State v. Brinkman ( 2024 )

[Cite as State v. Brinkman, 2024-Ohio-1005.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
CASE NO. 4-23-08
PLAINTIFF-APPELLEE,
v.
BENJAMIN J. BRINKMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 22 CR 14917
Judgment Affirmed
Date of Decision: March 18, 2024
APPEARANCES:
Joseph Sobecki for Appellant
Russell R. Herman for Appellee
Case No. 4-23-08
ZIMMERMAN, J.
{¶1} Defendant-appellant, Benjamin J. Brinkman (“Brinkman”), appeals the
July 14, 2023 judgment entry of sentence of the Defiance County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from Snap Chat messages and photographs exchanged
during the summer of 2022 between Brinkman, a then 35-year-old man, and the
victim, who was 13 years old at the time of the offenses at issue in this case. After
the victim’s mother became concerned that her daughter was possibly
communicating with Brinkman, she confiscated her cell phone and discovered
sexually explicit messages and photographs exchanged by Brinkman and her
daughter on Snap Chat.
{¶3} On October 28, 2022, the Defiance County Grand Jury indicted
Brinkman on Count One of pandering sexually oriented matter involving a minor in
violation of R.C. 2907.322(A)(5), a fourth-degree felony, and Count Two of
importuning in violation of R.C. 2907.07(D)(1), a fifth-degree felony. On
November 18, 2022, Brinkman appeared and entered pleas of not guilty to the
indictment.
{¶4} The case proceeded to a bench trial on June 29, 2023. The trial court
found Brinkman guilty of the counts alleged in the indictment and sentenced him to
16 months in prison on Count One and to 10 months in prison on Count Two.1 The
1
The trial court filed its judgment entry of sentence on July 14, 2023.
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trial court further ordered that Brinkman serve the prison terms consecutively for an
aggregate sentence of 26 months in prison. Moreover, the trial court classified
Brinkman as a Tier II sex offender.
{¶5} Brinkman filed his notice of appeal on July 21, 2023. He raises two
assignments of error for our review.
First Assignment of Error
The Court Erred in Convicting Defendant of Importuning in
Violation of R.C. 2907.07(D)(1). See Sentencing Order at 2; Tr.
159:9-14.
{¶6} In his first assignment of error, Brinkman argues that his importuning
conviction is based on insufficient evidence.2 In particular, Brinkman argues that
his importuning conviction is based on insufficient evidence because “the State
failed to prove beyond reasonable doubt, the element of solicitation by means of a
telecommunications device” since “there is no non-hearsay testimony that
Brinkman sent any text or Snapchat message to the alleged victim that could be
construed as soliciting sexual activity.” (Appellant’s Brief at 11, 13).
Standard of Review
{¶7} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
2
Brinkman does not challenge his pandering-sexually-oriented-matter-involving-a-minor conviction.
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mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
“[t]he relevant inquiry 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.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
Sufficiency of the Evidence
{¶8} As an initial matter, the record reveals that Brinkman failed to renew
his Crim.R. 29(A) motion at the conclusion of his case-in-chief or at the conclusion
of all the evidence.
In order to preserve the issue of sufficiency on appeal, this court has
held that “[w]hen a defendant moves for acquittal at the close of the
state’s evidence and that motion is denied, the defendant waives any
error which might have occurred in overruling the motion by
proceeding to introduce evidence in his or her defense. In order to
preserve a sufficiency of the evidence challenge on appeal once a
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defendant elects to present evidence on his behalf, the defendant must
renew his Crim.R. 29 motion at the close of all the evidence.”
State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 37, quoting State
v. Edwards, 3d Dist. Marion No. 9-03-63, 2004-Ohio-4015, ¶ 6. Based on this
court’s precedent, Brinkman’s failure to renew his Crim.R. 29(A) motion at the
conclusion of his case-in-chief or at the conclusion of all evidence waived all but
plain error on appeal. Id. at ¶ 37, citing State v. Flory, 3d Dist. Van Wert No. 15-
04-18, 2005-Ohio-2251, citing Edwards.
{¶9} “However, ‘“[w]hether a sufficiency of the evidence argument is
reviewed under a prejudicial error standard or under a plain error standard is
academic.”’” Id. at ¶ 38, quoting Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-
Ohio-4221, ¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No.
17891, 2000 WL 966161, *8 (July 14, 2000). “Regardless of the standard used, ‘a
conviction based on legally insufficient evidence constitutes a denial of due process,
and constitutes a manifest injustice.’” Id., quoting Thompkins, at 386-387.
Accordingly, we will proceed to determine whether the State presented sufficient
evidence to support Brinkman’s importuning conviction. See id.{¶10} Brinkman was convicted of importuning in violation of R.C.
2907.07(D)(1). That statute provides, in its relevant part, that
[n]o person shall solicit another by means of a telecommunications
device, as defined in section 2913.01 of the Revised Code, to engage
in sexual activity with the offender when the offender is eighteen
years of age or older and * * * [t]he other person is less than thirteen
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years of age, and the offender knows that the other person is less than
thirteen years of age or is reckless in that regard.
R.C. 2907.07(D)(1). Under R.C. 2913.01, a
“[t]elecommunications device” means any instrument, equipment,
machine, or other device that facilitates telecommunication,
including, but not limited to, a computer, computer network, computer
chip, computer circuit, scanner, telephone, cellular telephone, pager,
personal communications device, transponder, receiver, radio,
modem, or device that enables the use of a modem.
R.C. 2913.01(Y).
{¶11} “‘Sexual activity’ means sexual conduct or sexual contact, or both.”
R.C. 2907.01(C). The statute defines sexual conduct as “vaginal intercourse
between a male and female; anal intercourse, fellatio, and cunnilingus between
persons regardless of sex; and, without privilege to do so, the insertion, however
slight, of any part of the body or any instrument, apparatus, or other object into the
vaginal or anal opening of another.” R.C. 2907.01(A). Likewise, the statute defines
sexual contact as “any touching of an erogenous zone of another, including without
limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a
breast, for the purpose of sexually arousing or gratifying either person.” R.C.
2907.01(B).
{¶12} Even though “[t]he term ‘solicit’ is not statutorily defined,” Ohio
courts of appeal have defined the term to mean “‘to seek, to ask, to influence, to
invite, to tempt, to lead on, to bring pressure to bear.’” State v. Kelly, 4th Dist.
Hocking No. 20CA5, 2021-Ohio-2007, ¶ 29; State v. Barnett, 3d Dist. Hardin No.
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6-12-03, 2012-Ohio-3748, ¶ 23, quoting State v. Jain, 3d Dist. Auglaize No. 2-09-
25, 2010-Ohio-1712, ¶ 12. See also State v. Murphy, 5th Dist. Delaware No.
20CAA010005, 2020-Ohio-4667, ¶ 33 (“‘Solicit’ is defined as ‘to entice, urge, lure
or ask.’”), quoting State v. Swann, 142 Ohio App.3d 88, 89 (1st Dist.2001). “‘Thus,
even in the absence of evidence that the defendant “asked” the minor to engage in
sexual activity, a defendant may still be found guilty of importuning under R.C.
2907.07 if there is evidence that the defendant sought, influenced, invited, tempted,
led, or pressured the victim to engage in sexual activity.’” State v. Petty, 10th Dist.
Franklin No. 15AP-950, 2017-Ohio-1062, ¶ 77, quoting State v. Kent, 8th Dist.
Cuyahoga No. 98863, 2013-Ohio-2461, ¶ 14.
{¶13} Likewise, our sister courts of appeal resolved that “‘in order to be
sufficient to prove criminal liability for an alleged R.C. 2907.07(A) violation, the
evidence must demonstrate that the conduct which the alleged solicitation for sex
involved was performed recklessly, as that is defined by R.C. 2901.22(C).’” Kelly
at ¶ 17, quoting In re J.W., 2d Dist. Miami No. 04CA5, 2004-Ohio-3404, ¶ 19.
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences,
the person disregards a substantial and unjustifiable risk that such
circumstances are likely to exist.
R.C. 2901.22(C).
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{¶14} In support of his sufficiency-of-the-evidence challenge, Brinkman
argues that a rational trier of fact could not have found that he solicited the victim
by means of a telecommunications device to engage in sexual activity. That is,
Brinkman contends that “there is simply no evidence, beyond the alleged victim’s
‘feelings’ that Brinkman was wanting to engage in sexual activity with her, that
Brinkman ever did so” because “those personal feelings do no constitute evidence
sufficient for any reasonable person to find beyond a reasonable doubt that the
discussion was a solicitation.” (Appellant’s Brief at 12). Brinkman alleges that the
evidence presented by the State at trial that he solicited the victim by means of a
telecommunications device to engage in sexual activity was hearsay. Because they
are the only elements that Brinkman challenges on appeal, we will review the
sufficiency of the evidence supporting only whether he solicited the victim by
means of a telecommunications device to engage in sexual activity.
{¶15} As an initial matter, Brinkman’s argument that the evidence presented
by the State at trial that he solicited the victim by means of a telecommunications
device to engage in sexual activity was hearsay is without merit. See State v. Ward,
9th Dist. Lorain No. 09CA009720, 2011-Ohio-518, ¶ 20. “The Supreme Court of
Ohio has held that when reviewing the sufficiency of the evidence, an appellate
court is to consider all of the evidence admitted at trial, even if the evidence was
improperly admitted.” Id., citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-
593, ¶ 19.
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{¶16} Consequently, viewing the evidence in a light most favorable to the
prosecution, we conclude that Brinkman’s importuning conviction is based on
sufficient evidence. That is, the State presented sufficient evidence that Brinkman
solicited the victim by means of a telecommunications device to engage in sexual
activity.
{¶17} Indeed, based on our review of the record, we conclude that the State
presented sufficient evidence at trial from which the trier of fact could conclude that
Brinkman disregarded a substantial and unjustifiable risk that his conduct (through
Snap Chat) was likely seeking, influencing, inviting, tempting, leading, or
pressuring the victim to engage in sexual activity. See Barnett, 2012-Ohio-3748, at
¶ 23 (“Viewing the text message conversation in a light most favorable to the State,
there was sufficient evidence that Barnett influenced, tempted, and pressured the
alleged minor child to engage in sexual activity”); Murphy, 2020-Ohio-4667, at ¶
33 (“Without needing to parse the text of the message closely, it is immediately
evident appellant sought to entice the recipient into sexual activity.”); State v.
Gomez, 6th Dist. Lucas No. L-17-1130, 2019-Ohio-576, ¶ 73 (noting that, “[i]n
many of the[] messages, appellant employed graphic sexual language in an effort to
solicit M.D. to engage in sexual activity with him”). Importantly, even though the
State did not produce exhibits depicting the Snap Chat messages and photographs,
that does not mean that the State did not produce sufficient evidence of the contents
of those messages or images. See State v. Sebring, 9th Dist. Wayne No. 22AP0032,
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Case No. 4-23-08
2023-Ohio-2911, ¶ 21 (“The fact that the State did not also produce a picture of the
Snap Chat message Mr. Sebring sent to Q.H. does not mean the State failed to
produce sufficient evidence to prove the content of that message.”).
{¶18} Rather, the State presented the testimony of the victim, who confirmed
that she had “some communication type of relationship with” Brinkman (primarily)
through Snap Chat. (June 29, 2023 Tr. at 86). The victim testified that they talked
on Snap Chat “about actually doing some kind of sexual things together,” including
“sexual acts” and “intercourse.” (Id. at 88). Critically, the victim testified that they
“were talking about sex acts that [they] wanted to do together.” (Id. at 96).
Moreover, the victim testified that she sent nude pictures of herself to Brinkman as
well as “a picture that was a little bit more graphic sexually where [she] was
touching” herself. (Id. at 92). On re-direct examination, the victim testified that
Brinkman “wanted the[] pictures” and that she sent the explicit pictures to him
because she is “a big people pleaser” and that she will “do whatever it takes” “[i]f
it makes people happy * * * .” (Id. at 127). She confirmed that “he would want
[her] to send those pictures if [she was] willing to * * * .” (Id. at 128).
{¶19} The State also presented the testimony of the victim’s mother, who
testified that she had her husband “confiscate [the daughter’s] cell phone” after she
became concerned that her daughter was communicating with Brinkman. (June 29,
2023 Tr. at 40). According to the victim’s mother, she discovered “some very bad
conversations” between her daughter and Brinkman on Snap Chat in which her
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“daughter was asking him if he was masturbating to some pictures” along with
“conversations that they were having * * * in regards to * * * explicit pictures and
masturbation.” (Id. at 41). The victim’s mother testified that she later discovered
“a picture of [her] daughter’s breast that she had sent and then a little bit further
down was a picture of what [she assumed] is Mr. Brinkman’s pelvic area showing
his penis to her.” (Id. at 43).
{¶20} Likewise, the State presented the testimony of Officer Whitney Schalk
(“Officer Schalk”) of the Defiance Police Department, who testified that she
investigated the conduct at issue in this case. Specifically, Officer Schalk testified
that the victim reported that her communication with Brinkman had been “going on
for approximately three to four months” through Snap Chat. (Id. at 16). Officer
Schalk explained that “[i]f [photos or messages are] not saved, they won’t be able
to be viewed” on Snap Chat. (Id. at 17).
{¶21} Based on that evidence, we conclude that a rational trier of fact could
have found beyond a reasonable doubt that Brinkman solicited the victim by means
of a telecommunications device to engage in sexual activity. Consequently,
Brinkman’s importuning conviction is based on sufficient evidence.
Second Assignment of Error
The Trial Court Erred When it Sentenced Defendant Brinkman
to Consecutive Prison Sentences. See Sentencing Order at 2-23;
Tr. at 166:10-167:5.
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{¶22} In his second assignment of error, Brinkman challenges the trial
court’s order that he serve his sentences consecutively. Specifically, Brinkman
argues that the trial court erred by imposing consecutive sentences in this case
without making the required findings under R.C. 2929.14(C)(4) and without
considering whether consecutive sentences are necessary and proportional.
Standard of Review
{¶23} 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
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. When reviewing the imposition of consecutive sentences, “[t]he plain
language of R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s
consecutive-sentence findings, and the trial court’s findings must be upheld unless
those findings are clearly and convincingly not supported by the record.” State v.
Gwynne, ___ Ohio St.3d ___, 2023-Ohio-3851, ¶ 5. 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.’” Marcum at ¶ 22, quoting Cross
v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
Analysis
{¶24} “Except as provided in * * * division (C) of section 2929.14, * * * a
prison term, jail term, or sentence of imprisonment shall be served concurrently with
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any other prison term, jail term, or sentence of imprisonment imposed by a court of
this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)
provides:
(4) * * * [T]he court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more
of the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶25} R.C. 2929.14(C)(4) requires a trial court to make specific findings on
the record before imposing consecutive sentences. State v. Hites, 3d Dist. Hardin
No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-
24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.-13-
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{¶26} The trial court must state the required findings at the sentencing
hearing prior to imposing consecutive sentences and incorporate those findings into
its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-
4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A
trial court “has no obligation to state reasons to support its findings” and is not
“required to give a talismanic incantation of the words of the statute, provided that
the necessary findings can be found in the record and are incorporated into the
sentencing entry.” Bonnell at ¶ 37.
{¶27} In this case, Brinkman argues that the trial court failed to state whether
one of the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Brinkman’s
argument is without merit. Rather, based on our review of the record, we are able
to discern that the trial court made the statutorily required findings before imposing
consecutive sentences at the sentencing hearing and incorporated those findings into
its sentencing entry. Compare State v. J.L.H., 10th Dist. Franklin No. 19AP-369,
2019-Ohio-4999, ¶ 17 (concluding that the trial court’s “findings [were] sufficient
to fulfill the elements of R.C. 2929.14(C)(4)(b)”).
{¶28} Indeed, at the sentencing hearing, the trial court discussed the harm
caused by the offenses that Brinkman committed in this case. Compare State v.
Smith, 2d Dist. Montgomery No. 28265, 2019-Ohio-5015, ¶ 76 (concluding that,
“given that C.B. was only 14 years old at the time of 41-year-old Smith’s offenses,
and had been coached by him and been a teammate, classmate, and friend of his
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Case No. 4-23-08
daughter since the age of eight, we cannot clearly and convincingly conclude that
the record does not support a finding that the harm C.B. suffered was greater or
more unusual than that suffered by other ‘minors’ (including those above the age of
consent) who may have engaged in sexual conduct with a coach”); J.L.H. at ¶ 17
(determining that the trial court found that consecutive sentences were necessary
under R.C. 2929.14(C)(4)(b) because it “referred to appellant’s conduct in terms of
‘offenses’ after having found that he was in a position of trust as her step-grandfather
and a minister in the community”). Specifically, the trial court highlighted that
Brinkman “held a position of trust somehow with the alleged victim and this trust
was violated.” (June 29, 2023 Tr. at 166). That is, the trial court analyzed that it
was “trouble[ed]” that Brinkman—as “a strange nonrelated adult,” was “permitted
to intermingle with the children of the school”— and that he “met [the victim in this
case] in school.” (Id. at 165). Critically, the trial court, after detailing the victim’s
young age and the harm that she suffered in this case, determined that Brinkman
“groomed [the victim] [and] obviously is a predator of young girls”. (Id.).
{¶29} Moreover, the trial court incorporated its finding into its sentencing
entry by stating “that consecutive terms are necessary to adequately protect the
public and are not disproportionate given the nature of these offenses, the
seriousness of the offender’s conduct, and the danger the offender poses to the
public including the risk that [Brinkman] will re-offend.” (Doc. No. 22).
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{¶30} Consequently, even though “the trial court could have been clearer in
the language used at the” sentencing hearing and in its sentencing entry, the trial
court’s findings align with R.C. 2929.14(C)(4)(b). State v. Rodriquez, 3d Dist.
Defiance No. 4-16-16, 2017-Ohio-1318, ¶ 12. See also J.L.H. at ¶ 17 (“Although
the trial court’s findings at the sentencing hearing do not recite the statutory
language verbatim, the trial court findings are consistent with R.C.
2929.14(C)(4)(b).”). Importantly, “the ‘so great or unusual’ factor applies not as to
the conduct of the defendant, but as to the harm caused by such conduct.” Smith at
¶ 76. Thus, based on our review of the record, we conclude that the trial court
engaged in the correct analysis and made the required R.C. 2929.14(C)(4) factors
before imposing consecutive sentences. Accord J.L.H. at ¶ 17. Accordingly, the
trial court did not err by imposing consecutive sentences in this case.
{¶31} Brinkman’s second assignment of error is overruled.
{¶32} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and WALDICK, J., concur.
/hls
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