State v. Jones (135 Ohio St. 3d 10, 2012)

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 Jones with the murder of Yates. Counts 3 and 4 charged Jones with rape. 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.

{¶ 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 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 ear 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 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 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 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.

{¶ 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 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 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.

{¶ 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.

{¶ 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:

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 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.

{¶ 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.” The trial court ruled, “Note the objection. He may use it.”

{¶ 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:

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.

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 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.

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 is accomplished. And she has quite a bit of obvious peteehia[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. 401 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. 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.

{¶ 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 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 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, 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. kOS

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 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.”

{¶ 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?

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 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.

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. But because Jones asserted spousal privilege, the 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.

{¶ 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 then-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 ‘[hjusband 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 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.”

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 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.

{¶ 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 “[pjrobably 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. 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?

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.

{¶ 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 al