COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69267 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JEFFREY KEITH : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MARCH 13, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-316724 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES DAVID L. DOUGHTEN, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue, N.E. A. STEVEN DEVER, Assistant Cleveland, Ohio 44103 MICHAEL P. DONNELY, Assistant Prosecuting Attorneys 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant Jeffrey Keith appeals from his conviction following a jury trial on five counts of arson (R.C. 2909.03) and one count of grand theft (R.C. 2913.02) occurring in 1992. These charges related to his ongoing attempts to win back his former live-in girlfriend by isolating her from friends offering support to her. Defendant contends the trial court erred: in allowing prejudicial "other acts," hearsay and other irrelevant evidence before the jury; by prejudicially interfering in the conduct of the trial and showing bias towards the defendant; and abusing its discretion in sentencing without considering mitigating factors. The defendant also claims he was deprived of effective assistance of counsel in violation of his constitutional guarantees. We find no reversible error and affirm for the reasons hereinafter stated. The State contended that the arson crimes arose out of an obsessive and abusive relationship that defendant, a practicing attorney, had with a woman named Jamie Baker. The State had no direct or physical evidence linking the defendant to the torching of various automobiles of friends close to Ms. Baker. It had to rely principally on circumstantial evidence and admissions by defendant to third persons. The State offered proof that Ms. Baker terminated her tumultuous off-and-on again relationship with defendant in early 1992 and with her three children moved out of his home; that a history of stalking and physical and psychological abuse followed, designed to convince Ms. Baker to come back to - 3 - defendant; this culminated in a series of mysterious fires in which her friends' cars were destroyed or damaged. Forty-one witnesses testified at trial which extended from May 30 to June 9, 1995 and produced 2,792 pages of transcript. Jamie Baker, mother of three small children and an admitted alcoholic, met defendant in 1988 when she was a follower of a local country-western band, Pony Express, which defendant managed. She began dating him in 1989 while she was on welfare. Her divorce from John Baker, who was in prison, became final in October 1989. From February to September 1990, Baker and her children moved in and lived with defendant on West 116th Street in Cleveland while he supplied all their necessaries. However, she testified that he became extremely controlling and possessive by locking her and the children in the house, forbidding her former social contacts, and preventing her from visiting her mother and sister. She and the children moved out and stayed with her ex-sister- in-law, Lisa Baker, and her husband Bruce Tithecott on West 104th Street for about two months. Keith came and begged her to come back, offering her an engagement ring. In November of 1990, Baker and the children moved back with Keith, this time in his house on Elbur Avenue in Lakewood. Things were peaceful for a time until January 1991. At that time, Keith learned that Ms. Baker had secretly visited her ex-husband in prison, became angry and beat her. After that beating, Baker "walked on eggshells" and kept the house and children in line to please defendant. - 4 - She and Keith began planning to have a child and she became pregnant in the summer of 1991. They were undecided about having the child and visited several abortion clinics. She had an ultrasound and discovered that she was carrying a little girl. Keith wanted a son and forced her to have an abortion in November of 1991. Following the abortion, their relationship deteriorated and defendant continued to visit verbal and physical abuse on defendant, even threatening to douse her with gasoline and set her afire. In January 1992, according to her testimony, Ms. Baker's ex- husband, John Baker, was released from prison and she decided to end her relationship with the defendant and move out. With the assistance of her best friend, Michelle Kolman, while defendant was away, she moved out of defendant's home with her three small children and temporarily stayed at a Catholic Charities shelter for the homeless for a period of two weeks. From the shelter, Ms. Baker moved into a rental property on Westlake Avenue in Lakewood that she shared with a friend named Sherry. This property was owned by a friend of her mother. While living there, she began observing the defendant driving up and down the street numerous times. Eventually, defendant discovered Ms. Baker's location, approached her and pleaded with her to come back to him. Ms. Baker refused. The defendant returned to the Westlake address on several occasions, requesting that Ms. Baker come back to him. The defendant's appeals were unsuccessful. - 5 - Shortly thereafter, printed leaflets were mysteriously circulated to neighbors on Westlake Avenue claiming the occupants of Ms. Baker's residence were drug users. Ms. Baker, her ex- husband John and her ex-brother-in-law, Bruce Tithecott, went to the neighbors to explain the untruthfulness of these leaflets. In the early hours of April 9, 1992, a brick with a copy of the same mysterious leaflets attached came crashing through the foyer window of the Westlake Avenue home. At around the same time, a softball was thrown through a window on Brockley Avenue, two streets away, where Lisa Baker lived. The police were called. The defendant's van was observed by the police with its lights off parked on the wrong side of Westlake Avenue shortly before receiving a dispatch concerning the shattered windows. Jeffrey Keith was pulled over and denied knowing anyone on Westlake Avenue or even being on the street. No leaflets or bricks were found in Keith's van. Pursuant to a detective's request, the defendant came to the Lakewood Police Department the next day. After some evasive denials, the defendant, when asked whether he threw the brick, responded that, if he did, his mind was not right. He offered to pay the damage. Ms. Baker did not press charges against the defendant and the matter was dropped. Ms. Baker stayed at the Westlake address until August 1992 when she was being evicted. Sherry, her co-tenant, moved out earlier after her tires were slashed twice. Bruce Tithecott, Ms. - 6 - Baker's ex-brother-in-law (formerly married to Lisa Baker) allowed her and the children to stay with him at his home in Cleveland on St. Mark Avenue for a brief period in mid-summer of 1992 prior to her eviction from the Westlake address. Mr. Tithecott testified that he observed the defendant drive up and down his street on more than 25 occasions while Ms. Baker and her children stayed with him. He also observed the defendant approach and yell at Ms. Baker. At three o'clock in the morning on July 29, 1992, Tithecott awoke to sirens, looked out the window and saw his automobile, parked in the driveway, being consumed by flames. This same auto had been the subject of an attempted theft a few days earlier when Tithecott surprised the thief stripping his steering column. The thief escaped through neighbors' backyards and Tithecott made a police report of the incident. A few days later the fire erupted, destroying his automobile. This was determined by the Cleveland Fire Department Investigative Unit to have been intentionally set. Tithecott's St. Mark neighbors had also received leaflets containing allegations of drug use at his home. Tithecott testified that he called the defendant on the phone and asked why he was trying to destroy his life. The defendant laughed stating he was going to do what he wanted and to stay out of his way. By August 1992, Ms. Baker had moved in with her best friend, Michelle Kolman, who was renting on West Boulevard in Cleveland. It was there on August 23rd, that another intentionally set fire occurred, totally destroying the garage on the property. This - 7 - incident caused Ms. Baker to move yet again to Midtown Towers in Parma where she occupied an apartment with her children. In the fall of 1992, Ms. Baker began to date a man named David May. May would allow Ms. Baker to use his truck to drive to work at the Tick Tock Tavern in Cleveland where she was a waitress. She obtained this job through the help of Michelle Kolman, who also worked there. During this time, Ms. Baker observed the defendant following her as she drove May's truck to and from work. She also observed him in her apartment lobby in Parma looking at the building directory. On the evening of October 18, 1992, a dishwasher at the Tick Tock ran into the restaurant to tell Baker that her boyfriend's truck was on fire. The fire department extinguished the fire and determined it to be intentionally set. Three nights later, on October 21, 1992, in the parking lot of the Tick Tock, the car of Michelle Kolman had the window shattered and an ignited road flare was tossed into her back seat. Once again the fire department was called to extinguish the intentionally set fire which did minor damage. Ms. Kolman had the window to her car repaired during the week following the incident at the tavern. However, on October 29, 1992, the same car was stolen from her West Blvd. home. The car was discovered on a desolate stretch of road on Train Avenue totally destroyed by fire. An investigation by the fire department - 8 - determined that the fire was incendiary in origin and that some type of accelerant was involved. Ms. Kolman obtained a rental car after the theft and destruction of her automobile. However, on November 21, 1992, the rental car was intentionally set on fire in the early morning hours across from the Tick Tock Tavern. Ms. Kolman had left the car parked there while she spent the night at Ms. Baker's apartment in Parma. The fire department determined this fire was also intentionally set. Ms. Baker told the fire department that these fires were caused by defendant, but was told they had no hard evidence linking the defendant to the crimes. In December 1992, according to Baker, Keith came to her Parma apartment and begged her to come back. She agreed if he left her family and friends alone. She and the children moved back in with Keith on Elbur Avenue in Lakewood in January 1993. She and her children stayed with defendant until October 28, 1993. During that period she testified to an episode where she was trying to put her two sons up for adoption with defendant's encouragement. She also testified to numerous beatings and finally left defendant for good with the covert assistance of the police and a social worker. She first went to Genesis, a battered women's shelter in Elyria and finally to Sandusky where she lived at the time of trial. There was testimony of various witnesses as to defendant's efforts to track her down at the shelter. Defendant hired a private investigator to locate her in Sandusky. - 9 - Three witnesses testified at trial as to the defendant's personal statements incriminating himself in these fires. Beth Farage is the daughter of Edward Farage who in 1993 served as president of the Cleveland American Middle East Organization (CAMEO). The defendant served as first vice president of CAMEO. Ms. Farage, mother of three children, had separated from her husband and began dating the defendant, unknown to her father, from August 1993 through the early months of 1994. The defendant confided to Ms. Farage the specific details of his role in having the fires set against Jamie Baker and her friends. He did this, according to what he told Ms. Farage, in order to let everyone know he was boss and to get Jamie Baker back. Ms. Farage went to the Cleveland police with her father after Keith struck her on October 7, 1994 and told them of his involvement in the fires. Edward Farage also testified. He considered the defendant to be his closest ally and best friend during the time they served as officials in the CAMEO organization. He testified that defendant confided to him that he had caused property to be burned as a means of intimidation and to get Jamie Baker back in his life. He reported this to the Cleveland police when he took his daughter to complain of defendant's attack. At that point, Lt. Dan Kovacic of the Fire Investigation Unit revived the arson investigation which led to defendant's indictment in December 1994. Ms. Kerri Mikula was a close friend of the defendant from 1984 or 1985. Her testimony was the most explicit and damaging to the - 10 - defense. (Tr. 1696-1738). She moved to Toledo in November 1988 where she worked as a nurse for UPS. In April 1989 a fire in the next door apartment destroyed her apartment and she lost everything. She returned to the Cleveland area in 1990. Her relationship with Keith was revived in 1991 on a "platonic" basis because he was involved with Jamie Baker. Prior to her appearance at trial, she had never met any of the victims, nor did she have any association with other witnesses to whom the defendant had confided his fire activities. Ms. Mikula testified that Keith was obsessed with getting Baker back. She was driving around with him when he was trying to locate Jamie Baker's boyfriend's truck during the time Ms. Baker was living in Parma. Ms. Mikula testified that the defendant showed her the leaflets in his briefcase which were circulated in Lakewood which he explained would be used to destroy anybody who associated with Ms. Baker. Keith bought tickets to a Bruce Springsteen concert and wanted to stay the night with her because he needed an alibi. It was the night of the August 23, 1992 West Blvd. garage fire. He also told her he had the autos burned at the Tick Tock Tavern and how surprised he was at the victim's ability to replace the burned autos. Ms. Mikula also testified to her knowledge of the failed attempt to steal Mr. Tithecott's car and its subsequent burning. Keith tried to get her to use her UPS job to deliver an empty gasoline can to Ms. Baker's Parma apartment. She refused. The defendant told Mikula he had hired individuals he - 11 - knew from the Arab community to carry out the fires which cost the defendant up to $5,000 per fire. The State also presented evidence of a fire which destroyed the Pony Express passenger bus on September 1, 1993, which the owner's son attributed to defendant Keith who had been fired a year earlier. The defendant testified on his own behalf and denied playing any role in the arsons. He expressed affection for Ms. Baker and her children to whom he had played the role of father. He stated he did not think he was in town when the fires occurred. His testimony recounted his generous and affectionate interest and care for Ms. Baker and her children. He testified to his suspicions of a conspiracy against him which involved the Arab community, Lt. Kovacic and Mayor White leading to his indictment. The defendant denied throwing the brick through Ms. Baker's window in April 1992, or any involvement in the fires. He admitted to lying under oath in a civil deposition given just months before his trial. The defense also presented the testimony of other witnesses who, for the most part, presented character evidence in favor of the defendant or against the character of Ms. Baker. The defense presented the testimony of Tammy Kalvalege of Erie Pennsylvania, an alibi witness and girlfriend of defendant. She testified that defendant lived in Erie during 1992 and that on the critical dates when the fires occurred, she was on short trips with - 12 - her children and defendant at various vacation spots from which she kept mementoes. The jury found the defendant not guilty of count one (West Blvd. garage fire) and count eight (Pony Express bus fire), and guilty of five arson counts and one grand theft count. On June 14, 1995, the trial court sentenced the defendant to serve two years and a $5,000 fine on each of the arson counts. The court also sentenced him to serve a term of five years to fifteen years for count seven, arson with damage in excess of $10,000 (Kolman's rental car) along with a $7,500 fine. All terms are to be served consecutively to each other. A timely appeal ensued. The assignments of error will be considered in the order asserted. I. THE TRIAL COURT ERRED BY ALLOWING PREJUDICIAL OTHER ACTS EVIDENCE TO BE INTRODUCED TO THE JURY. The defendant contends that prejudicial and improper other acts testimony was presented to the jury which tended to portray the defendant as a bad person likely to commit the arson crimes with which he was charged. In State v. Gumm (1995), 73 Ohio St.3d 413, 426, the Supreme Court recently summarized the following general principles regarding other acts evidence: Evid.R. 404(B) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, - 13 - preparation, plan, knowledge, identity, or absence of mistake or accident." R.C. 2945.59 states: "In any criminal case in which the defendant's motive or intent *** or system in doing an act is material, any acts of the defendant which tend to show his motive or intent *** or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant." In State v. Flonnory (1972), 31 Ohio St.2d 124, 126, 60 O.O.2d 95, 96-97, 285 N.E.2d 726, 729, this court noted that R.C. 2945.59 permits the showing of "other acts" when such other acts "tend to show" certain things, e.g., motive and intent, as identified in the statute. "If such other acts do in fact 'tend to show' any of those things they are admissible notwithstanding they may not be 'like' or 'similar' to the crime charged." Id. The first alleged error was the admission of testimony relating to the brick through the window of Ms. Baker's residence on Westlake Avenue on April 9, 1992 at 1:00 a.m. (Tr. 573, 882). The trial court denied a defense motion in limine to exclude this evidence from the trial. Shortly after the brick incident occurred, the defendant was observed by a Lakewood policeman stopped in his van on the wrong side of Westlake Avenue with the lights off. He later admitted to a Lakewood detective that he was despondent, not in his right mind if he did it, and offered to pay for the damage. (Tr. 792-93). The second alleged error relates to Ms. Baker's testimony describing her relationship with the defendant in which she was forced by the defendant to have a mid-term abortion of an unwanted female fetus. Baker further testified that the defendant wanted a - 14 - son and that if Baker did not go through with the abortion she would be beaten. (Tr. 859-66). The State also, over objection, introduced a document purporting to indicate that the defendant represented Ms. Baker in a forced adoption plan in Juvenile Court. (Tr. 1125-27). The defendant contends that whether Ms. Baker sought to give up her children had no bearing on the present case and this evidence placed defendant in a bad light. Michelle Kolman was permitted to testify that the defendant allegedly told her that he could have John Baker, Jamie Baker's ex- husband, and Ms. Kolman's son's father put in jail by planting cocaine in their cars. (Tr. 1166). On redirect testimony of Michelle Kolman, the prosecutor brought up her alleged discussion with the defendant in which he indicated threats made against Ms. Baker such as an assassin shooting her in her head and leaving the country. These rumors regarding the bullet through the head came from Ms. Baker to Ms. Kolman. (Tr. 1260, 1264). Beth Farage testified about defendant threatening to beat her like he had beaten Jamie Baker. (Tr. 1294). She also testified that the defendant had attempted to have people pressure her father to drop charges. (Tr. 1407). Ms. Mikula testified that defendant was left a house in Parma owned by Ann Lisky, an elderly woman, who passed away. (Tr. 1729). The defendant apparently asked for a limiting instruction on other - 15 - acts, and one was given by the trial court in its final instructions to the jury without objection. (Tr. 2771). The case below involved a string of seven crimes impacting Ms. Baker and innocent third parties close to her over an eight month period in 1992. The stalking by driving up and down Jamie Baker's street, the tracking her down when she moved, the repeated contacts to resume the relationship, the leaflets, the brick incident, and finally the arsons and theft represented a measured and escalating modus operandi, whereby defendant sought to isolate Ms. Baker from her friends and compel her to return to him. The identity of the perpetrator of this string of crimes was the key issue in this case. The defendant at trial denied any involvement in the crimes. The Supreme Court recently described when other acts are admissible to show modus operandi in State v. Lowe (1994), 69 Ohio St.3d 527, 531 as follows: Other acts may also prove identity by establishing a modus operandi applicable to the crime with which a defendant is charged. "Other acts forming a unique, identifiable plan of criminal activity are admissible to establish identity under Evid.R. 404(B)." State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, syllabus. "'Other acts' may be introduced to establish the identity of a perpetrator by showing that he has committed similar crimes and that a distinct, identifiable scheme, plan, or system was used in the commission of the charged offense." State v. Smith (1990), 49 Ohio St.3d 137, 141, 551 N.E.2d 190, 194. While we held in Jamison that "the other acts need not be the same as or similar to the crime charged," Jamison, syllabus, the acts should show a modus operandi identifiable with the defendant. State v. - 16 - Hutton (1990), 53 Ohio St.3d 36, 40, 559 N.E.2d 432, 438. The State's case was largely built on circumstantial evidence plus his admissions to establish defendant's link to the arson crimes. Therefore, the brick incident and the defendant's acknowledgement of guilt therefor were properly admissible to show a predicate relationship illustrating defendant's modus operandi or pattern of terrorism to achieve his ends. When defendant's stalking, personal entreaties, leaflets and brick did not work, and he got caught in the brick episode, he escalated the terror indirectly by hiring third parties to set fires to her friends' cars. A review of the record shows that the trial court instructed the jury without objection on the limited nature of other acts evidence. (Tr. 2771). Further, when viewed in the context of the totality of the evidence in conjunction with the curative instruction, we cannot say that the other acts evidence was so prejudicial as to deny the defendant a fair trial. State v. Simko (1994), 71 Ohio St.3d 483, 491. We cannot, however, agree that the evidence of the abortion and the forced adoption episodes fit into the admissibility exception of other acts. These events which arose during defendant's live-in relationship with Baker do not, in our judgment, fall within an exception under Evid.R. 404(B) and are certainly not inextricably related to the arsons or part of a modus operandi. Defendant contends this testimony was not relevant and highly prejudicial. The testimony was offered to show the extent - 17 - of defendant's activities to control and dominate Ms. Baker. Even if relevant, defendant argues that the probative value of the testimony about the incidents was substantially outweighed by its prejudicial nature. Evid.R. 403(A) provides: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the jury." However, the determination of the admission or exclusion of evidence is within the discretion of the trial court and will not be reversed without abuse of discretion. State v. Kinley (1995), 72 Ohio St.3d 491, 497; State v. Combs (1991), 62 Ohio St.3d 278, 284; Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; State v. Sage (1987), 31 Ohio St.3d 173, 180. We find the evidence was relevant in that it showed the lengths to which the defendant would go in his obsessive attempts to dictate every aspect of Ms. Baker's life. Relevant evidence that is admissible is not limited to merely direct evidence establishing a claim or defense. Circumstantial evidence as it relates to the probative value of other evidence in the case can also be of consequence to the action. State v. Moore (1988), 40 Ohio St.3d 63, 65. While the evidence was part of the account detailing defendant's obsessive domination of Ms. Baker and was relevant to that end, we recognize that it is a close question whether its probative value was outweighed by its prejudicial nature. - 18 - Jamie Baker's direct testimony detailing the abortion in November 1991, the events leading up to it and the aftermath was received without any objection to this line of questioning or without a motion to strike. (Tr. 859-66). Baker's testimony respecting the adoption proceedings in which Keith participated was also given without objection or a motion to strike. (Tr. 926-40). Ordinarily, a party will not be heard on appeal to claim error in the admission of evidence where no objection is made or error preserved. Evid.R. 103(A)(1). Furthermore, we are satisfied that defense counsel may have made a deliberate strategic choice not to object to these lines of questioning because it portrayed Baker in an unflattering light as a mother willing to abort a child and give her own children up for adoption. As the cross-examination revealed, she was held up as an object of scorn rather than pity. (Tr. 1036-45; 1097-1101). In other words, this testimony cut both ways - against both Baker and Keith. We will not second guess the wisdom of what may be defense counsel's strategic choices in such circumstances. The so-called "other acts" evidence of which defendant complains do not furnish grounds for reversal. Michelle Kolman's testimony that defendant told her he could get John Baker (Jamie Baker's ex-husband) and Ms. Kolman's son's father put in jail by planting cocaine in their cars (Tr. 1166) were threats by a party- opponent and continuing evidence of his plan or scheme to do away with anybody who got in his way. The redirect of Ms. Kolman about - 19 - defendant's statements to Jamie Baker that he could hire an assassin to put a bullet in her head likewise showed his plan and scheme to control her - if he could not have her, nobody could. (Tr. 1269). Beth Farrage's testimony about Keith attacking her at the My Place restaurant (Tr. 1294) was relevant background as to why she finally went to her father, and then the police and told them about the attack and Keith's involvement in the fires. His statements to Ms. Farrage (Tr. 1407) about bringing pressure on other people to have her father drop the charges were "evidence of threats or intimidation of witnesses reflect[ing] a consciousness of guilt and [are] admissible as admission by conduct." State v. Soke (1995), 105 Ohio App.3d 226, 250. The evidence elicited by the prosecution from Ms. Mikula on redirect (Tr. 1789-90) suggesting defendant defrauded widow Ann Liskey by getting her house from her estate was clearly irrelevant but not developed at any length or impact on direct testimony. (Tr. 1729). The defense opened this line of inquiry further by reference to a deposition Ms. Mikula had given in a civil case involving the matter. (Tr.1784-89). In any event, we find the admission of the evidence to be harmless. In order to hold error harmless, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18; State v. Lytle (1976), 48 Ohio St.2d 391. A reviewing court may overlook an error - 20 - where the admissible evidence comprises "overwhelming" proof of a defendant's guilt. State v. Williams (1983), 6 Ohio St.3d 281, 290. When a claim of harmless error is raised, the appellate court must read the record and decide the probable impact of the error on the minds of the average jury. Harrington v. California (1974), 395 U.S. 250, 254. In Delaware v. Van Arsdall (1986), 475 U.S. 673, 681, the United States Supreme Court wrote: The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, *** and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. See, also, Jackson v. Howell (1993), 86 Ohio App.3d 497, 501; State v. Adams (1991), 74 Ohio App.3d 140, 145. The overwhelming nature of the admissible evidence against defendant would easily establish that he was guilty as charged. The jury heard the testimony of numerous witnesses tying defendant to the crimes both by his direct admissions and compelling circumstantial evidence which is as probative as direct evidence. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph one of syllabus. It is extremely unlikely that the evidence of which defendant complains in this assignment of error contributed materially to defendant's convictions. Any claimed error was harmless beyond a reasonable doubt. Assignment of Error I is overruled. - 21 - II. THE TRIAL COURT'S INTERFERENCE IN THE CONDUCT OF THIS TRIAL DEPRIVED THE APPELLANT HIS DUE PROCESS RIGHT TO A FAIR TRIAL. Defendant complains that the the trial judge interfered in the conduct of the trial and demonstrated a bias, a favoritism for the State's case or disrespect for defense counsel which deprived the defendant of a fair trial. The defendant raises twenty-seven separate rulings and/or comments that he claims were erroneous and unfair. It is axiomatic that the trial judge may not "assume the role of an advocate and should not conduct himself so as to give the jury an impression of his feelings." Jenkins v. Clark (1982), 7 Ohio App.3d 93, 97-98. In a jury trial, "the court's participation by questioning or comment must be scrupulously limited, lest the court, consciously or unconsciously indicate to the jury its opinion on the evidence or on the credibility of a witness." State ex rel. Wise v. Chand (1970), 21 Ohio St.2d 113, paragraph three of the syllabus. In this case, forty-one witnesses testified and over 2,600 pages of transcript were made of the trial proceedings. Evid.R. 611 requires that: the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as (1) to make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) to protect witnesses from harassment or undue embarrassment. - 22 - In the present case, the defendant argues the trial court failed to appear impartial; on numerous opportunities he chastised defense counsel in front of the jury; did not make similar remarks to the prosecutor; and the unfairness and lack of even-handedness in his rulings were obvious. We disagree. The majority of rulings to which defendant refers were evidence of the court's impatience with what it viewed as dwelling on irrelevant or marginal testimony or exceeding the scope of recross. (Tr. 1012, 1204, 1221, 1235, 1247, 1250, 1251, 1415, 1416, 1881, 1901, 1946-49, 2276, 2347, 2376, 2379). The court's chidings to "move along" or ask "relevant questions," sometimes with unnecessary editorializing, represented an effort to keep the testimony on relevant subject matter and did not exhibit a favoritism or bias for the State's case. Indeed, on numerous occasions the court brought counsel for both sides to the sidebar, thereby avoiding rulings which reflected unfavorably on either party. There were some episodes closer to the line as one would expect in detailing Keith's numerous episodes with various women. Overall, we do not detect from a reading of the record an indiscrete preference for the State's case by the trial court, or disapproval of the defense's efforts. Indeed, from a full review of the record, we find that the court gave considerable latitude to the defense counsel's efforts to project the well-meaning and generous nature of defendant while portraying Jamie Baker as an - 23 - unfit, alcoholic and welfare mother who was a shameless and amoral opportunist taking advantage of the defendant. The sordid life styles of many of the State's witnesses were dragged out in considerable detail on cross-examination and the court tried to prevent repetitious questioning. "A trial judge has broad discretion 'to preclude repetitive and unduly harassing interrogation.'" State v. Green (1993), 66 Ohio St.3d 141, 147. In any event, in the court's charge, the jury was instructed to disregard any comment or conduct that may be considered as an indication of the court's view of the case and to decide the case based upon the evidence and to make their findings with intelligence and impartiality without sympathy, bias or prejudice. (Tr. 2775-76). "A jury is presumed to follow the instructions, including curative instructions, given by a judge." State v. Garner (1995), 74 Ohio St.3d 49, 59. Assignment of Error II is overruled. III. THE TRIAL COURT ERRED BY CONTINUALLY ALLOWING INTO EVIDENCE HEARSAY STATEMENTS THAT WERE NOT ALLOWABLE UNDER THE RULES OF EVIDENCE. Defendant argues that the court erroneously allowed several hearsay statements into evidence which prejudiced defendant and prevented him from cross-examining the out-of-court declarants or exercising his constitutional right to confront his accusers. The State contends these statements were authorized by exceptions to the hearsay rule or were invited by the defendant's opening the door. The State contends that statements to police or fire - 24 - personnel were excepted under Evid. R. 803(2), the excited utterance exception: "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." As stated in State v. Simko (1994), 71 Ohio St.3d 483, 490: "The admission of a declaration as an excited utterance is not precluded by questioning which: *** (2) facilitates the declarant's expression of what is already the natural focus of the declarant's thoughts, and (3) does not destroy the domination of the nervous excitement over the declarant's reflective facilities." Detective Daniel Moran of the Cleveland Fire Department testified to a conversation with Michelle Kolman which implicated defendant while on the scene of her car fire at the Tick Tock. Michelle Kolman was described as frightened, scared and shaking during her statement. (Tr. 490-94). She was still under the influence of a traumatic event. The trial court was correct in allowing the statement into evidence pursuant to Evid.R. 803(2). The same was true of Lakewood policeman Robert Moher's testimony as to Jamie Baker's statements blaming defendant at the scene of the brick throwing/vandalism incident. Ms. Baker was described as upset, visibly shaken and nervous. (Tr. 575-76). Lt. Roger Maple also testified to statements made by Jeff Bogusz, an associate of defendant's with the Pony Express band, while on the scene of the bus fire. (Tr. 669). Maple described Mr. Bogus' demeanor as upset. These statements also come within the scope of - 25 - the excited utterance exception (Evid.R. 803(2)) and were within the trial court's discretion. On cross-examination, defense counsel asked the officer in detail what Mr. Bogusz said about possible suspects of the crime. On redirect, the prosecution followed up this line of questioning and asked the witness to elaborate as to what Mr. Bogusz said. (Tr. 682-87). It was proper for the prosecution to completely explore a line of questioning initiated by the defendant. State v. Miller (1988), 56 Ohio App.3d 130; State v. Croom (Jan. 18, 1996), Cuyahoga App. No. 67135, unreported. While defendant did not open the door to this line of questioning, he did expand the inquiry significantly. A party is not entitled to take advantage of an error which he or she invites or induces. State v. Barnett (1990), 67 Ohio App.3d 760, 769; State v. Woodruff (1983), 10 Ohio App.3d 326, 327. The impact of this testimony was questionable since the jury found defendant not guilty of the Pony Express bus fire. Not all out-of-court statements are hearsay. Statements offered to explain a police officer's investigation are not hearsay. State v. Thomas (1980), 61 Ohio St.2d 223, 232; State v. Ray (June 7, 1990), Cuyahoga App. No. 57120, unreported. Jamie Baker, on redirect, was permitted to identify court records (State's Ex. 26), listing defendant as attorney of record in the adoption proceedings. The defendant opened the door to this line of questioning by presenting court records as Defense Exs. A and B, and having the witness read certain portions of the - 26 - document. The defendant's attorney continued to cross-examine the witness concerning the adoption records (Tr. 1097-98), including the issue as to whether defendant represented Ms. Baker. (Tr. 1103). Having opened the door to a broader inquiry, defendant cannot challenge the prosecution's use of similar evidence on redirect. State v. Lang (1995), 102 Ohio App.3d 243, 254; State v. Banks (1991), 71 Ohio App.3d 214, 219; State v. Hartford (1984), 21 Ohio App.3d 29, 30. There was no error in allowing the State to redirect under these circumstances. Michelle Kolman was questioned on cross-examination as to a statement she made to Nationwide Insurance about her car loss by fire. (Tr. 1246). On redirect, the prosecution was permitted to allow the witness to detail the complete statements that she made. (Tr. 1260-61). The trial court ruled that defense counsel opened the door to this line of questioning. (Tr. 1260). We agree. There was no error in allowing the scope of examination within the trial court's discretion. The witness was also permitted to testify to conversations she had with the defendant in which he acknowledged his arson activities. These statements are not hearsay and were admissions against interest by the defendant pursuant to Evid.R. 801(D)(2). Detective Kovacic was permitted to testify as to a conversation with Jamie Baker in September 1993. (Tr. 1810). The hearsay statements were permitted because Ms. Baker had already testified and they were offered pursuant to Evid.R. 801(D)(1)(b) as - 27 - a prior consistent statement. The State was attempting to rebut a charge of fabrication or improper influence that was raised by defense counsel during the cross-examination of Ms. Baker. (Tr. 970-77). There was no error in permitting this re-direct to rehabilitate the witness. In any event, all the hearsay declarants testified at the trial and were vigorously cross-examined, as to their statements. Defendant cannot claim that he was denied the right to confront and cross-examine witnesses against him. Furthermore, it is harmless error where, as in the case here, the declarants were present in court as witnesses and were accorded the opportunity to deny having made the statements. State v. Tomlinson (1986), 33 Ohio App.3d 278; State v. Bidinost (June 17, 1993), Cuyahoga App. No. 62925, unreported. See, also, State v. Williams (1988), 38 Ohio St.3d 346, 350 (error in admission of hearsay statement harmless beyond a reasonable doubt where contents of statement largely cumulative of testimony of other witnesses); State v. Correls (1991), 71 Ohio App.3d 162, 165. Defendant's Assignment of Error III is overruled. - 28 - IV. THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER PREJUDICIALLY IRRELEVANT EVIDENCE. Defendant cites two instances of testimony which he claims were prejudicially irrelevant. The admission or exclusion of relevant evidence rests solely within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173. A trial court enjoys broad discretion in admitting evidence and will be reversed only for an abuse of that discretion whereby the defendant suffers material prejudice. Shimola v. Cleveland (1992), 82 Ohio App.3d 505, 511; State v. Williams (1982), 7 Ohio App.3d 160. Defendant contends Bruce Tithecott's testimony (Tr. 730) as to why he felt he was in the defendant's way was irrelevant and prejudicial. In the summer of 1992, following the incident where a brick was thrown through her window, Ms. Baker and her children moved in with Tithecott, her ex-brother-in-law on St. Mark Avenue for a brief period. The defendant was observed on more than 25 occasions driving up and down the street. After these occurrences, Tithecott's car was tampered with, then set on fire in his driveway on July 29, 1992. Defendant objects specifically to Tithecott's testimony that he believed the defendant felt Tithecott was "in his way" because "he was helping Jamie." The evidence came in before objection was belatedly made. It was overruled. No motion to strike was made. (Tr. 730). This evidence was relevant, but was of slight, if any, prejudicial effect. It was probative both as to identity and - 29 - defendant's motive in ordering the intentionally set fires. Tithecott was getting in Keith's way and his car was destroyed as a warning to him for harboring Baker. Defendant also cites Beth Farage's testimony that the defendant had an affair with her while she was married as irrelevant and prejudicial. Ms. Farage testified to the defendant's admissions to her about having ordered the fires. (Tr. 1297). Her testimony as to dating the defendant while she was separated from her husband and going through the process of a divorce was relevant testimony for the jury to understand how she became a confidante to receive the admissions. It was the defense on cross-examination that characterized the relationship as adulterous. (Tr. 1346). Ms. Farage's testimony concerning her brief relationship with the defendant was relevant to place her incriminating testimony in context. The trial court was within its sound discretion in allowing it to be heard. Assignment of Error IV is overruled. V. THE APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. We find no merit to this assignment of error. The test we must apply to allegations of ineffective assistance of counsel was recently set forth in State v. Carter (1995), 72 Ohio St.3d 545, 557-58: The standard by which we review claims of ineffective assistance of counsel is well established. Pursuant to Strickland v. Washington (1984), 466 U.S. 668, 687, 104 St.Ct. 2052, 2064, 80 L.Ed.2d 674, 693, in - 30 - order to prevail on such a claim, the appellant must demonstrate both (1) deficient performance, and (2) resulting prejudice, i.e., errors on the part of counsel of a nature so serious that there exists a reasonable probability that, in the absence of those errors, the result of the trial would have been different. Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373; State v. Combs, supra. Judicial scrutiny of counsel's performance is to be highly deferential, and reviewing courts must refrain from second- guessing the strategic decisions of trial counsel. To justify a finding of ineffective assistance of counsel, the appellant must overcome a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-695; State v. Wickline (1990), 50 Ohio St.3d 114, 126, 552 N.E.2d 913, 925. Prejudice from defective representation sufficient to justify reversal of a conviction exists only where the result of a trial was unreliable or the proceeding fundamentally unfair because of the performance of trial counsel. Lockhart v. Fretwell 91993), 506 U.S. , , 113 St.Ct. 838, 842-843, 122 L.Ed.2d 180, 189-191. A properly licensed attorney, as the defendant retained at his trial, is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299; State v. Williams (1969), 19 Ohio App.2d 234. A court must presume that a properly licensed attorney has executed his legal duties in an ethical and competent manner in conjunction with the Strickland test. A court must also accord deference to defense counsel's decisions as made prior to and during the course of any legal proceedings and cannot examine the strategic decisions of trial or appellate counsel through hindsight. The defendant cites defense counsel's failure to object to Tithecott's, Ms. Baker's and Michelle Kolman's testimony as to - 31 - their belief that the defendant was the cause of fires as evidence of his ineffectiveness. In regards to the testimony of Tithecott and Baker, a review of the record reveals that their "opinion" was contained in a response to the State's question as to what these individuals told the police investigating the crimes committed against them. On its face, this is clearly not an objectionable question. In regards to Michelle Kolman's "opinion," this was given when the State questioned her in response to her statement that she was afraid to be associated with Ms. Baker. When asked why, Ms. Kolman replied, "I was afraid from the threats Jeffrey had made and it was happening [intentionally set fires] to everyone around her." (Tr. 1193). Evid.R. 701 allows a lay witness to give opinion testimony where it is rationally related to the witness' perception and is helpful to clarify the witness' testimony or determination of a fact in issue. State v. Webb (1994), 70 Ohio St.3d 325, 333; State v. Stout (1987), 42 Ohio App.3d 38, 42. This means that "the witness must have firsthand knowledge of the subject of his testimony and the opinion must be one that a rational person would form on the basis of the observed facts" and the "testimony must aid the trier of fact in understanding the testimony of the witness or in determining a fact issue." Lee v. Baldwin (1987), 35 Ohio App.3d 47, 49. - 32 - Even assuming defense counsel could have prevented this testimony by objection, defendant fails to show that this testimony materially prejudiced the defense to the extent that there exists a reasonable probability that had he objected, the outcome of the trial would have been different. That these three witnesses believed the defendant committed the fires was self-evident from their role as State witnesses and their relationships with the defendant prior to the fires being set. At no time during their testimony did these three witnesses state their opinion was based on direct knowledge or the defendant's admissions to his role in the fires. This testimony was provided by other witnesses who were adequately cross-examined by defense counsel as to their credibility. Defendant itemizes numerous instances where he contends defense counsel should have objected to testimony and did not. Many of these episodes have been previously addressed in this opinion. Others really go to the issue of relevance, admission under Evid.R. 404(B) as evidence of a plan or modus operandi or whether the probative value is outweighed by prejudice. Evid.R. 403. These kind of rulings are obviously made in the exercise of the trial judge's discretion and only subject to reversal on an abuse of discretion standard. The failure to object is therefore not ineffective assistance of counsel if an objection would be pointless or overruled. Further, defendant has suffered no prejudice if the evidence is merely cumulative or was introduced - 33 - through other witnesses, i.e., the failure to object was harmless error. Defendant is mistaken that evidence of defendant's abusive relationship with Ms. Baker (beatings, threats, intimidation, isolation, coercion) "had nothing to do with the issue of whether appellant started the fires." His control, domination and obsession with Ms. Baker, supported by numerous witnesses, was the essential predicate for his motive in starting the fires. That evidence was clearly relevant. As previously noted, defendant's treatment of Ms. Farrage (their affair, his restrictions on her personal conduct and their altercation) were relevant background information for how she acquired his admissions and what caused her to go to the police. The testimony of Jamie Baker's ex-sister-in-law, Lisa Baker, that she was afraid of defendant, saw the brick with the leaflet and saw defendant strike Jamie was all part of the story of control and obsession. Ed Farrage's testimony ("lecture") on defendant's breach of trust was not objected to and was merely cumulative in that the acts were detailed in his other evidence. We have reviewed the other assorted episodes asserted to display ineffective assistance of counsel and find that they do not amount to such deficiencies, if any, as would warrant reversal. The three most important witnesses in the State's case-in- chief against the defendant were Edward Farage, Beth Farage and Kerri Mikula. These three witnesses actually tied the defendant to - 34 - the fires through his own admissions. All three were subjected to vigorous cross-examination by defense counsel as to their credibility. (Tr. 969-1121, 1342-1395, 1552-1578). Defense counsel called 16 witnesses on behalf of the defendant, many attesting to his generosity and character. Defendant took the stand on his own behalf. He took the opportunity to deny his involvement in the fires. He testified at length to what he perceived as biases held by the State's witnesses. (Tr. 2322-2443). Defendant has not shown that defense counsel's performance fell below the standard imposed by Strickland, supra, where there exists a reasonable probability that were it not for defense counsel's alleged errors, the result of the trial would have been different. From a review of the whole record, it may be said that defense counsel performed capably in defending a very difficult case in which, in its totality, overwhelming evidence pointed to defendant's involvement in numerous arsons. Once the fires had their effect, Jamie Baker returned to him and the fires stopped. Assignment of Error V is overruled. - 35 - VI. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A SENTENCE WITHOUT CONSIDERING MITIGATION FACTORS MANDATED BY R.C. 2929.12. At trial, the jury found the defendant guilty of five separate felonies of the third degree as well as one aggravated felony of the second degree. The defendant's systematic terrorization by fire affected multiple victims on separate occasions. The fact that a licensed attorney would have instigated such acts of violence, intimidation and terror among such a wide group of people over a substantial period of time understandably aroused the trial court's righteous indignation. Defendant contends the trial court's expression of outrage at the defendant's behavior indicated a lack of consideration of mitigation factors and therefore amounted to an abuse of discretion in imposing sentence. There is no evidence to show that the trial court did not consider the statutory guidelines. (R.C. 2929.12(C)). Although those factors must be considered, they clearly state they "do not control the court's discretion" to sentence within the limits of the law. State v. Adams (1988), 37 Ohio St.3d 295, paragraph three of syllabus, holds that a "silent record raises the presumption that a trial court considered the factors contained in R.C. 2929.12." In Adams, as in the case at bar, the defendant never requested a presentence report nor did he object to its absence at sentencing. The Supreme Court recognized that ordering a presentence report lies within the sound discretion of the trial - 36 - court. "Absent a request for a presentence report in accordance with Crim.R. 32.2, no grounds for appeal will lie based on a failure to order the report, except under the most exigent of circumstances." Adams, paragraph four of syllabus. With the wealth of information before the trial court, we find no such circumstances here nor an abuse of discretion. In imposing the maximum sentences in the present case, the court is presumed to have considered the following mitigation factors pursuant to R.C. 2929.12(C): (C) The following do not control the court's discretion, but shall be considered in favor of imposing a shorter minimum term of imprisonment for a felony for which an indefinite term of imprisonment is imposed: (1) The offense neither caused nor threatened serious physical harm to persons or property, or the offender did not contemplate that it would do so; (2) The offense was the result of circumstances unlikely to recur; (3) The victim of the offense induced or facilitated it; (4) There are substantial grounds tending to excuse or justify the offense, though failing to establish a defense; (5) The offender acted under strong provocation; (6) The offender has no history of prior delinquency or criminal activity, or has led a law-abiding life for a substantial time before commission of the present offense; (7) The offender is likely to respond quickly to correctional or rehabilitative treatment. - 37 - Even a cursory review of these mitigation factors reveals that the defendant had little hope of benefitting from their terms. His convictions justified the jury's conclusion that Keith set upon a deliberate and calculated plan to destroy the property of a group of people whose sole offense was offering shelter or support to a threatened woman and her children; defendant's personal satisfaction from such obsessive conduct was unjustified by any standards of civilized behavior; his prior history of abusive treatment and brick throwing vandalism does not suggest a clean record; and the repetitive nature of the offenses and the testimony of certain witnesses that it was all "a game" to him established a perverse criminal mentality. The court was justified in determining that defendant was not likely to respond quickly to rehabilative treatment given his past history and defendant's single exhibition of remorse that he was "extremely sorry about this entire situation." (Tr. 2798). R.C. 2929.12 and 2929.13 place no obligation on the trial court to state on the record its analysis of factors favoring a longer or shorter sentence. The statute specifically states in addition that the factors do not control the trial court's discretion. The trial court's sentence fell within the legal limits of its discretion as to each offense as well as its specification that the sentences be served consecutively pursuant to R.C. 2929.41. We find no abuse of discretion. - 38 - Defendant further argues in his last assignment of error that the trial court "became personally involved with the case and was unable to objectively follow the law in sentencing procedures." More specifically, defendant claims the trial court was biased. A trial judge is presumed not to be biased or prejudiced and the party alleging bias or prejudice must set forth evidence to overcome the presumption of integrity. State v. Wagner (1992), 80 Ohio App.3d 88, 93. Moreover, absent extraordinary circumstances, an allegation of judicial bias must be raised at the earliest available opportunity. See In re Disqualification of Pepple (1989), 47 Ohio St.3d 606; Tari v. State (1927), 117 Ohio St. 481, paragraph two of syllabus. This was not done until after the sentencing on this appeal. Nevertheless, we do find that certain remarks by the trial court following sentencing were intemperate and inappropriate and are not to be condoned by this Court. The sentencing judge must ever be mindful that he or she is administering a just sentence given the circumstances presented and not venting a personal spleen. However, we cannot say that those comments standing alone, against an otherwise fair record, rise to the level of judicial bias. Accordingly, as we cannot discern any prejudice to defendant as a result of any action or remark on the part of the trial court, defendant's argument is not well taken. - 39 - For the foregoing reasons, we conclude the trial court did not abuse its discretion in imposing the maximum penalties. Assignment of Error VI is overruled. Judgment affirmed. - 40 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. O'DONNELL, J., CONCURS. TIMOTHY E. McMONAGLE, J., CONCURS IN JUDGMENT ONLY. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .