State v. Groce , 2021 Ohio 3490 ( 2021 )

[Cite as State v. Groce, 2021-Ohio-3490.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-51
(C.P.C. No. 16CR-3448)
v. :
(REGULAR CALENDAR)
Drakkar D. Groce, :
Defendant-Appellant. :
D E C I S I O N
Rendered on September 30, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Dennis C. Belli, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} This case is before the court on remand from the Supreme Court of Ohio
pursuant to State v. Groce, 163 Ohio St.3d 387, 2020-Ohio-6671 ("Groce II"). The Supreme
Court reversed in part our judgment in State v. Groce, 10th Dist. No. 18AP-51, 2019-Ohio-
1007 ("Groce I"), as it related to the sufficiency of the evidence on the conviction of engaging
in a pattern of corrupt activity and remanded the case to this court for further proceedings
to address the issues this court deemed mooted in Groce I. On consideration of the
remaining issues, we affirm.
I. Facts and Procedural History
{¶ 2} In Groce I, defendant-appellant, Drakkar D. Groce, appealed from a
judgment entry of the Franklin County Court of Common Pleas finding him guilty, pursuant
to jury verdict, of one count of engaging in a pattern of corrupt activity, one count of
No. 18AP-51 2
possession of cocaine, one count of illegal manufacture of drugs, and five counts of
trafficking in cocaine, along with firearm specifications accompanying each conviction. We
concluded in Groce I that there was insufficient evidence to support Groce's conviction for
engaging in a pattern of corrupt activity and the attendant firearm specification, rendering
moot several additional arguments Groce made related to his conviction of engaging in a
pattern of corrupt activity. Groce I at ¶ 90. We additionally found, however, that there was
sufficient evidence to support Groce's convictions of trafficking in cocaine, possession of
cocaine, and illegal manufacture of drugs, as well as the attendant firearm specifications,
and we overruled Groce's assignments of error challenging evidentiary rulings, closing
arguments, ineffective assistance of counsel, a Batson challenge, and determinations of
merger. Id.{¶ 3} The Supreme Court of Ohio accepted the state's discretionary appeal on the
following proposition of law: "To sustain a conviction for a violation of R.C. 2923.32, the
corrupt activity statute, the State must prove that the defendant engaged in continuous
criminal activity for a time period sufficient in length to permit him and his associates to
pursue the enterprise's criminal purpose." Groce II at ¶ 5. In a related case involving
Groce's trial codefendants, the Supreme Court set out the relevant facts and procedural
history of this case as follows:
After a joint jury trial, [Alvin C.] Dent [Jr.] and [William L.]
Walker [Jr.] were both found guilty of engaging in a pattern
of corrupt activity, possessing cocaine, illegally
manufacturing drugs, and trafficking in cocaine. The
convictions for engaging in a pattern of corrupt activity are the
focus of this consolidated appeal. A third individual, Drakkar
Groce, was also convicted in the same trial. Groce's conviction
is the subject of a separate but related appeal pending before
this court in case No. 2019-0594.
At the joint trial, Detective Lawrence Gauthney of the
Columbus Police Department testified that he began
observing a house on Greenway Avenue in response to citizen
complaints that he had received around February 2016. As a
result, he conducted two to three "spot checks" during which
he observed foot traffic at the house consistent with "an up-
and-running drug house." More specifically, he observed a
high volume of individuals who knocked and entered the
house like visitors, but stayed only five to ten minutes before
No. 18AP-51 3
leaving. He testified that in his experience, this was activity
consistent with the sale of drugs from the house.
Gauthney testified that on March 11 and 15, he conducted
visual surveillance of the property for over an hour each time.
Gauthney's surveillance reports were admitted into evidence,
and he testified again that the activity at the house—
specifically, a high volume of foot traffic in and out within a
short period of time—was what he had consistently observed
during each spot check. Additionally, during the March 15
surveillance, Gauthney observed Walker enter through the
back door of the house but did not see him leave during the
approximately one and one-half hours that Gauthney had
observed the house.
On March 28, Gauthney arranged for a confidential informant
to purchase what Gauthney believed to be crack cocaine from
someone in the house. Following this buy, Gauthney obtained
a no-knock warrant to search the house.
When the warrant was executed on March 29, neither
appellees nor Groce were apprehended in the house, but three
other individuals were. The police recovered items from the
house, including small plastic bags containing cocaine,
electronic scales containing cocaine residue, a glass
measuring cup containing cocaine residue, as well as multiple
firearms and ammunition located throughout the house.
During the search of the house, the police also recovered video
recordings from a camera that was located in the house's
kitchen containing footage of appellees, Groce, and other
individuals. Gauthney determined that the recorded footage
covered a single date—March 29—and lasted for a period of
over four hours.
From the videos, Gauthney drafted an investigative report in
which he described what he observed at various portions of
the videos. This report and portions of the actual videos were
admitted into evidence. In addition, Gauthney testified as to
what he believed the videos showed while the videos played
for the jury. In summary, Gauthney testified that the camera
recorded appellees and Groce conducting various activities
with what Gauthney believed to be cocaine, including
"cooking" it to make crack cocaine (by heating a mixture of
cocaine, baking soda, and water), weighing and bagging the
drug, selling it, and exchanging large amounts of money.
No. 18AP-51 4
More specifically, the videos show Dent handling and
weighing multiple small plastic bags of a white substance
believed to be crack cocaine. Dent is present while Groce
"cooks" crack cocaine using a microwave. Dent also exchanges
large stacks or rolls of money with others in the house,
including Groce and Walker. At one point, Dent—with Groce's
help—adjusts the camera in the kitchen for several minutes.
The videos show Walker handling small plastic bags of crack
cocaine and exchanging large amounts of money with Dent.
He also prepares crack cocaine using a measuring cup, baking
soda, and the microwave. He exchanges a small bag
containing what appears to be crack cocaine for money with
unknown individuals. And then he goes back to bagging up
crack cocaine at the kitchen table.
The videos also show Groce selling what appears to be crack
cocaine to several individuals who appear to stay only a short
time after he lets them into the house. He accesses kitchen
cabinets in which portions of crack cocaine appear to be
stored, weighs the substance and places it in smaller plastic
bags. In addition to "cooking" crack cocaine, he handles large
"cookie" size portions of crack cocaine and splits those larger
portions into smaller-sized portions and places the smaller
portions in bags. He handles money in the kitchen from others
and places it in his wallet.
In addition to these activities that relate to the underlying
offenses of possessing, illegally manufacturing, and
trafficking cocaine, the videos also demonstrate appellees and
Groce engaging in more ordinary activities in the house
distinct from those other individuals in the videos. For
example, appellees and Groce are in the house without
jackets, in contrast to others who come into view of the camera
for a short duration. Although the videos do not include audio,
appellees casually chat with each other, Groce, and others. At
one point, Groce appears shirtless and rolls a cigar. While
appellees and Groce are in view, another individual makes
what appears to be french fries using a countertop appliance.
At another point, Walker makes himself a sandwich and
appears to share a video on his phone with Dent and another
individual. Dent makes a sandwich while handling a large roll
of cash. At one point, Groce enters the kitchen with what
appears to be a bag of food and a two-liter beverage. Walker
and Dent share the beverage with Groce and others while
Groce eats. While Walker works at the microwave doing what
No. 18AP-51 5
appears to be manufacturing crack cocaine, another
individual attempts to hand him cash but Walker allows the
individual to casually leave the money on the top of the
microwave.
State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, ¶ 2-11. See also Groce II at ¶ 2 (noting
"the evidence presented at [the joint trial] is described in" Dent). Further, the Supreme
Court stated in Groce II:
The jury found Groce, Dent, and Walker each guilty of engaging
in a pattern of corrupt activity, possessing cocaine, illegally
manufacturing drugs, and trafficking in cocaine. Groce's
conviction for engaging in a pattern of corrupt activity is the
focus of this appeal. Dent's and Walker's convictions for the
same offense are the subject of separate appeals, which were
considered together in Dent.
Groce appealed to the Tenth District Court of Appeals and
argued that his conviction for engaging in a pattern of corrupt
activity was not supported by sufficient evidence. The court of
appeals agreed and reversed that conviction.
Groce II at ¶ 3-4.
{¶ 4} In Groce I, we held that "the evidence here was insufficient to satisfy both the
longevity prong of the Boyle [v. United States, 556 U.S. 938 (2009)] test and the statutory
definition of pattern of corrupt activity." Groce I at ¶ 25. However, in reversing the decision
of this court in Groce I, the Supreme Court concluded in Groce II that:
As we concluded in Dent, viewing the evidence in the light
most favorable to the prosecution as we must, a rational juror
could reasonably conclude that Groce, Dent, and Walker were
not strangers to each other or to the drug activities that had
been occurring at the house. All three understood the purpose
of their joint activities to manufacture and sell cocaine out of
the house on Greenway Avenue. Thus, we conclude that
sufficient evidence demonstrates a purpose and relationship
relating to their illegal activities. We also conclude that a
rational juror could have found beyond a reasonable doubt
that Groce participated in an association-in-fact enterprise
with sufficient longevity to further its purpose.
With respect to the existence of a pattern of corrupt activity,
we conclude that a rational juror could reasonably infer from
the activity and interactions observed in the video-
No. 18AP-51 6
surveillance evidence that Groce's activity in the house with
Dent and Walker was not isolated to a single day or a single
drug transaction. Taking the evidence together, and viewing it
in a light most favorable to the prosecution as we must, we
conclude that a reasonable juror could have found beyond a
reasonable doubt that Groce was not a stranger to Dent and
Walker or to the operations occurring at the house, and that
he participated in incidents of illegal activity that were not
isolated and established a pattern of corrupt activity.
Groce II at ¶ 8-9. Accordingly, the Supreme Court reversed the decision of this court and
remanded the case to us. Id. at ¶ 10. This court subsequently issued a journal entry
stating, pursuant to the mandate of the Supreme Court reversing the judgment of this
court, this matter is hereby resubmitted to the court for consideration of the arguments
deemed moot in Groce I.
II. Assignments of Error
{¶ 5} The assignments of error remanded to this court for consideration read as
follows:
[4.] Defendant-appellant was denied his right to due process
and a fundamentally fair jury trial under the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution due
to improper closing remarks by the prosecutor: A) falsely
representing to the jury that the home security video recording
equipment was motion-activated, B) expanding the scope of
the corrupt activity count beyond the predicate acts listed in the
indictment, and C) urging the jury to consider the erroneously
admitted anti-"snitch" tattoo photographs for a forbidden
purpose.
[5.] Defendant-appellant was denied his right to the effective
assistance of counsel as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution due
to his attorney's: A) failure to object to the admission of the
written report of the lead detective's interpretation of the
contents of the video clips, B) failure to request a jury
instruction regarding the continuity requirement for proving a
pattern of corrupt activity, and C) failure to object to the trial
judge's inadequate response to a jury question.
[7.] The trial court's failure to merge defendant-appellant's
trafficking convictions and firearm specifications for
sentencing violated R.C. 2941.25 and/or R.C. 2929.14 and his
No. 18AP-51 7
rights under the double jeopardy clause of the Fifth and
Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
Pursuant to the Supreme Court's remand, we address only the portions of these
assignments of error deemed moot in Groce I.
III. Fourth Assignment of Error – Prosecutor's Closing Remarks
{¶ 6} In his fourth assignment of error, Groce argues the prosecutor made several
remarks during the state's closing argument that deprived Groce of his right to a fair trial.
More specifically, Groce challenges as improper and prejudicial the prosecutor's statements
that (1) represented the surveillance video equipment to be motion activated; (2) expanded
the scope of the engaging in a pattern of corrupt activity charge to events beyond the
predicate offenses listed in the indictment; and (3) urged the jury to consider the
photographs of the tattoo for an impermissible purpose. In Groce I, we considered Groce's
argument as it related to the first and third of these allegations, and we found the argument
moot as it related to the second of these statements since it related to his conviction of
engaging in a pattern of corrupt activity. As the Supreme Court's decision in Groce II found
sufficient evidence to support Groce's conviction of engaging in a pattern of corrupt activity,
we now consider his argument under his fourth assignment of error related to the
prosecutor's statements allegedly expanding the scope of the engaging in a pattern of
corrupt activity charge.
{¶ 7} Courts afford prosecutors wide latitude in closing arguments, and
prosecutors may draw reasonable inferences from the evidence at trial, commenting on
those inferences during closing argument. State v. Hunt, 10th Dist. No. 12AP-1037, 2013-
Ohio-5326, ¶ 18. The test for prosecutorial misconduct in closing arguments "is whether
the remarks were improper and, if so, whether they prejudicially affected substantial rights
of the defendant." State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing United States v. Dorr,
636 F.2d 117 (5th Cir.1981). " '[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.' "
State v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416, ¶ 38, quoting Smith v.
Phillips, 455 U.S. 209, 219 (1982). Thus, prosecutorial misconduct is not grounds for
No. 18AP-51 8
reversal unless the defendant has been denied a fair trial. State v. Maurer, 15 Ohio St.3d
239, 266 (1984).
{¶ 8} Groce argues the state deprived him of a fair trial when, during its rebuttal
argument, the prosecutor commented that as of March 29, 2016, the drug house had all of
the items it would need to engage in a pattern of corrupt activity and that it was "an ongoing
place of business." (Tr. Vol. IV at 966.) Defense counsel objected that the state was
attempting to expand the predicate offenses to the charge of engaging in a pattern of corrupt
activity beyond the one day contained in the indictment. The trial court overruled the
objection and allowed the prosecutor to continue. On appeal, Groce argues the prosecutor's
statements were improper because the state did not indict Groce for any offenses beyond
the single day of the video footage, March 29, 2016. Thus, Groce asserts that the state
limited its ability to demonstrate the existence of an enterprise beyond the indicted
offenses.
{¶ 9} These statements relate to the longevity of the enterprise necessary to
demonstrate a pattern of corrupt activity. Though we held in Groce I that the state did not
satisfy the longevity element, the Supreme Court disagreed and held that "a rational juror
could have found beyond a reasonable doubt that Groce participated in an association-in-
fact enterprise with sufficient longevity to further its purpose." Groce II at ¶ 8. The
Supreme Court elaborated in Dent, stating:
Evidence of longevity sufficient to further the purpose of the
enterprise is demonstrated by Detective Gauthney's spot
checks and his surveillance reports from March 11 and 15, the
confidential informant's purchase of drugs, and the videos
obtained at the time of the search on March 29. Together, this
evidence demonstrates that activity consistent with an "up-and
running drug house" had been occurring since at least late
February when Gauthney received the complaints that
prompted further investigation. Additionally, Gauthney
observed Walker at the house on March 15 using the back door
without knocking and staying longer than a few minutes, which
is activity that stands in contrast to the more frequent visitors
Gauthney observed knocking and entering the front door of the
house and staying only five to ten minutes. Even if we focused
solely on March 29, the day the video evidence was recorded,
appellees performed the tasks necessary to further the
enterprise's purpose of selling crack cocaine out of the house.
No. 18AP-51 9
And, based on appellees' conduct and interaction in the house
on March 29 that is distinguishable from the frequent yet
short-term visitors observed at the house, it is reasonable to
infer that their activities with the enterprise extended beyond a
single day.
Dent at ¶ 23.
{¶ 10} Even if we were to agree with Groce that the terms of the indictment did, in
fact, limit the state's ability to demonstrate the existence of an enterprise to only March 29,
2016, the Supreme Court specifically found in Dent that the conduct observed in the video
from March 29, 2016, on its own, constituted evidence showing sufficient longevity
showing a common purpose and relationships in furtherance of that purpose. Dent at ¶ 23.
Thus, as the Supreme Court determined the video evidence, alone, constituted sufficient
evidence of the enterprise, Groce cannot demonstrate that the prosecutor's statements
about the conduct observed beyond March 29, 2016 prejudiced him or deprived him of a
fair trial. Hunt at ¶ 18 ("[a] defendant is entitled to a new trial only when a prosecutor
makes improper remarks and those remarks substantially prejudice the defendant"), citing
Smith at 14. Accordingly, we overrule the remaining portion of Groce's fourth assignment
of error.
IV. Fifth Assignment of Error – Ineffective Assistance of Counsel
{¶ 11} In his fifth assignment of error, Groce argues he received the ineffective
assistance of counsel.
{¶ 12} In order to prevail on a claim of ineffective assistance of counsel, Groce must
satisfy a two-prong test. First, he must demonstrate that his counsel's performance was
deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong requires
Groce to show that his counsel committed errors which were "so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. If
Groce can so demonstrate, he must then establish that he was prejudiced by the deficient
performance. Id. To show prejudice, Groce must establish there is a reasonable probability
that, but for his counsel's errors, the result of the trial would have been different. A
"reasonable probability" is one sufficient to undermine confidence in the outcome of the
trial. Id. at 694.
No. 18AP-51 10
{¶ 13} In considering claims of ineffective assistance of counsel, courts review these
claims with a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,
¶ 101. Groce contends his trial counsel was ineffective in (1) failing to object to the
admission of the police report; (2) failing to request a continuity instruction related to the
charge of engaging in a pattern of corrupt activity; and (3) failing to insist that the trial court
correct the prosecutor's characterization of the surveillance system as motion activated. In
Groce I, we overruled this assignment of error as it related to Groce's first and third
allegations of ineffective assistance of counsel, finding moot his argument related to the
second allegation of ineffective assistance of counsel. Pursuant to the Supreme Court's
decision in Groce II, we now address Groce's argument that his trial counsel was ineffective
in failing to request a continuity instruction related to the charge of engaging in a pattern
of corrupt activity.
{¶ 14} Groce argues his trial counsel was ineffective in failing to request an
instruction that the offense of engaging in a pattern of corrupt activity requires the state to
prove "continuous activity." Groce relies on the Supreme Court's statement that proof of a
defendant's conduct or participation in an enterprise through a pattern of corrupt activity
"must include both a relationship and continuous activity, as well as proof of the existence
of an enterprise." (Internal quotations omitted.) State v. Miranda, 138 Ohio St.3d 184,
2014-Ohio-451, ¶ 13. We note, however, that continuity is not an element of R.C. 2923.32.
Additionally, this argument relates to the state's burden to prove Groce participated in the
affairs of an enterprise under R.C. 2923.32(A)(1). As the Supreme Court found in Groce II,
there was sufficient evidence to sustain Groce's conviction of engaging in a pattern of
corrupt activity, Groce cannot demonstrate his counsel was deficient in failing to request
an additional instruction on continuity. Thus, we overrule the remaining portion of Groce's
fifth assignment of error.
V. Seventh Assignment of Error – Separate Firearm Specification
{¶ 15} In his seventh assignment of error, Groce argues the trial court erred in
imposing his sentence. Specifically, the trial court merged Groce's convictions under
Counts 2 and 3 of the indictment, first-degree felony trafficking in cocaine and first-degree
felony possession of cocaine. On appeal, Groce asserts the trial court additionally should
No. 18AP-51 11
have (1) merged his four convictions for fifth-degree felony trafficking in cocaine and their
attendant firearm specifications under Counts 5, 6, 7, and 12 with his conviction for first-
degree felony trafficking in Count 2; (2) merged his conviction for fifth-degree felony
trafficking under Count 12 and the attendant firearm specification with any of the fifth-
degree felony trafficking convictions under Counts 5, 6, and 7; and (3) not imposed a
separate one-year prison term for the firearm specification attached to his conviction of
engaging in a pattern of corrupt activity under Count 1 of the indictment. In Groce I, we
considered Groce's seventh assignment of error as it related to the first two of these
arguments and found the trial court did not err in imposing the sentence on those counts.
The sole remaining issue under this assignment of error on remand is whether the trial
court erred in imposing a separate one-year prison term on the firearm specification
attached to his conviction of engaging in a pattern of corrupt activity.
{¶ 16} An appellate court will not reverse a trial court's sentencing decision unless
the evidence is clear and convincing that either the record does not support the sentence or
that the sentence is contrary to law. State v. Chandler, 10th Dist. No. 04AP-895, 2005-
Ohio-1961, ¶ 10, citing State v. Maxwell, 10th Dist. No. 02AP-1271, 2004-Ohio-5660, ¶ 27,
citing State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, ¶ 10. See also State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Groce argues the trial court's imposition of a
separate one-year prison term on the firearm specification attached to his engaging in a
pattern of corrupt activity charge is contrary to law.
{¶ 17} Here, the jury found Groce guilty of firearm specifications under R.C.
2941.141(A), having a firearm on his person or under his control while committing the
offenses. Thus, R.C. 2929.14(B)(1)(a)(iii) mandates the sentencing court impose a one-year
prison term for the specifications unless R.C. 2929.14(B)(1)(b) applies. See State v. Moore,
154 Ohio St.3d 94, 2018-Ohio-3237, ¶ 8-9. Pursuant to R.C. 2929.14(B)(1)(b), the
sentencing court may not impose more than one sentence for multiple firearm
specifications if the underlying felonies with the attendant specifications arose from "the
same act or transaction."
{¶ 18} Groce maintains that his conviction of engaging in a pattern of corrupt
activity necessarily arose from the same act or transaction as the underlying drug trafficking
and possession felonies since the state relied on those underlying offenses to constitute the
No. 18AP-51 12
pattern of corrupt activity. However, the Supreme Court has explained that although a
conviction of engaging in a pattern of corrupt activity is dependent upon the commission
of predicate acts, the engaging in a pattern of corrupt activity charge also addresses the
defendant's additional conduct of association with the enterprise and participation in
conduct in furtherance of the enterprise. Miranda at ¶ 13 ("the conduct required to commit
a RICO violation is independent of the conduct required to commit" the underlying
predicate offenses); State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, ¶ 5. See also State
v. Christian, 2d Dist. No. 25256, 2016-Ohio-516, ¶ 35 ("[t]he argument that predicate
offenses should be merged with a conviction for engaging in a pattern of corrupt activity
has been consistently rejected by Ohio courts, on the basis that 'a RICO violation is a
discrete offense that can be prosecuted and punished separately from its underlying
predicate offenses"). Thus, we do not agree with Groce that the firearm specification
attached to his conviction of engaging in a pattern of corrupt activity arose from the same
act or transaction as the underlying drug trafficking and possession offenses.
{¶ 19} As the trial court did not err in imposing a separate one-year sentence on the
firearm specification attached to Groce's conviction of engaging in a pattern of corrupt
activity, we overrule the remaining portion of Groce's seventh assignment of error.
VI. Disposition
{¶ 20} Based on the foregoing reasons, the prosecutor's statements did not deprive
Groce of a fair trial, Groce did not receive the ineffective assistance of counsel, and the trial
court did not err in imposing Groce's sentence. Having overruled the remaining portions
of Groce's fourth, fifth, and seventh assignments of error that we deemed moot in Groce I,
and in accordance with the Supreme Court of Ohio's decision in Groce II, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and BROWN, J., concur.