[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.



                                                  -19-
Case No. 1-16-23


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




                                        -20-
Case No. 1-16-23


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.



                                                    -21-
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




                                        -22-
Case No. 1-16-23


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




                                        -23-
Case No. 1-16-23


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




                                        -24-
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




                                        -25-
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




                                       -26-
Case No. 1-16-23


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



                                       -27-
Case No. 1-16-23


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.




                                       -28-
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.




                                       -29-
Case No. 1-16-23


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



                                        -30-
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




                                        -31-
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,




                                         -32-
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-




                                        -33-
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




                                        -34-
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).




                                         -35-
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.




                                        -36-
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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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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Case No. 1-16-23


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.



                                       -41-
Case No. 1-16-23


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.E.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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Case No. 1-16-23


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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Case No. 1-16-23


       {¶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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