s presence at Jones’s confession
provided the necessary reliability for her statements.
       {¶ 174} Jones cites State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659,
780 N.E.2d 221, ¶ 44, and argues that Delores did not have an opportunity to



                                           47
                             SUPREME COURT OF OHIO




“personally observe the matters asserted in her statement or declaration,” as
required by the fourth prong of the Potter test, because Delores did not witness
Jones kill Yates or see the body in the cemetery.
       {¶ 175} But the startling event was Jones’s confession and not the murder
itself. For that reason, Jones’s reliance on Smith is inapposite. Smith held that the
declarant’s statement “he killed my baby” did not meet Potter’s fourth
requirement because the declarant did not witness her baby’s death. Id. at ¶ 43-
44. The facts also showed that the declarant’s boyfriend, the defendant, did not
tell the declarant that he had killed the baby. Id. at ¶ 4-5. Thus, Smith is
distinguishable because Jones, unlike Smith, told Delores that he had killed Yates,
and Delores’s out-of-court statement related to that confession.
       {¶ 176} For all these reasons, we conclude that Delores’s statements to
Jeffries qualified as excited utterances under Evid.R. 803(2) and were therefore
properly admitted into evidence. But because Delores’s statements to Morrison
were testimonial under Crawford and were improperly admitted into evidence, we
must determine whether the error was reversible or harmless.
                    Harmless error beyond a reasonable doubt
       {¶ 177} We hold that the erroneous admission of Morrison’s testimony
relaying Delores’s out-of-court statements was harmless beyond a reasonable
doubt in view of the remaining evidence establishing Jones’s guilt.              “A
constitutional error can be held harmless if we determine that it was harmless
beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-
791, 842 N.E.2d 996, ¶ 78, citing Chapman v. California, 386 U.S. 18, 24, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967).
       {¶ 178} Properly admitted evidence establishing Jones’s guilt beyond a
reasonable doubt includes expert testimony that Jones’s DNA was found on
vaginal swabs obtained from the victim and a stain found on the inside of Yates’s
skirt. The police also recovered a cross from Jones’s home that was similar to the




                                         48
                                   January Term, 2012




cross found over Yates’s eye. Delores’s excited utterance to Jeffries provided
further evidence linking Jones to Yates’s murder.
        {¶ 179} Moreover, Jones admitted that he killed Yates when he testified
on his own behalf. He claimed that her death was an accident that occurred while
they were having “rough” sex. However, Dr. Sterbenz testified that Yates had
been strangled for an extended period of time. He found extensive bruising on
Yates’s neck and face during the autopsy.             Dr. Sterbenz also found vaginal
injuries that may have been caused by “a fist * * * or very large rigid foreign
object.” A twig was also found inside the victim’s rectum about four to six inches
from the anal opening. Finally, T.J. testified that Jones had threatened, choked,
and raped her under similar circumstances in 1990.
        {¶ 180} Based on the foregoing, we overrule proposition II.
        {¶ 181} Evidence obtained from Jones’s wife. In proposition of law III,
Jones argues that the admission of a plastic cross that his wife turned over to the
police violated his spousal privilege.
        {¶ 182} Delores told the police that she had found a plastic cross in her
jewelry box that was similar to the one that the police recovered from Yates’s eye.
Thereafter, Delores gave her cross to the police. During the trial, the prosecutor
asked Delores, “And do you recall where that cross came from? The one in your
jewelry box, do you know where it came from?” Delores replied, “Phillip had
gave it to me” and that Jones had given it to her in June 2006. Jones did not
object to Delores’s testimony on this subject; nor did he seek its suppression.
        {¶ 183} Now, Jones argues that both Delores’s testimony that Jones gave
her the cross and the admission of the cross itself violated R.C. 2945.42, which
prohibits spousal testimony about any “act done by either [spouse] in the presence
of the other.” Jones’s failure to object waived any privilege.11 See Savage, 30

11. In any event, the admission of the testimony and the cross did not violate Jones’s spousal
privilege because Jones and Delores were not married when Jones gave Delores the cross. Jones




                                             49
                                SUPREME COURT OF OHIO




Ohio St.3d at 3, 506 N.E.2d 196; Ruch v. State, 111 Ohio St. 580, 588, 146 N.E.
67 (1924). Based on the foregoing, proposition III is overruled.
        {¶ 184} “Other acts” testimony. In proposition of law IV, Jones argues
that the trial court erred in admitting evidence that Jones had attacked and raped
T.J. in 1990.
        {¶ 185} “Evidence of other crimes, wrongs, or acts is not admissible to
prove” a defendant’s character as to criminal propensity. Evid.R. 404(B). “It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” Id. “The admission or exclusion of relevant evidence rests within
the sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510
N.E.2d 343 (1987), paragraph two of the syllabus.
        {¶ 186} T.J.’s testimony was admissible to prove lack of mistake or
accident. Jones told police after he was arrested, “[A]ll I’m going to say about
this is that it was an accident.” Thus, T.J.’s testimony was material because Jones
claimed that he had accidentally killed Yates, and the testimony was therefore
properly offered by the state in its case-in-chief to prove absence of accident.
        {¶ 187} Jones argues that T.J.’s testimony was improperly admitted to
prove identity because he “admitted to being there,” and therefore, “[i]dentity was
not a material issue in this case.” Because absence of mistake provided an
independent basis for the admission of the testimony in the state’s case-in-chief,
we need not address whether T.J.’s testimony could also be admitted during the
state’s case-in-chief to prove identity. But we do hold that, at the very least,


gave Delores the cross in June 2006, but they were not married until November 13, 2006. R.C.
2945.42 applies only to a spousal “communication made by one to the other, or act done by either
in the presence of the other, during coverture.” (Emphasis added.) Coverture has been defined as
“the condition or state of a married person, whether man or woman.” Bentleyville v. Pisani, 100
Ohio App.3d 515, 517, 654 N.E.2d 394 (8th Dist.1995). Thus, R.C. 2945.42 does not cover
communications made or acts performed prior to marriage. See Bolen v. Humes, 94 Ohio App. 1,
6, 114 N.E.2d 281 (5th Dist.1951); 1 Gianelli, Evidence, Section 501.23, at 406 (3d Ed.2010).




                                              50
                                January Term, 2012




Jones’s testimony raised identity to justify the jury’s ultimate consideration of
T.J.’s testimony as to both identity and absence of accident.
       {¶ 188} Jones testified that when he picked up Yates, “[s]he was kind of
battered from the fight because [another man] was kind of dwelling on her.”
Accordingly, he claimed that he did not cause the injuries to Yates’s face and
neck. And Jones testified that “some other guy” was also likely responsible for
Yates’s anal and rectal injuries. The presence of these injuries was central to the
state’s case and Jones’s denying having caused them directly implicated identity.
       {¶ 189} Several common features link Yates’s murder and rape and T.J.’s
rape. Jones drove both women, whom he barely knew, to an isolated location.
He then beat, choked, and vaginally raped them. Jones attempted to anally rape
T.J.. Similarly, Jones anally raped Yates; a twig was found inside her rectum, and
significant bruising was found on the outer surfaces of her anus and rectum.
Although there are some factual differences, the evidence of the first rape tends to
show the identity of the perpetrator of the second rape. Thus, evidence of Jones’s
rape of T.J. meets the requirements for admissibility to show proof of identity.
See State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 44
(defendant’s prior rape admissible to show proof of identity where “[s]everal
common features” linked that rape to charged offenses of rape and murder).
       {¶ 190} T.J.’s testimony also helped to establish Jones’s motive for
murdering Yates to escape detection or apprehension. See Craig at ¶ 45. After
being raped and released, T.J. immediately notified police that Jones had raped
her; he was convicted and was then incarcerated for 14 years. See id. T.J.’s
testimony supports the state’s argument that Jones killed Yates so that she could
not notify the police that he had raped her.
       {¶ 191} Jones contends that T.J.’s testimony should not have been
admitted because the 1990 rape and the 2007 rape-homicide were too removed in




                                         51
                             SUPREME COURT OF OHIO




time. In considering whether “other acts” evidence is too remote from the offense
charged, we have stated:


       [A]lthough “other acts evidence aimed at showing an idiosyncratic
       pattern of conduct should not be so remote from the offense
       charged as to render them non-probative, logic does not require
       that they necessarily be near the offense at issue in both place and
       time. * * * The key to the probative value of such conduct lies in
       its peculiar character rather than its proximity to the event at
       issue.”


Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, at ¶ 46, quoting
State v. DePina, 21 Ohio App.3d 91, 92, 486 N.E.2d 1155 (9th Dist.1984).
       {¶ 192} The 17-year separation of time, while significant, does not
preclude the admissibility of T.J.’s testimony. The two events present similar fact
patterns with similar and unique features that tend to identify Jones as the person
who raped and murdered Yates. The length of time between the offenses is also
less significant because Jones had been in prison for 14 of the 17 years.
Accordingly, this argument is rejected.
       {¶ 193} Finally, Jones argues that T.J. should not have been allowed to
testify, because her testimony ran a high risk of unfairly prejudicing the jury
against him. But the trial court provided the jury with the following limiting
instruction:


                 Evidence was received about the commission of other acts
       alleged to have been committed by the defendant in 1990 involving
       T.J. That evidence was received only for a limited purpose. It was
       not received, and you may not consider it, to prove the character of




                                          52
                                January Term, 2012




       the defendant in order to show that he acted in conformity with that
       character. If you find that the evidence of other acts is true and the
       defendant committed them, you may consider that evidence only
       for the purpose of deciding whether it proves:               One, the
       defendant’s absence of mistake or accident, motive, intent or
       purpose, opportunity, preparation or plan to commit the offenses
       charged in this trial; or, two, the identity of the person who
       committed the offenses in this trial through his scheme, plan or
       system.
               This evidence cannot be considered for any other purpose.


       {¶ 194} “A presumption exists that the jury has followed the instructions
given to it by the trial court.” State v. Murphy, 65 Ohio St.3d 554, 584, 605
N.E.2d 884 (1992). These instructions minimized the likelihood of any undue
prejudice regarding the jury’s consideration of T.J.’s testimony. In view of these
instructions and the probative value of T.J.’s testimony, we conclude that the trial
court did not abuse its discretion in admitting T.J.’s testimony.
       {¶ 195} Based on the foregoing, proposition IV is overruled.
                               Penalty-phase issues
       {¶ 196} Prosecutorial misconduct. In proposition of law V, Jones argues
that the prosecutor committed misconduct by improperly cross-examining Joseph
Dubina, a defense witness, during the penalty phase.
       {¶ 197} Dubina, the regional administrator of the Akron Regional Adult
Parole Authority, testified that Senate Bill 2 was passed in 1996 and enacted
“truth in sentencing.” He testified that a person sentenced to life in prison without
the possibility of parole will remain in prison until he dies. Thus, he testified, if
Jones receives a sentence of life without parole, he will never get out of prison.
Trial counsel also asked Dubina the following questions:



                                         53
                            SUPREME COURT OF OHIO




              Q (defense counsel): From time to time, we have heard the
       word commutation of sentence, or that sort of thing. You have
       been with the parole board twenty-six years; is that correct?
              A: Parole authority, yes.
              Q: And up until—as far as you know, officially, in the last
       15 years, has any governor pardoned anybody or let them off death
       row?
              A: No, none that I’m aware of in the last 15 years.


       {¶ 198} During cross-examination, the prosecutor asked Dubina about the
commutation of sentences:


              Q: Okay. Attorney O’Brien asked you about a sentence,
       sentences being commuted. Tell the jury what that mean[s]?
              A: The governor has the authority to commute or pardon
       sentences that were set forth in court.     And so they have the
       authority to do that. And also, if there is a law, change sometime
       between their sentence, when it is set and when it is finished * * *
       can change it as well.
              Q: So if somebody is sentenced to death row, they are
       placed on death row, the governor could commute that sentence,
       correct?
              A: Yes.


       {¶ 199} Over defense objection, the prosecutor asked Dubina about
another death-row inmate:




                                          54
                                 January Term, 2012




                 Q: Are you aware of a defendant named Spirko, I believe
          out of Cuyahoga County who had been on death row and his
          sentence just today was commuted, just in the paper today,
          commuted by the governor?
                 A: I have not officially heard or seen that. I know there
          was hot media attention and a lot of issues there, but I have not—
                 Q: That wouldn’t surprise you that happened today?
                 A: No. He has the authority to do that.


          {¶ 200} The test for prosecutorial misconduct is whether the remarks were
improper, and if so, whether they prejudicially affected the accused’s substantial
rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The
touchstone of the analysis “is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78
(1982).
          {¶ 201} Jones argues that the prosecutor’s questions about Spirko’s
commutation were irrelevant and improper. Evid.R. 611(B) provides, “Cross-
examination shall be permitted on all relevant matters and matters affecting
credibility.” Moreover, “[t]he limitation of * * * cross-examination lies within
the sound discretion of the trial court, viewed in relation to the particular facts of
the case. Such exercise of discretion will not be disturbed in the absence of a
clear showing of an abuse of discretion.” State v. Acre, 6 Ohio St.3d 140, 145,
451 N.E.2d 802 (1983).
          {¶ 202} The prosecutor committed no misconduct in asking about the
Spirko commutation, because the defense opened the door to this line of cross-
examination when Dubina testified that the governor has not pardoned anyone on
death row in the last 15 years. See State v. Davis, 116 Ohio St.3d 404, 2008-
Ohio-2, 880 N.E.2d 31, ¶ 318.         Nevertheless, Jones claims that such cross-



                                          55
                             SUPREME COURT OF OHIO




examination effectively eliminated any sentencing option other than death from
the jury’s consideration, because the jurors were left with the impression that his
sentence could be commuted at some point in time. We reject this argument
because it is wholly speculative, at best. Proposition V is overruled.
       {¶ 203} In proposition of law VII, Jones argues that the prosecutor
committed misconduct during its penalty-phase opening statement in stating:


               What has been determined in the state of Ohio, as in some
       other states throughout the country, is that a citizen should not
       have to worry about walking down the street and being raped and
       murdered, and in this case, I would say specifically Susan Yates.
       That is why this case has such significance, because it was in
       connection, this aggravated murder was in connection with this
       rape.


       {¶ 204} Jones argues that the prosecutor’s remarks improperly appealed to
the fears and passions of the jury by telling them that the death penalty was
appropriate because citizens should be free to walk the streets and not worry
about being raped and murdered. But Jones failed to object to these remarks and
thus waived all but plain error. See State v. Wade, 53 Ohio St.2d 182, 373 N.E.2d
1244 (1978), paragraph one of the syllabus. No plain error occurred.
       {¶ 205} “During opening statements, counsel is accorded latitude and
allowed ‘fair comment’ on the facts to be presented at trial.” State v. Diar, 120
Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 145, quoting State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 157. The
prosecutor’s comments portrayed what happened to Yates on the day she was
raped and murdered. The prosecutor’s remarks were not overly emotional and
represented fair comment. Moreover, the trial court instructed the jury that “[t]he




                                         56
                               January Term, 2012




opening statements * * * of counsel are designed to assist you. They are not
evidence.” It is presumed that the jury followed the instructions of the judge.
Diar at ¶ 145.
       {¶ 206} Based on the foregoing, we reject proposition VII.
       {¶ 207} Proportionality review. In proposition of law IX, Jones argues
that Ohio’s proportionality review is unconstitutional.      He contends that a
meaningful proportionality review must include cases resulting in life
imprisonment after a capital-sentencing hearing, as well as those resulting in the
imposition of the death penalty. However, we have consistently held that the
proportionality review required by R.C. 2929.05(A) is satisfied by a review of
cases in which the death penalty has been imposed. See State v. Scott, 101 Ohio
St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, ¶ 51; State v. LaMar, 95 Ohio St.3d
181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 23; State v. Steffen, 31 Ohio St.3d 111,
509 N.E.2d 383 (1987), paragraph one of the syllabus.          Proposition IX is
overruled.
       {¶ 208} Constitutionality. In proposition of law X, Jones challenges the
constitutionality of Ohio’s death-penalty statutes. These claims can be summarily
rejected. See State v. Carter, 89 Ohio St.3d 593, 607, 734 N.E.2d 345 (2000);
State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), paragraph one of the
syllabus.
       {¶ 209} In addition, Jones claims that Ohio’s death-penalty statutes violate
international law and treaties to which the United States is a party.       These
arguments lack merit. See State v. Issa, 93 Ohio St.3d 49, 69, 752 N.E.2d 904
(2001); State v. Phillips, 74 Ohio St.3d 72, 103-104, 656 N.E.2d 643 (1995).
       {¶ 210} Jones also challenges the constitutionality of lethal injection. We
have previously rejected similar claims. See State v. Adams, 103 Ohio St.3d 508,
2004-Ohio-5845, 817 N.E.2d 29, ¶ 131; Carter at 608.




                                        57
                            SUPREME COURT OF OHIO




       {¶ 211} Appropriateness of death sentence. In proposition of law VIII,
Jones argues that the death penalty is not appropriate, because of the compelling
mitigating evidence presented in his behalf. We reject this argument for the
reasons we explain during our independent sentence evaluation.
                INDEPENDENT SENTENCE EVALUATION
       {¶ 212} Having considered Jones’s propositions of law, we must now
independently review      Jones’s   death    sentence   for   appropriateness   and
proportionality as R.C. 2929.05(A) requires.
       {¶ 213} Aggravating circumstance.        The evidence at trial established
beyond a reasonable doubt that Jones murdered Susan Yates while committing or
attempting to commit rape, R.C. 2929.04(A)(7).
       {¶ 214} The dissent argues that there is residual doubt that Jones murdered
Yates while committing rape.
       {¶ 215} During his testimony, Jones claimed that he did not intentionally
murder Yates and, in so claiming, spun a tale of consensual sex gone awry.
Initially, the dissent asserts that Yates’s death was, as Jones claimed, “possibly
accidental.” Dissenting opinion at ¶ 270. Eventually though, it concedes that “the
jury could easily conclude, beyond a reasonable doubt, that Phillip Jones
murdered Susan Yates * * *.” Dissenting opinion at ¶ 283. In its final analysis,
the dissent is unequivocal: “There was no accident.” Dissenting opinion at ¶ 283.
       {¶ 216} But the dissent takes the bait on Jones’s claim of consensual sex
and questions, “But was there a rape?” Dissenting opinion at ¶ 284.
       {¶ 217} Tellingly, the dissent uses its next sentences to describe Yates’s
poverty and substance abuse. And it wonders, “[A]t some point did she draw her
knife demanding more crack or his cash?” Dissenting opinion at ¶ 285. The
innuendo is inescapable and offensive. Moreover, it was precisely Yates’s station
in life—including that she was homeless and penniless—that Jones preyed on. In
our view, that makes the death penalty more appropriate, not less.




                                        58
                                January Term, 2012




       {¶ 218} In any event, Yates’s body was the best evidence that Jones raped
her. And it was the best evidence that he killed her while she resisted the rape.
Jones’s DNA was found in Yates’s badly bruised and torn vagina, which had also
suffered injuries that were caused by a fist or “very large rigid foreign object.”
Yates suffered similar injuries to her anus and rectum. Moreover, the back of
Yates’s head had suffered a pounding action from being slammed to the ground
repeatedly. She clawed at her own neck trying to free her airway while Jones
vigorously and relentlessly strangled her.
       {¶ 219} Yates’s body told the story of the unmitigated and gruesome
events that took place in the graveyard that night. Her body screamed the terror
that Yates suffered: “I was killed while resisting rape.” Jones silenced Yates’s
voice; the dissent seeks to silence her body.
       {¶ 220} At trial, medical and forensic experts gave appropriate voice to
Yates’s body. Hemmed in by the overwhelming medical and forensic evidence,
the dissent advances a completely unfounded theory: Jones abused Yates’s
corpse. In doing so, it questions whether the medical examiner could actually tell
whether Yates’s injuries were postmortem, ignoring relevant testimony of the
medical examiner on that very subject. Bruising manifests differently before
death than after because after death, “there is no more body reaction.”
       {¶ 221} And the dissent’s wild speculation contradicts (of all things)
Jones’s testimony itself.
       {¶ 222} Recall that Jones’s defense was that the killing was accidental and
the intercourse was consensual. On that point, Jones unequivocally testified that
he killed Yates while he was having vaginal intercourse with her. And lest we
forget, Jones claimed that his demonstration of the strangulation was unfairly
prejudicial because the strangulation and the intercourse were inextricably
intertwined, having occurred simultaneously.




                                         59
                            SUPREME COURT OF OHIO




        {¶ 223} But the dissent would justify setting aside Jones’s death penalty
by dismissing the very argument that Jones has consistently advanced throughout
this litigation.   To get there, the dissent would conveniently dismiss the
inconvenient portions of Jones’s testimony by declaring that “at best [Jones’s
testimony] could be only partially true.” Dissenting opinion at ¶ 286. This
statement is emblematic of the fundamental problem with the dissent’s
reasoning—that is, it invents “facts” and ignores facts and therefore materially
alters the questions before us. And it refuses to apply settled law—which brings
us to the bottom line: residual doubt is not a mitigating factor. State v. McGuire,
80 Ohio St.3d 390, 686 N.E.2d 1112 (1997), syllabus. Even if it were, there is
none here.
        {¶ 224} Mitigating evidence. Against this aggravating circumstance, we
are called upon to weigh the mitigating factors contained in R.C. 2929.04(B).
Jones called ten mitigating witnesses and made an unsworn statement.           The
defense also presented other documentary evidence and family photographs.
        {¶ 225} Dr. James Siddall, a clinical and forensic psychologist, evaluated
and conducted psychological testing of Jones.       Dr. Siddall reviewed Jones’s
educational, criminal-justice, and mental-health records and submitted a written
report. He noted that Jones had been incarcerated most of his life.
        {¶ 226} Jones was born May 2, 1970, and was raised in Akron. Dr.
Siddall testified that Jones grew up in a troubled family where there was domestic
violence, and his parents divorced when Jones was young.
        {¶ 227} Dr. Siddall testified that Jones’s family has a history of
psychiatric, substance-abuse, and criminal-justice problems. Dr. Siddall stated
that these problems have moved across the generations and began with Jones’s
paternal and maternal grandparents. His paternal grandfather was an alcoholic,
engaged in domestic abuse, and died of a fatal injection of poisoned heroin.
Jones’s maternal grandmother suffered from some form of mental instability and




                                        60
                               January Term, 2012




alcohol use. She was sent to prison for murdering her boyfriend, who had raped
and killed one of her sons. Jones’s father committed domestic abuse and suffered
from a learning disability. His mother moved through foster care as a child and
developed alcohol-related problems.
       {¶ 228} Jones attended special-education classes in the Akron public
schools and did not adjust well to school. He was retained in a couple of grades
and was moved between schools several times. Jones was expelled in the tenth
grade because of truancy, disruptive behavior, and failing grades.
       {¶ 229} Jones was incarcerated several times as a juvenile. Between 1979
and 1988, Jones was convicted of receiving stolen property, destruction of
property, and criminal damaging related to a series of auto thefts. Jones was also
convicted of petty theft and disorderly conduct. Jones was depressed and made
several suicide attempts during adolescence. He attempted to hang himself when
he was 16 and took an overdose of pills when he was 17.
       {¶ 230} As an adult in 1989, Jones was convicted of receiving stolen
property and violating probation. In 1990, he was convicted of two counts of
attempted rape and served 14 years in prison. Dr. Siddall testified that Jones had
significant psychiatric interventions in prison. His mood and behavior were very
unstable, and he tried to cut himself on numerous occasions. In 2004, Jones was
paroled and was classified as a sexually oriented offender.
       {¶ 231} Jones used alcohol and marijuana during his youth.            Jones
resumed using alcohol after he was paroled in 2004, but denied abusing drugs.
       {¶ 232} Jones and Delores married in November 2006. Jones is also the
father of a teenage son and daughter, who were born during his relationship with a
former girlfriend.
       {¶ 233} Dr. Siddall testified that Jones’s reading ability is at the eighth-
grade level.   Results of the Wechsler Abbreviated Scale of Intelligence test
indicated that Jones has a full-scale IQ of 86, which places him in the low-average



                                        61
                             SUPREME COURT OF OHIO




range.      Results of the Brief Neuropsychological Cognitive Examination
(“BNCE”) were in the normal range, with the exception of one subset. Excluding
this subset, the BNCE results showed no evidence of neurocognitive impairment.
Dr. Siddall reported that Jones’s “cognitive functioning including attention,
concentration, recent and remote memory and problem solving were intact.”
         {¶ 234} Jones’s scores on the Structured Inventory of Malingered
Symptomatology (“SIMS”) were “significantly elevated” and indicated “a level of
distortion and exaggeration.”       Test results on the Minnesota Multiphasic
Personality Inventory-2 and the Personality Assessment Inventory showed the
same level of distortion. According to Dr. Siddall, the distortion of these scores
indicates that Jones may have been attempting to draw attention to his situation or
seeking to derive the secondary benefit of talking to mental-health professionals
and to possibly receive medication.
         {¶ 235} Dr. Siddall diagnosed Jones with a mood disorder resulting from a
“serious history of depression and mood instability * * * [that] is associated with
repeated suicidal behaviors, gestures, [and] attempts.” Jones was also diagnosed
with a history of alcohol and cannabis abuse and an antisocial-personality
disorder.    Jones has also demonstrated psychotic behavior and has reported
hallucinations.
         {¶ 236} In summary, Dr. Siddall testified that Jones has “a chronic history
of mental illness which has required very expansive psychiatric treatment while
he was incarcerated and in the community.”            Jones has been repeatedly
hospitalized and been treated with antidepressants, mood-stabilizing drugs, and
antipsychotic medications. Jones was also raised in a family with a long history
of psychiatric problems, alcohol and drug abuse, domestic violence, and
involvement with the criminal-justice system. Dr. Siddall testified that these
severe problems affect most members of Jones’s family and represent “a rather
unusual cluster of very serious problems in a given family.” He opined that




                                         62
                                January Term, 2012




“certain psychiatric problems, certain psychological problems * * * are known to
be biologically based * * * [and were] genetically transmitted * * * across
generations in the Jones family.”
       {¶ 237} During cross-examination, Dr. Siddall acknowledged that a Dr.
Stafford, a psychiatrist who treated Jones at the Oakwood Forensic Hospital,
reported that Jones admitted that he falsely reported hearing voices. Dr. Stafford
concluded, “He is not psychotic at all. His whole outlook is due to malingering
and put on.” Dr. Stafford’s report also stated that Jones “puts on psychosis due to
experience with mental health professionals through the years. He is difficult to
differentiate because he is clever to answer vaguely.”
       {¶ 238} Henrietta Jones, the defendant’s mother, testified that the
defendant is the youngest of her eight children. Henrietta stated that all her
children had problems with the law and substance abuse. Henrietta married
Jones’s father in 1959, divorced him in 1978, and remarried him in 1998.
       {¶ 239} Jones was born with “lazy eye.”               His siblings and the
neighborhood kids taunted and teased him because of it.              Jones received
corrective surgery when he was 12 years old. Jones was a slow learner in school
and was held back in the first and third grades. Jones had mental-health problems
at a young age. He drank gasoline when he was eight years old and had to have
his stomach pumped. Jones later tried to hang himself and was admitted for
treatment at the Mansfield Psychiatric Hospital.
       {¶ 240} Henrietta testified that Jones’s father worked at the post office for
37 years. Henrietta worked at the post office also and held a variety of other jobs.
Henrietta stated that she provided a stable home for her children and provided for
their needs. Jones was involved in church as a child and attended Sunday school.
Henrietta has a very close relationship with Jones and stated, “He was very
concerned when I get sick. He was always there for me to take me to the doctor
and things like that.” Jones also had a close relationship with his father.



                                         63
                                SUPREME COURT OF OHIO




       {¶ 241} Yolanda White, Jones’s oldest sister, testified that Jones was
teased and picked on when he was young because of the lazy eye. Jones told
White that the teasing made him feel unwanted and unloved. Jones acted out on
his feelings of inadequacy by attempting suicide on a couple of occasions. White
remembers that Jones said that he was hearing voices around this time. Jones also
did poorly in school and repeated two grades. White does not believe that Jones
received the help that he needed to do well in school. White also testified that all
her siblings have criminal records, as does she. White has felony convictions for
possession of crack cocaine and theft and misdemeanor convictions for
misrepresentation.
       {¶ 242} Christy Harmel and Jones developed a relationship when they
were both 18 years old. They have two children, Melany Harmel and Phillip
Jones Jr. Before Melany’s birth and when Phillip Jr. was an infant, Jones was
sent to prison for 14 years. Christy took the children to visit Jones while he was
in prison. Jones also wrote to his children while he was in prison and provided
them with money that he made working there.           Christy testified that Jones
continues to touch the lives of his children by counseling them and providing
them with positive attitudes.
       {¶ 243} Melany Harmel, who was 16 years old at the time of the trial,
visited her father after he went to prison in 1990. They exchanged letters and
photographs, and she received gifts from him at Christmas.          When he was
released from prison in 2004, Jones visited her every day. Jones has provided her
with fatherly advice about staying away from drugs and avoiding problems with
boys. Melany stated that she would continue to see Jones if he is sent to prison
for the current offenses. She expressed her love for Jones and said, “He is a
wonderful person.”
       {¶ 244} Phillip Jones Jr., 17 years old at the time of the trial, remembered
visiting Jones in prison on a couple of occasions and talking to him on the phone




                                         64
                                January Term, 2012




numerous times. After Jones’s release from prison, Phillip saw Jones almost
every day, and they developed a good relationship. Phillip dropped out of school
in the ninth grade, but his father has encouraged him to stay in school and not do
“stupid stuff.” Phillip loves his father and will continue to be there for him.
       {¶ 245} Joseph Dubina, the regional administrator of the Akron Regional
Adult Parole Authority, testified that Senate Bill 2, passed in 1996, imposed
“truth in sentencing.” Therefore, he testified, a person sentenced to life in prison
without the possibility of parole will remain in prison until he dies. Dubina stated
that if Jones were sentenced to life in prison without parole eligibility for 30
years, he would not meet a parole board until 2038, when he would be 67 years
old. Similarly, if Jones were sentenced to life in prison without parole eligibility
for 25 years, he would not meet a parole board sooner.
       {¶ 246} J.C. Patterson, a pastor and an employment specialist for an ex-
offender program, met Jones in 2006. Patterson and Jones became best friends
and studied the Bible together. Patterson was impressed with Jones’s consistency
and motivation. He says that Jones is a “good person.”
       {¶ 247} David Hargrove, the pastor of the Church of God in Akron, met
Jones at a church service. Jones asked for prayer because he was troubled. Jones
later said that their prayers helped him experience relief.          Jones attended
Hargrove’s church on a regular basis for about a year, and then his attendance
became sporadic. Hargrove testified that Jones is a “good guy” and should not
receive the death penalty.
       {¶ 248} Larry Bradshaw, the pastor of the People’s Baptist Church in
Akron, met Jones at a church service in 2004. Jones became a member of the
church and attended services regularly. He noted that Jones has the credentials of
a clergyman. Bradshaw visited Jones after learning that he was in the county jail.
When they would meet, Bradshaw and Jones spent most of their time discussing




                                         65
                             SUPREME COURT OF OHIO




scripture. On some occasions, Jones ministered to Bradshaw and provided him
with encouragement.
         {¶ 249} In an unsworn statement, Jones stated that he had an abusive
childhood. He witnessed domestic violence on numerous occasions, and his
family abused alcohol and drugs. Jones also watched his siblings fight. His
oldest brother stole cars and gave Jones marijuana when he was seven years old.
Jones’s parents divorced when he was eight. His mother left home, and Jones was
then raised by his aunt, his grandmother, and his father. Jones tried to kill himself
by drinking gasoline when he was eight years old. Jones was born with a lazy
eye. He had corrective surgery, but he still has problems with his eyesight. Jones
also had a learning disability that was not identified until he was in the sixth
grade.
         {¶ 250} After witnessing the abuse in his family, Jones started “acting
out” as a teenager. Jones spent about three years in juvenile facilities. He tried to
hang himself and was sent to the Mansfield Psychiatric Hospital.
         {¶ 251} Jones spent almost 15 years in prison as an adult and described
this experience as “hell.” Jones received 69 tickets for infractions during one year
in prison.    He committed assaults, flooded the cells, and disrespected staff
members. In August 1998, Jones was stabbed in the neck during a feud with
members of the Aryan Brotherhood and almost died. Thereafter, Jones changed
his behavior, and his security status in the prisons improved. Jones tried to help
other inmates with a negative attitude and prevent them from making the same
mistakes that he did. He also received credentials as a minister in the Universal
Church in Modesto, California.
         {¶ 252} In 2004, Jones was paroled.      He had a difficult time finding
employment because of his criminal record and was on unemployment when he
raped and murdered Yates. Yet Jones worked after leaving prison and was
employed by JR Wheel for almost a year.




                                         66
                                 January Term, 2012




         {¶ 253} Jones discussed his feelings about the present charges and Yates’s
death:


                I can’t change what I did. I wish I could. I live with it on
         my mind every day, my right hand in God above. I can’t bring
         back Susan. I wish I could.
                I know it * * * was a bad thing. I’m sorry for what I did,
         and I pray for her family and her children, and really, it is out of
         my hands now. I did—you found me guilty, I’m convicted of it,
         and I am deeply sorry for my actions.
              All I can do is try to continue to just keep on helping folks,
         like I helped my sister get off drugs, my mom when she became
         elderly.


         {¶ 254} Jones said he helped his father before he died and his mother-in-
law who is in a nursing home. Jones also mentioned that he still loves his wife
although he no longer has any communication with her.
         {¶ 255} Jones then made some final comments about his conviction:


                And, lastly, I would like to say that I am sorry for what I
         did to Susan, and I pray for her family and her children, and I pray
         to God to give them the strength to get through this, and I hope that
         they could forgive me in time for what I did but maybe they won’t.
                But I don’t have any harm against them even if they don’t.
         I’m sorry for what I did. And I did help my sister, restore her life.
         And I found out a couple weeks ago that my sister even prayed for
         Susan’s sister out there in the hall. And I—that made me kind of




                                          67
                            SUPREME COURT OF OHIO




       really happy because it was a positive “seed” I “planted.” I’m just
       glad it worked out like that. That’s all I have to say.


       {¶ 256} Before sentencing, Jones made the following statement in
allocution:


               Your Honor, * * * this is not a murder case, I never
       planned to murder Susan * * *. It was an accident which I told my
       wife and others from the beginning. I could not, nor would not do
       anything so heinous to another human being. * * * [T]he fact yet
       remains that a life has been taken. Unfortunately, I’m responsible
       for that.
               However, I am not responsible for anything else, nor shall I
       take responsibility for * * * another’s actions, such as beating
       Susan, raping her and aggravated murder.
               ***
               To the family of Ms. Susan Yates, I’m sorry for your loss.
       * * * I trust that God will do something positive for both families,
       Christian Yates and Jones family.


                               Sentence evaluation
       {¶ 257} We find nothing mitigating in the nature and circumstances of the
offense. Jones raped, battered, and murdered Susan Yates in an Akron cemetery
and fled the scene. These facts establish a horrific crime that lacks any mitigating
features.
       {¶ 258} Although Jones’s character offers nothing in mitigation, we give
some weight to Jones’s history and background. Jones grew up in a troubled
family where his parents fought and argued frequently. Jones was also raised in a




                                         68
                                January Term, 2012




family with a history of mental-health problems, alcohol and drug abuse, and
involvement with the criminal justice system. Jones has a chronic history of
mental illness, which required psychiatric treatment. In addition, Jones had a
difficult childhood. He was taunted and teased as a child because he had a lazy
eye. Jones had difficulty in school. Jones was also involved in the criminal-
justice system at an early age and has spent most of his life incarcerated.
       {¶ 259} The statutory mitigating factors under R.C. 2929.04 include
(B)(1) (victim inducement), (B)(2) (duress, coercion, or strong provocation),
(B)(3) (mental disease or defect), (B)(4) (youth of the offender—Jones was 36 at
the time of the offense), (B)(5) (lack of a significant criminal record), (B)(6)
(accomplice only), and (B)(7) (any other relevant factors).          Review of the
evidence shows that (B)(1), (B)(2), (B)(4), (B)(5), and (B)(6) do not apply.
       {¶ 260} The R.C. 2929.04(B)(3) mitigating factor is also not applicable.
(B)(3) applies when “at the time of committing the offense, the offender, because
of a mental disease or defect, lacked substantial capacity to appreciate the
criminality of the offender’s conduct or to conform the offender’s conduct to the
requirements of the law.” No evidence was presented that Jones qualified for the
(B)(3) factor.
       {¶ 261} But we give some weight to Jones’s history of mental problems
and his low-average intelligence as “other” mitigating factors under R.C.
2929.04(B)(7). Jones has a long family history of mental problems. Jones was
diagnosed with a mood disorder resulting from depression. Although we note the
evidence that Jones demonstrated psychotic behavior and reported hallucinations,
we also acknowledge other evidence indicating that Jones falsely reported that he
was hearing voices and may be malingering.
       {¶ 262} We also give weight as a (B)(7) factor to testimony that Jones had
a troubled childhood. But see State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-
3426, 892 N.E.2d 864, ¶ 265 (decisive weight seldom given to defendants with



                                         69
                            SUPREME COURT OF OHIO




unstable childhoods). We also give some weight to his history of substance
abuse. Jones was diagnosed with a history of alcohol and cannabis abuse. But
there is no evidence that drugs and alcohol significantly reduced his ability to
control his actions on the night of the rape and murder.
       {¶ 263} In addition, we give weight as a (B)(7) factor to testimony that
Jones shares love and support with family members and has provided care to his
children. See State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d
596, at ¶ 338.
       {¶ 264} Jones expressed remorse for Yates’s death in his unsworn
statement. But during allocution, Jones denied responsibility for beating, raping,
and murdering Yates. Jones’s denials negate any mitigating weight that we might
otherwise give for his expressions of sorrow. See State v. Hunter, 131 Ohio St.3d
67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 205.
       {¶ 265} Upon our independent weighing, we find that the aggravating
circumstance clearly outweighs any mitigating factors beyond a reasonable doubt.
Jones murdered Yates while raping her, a grave aggravating circumstance. The
mitigating evidence pales in comparison.       Therefore, we hold that the death
penalty is appropriate.
       {¶ 266} We also find that the death sentence imposed in this case is not
“excessive or disproportionate to the penalty imposed in similar cases.” R.C.
2929.05(A). The penalty is proportionate when compared to death sentences
approved in other rape-murder cases under R.C. 2929.04(A)(7). See Carter, 89
Ohio St.3d at 611, 734 N.E.2d 345; State v. Mason, 82 Ohio St.3d 144, 170-171,
694 N.E.2d 932 (1998); and State v. McGuire, 80 Ohio St.3d 390, 404, 686
N.E.2d 1112 (1997).
                                   Conclusion
       {¶ 267} We affirm Jones’s convictions and sentence of death.
                                                              Judgment affirmed.




                                         70
                                   January Term, 2012




          LUNDBERG STRATTON, O’DONNELL, CUPP, and MCGEE BROWN, JJ.,
concur.
          LANZINGER, J., concurs in judgment only.
          PFEIFER, J., dissents.
                                   __________________
          PFEIFER, J., dissenting.
          {¶ 268} I would reverse Jones’s convictions and order a new trial. Every
criminal defendant is entitled to a fair trial. It is one of the most basic tenets of
our society and our constitutional history. Jones did not get one. He is not
entitled to a perfect trial, just a fair one. It matters not how sordid are the details
of the crime; nor should it matter that by taking the stand, Jones probably
undermined his own defense by weaving a tale that at best could be only partially
true.
          {¶ 269} The majority’s upholding Jones’s convictions is basically a
lengthy and convoluted justification for intentional and needless error injected
into the trial of Jones by the prosecutor and allowed by the trial judge. It is one
thing for this court to determine that the aggressive conduct of the prosecutor led
to harmless error. It is quite another matter when we open the door for continued
pushing at the edges of the Rules of Evidence, statutory privilege, and
constitutional duties by excusing, rather than rejecting, introduction of evidence
that crosses the line.
          {¶ 270} What exactly was the state’s theory of the actual events on the
night of April 22, 2007, that led to the death of Susan Yates and the conviction of
Phillip Jones for aggravated murder with a death-penalty specification? One
assumes the state had an operative and successful theory of its case, but it is not
revealed in the majority opinion. Rather, we are left with the details of the
condition of Yates’s dead body and a portion of Jones’s explanation of what




                                           71
                            SUPREME COURT OF OHIO




occurred, consensual sex, followed by rough or erotic asphyxiation and the
possibly accidental death of Susan Yates.
                                 Fair-trial Issues
       {¶ 271} The prosecution’s use of a life-sized doll representing Susan
Yates provided imaginative courtroom drama. The transcript suggests that Jones
was required to step down from the witness stand, lie on the doll, and demonstrate
for the jury how he choked Yates while having vaginal intercourse with her.
Having been allowed by the judge, over objection, to conduct this eye-popping
demonstration, the prosecutor wasn’t finished.       The prosecutor recalled Dr.
George Sterbenz, the medical examiner, and then lay down on the doll,
demonstrating Jones’s testimony for the doctor. That still wasn’t enough. Dr.
Sterbenz left the witness stand, straddled the doll with his hands around the doll’s
neck, and asked the prosecutor whether he had properly understood Jones’s
testimony. Was this thrice-enacted demonstration prejudicial to the defendant
Jones? Not according to the majority.
       {¶ 272} It is at this point in the fair-trial inquiry that the prosecution’s
entire case comes into play. Dr. Sterbenz, the medical examiner who conducted
the autopsy of Susan Yates, concluded that she died from asphyxia by
strangulation. It was apparently always the view of Dr. Sterbenz that it would be
impossible to cause Yates’s throat injuries as a side effect of choking her. Dr.
Sterbenz postulated that the injuries to Yates’s neck and throat could have been
caused only by a violent skin-on-skin action, presumably from a head lock or the
use of a ligature involving cloth tightened by twisting it with some object. He did
not use the doll to demonstrate either theory. Thus the demonstration on the doll
forced on Jones by the state and then again staged by the prosecutor and by Dr.
Sterbenz’s during rebuttal served no purpose other than to inflame the jury. It
was not probative of anything.




                                        72
                                January Term, 2012




              R.C. 2945.42 Spousal Privilege and Excited Utterance
       {¶ 273} In its merit brief, the state refers to the concept of spousal
privilege as “a relic of the common law.”           With that attitude in mind, the
prosecutor sought to ignore R.C. 2945.42, which could have prohibited Jones’s
wife, Delores, from testifying about anything Jones had told her regarding the
Yates matter. As part of the state’s case, Delores testified that the day Susan
Yates’s body was discovered, she and her husband had a discussion about
something that was on the news. She then testified that an hour or so later, she
drove to the home of her friend Charletta Jeffries and, in an excited state, told
Jeffries everything her husband had told her after the news program. She further
testified that after she unburdened herself by telling Charletta about the
conversation she had had with her husband, she then called the police and asked
to speak to someone in charge about the dead woman in the cemetery. Finally,
Delores, describing herself as still upset, had told Detective Richard Morrison
details that Jones had told her. At this point, Delores left the stand, and the jurors
were left on the edges of their respective seats.
       {¶ 274} It is also at this point in the narrative that the majority offers the
following apparently tongue-in-cheek observation: “Delores was not asked—and
did not testify—as to the communication between her and Jones. Therefore,
Delores’s testimony did not violate Jones’s spousal privilege.” What next follows
are several leaps of faith that not even The Flying Wallendas would attempt.
       {¶ 275} First, the majority attempts to justify the wrongly decided State v.
Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, by discussing a
Michigan case and a 116-year-old court of appeals case involving a letter written
to his first wife by a defendant who was convicted of bigamy.              After this
intriguing bit of history, the majority abruptly concludes that based on Perez,
“R.C. 2945.42 is wholly inapplicable.”          Majority opinion at ¶ 130.       The
takeaway? Delores can completely destroy the statutory spousal privilege of the



                                          73
                              SUPREME COURT OF OHIO




defendant, her husband Phillip Jones, simply by telling someone, anyone really,
about what he had told her.
         {¶ 276} Returning to the trial, the jury did not have to wait long to hear the
rest of the salacious story.     Charletta Jeffries quickly informed the jury that
Delores had come to her home and confided that her husband had told her that he
had murdered a woman named Susan, who had been found in the cemetery. Soon
thereafter, the prosecution put Detective Morrison on the stand to repeat Delores’s
account of the putative privileged conversation between herself and the defendant
regarding Yates’s death.
         {¶ 277} The Confrontation Clause of the Sixth Amendment to the United
States Constitution must be addressed before the court can condone the hearsay
testimony of Jeffries and Morrison about defendant Jones’s conversation with his
wife. The majority correctly determines that Delores is unavailable for purposes
of the Confrontation Clause because Jones invoked the spousal privilege. It
further correctly determines that Delores’s statements to Morrison were
testimonial and that their admission into evidence violated the Confrontation
Clause. I disagree with the majority’s conclusion that the admission was harmless
error.
         {¶ 278} The next leap is awesome. The majority examines Delores’s
disclosures to Jeffries and determines that Delores “would not reasonably believe
that [her] statements to her friend * * * would be available for later use at trial.”
Majority opinion at ¶ 162. Never mind that Delores had immediately thereafter
summoned the police detective to Jeffries’s home using Jeffries’s phone. Ignore
the fact that Delores repeated the story to Detective Morrison in Jeffries’s home in
the presence of Jeffries. Does the majority actually believe that Delores Jones
told Charletta Jeffries that her husband told her that he “killed that girl in the
cemetery,” expecting such news to remain their little secret without police or
court involvement? No, the majority deftly concludes: “Delores’s statements to




                                           74
                                January Term, 2012




Jeffries were not testimonial, and their admission into evidence did not violate the
Confrontation Clause.” Majority opinion at ¶ 164.
       {¶ 279} Just one more leap. Hearsay. Well, not quite. More like hearsay
about hearsay. Evid.R. 802 prohibits hearsay testimony. Evid.R. 803 defines
specific exceptions, including the excited-utterance exception found in Evid.R.
802(2): “A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.”
Did Delores observe an event or condition? No. What she reported to Jeffries
was information that her husband had told her during what should be a statutorily
privileged communication. When Delores reported the conversation to Jeffries,
Phillip Jones’s words were hearsay.        When Jeffries testified, Jones’s words
became double hearsay.       Finally, to determine that Jeffries’s testimony was
allowable, the majority concludes that the circumstances of the death of Susan
Yates were not the startling event; rather, the startling event was hearing Jones’s
statements.    Hence, Delores’s confession about a confession is magically
transformed from a privileged spousal conversation into an excited-utterance
exception to the hearsay rule. That’s pretty neat legal prestidigitation.
                               Other-acts Testimony
       {¶ 280} During the trial, the state was allowed to present T.J. to testify
that Jones had raped her in 1990, when Jones was about 20 years old. The state
was also allowed to introduce T.J.’s hospital records made at the time of the
attempted rape.     T.J.’s testimony was, of course, highly prejudicial to the
defendant and is prohibited by Evid.R. 404 (B) (prohibiting evidence of other
crimes). The state argues, and the majority agrees, that T.J.’s testimony was a
proper exception relating to proof of identity and proof of the absence of accident.
       {¶ 281} Proof of identity is a straw man. Jones readily admitted that he
caused the death of Susan Yates. Proof of absence of mistake or accident has
little rational connection to Jones’s 17-year-old attempted rape of T.J. Jones



                                         75
                            SUPREME COURT OF OHIO




claimed that he caused Yates’s death by accidently applying too much choking
pressure on her throat while performing consensual erotic asphyxiation during
vaginal intercourse with Yates. The best and only evidence that Yates’s death
was not accidental came from Dr. Sterbenz. Jones’s conviction for attempted rape
was far more remote in time than this court has ever allowed as an Evid.R. 404(B)
exception. It informed the jury only that Jones had attempted to rape T.J. and that
he had choked her with his hands, not with a ligature or head lock, 17 years
earlier. The conclusion that the prosecutor tendered T.J.’s testimony for the
purpose of proving Jones’s bad character and criminal propensity is inescapable
and violates Evid.R. 404(B). Furthermore, the majority states that Jones vaginally
raped T.J. even though Jones was convicted of attempted rape.
             Residual Doubt and Proof Beyond a Reasonable Doubt
       {¶ 282} Assisted by the fair-trial infractions outlined herein, the jury
convicted Jones on all counts and recommended that he be sentenced to death.
Were they correct? What actually occurred in the cemetery on April 22, 2007?
Jones claimed that he and Susan Yates acquired some crack cocaine and beer and
went to the cemetery, sat on a blanket, and eventually engaged in the consensual
vaginal intercourse that escalated at the request of Yates into rough and erotic
asphyxia sex. According to Jones, that activity accidently led to Yates’s death
when he applied too much choking pressure. Jones denied that he had any part in
the vaginal and rectal damage to Susan Yates that was revealed by Dr. Sterbenz’s
autopsy.
       {¶ 283} Given the unrebutted testimony of Dr. Sterbenz regarding the
cause of death and Jones’s confession, plus the testimony of Jeffries and
Detective Morrison that Jones had admitted to his wife, Delores, that he had killed
Susan, the jury could easily conclude, beyond a reasonable doubt, that Phillip
Jones murdered Susan Yates on the night of April 22, 2007. There was no
accident.




                                        76
                                   January Term, 2012




       {¶ 284} But was there a rape? Jones testified he had known Yates for
some time, had taken her to his home to shower when his wife was not there, and
had given her money for food in the past. He testified that on the evening in
question, they had acquired crack cocaine and beer, had driven to the cemetery,
had spread out a blanket, and had had a good time until she died. Yates had
alcohol and cocaine in her system at her death. Because there was no evidence of
a struggle in Jones’s automobile, this part of his testimony is plausible. What
happened next was tragic for Susan Yates. It would not be reasonable to assume
that any person besides Jones was involved, but the order of events is critical.
       {¶ 285} At some point, Jones killed Yates. Because Jones’s testimony on
this subject is not credible, what set him off is unknown. Was that his plan from
the beginning? Nothing in his past indicates a propensity for murder. Was the
rough sex his idea, not hers, and did it turn to rape, then abuse, then murder to
escape detection? Or at some point did she draw her knife demanding more crack
or his cash? Did a fight ensue, then murder, then, in a rage, abuse of Yates’s
corpse? Was it possible for the medical examiner to determine whether the gross
injuries to her vagina and rectum were postmortem? If Jones had consensual sex
with Yates, then murdered her, and then in a rage abused her body, there would be
no death-eligible specification.
       {¶ 286} This dilemma, this lack of certainty about critical events in the
unfolding of the crime, is residual doubt. It is not often present in death-penalty
cases. In State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997), syllabus,
we rejected residual doubt as a reason to overturn a death sentence, a statement of
the law in which I did not concur. Id. at 405-406 (Pfeifer, J., concurring in
judgment only). These many years later, this is the first case in which I would
find that residual doubt should result in overturning a death sentence.




                                           77
                             SUPREME COURT OF OHIO




                                      Conclusion
                            What Should Happen Now?
       {¶ 287} With the exception of death-penalty cases, this court views the
criminal-justice system from 30,000 feet. Out of the tens of thousands of serious
criminal cases that Ohio judges and prosecutors handle each year, we review only
a few. It is our responsibility to ensure fairness by requiring judges to enforce the
rules, statutes, and constitutional protections afforded every citizen accused of a
crime. As we exercise oversight of this system through case review, there has
been a singular constant in our direction to trial judges, prosecutors, and defense
counsel: Do it right or do it over.
       {¶ 288} Jones did not get a fair trial. It should be a do-over, without the
doll, without any testimony about the privileged spousal conversations, and,
most assuredly, without the prior-acts testimony.       To affirm will embolden
prosecutors to increasingly follow an aggressively edgy path to ensure convictions
and to encourage judges to be accommodative with little fear of reversal.
       {¶ 289} I dissent.
                               _________________
       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven
DiMartino, Assistant Prosecuting Attorney, for appellee.
       Nathan A. Ray and Lawrence J. Whitney, for appellant.
                            ________________________




                                          78
