[Cite as State v. Grim, 2023-Ohio-4474.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

LOGAN COUNTY

STATE OF OHIO, CASE NO. 8-23-01

 PLAINTIFF-APPELLEE,

 v.

ETHAN C. GRIM, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court

Trial Court No. CR 21 07 0172

Judgment Affirmed

Date of Decision: December 11, 2023

APPEARANCES:

William T. Cramer for Appellant

Eric C. Stewart for Appellee
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WALDICK, J.

{¶1} Defendant-appellant, Ethan Grim (“Grim”), brings this appeal from the 

January 25, 2023, judgment of the Logan County Common Pleas Court sentencing 

him to prison after Grim was convicted by a jury of two counts of Complicity to 

Murder, Complicity to Aggravated Burglary, Complicity to Aggravated Robbery, 

and two counts of Complicity to Felonious Assault.

1 On appeal, Grim argues that 

he was denied Due Process and his rights under the Confrontation Clause when a 

detective was permitted to testify regarding statements made by Grim’s 

codefendants at Grim’s juvenile probable cause hearing. Grim also argues that his 

convictions were against the manifest weight of the evidence, that certain evidence 

was improperly admitted at his trial, and that the trial court improperly considered 

evidence outside the record when sentencing Grim. For the reasons that follow, we 

affirm the judgment of the trial court.

Background

{¶2} On November 27th, 2019, four individuals conspired to steal from a 

drug dealer in Bellefontaine. Three of the four individuals unlawfully entered the 

drug dealer’s residence while the fourth individual waited in the car outside. During 

the home invasion, multiple residents were assaulted and two residents were shot in 

the head and killed.

1

In addition, the jury convicted Grim of Complicity to Kidnapping, but that charge was merged for purposes 

of sentencing. Further, all charges contained firearm specifications.
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{¶3} One of the home-invaders, Elijah Barrett (“Barrett”), was shot in the leg 

during the incident and he was taken to a hospital in Urbana. Barrett ultimately 

confessed and named his three accomplices: Ethan Grim (“Grim”), Austin Allen 

(“Allen”), and Josia Bush (“Bush”). Allen, the driver who waited outside during the 

home invasion, also confessed to his role and implicated Grim, Bush, and Barrett as 

well.

{¶4} Grim was less than a month shy of his 18th birthday when the crimes 

were committed. Barrett and Bush were also juveniles but Allen, the driver, was an 

adult. 

{¶5} A delinquency complaint was filed against Grim charging him with, 

inter alia, Complicity to Aggravated Burglary and Complicity to Murder. On 

December 30, 2019, the State filed a motion to relinquish jurisdiction over Grim 

seeking a discretionary bindover pursuant to R.C. 2152.12(B). 

{¶6} Over objection from Grim, the juvenile court held a joint probable cause 

hearing for all three juveniles. The juvenile court ultimately determined that there 

was probable cause to believe that Grim and the two others committed the charged 

acts.

{¶7} On June 1, 2021, an amenability hearing was held on the State’s motion 

to relinquish jurisdiction.

2 After hearing the testimony presented and reviewing the 

2 Prior to the hearing, a social history investigation and a forensic psychological evaluation of Grim were 

conducted. 
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submitted evaluation, the juvenile court determined that the factors in favor of 

transfer outweighed the factors against transfer, that Grim was not amenable to 

rehabilitation in the juvenile system, and that the safety of the community required 

that Grim be subject to adult sanctions. The juvenile court granted the State’s motion 

to relinquish jurisdiction and bound Grim over to the Logan County Common Pleas 

Court.

{¶8} On July 13, 2021, Grim was indicted for Complicity to Aggravated 

Burglary in violation of R.C. 2911.11(A)(1) and R.C. 2923.03, a first degree felony

(Count 1), Complicity to Aggravated Robbery in violation of R.C. 2911.01(A)(3) 

and R.C. 2923.03, a first degree felony (Count 2), Complicity to Kidnapping in 

violation of R.C. 2905.01(A)(2) and R.C. 2923.02, a first degree felony (Count 3), 

two counts of Complicity to Felonious Assault in violation of R.C. 2903.11(A)(2) 

and R.C. 2923.03, both second degree felonies (Counts 4 and 5), and two counts of 

Complicity to Murder in violation of R.C. 2903.02(B) and R.C. 2923.03, both 

unclassified felonies (Counts 6 and 7). All seven counts in the indictment contained 

three-year firearm specifications pursuant to R.C. 2941.145(A). Grim pled not 

guilty to the charges.

{¶9} Grim proceeded to a jury trial from January 9-12, 2023. At the 

conclusion of the trial, the jury found Grim guilty of all counts in the indictment and 

specifications. On January 25, 2023, Grim was sentenced to serve an aggregate, 

indefinite prison term of 50 years to life, with parole eligibility after 25 years. Grim 
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now appeals his convictions and sentence, asserting the following assignments of 

error for our review.

First Assignment of Error

Appellant’s rights to due process under the state and federal 

constitutions were violated when the juvenile court denied 

appellant the ability to confront and cross-examine his accusers.

Second Assignment of Error

Appellant’s convictions were not supported by the weight of the 

evidence.

Third Assignment of Error

The trial court abused its discretion in admitting hearsay evidence 

from a non-testifying co-defendant.

Fourth Assignment of Error

The trial court abused its discretion in admitting an out-of-court 

statement to explain the conduct of an accomplice.

Fifth Assignment of Error

The trial court erred by crafting a sentence based on testimony 

from a codefendant’s separate trial that was not in the record in 

this case.

First Assignment of Error

{¶10} In his first assignment of error, Grim argues that his Due Process 

rights, and his rights under the Confrontation Clause, were violated when one of the 

State’s witnesses was permitted to testify regarding statements elicited from Grim’s 

codefendants at the probable cause hearing in juvenile court. 
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Standard of Review

{¶11} Generally, the admission of evidence lies within the broad discretion 

of the trial court. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62. 

However, we conduct a de novo review of hearsay evidentiary rulings that implicate 

the confrontation clause. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 

¶ 97.

Analysis

{¶12} In determining the State’s motion for discretionary bindover in this 

matter, the juvenile court held a joint probable cause hearing for Grim, Bush, and 

Barrett. At the hearing, the State presented the testimony of eight witnesses, one of 

whom was a detective with the Bellefontaine Police Department. The detective 

testified to statements made to him by Barrett and Allen that implicated Grim in the 

crimes. 

{¶13} Objections were made to the detective relaying out-of-court 

statements made by Barrett and Allen. Attorneys for the juveniles argued that since 

Barrett and Allen were not testifying, the evidence was in violation of the 

Confrontation Clause. The State responded that in a probable cause hearing, rather 

than a trial, there were relaxed evidentiary standards and the Confrontation Clause 

did not apply. The trial court agreed and permitted the detective to testify regarding 

Barrett and Allen’s statements to police.
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{¶14} Grim now renews his argument on appeal, contending that the 

detective’s testimony recounting statements made by Grim’s codefendants was in 

violation of the Confrontation Clause. However, Grim does acknowledge in his brief

that Ohio Appellate Districts have repeatedly declined to apply the Confrontation 

Clause and strict hearsay rules to juvenile probable cause hearings. The Twelfth 

District Court of Appeals recently addressed the issue as follows:

The United States Supreme Court has explained that “[t]he right to 

confrontation is basically a trial right.” Barber v. Page, 390 U.S. 719, 

725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). A juvenile transfer 

hearing “is not a trial as it does not ‘find as a fact that the accused 

minor is guilty of the offense charged. It simply finds the existence of 

probable cause to so believe.’ ” State v. Garner, 6th Dist. Lucas No. 

L-18-1269, 2020-Ohio-4939, ¶ 19, quoting State v. Iacona, 93 Ohio 

St.3d 83, 93 (2001).

The United States Supreme Court “has repeatedly declined to require 

the use of adversarial procedures to make probable cause 

determinations.” Kaley v. United States, 571 U.S. 320, 338, 134 S.Ct. 

1090, 188 L.Ed.2d 46 (2014). The federal courts have repeatedly held 

that the Sixth Amendment's Confrontation Clause does not apply to 

preliminary hearings.4 Likewise, the Ohio Supreme Court has held 

that the constitutional right to confront one's accusers “relates to the 

actual trial for the commission of the offense and not to the 

preliminary examination * * *.” (Emphasis added.) Henderson v. 

Maxwell, 176 Ohio St. 187, 188, 198 N.E.2d 456 (1964).

State v. Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-1627, ¶ 29-30, 

appeal allowed, 164 Ohio St.3d 1419, 2021-Ohio-2923, and appeal dismissed as 

improvidently allowed, 168 Ohio St.3d 631, 2022-Ohio-1607.

{¶15} Similar to the appellant in Fuell, Grim cannot cite a single Ohio case 

determining that the Confrontation Clause applies at juvenile transfer/probable 
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cause hearings, or that a detective’s “hearsay” testimony at a juvenile probable cause 

hearing creates a Due Process issue. Id. at ¶ 32. In fact, contrary to Grim’s 

unsupported claim on appeal, other Ohio Appellate Courts have made similar 

findings to Fuell. See In re B.w., 7th Dist. Mahoning No. 17 MA 0071, 2017-Ohio9220, ¶ 48 (going so far as to state a juvenile court erred by not considering

incriminating statements made to a detective from another source in a juvenile 

bindover proceeding); State v. Powell, 4th Dist. Gallia No. 20CA3, 2021-Ohio-200, 

¶ 23; State v. LaRosa, 11th Dist. Trumbull No. 2018-T-0097, 2020-Ohio-160, ¶ 38-

39; State v. Garner, 6th Dist. Lucas No. L-18-1269, 2020-Ohio-4939; State v. Dell, 

5th Dist. Licking No. 2021CA00079, 2022-Ohio-2483.

{¶16} After reviewing the applicable legal authority, we agree with the other 

Ohio Appellate Districts, and the statements from the Supreme Court of the United 

States, that confrontation is essentially a “trial right.” As the probable cause hearing 

here did not constitute a trial, the Confrontation Clause does not warrant reversal.

Similarly, we find no Due Process violation here because Grim was afforded all 

proper procedures in the juvenile proceedings pursuant to statute. Therefore, Grim’s 

first assignment of error is overruled.

Second Assignment of Error

{¶17} In his second assignment of error, Grim argues that his convictions 

were against the manifest weight of the evidence. Grim contends that while the acts 
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in question were committed by someone, the evidence did not establish that he was 

one of the culprits beyond a reasonable doubt. 

Standard of Review

{¶18} In reviewing whether a verdict was against the manifest weight of the 

evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting 

testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing so, 

this court 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.” Id. 

{¶19} Nevertheless, a reviewing court must allow the trier-of-fact 

appropriate discretion on matters relating to the credibility of the witnesses. State v. 

DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight 

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against 

the conviction,’ should an appellate court overturn the trial court’s 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, ¶ 119.

Evidence Presented

{¶20} On November 27, 2019, the night before Thanksgiving, there were 

seven people living at 601 West Columbus in Bellefontaine: six adults and one 
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juvenile. Anthony Scartz (“Ant”) was one of those adults, and he was known to sell 

marijuana out of the residence.

{¶21} At approximately 11:30 p.m., four of the seven residents of 601 West 

Columbus were home—two of them having recently returned. At that time, the three 

other residents of 601 West Columbus, including Ant, were traveling back to the 

residence together as they returned from Wal-Mart.

{¶22} In the minutes after 11:30 p.m., three individuals wearing 

masks/bandanas and/or hoods to hide their faces, and gloves on their hands, entered 

the residence through the front door. The lead individual, Barrett, according to his 

testimony, was carrying an orange firearm. Barrett told Ant’s girlfriend Kayla, who 

was on the living room couch, not to move, then Barrett followed Ant’s mother into 

the ground-floor bathroom, struck her in the head with the orange firearm, and 

placed her in the bathtub.

{¶23} Kayla was subsequently taken upstairs. One resident was sleeping in 

an upstairs bedroom and she was also struck in the head by Barrett with the orange 

pistol. Kayla yelled “stop,” and Barrett threatened to “blow [her] fucking head off.” 

(Tr. at 216).

{¶24} The home-invaders then repeatedly asked Kayla “where’s the 

money?” She took them to the room she shared with Ant, opened the safe and 

showed them that there was no money in it. However, Kayla did see one of the 

individuals reach down and grab something in the room.
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{¶25} As the home-invaders were upstairs, Ant, his friend Caleb, and his 

friend Jada returned home together from Wal-Mart. Ant grabbed his pistol and fired 

upstairs at one of the home-invaders. One shot struck Barrett in the leg. Barrett fired 

his gun at Ant and striking Ant in the head. Ant would eventually die from the 

wound.

{¶26} Because he was shot by Ant, some of Barrett’s blood was smeared on 

the wall upstairs. Barrett testified that after he was shot he handed the orange firearm 

to one of the others and he was helped downstairs. When the three home-invaders

got downstairs, Barrett testified that Grim grabbed Ant’s gun off the ground and 

they moved to leave. According to Barrett, around that time, Caleb struck Grim in 

the back with what Barrett thought was a machete, but turned out to be an “asp” or 

“baton.” According to Barrett, Grim turned around and shot Caleb in the head, 

killing him. The three home-invaders then left the residence.

{¶27} After stopping for gas, Barrett was left outside a hospital in Urbana. 

He was ultimately care-flighted to Nationwide Children’s Hospital in Columbus to 

be treated for his gunshot wound. While there, he spoke with police. Initially he told 

police he was shot in a drive-by shooting, but when confronted with his blood found 

at the scene of the shooting, he changed his story, saying that he was shot in a 

crossfire at Ant’s residence while trying to buy marijuana. Later, he told the police 

his entire story, indicating that he, Grim, Bush, and Allen had intended to steal from 
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Ant. He testified that Allen was the driver and waited in the car while the three 

juveniles went inside.

{¶28} Barrett testified that for his role in the incident he had pled guilty to 

Complicity to Felonious Assault, Complicity to Aggravated Robbery, and 

Complicity to Murder, and that at the time of Grim’s trial he had already testified in 

Bush’s trial. Barrett was only fifteen years old when the murders were committed.

{¶29} Allen spoke with police and also initially tried to minimize his role, 

stating that the original plan was to purchase marijuana from Ant with counterfeit 

money. However, he later told police a version of events that largely corroborated 

Barrett’s, though Allen did not know exactly what occurred inside the residence 

since he was in the car. Allen testified that the three individuals who went into the 

house were Grim, Bush, and Barrett. 

{¶30} The evidence indicated that Grim and Bush were cousins, and they 

were both interviewed by police the day after the incident. Bush confessed to the 

police, but when Grim was confronted with the incident Grim said he did not know 

what the officers were talking about. Nevertheless, Grim and Bush were transported 

to a holding facility together, and in the back of the police cruiser Bush told Grim 

that they talked to the “driver” and “they got us on camera.” (Tr. at 563). Grim said 

“they” did not have anything and to not talk to the police. (Id.)
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{¶31} Notably, the State presented evidence that after Grim was interviewed, 

he had an injury to his back where Barrett said Grim had been struck. That injury 

was photographed and entered into evidence. 

{¶32} The State presented the testimony of numerous other witnesses, some 

of whom placed Grim, Bush, Barrett, and Allen together in Bellefontaine in the 

hours before the event in question, such as Mason Fox. Allen had testified that he 

used Mason’s car and Mason actually planned the robbery. Mason denied planning 

the incident, and testified that Barrett, Grim, and Bush were excited at his house 

about committing a robbery earlier on the evening in question. Testimony indicated 

that Allen had gone to Urbana with Barrett to pick up Grim and Bush earlier on the 

date of the incident using Mason Fox’s vehicle.

{¶33} The orange firearm that was brought to 601 West Columbus and the 

firearm that was taken from Ant were never found. Barrett also testified that the 

orange firearm that he used came from Grim, and that Grim had received it from his 

brother. The State presented evidence, over objection, that Grim’s older brother at 

one point had sent a text message with a picture of an orange firearm and a statement 

that he intended to give it to “little bro.” (Tr. at 448).

{¶34} Grim’s older brother testified on behalf of the defense that he never 

gave Grim a firearm and that when he referred to “little bro” in the text message he 

was talking about a tattoo client, not his younger brother. Grim’s older brother was 

incarcerated at the time of Grim’s trial. He denied lying for his brother and he said 
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he was not aware of anything bad happening to people who cooperated with 

authorities.

Analysis

{¶35} Grim argues that all of his convictions are against the manifest weight 

of the evidence, contending that the evidence “tying” him to the crimes was 

circumstantial and equivocal. Grim contends that his DNA and fingerprints were 

not found at the scene. He also argues that the evidence established that Barrett, 

Bush and Allen were the individuals who were actually in the house, not Grim, 

because some of the witnesses in the house indicated that one of the perpetrators 

had “light colored eyes” and Allen was the only one with blue eyes. 

{¶36} Further, Grim contends that Barrett and Allen were not credible given 

their repeated attempts to minimize their involvement. Finally, he argues that the 

fourth person was more likely Mason Fox than Grim given that it was Fox’s car that 

was driven to and from the scene, and given that Fox was purportedly the 

mastermind behind the robbery according to Allen.

{¶37} In addressing Grim’s arguments that the evidence did not support that 

he was one of the people who perpetrated the indicted crimes, we first emphasize 

that two of his cocomplicitors testified that Grim was directly involved in the home 

invasion. Barrett specifically testified that Grim was the person who shot Caleb in 

the head after Caleb struck Grim in the back with a baton. 
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{¶38} Notably, the jury was instructed that an accomplice’s testimony should 

be viewed with grave suspicion and weighed with great caution. Nevertheless, the 

jury evidently found Allen and Barrett credible, and that credibility determination 

can be supported by numerous pieces of evidence. 

{¶39} For example, the injury to Grim’s back on the day after the incident

was consistent with Barrett’s testimony. In addition evidence placed the four

individuals together in the hours before the murder. Further, Grim was specifically

tied to the uniquely orange firearm, which was observed by multiple people as being 

used in this case. Moreover, a jury could readily determine that it was not believable 

that Grim and his cousin Bush, who were picked up together in Urbana on the day 

of the shooting, would have been separated for this one incident that day.

{¶40} Thus evidence was presented to corroborate portions of the stories told 

by Allen and Barrett, so the jury did not have to rely on their testimony alone. 

Nevertheless, we emphasize that Allen and Barrett had already pled guilty to 

numerous crimes for their roles in the November 27, 2019 incident. Barrett even 

readily admitted to shooting Ant and striking multiple people with the firearm, 

seeming not to minimize his conduct at all during Grim’s trial.

{¶41} While we note that there was some conflicting testimony indicating 

that one of the home-invaders may have had blue or light-colored eyes, and Grim 

evidently did not have blue eyes, this does not prevent Grim from being one of the 

assailants in this matter, particularly given the lack of certainty from the witnesses 
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about eye color. Further, as to Grim’s assertion that Mason Fox was more likely one 

of the individuals involved than him, Fox also testified at trial and the jury was able 

to evaluate his credibility as well. 

{¶42} In sum, based on the evidence presented, we do not find that this is 

one of the exceptional cases where the evidence weighs heavily against the 

convictions, which is required for reversal. State v. Haller, 3d Dist. Allen No. 1-11-

34, 2012-Ohio-5233, ¶ 9. The direct and circumstantial evidence is simply

overwhelming in establishing Grim as one of the perpetrators in these crimes. 

Therefore Grim’s argument that his convictions were against the manifest weight of 

the evidence due to the State’s purported failure to establish his identity as a 

perpetrator beyond a reasonable doubt are not well-taken.3 His second assignment 

of error is overruled.

Third Assignment of Error

{¶43} In his third assignment of error, Grim argues that the trial court 

improperly admitted hearsay evidence at trial from a non-testifying codefendant.

Standard of Review

{¶44} As stated previously, a trial court’s evidentiary rulings are generally 

reviewed under an abuse of discretion standard. State v. McKelton, 148 Ohio St.3d 

261, 2016-Ohio-5735, ¶ 97. An abuse of discretion is a decision by the trial court 

3 Grim’s brief neither mentions nor challenges any of the remaining elements of the crimes against him. 

Nevertheless, even if he did, the record supports the convictions.
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that is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219 (1983).

Analysis

{¶45} On November 29, 2019, Bush and Grim were brought to JDC and a 

nurse conducted a medical evaluation of them. The nurse testified at trial that when 

she was putting the blood-pressure cuff on Bush’s arm, she noticed that Bush had 

some “open nicks” on his arm. (Tr. at 452). The nurse asked Bush if he shaved his 

arms and Bush responded that he did because he was “shaving the residue off.” (Id. 

at 453). The nurse contacted law enforcement and passed the information along. A 

detective testified at trial that Grim also had shaved arms when he was interviewed.

{¶46} Grim’s attorney objected to the statements of Bush “shaving the 

residue off” being brought in through the JDC nurse, and the trial court overruled 

the objection finding that the statement “was done for purposes of medical 

diagnosis,” thus fitting a hearsay exception. (Id. at 452). Grim renews his argument 

on appeal, contending that the trial court erred because removing “residue” was not 

reasonably pertinent to diagnosis or treatment under Evid.R. 803(4).

{¶47} The State counters by reasserting that the nurse was asking Bush about 

the cuts on his arms for purposes of medical diagnosis under Evid.R. 803(4). In 

addition, the State argues that the “shaved arms” issue does not go directly to the 

truth of the matter asserted. 
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{¶48} We note that we do not agree with the State’s argument that the 

evidence does not go to the truth of the matter asserted as the shaved arms for 

purposes of removing “residue” constitutes circumstantial evidence to establish 

identity of the perpetrators. However, as the trial court indicated, there could be 

some medical purpose for asking a juvenile why he has cuts on his arms when 

conducting a medical evaluation, such as ensuring the cuts were not self-inflicted.

Therefore the trial court’s ruling that the hearsay exception for medical diagnosis 

was applicable was not unreasonable or arbitrary.

{¶49} Nevertheless, even if we determined that the testimony that went 

beyond Bush shaving his arms to his statement that he wanted to get the “residue

off” was inadmissible hearsay, we still find that the remaining evidence 

overwhelmingly supports the convictions beyond a reasonable doubt, thus the error 

would be harmless because it is so inconsequential compared to the remaining 

compelling evidence. See State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061 

(setting forth harmless error parameters in situations where evidence was 

erroneously admitted). For these reasons, Grim’s third assignment of error is 

overruled.
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Fourth Assignment of Error

{¶50} In his fourth assignment of error, Grim argues that the trial court 

improperly permitted Allen to testify regarding a phone conversation he overheard 

Grim having with Grim’s older brother after Barrett had been dropped off at the 

hospital. Grim argues that the testimony constituted inadmissible hearsay, and that 

it was extremely prejudicial.

Analysis4

{¶51} When Allen, the driver, was testifying on direct examination, the 

following exchange occurred:

Q. So you dropped [Barrett] off at the hospital. You didn’t drive up to 

the emergency room doors, did you?

A. No.

Q. Where did you drop him off at?

A. Like I said, there’s a side street behind Mercy Health, and so we 

pulled up to the stop sign, [Barrett] got out there.

Q. And he walked up to the hospital?

A. Yeah

Q. Okay. So then what happens? What – you and [Grim] and [Bush] 

are still in the car. What happens?

A. So, we take that stop sign, we turn right, and we come down and 

then we turn left and we get in some suburban neighborhood. I don’t 

know where we’re at. I don’t know Urbana very well. [Grim’s] on the 

phone with I’m going to assume it was his brother, it was Sway. He 

4 The same standard of review applied in the third assignment of error is applicable here.
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gets on the phone and his brother asked him, he said, do you trust him 

with a life sentence?

[DEFENSE COUNSEL]: Objection.

THE WITNESS: He said no.

THE COURT: Hang on one second.

[PROSECUTOR]: So, this doesn’t go to the truth of the matter 

asserted, it just goes to show what happens in the next order of events 

here.

THE COURT: Okay. [Defense Counsel], do you have – do you want 

to add to that?

[DEFENSE COUNSEL]: Normally that’s used when it’s a police 

officer in an investigation. I don't think that applies to a lay witness.

THE COURT: I think it applies. Ladies and gentleman of the jury, 

again, what Mr. Allen tells you the person on the other end of the 

phone named Sway said is not being offered for the truth of the matter 

of what Sway said, it’s being offered to show how Mr. Allen acted in 

a particular manner in response to that rather than prove the matter of 

proof of what the other person, Mr. Sway said. So you’re not to 

consider the truth of the matter of what Mr. Sway said, just consider 

the testimony about this as to [the] effect it had on Mr. Allen. You 

may proceed, [prosecutor].

Q. So what did you overhear?

A. So, I overheard – the radio was off in the car and that car ran [sic]

was a quiet car, so, [Grim’s] on the phone with Sway and he said do 

you trust him with a life sentence. [Grim] said no. He [Sway] said then 

you know what to do.

Q. So what did you do?

A. Next opportunity I got, as soon as I pulled the car over, I put it in 

park and I jumped out and said I got to pee. So I go behind this fenced-
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in area, and I overheard [Grim] tell Bush You ready to do this? So I 

just took off.

(Tr. at 532-534).

{¶52} Grim contends that the trial court erred by permitting Allen to testify 

regarding what Allen overheard during Grim’s phone conversation. He argues that 

Allen’s conduct in running away was not relevant to the guilt on the charged 

offenses and it did not need to be explained. He argues that because the testimony 

suggested that Grim would have potentially killed Allen, it was highly prejudicial 

hearsay and should have been excluded. 

{¶53} Even if we assumed, without finding, that Grim was correct that the 

evidence should have been excluded, the trial court minimized any impact of the 

statements by providing an immediate limiting instruction, telling the jury that 

“Sway’s” statements were only to be considered for purposes of why Allen got out 

of his vehicle. A jury is presumed to follow curative instructions. State v. Garner, 

74 Ohio St.3d 49, 1995-Ohio-168.

{¶54} Moreover, we emphasize that the most damning statement that 

occurred in the cited segment was categorically not hearsay, which was when Allen 

testified to Grim asking Bush if he was “ready to do this?” Evid.R. 801(D)(2). Any 

statement made by Grim’s brother on the phone carries little impact if Grim does 

not make his own statement indicating that he may act on it.
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{¶55} Finally, the erroneous admission of hearsay is subject to harmless error 

analysis. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 64. Pursuant to 

Crim.R. 52(A), “[a]ny error, defect, irregularity, or variance which does not affect 

substantial rights shall be disregarded.” In order to determine whether substantial 

rights were affected, we must determine whether there was prejudice, whether the 

error was harmless beyond a reasonable doubt, and whether the remaining evidence 

provides overwhelming evidence of guilt. State v. Morris, 141 Ohio St.3d 399, 

2014-Ohio-5052, ¶ 25-31. 

{¶56} Here, we unequivocally find that any purported error was harmless 

beyond a reasonable doubt. Any prejudice was minimized by the trial court’s 

instruction, and the remaining evidence provides overwhelming evidence of guilt. 

Furthermore, the direct and circumstantial evidence tying Grim to the crimes is 

overwhelming beyond a reasonable doubt establishing Grim’s guilt. For these 

reasons, Grim’s fourth assignment of error is overruled.

Fifth Assignment of Error

{¶57} In his fifth assignment of error, Grim argues that the trial court erred 

by crafting a sentence based on testimony from a codefendant’s separate trial, which 

was not included in the record in this case.

Standard of Review

{¶58} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence 

“only if it determines by clear and convincing evidence that the record does not 
Case No. 8-23-01

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support the trial court’s findings under relevant statutes or that the sentence is 

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 

¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the 

trier of facts a firm belief or conviction as to the facts sought to be established.’ ” 

Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of 

the syllabus.

Analysis

{¶59} At the sentencing hearing, when the trial court was pronouncing 

Grim’s sentence, and providing its analysis regarding the seriousness and recidivism 

factors pursuant to R.C. 2929.12(B), the trial court stated as follows:

I also find that the offenses were committed as part of an effort in 

organized crime. I’ve sat through two trials now of these events. In 

the trial of Josia Bush, Elijah Barrett testified very clearly that all three 

of the defendants – Elijah Barrett, Ethan Grim, and Josia Bush –

agreed that they would go to this home and take the weed and cash by 

force if necessary. They armed themselves. They created a plan, and 

it reflected, in my view, a view of how organized crime operates with 

its planning stage, preparation, and execution of the crimes.

(Jan. 24, 2023, Tr. at 20).

{¶60} Grim contends that the trial court erred by referencing Bush’s trial at 

Grim’s sentencing because it was outside of the record. However, Grim did not 

object to the trial court’s statement, thus he has waived all but plain error. State v. 

Wagner, 8th Dist. Cuyahoga No. 109678, 2023-Ohio-1215, ¶ 24.
Case No. 8-23-01

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{¶61} When reviewing this matter for plain error, we emphasize that the 

information purportedly referenced from Bush’s trial was also contained in Grim’s

trial through Barrett’s testimony, thus the record supports the trial court’s findings.

Since the record supports the trial court’s findings we do not find plain error with 

respect to Grim’s sentence. See id. Therefore, Grim’s fifth assignment of error is 

overruled.

Conclusion

{¶62} Having found no error prejudicial to Grim in the particulars assigned 

and argued, his assignments of error are overruled and the judgment of the Logan 

County Common Pleas Court is affirmed.

Judgment Affirmed

MILLER, P.J. and WILLAMOWSKI, J., concur.

/hls