[Cite as State v. Holbrook,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY

State of Ohio Court of Appeals No. H-14-003

Appellee Trial Court No. CRI 20130365

v.

Connor C.D. Holbrook DECISION AND JUDGMENT

Appellant Decided: November 20, 2015

*****

Daivia S. Kasper, Huron County Prosecuting Attorney, for appellee.

James Joel Sitterly, for appellant.

*****

JENSEN, J.

{¶ 1} This is an appeal from the January 28, 2014 judgment entry of the Huron

County Court of Common Pleas, following a jury trial, in which appellant, Connor

Holbrook, was found guilty of complicity to commit felonious assault, complicity to

commit tampering with evidence, and obstructing justice. The trial court convicted and sentenced Holbrook to four years in prison for complicity to commit felonious assault,

one year for complicity to commit tampering with evidence, and one year for obstruction

of justice. The trial court further sentenced Holbrook to three years of post-release

control. The trial court ordered the prison sentences to be served concurrently for a total

of four years in prison. Holbrook now appeals. For the reasons that follow, we affirm

the judgment of the trial court.

{¶ 2} In the early morning hours of Monday, April 22, 2013, Tyler Smith struck

Austin Thornton on the side of his head with a crowbar.1 Thornton suffered a life-

threatening brain injury. Eye witnesses identified Smith as the perpetrator and indicated

appellant and appellant’s girlfriend, Brianna Boonie, had accompanied Smith to the

scene.

{¶ 3} On May 17, 2013, a Huron County Grand Jury issued a six-count indictment

charging appellant with conspiracy to commit murder in violation of R.C. 2923.01(A)(1)

and/or (2); attempted murder in violation of R.C. 2923.02(A) and 2903.02; felonious

assault in violation of R.C. 2903.11(A)(1) and (D)(1); felonious assault in violation of

R.C. 2903.11(A)(2) and (D)(1); obstructing justice in violation of R.C. 2921.32(A)(1)

and/or (3) and/or (5) and (C)(4); and tampering with evidence in violation of R.C.

2921.12(A)(1).

{¶ 4} The following evidence was presented at trial.

1 Throughout the trial, the weapon that caused injury to Thornton was referenced as a nail puller, a crowbar, and a tire iron. For consistency’s sake we will refer to it throughout this opinion as a crow bar.

2. {¶ 5} Alexis Bodkin became romantically involved with Tyler Smith in 2011

while they were juniors in high school. They dated on and off until December, 2012. In

March, 2013, Bodkin found out she was pregnant. Initially, she thought the child was

fathered by Smith. When Smith found out about the pregnancy, he was excited by the

news.

{¶ 6} In the weeks leading up to the events in question, Bodkin began

communicating with another young man, Austin Thornton, via Twitter and text

messaging. On Sunday, April 21, 2013, Bodkin informed Smith, by phone, that she was

not interested in getting back into a relationship with him nor did she want him to

accompany her to a prenatal appointment the following day. This upset Smith. Shortly

thereafter, Smith went to see appellant and appellant’s girlfriend, Brianna Boonie. When

Smith arrived at Boonie’s apartment, Smith was “in hysterics * * * you know, tears,

crying, sobbing the whole nine yards.”

{¶ 7} After several more phone calls and engaging in what was described as a

“twitter war” with Bodkin and her friends, Smith tried to call Bodkin on her cell phone.

Thornton answered Bodkin’s cell and “words were exchanged” between the two young

men.

{¶ 8} Shortly thereafter, Smith informed appellant that he wanted to go out to

Bodkin’s home. Because Smith did not have a valid driver’s license, appellant offered to

drive Smith’s truck. Smith agreed. At 11:41 p.m. appellant’s girlfriend posted the

3. following question on her Twitter account: “Anyone gotta gun?” A few minutes later,

appellant, appellant’s girlfriend, and Smith, headed out of Bellevue towards Bodkin’s

Willard, Ohio, home.

{¶ 9} As appellant drove, Smith, by phone, instructed Bodkin, Thornton, and

Bodkin’s friend, Erin Barnett, to meet him at the end of Bodkin’s driveway. When they

arrived, appellant parked Smith’s truck on the street near Bodkin’s home. Smith jumped

out of the truck. With a crowbar in hand, Smith immediately started walking toward

Thornton engaging the victim in a verbal confrontation. As Thornton turned towards

Bodkin’s house, Smith hit Thornton on the torso with the crowbar. Thornton grabbed his

side and exclaimed, “Dude don’t do this, don’t do this,” and started walking backwards.

Smith then hit Thornton on his temple with the crowbar. Thornton dropped to the

ground.

{¶ 10} When appellant saw Thornton hit the ground he exclaimed, “let’s go, we

need to leave.” Appellant, appellant’s girlfriend, and Smith retreated to the truck and

drove away. As they were driving, Smith pitched the crowbar out the passenger-side

window of the truck’s small cab. When they arrived back in Belleview, appellant parked

Smith’s truck in the parking lot of a nearby apartment complex.

{¶ 11} Meanwhile, Bodkin and Barnett rushed Thornton to Willard Hospital.

Thornton was then air-lifted to Mercy St. Vincent Medical Center in Toledo. Bodkin and

Barnett were questioned by and submitted written statements to law enforcement.

4. {¶ 12} Within hours, deputies found appellant walking out of his girlfriend’s

apartment building. Initially, appellant denied having recently seen Smith. One of the

deputies then escorted appellant up to his girlfriend’s apartment so that appellant could

retrieve his shoes. At trial, the deputy explained:

I observed [appellant] grab the door handle to his, what I assumed

was his apartment, turn the knob, push on the door and the door opened

about a quarter of an inch but it appeared to be locked, didn’t open any

further than that. He then stepped back from the door and yelled down to

[his girlfriend], who was downstairs, do you have the keys, and when he

did that, I observed that the door closed. The quarter inch that he had

initially opened it, I observed that close. * * * At that point I believed there

was, somebody was still inside the apartment. * * * I asked [appellant] if

there was somebody inside the apartment. He said, no. He grabbed the

door handle and turned it, now it’s unlocked. So, it was unlocked. He

opened the door, and I asked him to step aside, because there had to have

been somebody in the apartment at that point. * * *

I asked [appellant] to step to the opposite side of the hallway. I

asked for another unit to come up because I believed we had somebody

inside the apartment * * * we asked [appellant] then, is Tyler Smith inside

of this apartment. At that point he nodded his head, and said, yes, he is.

5. {¶ 13} The Sheriff and his deputies began giving commands into the apartment for

Smith to come out. Smith surrendered and was transported to the Bellevue Police station.

Shortly thereafter, appellant and appellant’s girlfriend arrived at the station to give

voluntary statements.

{¶ 14} Appellant’s first interview began at 3:45 a.m. An audio recording of the

interview was played for the jury. Early in the recording, appellant apologized for not

immediately being honest about Smith’s location.

{¶ 15} During the interview, appellant explained that Smith had arrived at his

girlfriend’s apartment about 4:00 p.m. the previous afternoon. According to appellant,

Smith was “extremely upset” and having “severe relationship issues” with Bodkin, his

“ex-girlfriend.” In regard to Thornton answering Bodkin’s phone the previous evening,

appellant indicated that Smith reacted “violently, I mean not violently like he was going

to – I didn’t think he was going to hurt somebody.” Appellant explained that as the

evening went on, Smith and Thornton spoke on the phone several times. Appellant

denied overhearing anything that Smith said to Thornton, but acknowledged that Smith

was agitated. Appellant explained that after the phone conversations with Thornton,

[Smith] was even more hysterical, he couldn’t think straight * * * he

had said like you know, I wish I could beat this kid up, things like that like

kinda nothing that lead me to believe he was going to assault somebody * *

* I think he said something about wishing he could hit the kid or something

like “man I wish I could find this kid.”

6. Originally, appellant thought Smith simply wanted to have a face-to-face conversation

with Thornton. But as they drove closer to Bodkin’s home appellant “could tell [Smith]

wanted to hit [Thornton].”

{¶ 16} During the interview, appellant indicated that when Smith hit Thornton on

his left temple, Thornton dropped “instantaneously,” and “folded like a lawn chair.”

Appellant asserted that he saw Smith hit Thornton but that he could not tell what Smith

had in his hand until he actually hit [Thornton] with the crowbar. He opined that the

crowbar came from the back of Smith’s pick-up truck. When asked what had happened

to the weapon, appellant indicated that Smith threw it out the truck’s window after

driving away from Bodkin’s house. Appellant then offered to show the sheriff where the

crowbar could be found.

{¶ 17} At the end of the interview, appellant, at the Sheriff’s request, wrote the

following “letter” to Thornton’s family.

I firmly and sincerely apologize for my actions regarding the assault

on your son [Thornton]. The events that took place were extremely out of

hand and escaladed to a point I never thought imaginable. What has

happened to your son is a tragedy, and I know that a lifetime worth of

apologies could never ever begin to make up for my actions. I drove

[Smith] to the scene of the crime. The decisions [Smith] and myself made

will haunt me for the rest of my life, regardless of the consequences I

7. receive. * * * What has happened to your son is a pathetic act of false

vengeance. I would give anything in this world to be able to go back and

stop [Smith].

I had absolutely no right in assisting [Smith], nor do I have an

excuse as to why I didn’t stop him. I did not honestly believe [Smith] was

capable of doing such a malicious act. * * * I will regret the mistakes I

made. I had no right getting involved.

I sincerely hope your son [Thornton] has a good recovery. This

attack on him was a complete and unnecessary blind side. Nothing I can

say or do will EVER fix your son. I hope that one day far along from now

you can find it in your heart to forgive me, but I definitely don’t expect you

to. There is no excuse for the damage that has been cause to your family. I

am deeply and sincerely sorry, from the bottom of my heart.

{¶ 18} A short time later, deputies located the discarded crowbar in the vicinity

identified by appellant.

{¶ 19} During her interview at the police department, Brianna Boonie indicated

that Smith had the crowbar inside the cab of the truck as they were driving out to

confront Thornton. This revelation was contrary to appellant’s recorded statement that

Smith retrieved the tire iron from the back of his truck after they arrived at Bodkin’s

home. According to deputies, in an unrecorded interview at the Huron County Sheriff’s

8. office later in the morning of the attack, appellant admitted that Smith did, in fact, have

the crowbar in his hands in the cab of the truck while driving out to confront Thornton.

{¶ 20} When appellant took the stand, he admitted that he drove Smith and Boonie

out to Bodkin’s home in Smith’s truck. He asserted that he was under the assumption

that Smith was going out there merely to “dissolve the relationship” with Bodkin.

Appellant testified that Smith had a small metal tool in his hand as they drove out to

Bodkin’s home. He insisted, however, that the tool was the size of a socket wrench, not

the crowbar used in the attack. Appellant further assisted that at some point on the drive

out to Bodkin’s home, appellant pulled the truck over and asked Smith to throw the

wrench out the window.

{¶ 21} Appellant testified that when they arrived, Thornton, Bodkin, and Barnett

were waiting near the end of the driveway. Appellant parked the truck on the street and

by the time he got out of the truck Smith was already heading towards Thortnon. Smith

started yelling at Thornton, but appellant could not hear what he was saying. When

asked whether he saw Smith strike Thornton, appellant responded, “I saw [Thornton]

fall.” Appellant explained,

[Smith] turned around and started coming back towards us. He

wasn’t walking. He wasn’t sprinting. He was somewhere in the middle,

kind of a jog basically. I kind of figured that [Smith] hit [Thorton], and he

caught him on the jaw and he knocked him out. That was the assumption I

was under.

9. {¶ 22} Appellant testified that when they got back to Bellevue, Smith instructed

appellant to park his truck “past [Boonie’s] apartment complex.” Appellant wanted to go

to bed, so he and Boonie walked back to Boonie’s apartment. Appellant instructed Smith

to go home. Appellant fell asleep on Boonie’s couch and Smith came back to the

apartment and left again. According to appellant, after he fell asleep, Smith “obviously *

* * came back at some point.”

{¶ 23} At approximately 3:00 a.m., appellant received a telephone call from his

younger sister. She indicated that officers were looking for him. By the time he put on a

sweatshirt and walked outside, he was met by several deputies. Appellant testified that at

the time he “didn’t know for sure” if Smith was in Boonie’s apartment. Then, when the

officer informed appellant they were investigating a potential murder and Smith was the

lead suspect, appellant changed his answer. He explained,

[The officer] said * * * do you want to change your answer. I said,

yeah, he’s upstairs * * * I just pointed upstairs. * * * After they said the

word “murder,” you know, it kind of hit home for me. I told them, yeah,

he’s upstairs. A couple of them proceeded to go upstairs.”

Appellant asserted that up until that time, he had no knowledge or belief that Thornton

was severely injured. He expressly stated that he found himself “involved in more drama

than [he] wanted to be” and things “didn’t go the way [Smith] told [him] they would go.”

{¶ 24} On the stand, appellant denied confessing to the officers that Smith “was

waiving or flailing a crowbar in the * * * cab of the truck.” He further denied knowing

10. there was “a weapon involved until it was thrown out the window.” The following

exchange occurred on cross examination:

Q. You want the jurors to believe that Sheriff Howard is lying when

he says you admitted that you drove with the crowbar in the car?

A. Yes, sir. Absolutely.

Q. He’s lying?

A. If he was telling the truth, wouldn’t he have a tape of it being

that he questions Tyler Smith for three hours and 12 seconds before me and

Alexis [Bodkin] and Erin Barnett for an hour and a half after me –

Q. [Deputy] Ted Patrick is lying as well?

A. Yes, sir, absolutely.

Q. And you’re the one telling the truth here?

A. Yes, sir. They don’t have a tape to prove me wrong, do they?

{¶ 25} Appellant denied overhearing any of the phone calls Smith made from the

truck on the drive to Bodkin’s home, claiming that music was being played loudly on the

truck’s audio system.

{¶ 26} Erin Barnett testified that she was hanging out with Bodkin and Thornton

at Bodkin’s home on Sunday, April 21, 2013. She indicated that several phone calls were

made and received between Smith, Smith’s mother, and Bodkin. Barnett explained:

Well, [Smith]’s mom was calling [Bodkin] threatening her, and she

hung up the phone, and [Smith] kept calling and calling, and that’s when

11. [Thornton] asked me if he should answer the phone. I told him, I shook my

head. I just shrugged my shoulder. I said, I don’t know, just stay out of it *

* * and then it rang again, it was [Smith], and [Thornton] grabbed it. He

answered it, and [Smith] was just threatening him, threatening to knock his

teeth out. It along with [Appellant].

When asked if any of the calls were from appellant or whether she heard appellant say

anything over the cell phone speaker, Barnett stated:

I heard [appellant] in the background, he was calling [Thornton] a

little bitch, quote, I heard him egging it on, saying, we’re on our way, and

[Smith]’s like, yeah, we’re on our way, I’m going to knock your teeth down

your throat, you’ll never mess with me again, all kinds of things, and

[appellant] was like telling * * * him to shut, shut his mouth, saying that,

we’re on our way, I’m going to kick their ass, all kind of * * * all kind of

things.

Barnett further testified that she heard appellant threaten Bodkin over the phone.

Specifically, Barnett indicated that appellant stated, “I’ll punch you in your cock sucker.”

{¶ 27} Barnett indicated that after she and Bodkin took Thornton to the hospital,

she called Smith on his cell phone. She explained, “I called him and he goes, hello, he

was laughing. I go, you’re in a lot of trouble, and he goes, cool, and he started laughing,

and he hung up on me.”

12. {¶ 28} At trial, Alexis Bodkin testified that Boonie and Smith started the “Twitter

war,” after she informed Smith that she was not interested in “getting back with him.”

She claimed that Smith and appellant tweeted, “[l]ike how I’m going to be a horrible

mom, and how I’m a slut, I have sex with everyone, and how [Smith]’s going to beat

[Thornton]’s ass.” She then indicated that when appellant, Boonie and Smith were in the

car “he said he was going to smash his teeth down his throat.” When asked if she ever

spoke directly to appellant, Bodkin stated “[w]hen they were on the way, I overheard, I’m

like who’s this. He was like this is Connor. I’m like who, he was like, yeah, I’m going to

slap your – cock sucker.”

{¶ 29} Following the presentation of evidence, a jury found appellant guilty of one

count of complicity to felonious assault, one count of complicity to tampering with

evidence, and one count of obstructing justice.

{¶ 30} On appeal, appellant sets forth the following assignments of error:

I. THE TRIAL COURT IMPROPERLY PERMITTED FACTS

NOT FOUND ON THE RECORD THAT WERE PREJUDICIAL AND

DENIED THE DEFENDANT’S GUARANTEES UNDER THE FIFTH

AND FOURTEEN AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION..

II. THE TRIAL COURT ABUSED ITS DISCRETION BY

PERMITTING THE TRIER OF FACT TO CONSIDER HEARSAY

13. EVIDENCE DENYING THE APPELLANT HIS CONSTITUTIONAL

RIGHT TO CONFRONTATION.

III. THE TRIAL COURT ERRED WHEN IT OVERRULED

APPELLANT’S CRIMINAL RULE 29 MOTION FOR ACQUITTAL OF

THE CHARGE OF COMPLICITY TO FELONIOUS ASSAULT AS THE

EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO

SUPPORT A CRIMINAL CONVICTION RESULTING IN THE

JUDGMENT BEING AGAINST THE SUFFICIENCY AND MANIFEST

WEIGHT OF THE EVIDENCE.

First Assignment of Error

{¶ 31} In his first argument assignment of error, appellant alleges the prosecutor

violated his “right against guilty by association” and attacked his credibility during

closing argument.

{¶ 32} The two fold test for prosecutorial misconduct is whether the prosecutor’s

conduct at trial was improper and whether it prejudicially affected the substantial rights

of the defendant. State v. Lott,

,

(1990). A

prosecutor’s conduct during trial cannot be grounds for error unless the conduct deprives

the defendant of a fair trial. State v. Apanovitch,

,

(1987). Thus, a reversal for prosecutorial misconduct is not warranted unless it is clear

that the outcome of the trial would have been different but for the misconduct. State v.

Smith,

,

(1984). In reviewing closing arguments for

14. prosecutorial misconduct, we view the remarks in the context of the entire closing

argument. State v. Treesh,

,

(2001).

{¶ 33} Appellant first challenges the following portion of the state’s closing

argument:

So, one thing you know is that a crime of attempted murder was

committed at 12:20 on April 22nd, 2013, out in the township in Huron

County. Now Tyler Smith has taken his lumps for attempted murder, and *

* * we’re here on the aider and abettor’s case. The victim was Austin

Thornton, who had turned 19 in January.

Appellant asserts that “the prosecutor’s revelation that the co-defendant, Tyler Smith, had

already taken his ‘lumps’ was prejudicial to the level that the statement compromised a

fair trial.” In response, the state argues that “evidence that Tyler Smith had committed

Felonious Assault or Attempted Murder was overwhelming.”

{¶ 34} “It is a long standing rule that information that a codefendant has pleaded

guilty to or has been convicted of an offense stemming from the same facts or

circumstances forming the basis of a prosecution against another is inadmissible as proof

against the other.” State v. Kartsone, 8th Dist. Cuyahoga No. 95104,

, citing Kazer v. Ohio,

,

(1831). “This is because

evidence that another pleaded guilty to or was convicted of an offense stemming from the

same facts or circumstances is not necessarily evidence that the other committed the same

offense.” Id.

15. {¶ 35} The test used by many courts to determine whether the introduction of a

codefendant’s guilty plea improperly prejudiced an appellant was first set forth in United

States v. Casto,

(5th Cir. 1989). See Kartsone at ¶ 34. See also State v.

Stewart, 3d Dist. Seneca No. 13-08-18,

; State v. Edmonds, 5th

Dist. Richland No. 2001 CA 0009,

(Aug. 16, 2001); State v. Clark, 2d

Dist. Montgomery No. 13435,

(May 4, 1994). This test requires a

reviewing court to consider “(1) whether a limiting instruction was given; (2) whether

there was a proper purpose in introducing the fact of the guilty plea; (3) whether the plea

was improperly emphasized; (4) whether the plea was used as substantive evidence of

guilt; and (5) whether the introduction of the plea was invited by defense counsel.”

Kartsone at ¶ 34.

{¶ 36} It is not argued that the introduction of the plea in this matter was invited

by defense counsel. We first consider whether a limiting instruction was given and

whether the information was used as substantive evidence of guilt. Here, it is important

to note that the challenged information was introduced in closing argument, not during

the trial. Upon review of the transcript we find that the trial court informed the jury,

generally, that the statements of counsel in closing arguments “are not to be considered as

evidence.” The court further instructed the jury “[t]he defendant must be found not guilty

unless the State produces evidence, which convinces you beyond a reasonable doubt of

every essential element of the offense charged in the indictment.” In this instance, we

16. find the limiting instruction sufficient because the information was produced in closing

argument and not used as substantive evidence of guilt.

{¶ 37} We next consider whether there was a proper purpose in introducing the

fact of the guilty plea and whether it was improperly emphasized. It is undisputed that

Smith did, in fact, cause serious injury to Thornton. During closing argument, the state

implied, on one occasion, that Smith had been found guilty of attempted murder. It has

long been held that “no person shall be bound by a judgment but him who has had an

opportunity to be heard in the cause concluded by the judgment.” Kazer at 282. We find

that it was improper for the prosecution to reference the specific disposition of the co-

defendant’s case in this matter. However, the information was not improperly

emphasized and appellant was eventually acquitted of conspiracy to commit murder and

conspiracy to commit attempted murder.

{¶ 38} Upon consideration of all of the factors set forth in the Casto test, we find

that the prosecutor’s statement was improper. However, we do not believe the

prosecutor’s actions prejudicially affected appellant’s substantial rights. Thus,

appellant’s first argument under his first assignment of error is not well-taken.

{¶ 39} In his second argument under the first assignment of error, appellant asserts

that on several occasions the prosecutor impermissibly accused appellant of being a

“liar.” He further assert’s that the prosecutor’s attack on his credibility is grounds for

reversal.

17. {¶ 40} Generally, prosecutors are entitled to considerable latitude in opening

statement and closing argument. State v. Ballew,

,

(1996). In closing argument, a prosecutor may comment freely on “what the

evidence has shown and what reasonable inferences may be drawn therefrom.” Lott

,

. “It is not prosecutorial misconduct to characterize a

witness as a liar or a claim as a lie if the evidence reasonably supports the

characterization.” State v. Baker,

,

,

(2d Dist.)

{¶ 41} We have reviewed the closing arguments with close attention to each of the

comments about which appellant complains. In this case, appellant’s story differed from

that of his girlfriend and several other witnesses. Appellant also made statements to the

police in the hours after the incident – in both a recorded and unrecorded statements –

that were inconsistent with his testimony at trial. Thus, the prosecutor’s characterization

of him as a liar was an interpretation of the evidence, not an unsupported personal

opinion.

{¶ 42} We cannot see prejudicial impact on appellant’s substantial rights from the

prosecutor’s remarks, singly or collectively. Furthermore, as stated above, the trial court

properly instructed the jury that counsel’s closing arguments were not to be considered

evidence in the case. Thus, appellant’s second argument under his first assignment of

error is not well-taken.

18. Second Assignment of Error

{¶ 43} In his second assignment of error, appellant asserts that the trial court

abused its discretion and violated his right to confront witnesses when it permitted

hearsay evidence.

{¶ 44} The admission or exclusion of relevant evidence lies within the sound

discretion of the trial court. State v. Robb,

,

(2000). Consequently, a trial court’s ruling as to the admissibility of evidence will not be

reversed absent an abuse of discretion. State v. Sage,

,

(1987), paragraph two of the syllabus. More than an error of law or judgment, an abuse

of discretion connotes that the trial court’s attitude was unreasonable, arbitrary, or

capricious. State v. Adams,

,

(1980).

{¶ 45} In his first argument under his second assignment of error, appellant asserts

that trial court erred when it permitted Erin Barnett to read into the record a written

statement she submitted to authorities shortly after the incident. Appellant specifically

objects to the portion of Barnett’s written statement indicating that upon Smith’s arrival

at Bodkin’s home, Smith asserted “I’m going to kill this mother-fucker.”

{¶ 46} Evid.R. 801(C) defines “hearsay” as 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.”

19. {¶ 47} Evid.R. 803 provides several examples of statements “not excluded by the

hearsay rule, even though the declarant is available to testify.” A “recorded recollection”

is defined as

A memorandum or record concerning a matter about which a

witness once had knowledge but now has insufficient recollection to enable

him to testify fully and accurately, shown by the testimony of the witness to

have been made or adopted when the matter was fresh in his memory and to

reflect that knowledge correctly. If admitted, the memorandum or record

may be read into evidence but may not itself be received as an exhibit

unless offered by an adverse party. Evid.R. 803(5).

Here, imbedded in a testifying witness’s recorded recollection is a non-testifying

accomplice’s out of court statement. For the sake of argument, we will assume that it

was proper for the trial court to allow Barnett to read her statement to the jury. Certainly,

however, Barnett’s recounting of what Smith said was hearsay and its admission

erroneous. Nevertheless, we conclude, from a review of the entire record, that such error

did not materially prejudice the appellant as it was made moments before Smith delivered

the injurious blow to Thornton’s temple and does not tend to prove appellant’s mental

status as he drove Smith out to or from Bodkin’s home. Appellant’s first argument under

his second assignment of error is not well-taken.

{¶ 48} In his second argument under his second assignment of error, appellant

asserts that the trial court erred when it allowed Bodkin to testify to the content of

20. Boonie’s Twitter messages. Appellant specifically objects to Bodkin’s testimony that the

messages stated “how I’m going to be a horrible mom, and how I’m a slut, I have sex

with everyone, and how Tyler’s going to beat Austin’s ass.” Because appellant did not

object to this evidence during trial he forfeited his claim, except for plain error. See State

v. Sanders, 92 Ohio St.3d. 245, 257,

(2001) (“under Crim.R. 52(B) plain

error must be ‘obvious’ as well as out-come determinative”). Upon consideration, we

find that the outcome of the trial would not clearly have been otherwise if appellant had

objected to this testimony. Appellant’s second argument under his second assignment of

error is not well-taken.

{¶ 49} In his third argument under his second assignment of error, appellant

asserts that the trial court erred when it permitted the following testimony from Sheriff

Dane Howard: “Captain – Chief Patrick relayed that, Ms. Boonie had indicated that Tyler

Smith had a crowbar in the truck the entire time in his hand, waving it around on the way

from the Bellevue apartment on the way to the crime scene.” Where an out-of-court

statement is offered without reference to its truth, it is not hearsay. State v. Lewis,

,

(1970). Sheriff Howard’s statement was not

offered for its truth but rather to explain why appellant was subjected to a second

interview. Thus, the statement was not hearsay prohibited by Evid.R. 801(C), and the

trial court did not abuse its discretion by permitting the testimony. Appellant’s third

argument under his second assignment of error is not well-taken.

21. {¶ 50} In his fourth argument under his second assignment of error, appellant

asserts that the trial court erred when it permitted Detective William Duncan to provide

evidence concerning cellphone movement as it relates to cellular phone towers.

Assuming, arguendo, that this evidence was inadmissible; we find that it is not prejudicial

to the appellant. Appellant admitted, on the stand, that he drove Smith to and from

Bodkin’s home in the early morning hours of April 22, 2013. Appellant’s fourth

argument under his second assignment of error is not well-taken.

Third Assignment of Error

{¶ 51} In his third assignment of error, appellant asserts that the trial court erred in

overruling his Crim.R. 29 motion for judgment of acquittal. Appellant argues that the

state did not present sufficient evidence to sustain a conviction for complicity to commit

felonious assault. Specifically, appellant asserts there was insufficient evidence

introduced to support the mens rea element of the offenses, i.e., that appellant acted

“knowingly.”

{¶ 52} Crim.R. 29(A) provides:

The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment of

acquittal of one or more offenses charged in the indictment, information, or

complaint, if the evidence is insufficient to sustain a conviction of such

offense or offenses. The court may not reserve ruling on a motion for

judgment of acquittal made at the close of the state’s case.

22. {¶ 53} Sufficiency of the evidence is a legal standard that tests whether the

evidence introduced at trial is legally adequate to support a jury verdict as to all elements

of the crime. State v. Thompkins,

,

(1997). The

proper analysis under a sufficiency of the evidence standard is “‘whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.’”

State v. Williams,

,

(1996), quoting State v. Jenks,

,

(1991), paragraph two of the syllabus. In order to

affirm the denial of a Crim.R. 29 motion, we need only find that there was legally

sufficient evidence to sustain the guilty verdict.

.

{¶ 54} Appellant was convicted of complicity to commit felonious assault in

violation of R.C. 2903.11(A)(1) and R.C. 2923.03(A)(2), a felony of the second degree.

R.C. 2903.11(A)(1) provides that “No person shall knowingly * * * [c]ause serious

physical harm to another[.]” In turn, R.C. 2923.03 defines complicity and provides that

“(A) No person, acting with the kind of culpability required for the commission of an

offense, shall * * * (2) Aid or abet another in committing the offense[.]”

{¶ 55} “Under R.C. 2923.03, a person may be an accomplice in an offense and

prosecuted as the principal offender if, among other things, he aids or abets another in

committing the offense while acting with the kind of culpability required for commission

of the offense.” State v. Coleman,

,

(1988), paragraph

two of the syllabus. “To aid is to assist. To abet is to incite or encourage.” State v. Sims,

23.

,

(8th Dist. 1983). A person’s mere association

with a principal offender is not an aiding or abetting of the principal’s act; there must be

some active participation, assistance, or encouragement by the accomplice. State v.

Nievas,

,

(8th Dist. 1997). “‘Participation in

criminal intent may be inferred from presence, companionship and conduct before and

after the offense is committed.’” State v. Johnson,

,

(2001), quoting State v. Pruett,

,

(4th Dist. 1971).

{¶ 56} A person acts knowingly when he is aware that his conduct will probably

cause a certain result. R.C. 2901.22(B). “It is not necessary that the accused be in a

position to foresee the precise consequences of his conduct; only that the consequences

be foreseeable in the sense that what actually transpired was natural and logical in that it

was within the scope of the risk created by his conduct.” State v. Mobley-Melbar, 8th

Dist. Cuyahoga No. 92314,

, ¶ 19, quoting State v. Losey,

,

(10th Dist. 1985).

{¶ 57} The evidence summarized above indicates that appellant drove Smith both

to and from Bodkin’s home. Several witnesses referenced a “twitter war” that persisted

for several hours prior to the attack. Appellant indicated to authorities in a recorded

statement that on the way out to Bodkin’s home appellant “could tell [Smith] wanted to

hit [Thornton].”

{¶ 58} Barnett testified that she heard appellant threaten to punch or kick Bodkin

over the phone while appellant was driving towards Bodkin’s home. Appellant denied

24. Smith had a crowbar in the car but suggested he was swinging a socket wrench around in

the cab of the truck on the drive out to Bodkin’s home. After Smith struck Thornton,

appellant encouraged Smith to quickly get back into the truck.

{¶ 59} Construing the evidence most strongly in favor of the state, we find that the

evidence, if believed, could have convinced a reasonable trier of fact that appellant aided

Smith in the commission of the crime and appellant’s criminal intent may be inferred

from his presence, companionship, and conduct both before and after the attack.

Consequently, the evidence was sufficient to support this conviction. The trial court did

not err in denying appellant’s Crim.R. 29 motion for acquittal. Appellant’s third

assignment of error is not well-taken.

Conclusion

{¶ 60} For the reasons set forth above, the judgment of the trial court is affirmed.

The costs of this appeal are assessed to appellant under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

25. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

26.