State v. Brentlinger , 90 N.E.3d 200 ( 2017 )

[Cite as State v. Brentlinger, 2017-Ohio-2588.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-16-23
PLAINTIFF-APPELLEE,
v.
JOHN D. BRENTLINGER, II, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR20150274
Judgment Affirmed
Date of Decision: May 1, 2017
APPEARANCES:
Samuel H. Shamansky for Appellant
Eva J. Yarger for Appellee
Case No. 1-16-23
WILLAMOWSKI, J.
{¶1} Defendant-appellant John D. Brentlinger II (“Brentlinger”) appeals the
judgment of the Allen County Court of Common Pleas, claiming (1) his
conviction was made in the absence of sufficient evidence, (2) his conviction was
against the manifest weight of the evidence, (3) the trial court improperly admitted
prejudicial hearsay, and (4) the trial court wrongly determined that Allen County
was a proper venue for trying all of the counts charged against him. For the
reasons set forth below, the judgment of the lower court is affirmed.
Facts and Procedural History
{¶2} On July 16, 2015, Brentlinger was indicted on one count of theft in
violation of R.C. 2913.02(A)(1), R.C. 2913.02(B)(2); one count of felonious
assault in violation of R.C. 2903.11(A)(2), 2903.11(D)(1)(a); one count of
kidnapping in violation of R.C. 2905.01(A)(3), 2905.01(C)(1); one count of
kidnapping in violation in of R.C. 2905.01(A)(2), 2905.01(C)(1); one count of
aggravated robbery in violation of R.C. 2911.01(A)(1), 2911.01(C); one count of
tampering with evidence in violation of R.C. 2921.12(A)(1), 2921.12(B); and one
count of extortion in violation of 2905.11(A)(1), 2905.11(B). Doc. 1. The acts
forming the basis of this indictment were alleged to have occurred between the
dates of January 5, 2015, and January 15, 2015. Id. The trial on these charges
occurred between the dates of March 1 and March 4, 2016.
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{¶3} At trial, Joseph Croft (“Croft”), the alleged victim in this case,
testified that he had a business relationship with Brentlinger that soured and ended
sometime in 2011 or 2012. Tr. 141. Since that time, Brentlinger has asserted that
Croft owed him $50,000, but Croft has disputed this claim. Tr. 149. On the night
of January 5, 2015, Croft left Elite Truck and Auto, which is the business where he
worked, to go to an auction. Tr. 142. After Croft attended the auction, he returned
to Elite Truck and Auto and discovered that a snow plow that had been in the
parking lot was now missing. Tr. 143. Croft went inside and reviewed the
security tapes from that evening. Tr. 144-145. On the tape, Croft saw Brentlinger
drive up, get out of his truck, and take the plow. Id. Ex. 1. Croft testified that he
had not given Brentlinger permission to take the plow. Tr. 147.
{¶4} Croft testified that he then called Brentlinger and told him that he
would notify the police if Brentlinger did not return the snowplow. Tr. 148. Croft
testified that Brentlinger responded to this demand by saying, “I am the f’ing law.”
Id. After he reported Brentlinger to the police, Croft began searching for the snow
plow and drove to the old Gomer bank building, which is a place where
Brentlinger occasionally stayed. Tr. 151. When he arrived at that location, Croft
remained in his vehicle and saw Brentlinger outside of the building, but Croft did
not see the snow plow. Tr. 152. Ex. 17. Roughly thirty minutes after Croft
arrived, Brentlinger got into his vehicle and began driving away. Tr. 152. Croft,
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hoping to find the snow plow, followed Brentlinger onto U.S. Route 30. Id. Croft
trailed Brentlinger into a rest area, parking his vehicle at a distance where he could
still see Brentlinger’s truck. Tr. 159. At trial, Croft testified that he remained in
his vehicle after Brentlinger walked out of view and occupied himself on his
phone, looking up periodically to see if Brentlinger’s vehicle was still in the
parking lot. Tr. 159.
{¶5} After five to seven minutes, Croft said he caught something out of the
corner of his eye. Id. He turned to look and saw Brentlinger standing outside the
passenger side of Croft’s vehicle with a gun pointed at Croft through the window.
Id. Brentlinger then told Croft to unlock the vehicle door. Id. After Croft refused,
Brentlinger walked around the front of the vehicle with the gun pointed at Croft
the entire time and approached the front, driver’s side door. Tr. 159-160.
Brentlinger attempted to open the door, which was still locked. Tr. 160. He then
placed his gun against the window and said, “Unlock the f’ing door.” Id. When
Croft refused, Brentlinger fired his gun into the air, which prompted Croft to
unlock the door. Id. As soon as the door was unlocked, Brentlinger pulled the
door open, grabbed Croft, dragged him out of the vehicle, and struck him on the
head with the gun. Id. At this time, the keys were in the ignition and the vehicle
was running. Tr. 163. Once Croft was out of his vehicle, Brentlinger hit him
again and smacked his face, saying, “Do you think this is a game? I want my f’ing
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money.” Tr. 160. Brentlinger then said, “Take off your clothes. I know you’re
wired. I know you’re working for the cops.” Tr. 161.
{¶6} Croft testified that Brentlinger, at this point, ordered him to walk to
the back of the truck. Tr. 162-163. Croft refused, and Brentlinger, with the gun
two feet away from Croft’s head, fired another shot into the air. Id. Croft tried to
get to his phone to dial 9-1-1, but Brentlinger took Croft’s phone and shot it two
times on the ground. Tr. 162. Brentlinger again told Croft to take his clothes off,
and Croft again refused to follow these instructions. Id. Brentlinger then fired
another shot into the air and said, “The next one is going in you,” “I suggest you
start walking.” Tr. 163. After firing yet another shot into the air, Brentlinger
pushed Croft, and Croft began walking backwards away from Brentlinger. Id.
{¶7} When Croft had taken roughly ten steps, Brentlinger walked three or
four steps backwards, got inside Croft’s vehicle, and drove across the parking lot
to his vehicle. Id. Upon reaching his vehicle, Brentlinger got out, grabbed
something from his truck, and got back into Croft’s vehicle. Tr. 164. Croft
testified that another person was in Brentlinger’s truck. Id. This other person
allegedly drove Brentlinger’s truck away while Brentlinger drove Croft’s vehicle
to a place just outside of the rest area where he parked it. Id. Croft testified that
his vehicle was recovered later that night after Croft reported this incident to the
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police. Tr. 164-165. Croft said that his keys were missing, and his vehicle had to
be towed to his workplace. Tr. 166, 168.
{¶8} Over the next few days, Croft cooperated with the police to record
several phone conversations between himself and Brentlinger. Tr. 169. The
prosecution introduced the recorded conversations between Croft and Brentlinger,
which were facilitated by Detective Mark A. Baker (“Detective Baker”). Tr. 294-
295. In one of these conversations, Brentlinger stated,
What happened the other night, my friend, was an act of God
that you didn’t wind up dead on the side of the highway. Okay?
That was God saving your life from me killing you. Okay? The
first thing you need to do is get on your knees and thank Jesus
because you’re still alive. That was him that saved your life not
me * * *.
Ex. 16. In another conversation, Brentlinger said, “If you didn’t follow me, it
wouldn’t have happened * * *. You need to be thankful you’re alive.” Ex. 17.
When Croft brought up the subject of his phone, Brentlinger said, “Your media
card is in front of a f*****g snow plow somewhere in Cleveland.” Id.
{¶9} Brentlinger also testified at trial. He claimed that he had a meeting
with Croft at a restaurant on January 3, 2016. Tr. 429, 431. At this meeting,
Brentlinger raised the issue of the money that Croft allegedly owed him. Tr. 432.
In response, Brentlinger claimed that Croft gave him permission to take a snow
plow from the parking lot of Elite Truck and Auto, saying,
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Look, off the record strictly * * * the plow is sitting out back of
the shop. If you have a truck with wasp wiring and a mount, go
get it * * * I’m not going to bless the fact that I told you to go get
it. I’m not going to say that I told you to go get it. I’m not going
to record it. I’ll get it replaced with a new one and down the
road I go.
Tr. 433. Tr. 428. On January 5, 2016, Brentlinger went to the parking lot of Elite
Truck and Auto and took the snow plow while Croft was away. Tr. 135, 436.
Brentlinger said that he then dropped off the snowplow and drove to where he had
been staying at the old Gomer bank building. Tr. 438-439. He left Gomer, Ohio
to go to Kirtland, Ohio, getting on U.S. Route 30. Tr. 440.
{¶10} As he drove, Brentlinger noticed that someone seemed to be
following him. Tr. 154, 444. He sped up, but the vehicle continued to trail him.
Tr. 445. Brentlinger decided to pull into a rest area, located on U.S. Route 30 in
Allen County, to see if the person behind him would follow him. Id. Brentlinger
stated that he was unaware of the identity of the person who was following him at
the time he pulled off into the rest area and claimed that no one else was with him
inside his truck that night. Tr. 447. After he parked, Brentlinger got out of his
truck to investigate this situation. Id. He walked “behind the rest area, through
the woods and out in the cornfield.” Tr. 448. He then hid behind a pole fifty to
sixty feet away from Croft’s vehicle and looked to see who was inside the vehicle.
Id. From this distance, he was able to identify the driver as Croft. Id.
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{¶11} Brentlinger admitted that he then walked up to Croft’s vehicle with
his gun fully visible to Croft and said, “Roll the window down.” Tr. 448, 458,
469. He then asked Croft, “Do you have a gun on you? What are you doing?
What’s your problem?” Tr. 448. Croft replied, “No, I don’t have a gun on me. I
just want to talk to you.” Id. Brentlinger then said, “Well, why don’t you step out
of the vehicle, to the back of the vehicle, and we’ll talk.” Id. Brentlinger testified
that he met Croft at the back of Croft’s vehicle where they began to argue over the
money Brentlinger claims Croft owed him. Tr. 449-450. Brentlinger denied that
he shot Croft’s phone but did admit that he discharged his gun that night. Tr. 451,
458. According to Brentlinger, Croft took a swing at him while they were at the
back of Croft’s vehicle and “caught” Brentlinger’s nose, causing Brentlinger to
discharge his firearm into the ground. Tr. 451. Later at trial, Brentlinger
characterized this as a “warning shot” fired “behind [his] back.” Tr. 483. In
response to this blow, Brentlinger testified that he said to Croft, “Now we’re done.
Okay. You start walking. I’m leaving. Otherwise, I’m going to shoot you.
You’ve threatened me. I’m done. Game over.” Id. Brentlinger then testified that
he locked Croft out of his vehicle and then left the rest area, driving to Medina
where he stayed the night. Tr. 452.
{¶12} On January 6, 2015, Brentlinger received a call from Detective
Baker, who was assigned to investigate Croft’s complaint. Detective Baker called
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Brentlinger to inform him that Croft had filed a report of the incident that had
occurred on January 5, 2015. Tr. 280. Ex. 14. During this conversation, which
was recorded, Detective Baker asked Brentlinger what had happened on the night
of January 5, 2015. In response, Brentlinger said that “[Croft] was advised that
following me was a bad idea.” Ex. 14. Brentlinger also denied that he fired a gun
and claimed that he did not hit Croft with his gun. Ex. 14. When Detective Baker
stated that Croft had a lump on his head, Brentlinger insisted that no physical
altercation occurred between him and Croft. Id. When asked at trial whether the
recorded conversation was a “fair and accurate” representation, Brentlinger said,
“It was recorded. We listened to it yesterday. Partially. It depends on your fair
and accurate.” Tr. 454.
{¶13} Following his conversation with Detective Baker, Brentlinger spent
most of the day of January 6, 2015, stranded at Kirtland College because he
“punctured a tire” on their campus and ended up spending “ten hours trying to get
[his] tire fixed.” Id. The next day—January 7, 2015—Brentlinger testified that he
continued his journey through Ohio. As he was driving through Mansfield, Ohio,
which is in Richland County, he testified that he “had * * * an epiphany. I thought
‘why not send one of these pistols back to the house’?” Tr. 455, 459.
Consequently, Brentlinger disassembled one of his guns and shipped the parts in
two different packages from Mansfield, Ohio to his home in Tennessee. Tr. 455,
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215. Brentlinger testified that he sent all of the parts of the gun except for the
barrel and the slide receiver. Tr. 455. When asked why he shipped the gun from
Mansfield to his home in Tennessee, Brentlinger testified that “it [was] a
diversion.” Tr. 455.
{¶14} At trial, Shanda Pearson (“Pearson”)—a postal worker in Tennessee
who delivers mail to Brentlinger’s house—testified that, on January 7, 2015, she
was contacted by Brentlinger’s wife, Lynette Brentlinger (“Lynette”), regarding
this package. Tr. 210-211, 213-214. In her testimony, Pearson stated that Lynette
asked her to intercept a package that was on its way to the Brentlingers’ house.
Tr. 212. Pearson explained to Lynette that she could not seize a package without a
reason. Tr. 213. Pearson asked, “Why do you not want this package delivered to
your house? She told me that --.” Id. At this moment, the defense counsel
objected on grounds of hearsay. The prosecution argued that this statement was
“not to prove the truth of the matter asserted” and was “just to show what
[Pearson] did and what course of action she took from there.” Tr. 213. The trial
court overruled the objection of the defense, issuing an instruction to the jury that
this statement is “not being offered for the truth of the matter asserted * * *. You
can’t take the statement of what was said in the statement, but that it just explains
why [Pearson] did what she’s doing.” Id. Pearson then testified that Lynette said,
John [Brentlinger] * * * was mailing a gun back to their house
that he had used in a crime in Ohio, that he had assaulted a man
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with it and shot at the man, shot the phone the man had with the
gun, and that he had thought at the time the cops had the shell
casings and so he was mailing the gun back to her to hide and
she did not want any part of it. She did not want the gun
delivered to her house because she was scared for her and her
children.
Tr. 214. Pearson then notified the postal inspectors regarding what Lynette had
reported. Tr. 214. In response to this report, postal inspector, David Wilson,
obtained a search warrant, opened the two packages, and found the disassembled
handgun. Tr. 227-228. Wilson testified at trial that the barrel of the gun was not
in either package. Tr. 229.
{¶15} A gun barrel that matched this weapon was later discovered by police
in a storage locker that was owned by Brentlinger and located in Kentucky. Tr.
246, 249. In his testimony, forensic expert Kevin Kramer (“Kramer”) said that he
assembled the gun that Brentlinger had mailed using the barrel that was found in
Kentucky. Kramer then tested the firearm and examined the three shell casings
that Detective Baker had recovered at the rest area on U.S. Route 30 on April 1,
2015. Tr. 291, 371-373. Based on his testing, Kramer was able to conclude that
all three shell casings were cycled through the firearm that Brentlinger shipped to
his house. Tr. 371-372. Kramer testified that he was further able to determine
conclusively that at least one of the shell casings had been fired through the barrel
that police recovered in Brentlinger’s storage locker. Id. During cross
examination, however, Brentlinger had claimed that the gun he shipped to his
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home in Tennessee was not the weapon that he fired on the night of January 5,
2015, though he also admitted that the three shell casings found at the rest area had
been cycled through the weapon he mailed. Tr. 469, 493, 495. He further
admitted that he did not have any evidence that would suggest that the breach
imprints on the shell casings were not made by the firearm that he sent to
Tennessee. Tr. 458-459.
{¶16} During closing arguments, the defense asserted that the State failed
to prove venue for the charge of tampering with evidence because the prosecution
only proved that the alleged criminal conduct occurred in Richland County, Ohio,
not Allen County, Ohio. Tr. 546. The prosecution objected on the grounds that
the defense was making an argument that was “contrary to law.” Tr. 547. In
response, defense counsel contended that Brentlinger must be acquitted unless the
State can prove that the defendant committed the acts forming the basis of this
charge in Allen County, Ohio. Tr. 586. After hearing the arguments from the
defense and prosecution, the trial judge said, “I think it’s a factual determination.
The jury should decide the case.” Tr. 599. Accordingly, the trial judge included
the following in the jury instructions:
The State must prove beyond a reasonable doubt with respect to
each count either that all or any part of the elements of the
offense was committed in Allen County, Ohio; or, that all or any
part of the offenses involved in the defendant’s course of conduct
occurred in Allen County, Ohio. In order for you to find that a
course of conduct existed, you must find beyond a reasonable
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doubt that: the offenses involved the same victim; the offenses
were committed as part of the same chain of events in
furtherance of the same purpose or objective; the offenses
involved the same or a similar scheme or plan; or, the offenses
were committed along the defendant’s line of travel in this state,
regardless of his point of origin or destination * * *.
Tr. 609. On the count of tampering with evidence, the jury “[found] that the State
DID prove beyond a reasonable doubt that Allen is the correct county in which the
trial should be held.” Tr. 644.
{¶17} The jury returned a verdict of not guilty for the charged theft of the
snowplow but found Brentlinger guilty of all of the remaining charges. Doc. 236
at 4. At the sentencing hearing, the trial judge found that the count of kidnapping
in violation of R.C. 2905.01(A)(3) merged with the count of kidnapping in
violation of R.C. 2905.01(A)(2).1 Id. at 12. The prosecution elected to proceed
with the count of kidnapping in violation of R.C. 2905.01(A)(3). Id. at 13. The
trial judge then found that the count of felonious assault in violation of R.C.
2903.11(A)(2) merged with the count of kidnapping in violation of R.C.
2905.01(A)(3). Id. at 18. At this juncture, the prosecution elected to proceed with
the count of kidnapping in violation of 2905.01(A)(3). Id. Brentlinger was then
sentenced by the trial court on April 19, 2016. Doc. 236. He filed a notice of
appeal on May 11, 2016. Doc. 2.
1
Kidnapping under R.C. 2905.01(A)(2) requires the restraint or the removal of the victim to be committed
for the purpose of “facilitate[ing] the commission of any felony or flight thereafter.” Kidnapping under
R.C. 2905.01(A)(3) requires the restraint or the removal of the victim to be committed for the purpose of
“[terrorizing] or [inflicting] serious physical harm.”
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{¶18} On appeal, Brentlinger raises four assignments of error.
First Assignment of Error
Appellant was convicted of kidnapping in the absence of
evidence sufficient to support a finding of guilty in violation of
his right to due process as guaranteed by the Fifth and
Fourteenth Amendments to the United States Constitution and
comparable provisions of the Ohio Constitution.
Second Assignment of Error
Appellant’s conviction for kidnapping was against the manifest
weight of the evidence in violation of his right to due process as
guaranteed by the Ohio Constitution.
Third Assignment of Error
The introduction of unfairly prejudicial hearsay statements
during appellant’s trial violated his rights to confrontation and
due process as guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and was contrary
to the Ohio Rules of Evidence.
Fourth Assignment of Error
Appellant’s conviction for tampering with evidence must be
overturned because the state failed to prove venue.
These assignments of error will be considered in this order.
First Assignment of Error
{¶19} In his first assignment of error, Brentlinger essentially advances two
different arguments against his kidnapping conviction. The first argument
questions whether Brentlinger’s conviction for kidnapping was supported by
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sufficient evidence. Alternatively, Brentlinger proposes a second argument, which
assumes arguendo that the facts presented by the State are true. In this argument,
he claims that he should not have a separate conviction for kidnapping as this
offense was only committed as part of the underlying crimes of felonious assault
and aggravated robbery. This argument will require us to examine whether the
offenses of kidnapping and aggravated robbery are allied offenses of similar
import that are subject to merger. Brentlinger requests that his conviction for
kidnapping be overturned on either of these grounds.2 We, however, find these
arguments to be unpersuasive.
Sufficiency of the Evidence Argument
{¶20} In the first argument advanced under this assignment of error,
Brentlinger argues that his conviction was not supported by sufficient evidence.
Specifically, he asserts that the State did not provide evidence to prove that
Brentlinger removed or restrained Croft within the meaning of R.C.
2905.01(A)(3). The primary issue in this analysis is whether the State produced
evidence at trial that supports each of the essential elements of kidnapping.
Standard of Review
{¶21} “A challenge to the sufficiency of the evidence supporting a
conviction requires a court to determine whether the state has met its burden of
2
In appellant’s brief, Brentlinger “requests that his convictions for Kidnapping in Counts Three and Four
be vacated and the matter reversed for resentencing.” Appellant’s Brief, 15-16. However, Brentlinger was
only convicted of one count of kidnapping in violation of R.C. 2905.01(A)(3). Doc. 207.
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production at trial.” In re Swift, 8th Dist. Cuyahoga No. 79610, 2002 WL 451226,
3 (March 21, 2002), citing State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541
(1997). Consequently, an appellate court is not to examine whether the evidence
presented should be believed but should rather “examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Johnston, 3d
Dist. Logan No. 8-13-10, 2014-Ohio-353, ¶ 10, quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by
state constitutional amendment on other grounds in State v. Smith, 80 Ohio St. 3d
89, 684 N.E.2d 668 (1997). The sufficiency of the evidence analysis addresses the
question of whether adequate evidence was produced for the case to be considered
by the trier of fact and, thus, whether the evidence was “legally sufficient to
support the verdict * * *.” State v. Worthington, 3d Dist. Hardin No. 6-15-04,
2016-Ohio-530, ¶ 12, citing State v. Lang, 129 Ohio St. 3d 512, 2011–Ohio–4215,
954 N.E.2d 596, ¶ 219; State v. Lawson, 2d Dist. Montgomery No. 16288, 1997
WL 476684 (Aug. 22, 1997).
{¶22} Sufficiency of the evidence is a question of law and a “test of
adequacy rather than credibility or weight of the evidence.” State v. Berry, 3d
Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19, citing Thompkins, supra, at
386. The standard for sufficiency of the evidence
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is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
that the essential elements of the crime were proven beyond a
reasonable doubt.
State v. Plott, 3d Dist. Seneca Nos. 13-15-39 and 13-15-40, 2017-Ohio-38, ¶ 62,
citing State v. Monroe, 105 Ohio St. 3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶
47. In this case, Brentlinger was convicted of kidnapping in violation of R.C.
2905.01(A)(3). Thus, the State had to demonstrate that Brentlinger (1) “by force,
threat, or deception” (2) “remove[d] another from the place where the other person
is found or restrain[ed] the liberty of the other person” (3) with the purpose “to
terrorize, or to inflict serious physical harm on the victim or another.” R.C.
2905.01(A)(3).3
Legal Analysis
{¶23} On examination of the record, we find that the State produced
evidence at trial sufficient to establish the essential elements of kidnapping.
Regarding the first element, Croft testified on direct examination that Brentlinger
stealthily approached Croft’s vehicle, pointed a gun at him through the window,
3
Brentlinger was charged with two counts of kidnapping. The first count of kidnapping alleged a violation
of R.C. 2905.01(A)(3), which required the prosecution to prove that the defendant restrained or removed
the victim for the purpose of “[terrorizing] or [inflicting] serious physical harm.” R.C. 2905(A)(3). The
second count of kidnapping alleged a violation of R.C. 2905.01(A)(2), which required the prosecution to
prove that the defendant restrained or removed the victim for the purpose of “[facilitating] the commission
of any felony or flight thereafter.” R.C. 2905.01(A)(2). However, at sentencing, the trial court determined
that these two counts of kidnapping merged, and the prosecution elected to proceed with a conviction on
the count of kidnapping in violation of R.C. 2905.01(A)(3). Doc. 207. Consequently, even though the
appellant’s brief alleges that neither count of kidnapping was supported by sufficient evidence, our analysis
needs only to examine whether the elements of R.C. 2905.01(A)(3) are supported by sufficient evidence
since that is the only count of kidnapping for which Brentlinger was convicted and sentenced. Id.
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and ordered him to get out of the vehicle. Tr. 159. Croft then said that Brentlinger
fired the gun into the air when Croft refused to leave the vehicle, prompting Croft
to unlock the door. Tr. 160. For the second element, Croft further testified that,
after he unlocked his door, Brentlinger “drug [him] out of the vehicle.” Tr. 160.
At trial, he also said that Brentlinger ordered him at gunpoint to “take off [his]
clothes.” Tr. 161. When he refused this order, Croft said Brentlinger fired his
weapon into the air while the gun was “basically beside [Croft’s] head.”
Brentlinger then told Croft, “The next one is going in you” and “I suggest you start
walking.” Tr. 163. Croft said that he then walked backwards for about ten steps
while Brentlinger had a gun pointed at him. Tr. 160, 163. Concerning the third
element, after he unlocked the vehicle door at gunpoint, Croft said that Brentlinger
hit him with the gun, “ripped his shirt,” struck him multiple times, and pushed
him. Tr. 160-161, 163. In his testimony, Croft described six instances in which
Brentlinger fired his gun. Tr. 160-163. Four of these shots were fired into the air
in close proximity to Croft. Tr. 160, 161, 162-163, 163. Two of these shots were
fired at Croft’s phone on the ground. Tr. 161. Croft said he was “very” scared
and “frightened” during this time. Tr. 160, 163.
{¶24} Since we do not, on review, consider the weight or credibility of the
evidence for a sufficiency analysis, Croft’s “testimony, if believed by the jury,
provided [an adequate] basis for concluding that [Brentlinger] was guilty as
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charged.” State v. Brown, 1st Dist. Hamilton No. C-960715, 1998 WL 32593
(Jan. 30, 1998). In viewing all of the evidence in a light most favorable to the
prosecution, each of the essential elements of kidnapping in violation of R.C.
2905.01(A)(3) is supported. Thus, we find that Brentlinger’s conviction for
kidnapping was supported by sufficient evidence.
Allied Offenses Argument
{¶25} In his second argument under this assignment of error, Brentlinger
asserts arguendo that, if the State’s version of events is correct, the offense of
kidnapping was incidental to the underlying offenses of felonious assault and
aggravated robbery.4 The primary issue here is whether the crime of kidnapping
for which he was convicted5 was committed only as a part of committing the crime
of aggravated robbery, in which case Brentlinger cannot be convicted of both
crimes. If, on the other hand, the crime of kidnapping for which he was convicted6
had a separate animus from the offense of aggravated robbery, Brentlinger can be
convicted of both offenses. In support of his argument, Brentlinger points to a
statement of the trial judge at the sentencing hearing, which reads, “I’m going to
4
Prior to sentencing, the trial court determined that the two counts of kidnapping merged, and the State
elected to proceed with a conviction under the R.C. 2905.01(A)(3) count of kidnapping. The trial court then
determined that the R.C. 2905.01(A)(3) kidnapping count and the felonious assault count were incidental
and merged. Doc. 236 at 13. At this point, the State elected to proceed with a conviction under the R.C.
2905.01(A)(3) count of kidnapping. Thus, our analysis will focus on whether the crime of kidnapping for
which Brentlinger was convicted under R.C. 2905.01(A)(3) was incidental to the crime of aggravated
robbery, as Brentlinger was convicted of both of these crimes.
5
He was convicted of the third count charged in the indictment, which was kidnapping in violation of R.C.
2905.01(A)(3).
6
See footnote five.
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find that the restraint of the victim was merely incidental to the separate
underlying felonious assault.” Doc. 236 at 13. Brentlinger argues that this
statement is inconsistent with the trial court’s decision to deny Brentlinger’s
motion to be acquitted of kidnapping.
Standard of Review
{¶26} “Both R.C. 2941.25 and the Double Jeopardy Clause prohibit
multiple convictions for the same conduct.” State v. Sergent, 148 Ohio St. 3d 94,
2016-Ohio-2696, 69 N.E.3d 627, ¶ 28, quoting State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 27. R.C. 2941.25 reads:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
R.C. 2941.25(A), (B).
{¶27} Under Ohio law, if a defendant is charged with allied offenses—
which are multiple crimes committed with the same conduct—the “trial court is
required to merge [these offenses] at sentencing.” Sergent at ¶ 28, quoting
Underwood at ¶ 27. To determine “whether two offenses are…subject to merger
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under R.C. 2941.25, the conduct of the accused must be considered.” State v.
Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 16, quoting State v.
Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus. See
State v. Earley, 145 Ohio St. 3d 281, 2015-Ohio-4615, 49 N.E.3d 266. Under R.C.
2941.15(B), multiple convictions are permitted for offenses of a similar kind
if we answer affirmatively to just one of the following three
questions: (1) Were the offenses dissimilar in import or
significance? (2) Were they committed separate? And (3) Were
they committed with a separate animus or motivation?7
State v. Potts, 3d Dist. Crawford No. 3-10-12, 2011-Ohio-1461, ¶ 96, quoting
State v. Bailey, 1st Dist. Hamilton No. C-104129, 2015-Ohio-2997, ¶76, citing
Ruff at paragraph three of the syllabus.
{¶28} If the offenses are committed with the same conduct but with a
separate animus, multiple convictions can be sustained. State v. Hadding, 3d Dist.
Auglaize No. 2-12-14, 2013-Ohio-643, ¶ 14. “The Supreme Court of Ohio has
defined animus as “purpose, or more properly, immediate motive.” Id. quoting
State v. Logan, 60 Ohio St. 2d 126, 131, 397 N.E.2d 1345 (1979). Further, “two or
more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B)
when the defendant’s conduct constitutes offenses involving separate victims or if
the harm that results from each offense is separate and identifiable.” Ruff at ¶ 26.
7
Since an affirmative answer to any one of the three questions in this test is conclusive and we find that the
facts of this case clearly demonstrate that the offense of kidnapping was committed with a separate animus
from the offense of aggravated robbery, we will limit our analysis to determining whether these offenses
had separate motivations, and we will not analyze the facts of this case under the other two prongs.
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Case No. 1-16-23
When addressing the issue of allied offenses, “the question is not whether a
particular sentence is justified, but whether the defendant may be sentenced upon
all the offenses.” Sergent at ¶ 28, quoting Underwood at ¶ 27. “Whether offenses
are allied offenses of similar import is a question of law that this court reviews de
novo.” Potts at ¶ 93, citing State v. Stall, 3d Dist. Crawford No. 3-10-12, 2011-
Ohio-5733, ¶ 15.
Legal Analysis
{¶29} Here, we find that the crimes of kidnapping under R.C.
2905.01(A)(3) and aggravated robbery, in this case, are not allied offenses subject
to merger. See State v. Martin, 11th Dist. Lake No. 2012-L-043, 2013-Ohio-1944,
¶ 36. In this case, the commission of aggravated robbery required the commission
of a kidnapping. State v. Jenkins, 15 Ohio St. 3d 164, 198, 473 N.E.2d 264 (1984),
fn. 29. However, in this case, the reverse is not true as the kidnapping did not
require the robbery. When he spoke to Detective Baker on the phone regarding
his actions on the night of January 5, 2015, Brentlinger indicated what his purpose
was in approaching Croft. Brentlinger said, “[Croft] was advised that following
me was a bad idea.” Ex. 14. After trial, Brentlinger was convicted for kidnapping
under R.C. 2905.01(A)(3), which requires the defendant to have the purpose “[t]o
terrorize, or to inflict serious physical harm on the victim or another.” R.C.
2905.01(A)(3). In finding him guilty of this offense, the jury determined that
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Brentlinger had the purpose to terrorize or inflict physical harm at the time that he
initially removed Croft from his vehicle and restrained him at gunpoint.
{¶30} Brentlinger’s subsequent actions confirm that this was the intention
behind his restraint of Croft at gunpoint and his removal of Croft from the vehicle.
After pulling Croft out of the vehicle, Brentlinger physically harmed Croft by
striking him with a handgun, tearing his shirt, and shoving him. In so doing,
Brentlinger committed felonious assault. However, the trial court found that the
offenses of kidnapping under R.C. 2905.01(A)(3), for the purpose of “[terrorizing]
or [inflicting] serious physical harm” and felonious assault were committed with
the same animus as the kidnapping under R.C. 2905.01(A)(3) was committed for
the purpose of facilitating the felonious assault and terrorizing Croft. Doc. 236 at
13. Further, the trial court found that the kidnapping offense under R.C.
2905.01(A)(3) did not result in a separate, identifiable harm to Croft as the
commission of these crimes were incidental to each other. Id. Consequently, the
trial court merged the offense of felonious assault into the offense of kidnapping
under R.C. 2905.01(A)(3) after the prosecution elected to convict for the offense
of kidnapping under R.C. 2905.01(A)(3).
{¶31} In contrast, the offense of aggravated robbery in this case does not
appear to have been related to Brentlinger’s motive for kidnapping Croft. Based
on his actions and statements, Brentlinger appears to have committed the offense
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of aggravated robbery with a different “immediate motive” than the one that
moved him to commit the offenses of kidnapping and felonious assault. None of
the actions or words that accompanied Croft’s kidnapping indicate that this crime
was committed for the purpose of robbing Croft of his phone. Rather, the
aggravated robbery only occurred after Brentlinger saw that Croft was attempting
to use his cell phone to call for help. At this point, the focus of Brentlinger’s
actions in committing aggravated robbery was not simply to terrorize Croft or
inflict physical injury. With the aggravated robbery offense, Brentlinger
undertook actions calculated to destroy Croft’s property and deprive him of the
means to call for help. Brentlinger then removed the damaged phone from the rest
area and appears to have disposed of it later. Ex. 16.
{¶32} We do not see any indication in the record that Brentlinger removed
Croft from his vehicle and restrained him for the purpose of robbing Croft of his
cell phone. Rather, the facts of this case show that Brentlinger decided to commit
the offense of kidnapping under R.C. 2905.01(A)(3) and then chose to commit the
subsequent, separate offense of aggravated robbery. Contrary to the appellant’s
argument, the offense of kidnapping under R.C. 2905.01(A)(3) was not incidental
to or committed for the purpose of furthering the aggravated robbery. Here, the
offense of aggravated robbery was committed in addition to the offense of
kidnapping under R.C. 2905.01(A)(3). The R.C. 2905.01(A)(3) kidnapping
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Case No. 1-16-23
offense had independent significance before the intention to commit aggravated
robbery appears to have been formed in Brentlinger’s mind. Thus, the animus that
prompted Brentlinger to commit the offense of aggravated robbery was different
from the animus that motivated him to commit the earlier offenses of felonious
assault and R.C. 2905.01(A)(3) kidnapping.
{¶33} At points in his argument under the first assignment of error,
Brentlinger seems to conflate the issues of sufficiency of the evidence and merger
of allied offenses. R.C. 2941.25(A) allows a defendant to be charged with allied
offenses of similar import but allows only one conviction for such offenses. If the
prosecution proves all of the elements of each allied offense at trial, the merger of
these allied offenses prior to sentencing does not negate the fact that the State
proved the elements of each individual offense. Here, the prosecution provided
the necessary evidence for both counts of kidnapping, for felonious assault, and
for aggravated robbery. The fact that the counts of kidnapping merged with each
other and then merged with the felonious assault charge does not imply that the
State failed to provide evidence for the essential elements of kidnapping.
{¶34} When the trial judge said, “I’m going to find that the restraint of the
victim was merely incidental to the separate underlying Felonious Assault
[charge],” he was stating that the two offenses merged for the purposes of
sentencing. Doc. 236 at 13. The trial judge was not, as the appellant’s brief
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Case No. 1-16-23
implies, stating that the kidnapping was not proven in addition to the felonious
assault charge. Rather, the court was assuming that both charges were proven but
that only one conviction could be entered for these two allied offenses. Since the
prosecution elected, in accordance with Ohio law, to proceed with the R.C.
2905.01(A)(3) kidnapping charge at the sentencing hearing, the trial court did not
act inconsistently with its statements and did not err in denying the defendant’s
motion to acquit Brentlinger of all kidnapping charges. See State v. Whitfield, 124
Ohio St. 3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 24 (holding that “[w]hen the
state elects which of the two allied offenses to seek sentencing for, the court must
accept the state’s choice and merge the crimes into a single conviction for
sentencing * * *.”). For these reasons, Brentlinger’s first assignment of error is
overruled.
Second Assignment of Error
{¶35} In his second assignment of error, Brentlinger contends that his
conviction for kidnapping was against the manifest weight of the evidence. For
this analysis, we consider the weight and credibility of the evidence. The primary
issue is whether the evidence, once examined according to its weight and
credibility, moves the scale manifestly against a verdict of guilty. Here,
Brentlinger argues that the evidence, when weighed properly, shows that “the
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elements of ‘restraint’ and ‘removal’ were not proven beyond a reasonable doubt.”
Appellant’s Brief, 17. We disagree.
Standard of Review
{¶36} When “deciding whether a conviction is against the manifest weight
of the evidence, an appellate court determines whether the state has appropriately
carried its burden of persuasion.” State v. Blanton, 121 Ohio App. 3d 162, 169,
699 N.E.2d 136 (3d Dist.1997). “Unlike our review of the sufficiency of the
evidence, an appellate court's function when reviewing the weight of the evidence
is to determine whether the greater amount of credible evidence supports the
verdict.” Plott, supra, at ¶ 73. In the manifest weight analysis, “the appellate
court sits as a ‘thirteenth juror’ * * *.” Thompkins, supra, at 387. On appeal,
courts
must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses, and
determine whether in resolving conflicts in the evidence, the
factfinder “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Thompkins at 387, 678 N.E.2d 541.
Plott, supra, at ¶ 73. “A reviewing court must, however, allow the trier of fact
appropriate discretion on matters relating to the weight of the evidence and the
credibility of the witnesses.” State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-
Ohio-5320, ¶ 7. “Only in exceptional cases, where the evidence ‘weighs heavily
against the conviction,’ should an appellate court overturn the trial court’s
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judgment.” State v. Haller, 3d Dist. Allen No. 1–11–34, 2012–Ohio–5233, ¶ 9,
quoting State v. Hunter, 131 Ohio St. 3d 67, 2011–Ohio–6524, 960 N.E.2d 955, ¶
119.
Legal Analysis
{¶37} Previously, in reviewing this record to determine whether the verdict
was supported by sufficient evidence, we found that Croft’s testimony, if believed,
supplied some evidence for each of the elements of kidnapping. Under the
manifest weight analysis, we reincorporate Croft’s above testimony here and add
the fact that the defense referenced evidence of Croft’s criminal record—which
includes two convictions for receiving stolen property, one conviction for
trafficking in drugs, one conviction for theft, and two convictions for having a
weapon under disability—to the facts from Croft’s testimony already considered.
Tr. 174, 177. We also consider all the other testimony from the trial, including
Brentlinger’s statements.
{¶38} At trial, Brentlinger’s testimony conflicted with Croft’s at points.
While Brentlinger did admit that he clandestinely approached Croft’s vehicle and
that his handgun was clearly visible when he asked Croft to get out of the vehicle,
Brentlinger testified that he did not “order” Croft out of the vehicle. Tr. 469.
Rather, after he asked Croft to get out of the vehicle at gunpoint, Brentlinger
claims that they each walked around Croft’s vehicle and met behind the vehicle.
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Case No. 1-16-23
Tr. 451. At this point, Brentlinger said Croft “[took] a swipe at [him]” that
“[caught him] across the nose.” Id. This caused Brentlinger to fire “[o]ne shot * *
*,” “behind [him], into the ground.” Id. At this moment, Brentlinger said that he
told Croft, “Now, we’re done. Okay. You start walking. I’m leaving. Otherwise,
I’m going to shoot you. You’ve threatened me. I’m done. Game over.” Id.
Brentlinger claimed that he never shot Croft’s phone. However, in a recorded call
with Croft, he did imply that he took Croft’s phone, saying that Croft’s media card
was “in front of an f’ing snow plow somewhere in Cleveland.” Ex. 16.
Brentlinger also admitted that he locked Croft out of his vehicle before Brentlinger
left the rest area. Tr. 452.
{¶39} At trial, the defense referenced the fact that Brentlinger does not
have any prior criminal record. Tr. 180. In turn, the prosecution demonstrated
that Brentlinger had made some inconsistent statements regarding the events of
January 5, 2015. In the recorded call between Brentlinger and Detective Baker on
January 6, 2015, Brentlinger denied firing his gun, hitting Croft with his weapon,
and the existence of a physical altercation between himself and Croft. Ex. 14. On
cross examination, however, Brentlinger admitted he had fired his handgun and
had an altercation with Croft. Tr. 458, 483. The State also referenced a police
report that mentioned Croft had a “contusion to the top left side of his skull.” Tr.
484. This report also stated that Croft had a torn shirt and scratches on his neck.
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Tr. 485. Further, Detective Baker stated, in the recorded call with Brentlinger, that
Croft had a bump on his head at the time Croft reported this incident to the police.
Ex. 14.
{¶40} The State presented evidence that three shell casings found at the rest
area were cycled through Brentlinger’s gun. Tr. 291, 372-373. When asked,
Brentlinger stated that he did not have any evidence that would suggest that the
three shell casings were not in fact cycled through his firearm. Tr. 458. The State
also introduced several recordings. Ex. 14-20. In one of these recorded
conversations, Brentlinger stated to Croft,
What happened the other night, my friend, was an act of God
that you didn’t wind up dead on the side of the highway. Okay?
That was God saving your life from me killing you. Okay? The
first thing you need to do is get on your knees and thank Jesus
because you’re still alive. That was Him that saved your life not
me * * *.
Ex. 16. Brentlinger was also recorded as saying, “If you didn’t follow me, it
wouldn’t have happened * * *. You need to be thankful you’re alive.” Ex. 17.
Similarly, when Detective Baker asked Brentlinger what happened on the night of
January 5, 2015, Brentlinger was recorded answering that “[Croft] was advised
that following me was a bad idea.” Ex. 14.
{¶41} After considering the evidence on the basis of its weight and
credibility, we do not find that the scales moved manifestly against a finding of
guilty. On review of the record, we find that the jury could have reasonably
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Case No. 1-16-23
concluded from the evidence presented at trial that Brentlinger restrained or
removed Croft for one of the prohibited purposes specified in R.C. 2905.01(A).
Further, we do not see any indication that the jury lost its way and returned a
verdict against the manifest weight of the evidence. For these reasons,
Brentlinger’s second assignment of error is overruled.
Third Assignment of Error
{¶42} In his third assignment of error, Brentlinger argues that the trial court
erred in admitting prejudicial hearsay. He points to a portion of Pearson’s trial
testimony in which she stated what Lynette Brentlinger told her. These statements
read as follows:
John [Brentlinger] * * * was mailing a gun back to their house
that he had used in a crime in Ohio, that he had assaulted a man
with it and shot at the man, shot the phone the man had with the
gun, and that he had thought at the time the cops had the shell
casings and so he was mailing the gun back to her to hide and
she did not want any part of it. She did not want the gun
delivered to her house because she was scared for her and her
children.
Tr. 214. The trial court admitted these statements as nonhearsay since they were
not admitted for the stated purpose of proving the truth of the matter asserted but
to explain the subsequent actions of the witness. However, Brentlinger claims that
these statements were largely irrelevant for the stated purpose of explaining
Pearson’s subsequent conduct and highly relevant for the purpose of
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Case No. 1-16-23
demonstrating his guilt or innocence. Brentlinger claims that the prejudicial
nature of these statements requires that his convictions be reversed. We disagree.
{¶43} This analysis requires us to perform two steps. First, we will
determine whether these statements were properly admitted under the rules of
evidence as nonhearsay. If Pearson’s trial testimony does, in fact, contain hearsay
statements, we will consider whether these statements had a prejudicial impact on
the trial. Second, we will then determine whether admission of these statements
violated Brentlinger’s rights as guaranteed under the Confrontation Clause of the
United States Constitution.
Hearsay Standard of Review
{¶44} “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). “A statement is not hearsay when offered for a
purpose other than to prove the truth of the matter asserted.” State v. Osie, 140
Ohio St. 3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 118, citing State v. Davis, 62
Ohio St. 3d 326, 343, 581 N.E.2d 1362 (1991). Testimony is nonhearsay “when
introduced to show its effect on the listener.” Osie at ¶ 122. “It is well established
that extrajudicial statements made by an out-of-court declarant are properly
admissible to explain the actions of a witness to whom the statement was
directed.” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 10,
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Case No. 1-16-23
quoting State v. Thomas, 61 Ohio St. 2d 223, 232, 400 N.E.2d 401 (1980). See
State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 59.
Generally, “[t]estimony offered to explain the investigative activities of witnesses
* * * is admissible.” State v. Skatzes, 104 Ohio St. 3d 195, 2004-Ohio-6391, 819
N.E.2d 215, ¶ 98, quoting Thomas at 232.
{¶45} However, “the well-worn phrase ‘not offered for the truth of the
matter asserted’ is not a talismanic incantation that opens the door to everything
said outside the courtroom.” State v. Ricks, 136 Ohio St. 3d 356, 2013-Ohio-3712,
995 N.E.2d 1181, ¶ 25, quoting State v. Richcreek, 196 Ohio App. 3d 505, 2011-
Ohio-4686, 964 N.E.2d 442 (6th Dist.). “Despite a professed nonhearsay use, if
the statement's content could also cut toward proof of guilt, the potential for abuse
is great.” Richcreek at ¶ 24, citing State v. Blanton, 184 Ohio App. 3d 611, 2009-
Ohio-5334, 921 N.E.2d 1103, ¶ 38–39, and State v. Blevins, 36 Ohio App. 3d 147,
149–150, 521 N.E.2d 1105 (1987). See Ricks at ¶ 26. However, if the testimony
goes beyond what is necessary to explain the subsequent conduct of the witness,
the testimony may become “more prejudicial than probative * * *.” Ricks at ¶ 26.
In these situations, “the jury is more likely to rely on the testimony to prove the
matter asserted, which tilts the particular testimony into hearsay.” Id.
{¶46} “[T]he admissibility of relevant evidence rests within the sound
discretion of the trial court.” State v. Rollison, 3d Dist. Marion 9-09-51, 2010-
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Case No. 1-16-23
Ohio-2162, ¶ 32, citing City of Columbus v. Taylor, 39 Ohio St. 3d 162, 164, 529
N.E.2d 1382 (1988). In the absence of an abuse of discretion and a showing of
material prejudice, “an appellate court will not disturb a trial court’s ruling as to
the admissibility of evidence.” Id., citing State v. Martin, 19 Ohio St. 3d 122, 129,
483 N.E.2d 1157 (1985). See Wendel at ¶ 5; State v. McKelton, 148 Ohio St.3d.
261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97. “An abuse of discretion has been
described as an unreasonable, arbitrary or unconscionable decision.” State v.
Harris, 3d Dist. Hancock No. 5-99-14, 1999 WL 797159 (Sept. 30, 1999).
Hearsay Analysis
{¶47} In this case, the trial court admitted Lynette’s out-of-court statements
to allow Pearson to explain her actions and not for the truth of the matter asserted.
When Lynette asked Pearson to intercept a package coming to her house, Pearson
needed more information in order to undertake this requested course of action.
The fact that Brentlinger told Lynette that he “was mailing a gun back to their
house that he had used in a crime in Ohio” was necessary information for Pearson
to have if she was going to intercept these two packages. Tr. 213. The statements
that Lynette disclosed to Pearson also became a basis of the subsequent
investigation into the contents of these packages. Tr. 214. If the jurors were not
given this information, Pearson’s conduct and the resulting investigation may
seem intrusive or illegitimate. Further, after defense counsel objected to these
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Case No. 1-16-23
statements as hearsay, the prosecution explained that these statements were not
being offered for the truth of the matter asserted, prompting the court to issue a
limiting instruction to the jurors that explained the purpose of these statements.
Tr. 213.
{¶48} While the first sentence of the challenged statement was
unquestionably necessary to understand Pearson’s subsequent conduct, Pearson’s
further statements connecting Brentlinger to specific crimes committed in Ohio
may have gone beyond what was absolutely necessary to explain her actions to the
jury and provide a foundation for the resulting investigation. Even if this is the
case, however, any error in admitting Lynette’s out-of-court statements in this case
was harmless. “[T]he accused has a constitutional guarantee to a trial free from
prejudicial error, not one necessarily one free of all error.” State v. Gill, 8th Dist.
Cuyahoga No. 62323, 1993 WL 135829 (April 29, 1993), quoting State v. Brown,
65 Ohio St. 3d 483, 485, 605 N.E.2d 46 (1992).
Under Evid.R. 103(A) and Crim.R. 52(A), we disregard as
harmless the admission of improper hearsay evidence unless a
substantial right of the party is affected. “Substantial rights are
not affected ‘where the remaining evidence constitutes
overwhelming proof of a defendant's guilt * * *.’”
State v. Missler, 3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 60 (citations
omitted).
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Case No. 1-16-23
{¶49} In this case, the challenged statements comprise two sentences stated
in the course of a trial that lasted for four days. Doc. 232. See Blevins, supra, at
149-150. Here, the record contains other compelling evidence that supports these
convictions, including Brentlinger’s statements on the stand and in multiple
recorded conversations. His own statements admit various elements of the
offenses with which he was charged, verify portions of Croft’s story, and
corroborate much of the content of Lynette’s out-of-court statements. Tr. 448,
451, 458, 469, 483, 495. Ex. 15-19. Further, “[t]here is no indication that the
prosecution ‘planted’ this testimony or attempted to capitalize on it. It is more
likely * * * [that the witness] ‘blurted out’ what [she] considered to be the reasons
for [the] investigation.” Gill at 3.
Confrontation Clause Standard of Review
{¶50} We now determine whether these statements were admitted in
violation of the Confrontation Clause. The United States Constitution
guarantees the right of defendants in criminal cases “to be
confronted with the witnesses against him.” Crawford at 38.
Since a witness is a person who “bear[s] testimony,” Id. at 51,
quoting 2 N. Webster, An American Dictionary of the English
Language (1828), “the Confrontation Clause applies only to
testimonial statements.” State v. Muttart, 116 Ohio St. 3d 5, 2007-
Ohio-5267, 875 N.E.2d 944, ¶ 59, citing State v. Stahl, 111 Ohio
St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 15.
State v. Little, 3d Dist. Allen No. 1-16-29, 2016-Ohio-8398, ¶ 17.
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Case No. 1-16-23
{¶51} “‘Testimony,’ in turn, is typically ‘[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’” Crawford
v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), quoting
2 N. Webster, An American Dictionary of the English Language (1828). “[I]f [a
witness’s] testimony regarding [an out-of-court declarant’s] statements [were] not
offered to prove the truth of the matter asserted, then it did not violate [the
defendant’s] right to confront witnesses.” Ricks at ¶ 18. See Crawford at 59, fn.
9, citing Tennessee v. Street, 471 U.S. 409, 105 S. Ct. 2078, 85 L. Ed. 2d 425
(1985).8 “[W]e review de novo evidentiary rulings that implicate the
Confrontation Clause.” McKelton, supra, at ¶ 97, citing United States v.
Henderson, 626 F.3d 326, 333 (6th Cir.2010).
Confrontation Clause Analysis
{¶52} In this case, Lynette’s out-of-court statements were not, according to
the prosecution, “offered in evidence to prove the truth of the matter asserted.”
Evid.R. 801(C). Since testimony is “a solemn declaration or affirmation made for
the purpose of establishing or proving some fact,” the statements that were
necessary to explain Pearson’s subsequent conduct are, by definition,
nontestimonial because their purpose was not to prove the truth of the matter
asserted. Crawford at 51, quoting 2 N. Webster, An American Dictionary of the
8
To support the preceding proposition from Ricks, the Supreme Court of Ohio quoted Crawford, which
says, the Confrontation Clause “does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.” Ricks at ¶ 18, quoting Crawford at ¶ 59, fn. 9.
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Case No. 1-16-23
English Language (1828). See Davis v. Washington, 547 U.S. 813, 823, 126 S.Ct
2266, 165 L. Ed. 2d 224 (2006). Thus, the statements that were necessary to
establish the reasons for Pearson’s subsequent actions do not fall within the scope
of the Confrontation Clause.
{¶53} As to the portion of Pearson’s testimony which may have gone
beyond what was necessary to explain Pearson’s subsequent actions, the
admission of these statements still does not implicate the Confrontation Clause.
The Ohio Supreme Court has adopted the objective witness test to determine
whether statements between people outside of law enforcement are testimonial.
Under this test, testimonial statements are those
made “under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial.” Crawford, 541 U.S. at 52, 124
S. Ct. 1354, 158 L. Ed. 2d 177. In determining whether a statement
is testimonial for Confrontation Clause purposes, courts should
focus on the expectation of the declarant at the time of making
the statement; the intent of a questioner is relevant only if it
could affect a reasonable declarant's expectations.
State v. Stahl, 111 Ohio St. 3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36.
{¶54} Under this test, the out-of-court statements that Lynette made to
Pearson are all nontestimonial. Since Pearson delivered mail to the Brentlingers’
house, Lynette and Pearson were acquainted with one another. On hearing from
her husband, Lynette did not contact the police or give a statement to law
enforcement. Rather, she contacted a familiar acquaintance to help address a
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specific problem. At the time of this conversation, it appears that her focus was on
resolving the issues presented by having a gun used to commit a crime shipped to
her house. We do not see any indication that her mind was contemplating the
prospect of her statements being used in a criminal action. Further, according to
Pearson, Lynette’s expressed concern at the time of this conversation was the
safety of her home and children. Tr. 214. Consequently, these statements did not
violate Brentlinger’s right to confrontation even if Pearson’s statements gave more
information than the circumstances of the trial necessitated. For these reasons, we
overrule Brentlinger’s third assignment of error.
Fourth Assignment of Error
{¶55} In his fourth assignment of error, Brentlinger contends that his
conviction for tampering with evidence should be overturned for lack of venue.
Since the conduct that provided the basis for this conviction occurred in Richland
County and happened two days after the initial incident, which occurred at the rest
area in Allen County, Brentlinger argues that the State was unable to establish that
venue was proper by proving that an element of this crime was committed in Allen
County. We are not persuaded by this argument. Contrary to Brentlinger’s
position, the primary issue here is not whether an element of the offense of
tampering with evidence was committed in Allen County but whether Brentlinger
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engaged in a course of criminal conduct under R.C. 2901.12(H) that connects the
offenses committed across jurisdictional lines.
Standard of Review
{¶56} “Venue is not a material element of any crime but is a fact that must
be proven beyond a reasonable doubt.” State v. Jalowiec, 91 Ohio St. 3d 220, 228,
744 N.E.2d 163 (2001) citing State v. Headley, 6 Ohio St. 3d 475, 477, 453 N.E.2d
716 (1983). See Ohio Constitution, Article 1, Section 10 and R.C. 2901.12(A).
R.C. 2901.12 states, in relevant part, the following:
(A) The trial of a criminal case in this state shall be held in a
court having jurisdiction of the subject matter, and…in the
territory of which the offense or any element of the offense was
committed.
***
(H) When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may be
tried for all of those offenses in any jurisdiction in which one of
those offenses or any element of one of those offenses occurred.
Without limitation on the evidence that may be used to establish
the course of criminal conduct, any of the following is prima-
facie evidence of a course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same
type or from the same group.
(2) The offenses were committed by the offender in the
offender's same employment, or capacity, or relationship to
another.
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Case No. 1-16-23
(3) The offenses were committed as part of the same transaction
or chain of events, or in furtherance of the same purpose or
objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender's line of
travel in this state, regardless of the offender's point of origin or
destination.
R.C. 2901.12(A), (H). While the general rule of R.C. 2901.12(A) places venue in
the territory in which an offense is committed, R.C. 2901.12(H) does allow
defendants who engage in a course of criminal conduct in which offenses are
committed in multiple jurisdictions to be tried for all of these offenses in any
jurisdiction where one of these offenses or an element of one of these offenses was
committed. R.C. 2901.12(A), (H). State v. Jackson, 141 Ohio St. 3d 171, 2014-
Ohio-3707, 23 N.E.3d 1023, ¶ 146; State v. Walker, 2d Dist. Montgomery No.
17678, 2000 WL 873222 (June 30, 2000); State v. Beuke, 38 Ohio St. 3d 29, 42,
526 N.E.2d 274 (1988).
{¶57} “[I]t is not essential that the venue of the crime be proven in express
terms, provided it be established by all the facts and circumstances in the case,
beyond a reasonable doubt, that the crime was committed in the county and state
as alleged in the indictment * * *.” State v. Hampton, 134 Ohio St. 3d 447, 451,
2012-Ohio-5688, 983 N.E.2d 324 (2012), quoting State v. Dickerson, 77 Ohio St.
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34, 82 N.E. 969 (1907). On review, we must view the evidence in the light most
favorable to the prosecution. State v. Valdez, 3d Dist. Marion No. 9-16-01, 2017-
Ohio-241, ¶ 142, citing Monroe, supra, ¶ 42. In making this ruling, appellate
courts must examine the record to determine whether a rational trier of fact could
have found “that the facts and circumstances in evidence are sufficient to
demonstrate venue * * *.” Beuke at 42; Jaloweic at 228, citing Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 and Jenks,
supra, at paragraph two of the syllabus.
Legal Analysis
{¶58} Here, we find that Brentlinger engaged in a course of criminal
conduct as at least two of the prima facie indicators that are listed in R.C.
2901.12(H) are present in this case. First, Brentlinger’s actions form a “chain of
events” under R.C. 2901.12(H)(3). The crime of tampering with evidence is
necessarily connected to allegations of previous misconduct that are or are about
to be the subject of an investigation. R.C. 2921.12(A)(1). In this case, Brentlinger
was notified by Detective Baker that an investigation into his actions on January 5,
2015, had begun. Tr. 280, 495. Ex. 14. In response, on January 7, 2015,
Brentlinger mailed his handgun from Richland County to his home in Tennessee
to serve, in his words, as a “diversion.” Tr. 455. While he also could have been
tried in Richland County for the crime of tampering with evidence, this crime was
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only possible because of the offenses he had previously committed in Allen
County, and it was committed for the purpose of hindering an ongoing
investigation in Allen County into these offenses. Tr. 455. Thus, the offenses in
Allen County “prompted the next offense” committed in Richland County,
“forming a chain of events.” Walker at 14. See R.C. 2901.12(H)(3).
{¶59} Second, these offenses occurred along a “line of travel in this state”
under R.C. 2901.12(H)(6). Brentlinger was driving through the state of Ohio to
conduct business in various locations, going from Lima, Ohio to Mansfield, Ohio.
Tr. 429. The jury found that Brentlinger committed several offenses in Lima,
Ohio, making Allen County the source of the evidence of these crimes. Tr. 640-
644. Brentlinger’s trip across Ohio brought the evidence of these offenses out of
Allen County and transported them into Richland County, where he shipped his
handgun to his home address in Tennessee. Tr. 454. All of the offenses he was
charged with were committed at points along this “line of travel in this state,”
uniting these offenses into a course of criminal conduct. R.C. 2901.12(H)(6).
Since the record shows that Brentlinger engaged in a course of criminal conduct,
we find that the State presented evidence sufficient for a reasonable trier of fact to
determine that venue was proper in Allen County. For these reasons, Brentlinger’s
fourth assignment of error is overruled.
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{¶60} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Allen County Court of Common Pleas is
affirmed.
Judgment Affirmed
PRESTON, P.J. and SHAW, J., concur.
/hls
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