COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70612, 70614 & 70616 TATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND . : : OPINION AMES CARPENTER : : DEFENDANT-APPELLANT : : ATE OF ANNOUNCEMENT F DECISION: JULY 10, 1997 HARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case Nos. CR-318200, 321794 & 332458. UDGMENT: AFFIRMED. ATE OF JOURNALIZATION: PPEARANCES: or Plaintiff-Appellee: Stephanie Tubbs-Jones Cuyahoga County Prosecutor Peter Gauthier Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 or Defendant-Appellant: James R. Willis, Esq. Courthouse Square Building 310 Lakeside Ave. NW #595 Cleveland, Ohio 44113 2 - WEENEY, JAMES D., C.J.: Defendant-appellant James J. Carpenter, d.o.b. August 12, 1959, ppeals from the following consolidated jury trial convictions: 1. Appellate case no. 70612/trial court no. 318200 (a) Promoting Prostitution [R.C. 2907.22] and (b) Possessing Criminal Tools [R.C. 2923.24], with violence specifications, on September 13, 1994, in Lakewood, Ohio; 2. Appellate case no. 70614/trial court no. 321794 (a) Promoting Prostitution [R.C. 2907.22] and (b) Possessing Criminal Tools [R.C. 2923.24], with violence specifications, on February 15, 1995, in Westlake, Ohio; 3. Appellate case no. 70616/trial court no. 332458 (a) Promoting Prostitution [R.C. 2907.211], with a violence specification, on November 10, 1995, in Fairview Park, Ohio. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the offenses n the case sub judice involved the police investigation of ctivit ies of several escort services. The escort services nvolved, which shared a common address at 1936 Columbus Avenue, partment 3, Cleveland, Ohio, were Positive Reactions Entertainment roup, L.A. Escorts, and Alternative Lifestyles. Evidence submitted ndicated that Positive Reactions and L.A. Escorts employed female scorts, while Alternative Lifestyles provided homosexual male scorts. At the trial, the prosecution offered the testimony of seven itnesses. The first witness for the prosecution, Lakewood Police 1 The verbiage used in the indictment, and which was once included within the language of R.C. 2907.22, was later included in this new section number. 3 - etective Len Kozempa, testified that his department received nformation in 1994 that prostitution providers, posing as escort ervices, were operating at the Lakewood Manor Motel (now operated y Days Inn Motels). In response to this information, the witness ented a room at this motel on September 13, 1994. The police laced a radio transmitter under the bed, which was monitored by ther detectives who were nearby. The witness then placed a elepho ne call to L.A. Escorts and, without indicating that he ought sexual services, stated that he was responding to their dvertisement. The escort service explained that the charge for the emale escort was $150 for dancing services, and that anything else ould have to be decided between the escort and the customer. From physical description of several available escorts, the witness ltimately chose one named Angel. When Angel arrived at the room t approximately 10:00 p.m., she removed her jacket and had the itness sign a preprinted services contract titled Model/dancer, ervice agreement. See State Exhibit 12. The witness then paid ngel the $150, in currency that had been marked by the police. 2 Paragraph 4 of this contract provides: Client acknowledges and fully understands that services from model/dancer do not include sexual activity, physical contact, message (sic), lude (sic) or obscene performances of any kind. Client hereby agrees and acknowledges he will not attempt to persuade or purchase this type of activity from model/dancer. Model/dancer retains all rights afforded her by law should any unconsentual (sic) Physical contact take place. 4 - ngelthen took the currency and the contract and gave them to the efendan t, who was standing outside the door to the room. Angel hen closed the door, returned to the witness, and immediately told he witness that if he wanted sex, that it would cost more money. he witness never initiated an offer for sex. The witness asked how uch more and Angel replied that fellatio for the customer would ost $100. The witness agreed to the additional service and the rice and gave Angel the additional $100 in marked currency. The itness removed his shirt and sat on the bed as Angel proceeded to emove all of her clothing except for her panties. Angel then aressed and rubbed the witness's chest and back before moving her and toward the witness's genital area, at which time the monitoring olice came into the room and arrested Angel for soliciting rostitution. Angel never attempted to dance or model for the itness. At the station house, Angel volunteered that she was only ixteen years old, was a runaway from her home in Chicago, Illinois, nd that her real name was Jamie Zytnowski. Recovered from her ursewere blank service contracts, two vibrators, two appointment ooks, and miscellaneous papers including a card bearing the nscription To Jamie Carpenter, J.C.'s best girl. From J.C. The olice, after speaking by telephone with Angel's mother, arranged o have this adolescent returned to her home in Chicago on the ollowing day. Before leaving the police station, Angel, upon the ncouragement and consent of her mother, made a written statement. ee State Exhibit 7. In this statement, Angel generally stated that he escort services mentioned, which were owned by the defendant, 5 - ere providing prostitution services and that ultimately she worked or the defendant, who would act as her driver and pimp. Also in his statement, Angel detailed how the escort service operated and ow the escorts solicited prostitution. From five of the names ontained in the appointment books, the police were able to get one f the persons listed, when telephoned, to come in to make a tatement. The second witness for the prosecution, Lakewood Police etective James Sacco, testified that he was involved in the nvestigation of the escort services herein. He and his partner, etective Wilkins, on the date of the Lakewood offense, were urveilling the escort service headquarters at approximately 8:00 .m. when they observed the defendant drive up to and enter the scort service. These officers then went to the Lakewood Manor otel where, at approximately 10:00 p.m., they observed the efendant drive into the parking lot with a female as a passenger nd proceeded to go up to the room occupied by Detective Kozempa. fter the arrest of the defendant at Lakewood Manor Motel, the olice found a cellular telephone, a telephone pager, and the $150 n marked currency on the defendant's person. The third witness for the prosecution, Lakewood Police etective Bruce Wilkins, supervised and organized the investigation f the Lakewood offense. This witness monitored the transmission f the radio transmitter that had been placed under the bed in the oom occupied by the police. This witness corroborated the estimony of Detectives Kozempa and Sacco. This witness also stated 6 - hat the defendant was arrested in the hallway outside the room ccupied by the police. The witness searched the defendant's car n the parking lot and retrieved papers relating to the escort ervice, including receipts and bills listing the escort service's olumbus Road address. One hundred dollars in marked currency was ecovered from Angel's purse. Following the arrests, the witness btained search warrants for the escort service's headquarters and or the Yorktown Motorist Hotel on Clifton Avenue in Lakewood, where ngel resided. The headquarters was searched at 12:35 a.m. on eptember 14, 1994, by the Cleveland Police Department, accompanied y the witness and several other Lakewood officers. The officers oundthe door to the headquarters ajar, and heard voices therein, male and a female, talking about an incident in Lakewood and aying that the female associated with that incident had better eep her mouth shut. (R. 291-292.) Items found during the search f the headquarters include: an address book listed to the efendant; a battery and battery charger for a cellular telephone; wo telephone caller identification units; an electronic business rganiz er which contained numerous names, numbers and dates; an nked stamp pad with a rubber stamp used as a deposit endorsement or the escort service; a Panasonic telephone with preset speed-dial umbers for hotels and motels; an answering machine; a business heckbook; six radio transceivers; numerous miscellaneous pictures nd papers; a 35mm camera; a briefcase from the female found at the ime of search at the headquarters containing three sexual aid evices, a tube of KY lubricating jelly, and a washcloth; uncashed 7 - hecks in a safe made payable to the escort service; and three eparate telephone lines in the headquarters. The witness testified hat these items are commonly found at prostitution providers. At pproximately 4:00 a.m. on September 14, 1994, Angel's residence, hich she shared with another woman, was searched. At the esidence, the following items were found: miscellaneous papers and rug paraphernalia, including a syringe and a crack pipe. The itness also assisted the Fairview Park Police in their nvestigation of prostitution by escort services by renting a room t the Knight's Inn Motel on Brookpark Road. The Fairview nvestigation used the same method of surveillance as that used at he Lakewood Manor, to-wit, bugging the room occupied by the police ith a radio transmitter (and a video camera during this particular ting3 operation), contacting the escort service, observing the efendant drive up to the motel accompanied by a female escort later identified as Jennifer Von Drak), signing the service greement, the escort giving the initial marked money and the ontract to the defendant who was in the hallway, having the escort nitiate an offer for fellatio once the door was closed, paying the scort for sex with $200 in marked money, allowing the escort to 3 The term sting was popularized by the motion picture The Sting, which starred actors Paul Newman, Robert Redford and Robert Shaw, and depicted a confidence scam perpetrated upon an unsuspecting, greedy gambler (Robert Shaw), wherein the perpetrators (Paul Newman and Robert Redford), through artifice and deception, convinced the gambler to place a very large wager upon a certain horse race whose race results were known in advance to the perpetrators due to the manipulation of the existing technology of the day for reporting race results to off- track bettors. The result was the gambler losing his wager without ever knowing how he was suckered. 8 - isrobe and begin performing the sexual service, and then arresting he escort in the room and the defendant who was in a car in the arking lot. Recovered from the escort were condoms and the marked oney. The service contract listed the name of the escort as amantha. The fourth witness for the prosecution, Westlake olice Detective Robert Bowers, testified that he assisted the nvestigation of prostitution by escort services at the Westlake oliday Inn on Crocker Road. This witness was stationed in the otel and arrested the defendant in the game room of the hotel once he escort had been arrested in the room which was under urveillance by the police. A search of the defendant's person ound a telephone pager and a black satchel. This operation used he same methods as those used in the other two offenses. The fifth witness for the prosecution, Agent 56, testified that t the time of the offense at the Westlake Holiday Inn he was mployed as an undercover narcotics officer by the Westshore nforce ment Bureau4 and assisted the Westlake police in the nvestigation. This witness testified that he was one of the fficers who electronically monitored the activity in the room ented by the police. The escort in this offense was known as Prescious, but her real name was Christina Hawley, and she nitiated the offer of fellatio for $50 and sexual intercourse for 150. This agent generally corroborated the testimony of Detectives 4 This Bureau consists of a joint task force which investigates and prosecutes vice and narcotics activities within the communities of Lakewood, Bay Village, Fairview Park, Westlake, North Olmsted and Rocky River. 9 - ilkins and Bowers. The sixth witness for the prosecution, Westlake Police Officer imothy Tolaro, testified that he was part of the team of police hat investigatedthe offense committed in Westlake, in particular, e monitored the electronic devices which were hidden in the room rom an adjoining room. The person who the police placed in the oom was a confidential informant. This witness generally orrobo rated the testimony of the other officers in the nvestigation team and authenticated the audio and video cassettes f the transmissions from the room. A search of the room after the rrest, found a condom on the bed which had been placed there by the scort. Sixteen condoms, representing approximately four different ypes, and marked currency, were found in the escort's purse. arked currency for the initial fee, the signed service contract, nd two condoms were found in the defendant's black satchel. omparing one of the condoms found in the defendant's black bag to he condom found on the bed of the Holiday Inn room, it was iscovered that they were from the same manufacturer, had the same odelnumber, serial number and expiration date. The other condom ound in the defendant's black bag, when compared to some of the ixteen condoms found in the escort's purse, also indicated the same anufac turer, model, serial number and expiration date. The itness also testified about his involvement in the investigation eading to the arrests in the Fairview Park offense, wherein the itness operated the videotape equipment from an adjoining room. he witness authenticated the copy of the videotape from that 10 - ffense. The seventh witness for the prosecution, Fairview Park Police ieutenant Duane Skrletts, testified that he supervised the etectives on his police force, aided in the investigation of the airview Park offense, and corroborated the testimony of the other fficers who were involved in the investigation and who testified n this case. At this point, the prosecution rested and the defense moved for n acquittal pursuant to Crim.R. 29. Subsequent to oral arguments y counsel, the trial court overruled this motion. (R. 475.) The defense offered the testimony of five witnesses. The first itness for the defense, Mr. Leander D. Davis, stated that he was driver for the defendant in the escort services from April to ugust of 1994. This witness stated that he would transport the scort to the client's location, obtain the initial fee for the scort service and the signed service contract, and would then wait utside the room while the escort was inside with the client. The scort service had a standing policy to terminate the employment of ny escort who violated the rules of the service, although to his nowledge this never happened. On cross-examination, the witness ivulged that he had a felony conviction in 1993 for attempted ampering of records and that he would deliver all the money he ollected from clients to the defendant. The second witness for the defense, Ms. Brenda Fuedo, testified hat she has known the defendant since 1987, presently lives with im, and that she keeps the escort services' books and interviews 11 - he escorts, whom she considers independent contractors, when they re hired. During these interviews, she would tell the prospective mployee that there was to be no sexual activity with a customer, nd stress that this was a requirement for continued employment. hen confronted with the checkbook that was seized in the search of he headquarters, the witness admitted that, despite being the ookkeeper, she never wrote a check from that register. The third witness for the defense, Ms. Soulon P. Douglas- hristi an, testified that she has known the defendant for pproximately five years. She also stated that she worked at the ervices' headquarters for a time, interviewing prospective escorts, nswering phones and occasionally going out on calls to a customer's ocation. Relative to the interview process and the company rules orbidding sexual activity with a customer, this witness orroborated the testimony of Ms. Fuedo. This witness claimed that he would refuse to deal with a customer who would call the service nd request sexual activity. On cross-examination, the witness ivulged that she has been convicted for forgery and grand theft. The fourth witness for the defense, Ms. Christine Hawley, gainst the advice of counsel, testified that she has known the efendant for approximately one-and-one-half years. She stated that he interviewed prospective escorts, answered phones and went out n calls to customer locations. She also corroborated the testimony f Ms. Fuedo and Ms. Douglas-Christian relative to the interview rocess and the company rules forbidding sexual activity with a 12 - ustomer. Next, she stated that the initial service fee collected rom a customer was supposed to be divided between the driver, the efendan t and the escort. She admitted that she went beyond the ude dancing and modeling services provided by the company on the ight she was arrested at the Westlake Holiday Inn, but that the ustomer initiated the demand for sexual activity. (R. 531.) She lso claimed that the defendant had nothing to do with the sexual ctivity involving the customer at that hotel, and that she was iven the condoms found in her purse at Numbers nightclub several ays prior to her arrest. She also claimed that she was employed y the defendant in November of 1995, but only worked in the office. R. 534-537.) On cross-examination, the witness divulged that she as convictions for seven counts of forgery and one count of theft n two separate cases from different counties. When pressed by the rosecutor, the witness stated that she did not lie to the court on ovember 2, 1995, at the time of a hearing in another criminal case efore a different judge, that she had no contact with the defendant espite the fact that she interviewed Ms. Von Drak as a potential scort on November 8, 1995. (R. 542-543.) The witness was living ith the defendant at the time. The witness was also caught in a ntruth when she stated on direct examination that she was erminated by the defendant in February of 1995 and had no contact ith him until November of that year, yet on cross-examination she ndicate d that she worked in the escort service office in May of 995. (R. 544-545.) Further on cross-examination, the witness dmitted to the following: 13 - . So you'll say anything at any time just because you think someone wants to hear it? A. Basically, yes. (R. 547.) s. Hawley also claimed that she never had sexual contact with any ustomer, that she had not danced for a customer in years, and that he defendant did not pay her for working at the escort service ffice since she did it as a favor to him. The fifth witness for the defense, Ms. Jennifer Von Drak, estifi ed that when she interviewed with the escort service in ovembe r of 1995, she was told that the service was not full ervice, meaning that sexual contact with a customer was forbidden. he witness also stated that the defendant, who only acted as her river, had nothing to do with her extracurricular sexual activity ith the customer on November 10, 1995, in Fairview Park. She laimed that she desperately needed $200 to pay overdue rent on her partme nt on November 11, 1995. Inside the coat she wore to the oom on the night of the offense, which coat she borrowed from Ms. awley, were three condoms. The witness claimed that the customer nitiated the request for sexual activity. After the arrest, she id fill out a statement for the police, but she was scared and ntimidated by the police and did not tell the truth in the tatement when she stated that she initiated the sexual activity rom the customer and that Ms. Hawley and the defendant coached her n how to make extra money by providing sexual services. See efendant Exhibit D. On redirect examination, the witness claimed hat she was terminated by the service following her arrest, at 14 - hichtime she moved in with Ms. Hawley for a couple of weeks, but hat neither the defendant nor Ms. Fuedo lived there with them. At this point, the defense rested. (R. 581.) The defense enewed its motion for acquittal and again the court overruled the otion. The parties then conducted their closing arguments to the ury. Subsequent to instructions to the jury, the panel returned he above-mentioned convictions. The appellant presents four assignments of error for review. 15 - THE COURT ERRED WHEN IT RULED THE STATE'S MOST CRUCIAL, INDEED ITS FULCRUM WITNESS, WAS UNAVAILABLE WITHIN THE AMBIT OF EVID.R. 804(A)(5), AND FOR THAT REASON A WRITTEN STATEMENT (EXHIBIT 7) TAKEN FROM HER BY THE POLICE WAS INADMISSIBLE AS SUBSTANTIVE PROOF OF THE APPELLANT'S GUILT. Evid.R. 804(A)(5) provides, in pertinent part, the following: (A) Definition of Unavailability. Unavailability as a witness includes situations in which the declarant: * * * (5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's attendance or testimony) by process or other reasonable means. A declarant is not available as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's for the purpose of preventing the witness from attending or testifying. In the case sub judice, the record reflects that the local uthorities attempted to procure the attendance of Angel, a.k.a. iss Jamie Zytnowski, through the issuance of a subpoena directed o her suburban Chicago, Illinois, residence and the provision of n airline ticket for her use in traveling to Cleveland for the rial. The record further reflects that Detective Wilkins spoke ith the witness's mother three times by telephone, each time eceiving assurances that the witness desired to testify. With the rial approachingin several days and it becoming apparent that the itness was thinking about not testifying, Detective Wilkins secured 16 - he help of Detective Larry Byce of the Woodridge, Illinois police epartment in an effort to locate the witness. Detective Byce was nable to locate the witness and learned that the witness's uncle, ho also lived at the Illinois residence, had no idea as to the itness's whereabouts. Appella nt argues that the authorities should have used the niform Act to Secure the Attendance of Witnesses from Without the tate, codified at R.C. 2939.26, to secure the attendance of Miss ytnows ki. This argument is without merit. As was provided in tate v. Young (Cuyahoga, 1984), 20 Ohio App.3d 269, 272, where the tate has made a good faith effort to secure the attendance of an ut-of-state witness, as was done in this case, and that witness is nwilling to cooperate, it is not reasonable to expect the rosecution to expend the time and energy to set the wheels of the ct in motion. Accordingly, the trial court did not err in finding that Miss ytnowski was an unavailable witness. The first assignment of error is overruled. The second and third assignments of error will be discussed ointly because they both argue that Miss Zytnowski's written tatement to the police, which was made immediately after her rrest, was not against the declarant's interest pursuant to the earsay exception contained in Evid.R. 804(B)(3). II FOR A STATEMENT ASSERTEDLY MADE BY A NON- TESTIFYING DECLARANT TO BE PROPERLY ADMITTED UNDER FAVOR OF EVID.R. 804(B)(3), THE PROPONENT OF SUCH PROOF MUST ESTABLISH INTER 17 - ALIA THAT THE STATEMENT WAS INDEED AGAINST THE INTEREST OF THE DECLARANT. BECAUSE THE STATE FAILED TO ESTABLISH THAT THE WRITTEN STATEMENTS WERE AGAINST THE NON-TESTIFYING DECLARANT'S INTEREST, IT FOLLOWS THAT THE COURT ERRED IN ADMITTING THE STATEMENT AS SUBSTANTIVE PROOF. II TO THE EXTENT THAT CERTAIN CRITICAL SEGMENTS OF A WRITTEN STATEMENT, ADMITTED ON THE BASIS OF EVID.R. 804(B)(3), WERE CLEARLY NOT AGAINST THE NON-TESTIFYING DECLARANT'S INTEREST, THE COURT ERRED AND THE APPELLANT'S RIGHT OF CONFRONTATION WAS EGREGIOUSLY VIOLATED BY THEIR ADMISSION AS PROOF OF GUILT. The hearsay exception contained in Evid.R. 804(B)(3) rovides: (B) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: * * (3) Statement Against Interest. A statement that at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (Emphasis added.) Applying this rule to the case before us, three factors must e demonstrated to hold Miss Zyntowski's written statement to the olice admissible: (1) that Miss Zyntowski was unavailable as a itness; (2) that the statement was against Miss Zyntowski's 18 - nterest, tending to subject her to criminal liability; and, (3) hat corroborating circumstances clearly indicate the rustworthiness of the statement. See e.g. State v. Gilliam (1994), 0 Ohio St.3d 17, 20, 635 N.E.2d 1242, 1245-1246; State v. Long (May 8, 1997), Cuyahoga App. No. 70739, unreported, 1997 Ohio App. LEXIS 880. From our discussion in the previous assignment, we conclude hat the first Gilliam factor has been established. Also, a review f the police statement (which was read into the record at the trial t R. 227-234), provides that the declarant admits to engaging in ultipl e sexual acts for a prostitution enterprise posing as a egitimate escort service, with the full knowledge of the defendant- usiness owner who drove the escorts to their customers, and who lso knew that the other women working as escorts for him were ommitting acts of prostitution. This statement tends to subject he declarant to criminal liability. Thus, the second Gilliam actor has been established. In discussing the third Gilliam factor, we note the following assage from State v. Long, supra, at 7: With regard to whether the third element of the rule was satisfied, we note the following excerptfrom State v. Branham (1995), 104 Ohio App.3d 355, 359, 662 N.E.2d 54, discretionary appeal disallowed in (1995), 74 Ohio St.3d 1444, 656 N.E.2d 344: [A] bare showing of some extent of corroboration is not enough. Instead, the rule contemplates a demonstration of corroborating circumstances *** which, on balance, persuade the trial judge that the statement bears the clear indicia of reliability and trustworthiness, leaving the ultimate 19 - determination of credibility to the jury. State v, Saunders (1984), 23 Ohio App.3d 69, 73, 23 Ohio B. Rep. 132, 137, 491 N.E.2d 313, 319. See, also, Lowery v. Maryland (D.Md. 1975), 401 F.Supp. 604, 607-608, affirmed without opinion, (C.A.4, 1976), 532 F.2d 750. The determination of whether corroborating circumstances are sufficient to admit statements against penal interest as a hearsay exception generally rests within the sound discretion of the trial court. Landrum, supra,53 Ohio St.3d at 114, 559 N.E.2d at 720. ee State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710. Having carefully reviewed the trial record, we conclude that he trial court did not abuse its discretion in finding that the hird factor of Gilliam, an indicia of the statement's rustworthiness and reliability based on the corroborating ircumstances, was demonstrated. This is so based on: (1) the fact hat the declarant made the statement soon after the arrest and fter having had an opportunity to have spoken with her mother in llinois, who urged her wayward daughter to fully cooperate with the olice; and, (2) the declarant's knowledge of the escort services' peration and procedures, and the defendant's role therein, which as corroborated by evidence seized by the police and by the estimony of other witnesses who helped in the investigation of the ervices or who were actually associated with the services in uestion. Accordingly, the second assignment of error is overruled. Appellant suggests in his third assignment that those limited ortions in the police statement of Miss Zyntowski which inculpate he defendant-appellant, yet do not inculpate the declarant in rimina l activity, should have been redacted and not admitted 20 - ursuant to Evid.R. 803(B)(3). While this is a correct nterpretation of Fed.Evid.R. 803(B)(3) pursuant to Williamson v. nited States (1994), 512 U.S. _____, 114 S.Ct. 2431, the lone nculpatory statement concerning the defendant (which alleges that he defendant had knowledge that the escorts were performing rostitution and that by acting as a driver the defendant was romoting prostitution), occurred after the defendant was identified s the owner of the services and acted as a driver, which by hemselves do not inculpate the defendant in criminal activity: After I collected my original $150, I would then collect more money by offering to do sex acts on the client. I would set my fees to what I think that I could get. Any of the money that I could get excuse me. Any of the money that I would collect was all mine to keep. James knew that I was doing this all alongwith all the other girls. All the girls were doing this, to hook on the side and make the big bucks. Applyin g Williamson, this statement James knew should ave been redacted because it does not inculpate the declarant in riminal activity. Although it was error, we conclude that it was armless error because the defendant's knowledge of ongoing rostitution activities within the escort services under his wnership and control was demonstrated by other evidence in the ecord, specifically: condoms found on his person and in the ossession of the escorts which matched manufacturer, style, serial umber and expiration date, which was evidence that he supplied the scort with prophylactic protection; the evidence indicating that he escorts received no pay from the services, indicating that any easonable person would conclude that the escorts, who were not 21 - nvolve d in a charitable enterprise or pro bono services, were aking their money on side activity which any reasonable employer ho drove the escorts and controlled the services' office must have ad knowledge of considering the circumstances. Accordingly, the third assignment of error is overruled. V THE COURT ERRED IN OPENLY APPROVING, AND OTHERWISE ENDORSING AND THUS ADDING THE COURT'S IMPRIMATUR TO, THE PROSECUTOR'S ASSAILMENT OF CRUCIAL DEFENSE WITNESSES AS LIARS AND THE LIKE. This final assignment argues that the court erred in permitting he prosecution, during closing argument, to characterize certain efense witness testimony as lies or the witness as a liar. In eviewing the closing argument of the prosecutor, we note that there re nine instances of this conduct by the prosecution. See R. at 95-596, 597, 598, 600, 604, 642, 644 (twice), and 645. The defense bjected only to the first instance located at page 644, which bjection was overruled by the trial court. Having failed to timely bject to the remaining instances, error therein was waived for ppellate purposes. State v. Williams (1977), 51 Ohio St.2d 112. ven had the objection been preserved for appeal, and where it was roperly preserved, we would conclude that the characterization was fair comment based on the testimony presented where witnesses: dmitted to crimes of dishonesty; had been confronted with prior tatements which did not correspond to their court testimony; or, he testimony between witnesses was clearly contradictory. The fourth assignment of error is overruled. 22 - Judgment affirmed. erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court irecting the Common Pleas Court to carry this judgment into xecution. The defendant's conviction having been affirmed, any ail pending appeal is terminated. Case remanded to the trial court or execution of sentence. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. ATRICIA A. BLACKMON, J., and, AMES M. PORTER, J., CONCUR. __________________________ JAMES D. SWEENEY CHIEF JUSTICE .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will e journalized and will become the judgment and order of the court ursuant to App.R. 22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the .