State v. Osie (140 Ohio St. 3d 131, 2014)

Kennedy, J.

{¶ 1} On February 14, 2009, appellant, Gregory C. Osie, stabbed David Williams to death in Williams’s house in Liberty Township, Butler County. Osie was tried by a three-judge panel, which found him guilty of aggravated murder with three death specifications and sentenced him to death.

{¶ 2} David Williams was a partner in a business venture called United Contractors Unlimited (“UCU”), which began in August 2008. Williams had provided $10,000 in seed money to get the business started and also served as a business mentor, providing his partners with advice on running a business. The other partners performed various jobs in the business.

{¶ 3} Williams’s partners in UCU included Robin Patterson and Nicholas Wiskur. Patterson was the office manager. Gregory Osie was Patterson’s boyfriend. Osie was not a partner in UCU but had been employed on one occasion to do a job for UCU. He was also hired occasionally to do “odds and ends type jobs” for David Williams.

{¶ 4} By February 2009, according to Nicholas Wiskur, UCU had nearly reached “the point of being defunct.” Wiskur testified that the partners held a financial meeting approximately every four weeks to go over profit-and-loss statements. At these meetings, the partners would “go over checks”; therefore, Wiskur knew that questions had been raised about certain checks.

{¶ 5} Wiskur decided to investigate one specific check: a check for $375, made out to and endorsed by Greg Osie, ostensibly signed by Robin Patterson, and dated December 26, 2008. This check had been cashed at a Marathon gas station. Because the account on which it was drawn had been closed, the check bounced. Based on his familiarity with Patterson’s signature, Wiskur concluded that the check was “obviously forged.” He called the Marathon station and discussed the matter with the owner. Wiskur subsequently discussed the matter with Williams.

The Events of February 13-14, 2009

{¶ 6} On February 13, 2009, between approximately 8:30 and 9:00 a.m., Wiskur went to Williams’s house. Williams was not home, so Wiskur phoned him, then decided to await Williams’s return.

{¶ 7} Before Williams arrived, Osie phoned Wiskur. Osie claimed that he didn’t know anything about the forged check. Wiskur informed Osie that the owner of the gas station had “unequivocally” identified Osie as the person who had cashed the check and that Osie’s act had been captured on videotape. Osie continued to deny that he had cashed the check. Wiskur told him: “It’s all going to come out, * * * if you did it or not. I guess * * * we’ll find out, and at that time, we’ll do the necessary actions * *

{¶ 8} Eventually, Williams came home, and he and Wiskur discussed other matters. However, before Wiskur left, Osie phoned Williams. Wiskur was able to hear and recognize Osie’s voice on the other end of the line.

{¶ 9} Wiskur testified that the conversation was “[ajgitated and aggressive,” with “some name calling on both sides” and references to the theft of money and property. During this conversation, according to Wiskur, Williams said to Osie: “Well, you know, I just want to make this right. Robin won’t return any of my phone calls. * * * Well, I’m going to go to the police. I’m going to file charges. This needs to be taken care of.” At the end of the conversation, according to Wiskur, Williams “slam[med] the phone” down and said, “F you.”

{¶ 10} On the night of February 13-14, Tim Purvis, an acquaintance of Osie and Robin Patterson, was performing with a band at a local bar. Around 1:00 a.m., February 14, Purvis saw Patterson at the bar. Purvis finished playing at 2:00 a.m.; half an hour later, he left with Patterson. They reached Purvis’s apartment around 2:45 a.m. Patterson stayed until 9:00 a.m. She and Purvis sat and talked and had “a couple of beers.”

{¶ 11} While Patterson was at Purvis’s apartment, her phone rang between 10 and 15 times, beginning sometime between 4:00 and 5:00 a.m. Around 5:00 a.m., Purvis got a phone call from Osie, who wanted to talk to Patterson. Purvis handed Patterson his phone and went to the bathroom. He was able to hear most of the conversation, however. He described it as “a lot of arguing back and forth.”

{¶ 12} Around 5:30 or 6:00 a.m., Patterson received a text message that upset' her. Purvis described her reaction: “She was very upset, pacing back and forth, crying. Just really distraught.” Purvis asked why she was upset, and she said: “Greg killed Dave.”

{¶ 13} Records of the Cincinnati Bell Telephone Company introduced at trial show that on February 14, 2009, between 3:07 a.m. and 8:45 a.m., 15 text messages were sent from phone number 513-746-1393 to phone number 513-746-8127. Cincinnati Bell records listed Osie as both subscriber and registered user for phone number 513-746-1393. Osie was also the subscriber for phone number 513-746-8127; the registered user of that phone was listed as “Robin.”

{¶ 14} At 3:07 a.m., a text from Osie’s phone to Robin’s stated: “Baby doll your dirt is ready to be over.” At 4:24 a.m., there was another text that said simply: “Job finished.” Other texts sent from Osie’s phone to Robin’s that morning included “Need help” at 4:35 a.m., “Baby talk 2 me” at 5:09 a.m., “Help please” at 5:25 a.m., “I need you i am afraid” at 7:30 a.m., and “Baby im worried please call” at 8:29 a.m.

{¶ 15} Business records of PNC Bank and United Dairy Farmers (“UDF”) show that on February 14, 2009, at 4:28 a.m., someone used David Williams’s Visa debit card to buy $27.01 worth of gasoline at the UDF in West Chester. Business records of PNC Bank and Meijer show that on February 14, 2009, at 6:24 a.m., someone tried to use the same card to make a transaction in the amount of $547.66 at the Meijer store in West Chester, but the transaction was declined for insufficient funds.

{¶ 16} At approximately 9:00 or 9:15 a.m., February 14, Donald E. Heis Sr., a mechanic at an auto body shop in West Chester, spotted a cell phone lying in pieces in the driveway of the shop as he was driving out on a wrecker call. About 15 minutes later, on his way back, Heis stopped and picked up the phone. Heis reattached the loose pieces of the phone and found that it worked. By examining the phone’s recent-call log, he obtained the phone number of Williams’s daughter, Heather Williams, and called that number to see whether she knew who owned the phone. Heis explained where he had found the phone and how he had obtained Heather’s number. Heather said, “Oh, it’s my dad’s [phone].” Heis told her that she could come by the body shop and pick it up.

{¶ 17} Heather then called two of her father’s friends and asked them to let him know where his phone was. She sent one of them to Williams’s house. There he found Williams’s body. Police were summoned, and the crime scene was processed.

The Crime Scene

{¶ 18} Williams was found lying on the living-room floor, bruised and blood-soaked. The body lay near a coffee table, where police found a wallet lying open, with business cards and various papers scattered around it. On a table by a recliner was a spillproof cup containing whiskey and a drinking straw. Williams’s television was missing from the entertainment center in the living room.

{¶ 19} In the kitchen, police found a set of knives in a wooden block on the counter. One knife from the set appeared to be missing, but was found in a kitchen drawer.

{¶ 20} Williams’s bedroom contained a safe, which sat atop a dresser. The safe was open, and papers and other items lay scattered on the floor in front of the dresser.

The Autopsy

(¶ 21} Dr. James Swinehart, a forensic pathologist employed by Butler County, performed an autopsy on Williams’s body on February 14. Dr. Swinehart noted that Williams had suffered “five distinct stab wounds clustered basically around the left nipple area.” Several of these wounds had perforated Williams’s left lung, collapsing it. Dr. Swinehart measured 700 cc of blood in the left chest cavity. Williams had also sustained five stab wounds to the abdomen, one of which damaged his liver and gall bladder.

{¶ 22} Finally, Williams’s throat had been slashed. Dr. Swinehart identified “two large incised wounds of the anterior neck.” The more serious of these wounds was 5 and 3/4 inches long; it penetrated Williams’s larynx with a “through and through” wound and exposed his windpipe.

{¶ 23} Dr. Swinehart concluded that Williams bled to death. Based on the temperature of Williams’s body at 8:00 p.m., February 14, Dr. Swinehart was able to estimate that Williams had died in the early morning of February 14, sometime between midnight and 4:00 or 5:00 a.m. Given the large amount of sudden blood loss, Dr. Swinehart opined that Williams would have died within 15 minutes.

{¶ 24} Finally, Dr. Swinehart had a comprehensive toxicology screen performed, which revealed that Williams had a postmortem blood-alcohol level of .160 percent.

Osie’s Arrest and Interrogation

{¶ 25} Investigators from the Butler County Sheriffs Office determined that Osie was a suspect. Four detectives went to his address in West Chester to talk to him. They knocked on the door of his apartment, but no one answered. As the detectives were leaving the apartment complex, they noticed a red truck in the parking lot with its headlights on. Osie drove a red truck. The truck “peeled out” in reverse. The detectives pursued the truck in their vehicles and were able to block its departure. When the driver of the red truck identified himself as Osie, the detectives handcuffed him and drove him to the stationhouse.

{¶ 26} At the station, the detectives placed Osie in an interview room, where they administered Miranda warnings and proceeded to interrogate him.

{¶ 27} Osie initially told detectives that Williams had attacked him. According to Osie, Williams accused Patterson of stealing from him and said that “he was going to go press charges against her.” Osie claimed that after he told Williams, “[Y]ou got to have proof before you do something like that,” Williams became angry. Osie said that he started to leave, whereupon Williams got out of his chair, picked up a knife, and came at Osie.

{¶ 28} Osie claimed that he pushed Williams back into his chair, but Williams got up and attacked him again. Osie then grabbed Williams’s hand, “kind of turned it into him,” and stabbed Williams with the knife while Williams was holding it. In Osie’s account, Williams pulled the knife out of his body and attacked Osie yet again. The knife “went back in him again, the way that I had his hand.” Then, Osie claimed, he panicked and went home. Osie claimed that when he left, he did not even know that Williams was dead.

{¶ 29} The detectives asked Osie why he had sent Patterson a text to the effect that she didn’t “have to worry about Dave no more” if he was unaware that Williams was dead. Osie explained that this was intended “[t]o let her know that I kind of beat Dave up and stabbed him.”

{¶ 30} The detectives continued to confront Osie with inconsistencies in his story and inconsistencies between his story and the evidence. As they did so, Osie’s story changed. After admitting that he “kind of beat Dave up,” Osie denied beating Williams, admitting only that he had “punched him one time.” Osie then amended that to “[o]ne or two times maybe.” Then he claimed that he had not punched Williams with his fist, but had hit him with an open hand. Finally, he admitted punching Williams in the face.

{¶ 31} Osie initially claimed that he stabbed Williams only twice, and he denied cutting Williams’s throat. When detectives pointed out that there appeared to be four to six stab wounds, Osie said he didn’t know whether anyone else was in the house when he left, implying that someone else might have inflicted the wounds after Osie left. Osie later suggested that Williams might have inflicted some of the wounds on himself. Still later, Osie admitted stabbing Williams “probably four to five times,” but denied cutting his throat. Finally, however, Osie admitted that he cut Williams’s throat after stabbing him.

{¶ 32} Osie denied taking Williams’s cell phone or television, and he denied taking the knife from the house, claiming that he had left it in Williams’s body. He also denied removing anything from Williams’s safe.

{¶ 33} Eventually, Osie admitted that he took keys from Williams’s jacket, then went into the bedroom, opened the safe, and scattered its contents. He admitted that he took the knife with him when he left. He also admitted taking Williams’s cell phone, which he threw from his truck window on his way home, and Williams’s TV, which he took in order to make the crime look like a robbery. He claimed that he drove home, changed clothes, then drove to Cincinnati. There he discarded the TV in a dumpster, then threw the knife into the Ohio River.

{¶ 34} After this interview, Detective Melissa Gearhart learned about Williams’s tremor disorder. This called into question Osie’s claim that Williams had assaulted him with a knife, so Gearhart interviewed Osie again.

{¶ 35} In this second interview, Osie’s story was that he and Williams got into a scuffle, during which Osie punched Williams a few times. Then Osie went into the kitchen, Williams followed him, and they struggled again. During the second struggle, Osie grabbed a knife. Williams backed away from Osie into the living room. There, Osie stabbed Williams in the chest. Williams fell to the floor, and Osie stabbed him a few more times. Then, motivated by anger, he cut Williams’s throat, but only once.

Osie’s Statements to His Cellmate

{¶ 36} Donald D. Simpson Jr., an acquaintance of Osie’s, was Osie’s cellmate in the Butler County Jail from February 15, 2009, until Simpson’s release in April 2009. A “couple of weeks” after moving in, Osie began to discuss his case with Simpson. During that time, according to Simpson, the two talked about Osie’s case “pretty much every day” until Simpson’s release, because “that’s all [Osie] pretty much had to do.”

{¶ 37} Osie told Simpson that he had been charged with the murder of David Williams, and “it all stimulated [sic] over Greg’s girlfriend, Robin Patterson.” Simpson testified: “Greg had told me that David Williams was pressing charges on Robin Patterson for stealing around $18,000.” Osie told Simpson that Patterson had used payroll checks to steal the money and that she asked him to persuade Williams not to press charges.

{¶ 38} According to Simpson, Osie also gave him an account of Williams’s murder. Osie told Simpson that before he went to Williams’s house, he and Patterson had spent all day getting high on cocaine. Osie told Simpson that he arrived at Williams’s house around 1:30 or 2:00 a.m. Osie began by trying to talk Williams out of pressing charges. But during the conversation, Williams indicated his intention to press charges against Osie for the check cashed at the Marathon station. At that point, Osie told Simpson,

the conversation had got heated and * * * he had punched Dave, and then it just happened that, I mean before he knew it, he had got the knife and stabbed him. He had stabbed him like four or five times in the chest, and that then when he was laying there, that he freaked out, and so he had rushed down and took the knife and sliced his throat.

{¶ 39} Osie told Simpson that he “had tried to make it look like a break-in.” Osie told Simpson that he took a flat-screen television and a credit card and also removed checks from Williams’s safe. Osie said that he had tried to purchase gas with the credit card. He also had gone to Meijer and tried to buy a diamond ring for Patterson, but the card was declined. Simpson testified that Osie never told him that before arriving at Williams’s house, he had intended to harm Williams or steal anything.

{¶ 40} According to Simpson, Osie had been calling and writing Patterson, but Patterson refused to take Osie’s calls or answer his letters. Shortly before Simpson’s scheduled release, Osie asked him what his plans were; Simpson said that he was going back to Kentucky. Osie asked him to “stick around for a couple of days and do him a favor.” Osie wanted Simpson to “find the murder weapon and place it in Mrs. [Robin] Patterson’s car.” Osie described the weapon as a 12-inch hunting knife. He told Simpson that he had thrown it from the window of his vehicle and gave Simpson directions for finding it.

Indictment, Trial, and Verdict

{¶ 41} Osie was indicted on two counts of aggravated murder: one charging that he killed Williams with prior calculation and design, R.C. 2903.01(A), and one charging that he killed Williams while committing aggravated burglary, R.C. 2903.01(B). Each aggravated-murder count carried three death specifications. Specifications 1 and 2 to each count were felony-murder specifications, R.C. 2929.04(A)(7), predicated respectively on aggravated burglary and aggravated robbery. Specification 3 to each aggravated-murder count was a witness-murder specification, R.C. 2929.04(A)(8). Counts 3, 4, and 5 charged aggravated burglary, aggravated robbery, and evidence tampering, respectively.

{¶ 42} Osie waived a jury and was tried by a three-judge panel. The panel found Osie guilty of Count 2 (felony-murder) and of all three death specifications attached to that count. However, the panel acquitted him on Count 1 (aggravated murder/prior calculation and design) and found him guilty of the lesser-included offense of murder. Finally, the panel found him guilty of Counts 3, 4, and 5.

{¶ 43} After the penalty phase, the panel sentenced Osie to death on Count 2. The case is now before this court on appeal as of right.

I. Pretrial Issues

A. Validity of Jury Waiver

{¶ 44} In his tenth proposition of law, Osie contends that his jury waiver was not voluntary, knowing, and intelligent. He claims that the waiver colloquy was inadequate and that the trial court should have inquired into his mental health before accepting the waiver.

{¶ 45} A jury waiver must be voluntary, knowing, and intelligent. State v. Ruppert, 54 Ohio St.2d 263, 271, 375 N.E.2d 1250 (1978). Waiver may not be presumed from a silent record. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 52. However, if the record shows a jury waiver, the verdict will not be set aside except on a plain showing that the waiver was not freely and intelligently made. Id.; Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Moreover, a written waiver is presumptively voluntary, knowing, and intelligent. Foust at ¶ 52; United States v. Sammons, 918 F.2d 592, 597 (6th Cir.1990). See also State v. Bays, 87 Ohio St.3d 15, 19, 716 N.E.2d 1126 (1999).

{¶ 46} At a hearing on March 31, 2010, defense counsel stated that they had met with Osie ten days before and discussed his option of going forward with a jury trial or being tried by a three-judge panel. One of Osie’s attorneys met with him on March 30 and discussed the same topic with him for 15 to 20 minutes. On March 31, defense counsel filed a written jury waiver signed by Osie.

{¶ 47} At the March 31 hearing, the trial court conducted a colloquy with Osie to ensure that his waiver was knowing, voluntary, and intelligent. In response to the judge’s questions, Osie acknowledged that he understood that a jury consisted of 12 people, that he would play an active role in picking the jurors, that the jury would weigh the evidence and decide the credibility of the witnesses, and that he could not be found guilty unless the jury unanimously agreed that the state had proven the charges beyond a reasonable doubt. Osie acknowledged that he understood that the jury would also decide whether he would receive a death sentence, that this decision would be based on whether the state proved beyond a reasonable doubt that the aggravation outweighed the mitigation, and that this decision must also be unanimous. Osie acknowledged understanding that by giving up a jury, he would be tried by a three-judge panel, whose verdicts would also have to be unanimous.

{¶ 48} Osie affirmed that no one had threatened him, coerced him, or promised him anything in exchange for his jury waiver. He acknowledged understanding that his right to a jury trial was protected by the state and federal Constitutions and by statute. He acknowledged that he had discussed “all of this” with his counsel, they had answered all his questions, and he had nothing more to ask them.

{¶ 49} After the colloquy, Osie signed a second jury waiver in open court. Before signing, Osie acknowledged that he had had an opportunity to go over it. The written waiver contains the following acknowledgement: “I fully understand that under the laws of this State, I have a Constitutional right to a trial by jury. I wish to give up my right to a trial by jury in this case.” The waiver further states:

I fully understand that I am not only waiving the right to have my guilt or innocence determined by a jury, but also waiving my right to have a jury decide the sentence to be imposed upon me in the event of a guilty verdict. I fully understand that in that event, upon completion of a sentencing hearing, the same three-judge panel, who determined my guilt as to the crime(s) charged and the specifieation(s) thereto, would determine the sentence to be imposed upon me.

{¶ 50} The trial judge found that Osie had knowingly, voluntarily, and intelligently waived his jury-trial right.

Voluntariness

{¶ 51} Nothing in the record suggests that the jury waiver was involuntary. When the trial court accepted Osie’s written waiver, Osie affirmed that his decision was voluntary and that he had discussed his decision with his counsel. The advice of counsel is a factor supporting a finding of voluntariness. Bays, 87 Ohio St.3d at 19, 716 N.E.2d 1126. We conclude that the record supports the trial court’s finding that Osie’s jury waiver was voluntary.

Knowing and Intelligent Waiver

{¶ 52} Because “[a] waiver is the intentional relinquishment of a known right or privilege * * *, a defendant must have some knowledge of the nature of the jury trial right to make a valid waiver.” Id. at 19-20. However, “[t]here is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial.” State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d 464 (1990), paragraph one of the syllabus. “The Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant, filed with the court, and made in open court, after arraignment and opportunity to consult with counsel.” Id. at 26.

{¶ 53} Osie contends that the trial court failed to inquire into his “background, IQ, or level of education” to ensure that he understood the legal proceedings. However, he cites no authority to show that such an inquiry is a prerequisite for a valid waiver. “[A] defendant need not have a complete or technical understanding of the jury-trial right in order to waive it.” State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 44, citing United States v. Martin, 704 F.2d 267, 273 (6th Cir.1983). “A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous, and * * * a judge alone will decide guilt or innocence should he waive his jury trial right.” Martin at 273; see also Fitzpatrick, id. The trial court advised Osie of all these things, and Osie acknowledged that he understood them. In our view, the record supports the trial court’s finding that Osie’s waiver was knowing and intelligent.

{¶ 54} Osie contends that the trial court should have inquired into his mental health before accepting his waiver, based on the court’s knowledge of certain letters that the state had seized from Osie’s cell. Osie contends that these letters “would have led anyone to have concerns about Osie’s mental health,” because they showed that his “thought process was strange and erratic.”

{¶ 55} The letters in question are directed to Robin Patterson. In tones of suspicion and anger, they make numerous complaints about Patterson’s failure to contact Osie; accusations that Patterson was a heavy drug user and sexually unfaithful; accusations that Patterson had Williams killed and had framed Osie for the murder; and threats against Patterson, both veiled and explicit. They also contain declarations of love, explicit reflections on his sexual relationship with Patterson, and Osie’s apologies for having assaulted Patterson in the past.

{¶ 56} Osie’s characterization of these letters as evincing mental illness is conclusory and speculative. Osie does not explain how the letters would tend to raise questions about his mental health. Moreover, as the state points out, there is nothing in the record to suggest that Osie had any mental-health issues. Defense counsel never raised Osie’s competence as an issue. “If counsel had some reason to question defendant’s competency, they surely would have done so.” State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 39 (holding that trial court did not err by failing to make sua sponte finding that defendant was incompetent to stand trial).

{¶ 57} We overrule Osie’s tenth proposition of law.

B. Judge’s Failure to Recuse

{¶ 58} In his 17th proposition of law, Osie contends that Judge Noah E. Powers II, who presided over the trial, should have recused himself because his pecuniary relationship with the defense mitigation specialist, who was the judge’s former law partner, created an appearance of impropriety.

{¶ 59} Some months before trial, the defense requested that attorney Christopher J. Pagan be appointed as the defense mitigation specialist. Judge Powers informed the parties on the record that he had an ongoing financial relationship with Pagan, because they had been law partners, and Pagan “still owes me [the judge] money.” Judge Powers was initially reluctant to appoint Pagan for this reason. However, recognizing that defense counsel had valid reasons for desiring the appointment, Judge Powers recused himself from ruling on the defense motion to appoint Pagan. The matter was referred to Judge Michael J. Sage, the administrative judge of the common pleas court.

{¶ 60} Judge Sage held a hearing on the motion to appoint Pagan. At the hearing, defense counsel explained that Judge Powers had recused himself from the motion because “there are still some cases that Mr. Pagan has in his office that Judge Powers was working on at the time, and he is still owed money from those cases if and when they settle or if judgment is obtained.”

{¶ 61} The prosecution expressed concerns because, if Osie waived his right to a jury trial and if Pagan was called to testify in the penalty phase, Judge Powers might be compelled to recuse himself. Defense counsel responded that the defense did not anticipate waiving a jury and in any event did not plan to call Pagan as a witness. Judge Sage granted the motion to appoint Pagan.

{¶ 62} Osie never asked that Judge Powers recuse himself, nor did he raise the issue of Judge Powers’s alleged bias before the chief justice pursuant to R.C. 2701.03, which establishes procedures for filing an affidavit of disqualification against a common pleas judge. Ohio Constitution, Article IV, Section 5(C) provides: “The chief justice of the supreme court or any judge of that court designated by him shall pass upon the disqualification of any judge of the courts of appeals or courts of common pleas or division thereof.” This provision vests exclusive authority to pass on disqualification matters in the chief justice or her designee. See Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775 (1978).

(¶ 63} In Beer, the court of appeals voided a trial court’s judgment on the ground that the trial judge in that case should have recused himself. We reversed, holding: “Since only the Chief Justice or his designee may hear disqualification matters, the Court of Appeals was without authority to pass upon disqualification or to void the judgment of the trial court upon that basis.” (Footnote omitted.) Id at 441.

{¶ 64} Similarly, in State v. Moore, 93 Ohio St.3d 649, 650, 758 N.E.2d 1130 (2001), we held that an appellant who had failed to file an affidavit of disqualification could not complain on appeal that the judges on the court below were biased. Moore was an appeal to this court from the judgment of a court of appeals that denied an application to reopen an appeal under App.R. 26(B). The appellant argued in this court that the judges of the court of appeals should have recused themselves from ruling on his application. Citing Beer and Article IV, Section 5(C), we held: “Under R.C. 2501.13, when a party believes that a judge of the court of appeals is biased, the proper avenue for redress is filing an affidavit of disqualification with this court. * * * Moore did not file such an affidavit, and therefore is foreclosed from bringing such a complaint.” Id at 650.

{¶ 65} Osie should have brought his bias claim before the chief justice via affidavit for disqualification under R.C. 2701.03. Having failed to do so, he is likewise “foreclosed from bringing such a complaint,” id, on appeal of his conviction.

{¶ 66} In addition to being waived, Osie’s claim lacks merit. The alleged conflict is based on Osie’s belief that Judge Powers “ha[d] a pecuniary interest in not damaging his former law partner’s reputation.” Osie appears to be arguing that if Pagan was appointed and his performance damaged his reputation, the result might be a reduction in the income of his law firm that could endanger his ability to meet his financial obligations to Judge Powers. Because Judge Powers might suffer “financial loss if Pagan’s reputation was harmed,” he was “invested in Pagan’s long term success.”

{¶ 67} Osie’s argument is speculative. Osie does not explain how Pagan’s reputation stood to be harmed by participating in this case. Nor does he explain how an interest in protecting Pagan’s reputation would give rise to a bias against the defense, given that Pagan was affiliated with the defense.

{¶ 68} Osie cites Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927), but Tumey is in no way apposite here. Tumey holds that a criminal defendant is denied due process when subjected to trial before a judge with “a direct, personal, substantial pecuniary interest in reaching a conclusion against him.” In Tumey, the mayor presiding over the village mayor’s court stood to receive $12 in “costs” if — and only if — the defendant was convicted. But in this case, Judge Powers’s relationship with Pagan gave him no “direct, personal, substantial pecuniary interest,” Tumey, either in convicting Osie or in subjecting him to the death penalty.

{¶ 69} Finally, Osie argues that “[ajgreeing not to call Pagan before a mitigation investigation had been undertaken violated Osie’s right to effective assistance of counsel.” However, Osie fails to outline any reasoning by which we could reach such a conclusion.

{¶ 70} To demonstrate ineffective assistance, Osie would have to show both that trial counsel’s failure to call Pagan as a witness was deficient performance and that it prejudiced him. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He does not attempt to make either showing here. Defense counsel may have had valid strategic reasons for not wanting Judge Powers to recuse himself. Moreover, the defense could present whatever witnesses an’d evidence Pagan’s investigation might uncover without having to call Pagan to testify. Osie identifies nothing in the record to show why the defense needed Pagan to testify or how he might have testified. Consequently, Osie fails to demonstrate either deficient performance or prejudice.

{¶ 71} Osie’s 17th proposition of law is overruled.

C. Selection of Three-Judge Panel

{¶ 72} In his ninth proposition of law, Osie contends that the three-judge panel was selected by the judge presiding over the case, Judge Powers, rather than by the presiding judge of the common pleas court, Judge Sage, who should have chosen the panel under R.C. 2945.06. Accordingly, he claims, the panel lacked jurisdiction over his case, and he is entitled to a new trial.

{¶ 73} On April 17, 2009, Judge Powers presided over a hearing at which two other judges for a proposed three-judge panel were selected, in case the defendant elected to waive a jury. Each of the other six judges of the Butler County Common Pleas Court was assigned a number based on seniority. Six balls, numbered 1 through 6, were placed in a bottle. A member of the court’s staff pulled the balls randomly from the bottle.

{¶ 74} Before this was done, Judge Powers stated: “[A]s each number is drawn sequentially, those will be the judges that are assigned to the case should the defense decide to waive a jury in this matter and proceed to a three-judge panel. Does anybody have an objection to that procedure?” Defense counsel said: “No, Your Honor.” Judges Patricia Oney and Charles Pater were the first two judges whose numbers were pulled from the bottle.

{¶ 75} Nearly a year later, Osie decided to waive his right to a jury trial. He submitted a written, signed jury waiver on March 31, 2010. The trial court held a hearing that day, during which Judge Powers conducted a jury-waiver colloquy with Osie, and Osie signed another written waiver, this time in open court. Both jury waivers were filed.

{¶ 76} Also on March 31, the trial court filed the following judgment entry:

The Court, having accepted the Defendant’s Waiver of a Trial by Jury * * * and * * * having previously determined, by random draw, that JUDGE PATRICIA S. ONEY and JUDGE CHARLES PATER shall be assigned to sit as part of a three-judge [panel] * * * in the event that Defendant entered an appropriate waiver of trial by jury, it is ORDERED that a three-judge panel shall be empanelled, * * * to consist of JUDGE NOAH E. POWERS II, presiding, with JUDGES PATRICIA S. ONEY and CHARLES PATER acting as the balance of the three-judge panel * * *.

(Italics and capitalization sic.) This entry was signed by both Judge Powers, in his capacity as “Assigned Trial Judge,” and Judge Sage, in his capacity as “Current Presiding and Administrative Judge” of the Butler County Court of Common Pleas.

{¶ 77} Osie contends that this selection procedure violated R.C. 2945.06, which governs the selection of three-judge panels in bench-tried capital cases, because Judge Powers was not the presiding judge of the common pleas court and was therefore not authorized by R.C. 2945Í06 to choose the other members of the three-judge panel. Osie further contends that because Judge Powers lacked authority to choose the panel, the panel lacked jurisdiction to try this capital case.

{¶ 78} R.C. 2945.06 provides:

If the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges, consisting of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding judge or chief justice of that court * * *.

{¶ 79} We have recently had occasion to construe R.C. 2945.06. See State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557. In Wesson, we held: “The term ‘presiding judge,’ as used in R.C. 2945.06, does not refer to the judge to whom a capital case has been assigned, but rather refers to the presiding judge of the common pleas court.” Wesson at ¶ 46.

{¶ 80} We begin by observing that at trial, Osie never objected to either the panel members or to the procedures used in selecting the panel. Furthermore, in Wesson we expressly declined to hold that “error in the selection of the three-judge panel is per se reversible error [or] that such an error could not be waived.” Id. at ¶ 50. In Wesson, the defense “never objected to the procedure followed by [the judge] to select the panel member nor objected to the panel members” and thereby “forfeited all but plain error.” Id. at ¶ 51. Like Wesson, Osie failed to object at trial and therefore has forfeited all but plain error.

{¶ 81} There are three prerequisites to a finding of plain error: “First, there must be an error, i.e., a deviation from a legal rule. * * * Second, the error must be plain. * * * Third, the error must have affected ‘substantial rights.’ We have interpreted this aspect of the rule to mean that the trial court’s error must have affected the outcome of the trial.” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 82} In this case, Osie fails to demonstrate the first, and most fundamental, of these prerequisites: the existence of an error. No error inhered in the selection of the panel. The legal rule established by R.C. 2945.06 is that the presiding judge of the common pleas court has the power to appoint the panel members. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, syllabus. And there was no deviation from that rule in this case, because Judge Powers did not appoint the panel. Judge Sage did, by signing the March 31 entry.

{¶ 83} “A court of record speaks only though its journal and not by oral pronouncement or mere written minute or memorandum.” Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625 (1953), paragraph one of the syllabus. Therefore, the March 31, 2010 journal entry — not the session of the trial court at which the names of the panel members were drawn — constituted the actual appointment of the panel. Because Judge Sage signed that entry, it was Judge Sage who appointed the panel.

{¶ 84} Therefore, we reject Osie’s argument that although Judge Sage signed the March 31 entry appointing the panel, “he took no part in the actual designation of the other two judges.” The March 31 entry was the “actual designation of the other two judges.” The fact that Judge Powers presided over the hearing at which the panel members were drawn does not matter, just as it does not matter that a court employee actually drew the names from the bottle.

,{¶ 85} Additionally, “[rjeversal for plain error ‘is warranted only if the outcome of the trial clearly would have been different absent the error.’ ” Wesson at ¶ 52, quoting State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). As Wesson demonstrates, the claimed error was not outcome-determinative in this case.

{¶ 86} In Wesson, even though the wrong judge (the judge presiding over the trial, rather than the presiding judge of the court) appointed the panel members, we declined to find plain error because the defendant did not contend that “the appointment of different members to the three-judge panel would have changed the outcome of the proceeding. Further, both of the panelists served as members of the Summit County Court of Common Pleas. Nothing suggests that either was ineligible or unqualified to hear the case.” Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, at ¶ 52.

{¶ 87} Here, as in Wesson, Osie does not contend that the appointment of different members to the panel would have changed the outcome in his case. Moreover, as in Wesson, both panelists were judges of the appropriate common pleas court, and nothing in the record suggests that either judge was ineligible or unqualified to hear the case.

{¶ 88} For the foregoing reasons, the procedure whereby Judges Oney and Pater were appointed to the panel was not plain error. Osie’s failure to make a contemporaneous objection to that procedure forfeits his claim. Hence, we overrule Osie’s ninth proposition of law.

II. Confession Issues

A. Voluntariness of Confession

{¶ 89} Osie’s 15th and 16th propositions of law challenge the voluntariness of his confession and will be considered together.

Osie’s Confession

{¶ 90} When Osie arrived at the sheriffs office on the night of his arrest, he was given a soft drink and taken to the interview room, where his handcuffs were removed. Detective Rob Whitlock read him his Miranda rights from a card. Whitlock testified at the suppression hearing that he told Osie to sign the card “if he understood his rights and he wanted to go ahead and talk to us.” Osie signed.

{¶ 91} The detectives then talked to Osie for about 15 minutes, without recording the conversation. During this part of the interrogation, Osie claimed that Williams had “come at him” with a knife and that Osie “had taken the knife and turned it on Mr. Williams * * * to stab him twice.”

{¶ 92} Then they turned on the tape recorder, and Detectives Whitlock and Melissa Gearhart interviewed Osie from 7:58 p.m. to 8:43 p.m. Osie changed his story several times during this interview, but ultimately confessed to cutting Williams’s throat, stabbing him, and stealing from him. After the first taped interview concluded, Osie was given a fast-food meal. At 9:07 p.m., Detective Gearhart turned on the tape recorder and began a second interview with Osie, during which she asked him about the whereabouts of the knife and about the goods stolen from the house. This interview lasted ten minutes.

Alleged Coercion

{¶ 93} “In deciding whether a defendant’s confession is involuntarily induced, the court should consider the totality of the circumstances * * *.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). Nevertheless, “the use of an inherently coercive tactic by police is a prerequisite to a finding of involuntariness.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 71, citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Consequently, unless the detectives used a coercive tactic, we need not assess the totality of the circumstances. State v. Treesh, 90 Ohio St.3d 460, 472, 739 N.E.2d 749 (2001); Perez at ¶71. “Evidence of use by the interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the totality of the circumstances analysis.” State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988).

{¶ 94} In his 16th proposition of law, Osie claims that the detectives used a coercive tactic when they urged Osie to tell the truth so as to keep Patterson clear of the investigation. Osie contends that this alone rendered his confession involuntary.

{¶ 95} During the first taped interview, Detective Gearhart asked Osie: “And who is the one person that you sent the text to, after everything was done?” Osie replied, “Robin.” Gearhart and Osie then had this exchange:

Q Okay. So * * * here is what you don’t realize that you’re not doing right now by not giving us the big picture, do you love Robin?

A Yeah.

Q Love her a lot?

A Yeah.

Q Okay. The one person that you’ve sent a text to, after this has happened, which is last night, is Robin, she is the only other person besides you that knows that something has happened to David. Where is that going to take us? * * *

A To me.

Q Where is that going to take us? No, think about it. * * * You’ve sent your girlfriend who you love to death a text.

* * * You’re not going to have to worry about David anymore, but you’re going to sit here * * * and tell us I did all of this stuff, I’ve punched him, I’ve stabbed him, I’ve slit his throat, * * * one other person knows that something’s happened to David, maybe not what, I don’t know what your words were earlier, but misconstrued or whatever, you sent her a text that said, you don’t have to worry about David anymore?

A Uh-huh.

Q Who does that take us to, because you don’t want to fill in the blanks?

A. Her.

Q. Bingo. Is that what you want to leave us with, you love her?

A Uh-huh.

Q You need to think about that. Because I guarantee her fingerprints are in the house, she had been there?

A Yeah.

Q They had a business together.

A Yeah.

Q What is that going to do for her, what are you doing for her right now by not completing your story, this is your story * * * but that’s what you’re doing to her, * * * you need to think about that. This is what you’re doing to her.

* * * Don’t turn around and try and do it this way, though, because that’s where it’s going to take us. And I don’t think you want to do that.

But getting the stuff back is going to help you * * *. It’s a big deal for you, and it’s not a big deal for Robin. Where is the TV?

{¶ 96} Threats against a suspect’s family can be coercive. See generally Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (police threatened that suspect’s children would be taken from her if she refused to cooperate); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (confession followed police chiefs pretense of placing a call ordering suspect’s wife brought in for questioning).

{¶ 97} In particular, “threats to arrest members of a suspect’s family may cause a confession to be involuntary.” United States v. Finch, 998 F.2d 349, 356 (6th Cir.1993). The issue “turns on * * * whether the threat could have been lawfully executed,” i.e., whether the police had probable cause to arrest the person in question. United States v. Johnson, 351 F.3d 254, 263 (6th Cir.2003). When there is no probable cause for the threatened arrest and therefore no legal basis for carrying out the threat, a confession caused by the threat is involuntary. Id. at 262.

{¶ 98} In Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, we held that police had not coerced the defendant when they indicated to him that his wife could be subject to arrest, because the police indeed had probable cause to arrest the defendant’s wife. Id. at ¶ 72-76. “Indeed, it may more generally be said that a mere threat to take action which would be lawful and necessary absent cooperation is not objectionable.” 2 LaFave, Israel, King & Kerr, Criminal Procedure, Section 6.2(c), at 623 (3d Ed.2013), fn. 96.

{¶ 99} The alleged threats to involve Patterson in the investigation are, if anything, less coercive than the circumstances in Perez: Patterson was not Osie’s wife, and “[a] relationship other than a spousal relationship is not as susceptible to coercion by threat or promise.” Johnson v. State, 513 N.E.2d 650, 652 (Ind.1987).

{¶ 100} Moreover, the detectives never threatened to arrest Patterson. Detective Gearhart did suggest that Osie’s failure to come clean might implicate Patterson as a suspect (“Who does that take us to, because you don’t want to fill in the blanks?”). But “vague and indefinite” statements do not render a confession involuntary. Id. at 653. Moreover, “the police may bring to the defendant’s attention the probability that his relative may be culpable.” Commonwealth v. Raymond, 424 Mass. 382, 396, 676 N.E.2d 824 (1997).

{¶ 101} In United States v. Jones, 32 F.3d 1512 (11th Cir.1994), an officer told the defendant that his girlfriend would continue to be a suspect unless he explained her participation and that if his girlfriend was part of the robbery, she was subject to prosecution. No promise was made that his girlfriend would not be prosecuted if he cooperated. The court concluded: “Not only was this information true, but also such comments or information would not render Jones’s subsequent statements involuntary.” Id. at 1517. See also United States v. Haynes, 301 F.3d 669, 684 (6th Cir.2002) (alleged threats to take legal action against defendant’s girlfriend and daughter “were not of such a gravity that an ordinary person * * * would have lost the will to resist”); State v. Edwards, 116 S.W.3d 511, 530-531 (Mo.2003) (police had interviewed defendant’s wife and children and told him that they would do so again if he did not tell the truth; held, not coercive).

{¶ 102} We conclude that Detective Gearhart’s discussion during the interrogation of Patterson’s potential involvement was not coercive.

Intoxication

{¶ 103} In his 15th proposition of law, Osie contends that intoxication and cocaine use rendered him incapable of voluntarily waiving his right to remain silent. Sometime after Detective Whitlock Mirandized Osie, Osie told him that he had “some beers” that day, and on the previous night (February 13), he and Robin Patterson had been “doing lines of cocaine.” However, Whitlock testified that Osie did not smell of alcohol and did not appear to be intoxicated.

{¶ 104} There was no evidence at the suppression hearing indicating that Osie had used cocaine more recently than the night before the interrogation. Moreover, the defense submitted no evidence to show how long the effects of cocaine might be expected to continue. Therefore, there was nothing to refute Whitlock’s testimony that Osie did not appear intoxicated.

{¶ 105} Moreover, the record shows that the confession was voluntary under the totality of the circumstances. The totality of the circumstances includes “the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.” Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051, paragraph two of the syllabus.

{¶ 106} There is no evidence that Osie was mistreated in any way. He was given food and drink and during both interviews was permitted to smoke “as he wished.” There is no evidence that he was threatened or promised anything. Osie was interrogated for approximately an hour; then he had a 24-minute break, followed by ten more minutes of interrogation. The record shows that Osie was around 47 years old at the time of the interrogation. Osie never complained of being tired or sleepy, having a cloudy or distorted memory, or being under the influence of any mind-altering substance. Detective Whitlock testified that he appeared to be nervous, but not confused.

{¶ 107} Under the totality of the circumstances, we conclude that Osie voluntarily waived his rights and that his confession was voluntary. Accordingly, Osie’s 15th and 16th propositions of law are overruled.

B. Partial Recording of Interrogation

{¶ 108} In his 18th proposition of law, Osie contends that the trial court should have suppressed his confession because the detectives who obtained it recorded only part of the interrogation.

{¶ 109} Nothing in the federal or Ohio Constitution requires that confessions or police interviews be recorded. State v. Smith, 80 Ohio St.3d 89, 106, 684 N.E.2d 668 (1997). But Osie contends that if police do record an interview with a suspect, due process and fundamental fairness require them to record the whole interview, not just a portion of it. He contends that if police fail to record the whole interview, the trial court must exclude the recorded portion from evidence.

{¶ 110} Osie did not, at trial, raise the partial recording of the interview as a ground for excluding the recorded portions. Therefore, he has waived this issue unless he can demonstrate plain error.

{¶ 111} Osie’s claim is a novel one at best. He cites no cases holding that partial recording of a custodial interview is grounds for excluding the recorded portion. The cases he does cite do not stand for any such proposition. See United States v. Shaver, 89 Fed.Appx. 529, 532-533 (6th Cir.2004) (neither Fed.R.Evid. 106 nor common-law “doctrine of completeness” entitled defendant to introduce his own self-serving hearsay statements at trial); United States v. Spearman, 186 F.3d 743, 756 (6th Cir.1999) (trial court did not err in allowing the government to play only portions of an incriminating videotape; defense had been given the opportunity to play the entire videotape); State v. Davis, 4 Ohio App.3d 199, 447 N.E.2d 139 (1982) (under Evid.R. 106, a party may be compelled to choose between admitting an entire tape-recorded statement and forgoing use of the statement altogether).

{¶ 112} None of these cases holds, implies, or even suggests that where a conversation was partly recorded and partly unrecorded, the trial court must exclude the recorded portion. Nor are these cases based on constitutional principles. (Although Davis does speak of “the fundamental fairness of presenting statements in context,” id. at 201, its holding is ultimately based on Evid.R. 106.) An error is plain error only if the error is obvious. E.g., State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 60. Moreover, plain error must be plain “at the time that the trial court committed it.” State v. Barnes, 94 Ohio St.3d at 28, 759 N.E.2d 1240. In view of the lack of authority to support Osie’s argument, we cannot find that the trial court committed plain error by not suppressing his confession sua sponte on the ground that only part of the interrogation was recorded. Hence, we overrule his 18th proposition of law.

III. Hearsay/Confrontation Issue

{¶ 113} In his second proposition of law, Osie contends that hearsay statements by the victim, David Williams, were introduced at trial and used as substantive evidence of Osie’s guilt, in violation of Osie’s Sixth Amendment right to confront the witnesses against him.

{¶ 114} Osie does not specifically identify the particular statements alleged to have been improperly admitted. However, according to his brief, the statements at issue were “admitted * * * through the testimony of Nick Wiskur.”

{¶ 115} Wiskur’s testimony described statements he overheard Williams make during Williams’s February 13, 2009 phone conversation with Osie. Wiskur testified that Williams said: “I just want to make this right. Robin won’t return any of my phone calls. I don’t really have an issue with it.” Wiskur further testified that Williams said: “I’m going to go to the police. I’m going to file charges. This needs to be taken care of.”

{¶ 116} These statements were admitted over defense objection. The state did not contest the defense claim that the statements were hearsay, but argued that they were admissible under two hearsay exceptions: excited utterance and forfeiture by wrongdoing, Evid.R. 804(B)(6). The trial court overruled the defense objection and admitted Wiskur’s testimony about Williams’s statements under the forfeiture-by-wrongdoing exception of Evid.R. 804(B)(6).

{¶ 117} In their briefs, both parties extensively analyze the admissibility of Williams’s statements under Evid.R. 804(B)(6) and under the forfeiture-by-wrongdoing exception to the Confrontation Clause of the Sixth Amendment. See generally Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) (discussing common-law doctrine of forfeiture by wrongdoing). However, we conclude that Williams’s statements were admissible for a more fundamental reason: they were not hearsay, as Evid.R. 801(C) defines that term, because they were not introduced for the purpose of proving the truth of the matters asserted therein.

{¶ 118} “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). A statement is not hearsay when offered for a purpose other than to prove the truth of the matter asserted. State v. Davis, 62 Ohio St.3d 326, 343, 581 N.E.2d 1362 (1991). In this case, the state did not use Williams’s statement to establish the truth of the matter asserted, but for the nonhearsay purpose of establishing Osie’s motive in killing Williams.

{¶ 119} In his conversation with Osie, Williams said: “I’m going to go to the police. I’m going to file charges.” The “matter asserted” in Williams’s out-of-court statement was that he intended to report something (the thefts from UCU) to the authorities and to file charges concerning the matter.

{¶ 120} The state did not introduce Williams’s statement for the purpose of showing that Williams actually intended to file charges. In fact, whether Williams so intended does not affect Osie’s guilt or innocence of aggravated murder. Therefore, the relevance of Williams’s statement to Osie did not hinge upon whether it was true.

{¶ 121} Instead, the statement was relevant because Williams made it to Osie. Specification 3 to the aggravated-murder counts charged Osie with murdering “a witness to an offense who was purposely killed to prevent the victim’s testimony in any criminal proceeding.” R.C. 2929.04(A)(8). To prove this specification, the state had to prove that Osie killed Williams for the purpose of preventing him from filing a criminal charge. The fact that Williams told Osie that he intended to go to the police to file charges was relevant to prove Osie’s purpose in killing Williams, and consequently, to prove the (A)(8) specification.

{¶ 122} “It is well established that extrajudicial statements made by an out-of-court declarant are properly admissible to explain the actions of a witness to whom the statement was directed.” State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980). A statement is not hearsay when introduced to show its effect on the listener. “A statement that D made a statement to X is not subject to attack as hearsay when its purpose is to establish the state of mind thereby induced in X, such as * * * having knowledge or motive * * *.” (Footnotes omitted.) 2 McCormick on Evidence, Section 249, at 191 (7th Ed.Broun Ed.2013).

{¶ 123} That is precisely how the state used Williams’s statement to Osie: to show that Osie believed that Williams intended to file charges. In closing argument, the prosecutor said:

And so what happens later is a phone call to Dave [Williams], and so we knew that Osie knows that the information was turned over to Dave, because then the conversation between Dave and Greg Osie on the phone where Dave specifically told him, “I am going to the police. I am going to file charges. I am going to the police.”

That was the last conversation that we know they had for a fact when the phone hung up.

(Emphasis added.)

{¶ 124} The state reiterated this point in its rebuttal argument. The prosecutor argued that Osie’s purpose in killing Williams “was to keep him from presenting that criminal testimony.” In support of this assertion, the prosecutor again cited Wiskur’s testimony about the Williams-Osie conversation:

What does Osie do then [after talking to Wiskur]? He calls Dave that same day, and they had that very heated argument that Nick Wiskur overhears.

And in that argument, Dave tells Osie, “I’m going to the police.”

{¶ 125} The state used Williams’s statement to Osie, as testified to by Wiskur, solely for the nonhearsay purpose of showing its effect on Osie — i.e., showing that Osie killed Williams because he believed that Williams intended to file charges with regard to the thefts. Because the statement was not introduced to prove the truth of the matter asserted therein, it was not “hearsay” as the Rules of Evidence define that term.

{¶ 126} For the same reason, the statement’s admission did not violate the Confrontation Clause. “The Clause * * * does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), fn. 9, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). Accordingly, we overrule Osie’s second proposition of law.

IV. Seizure of “Attorney Work Product”

{¶ 127} In his seventh proposition of law, Osie claims that the state violated his Sixth Amendment rights by seizing confidential materials, which he describes as “attorney work product,” during a search of his jail cell and that the trial court erred by admitting these materials into evidence.

{¶ 128} At a motion hearing before trial, defense counsel complained that Osie’s cell in the Butler County jail had been searched and that certain documents had been seized. Defense counsel explained that they had asked Osie to write down