State v. McKelton (148 Ohio St. 3d 261, 2016)

Lanzinger, J.

{¶ 1} Calvin McKelton appeals his convictions of the February 2009 aggravated murder of Germaine (“Mick”) Evans and the July 2008 murder of Margaret (“Missy”) Allen. For the reasons that follow, we reject each proposition of law and affirm the convictions and death sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial Background

{¶ 2} In February 2010, the state charged McKelton with the murder of Allen, R.C. 2903.02(B), and the aggravated murder of Evans, R.C. 2903.01(A). The aggravated-murder charge carried a firearm specification, R.C. 2941.145, and two death specifications, R.C. 2929.04(A)(3) (escaping detection) and (A)(8) (killing to prevent testimony in a criminal proceeding).

{¶ 3} McKelton was also charged with two counts of felonious assault, R.C. 2903.11(A)(1), and two counts of domestic violence against Allen, R.C. 2919.25(A); gross abuse of her corpse, R.C. 2927.01(B); aggravated robbery and aggravated arson, R.C. 2911.01(A)(3) and 2909.02(A)(2); tampering with evidence, R.C. 2921.12(A)(1); and intimidating a witness in a criminal case, R.C. 2921.04(B). The state, with leave of court, dismissed the aggravated-robbery charge before trial.

{¶ 4} A jury trial began in October 2010.

B. The State’s Case-in-Chief

1. Domestic Abuse of Missy Allen

{¶ 5} Missy Allen, a criminal-defense attorney who had represented Calvin McKelton, began dating him in 2006 or 2007. By 2008, McKelton was living with Allen and her nieces, T.W. and Z.D., at Allen’s home in Butler County.

{¶ 6} T.W., then a teenager, testified that she had witnessed physically violent arguments between McKelton and Allen while they were living together. One time she found McKelton on top of Allen, choking her. During another alterca-ción, Allen asked T.W. to call the police, but McKelton took the phone from T.W. and threw it on a counter. T.W. said that after things “start[ed] to get bad,” Allen told her not to say anything about what happened in her house.

{¶ 7} A document on Allen’s home computer, created on September 13, 2007, chronicled abuse. The first-person narrative described an incident during which McKelton hit, kicked, and pushed Allen and then choked her twice, once with such force that she nearly lost consciousness. She listed injuries to her face, right side, right leg, back, and head as well as blood clots in her eyes due to “the loss of air.” She was afraid because McKelton had threatened her and her niece. She indicated that she intended to prosecute and to request a temporary protection order and a high bond.

{¶ 8} A notebook found in Allen’s home office contained handwritten notes that repeatedly mentioned the name “Calvin.” Charia Mam, a friend of Allen’s, testified that the handwriting was Allen’s. Allen described McKelton’s grabbing her by the neck, hitting her lip, threatening to burn her eye with a cigarette, and pushing her down “b/c tried to choke.” Allen also described calling for her niece to call 9-1-1. An undated apology note to Allen, written in McKelton’s handwriting, stated: “I Love u baby, I don’t ever want to hurt u again. * * * I want 2 say sorry 2 you and 2 God for what Ive done.”

{¶ 9} Z.D. was 11 years old at the time of the crime. She testified that on May 4, 2008, she heard McKelton yelling and Allen screaming from the direction of the garage. She called 9-1-1. Officer Kelly Smith was dispatched to Allen’s home, but McKelton and Allen were gone when she arrived. The officer said that Z.D. was visibly shaking and acting with “extreme fear.” McKelton returned while Smith was still at the house. He “burst through the door” yelling Z.D.’s name and told Smith “to bounce [her] ass out of the house.” Allen then called the house and told the officer that she was in the hospital. Z.D. testified that Allen later told her she was “kind of mad” that Z.D. had called 9-1-1 and had not come into the garage.

{¶ 10} Allen gave several accounts of her argument with McKelton. She told police that McKelton had not harmed her and “if anything, she essentially provoked him” by shoving him. She said that she tripped over something in the garage. She told hospital personnel that she had fallen over a lawn mower or bike, told a children’s services representative that she had fallen over a chair, and told her physical therapist that she had fallen down a step.

{¶ 11} Allen’s injury required surgery to place four screws in her ankle as well as physical therapy. According to two friends, Shaunda Luther and Mam, Allen became “increasingly depressed,” “somewhat detached,” and “distant” after the injury. McKelton was always around, and it was hard for Mam and Luther to have meaningful conversations with Allen. Because she could not drive, she depended on McKelton to take her to medical appointments and to court. And Luther said that Allen was depressed because she could not make money to support herself. Her bank account was overdrawn as of July 25, 2008.

{¶ 12} Mam and Luther both testified that Allen had expressed concern about McKelton’s jealousy. Allen told Mam that McKelton “went through her phone and text record frequently, and it always ended in an argument.” She also told Mam that McKelton would kill her if he knew another man had sent her flowers or if he thought she had slept with his friend.

{¶ 13} In July 2008, Allen told Mam that she thought she was pregnant. She told her friend that she feared having a baby would tie her to McKelton forever but that McKelton would kill her if she had an abortion without telling him. Allen suffered a miscarriage later that month.

2. The Murder of Missy Allen

{¶ 14} On July 27, 2008, a woman was found dead in woods on the east side of Cincinnati. A piece of plastic resembling a shower-curtain liner was wrapped around the victim’s thighs, and a bag of counterfeit drugs lay near her body.

{¶ 15} Jan Gorniak, D.O., then a deputy coroner for Hamilton County, performed an autopsy on July 28, 2008. She classified the death as a homicide caused by strangulation. Gorniak could not determine a precise time of death, but she estimated that the body had been in the woods for one and one-half to three days. After the autopsy, police identified the woman as Allen.

a. Physical evidence

{¶ 16} Police then searched Allen’s home. The front door was locked and the security system was activated, but inside they found a burn mark in the master bedroom and several items that later tested positive for gasoline or gasoline components. Officers collected samples of drywall that appeared to have blood on them; the samples were later confirmed to have a DNA profile consistent with Allen’s DNA profile. Two items — a cigarette butt and the door to the garage, which had a smear that appeared to be blood — had a DNA profile consistent with McKelton’s DNA profile.

{¶ 17} Valuable items — including Allen’s purse — were in plain view, apparently undisturbed. Police found a long piece of weed-eater cord on the kitchen floor. There was a shower curtain on the hallway floor but no sign of a shower-curtain liner.

{¶ 18} Allen’s car was found in the village of Golf Manor shortly after midnight on July 29, 2008. It was locked and did not appear to have been tampered with. Cell-phone records indicated that the last outgoing call on Allen’s phone was at 8:27 p.m. on July 25, 2008, to a phone number used by McKelton. Her laptop computer was last used around 4:00 p.m. that day.

b. Investigation of McKelton

{¶ 19} On July 29, McKelton came to the Fairfield Police Department. After he signed a Miranda waiver, he asked whether there were any warrants for him. There were not. McKelton did not answer any other questions. Officers noted small abrasions (possibly burn marks) on McKelton’s hands. They photographed him and took fingerprints, DNA samples, and fingernail scrapings. The DNA samples were not consistent with male DNA collected from Allen’s fingernails.

{¶ 20} Based on céll-phone records, police believed that McKelton had been near Allen’s house on the night of July 25 and the morning of July 26. He made repeated calls that bounced off the Sprint cell-phone tower closest to Allen’s house between 9:02 p.m. and 10:52 p.m. on July 25. McKelton’s next 18 calls bounced off several towers, but he was near the Sprint tower closest to Allen’s house again between 8:01 a.m. and 9:17 a.m. on July 26.

{¶ 21} Later, police learned of a possible eyewitness to Allen’s murder: McKelton’s friend, Evans. Andre Ridley, a friend of Evans’s, testified that Evans had told him about Allen’s death a few days after her body was found. Evans told Ridley that he had been at Allen’s house when he heard her and McKelton fighting in another room. Evans walked in and saw McKelton choking Allen. McKelton then smacked Allen, telling her to wake up, but she did not. The men “started staging the scene as a robbery.” Evans told Ridley that he and McKelton had wrapped up Allen’s body and put it in the car, and McKelton set fire to the house. The two men drove to a wooded area and dumped the body. McKelton threw some drugs beside it.

{¶ 22} According to Ridley, Evans said that McKelton had assured him that he could be charged only with abuse of a corpse. Evans also reported that McKelton gave him 20 ounces of cocaine (worth $20,000 to $40,000). Ridley did not speak with police until months later, after Evans was killed.

{¶ 23} Audrey Dumas testified that she had been with McKelton the night that Allen died. Dumas said that she went out with McKelton one weekend night in late July 2008. McKelton picked her up around 11:15 p.m. in a black BMW, which she recognized as Allen’s car. They went to a club until 2:15 or 2:30 a.m. and then drove around downtown with McKelton’s friends. McKelton brought her home around 3:30 or 4:00 a.m.

{¶ 24} On July 25, McKelton was near Allen’s house at 10:52 p.m. After that, he made or received seven calls — which bounced off different cell-phone towers— before a call bounced off a tower in the vicinity of Dumas’s house at 2:25 a.m. on July 26.

3. The Murder of Mick Evans

{¶ 25} Police did not learn that Evans may have witnessed Alen’s murder until seven months after Alen’s death. Detective Jenny Luke obtained a subpoena for Evans’s DNA and began trying to locate him.

{¶ 26} On February 24, 2009, Luke telephoned Evans’s sister, Crystal Evans, and asked her to tell Evans that police wanted to talk to him about Alen’s death. Luke did not realize that Crystal had been dating McKelton since September 2008 and that he was living with her. Crystal testified that McKelton easily could have overheard her conversation with Luke. McKelton was at Crystal’s home when she called Evans to relay Luke’s message.

{¶ 27} On March 1, Evans’s body was found at the bottom of steps leading into a city park. Four .40-caliber shell casings were nearby. Neighborhood residents reported to police that they had heard four or five gunshots near the park between 9:00 p.m. and midnight on February 27, 2009.

{¶ 28} Gretel Stephens, M.D., a deputy coroner for Hamilton County, performed an autopsy the next day. She gave her opinion that Evans had been dead more than 24 hours and possibly for two or three days. He had been killed by a single gunshot wound to the back of the head on the left side. The shot had been fired at “very, very close” range or possibly even with contact. Stephens recovered bullet fragments that were consistent with a .40-caliber Smith & Wesson Sigma Series semiautomatic.

{¶ 29} Police never found the murder weapon. However, the state did introduce testimony from Allen’s teenaged niece, T.W., about a time when she saw McKelton with a gun, which she said looked like a .40-caliber automatic.

{¶ 30} Cell-phone records indicated that Evans had last placed a call at 9:55 p.m. and last sent a text message at 10:01 p.m. on February 27. According to Crystal, Evans did not trust anyone, so “[s]omebody close to him” must have shot him.

{¶ 31} Crystal provided an alibi for McKelton on the night of February 27, 2009. She told police that he had arrived home before 9:00 p.m. but at trial admitted that it may have been later. She said that after McKelton got home, she went out to buy candy. She testified that when she returned home around 10:00 p.m., McKelton was gone. Crystal called him, and he said he had gone to get cigarettes. McKelton walked in with a pack of cigarettes about five minutes later and the two stayed in for the rest of the night.- On cross-examination, Crystal said that she had called McKelton at 9:22 p.m. and he arrived home for the night a few minutes later.

{¶ 32} Cell-phone records indicate that from 9:10 to 9:51 p.m. on February 27, several calls were made back and forth among McKelton, Brian “Red” Adams, an old friend of McKelton’s, and Audrey Dumas, McKelton’s former girlfriend. Dumas then called McKelton’s number more than two dozen times, ending at 11:37 p.m. Dumas testified that at 11:01 p.m., she was parked outside Crystal’s apartment, believed McKelton was inside, and tried to disrupt their time together by sending text messages telling him to come out. Later, beginning at 2:32 a.m., McKelton called Dumas’s and Red’s numbers multiple times. Crystal testified that she did not recall waking up or hearing McKelton on the phone during the night.

{¶ 33} After Evans’s murder, Crystal avoided McKelton for several weeks, but they resumed their relationship. In June 2010, she gave birth to his son. She regularly visited McKelton in jail as he awaited trial, and they exchanged frequent phone calls and letters. In letters, he reminded her that he was with her the night Evans died and told her to stop “com[ing] at” him like she did not “know for [sure he] was at home wit[h her].” He explained that phone records showed that Evans died at 10:00 p.m. and told Crystal, “[W]e were home asleep at ten.”

4. McKelton’s Admissions

{¶ 34} Multiple witnesses testified that McKelton implicated himself in the deaths of Allen and Evans. Three of them — Marcus Sneed, Charles Bryant, and Lemuel Johnson — were informants charged with other offenses.

{¶ 35} Sneed, who had grown up in the same neighborhood as McKelton, testified that he had run into McKelton at a club and confronted him about Allen’s death. McKelton told Sneed that he had choked Allen during “a heated argument” but that he “didn’t mean to.” McKelton mentioned something about Allen’s pregnancy and about her threatening him with her knowledge of his crimes.

{¶ 36} McKelton also told Sneed that “a friend help[ed] him” get rid of Allen’s body. Sneed confronted McKelton again after hearing rumors about Evans’s death. McKelton stated that he had had to kill Evans because Evans “was the only guy that could link him to the murder.” Sneed did not report this information to police until he was later arrested on federal drug-conspiracy charges.

{¶ 37} Bryant, who had met McKelton during a 2003 incarceration, testified that McKelton had told him about the deaths of Allen and Evans. McKelton said that he had been involved with an attorney and choked her during an argument about whether she was pregnant with someone else’s baby. McKelton also reminded Bryant about what had happened to Evans, which Bryant interpreted as a threat. Bryant did not come forward with this information until he was incarcerated on new charges.

{¶ 38} Johnson testified that McKelton had confessed to both murders while they were discussing drug-related business. According to Johnson, McKelton needed money and was trying to convince him to let him take care of some witnesses for him. McKelton described situations in which he had eliminated witnesses in the past. He said that he had been with Evans’s sister when a detective called looking for Evans to discuss Allen’s death. He explained that Evans had been a “weak link” who could connect him to Allen’s murder, so he had to kill him before the detective found him. But Johnson did not report this conversation until he was awaiting sentencing for a federal drug offense.

{¶ 39} The state also called Gerald Wilson and Michael Nix, two acquaintances of McKelton’s who had reported hearing McKelton admit responsibility for Allen’s death.

{¶ 40} Prior to the trial, Wilson told police about a conversation that he had had with Michael Howell and McKelton in April or May, 2009. One night, Howell gave Wilson a ride; McKelton was in the front passenger seat, texting someone. McKelton commented, “Man, that bitch ain’t giving my shit to nobody. If she did, I’m gonna choke her like I did Margaret and get away with it.” Howell warned McKelton to watch what he said. McKelton responded that Wilson “ain’t gonna do nothing. If he did, he gonna end up like Mick did.” At trial, Wilson recanted and insisted that he knew nothing about Allen’s murder, so the prosecutor played a recording of his original police statement for the jury.

{¶ 41} Nix refused to testify for the state at trial, so Detective David Gregory testified about his prior statements under the doctrine of forfeiture by wrongdoing. According to Gregory, Nix had asked McKelton about Allen, and McKelton said that things “got out of hand, and he didn’t mean to do it.” Gregory also testified that Nix said that Evans, McKelton, Red, and Lamar Simmons were in his house around 11:00 p.m. on February 27, 2009, when he came home. Nix said that the men left about an hour later. He never saw Evans again.

{¶ 42} Sheridan Evans, the mother of Evans and Crystal, testified that McKelton spoke to her less than a week after Allen’s body was found. He “was crying very hard” and said that “he loved Missy and it was a mistake.” McKelton told Sheridan that he had “tried to revive [Allen] for 10 minutes, but [he] couldn’t bring her back.” Sheridan also' testified that McKelton and Red came to speak with her after she met with homicide detectives in March 2009. During the conversation, Sheridan mentioned rumors that McKelton had killed Evans. McKelton denied the rumors but said, “I don’t want to see nothing else happen to none of your kids.”

C. The Defense Case

{¶ 43} Defense counsel did not present any witnesses during the first phase of the trial. However, they introduced almost 30 exhibits, including additional crime-scene photos, the transcript of a police interview with Crystal, and some additional phone records.

D. Verdict and Sentencing

{¶ 44} The jury convicted McKelton on all counts and specifications except Count 11, intimidation of a witness. The trial court merged the death specifications before sentencing, and the state elected to proceed on R.C. 2929.04(A)(8), murdering a witness to prevent his testimony in a criminal proceeding. After the mitigation phase and the jury recommendation, the trial court sentenced McKel-ton to death for the aggravated murder of Evans. The court also sentenced him to 15 years to life in prison for Allen’s murder and to a total of 25 years for the remaining convictions.

{¶ 45} McKelton now appeals, raising 21 propositions of law. We address his propositions out of order for ease of analysis.

II. ANALYSIS

A. Pretrial Issues

1. Nondisclosure of Witnesses: Proposition of Law No. 2

{¶ 46} In his second proposition of law, McKelton challenges the prosecutor’s failure to disclose eight witness names until the night before his trial began.

a. The nondisclosure hearing

{¶ 47} The state originally filed a certification of nondisclosure, pursuant to Crim.R. 16(D), of 23 witness names. After a request from the defense, the trial judge referred the matter to another judge to hold an in camera hearing. By the time the hearing took place, the prosecutor had disclosed all but eight witnesses, seven of whom would testify at trial. At the hearing, the prosecutor argued that disclosure would subject the witnesses or a third party to potential harm, coercion, or intimidation. He offered four pieces of evidence in support.

{¶ 48} First, McKelton had been convicted of intimidating a witness in 2003. Second, in a jailhouse letter to Crystal, McKelton said that they should post witness names in a public place when they got them. Third, in a phone call shortly after McKelton’s arrest, an associate of McKelton’s told him not to worry because they would “John Brown this case.” The prosecutor explained the reference: a Cincinnati homicide defendant named John Brown had been acquitted when every witness against him disappeared or recanted on the eve of his trial. Fourth, a witness whose name had been disclosed, Michael Nix, had recently been shot at shortly after a known associate of McKelton’s had asked Nix about McKelton’s case.

{¶ 49} The judge asked what motivated the state’s heightened concern for these eight witnesses. The prosecutor explained that two witnesses “were extremely afraid to have their names disclosed” and likely would not have agreed to testify absent nondisclosure. In addition, three witnesses, who were then incarcerated, were fearful for themselves and their families. The prosecutor said nothing specific about two witnesses.

{¶ 50} The judge upheld the nondisclosure as a proper exercise of prosecutorial discretion. The prosecutor gave the defense the undisclosed witnesses’ names and all but one of the statements on the evening before trial. One statement was not provided until the next morning, shortly before the trial began.

b. Crim.R. 16(D) and (F)

{¶ 51} As an exception to the general rule requiring the disclosure of witness names prior to trial, a prosecutor may seek relief from disclosure under Crim.R. 16(D)(1) if the prosecutor has “reasonable, articulable grounds to believe that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion.” Such grounds include “the nature of the case, the specific course of conduct of one or more parties, threats or prior instances of witness tampering or intimidation, * * * and any other relevant information.” Crim.R. 16(D).

{¶ 52} Upon a defendant’s motion, an in camera hearing must be conducted seven days prior to trial. Crim.R. 16(F). If the trial court finds an abuse of prosecutorial discretion, then the prosecutor must immediately disclose the material. 2010 Staff Note, Crim.R. 16(F). Otherwise, the material must be disclosed “no later than commencement of trial.” Crim.R. 16(F)(5). We review a lower court’s rulings on discovery matters for an abuse of discretion. State ex rel. Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, ¶ 27.

{¶ 53} McKelton argues first that the court should have found an abuse of prosecutorial discretion under Crim.R. 16(D)(1) because the prosecutor’s grounds were about only McKelton and the case generally and were not specific to each witness. But Crim.R. 16 specifically contemplates nondisclosure for the reasons the prosecutor cited here: the nature of the case against McKelton, his past conviction for intimidating a witness, and evidence that he had sought to intimidate witnesses in this case.

{¶ 54} Second, McKelton argues that the prosecutor could not rely on the undisclosed witnesses’ representations that they feared McKelton’s knowing that they would testify. McKelton contends that the prosecutor, not the witness, is responsible for assessing any possible danger to a witness. While the rules vest the prosecutor with responsibility for making the nondisclosure determination, a prosecutor is not précluded from taking a witness’s own impressions into account when deciding whether to disclose that witness’s identity. A witness’s fear of reprisal is relevant to the question whether disclosure might compromise the witness’s safety.

{¶ 55} Third, McKelton argues that the prosecutor acted arbitrarily because the nondisclosed witnesses offered testimony similar to, but less damaging than, other witnesses whose names were disclosed. Crim.R. 16 does not require the state to explain its reasons for choosing to disclose, and McKelton did not request such an explanation.

{¶ 56} Finally, McKelton says that the eight undisclosed witness names should have been disclosed at least seven days before trial. He ignores the language of Crim.R. 16(F), which plainly states that when a trial court finds no abuse of discretion in a prosecutor’s nondisclosure decision, materials must be disclosed no later than the commencement of trial.

{¶ 57} In sum, the trial court did not abuse its discretion by affirming the certification of nondisclosure as a proper exercise of prosecutorial discretion.

c. Constitutional challenges to late disclosure

{¶ 58} McKelton also argues that the late disclosure of these witnesses’ names violated several of his constitutional rights.

{¶ 59} First, he says that the late disclosure violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. A defendant’s confrontation rights may be “legitimately constrained” by rules of discovery. State v. Williams, 23 Ohio St.3d 16, 18, 490 N.E.2d 906 (1986). We have already rejected a confrontation challenge to the predecessor to Crim.R. 16(D), former Crim.R. 16(B)(1)(e), 34 Ohio St.2d li, at lii-liii, which permitted trial courts to control the disclosure of information that might subject a witness to physical harm or coercion. Williams at 18-19. And in any event, McKelton did have a meaningful opportunity to confront the witnesses against him: the witnesses were disclosed before trial, and defense counsel cross-examined each one who testified. See State v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-068, 2012-Ohio-3754, 2012 WL 7159614, ¶ 22.

{¶ 60} Alternatively, McKelton claims that the late disclosure violated his right to due process and a fair trial. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution prohibits prosecutors from concealing evidence favorable to a defendant, but “[t]here is no general constitutional right to discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Prosecutors are not constitutionally required to “reveal before trial the names of all witnesses who will testify unfavorably.” Id. Instead, “a trial court has broad discretion to postpone disclosure of a prospective witness’s identity in order to protect his or her safety.” Alvarado v. Superior Court, 23 Cal.4th 1121, 1150, 99 Cal.Rptr.2d 149, 5 P.3d 203 (2000). Here, the trial court did just that. Therefore, McKelton cannot demonstrate a violation of his rights to due process or a fair trial.

{¶ 61} Finally, McKelton alleges that the delayed disclosure denied him his right to effective assistance of counsel because it deprived his attorneys of an adequate opportunity to investigate and prepare his defense. To prevail on this claim, he must show both that the nondisclosure caused counsel’s performance to be deficient and that he suffered prejudice. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For reasons explained in response to the 1st, 15th, and 16th propositions of law, McKelton has not met his burden.

{¶ 62} For these reasons, we reject proposition of law No. 2.

2. Withdrawal of Counsel and Continuances: Proposition of Law No. 1

{¶ 63} In his first proposition of law, McKelton argues that the trial court erred by denying his court-appointed counsel’s request to withdraw from representation and his corresponding motion to remove those counsel. He claims that the error in refusing counsel’s request to withdraw “was compounded by the trial court’s failure to grant repeated requests for a continuance” and argues that these errors violated his rights to due process, a fair trial, and effective assistance of counsel.

a. Withdrawal of counsel

{¶ 64} McKelton claims that the trial court should have removed John Gregory Howard and Melynda Cook, his two court-appointed attorneys, as counsel.

(1) Factual background

{¶ 65} Initially, McKelton retained attorney Richard Goldberg. At McKelton’s arraignment in February 2010, Goldberg informed the court that he lacked experience trying capital cases. He also explained that McKelton had become indigent and asked the court to appoint counsel under former Sup.R. 20, 105 Ohio St.3d CXLV. Goldberg also sought “permission to stay on” as counsel, if the state did not object. The trial judge appointed Howard as lead counsel and Cook as co-counsel because he was unsure “what the status of [Goldberg’s] participation” would be.

{¶ 66} On September 14, 2010, Goldberg, Howard, and Cook moved for leave to withdraw, for the appointment of new counsel, and for a continuance so new counsel could prepare for trial. Two days later, McKelton filed a handwritten motion asking the “court to remove all counsel because of irreconcilable differences, lawyer misconduct, conflict of interest, misrepresentation, personal conflict and a complete lack of communication.”

{¶ 67} Goldberg was permitted to withdraw because of a conflict of interest. But Cook and Howard cited only “a breakdown in the attorney client relationship” as the basis for their request. Howard explained that McKelton did not trust his appointed counsel and would no longer cooperate in preparing his defense.

{¶ 68} McKelton told the trial judge that counsel had tried to pressure him into accepting a plea bargain. He claimed that his attorneys and the prosecutor had “conspired” to “coerce” him to accept a plea offer and that Cook was “outraged”- — even making a racist comment — -when he refused. McKelton also said that Howard and Cook had failed to effectively communicate with him, adequately prepare for trial, -use his money well, or hire the necessary defense experts.

{¶ 69} The trial judge denied Howard and Cook’s motion to withdraw, finding that they were competent and had prepared the case “diligently.” The judge reasoned that communication had broken down due to McKelton’s rejection of counsel’s legal advice and refusal to cooperate.

(2) Analysis

{¶ 70} We review a lower court’s decisions about whether to discharge and replace court-appointed counsel for an abuse of discretion. State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 135. A defendant may establish good cause to substitute new counsel by demonstrating “a ‘complete breakdown in communication’ between the defendant and appointed counsel.” State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d 298 (1999), quoting United States v. Catabro, 467 F.2d 973, 986 (2d Cir.1972).

{¶ 71} McKelton suggests several reasons why the trial court erred by not dismissing Howard and Cook. First, he claims that the attorney-client relationship completely broke down when counsel encouraged him to accept a plea bargain. But disagreements — such as disagreement over the merits of a plea offer — “ ‘between the attorney and client over trial tactics or approach * * * do not warrant a substitution of counsel.’ ” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 150, quoting State v. Evans, 153 Ohio App.3d 226, 2003-Ohio-3475, 792 N.E.2d 757, ¶ 32 (7th Dist.). To the contrary, counsel “ ‘has a duty to be candid’ ” and “ ‘to give the accused an honest appraisal of his case.’ ” Id. at ¶ 151, quoting Brown v. United States, 264 F.2d 363, 369 (D.C.Cir.1959). Here, defense counsel apparently gave McKelton their honest appraisal of his case, which does not prove bias or conspiracy.

{¶ 72} McKelton also claims that he lacked confidence in Howard and Cook because they faded to establish a relationship of trust, met with him only twice, and did not consult with him about the state’s evidence. But the record suggests that he met with Goldberg more regularly. The fact that he may have had fewer personal interactions with Howard or Cook in the months preceding Goldberg’s withdrawal does not justify the removal of court-appointed counsel simply because Goldberg later withdrew.

{¶ 73} Next, McKelton objects that Howard and Cook failed to hire the necessary experts to prepare his defense. The trial court approved funding for “an investigator and mitigation specialist, a mental health professional, if * * * appropriate, and a forensic expert, if * * * appropriate.” Counsel apparently hired only an investigator. But that does not necessarily prove that counsel were unprepared. Until a few weeks before trial, McKelton was represented by three attorneys. And his investigator worked more than 100 hours on the case. Defense counsel’s decision whether to hire additional experts was a matter of trial strategy, and McKelton cannot establish that the strategy was unreasonable on this record. See State v. Keyes, 6th Dist. Erie No. E-08-072, 2009-Ohio-6343, 2009 WL 4448659, ¶ 28.

{¶ 74} Finally, McKelton says that counsel should have been permitted to withdraw because they were afraid of him. But counsel’s only expression of concern occurred during the hearing on the motion to withdraw and only in response to the prosecutor’s reference to threats made by McKelton. The prosecutor promptly clarified that McKelton had not threatened his counsel. Thus, fear did not require the substitution of counsel in this case.

{¶ 75} The trial court reasonably declined to discharge Howard and Cook.

b. Continuances

{¶ 76} McKelton argues that the trial court’s denial of his continuance requests violated his constitutional rights and prejudiced his defense. To the extent that McKelton’s argument implicates his constitutional right to the effective assistance of counsel, McKelton must meet the Strickland test, showing both that counsel’s performance was deficient and that he suffered prejudice.

{¶ 77} First, McKelton says that the court should have granted a continuance on September 17, 2010, when Goldberg withdrew. The defense’s continuance motion was predicated on the appointment of new.defense counsel, who would need additional time to prepare for trial. A continuance was unnecessary because Howard and Cook remained as defense counsel and they had “known for a significant amount of time” that Goldberg was likely to withdraw. Two months before trial, defense counsel indicated that Goldberg’s representation of McKel-ton might create a conflict of interest. The judge had previously warned Howard and Cook that they would need to be ready to go to trial without Goldberg and, on September 17, he found that they were prepared to do so. Neither Howard nor Cook indicated that they needed additional time to prepare as a result of Goldberg’s withdrawal. McKelton does not explain how any deficient performance resulted from Goldberg’s withdrawal, undermining any claim under Strickland. Accordingly, we find no error in the trial court’s denial of the continuance request on September 17.

{¶ 78} Second, McKelton says that the trial court should have granted a continuance to allow the defense to investigate and prepare to cross-examine the eight state witnesses who were disclosed shortly before trial began. The authors of Crim.R.16 made clear that routine continuances to allow further defense investigation of nondisclosed witnesses would destroy “the protective purpose of [the nondisclosure] process.” 2010 Staff Notes, Crim.R. 16(F). For this reason, the “[Rules] Commission anticipated that continuances of trial dates would occur only in limited circumstances.” Id.

{¶ 79} McKelton asserts generally that more time would have aided his defense, but he does not explain why this case qualifies as one of those limited circumstances. The record does not indicate that defense counsel were unprepared for cross-examination; they cross-examined each of the late-disclosed witnesses who testified at trial and even used some statements — as provided by the state — to impeach them. And McKelton offers no indication of what information further investigation would have yielded or how counsel would have used that information. See State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997) (claims that require evidence outside the record are not appropriately considered on direct appeal).

{¶ 80} Thus, McKelton has failed to establish an abuse of discretion or a violation of his constitutional rights.

{¶ 81} For these reasons, we reject proposition of law No. 1.

3. Voir Dire: Proposition of Law No. 3

{¶ 82} In his proposition of law No. 3, McKelton argues that the trial court violated his right to an impartial jury by denying his motion for individual, sequestered voir dire. He further claims that defense counsel did not have sufficient opportunity to question the venire.

{¶ 83} “The manner in which voir dire is to be conducted lies within the sound discretion of the trial judge.” State v. Lorraine, 66 Ohio St.3d 414, 418, 613 N.E.2d 212 (1993). However, because an adequate voir dire is “part of the guarantee of a defendant’s right to an impartial jury,” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), that discretion is “ ‘subject to the essential demands of fairness,’ ” id. at 730, quoting Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).

a. Group voir dire

{¶ 84} “There is no requirement that voir dire in a capital case must be conducted in sequestration.” State v. Fears, 86 Ohio St.3d 329, 338, 715 N.E.2d 136 (1999). In State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, we held that a trial court did not err by denying a request for sequestered voir dire when the court “permitted] counsel to individually question prospective jurors” and also “gave all jurors the opportunity to be questioned in private if they were uncomfortable discussing their views in a group setting.” Id. at ¶ 66.

{¶ 85} The trial court voir dired McKelton’s prospective jurors in a group. But as in Leonard, the judge anticipated that the prospective jurors might not be comfortable answering every question in front of the entire group. At the outset of voir dire, he advised, “[I]f at any point during this process you wish to answer a question privately, you may do so.” He reiterated this point just before allowing counsel to individually question the prospective jurors. Under these circumstances, we see nothing inherently unfair about the manner in which the trial court conducted voir dire.

{¶ 86} McKelton nevertheless claims that group voir dire was prejudicial because “[t]he entire venire was made aware of pretrial publicity.” The trial judge asked whether “anybody here [ ] knows anything about this based upon publicity of the case.” Five prospective jurors responded affirmatively, and three indicated some doubt about McKelton’s innocence based on press coverage. The prosecutor explained to the venire that news reports are not evidence and that they are not always accurate. And no juror responded when these jurors were asked whether they could not set aside anything they had read. In fact, defense counsel even described an error in a recent news account.

{¶ 87} McKelton argues that this line of questioning tainted the entire venire by informing every potential juror that some press coverage had implied his guilt. But an entire venire is not necessarily prejudiced due to “the effect of being influenced by the opinions expressed by prior veniremen.” State v. Carter, 72 Ohio St.3d 545, 555, 651 N.E.2d 965 (1995). We decline to presume that McKelton’s entire jury pool was tainted simply because the prospective jurors learned that negative publicity existed. In addition, McKelton does not point to any evidence that the venire was actually prejudiced by the voir dire on publicity. Under these circumstances, there is no indication that any of the seated jurors were biased against McKelton.

{¶ 88} McKelton also objects to the prosecutor’s questions about domestic violence during group voir dire. McKelton did not object to the prosecutor’s questions, but he now says that they unfairly influenced the entire venire. In light of the pending domestic-violence charges, it was reasonable for the prosecutor to inquire about the prospective jurors’ “history * * * with acts of domestic violence as a means of determining their ability to give fair consideration to the issues that would arise at trial.” State v. Collymore, 8th Dist. Cuyahoga No. 81594, 2003-Ohio-3328, 2003 WL 21469121, ¶ 65. We will not presume that an entire venire is prejudiced simply because the prospective jurors were exposed to the opinions of other veniremen. Carter at 555. And the record does not indicate that the discussion of domestic violence actually biased any of the jurors.

{¶ 89} For these reasons, we reject McKelton’s argument that the trial court erred by denying his motion for individual voir dire.

b. Insufficient opportunity for voir dire

{¶ 90} McKelton also argues that defense counsel did not have a sufficient opportunity to ensure the jurors’ impartiality.

{¶ 91} First, he says that the jury questionnaire was inadequate. At a pretrial hearing, defense counsel requested a 12-page jury questionnaire, and the state requested its usual 2-page questionnaire. The trial judge agreed to produce a questionnaire “in between” the parties’ proposals. In the end, the jury questionnaires did not address attitudes toward the death penalty.

{¶ 92} Trial courts have discretion to determine the content of jury questionnaires. See State v. Davie, 80 Ohio St.3d 311, 317, 686 N.E.2d 245 (1997). Here, McKelton cannot show that the trial court’s decision to use its own questionnaire was unreasonable, arbitrary, or unconscionable. Moreover, McKelton has failed to establish that he was prejudiced by the omission of questions about attitudes toward the death penalty. He does not assert that any seated juror was predisposed to order a sentence of death.

{¶ 93} Second, McKelton claims that his counsel did not have enough time to conduct voir dire. During a pretrial hearing, defense counsel warned that it might take two days to select a jury. The judge responded, “It will take whatever life and time it takes.” On the morning that voir dire began, the trial judge told the venire, “[W]e believe we’ll have a jury selected by the close of business today.” Midafternoon, defense counsel thanked the prospective jurors and explained, “I know it’s getting late, and I’m going to try to wrap this up, but I have a couple of other things that I want to talk about * * *.” Later, after defense counsel asked his final question, he took a moment to review his notes, then thanked the judge and jurors for their patience. Defense counsel did not request more time, indicate that he felt rushed, or state a desire to ask additional questions. We see no reason to conclude that voir dire was unduly truncated.

{¶ 94} McKelton’s third proposition of law is not well taken.

B. Evidentiary Issues

1. Forfeiture by Wrongdoing: Proposition of Law No. 4

{¶ 95} In proposition of law No. 4, McKelton argues that the trial court erred by admitting various hearsay statements by Missy Allen under the doctrine of forfeiture by wrongdoing. According to McKelton, this alleged error violated his rights to confrontation and due process.

{¶ 96} Forfeiture by wrongdoing has long been recognized as an equitable exception to a defendant’s constitutional right to confront the witnesses against him. See Giles v. California, 554 U.S. 353, 366, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed.2d 244 (1878). Ohio codified this doctrine in 2001 as a hearsay exception under Evid.R. 804(B)(6). To admit statements under this exception, a prosecutor must show by a preponderance of the evidence that (1) the defendant engaged in wrongdoing that caused the witness to be unavailable and (2) one purpose for the wrongdoing was to make the witness unavailable to testify. See State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 106; State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 84.

{¶ 97} Ordinarily, we review a trial court’s hearsay rulings for an abuse of discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However, we review de novo evidentiary rulings that implicate the Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir.2010).

a. Factual background

{¶ 98} The prosecution filed notice of its intent to offer Allen’s statements under Evid.R. 804(B)(6) in August 2010, but the trial court did not address the forfeiture question until the trial in October.

{¶ 99} Defense objected when the prosecutor asked his third witness, Sherrie Bluester, the children services’ screener, what Allen had said about her broken ankle. The prosecutor argued that Allen’s statements were admissible under the forfeiture doctrine because he had established (1) Allen’s unavailability and (2) that McKelton had acted with purpose when he made her unavailable. The trial judge overruled McKelton’s objection. The judge explained, “[T]he allegation in this case is that this defendant murdered the victim, Ms. Allen, and I think this is exactly what the forfeiture by wrongdoing exception is.” The defense noted a continuing objection on this basis.

{¶ 100} The next day, the court invited the parties to more fully articulate their positions on forfeiture by wrongdoing. Defense counsel objected that the trial court had not found that McKelton had made Allen unavailable with the purpose of preventing her appearance at a trial. But the prosecutor argued that it was proper to infer McKelton’s purpose from his history of domestic violence against Allen. He cited Z.D.’s and T.W.’s “testimony about the pattern of abuse” and “the multiple incidents” that they had witnessed. He also noted T.W.’s testimony that McKelton had once snatched the phone from her after Allen had asked her to call the police. The state contended that this evidence showed, by a preponderance of the evidence, “that this relationship was in a dynamic of domestic violence, of a pattern of abuse designed to isolate her and keep her from reporting to outside help.”

{¶ 101} Referring to his ruling from the previous day, the trial judge found that the state had met its burden, given “the totality of the evidence in this particular case.” The judge stressed that the defense could still object to Allen’s statements on other grounds.

b. Admissibility under the Confrontation Clause

{¶ 102} McKelton claims that his confrontation rights were violated by the admission of dozens of Allen’s statements through the testimony of her nieces, her friends, a physical therapist, the children’s services screener, and a police officer. He says that these statements were not admissible under the forfeiture-by-wrongdoing exception because the state did not establish that he had killed Allen with the purpose of preventing her from testifying against him.

{¶ 103} The United States Supreme Court has analyzed the forfeiture doctrine’s common-law roots and concluded that it “applie[s] only when the defendant engaged in conduct designed to prevent the witness from testifying” about an earlier offense. (Emphasis sic.) Giles, 554 U.S. at 359, 128 S.Ct. 2678, 171 L.E.2d 488. Accordingly, “unconfronted testimony [will] not be admitted without a showing that the defendant intended to prevent [the] witness from testifying.” (Emphasis sic.) Id. at 361. Giles does not require that this be a defendant’s “sole or even primary purpose,” however; it is sufficient if one purpose for the defendant’s conduct was to make the victim unavailable, State v. Supanchick, 354 Or. 737, 749, 323 P.3d 231 (2014); see also Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 90 (interpreting Evid.R. 804(B)(6)).

(1) Accident and purpose

{¶ 104} McKelton argues that the notion of “purpose” in forfeiture analysis is inconsistent with both the charges against him and the state’s theory of Allen’s murder.

{¶ 105} Because the state charged McKelton with the felony murder of Allen, R.C. 2903.02(B), predicated on an underlying offense of felonious assault, R.C. 2903.11(A)(1), the state had to prove only that he acted knowingly in committing the felonious assault, not purposely in killing Allen. See Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 43 (felony murder requires proof of “the mens rea element set forth in the underlying felony offense”).

{¶ 106} But mere knowledge does not satisfy the purpose prong of the forfeiture doctrine. Giles makes clear that the exception will not apply “in the typical murder case involving accusatorial statements by the victim” when the defendant has “caused a person to be absent” but did “not do[ ] so to prevent the person from testifying.” 554 U.S. at 361, 128 S.Ct. 2678, 171 L.Ed.2d 488. Instead, it applies in a murder case only if the state proves that a defendant murdered the victim with the purpose of preventing the victim’s testimony about a separate offense.

{¶ 107} The record does not indicate that McKelton had planned to kill Allen on July 28, 2008, let alone to do so for a particular reason. Indeed, the state’s theory was that Allen’s murder “was spontaneous” and “wasn’t planned.” Witnesses testified that McKelton killed Allen during an argument and tried to revive her. Thus, the immediate circumstances of Allen’s death do not establish the requisite purpose that would allow the admission of testimonial statements because of forfeiture by wrongdoing.

(2) Domestic violence and purpose

{¶ 108} The immediate-circumstances analysis does not end the inquiry, however, because, as the state argues, the broader circumstances — the history of domestic violence between McKelton and Allen — support an inference of purpose in this case.

{¶ 109} In Giles, the Supreme Court expressly “left open the possibility that a defendant’s intention to prevent testimony might be inferred from the surrounding circumstances, such as in a case of ongoing domestic violence.” Crawford v. Commonwealth, 55 Va.App. 457, 473, 686 S.E.2d 557 (2009), aff'd, 281 Va. 84, 704 S.E.2d 107 (2011).

{¶ 110} The court explained that “[a]cts of domestic violence” are relevant to the purpose inquiry because they “often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions.” Giles, 554 U.S. at 377, 128 S.Ct. 2678, 171 L.Ed.2d 488. When an abusive relationship ends in murder, “the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution — rendering her prior statements admissible under the forfeiture doctrine.” Id. Hence, in deciding whether the forfeiture exception applies, courts should regard as “highly relevant” any evidence of past abuse (or threats) designed to discourage a victim from seeking outside help, as well as evidence of ongoing criminal proceedings where the victim was expected to testify. Id.

{¶ 111} Evidence of domestic violence is “highly relevant” to analyzing the purpose prong of the forfeiture exception. Giles at 377; see also, e.g., State v. McLaughlin, 265 S.W.3d 257, 272 (Mo.2008); People v. Banos, 178 Cal.App.4th 483, 491-492, 100 Cal.Rptr.3d 476 (2009).

{¶ 112} McKelton argues that there is insufficient evidence of domestic violence in this case. The record does not indicate that Allen ever reported domestic abuse to police or that she was expected to testify against McKelton in a pending criminal proceeding when she died. Compare Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 108-109; McLaughlin at 272.

{¶ 113} Even so, purpose can be inferred from the evidence in this case. Allen’s nieces, who lived with McKelton and Allen, both testified about McKel-ton’s abuse of Allen. And T.W. specifically testified that McKelton took the phone away from her when Allen asked her to call 9-1-1. When Z.D. did call 9-1-1 on the night that Allen broke her ankle, McKelton was enraged. Thus, although Allen had not formally contacted police, her nieces’ testimony indicates that McKelton was trying to isolate Allen and prevent her from talking to authorities.

{¶ 114} For these reasons, the admission of Allen’s statements did not violate Giles’s purpose requirement and we reject proposition of law No. 4.

2. Impeachment of Gerald Wilson: Proposition of Law No. 6

{¶ 115} In proposition of law No. 6, McKelton argues that the trial court erred by permitting the state to impeach its own witness, Gerald Wilson, with his prior inconsistent statement and by admitting extrinsic evidence of that prior statement. McKelton also argues that the prosecutor improperly relied on Wilson’s prior statement as substantive evidence of his guilt.

a. Factual background

{¶ 116} Wilson gave a police statement in January 2009 in which he said that he had heard McKelton admit to choking Allen. McKelton also threatened that if Wilson said anything, he would “end up like Mick did.”

{¶ 117} When the state called Wilson to testify, he denied or claimed not to recall having made the statements. When pressed, he broadly asserted that he did not know anything about the matter. Finally, he admitted that he had spoken to police, but then claimed that police had falsified the transcript of his statement. He insisted that he had been lying and that police were telling everyone to lie about McKelton. Over defense objection, the state played an audio recording of Wilson’s police interview.

{¶ 118} After Wilson left the stand, the prosecutor asserted that he had been “shocked and surprised” by his recantation. The prosecutor stated that he had personally interviewed Wilson and that his representations had been consistent with his police statement. The trial judge found that “there were surprises and affirmative damage,” which allowed the state to impeach Wilson under Evid.R. 607. The next day, the state sought to admit Wilson’s statement as an exhibit. The trial court sustained a defense objection.

b. Application of Evid.R. 607(A)

{¶ 119} Evid.R. 607(A) authorizes a party to impeach its own witness “by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.” We review a trial court’s application of this rule for an abuse of discretion. Davie, 80 Ohio St.3d at 323, 686 N.E.2d 245.

{¶ 120} “Surprise” occurs when a witness’s testimony materially differs from a prior statement and counsel had no reason to believe that the witness would testify as he did at trial. See id.; Ferguson Realtors v. Butts, 37 Ohio App.3d 30, 33, 523 N.E.2d 534 (12th Dist.1987); State v. Blair, 34 Ohio App.3d 6, 9, 516 N.E.2d 240 (8th Dist.1986). Here, the prosecutor said he was “shocked and surprised” when Wilson’s trial testimony materially differed from his statement to police. Under these circumstances, the trial court reasonably found that the state was surprised by the witness’s testimony.

{¶ 121} The “affirmative damage” requirement is satisfied if a “party’s own witness testifies to facts that contradict, deny, or harm that party’s trial position.” Blair at 9; see also Ferguson Realtors at 33. Wilson said that police had asked him — and other witnesses — to lie. This potentially undermined the testimony of several crucial state witnesses who had testified that they had heard McKelton confess to one or both murders. Given that the prosecutor did not have any eyewitnesses, the trial court reasonably found that Wilson’s testimony affirmatively damaged the state’s case.

{¶ 122} McKelton also objects that the state did not establish surprise and affirmative damage before impeaching Wilson. The defense did not object to the state’s examination of Wilson until the state announced that it would like to play a recording of his January statement. At that time, the trial court invoked Evid.R. 607(A) to overrule the defense objection and allowed the state to play the recording. On this record, we hold that the requirements of Evid.R. 607 were satisfied.

{¶ 123} Furthermore, McKelton cannot demonstrate any plain error in the state’s questioning of Wilson before the defense objected at trial. See State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The state’s questions laid the necessary foundation for introducing extrinsic evidence of Wilson’s prior statement under Evid.R. 613. And these questions did not alter the outcome of McKelton’s trial.

{¶ 124} In short, the trial court did not abuse its discretion by allowing the prosecutor to impeach Wilson with his prior inconsistent statement.

c. Extrinsic evidence of Wilson’s prior statement

{¶ 125} McKelton also claims that by permitting the state to play an audio recording of Wilson’s prior statement, the trial court contravened State v. Ballew, 76 Ohio St.3d 244, 667 N.E.2d 369 (1996), which prohibits reading a witness’s prior statement to the jury. But Balleio involved only the reading of a prior statement to refresh a witness’s recollection under Evid.R. 612. Id. at 254. By contrast, Evid.R. 613 specifically contemplates the admission of extrinsic evidence of a prior statement under the circumstances outlined in Evid.R. 613(B). Ohio courts have regularly applied the rule to admit a witness’s prior inconsistent statement for impeachment purposes. See, e.g., State v. Fisher, 8th Dist. Cuyahoga No. 83098, 2004-Ohio-3123, 2004 WL 1354061, ¶ 14; State v. Shaffer, 114 Ohio App.3d 97, 102, 682 N.E.2d 1040 (3d Dist.1996).

{¶ 126} McKelton does not dispute that the state satisfied the requirements of Evid.R. 613. The state laid the proper foundation before playing the recording, and the contents of Wilson’s statement went to a fact of consequence to the action: his testimony presented a conflict with his prior statement about whether McKelton had confessed or police were manufacturing a case against him. Thus, the trial court did not abuse its discretion by permitting the state to play the recording for the jury.

d. Wilson’s statement as evidence of McKelton’s guilt

{¶ 127} Finally, McKelton argues that the state improperly relied on Wilson’s prior statement as substantive evidence of McKelton’s guilt. As a result, he asserts that there is a “grave risk” that he was convicted based on unsworn testimony, in violation of the Fifth, Sixth, and Fourteenth Amendments.

{¶ 128} As a general rule, “prior inconsistent statements constitute hearsay evidence and thus are admissible only for the purpose of impeachment.” 1 Gianelli, Evidence, Section 607.4, at 482-483 (3d Ed.2010); see also id., Section 613.3, at 591. Accordingly, unless another hearsay exception applies, a party may not interrogate his own witness about a prior inconsistent statement “ ‘for the purpose of offering substantive evidence against the accused.’ ” State v. Dick, 27 Ohio St.2d 162, 165, 271 N.E.2d 797 (1971), quoting State v. Duffy, 134 Ohio St. 16, 15 N.E.2d 535 (1938), paragraph two of the syllabus. Further, the prosecutor must not refer to such statements for their truth during closing argument. State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 54 (6th Dist.), citing State v. Kirk, 6th Dist. Huron No. H-09-006, 2010-Ohio-2006, 2010 WL 1818894, ¶ 28.

{¶ 129} During closing argument, the prosecutor did cite Wilson’s prior inconsistent statement as substantive evidence of McKelton’s guilt. But because McKelton did not request a limiting instruction or otherwise object, plain-error review applies. State v. Dior, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 91.

{¶ 130} Given the state’s reliance on Wilson’s prior statement as substantive evidence 'and the lack of a limiting instruction, the jury may have considered the unsworn testimony in support of its conviction of McKelton. But the error was not outcome-determinative, because Wilson was not the only person to hear McKelton confess to the murder of Allen or Evans. Sheridan Evans, Marcus Sneed, and Charles Bryant all testified that he had implicated himself in Allen’s death. And Sneed, Bryant, and Lemuel Johnson all testified that McKelton implicated himself in Evans’s de