[Cite as State v. Luckie, 2018-Ohio-594.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. William B. Hoffman, J.
-vs-
                                                   Case No’s. 16CA91, 16CA92, 16CA93
MARCELLUIS T. LUCKIE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas, Case No's 2015-CR-0665,
                                               2015-CR-0756, 2016-CR-0400



JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         February 14, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GARY BISHOP                                    DAVID M. WATSON
Prosecuting Attorney                           3 North Main Street, Suite 702
Richland County, Ohio                          Mansfield, Ohio 44902

By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                       2

Hoffman, J.


      {¶1}    Appellant Marcelluis Luckie appeals the judgment entered by the Richland

County Common Pleas Court convicting him of having a weapon under disability (R.C.

2923.13(A)(2),(3)), aggravated murder (R.C. 2903.01(B), four counts of kidnapping (R.C.

2905.01), aggravated burglary (R.C. 2911.11), robbery (R.C. 2911.02), tampering with

evidence (R.C. 2921.12), complicity to commit aggravated burglary (R.C. 2911.11), two

counts complicity to commit aggravated robbery (R.C. 2911.01)and injuring animals (R.C.

959.92), with firearm and repeat violent offender specifications, and sentencing him to an

aggregate term of 115 years incarceration to be served consecutively to a term of life

imprisonment without possibility of parole. Appellee is the state of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    In the early morning hours of June 24, 2015, Uvon Burns was asleep in her

bedroom when she awoke to a man pointing a gun at her, demanding drugs and money.

When her dog moved to protect her, the intruder shot the dog. She had no drugs, but

tossed her purse at him which contained her tip money from bartending at the American

Legion the night before. He picked up the purse and ran.

      {¶3}    Burns discovered her boyfriend, Jason O’Neal, had climbed into bed with

her after she fell asleep. He laid still so the intruder would not see him. He heard the

intruder ask for weed and money. He saw the silhouette of a man in a grey hoodie drawn

tight, holding a gun. He noted a tattoo on the intruder’s hand, and a pair of Nike boots he

had earlier seen on Christian Ramirez, Appellant’s co-defendant. He was later able to

identify Ramirez by his voice as well as the tattoo and boots.
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                      3


      {¶4}   Burns and O’Neal called the police and discovered the intruder gained entry

into the home by kicking the panel out of the front door. The dog survived after receiving

emergency veterinary care.

      {¶5}   At two o’clock that morning, Appellant woke up his girlfriend, Andrea

McDowell, to tell her Burns had been robbed and her dog had been shot. McDowell and

Burns were coworkers and friends. He claimed he heard about the incident from his friend

George Kelly. He insisted they check on Burns the next morning, and they drove to Burns’

house. Appellant told Burns and O’Neal he was sorry about their dog. O’Neal found it

strange Appellant knew about the dog because the incident was not yet public knowledge.

      {¶6}   On June 25, 2015, Christshanda Webb was at the home of her brother,

Myron Webb, waiting for a cable service installer to arrive. She heard a knock on the

back door. She checked the front of the house for a cable van, but no one was there.

Others in the house checked the rear door and found Ramirez attempting to force his way

into the house. When he noticed people in the house, he ran. Christhanda walked up

the street in the direction Ramirez was headed. She saw Appellant approach driving a

black Pontiac, and Ramirez jumped on the hood.

      {¶7}   Shamille Chapman and her baby were asleep on the couch on June 26,

2015, when she awoke to find Appellant and Ramirez standing over her, asking for money

and drugs. Appellant held a gun, and Ramirez held a crowbar. Appellant was wearing a

black Ohio State hoodie, a mask, gloves, and Hello Kitty glasses. Ramirez was dressed

in all black. Ramirez took electronics from the house and put them in bags. The men

asked her to have her son come downstairs, and they held him at gunpoint with Chapman.

The men demanded she call her boyfriend, Myron Webb, to ask him to come home, and
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                   4


threatened her if she warned him something was amiss.       She called Webb and asked

him to come home. The men continued to ransack the house while waiting for Webb to

arrive, asking her to call Webb multiple times. Appellant and Ramirez tied up Chapman’s

son with t-shirts and an electrical cord.

       {¶8}   When Webb arrived home, the men ordered him to the ground. They told

Webb they heard he had “bricks.” Webb responded he did not have drugs, but gave them

his money. Unhappy with what they had received, the men planned to stay all night and

have Webb withdraw money from the bank for them the next morning. They told Webb

they would put a pillowcase over his head and take the baby with them. Webb asked

them not to involve his family. When they ordered Webb to walk toward the kitchen,

Webb charged the men. Chapman grabbed the baby and ran into the kitchen where her

son was tied up. She got outside with her son and the baby and screamed for the

neighbors to call 911.

       {¶9}   After seeing Appellant and Ramirez run away, Chapman went back into the

house where she found Webb rolling around on the ground, bleeding from stab wounds

to his head, neck, back, and upper arms. He was transported to the hospital where he

died the following day. The medical examiner found twenty-five stab wounds on Webb.

       {¶10} At 2:00 a.m. on June 26, 2015, McDowell awoke and found Appellant in the

kitchen with what appeared to be blood on the back of his shirt. Shortly thereafter,

Appellant asked McDowell to help him put disinfectant on wounds on his shoulder and

elbow. Appellant claimed she saw a logo rather than blood on the shirt, but the next

morning Appellant told McDowell he threw the shirt in the river.
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                      5


       {¶11} During the afternoon of June 26, 2015, O’Neal saw Ramirez with a group of

people gathered outside a friend’s house. During a conversation, O’Neal recognized

Ramirez’s voice from the break-in on June 24, 2015. O’Neal punched Ramirez and

choked him. After he was beaten by O’Neal, Ramirez called his grandfather and told him

to get rid of bullets and a pair of “Jordans” which were at his house. Ramirez then called

Appellant and told him he got beat up over shooting O’Neal’s dog. Ramirez changed his

shoes at his house and his clothes at his mother’s house before going to the hospital,

where he claimed his injuries were the result of a fall from a tree.

       {¶12} Chapman’s neighbors had reported seeing Appellant and Ramirez flee the

scene of the attack on Webb in a black Pontiac Grand Prix.             When police went to

Ramirez’s house to question witnesses, they found a black Pontiac which they identified

as the vehicle they were looking for in connection with Webb’s murder. Police could see

blood on the steering wheel and a tire iron in the car. They found the vehicle was

registered to McDowell. Blood was later discovered on the driver’s side door, the steering

wheel, and the center console lid. DNA testing from the steering wheel cover showed a

DNA mixture including Webb and Ramirez. Webb’s blood was also found under the

passenger door handle and at two locations on the driver’s seat.

       {¶13} Appellant was indicted with one count of having weapons under disability in

case number 2015-CR-0665. He was indicted in case number 2015-CR-0756 on two

counts aggravated murder, four counts kidnapping, aggravated burglary, robbery, and

tampering with evidence with firearm and repeat violent offender specifications for the

events of June 25, 2015. He was indicted in case number 2016-CR-0400 with complicity
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                        6


to aggravated burglary, two counts of complicity to aggravated robbery, and one count of

complicity to injure animals, with firearm specifications, for the events of June 24, 2015.

       {¶14} The indictments were consolidated for trial, and consolidated with the co-

defendant Ramirez for trial. The case proceeded to jury trial. Appellant was convicted of

all counts except one of the two counts of aggravated murder. He was sentenced to a

term of life imprisonment without possibility of parole on the aggravated murder

conviction, and an aggregate of 115 years incarceration on the remaining charges, to be

served consecutively.     From the judgments of conviction and sentence Appellant

prosecutes this appeal, assigning as error:



              “I. THE TRIAL COURT ERRED BY JOINING OFFENSES IN ONE

       TRIAL.

              “II. THE TRIAL COURT ERRED BY JOINING MR. LUCKIE WITH

       CHRISTEN RAMIREZ IN ONE TRIAL.

              “III. THE TRIAL COURT ERRED BY DENYING THE MOTION FOR

       NEW TRIAL.

              “IV. THE TRIAL COURT ERRED BY PERMITTING THE JURY TO

       HEAR TESTIMONY FROM WITNESS O’NEAL IN VIOLATION OF THE

       BRUTON DOCTRINE.

              “V. THE TRIAL COURT ERRED BY PERMITTING THE JURY TO

       HEAR TESTIMONY FROM WITNESS MATHEWS IN VIOLATION OF THE

       BRUTON DOCTRINE.”
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                      7


                                                I.

       {¶15} Appellant argues the court erred in joining his three separate indictments

into one trial. The State moved for joinder of offenses and defendants. Appellant objected

to joinder, and the trial court held a hearing on the motion. Following the hearing, the

court ruled as follows:



              This matter came before the Court upon the motion of the State of

       Ohio to consolidate all of the above cases for one jury trial. The Court finds

       that Defendant Marcellus [sic] Luckie and Defendant Christian [sic] Ramirez

       have each been indicted for the same criminal activity as co-defendants.

       The criminal activity that each defendant has been indicted with relates to

       a home invasion type of robbery and burglary that occurred on June 23,

       2015 and another similar type of home invasion type of robbery and burglary

       that occurred on June 26, 2015. In the second offense the State of Ohio

       alleges that the defendants while acting together murdered Myron Webb.

       The State contends that all of these offenses were committed as a part of a

       course of criminal conduct by those defendants while they were acting

       together.

              Based on the arguments of the parties the Court believes that all of

       these offenses should be consolidated for one trial. Defendant Ramirez,

       through counsel, has raised the issue that a single statement made by

       Defendant Luckie to a witness could be used by the State of Ohio to

       incriminate Defendant Ramirez.
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                          8


              The statement in question on its face does not incriminate Defendant

       Ramirez.     However, the statement could be used to infer Defendant

       Ramirez’s guilt and therefore the Court will not permit the State of Ohio to

       introduce that particular single statement at the joint trial. This will alleviate

       any possible Bruton issue and there is no reason not to consolidate the

       cases for a single trial.

       Judgment Entry, August 18, 2016.



       {¶16} Joinder of offenses is governed by Crim. R. 8(A), which states offenses may

be joined if they are of the same or similar character, are based on the same act or

transaction, or are based on two or more acts or transactions connected together or part

of a common scheme or course of criminal conduct. Joinder is liberally permitted to

conserve judicial resources, reduce the chance of incongruous results in successive

trials, and diminish inconvenience to witnesses. See, State v. Torres, 66 Ohio St.2d 340,

343, 421 N.E.2d 1288 (1981). Joinder is appropriate where the evidence is interlocking

and the jury is capable of segregating the proof required for each offense. State v. Czajka,

101 Ohio App.3d 564, 577–578, 656 N.E.2d 9 (8th Dist. Cuyahoga 1995).

       {¶17} If similar offenses are properly joined pursuant to Crim. R. 8(A), the accused

may move to sever the charges pursuant to Crim. R. 14, wherein the burden is on the

defendant to demonstrate his rights would be prejudiced by joinder. State v. Strobel, 51

Ohio App.3d 31, 33, 554 N.E.2d 916 (3rd Dist. Henry 1988).

       {¶18} A Crim.R. 14 motion for severance of counts due to prejudicial misjoinder is

waived unless it is renewed at the close of the state's case or at the conclusion of all the
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                         9

evidence. Strobel, supra, paragraph two of the syllabus; State v. Owens (1975), 51 Ohio

App.2d 132, 5 O.O.3d 290, 366 N.E.2d 1367, paragraph two of the syllabus (1975).

       {¶19} In the instant case, Appellant did not renew his motion for relief from

prejudicial joinder. Nonetheless, if it appears a defendant is prejudiced by joinder, a trial

court may grant a severance. State v. Brinkley 105 Ohio St.3d 231, 824 N.E.2d 959,

2005–Ohio–1507. The defendant bears the burden of proving the trial court abused its

discretion in denying severance. Id.

       {¶20} To prevail on a claim to sever counts, the defendant has the burden of

demonstrating: 1) his rights were actually prejudiced; 2) at the time of the motion to sever,

the defendant provided the trial court with sufficient information so it could weigh the

considerations favoring joinder against the potential prejudice to the defendant's right to

a fair trial; and 3) given the information provided to the court, the court abused its

discretion in refusing to sever the charges. State v. Schaim, 65 Ohio St.3d 51, 59, 600

N.E.2d 661 (1992), citing State v. Hamblin, 37 Ohio St.3d 153, 158–159, 524 N.E.2d 476

(1988) and Drew v. United States, 331 F.2d 85 (D.C.Cir.1964).

       {¶21} A defendant has not demonstrated prejudice where: (1) if the counts were

severed, evidence of alleged misconduct from each count would be admissible in

separate trials, and, if not (2) if such evidence would not be admissible, the evidence of

each count is simple and distinct. Id.

       {¶22} In the instant case, the focus at the hearing was on joinder of defendants

rather than joinder of offenses.        Thus, Appellant did not provide the trial court with

sufficient information to weigh the considerations favoring joinder of offenses against the

potential prejudice of his right to a fair trial.
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                     10


       {¶23} Further, we find the evidence of each count is simple and distinct. The

indictments involved two incidents which occurred on two separate dates. The witnesses

and victims were different as to the two events which resulted in the charges. The trial

court clearly laid out each separate offense as set forth in the indictment in the jury

instructions. Tr. 3617-3654. Further, the court instructed the jury each of the offenses

constituted a separate and distinct matter, and the jury must consider each charge

separately, uninfluenced by their verdict as to the other charges. Tr. 3659.

       {¶24} While Appellant argues he was prejudiced by joinder because the evidence

is insufficient to prove his involvement in the home invasion of June 24, 2015, he has not

separately assigned as error the judgment is against the manifest weight and sufficiency

of the evidence.

       {¶25} We find Appellant has not demonstrated prejudice from joinder of offenses.

The first assignment of error is overruled.



                                                II.

       {¶26} Appellant argues the court erred in joining his indictments with those of

Christen Ramirez for trial.

       {¶27} Crim.R. 8(B) governs joinder of defendants and states:



              Two or more defendants may be charged in the same indictment,

       information or complaint if they are alleged to have participated in the same

       act or transaction or in the same series of acts or transactions constituting

       an offense or offenses, or in the same course of criminal conduct. Such
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                      11


       defendants may be charged in one or more counts together or separately,

       and all of the defendants need not be charged in each count.



       {¶28} In order to obtain a severance, a defendant must demonstrate prejudice by

the joinder. Crim R. 14 provides, in pertinent part:



              If it appears that a defendant or the state is prejudiced by a joinder

       of offenses or of defendants in an indictment, information, or complaint, or

       by such joinder for trial together of indictments, informations or complaints,

       the court shall order an election or separate trial of counts, grant a

       severance of defendants, or provide such other relief as justice requires. In

       ruling on a motion by a defendant for severance, the court shall order the

       prosecuting attorney to deliver to the court for inspection pursuant to Rule

       16(B)(1)(a) any statements or confessions made by the defendants which

       the state intends to introduce in evidence at the trial.



       {¶29} The decision to grant severance rests in a trial court's sound discretion.

State v. Torres, 66 Ohio St.2d 340 (1981). In order to find an abuse of discretion, we must

determine the trial court's decision was unreasonable, arbitrary or unconscionable and

not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶30} The law favors the joinder of defendants and the avoidance of multiple trials

because joinder conserves judicial and prosecutorial time, lessens the expenses of

multiple trials, diminishes the inconvenience to witnesses, and minimizes the possibility
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                          12

of incongruous results from successive trials before different juries. State v. Thomas

(1980), 61 Ohio St.2d 223, 400 N.E.2d 401 (1980).

       {¶31} The United States Supreme Court has stated, “a district court should grant

a severance under Rule 14 only if there is a serious risk that a joint trial would compromise

a specific trial right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct.

933, 122 L.Ed.2d 317 (1993). Even where the risk of prejudice is high, “less drastic

measures, such as limiting instructions, often will suffice to cure any risk of prejudice.” Id.

“A request for severance should be denied if a jury can properly compartmentalize the

evidence as it relates to the appropriate defendants.” United States v. Causey, 834 F.2d

1277, 1287 (6th Cir. 1987).

       {¶32} As discussed in the first assignment of error, the evidence was simple and

distinct, and with the exception of the weapons under disability charge against Appellant,

the defendants were charged with the same crimes arising out of the same two home

invasions. While Appellant argues the evidence was indirect and inferential rather than

direct, the case law requires the evidence to be distinct, not direct. Schaim, supra.

Further, the trial court instructed the jury:



              Separately consider the evidence that applies to each Defendant as

       though he were being tried separately. State your finding to each Defendant

       uninfluenced by your verdict as to the other Defendant.

       Tr. 3659-60.
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                           13


       {¶33} We find no abuse of discretion in the trial court’s joinder of Appellant and

his co-defendant Ramirez for trial.

       {¶34} The second assignment of error is overruled.



                                                  III.

       {¶35} In his third assignment of error, Appellant argues the court erred in failing

to grant a mistrial after Jason O’Neal testified to statements made by Appellant which

implicated Ramirez, in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620,

20 L.Ed.2d 476 (1968).

       {¶36} A mistrial should not be ordered in a criminal case merely because some

error or irregularity has intervened.     State v. Reynolds, 49 Ohio App.3d 27, 33, 550

N.E.2d 490, 497 (1988). The granting of a mistrial is necessary only when a fair trial is no

longer possible. State v. Franklin, 62 Ohio St.3d 118, 127, 580 N.E.2d 1, 9 (1991). When

reviewed by the appellate court, we should examine the climate and conduct of the entire

trial, and reverse the trial court's decision as to whether to grant a mistrial only for a gross

abuse of discretion. State v. Draughn (1992), 76 Ohio App.3d 664, 671, 602 N.E.2d 790,

793-794 (1992).

       {¶37} In Bruton, supra, a postal inspector testified about a confession one co-

defendant, Evans, had made to the inspector. Evans confessed he and the other co-

defendant, Bruton, had committed armed robbery. Neither Evans nor Bruton testified at

trial. The court admitted the evidence, but instructed the jury they could not use evidence

from Evan's confession against Bruton. The United States Supreme Court reversed, and

ruled a substantial risk existed that the jury improperly relied on incriminating, extra
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                      14


judicial statements in determining the defendant's guilt. 391 U.S. at 126. The defendants

should have been tried separately, in which case the postal inspector's testimony would

not have been placed in front of the jury which determined Bruton's guilt. Id. The basis of

the Bruton decision was Bruton's inability to confront and cross-examine Evans about his

statements concerning Bruton's involvement. Although the evidence regarding Evan's

confession was admissible against Evans as an admission of a party opponent, it was not

admissible against Bruton, as Bruton was effectively prevented from confronting

witnesses against him. Id. at 127-128.

       {¶38} The Ohio Supreme Court found Bruton applicable even when the statement

does not clearly implicate the co-defendant:



              (T)he Bruton rule applies with equal force to all statements that tend

       significantly to incriminate a co-defendant, whether or not he is actually

       named in the statement. The fact that the incrimination amounts to a link in

       a chain of circumstances rather than a direct accusation cannot dispose of

       the applicability of the Bruton rule. Just as one can be convicted on

       circumstantial evidence, one can be circumstantially accused. Fox v. State

       (Ind.App.1979), 384 N.E.2d 1159, 1170.

       State v. Moritz, 63 Ohio St.2d 150, 155, 407 N.E.2d 1268, 1272 (1980).



       {¶39} Appellant argues the following testimony by Jason O’Neal violates the

Bruton rule, “He [Appellant] jumped out the car. I looked at Uvon in shock. Like, he got

out. He hugged her. He says, ‘Sorry about what happened. We going to find out who
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                     15


did this. And sorry about your dog.’” Tr. 762. The testimony concerned Appellant’s own

statement, not that of Ramirez, his non-testifying co-defendant. Therefore, the testimony

does not implicate Bruton as to Appellant.

      {¶40} The third assignment of error is overruled.



                                               IV.

      {¶41} In his fourth assignment of error, Appellant argues the court erred in

admitting testimony of Jason O’Neal which violated the Bruton doctrine.

      {¶42} On cross-examination by counsel for Ramirez, O’Neal testified:



             Q. Okay. Now, you told us earlier that, as you put it, when you were

      beating the brakes off of Christopher [sic] Ramirez at Granite Street, that

      he, on a couple of occasions said he was sorry.

             A. Yeah.

             Q. All right. Didn’t he also in your presence say that he didn’t do it?

             A. I didn’t hear him say none of that.

             Q. I’m sorry?

             A. I didn’t hear him say none of that.

             Q. You didn’t hear him say that?

             A. No.

             Q. Okay. Well, read that answer there on page 6.
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                      16


              A. And he called him out of the car, and he came out. The guy got

       to questioning, hey, man, how you know Luckie? Yeah, I know Luckie. Ain’t

       that his car? Yeah. I’m doing some work for him. I owe him.

              Tr. 842.



       {¶43} Counsel for Appellant objected, and a discussion ensued concerning

whether the testimony was hearsay and/or a Bruton violation. After initially sustaining the

objection, the court later overruled the objection. Tr. 847.

       {¶44} Subsequent to Bruton and Moritz as we discussed in the previous

assignment of error (see ¶37-38, supra), case law has changed regarding the type of

statements which implicate the Confrontation Clause:



              However, case law has evolved. For instance, in Yarbrough, the

       mastermind declarant, who hired the defendant to kill the victim, died prior

       to trial. After finding the statement against interest hearsay exception

       applied, the Ohio Supreme Court found no confrontation clause issue with

       the admission of the declarant's statement to private citizens incriminating

       himself and the defendant. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216

       at ¶ 46–54, 56 (and this was prior to Crawford's testimonial standard). In

       any event, the Bruton principles were premised on the confrontation clause.

       As subsequent federal and Ohio state decisions have been rendered

       limiting the confrontation clause's application to testimonial statements,

       prior principles must be viewed under the lens of the intervening precedent.
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                     17

      See Clark, ––– U.S. ––––, 135 S.Ct. at 2180 (“a statement cannot fall within

      the Confrontation Clause unless its primary purpose was testimonial”).

               In accordance, if the out-of-court statement of a non-testifying

      codefendant is not testimonial, then Bruton has no application because the

      confrontation clause has no application. “Because it is premised on the

      Confrontation Clause, the Bruton rule, like the Confrontation Clause itself,

      does not apply to nontestimonial statements.” United States v. Johnson,

      581 F.3d 320, 326 (6th Cir. 2009). See also United States v. Vasquez, 766

      F.3d 373, 378 (5th Cir. 2014); United States v. Dargan, 738 F.3d 643, 651

      (4th Cir. 2013) (“Bruton is simply irrelevant in the context of nontestimonial

      statements * * * Statements that do not implicate the Confrontation Clause,

      a fortiori, do not implicate Bruton”); United States v. Clark, 717 F.3d 790,

      816 (10th Cir. 2013) (“the Bruton rule, like the Confrontation Clause upon

      which it is premised, does not apply to nontestimonial hearsay statements”);

      United States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012) (because “Bruton

      is no more than a by-product of the Confrontation Clause,” it is inapplicable

      to a non-testimonial prison yard conversation).

      State v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, ¶¶

      38-39.



      {¶45} The Ohio Supreme Court has defined a testimonial statement in accordance

with the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S.

36124 S.Ct. 1354158 L.Ed.2d 177 (2004):
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                      18




             Given our review of the foregoing authority, we adopt the “objective

      witness” test in Ohio. For Confrontation Clause purposes, a testimonial

      statement includes one 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. This

      test conforms to Crawford and is supported by both state and federal

      authority. This definition also prevents trampling on other portions of

      hearsay law that Crawford expressly states do not implicate the right to

      confront witnesses.

      State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36.



      {¶46} The statement Ramirez made to O’Neal was not given under circumstances

which an objective witness would believe the statement would be available for use at a

later trial. The statement was made while O’Neal was beating up Ramirez. Further, the

statement does not implicate Appellant in a crime; Ramirez merely acknowledged he

knew Appellant and had Appellant’s vehicle.        Other witnesses, including Appellant,

testified Ramirez and Appellant hung out together, and Ramirez sometimes drove
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                     19

Appellant’s car.   The trial court did not violate the Bruton doctrine in admitting the

statement of Ramirez to O’Neal.

       {¶47} The fourth assignment of error is overruled.



                                                V.

       {¶48} In his fifth assignment of error, Appellant argues the testimony of Ashley

Matthews concerning statements she overheard Ramirez make on the telephone violated

Bruton, supra. Matthews testified she heard Ramirez telephone his grandfather and tell

him to go to Ramirez’s house, get the bullets and shoes, and throw them out. She testified

Ramirez then called Appellant and said they “jaked him.” Tr. 2240. She heard Ramirez

tell Appellant he got beat up over shooting the dog. Tr. 2241. She could hear Appellant

respond, “Really, man? That’s what it was over?” Tr. 2241.

       {¶49} As discussed in the fourth assignment of error, Bruton is not implicated

unless the statement is testimonial in nature. Carter, supra. The statements Ramirez

made to his grandfather did not in any way implicate Appellant in a crime. The statement

made to Appellant concerning getting beaten up over shooting the dog was not

testimonial, as the circumstances would not lead an objective witness reasonably to

believe the statement would be used later at trial.

       {¶50} The fifth assignment of error is overruled.
Richland County, Case No’s. 16CA91, 16CA92, 16CA93                                20


      {¶51} The judgment of the Richland County Common Pleas Court is affirmed.




By: Hoffman, J.

Wise, John, P.J. and

Gwin, J. concur
