[Cite as State v. Strange, 2019-Ohio-4188.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 28200
                                                    :
 v.                                                 :   Trial Court Case No. 2018-CR-2098/1
                                                    :
 STEVEN P.W. STRANGE                                :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                            Rendered on the 11th day of October, 2019.

                                               ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle
NW, Kettering, Ohio 45429
      Attorney for Defendant-Appellant

                                              .............

DONOVAN, J.
                                                                                           -2-


       {¶ 1} Steven Strange appeals from an October 31, 2018 judgment entry of

conviction; he was found guilty of one count of intimidation of a victim, in violation of R.C.

2921.04(B)(1), a felony of the third degree, following a jury trial. We affirm the judgment

of the trial court.

       {¶ 2} Steven was initially charged on June 3, 2018, by way of complaint in the

Montgomery County Municipal Court, Western Division, with one count of trespass in a

habitation (person present or likely to be present), in violation of R.C. 2911.12(B), a felony

of the fourth degree. A warrant for his arrest was issued the same day. The matter was

subsequently transferred to the court of common pleas, and Steven was indicted on July

5, 2018, on one count of intimidation of a victim (Count I) and one count of trespass in a

habitation (Count II). Count I included Heather Strange, the defendant’s sister, as a co-

defendant and provided that the offenses occurred between June 4 and July 3, 2018.1

On July 10, 2018, the court entered a plea of not guilty on Steven’s behalf.

       {¶ 3} On October 10, 2018, Steven filed a motion in limine requesting that the trial

court exclude evidence of certain text messages to his phone from “Kelly” (Kelly Strange,

Steven’s mother), as well as communications by his parents to the complaining witness.

The following day, Steven filed an amended motion in limine, requesting that the court

exclude text messages from Heather Strange and Bryanna Owens to the complaining

witness. The court did not rule on the motions in limine on the record.

       {¶ 4} Trial was held in October 2018.

       {¶ 5} David Mullins testified that on June 2, 2018, he resided in New Lebanon with

his girlfriend, Jessica Payne, and Payne’s five-year-old daughter. He stated that, at the


The charge against Heather was dismissed on May 22, 2019.
1
                                                                                         -3-


time, their home did not have electricity, and they were using a generator that was low on

gas. David testified that Jessica called Heather Strange to borrow money to purchase

gas, and that Heather brought $80 to their home.

      {¶ 6} David testified that, after going to bed that evening, he was awakened at 3:00

a.m. to a loud banging on their front door. He testified that he went downstairs with

Jessica behind him, opened the door, and observed Steven “standing there screaming.”

Steven stated that “his [Steven’s] dad was sleeping with my girlfriend and he wanted his

sister’s money and then he like banged into me into the door and pushed into the house.”

According to David, Jessica told Steven to get out or she was going to call the police.

David also told Steven to get out, but Steven kept screaming. David testified that Steven

then “put a cigarette in his mouth and went to light it and when he did I like hit him and

shoved him out the door” and locked it. David observed two other men with Steven who

did not enter his home.

      {¶ 7} David testified that the police arrived minutes after Steven left, and they took

his statement. He stated that he told Heather when she dropped off the money that he

would pay her back on Sunday when he got paid. David identified a photo of the front

door of his home, which he stated showed “Steven’s shoeprint where he had been kicking

my door.” David testified that the police officers retrieved the cigarette, photographed

his door, and copied text messages sent from Steven’s mother to Jessica’s phone.

      {¶ 8} The following exchange occurred:

             [PROSECUTOR] Q. * * * And later on, were you contacted by any

      members of Steven’s family?

             A. Yes.
                                                                             -4-


       Q. And around when was that that you, personally, were contacted

by them?

       A. Just like a couple days after.

       Q. What happened?

       A. At first, Heather had just been sending - - Steven’s sister had

been sending text messages saying - -

       [DEFENSE COUNSEL]: Objection - -

       THE WITNESS: - - if Steven goes to jail - -

       ***

       THE COURT: Wait, one second. Counsel approach.

                              (At sidebar)

       [PROSECUTOR]: I’m just trying to elicit the events - -

       ***

       THE COURT:         I guess part of my concern here is is there a

connection. Was he talking to her because if, in fact, there’s a chain of,

you know, call her, do something and then she talks to someone that’s part

of the operative facts, so. It’s beyond the hearsay exception. But there

needs to be a connection and is that going to come out at some point

through the phone calls - -

       [PROSECUTOR]: Yes. So Steven contacts Heather to try to get

her to take care of it as well.

       THE COURT: And then - - and that was before these phone calls

or texts - -
                                                                                         -5-


             [PROSECUTOR]: Yes.

             ***

             THE COURT: * * * I understand that but, again, threats can be direct

      or indirect. So I guess if there’s a good-faith belief that the phone calls from

      the defendant to his sister are before these texts, then you can get into it.

             ***

             THE COURT: And I won’t know until you get that guy on.

             ***

             THE COURT: You check it out and make sure the dates are - -

             [DEFENSE COUNSEL]: Okay.

             THE COURT: * * * Objection overruled.

                                   (End sidebar)

      David further testified that, toward the end of June, he and Jessica ran into Heather

and her boyfriend, Eric, at the Dollar General in Drexel, and that Heather approached

Jessica and repeatedly asked her for $80. He stated that after they got into their car,

Eric came around to the driver’s side and started beating on David’s window.

      {¶ 9} The following exchange occurred:

             BY [PROSECUTOR]:

             Q. And are you aware of anything else around that time, as well, that

      happened to you specifically?

             A. Steven’s dad had come in front of my dad’s house.

             Q. And around when was that? Was that in June as well or when

      was that?
                                                                                            -6-


              A. Towards the end.

              Q. Of June?

              A. Yes.

              Q. * * *. Of 2018?

              A. Yes. He had - - Steven’s dad pulled up in a black truck on the

       right side of my dad’s house. There’s a stop sign and then there’s the brick

       wall of the highway in front so you have to go left or right. Well, he was in

       a black truck with a trailer dragging behind and he had turned the corner,

       took a left and stopped in front of my dad’s and rolled the window down and

       told Jessica - -

              [DEFENSE COUNSEL]: Objection, Your Honor.

              THE COURT: Overruled.

              THE WITNESS: He said * * * you’re going to get yours, b****. And

       then he hold (sic) the brake and hit the gas until it got real smoky and then

       let off the brake and took off.

       {¶ 10} David testified that after the incidents, he thought that if he and Jessica

went “to court on Steven that they’re going to try to hurt us.” He testified that, as a result,

Jessica began carrying pepper spray and he began carrying a knife, “[b]ecause if they all

come up on me, I’m not going to let them kill me.”

       {¶ 11} On cross-examination, David stated that he did not observe Steven kicking

the front door of his home. He stated that the men behind Steven “were just kinda like

standing there back of him and the other guy was trying to get him to come on.” David

testified that after the incident at his father’s house, he “flagged an officer down” in New
                                                                                     -7-


Lebanon and “told him that they had approached me.”

      {¶ 12} Jessica Payne testified that she had known Heather Strange for two and a

half years and was friends with her, Steven, and their sister, Ashley.     She testified

consistently with David regarding Steven’s entering their home. Jessica testified that

she called the police after Steven left and gave them a statement.

      {¶ 13} The following exchange occurred after Jessica was asked if she had been

approached by a member of the Strange family after the incident:

             A. The first time was within a couple days after the incident on June

      2nd which was by his mother. She came to my job [at Casey’s gas station

      in New Lebanon.]

             [PROSECUTOR] Q. Can you recall, at all, like a date?

             A. No, I know it was before June 7th. It was in five days between

      June 2nd and June 7th.

             Q. * * * What happened in that incident?

             A. She had came in and - -

             Q. She who?

             A. Kelly did, Steven’s mom.

             ***

             A. Came in and told me that it was complete bullcrap that we were

      --

             [DEFENSE COUNSEL]: Objection, Your Honor.

             THE WITNESS: - - that we called the police against Steven.

             THE COURT: Overruled.
                                                                               -8-


      THE WITNESS: And told me that she was going to make me lose

my job. I asked her how so. And she said that I had gave her free food

before. I told her to get out of my job and I was going to make her trespass

off - - I called the officer. He came and took a statement.

      ***

      Q. * * * And how about the second incident? When did this happen?

      A. The second incident was in the same - - within the same two

weeks.   I don’t know the exact date.     And Heather and Eric, which is

Steven’s sister and her boyfriend, came up to me and Dave - -

      [DEFENSE COUNSEL]: Objection.

      THE WITNESS: - - and my five-year-old daughter at the Dollar

General in Trotwood.

      BY [PROSECUTOR]: And what happened there?

      A. She met me by the door entrance of the Dollar General and was

telling me to give her $80 right then and to not go to court against Steven.

We told her to get away because I had my daughter with us. I hurried up

and got in the vehicle, shut all the doors.    And that’s when Heather’s

boyfriend, Eric, came around and started pounding on my windshield and

the side doors.

      Q. And how did you feel when this was happening.

      A. Scared. My daughter was with me.

      Q. Before that, did you have any issues with Eric?

      A. * * * No, I have not.
                                                                                     -9-


             ***

             Q. And how about the next incident, what happened?

             A.    I was standing at my boyfriend Dave’s father’s house in

      Trotwood and Steven’s father, Big Steve, came up in his truck around the

      house - - and we were standing out front - - and he stopped and he looked

      at me and pointed and he said you’ll get yours b**** and he rolled up and

      he revved up his engine and started off down the street. I made another

      incident on that.

      {¶ 14} Jessica stated that she felt threatened and that Steven’s family had

threatened her and her entire family. She stated that Steven’s girlfriend, “Bree,” had

texted her several times after that incident, begging her “to not go further, more court

dates and stuff against Steven.”

      {¶ 15} Officer Clinton Goad testified that he was employed by the New Lebanon

Police Department, and that he responded to Casey’s on June 6, 2018, where he came

into contact with Jessica. The following exchange occurred:

             [PROSECUTOR] Q. And so when you were speaking with Jessica,

      who did you come to understand had came into the General Store?

             A. She advised that Kelly Strange had come to the General Store.

             ***

             Q. And what was the nature of the contact between them?

             A. Jessica advised that Kelly had come to the store - -

             [DEFENSE COUNSEL]: Objection, Your Honor.

             THE COURT: Counsel approach.
                                                                                -10-


                            (At sidebar)

       THE COURT: * * * I’m trying to figure out. This is on because the

witness intimidation includes what she said in the report. I believe -- * * *

try to keep him from specifics but I think you can get into what happened

and if there was a threat that can come out - -

       [DEFENSE COUNSEL]: (Indiscernible)

       THE COURT: Well, and he explained that. The thing is normally if

someone goes and talks to someone you can’t - - so-and-so said such-and-

such. But the whole point of this is witness intimidation. So she reported

that. And I think if you can try as much, unless there were threats in there

and I’m not exactly sure what was said, he can go over to what happened

in a general - - what was going on - -

       ***

       THE COURT: * * * So kind of watch it but I’m going to give a little

latitude and that’s only because this is witness intimidation which includes

threats.

       ***

       THE COURT: So if she’s reporting a threat, I think that’s okay. * * *

                            (End Sidebar)

       BY [PROSECUTOR]:         And what was the nature of the contact

between Kelly Strange and Jessica Payne?

       A. Jessica explained to me that Kelly had been unpleasant after a

short time at the store and had harassed her and talked about this case and
                                                                                       -11-


      threatened to get her fired and Jessica did not want to put up with that so

      she spoke with her bosses and her boss had given her permission to have

      Kelly trespassed from the store.

      {¶ 16} Officer Steven Gingry of the New Lebanon Police Department testified that

on June 2, 2018, he was working as a patrolman when he responded to David and

Jessica’s home on a report of “shots fired at a house.” He stated that he collected a

“burnt cigarette” and a pack of L&M cigarettes, and he photographed the front door.

Gingry obtained written statements from David and Jessica. He testified that he looked

for shell casings in the area of the house and for bullet holes in the home “because they

said that they possibly heard gunshot,” but he did not find anything.   Gingry stated that

he returned to the police department and then went to Steven’s home, where he found

Steven in the driveway. Gingry stated that he placed Steven under arrest. On cross-

examination, Gingry stated that David brought the cigarette to him from inside the home.

On redirect examination, Gingry testified that the cigarette he collected was analyzed for

DNA and that David’s and Steven’s DNA were on the cigarette.

      {¶ 17} Scott Chapman, the administrative sergeant at the Montgomery County

Sheriff’s Office and the keeper of the records, testified that the jail phone system was

recorded by Paytel. Chapman testified that, in order to make a phone call, inmates must

enter a pin number consisting of their booking number and the last four digits of their

Social Security number, and the Paytel system allows them to access their phone calls

by means of the pin numbers. Chapman testified that he retrieved three of Steven’s

recorded phone calls. He identified a disk he made containing the calls.

      {¶ 18} Officer Gingry was recalled, and he testified that he listened to recordings
                                                                                         -12-


of Steven’s phone calls, which included phone calls from the jail between Steven and his

girlfriend, Bryanna Owens; his mom, Kelly Strange; his father, Steven Strange; and his

sisters, Ashley and Heather Strange. A two-minute audio recording was played for the

jury, and Gingry testified that the phone calls reflected “Steven trying to get his family

members to go to Dave and Jessica’s house and either harm them or intimidate them to

not show up for court or drop the case or not prosecute this case.” He stated that the

call were made on June 4, June 8, 2018, and June 10, 2018, and these calls were played

for the jury. Gingry testified that, based upon the recorded calls, he was concerned that

“harm was going to be inflicted on the victims of this reported crime.” He testified that he

was aware of the incident at Dollar General involving David, Jessica, Heather and Eric,

as well as the incident in front of David’s father’s home. On cross-examination, Gingry

testified that he reviewed the calls on June 19, 2018, and contacted Jessica the following

day. He stated that he was also aware of the incident at Jessica’s place of employment.

       {¶ 19} At the conclusion of the State’s evidence, the court overruled defense

counsel’s motion for judgment of acquittal.

       {¶ 20} Bryanna Owens, Steven’s former girlfriend, and Brandon Schroyer,

Steven’s friend, testified on Steven’s behalf. Their testimony was not relevant to the

offense of intimidation of a victim but only to the trespass offense.

       {¶ 21} The jury found Steven guilty of intimidation of a victim and not guilty of

trespass in a habitation. He was sentenced to 30 months in prison.

       {¶ 22} Steven asserts three assignments of error. His first assigned error is as

follows:

              THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
                                                                                          -13-


       ADMITTING HEARSAY EVIDENCE OVER THE OBJECTION OF

       DEFENSE COUNSEL.

       {¶ 23} As this Court noted in Abrams v. Abrams, 2017-Ohio-4319, 92 N.E.3d 368,

¶ 30 (2d Dist.):

              * * * “ ‘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).     “To constitute hearsay, two

       elements are needed.       First, there must be an out-of-court statement.

       Second, the statement must be offered to prove the truth of the matter

       asserted. If either element is not present, the statement is not ‘hearsay.’ ”

       (Footnote and citations omitted) State v. Maurer, 15 Ohio St.3d 239, 262,

       473 N.E.2d 768 (1984). Accord State v. Tate, 2d Dist. Montgomery No.

       25386, 2013-Ohio-5167, ¶ 75.

       {¶ 24} In State v. Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294, we

observed:

              An out of court statement is not hearsay if it “is offered to prove a

       statement was made and not for its truth, * * * to show a state of mind, or to

       explain an act in question.” Maurer at 262. Accord State v. Williams, 38

       Ohio St.3d 346, 348, 528 N.E.2d 910 (1988) (finding “[a] statement is not

       hearsay if it is admitted to prove that the declarant made it, rather than to

       prove the truth of its contents”).    We review rulings regarding hearsay

       under an abuse-of-discretion standard. (Citation omitted.) State v. Williams,

       2d Dist. Montgomery No. 26369, 2016-Ohio-322, ¶ 17.
                                                                                           -14-

Id. at ¶ 21.

       {¶ 25} This Court further noted in Brown:

               * * * “A trial court abuses its discretion when it makes a decision that

       is unreasonable, unconscionable, or arbitrary. An abuse of discretion

       includes a situation in which a trial court did not engage in a ‘sound

       reasoning process.’ Abuse-of-discretion review is deferential and does not

       permit an appellate court to simply substitute its judgment for that of the trial

       court.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d

       971, ¶ 34.

Id. at ¶ 17.

       {¶ 26} Steven directs our attention to David’s testimony, as described above,

wherein David stated that Heather had been sending text messages, defense counsel

objected, and a sidebar occurred. The court overruled the objection, and then David

testified that he and Jessica were approached by Heather and Eric at the Dollar General,

where Heather demanded money and Eric subsequently beat on the driver’s side window

of the car with Jessica’s daughter inside. David further testified that Steven’s father

threatened Jessica by saying, “you’re going to get yours b****.” Steven also directs our

attention to Jessica’s testimony that his mother, Kelly Strange, told her at Jessica’s place

of employment that she “was going to make [Jessica] lose [her] job,” that Heather told her

at the Dollar General “not to go to court against Steven,” and that Steven’s father told her,

“you’ll get yours b****.” Finally, Steven directs our attention to Officer Goad’s testimony

that Jessica advised him that Kelly Strange came into her workplace and “harassed her

and talked about this case and threatened to get her fired.”
                                                                                          -15-


       {¶ 27} Steven asserts that all of this testimony was improper hearsay evidence,

and that Goad’s testimony “was hearsay within hearsay.” He argues that the error in

admitting the testimony was not harmless. Steven asserts that the “only remedy for the

prejudicial error is vacating the conviction and granting a new trial.”

       {¶ 28} The State responds that “in each instance, the statements were not

hearsay, or in the alternative satisfied an exception to the hearsay rule, and the trial court

did not abuse its discretion by allowing the statements.”

       {¶ 29} We agree with the State that David’s and Jessica’s testimony was admitted

to prove that the threatening statements and conduct by Heather, Eric, and Steven’s

father occurred, and that David’s and Jessica’s testimony accordingly was not hearsay.

We further conclude that David’s and Jessica’s testimony was offered to prove the effect

that the threats had upon them, i.e. their state of mind. See State v. Hanna, 5th Dist.

Knox No. 02CA000041, 2003-Ohio-6402, ¶ 21. In other words, the court did not abuse

its discretion in admitting the testimony.

       {¶ 30} Regarding Goad’s testimony, we note that Crim.R. 52 provides: “Any

error, defect, irregularity, or variance which does not affect substantial rights shall be

disregarded.” We conclude that any error in admitting Goad’s testimony that Jessica told

him that Kelly, Steven’s mother, had threatened Jessica’s employment was harmless.

Jessica herself testified regarding her encounter with Kelly prior to Goad’s testimony, and

his testimony was consistent with and merely cumulative of Jessica’s. In other words, in

the absence of Goad’s testimony, the outcome of the trial would have been the same.

       {¶ 31} For the foregoing reasons, Steven’s first assignment of error is overruled.

       {¶ 32} Steven’s second assignment of error is as follows:
                                                                                        -16-


             THE STATE DID NOT PRESENT SUFFICIENT EVIDENCE THAT

      APPELLANT’S THREAT WAS AN “UNLAWFUL THREAT OF HARM” OR

      “UNLAWFUL THREAT TO COMMIT ANY OFFENSE OR CALUMNY” IN

      VIOLATION OF R.C. 2901.04 AND THE JURY’S VERDICT CONVICTING

      APPELLANT OF INTIMIDATION WAS AGAINST THE MANIFEST

      WEIGHT OF THE EVIDENCE.

      {¶ 33} Steven asserts as follows:

             The state presented evidence to the jury that consisted of redacted

      portions of three recorded jail calls made by appellant to members of his

      family. Appellant did not make any direct threat to either alleged victims

      [David] or [Jessica] in these recorded jail calls. The statements made by

      appellant did not connote more than just a threat, i.e. more than just a

      communication to a person that particular negative consequences will

      follow should the person not act as the communicator demands.

      Appellant’s statements to members of his family during these recorded jail

      calls did not violate established criminal or civil law and, therefore, did not

      constitute an “unlawful threat of harm” as set forth in [State v. Cress, 112

      Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341].

(Emphasis sic.)

      {¶ 34} This Court has previously noted:

             When a conviction is challenged as being against the weight of the

      evidence, an appellate court must review the entire record, weigh the

      evidence and all reasonable inferences, consider witness credibility, and
                                                                                       -17-


      determine whether, in resolving conflicts in the evidence, the trier of fact

      “clearly lost its way and created such a manifest miscarriage of justice that

      the conviction must be reversed and a new trial ordered.”            State v.

      Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In a manifest-

      weight analysis, the credibility of the witnesses and the weight to be given

      to their testimony are primarily for the trier of fac[t] to resolve. State v.

      DeHaas, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “Because the factfinder

      * * * has the opportunity to see and hear the witnesses, the cautious

      exercise of discretionary power of a court of appeals to find that a judgment

      is against the manifest weight of the evidence requires that a substantial

      deference be extended to the factfinder's determinations of credibility. The

      decision whether, and to what extent, to credit the testimony of particular

      witnesses is within the peculiar competence of the factfinder, who has seen

      and heard the witnesses.”     State v. Lawson, 2d Dist. Montgomery No.

      16288, 1997 WL 477684, *5 (Aug. 22, 1997). This court will not substitute

      its judgment for that of the trier of fact on the issue of witness credibility

      unless it is patently apparent that the trier of fact lost its way. State v.

      Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24,

      1997). * * *

State v. Nelson, 2d Dist. Greene No. 2014-CA-7, 2015-Ohio-113, ¶ 29.

      {¶ 35} Regarding the sufficiency of the evidence, this Court has previously stated:

             “A sufficiency of the evidence argument disputes whether the State

      has presented adequate evidence on each element of the offense to allow
                                                                                        -18-

      the case to go to the jury or sustain the verdict as a matter of law.” State

      v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing

      State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). When

      reviewing whether the State has presented sufficient evidence to support a

      conviction, “the relevant inquiry is whether any rational finder of fact, after

      viewing the evidence in the light most favorable to the State, could have

      found the essential elements of the crime proven beyond a reasonable

      doubt.” State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997),

      citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

      (1979). A guilty verdict will not be disturbed on appeal unless, “reasonable

      minds could not reach the conclusion reached by the trier-of-fact.” Id.

State v. Wilson, 2d Dist. Montgomery No. 27001, 2016-Ohio-7329, ¶ 6.

      {¶ 36} R.C. 2921.04 provides, in pertinent part:

             (B) No person, knowingly and by force or by unlawful threat of harm

      to any person or property or by unlawful threat to commit any offense or

      calumny against any person, shall attempt to influence, intimidate, or hinder

      any of the following persons:

             (1) The victim of a crime or delinquent act in the filing or prosecution

      of criminal charges or a delinquent child action or proceeding;

      {¶ 37} In Cress, to which Steven directs our attention, the Ohio Supreme Court

determined as follows:

             An unlawful threat must * * * connote more than just a threat, i.e.,

      more than just a communication to a person that particular negative
                                                                                         -19-


       consequences will follow should the person not act as the communicator

       demands. The word “unlawful” in R.C. 2921.04(B) must add substantive

       meaning, or it is superfluous. * * *

              We hold * * * that the statutory language in R.C. 2921.04(B),

       proscribing intimidation by an “unlawful threat of harm,” is satisfied only

       when the very making of the threat is itself unlawful because it violates

       established criminal or civil law. For example, where the making of a threat

       constitutes the offense of coercion, in violation of R.C. 2905.12, a

       misdemeanor, that offense would serve as a predicate offense for the crime

       of witness intimidation as proscribed by R.C. 2921.04(B), a felony.

(Emphasis sic.) Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341, at

¶ 41-42 (footnote omitted).

       {¶ 38} We have listened to the recorded phone calls. It is clear that Steven’s

statements in the calls were related to the underlying trespass charge, and that Steven

wanted to hinder his prosecution. In the first call between Steven and his parents,

Steven says, “Y’all can’t just pull up down there like right now?” He tells his mother, “You

and Dad can walk down there and fix that s***. * * * They’ll listen.” Steven’s mom

responded, “ * * *I tried and you know what he said, I got this taken care of.” Steven said

“Dad is going to f****** sink me, Dude. You guys pull up down there or I’ll be * * *.”

Steven’s mother acknowledges, “We chased them.” Steven also says, “Why haven’t

Dad and Eric pulled up down there?” In the course of the call, Steven says, “If I was out

there you’d see what the f*** I’d do. * * * Then you guys can do the same f****** s***.”

Steven said, “Dad needs to get off his a** and go take care of that.” Steven asked his
                                                                                         -20-


parents, “You want me to come home and f****** blow your f****** house up?” Steven

told his parents, “You probably need to talk to some high hitters * * * and have this

resolved,” and at the end of the call, he stated, “Anyway, you know what the deal is.”

      {¶ 39} In the second call, Steven was talking to a female and tells her, “When I

come home they’re going to regret f***** * * *.” He asks, “Are they really going to press

the issue?” The female responds, “* * * They’re getting cut off in Drexel everywhere,

Dude. Everywhere they turn they’re going to get f****** turned down, Dude.” Steven

asks her, “They’ve been getting turned down?” The female responds, “No, they’re going

to. * * * .” Steven responds, “You guys can’t just pull up and say how about this,” and

the female responds, “We already did, and they said they’re going to call the cops on us.”

Steve says, “No way, so they’re for real.”

      {¶ 40} In the third call, Steven asks a female speaker what Ashley said, and the

partial response was, “What more can I do besides message and blow the b**** up?”

      {¶ 41} Viewing the evidence in a light most favorable to the State, we conclude

the jury could have reasonably found that Steven’s statements to his family were an

attempt to intimidate David and Jessica as proscribed by R.C. 2921.04(B)(1). The jury

could reasonably infer from Steven’s repeated urging to his parents to “fix that sh**,” and

“go take care of that,” and “talk to some high hitters,” that Steven wanted his family to

unlawfully threaten David and Jessica or their property with harm. Steven asked his

parents, “You want me to come home and f****** blow your f****** house up,” before telling

them, “You know what the deal is.”

      {¶ 42} Our conclusion is supported by the subsequent actions of Steven’s family.

Jessica testified that, at the Dollar General, Heather demanded money and told her “not
                                                                                         -21-


to go to court against Steven” in a manner that caused Jessica and David to flee to their

car with Jessica’s young daughter. Heather’s boyfriend, Eric, followed them to their

vehicle and then beat on the windshield and doors. Jessica testified that Steven’s father,

from his truck, told her, “you’ll get yours, b****.”   Additionally, Jessica testified that

Steven’s mother came to her place of work and said “that she was going to make me lose

my job.”

       {¶ 43} We note that R.C. 2903.22 proscribes menacing and provides: “(A) No

person shall knowingly cause another to believe that the offender will cause physical harm

to the person or property of the other person * * * or a member of the other person’s

immediate family. * * *.”

       {¶ 44} David testified that he feared “if * * * we go to court on Steven that they’re

going to hurt us,” and that he began carrying a knife for protection. Jessica testified that

Steven’s family had threatened her and her entire family, and that she began carrying

pepper spray as a result. Officer Gingry testified that, based upon the recorded phone

calls, he was concerned that “harm was going to be inflicted on the victims * * *.” The

jury clearly credited the testimony of the State’s witnesses, and we defer to the jury’s

assessment of credibility.

       {¶ 45} Having reviewed the entire record, and construing the evidence most

strongly in favor of the State, we conclude that Steven’s conviction for intimidation of a

victim, in violation of R.C. 2921.04(B)(1), was supported by sufficient evidence.

Furthermore, it was not against the manifest weight of the evidence. Steven’s second

assignment of error is overruled.

       {¶ 46} Steven’s third assignment of error is as follows:
                                                                                              -22-


               THE         PROSECUTING               ATTORNEY              COMMITTED

       PROSECUTORIAL MISCONDUCT THAT DEPRIVED APPELLANT OF

       HIS RIGHT TO A FAIR TRIAL.

       {¶ 47} Steven asserts that the State engaged in prosecutorial misconduct when

the assistant prosecuting attorney made the following inflammatory and prejudicial

statement in the State’s opening statement, which Steven claims was not supported by

the evidence: “In one jail call, [Steven] said to his father, ‘You need to fix this; I’ll get out;

I’ll blow your house up.’ ” Steven points out that defense counsel objected to this

statement, but the objection was overruled by the trial court.

       {¶ 48} The State responds that simply stating Steven’s words to his father, which

were recorded on a jail phone call and played for the jury later in the trial, did not prejudice

Steven. The State also points out that, even if the prosecutor had not referred to the

statement, the jury would have heard the jail calls and the statements made by Steven

during trial, so he could not have been prejudiced.

       {¶ 49} As this court has previously noted:

               * * * “Generally, prosecutors are entitled to considerable latitude in

       opening and closing arguments.” State v. Whitfield, 2d Dist. Montgomery

       No. 22432, 2009-Ohio-293, ¶ 12. Accord State v. Ballew, 76 Ohio St.3d 244,

       255, 667 N.E.2d 369 (1996).          The trial court generally determines the

       propriety of statements made during opening statement. State v. Loza, 71

       Ohio St.3d 61, 641 N.E.2d 1082 (1994). Opening statement is not evidence

       but is intended to advise the jury of what counsel expects the evidence to

       show.     State v. Turner, 91 Ohio App.3d 153, 631 N.E.2d 1117 (1st
                                                                                        -23-


      Dist.1993). As such, the prosecutor and defense counsel may, in good

      faith, make statements as to what they expect the evidence will show. Id.

             The test for prosecutorial misconduct is whether the remarks were

      improper, and if so, whether they prejudicially affected the accused's

      substantial rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883

      (1984). The touchstone of the analysis “is the fairness of the trial, not the

      culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102

      S.Ct. 940, 71 L.Ed.2d 78 (1982). The question is whether the prosecutor's

      misconduct so infected the accused's trial with unfairness that the accused's

      convictions came in violation of the right to due process.        Donnelly v.

      DeChristoforo, 416 U.S. 637, 644, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

State v. Taylor, 2d Dist. Montgomery No. 23990, 2014-Ohio-3647, ¶ 36-37.

      {¶ 50} We note that, prior to opening statements, the court instructed the jury that

“[o]pening statements are not evidence but they are a preview of the claims of each party

designed to help you follow the evidence as it is presented.”          The entirety of the

exchange during the prosecutor’s opening statement was as follows:

             [THE PROSECUTOR]: * * *

             ***

             Now, between the 4th of June and 3rd of July, Mr. Strange was

      arrested and while he was in jail he tried to fix the situation as I explained

      to you taking it one step a little too far. We have several jail calls where

      he’s talking to his father, his sister, and his mother. He’s imploring them - -

      fix this, go do something, go talk to them - - meaning [Jessica], [David] - -
                                                                                        -24-


      go talk to them. In one jail call, he said to his father, “You need to go fix

      this; I’ll get out; I’ll blow your house up.”

             Now, with him just saying go do this, go take care of it, we have even

      more than that. They did try to fix this. You’ll hear evidence that they

      popped up at [Jessica’s] job, meaning the mother - -

             [DEFENSE COUNSEL]: Objection, Your Honor.

             THE COURT: Overruled. You may proceed.

             [THE PROSECUTOR]: - - showed up at [Jessica’s] job and tried to

      talk to them several times, tried to get them to dismiss the case, tried to get

      them not to show up. That’s the issue in this case.

      {¶ 51} Steven mischaracterizes the record when he asserts that defense counsel

objected to the prosecutor’s statement that Steven was recorded threatening to blow up

his parents’ home; defense counsel objected to the prosecutor stating that “they popped

up at [Jessica’s] job, meaning the mother - -”, and not to the remark about Steven’s threat

to blow up his parents’ home.

      {¶ 52} As this Court has noted:

             Failure to object waives all but plain error.      McBride v. Quebe,

      Montgomery App. No. 21310, 2006-Ohio-5128. Plain error exists “if the

      trial outcome would clearly have been different, absent the alleged error in

      the trial court proceedings.” State v. Rollins, Clark App. No. 2005-CA-10,

      2006-Ohio-5399.        “[T]o successfully prevail under plain error the

      substantial rights of the accused must be so adversely affected that the

      error undermines the ‘fairness of the guilt determining process.’ ” State v.
                                                                                   -25-

      Ohl (Nov. 27, 1991), Ashland App. No. CA-976, 1991 WL 274508.

State v. Bahns, 185 Ohio App.3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 25 (2d Dist.).

      {¶ 53} As the State notes, Steven’s recorded statement was admitted into

evidence. Plain error is not demonstrated. For the foregoing reasons, Steven’s third

assignment of error is overruled.

      {¶ 54} The judgment of the trial court is affirmed.



                                    .............



WELBAUM, P.J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Michael P. Allen
J. David Turner
Hon. Barbara P. Gorman
