State v. Groves , 2022 Ohio 442 ( 2022 )

[Cite as State v. Groves, 2022-Ohio-442.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 20CA3902
v. :
DANIEL A. GROVES, SR., : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Richard E. Wolfson, Portsmouth, Ohio for appellant.1
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S.
Willis, Assistant Scioto County Prosecuting Attorney, Portsmouth,
Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:2-8-22
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court
judgment of conviction and sentence. A jury found Daniel Groves,
Sr., defendant below and appellant herein, guilty of: (1) murder,
(2) kidnapping, (3) child endangerment, (4) tampering with
evidence, (5) interference with custody, (6) gross abuse of a
corpse, and (7) four counts of second-degree felonious assault.
{¶2} Appellant raises the following assignments of error for
1
Different counsel represented appellant during the trial
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review:
FIRST ASSIGNMENT OF ERROR:
“APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL UNDER THE FIFTH, SIXTH, AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION DEPRIVING HIM OF A FAIR TRIAL, THE
OUTCOME OF WHICH WOULD HAVE BEEN DIFFERENT BUT
FOR TRIAL COUNSEL’S CUMULATIVE DEFICIENCIES AND
THE PREJUDICE CAUSED.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PLAIN ERROR BY
FAILING TO PROVIDE THE JURY THE CAUTIONARY
INSTRUCTION AT R.C. 2923.03(D) THAT HAD IT BEEN
GIVEN, WOULD HAVE RESULTED IN A DIFFERENT
OUTCOME.”
{¶3} On June 14, 2019, a Scioto County Grand Jury returned an
indictment that charged appellant with multiple, serious felony
offenses.2
court proceedings.
2
The Scioto County Grand Jury returned an indictment that
charged appellant with the following eleven counts: Count 1 -
aggravated murder, in violation of R.C. 2903.01(C), an unspecified
felony; Count 2 - murder, in violation of R.C. 2903.02(B), an
unspecified felony; Count 3 - kidnapping, in violation of R.C.
2905.01(A)(5), a first-degree felony; Count 4 - endangering
children, in violation of R.C. 2919.22(A), a third-degree felony;
Count 5 - tampering with evidence, in violation of R.C.
2921.12(A)(1), a third-degree felony; Count 6 - interference with
custody, in violation of R.C. 2919.23(A)(1), a fourth-degree
felony; Count 7 - gross abuse of a corpse, in violation of R.C.
2927.01(B), a fifth-degree felony; Count 8 - felonious assault, in
violation of R.C. 2903.11(A)(1), a second-degree felony; Count 9 -
felonious assault, in violation of R.C. 2903.11(A)(1), a second-
degree felony; Count 10 - felonious assault, in violation of R.C.
SCIOTO, 20CA3902 3
On June 17, 2019, appellant pleaded not guilty to the charges set
forth in the indictment. Jessica Groves (appellant’s spouse, co-
defendant and victim Dylan Groves’ birth mother) initially pleaded
not guilty by reason of insanity, but after the trial court found
her competent, she pleaded not guilty on September 24, 2019.
{¶4} On January 6, 2020, a five-day joint jury trial began
with both co-defendants present. Registered Nurse Darienne Liles
worked at Southern Ohio Medical Center (SOMC) on January 10, 2019
when appellant and Jessica Groves (hereinafter Groves) arrived at
the hospital at 5:25 a.m. Liles testified that Groves appeared to
be “flat, disconnected and uncooperative,” refused to provide a
urine sample, and refused to answer questions about prenatal care.
Groves was completely dilated, but “not in pain, * * * very unusual
for somebody who we’ve not administered pain medicine to.” Moments
before the baby’s birth, appellant stated that Groves “had used
heroin two days ago.”
{¶5} SOMC staff eventually obtained Groves’ urine sample that
tested positive for amphetamines. Approximately 30 minutes after
Groves entered the hospital, she delivered Baby Dylan (Dylan).
2903.11(A)(1), a second-degree felony; and Count 11 - felonious
assault, in violation of R.C. 2903.11(A)(1), a second-degree
felony.
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Nurse Liles testified that appellant “seemed worried and almost
afraid.” “Whenever we were questioning her they were both just
making * * * eye contact with each other, not acting like they were
paying much attention to us.” “The only thing [appellant] said was
that she [Groves] had used heroin that she was always too high to
go to her prenatal care visits.” * * * “[W]e thought he was almost
looking to [Groves] for permission to answer our questions. I
could feel a couple of times he wanted to say things or answer and
he did not.” Liles testified that neither Groves nor appellant
requested to see Dylan after his birth.
{¶6} Registered Nurse Tori Howell cares for newborns in the
SOMC nursery. Howell testified that because Dylan, born
approximately one month early, had difficulty breathing, they
removed him to the nursery. Howell also testified that (1) Dylan’s
preliminary screen showed “unconfirmed positive” for amphetamines,
and (2) the umbilical cord tested positive for amphetamines,
methamphetamines, fentanyl, opiates, and morphine. Also, while
Dylan was in the nursery for several days, appellant visited once
and neither parent asked about Dylan’s condition.
{¶7} SOMC Obstetrician-Gynecologist Dr. Darren Adams was on
call when Groves and appellant arrived at the hospital. The
hospital called Dr. Adams because Groves had no prenatal care and
was ready to deliver. When Dr. Adams arrived, Groves, dilated at
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nine and one half centimeters, appeared distant and did not answer
questions. Dr. Adams believed Groves might have been impaired
because, typically, a mother that far dilated with no pain
medication would be in extreme pain, but “she was just distant, an
- - an odd reaction.” Dr. Adams delivered Dylan within minutes and
he weighed 5 pounds, 10 ounces, and was 19 inches long. Later that
day, Dr. Adams returned to care for Groves’ postpartum hemorrhage.
{¶8} Assistant Nurse Manager Stacey Riffitt testified that
Jessica Groves kept Dylan for 15 minutes after his birth and
“didn’t hold him. She didn’t ask how his condition was. She just
said, ‘Put him there on the wall.’” Also, Dylan was diagnosed
with neonatal abstinence syndrome, meaning that he had been exposed
to drugs in utero and was in withdrawal. Dylan had tremors, could
not quiet himself, and needed to be comforted. Riffitt explained
that an umbilical cord test shows “every substance the mother used
from 20 weeks gestation on.” Riffitt also testified that Dylan
required oxygen treatment immediately after birth, but they weaned
him from the oxygen treatment within 90 minutes and otherwise he
appeared to be “very healthy” with no injuries.
{¶9} When Nurse Riffitt spoke with appellant in Groves’
hospital room, appellant told Riffitt that he had “just talked with
the physician and asked if meth could be found in heroin.”
Appellant also told Riffitt that Groves, a nurse, used heroin and,
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after she learned of her pregnancy, she continued to use heroin,
“enough to keep the withdrawal symptoms from happening to her.”
Riffitt later returned to the room and appellant’s eyes “looked a
little more glassy. He would not make eye contact with me. His
speech was slow.” Riffitt believed appellant was under the
influence of something. Riffitt further testified that, after
Dylan stayed at the hospital for five days to monitor drug
withdrawal symptoms, the hospital discharged Dylan to Scioto County
Children’s Services (SCCS).
{¶10} SOMC Social Worker Christine Procter Frantz testified
that Dylan’s initial discharge plan permitted him to go home with
appellant due to appellant’s negative drug screen, and because
appellant told SCCS he did not know about Groves’ drug use during
pregnancy. Frantz also stated that, although SCCS considered the
unconfirmed positive not to be a true positive, the hospital
disagreed and sought to keep Dylan until they received the
umbilical cord test results “because with mom and baby both being
positive it should be an automatic removal.”
{¶11} SOMC Social Work Services Manager Mandy Burchett
testified that the hospital received the cord toxicology results on
January 15, 2019 and learned that Dylan would be discharged to
foster care.
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{¶12} On January 16, 2019, SCCS filed a complaint in the
juvenile court and alleged Dylan (age six days), and appellant’s
other child, Daniel, Jr. (age 14), to be abused, neglected and
dependent. SCCS sought an ex parte order to place Dylan in SCCS
custody and Daniel, Jr. under an order of protective supervision.
{¶13} On January 16, 2019, the juvenile court awarded Dylan’s
custody to SCCS and on January 28, 2019, the court further ordered:
(1) the children remain in SCCS custody, (2) Groves complete a drug
abuse evaluation and follow all recommendations, and (3) Groves
report to juvenile court and complete an assessment to participate
in the Family Reunification Court.
{¶14} After foster parent and elementary school teacher Andrea
Bowling received a call to ask her to foster parent a drug-
dependent infant, she took physical custody of Dylan. Bowling
observed Dylan’s tremors, sweats and his desire to be held at all
times. Also, during visitation with Dylan’s parents at SCCS,
Bowling believed a “possibility that Groves may have been under the
influence of something.” When Dylan reunited with his parents on
January 28, 2019, Bowling gave appellant diapers, supplies, and a
letter with Bowling’s contact information and statement that she
would be available if the parents needed anything. After the
family visitation, Bowling also called SCCS about her concerns with
Groves’ demeanor.
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{¶15} Scioto County Help Me Grow Service Coordinator Stephanie
Jenkins administers an Early Intervention Program. In this
program, staff will (1) conduct home visits to screen and monitor a
child’s progress, (2) assist parents to understand developmental
milestones, and (3) work directly with children, and (4) refer a
family to other programs, including WIC, Head Start, medical cards,
food stamps, therapies and transportation. After Jenkins received
a January 25, 2019 referral, she made multiple attempts, from
January to March, to contact Dylan’s parents. However, on March
11, 2019 Help Me Grow terminated the parents from the program
because of their lack of a response.
{¶16} SCCS Caseworker Patricia Craft, who served as Dylan’s
caseworker, testified that, after Dylan’s removal from Groves’
custody and the juvenile court’s emergency order that awarded
custody to SCCS, foster parent Andrea Bowling took physical custody
of Dylan. A safety plan identified Groves’ substance abuse as a
threat, and required her to (1) sign a release form, (2) obtain a
drug and alcohol assessment, (3) submit to weekly contact and drug
treatment, (4) remain outside the home unless supervised, and (5)
submit to supervised visits.
{¶17} Caseworker Craft testified that she first met Dylan’s
parents on January 25, 2019 at a family team meeting. Participants
at the meeting included Caseworker Johnson, Andrea Bowling, Groves
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and appellant. At that time, Daniel, Jr. remained in appellant’s
custody. Appellant also informed Craft that he had a six-month
leave from his employment at Rural King. SCCS informed both
parents that they should complete drug and alcohol assessments,
participate in individual counseling, and comply with court orders.
Immediately after the team meeting, the parents had a one-hour
visit with Dylan. Afterward, Bowling told Craft that she thought
Groves was “loopy” and “on drugs.”
{¶18} Caseworker Craft further explained that, because
appellant had no violent criminal history and no prior SCCS
involvement, SCCS policy provided that Dylan should be returned to
appellant if he could successfully pass another drug screen.
Interestingly, although appellant’s drug screen tested clean,
neither Craft nor anyone else directly observed appellant during
the drug screen process.
{¶19} SCCS returned Dylan to appellant on January 28, 2019. At
the February 4, 2019 home visit, Caseworker Craft observed that
Dylan appeared to be quiet and exhibited no visible injuries.
Additionally, Jessica Groves was in treatment and SCCS required her
to attend treatment “until further notice” and to continue to
report to drug court.
{¶20} Between February 4 and 21, 2019, Caseworker Craft made
multiple phone attempts to contact appellant. Craft and another
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caseworker visited appellant’s home, but found no one. Craft then
visited Daniel, Jr.’s school and gave him a note to ask appellant
to call Craft. Craft also left notes in appellant’s door and
mailbox and, on February 21, 2019, visited appellant’s residence.
During this attempted visit, Craft observed Daniel, Jr. exit his
school bus and enter the home. Craft also noticed two dogs and a
chain with a “No Trespassing” sign, but did not see cars. The next
day, Craft returned to appellant’s home, but did not see cars.
{¶21} On February 25, 2019, Caseworker Craft completed her
monthly home visit and observed that Dylan appeared to be clean,
appropriately dressed, and displayed no visible injuries.
According to appellant, Dylan had recently visited the doctor,
weighed 8 pounds, 9 ounces, and was 22 inches long. Appellant also
told Craft that Jessica Groves stayed at the residence only during
the day, but Craft could not verify this information.
{¶22} At the time of the next monthly scheduled home visit on
March 18, 2019, appellant told Caseworker Craft that he was in
Canton visiting his ill father. At the rescheduled March 21, 2019
visit, Craft found no one home. After she returned to her office,
Craft received appellant’s voicemail that said he was in Canton
with his father.
{¶23} At the March 27, 2019 juvenile court hearing, Groves
appeared at the hearing, but appellant did not. The juvenile court
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adjudicated the children to be abused, neglected and dependent,
pointed out that Groves did not complete her drug treatment
program, and concluded that Dylan’s best interests required him to
remain in SCCS custody pending disposition.
{¶24} At the March 28, 2019 home visit, Caseworker Craft
interacted with appellant, Groves and Dylan. Although Craft did
not inquire why appellant did not attend the March 27, 2019
adjudication, she did observe Groves feed Dylan. Also, Craft did
not observe any injuries to Dylan. When both parents told Craft
they had kept all appointments and asked Craft whether Groves could
return home, Craft said she would ask her supervisor. Craft also
reminded them about the April 3, 2019 court hearing and her next
monthly home visit on April 9, 2019.
{¶25} On April 3, 2019, appellant texted Caseworker Craft and
said that, although he and Groves had been ill, they drove to
Canton to visit appellant’s father when their car broke down and
they became stranded. On April 17, 2019, Craft unsuccessfully
attempted to inform appellant that the guardian ad litem wanted to
visit their home and Craft’s next home visit would be April 24,
2019. At this point, because appellant had texted Craft from four
different numbers, she and the guardian ad litem attempted to
contact appellant using all four numbers. Further, Craft learned
that, since February 8, 2019, Groves had not complied with her
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individual therapy visits and she last attended a group session on
March 26, 2019.
{¶26} At the April 18, 2019 juvenile court hearing, appellant’s
attorney, Groves’ attorney, Caseworker Craft, and the SCCS attorney
all attended, but appellant and Groves did not. At the conclusion
of the hearing, the juvenile court ordered Dylan to remain with
SCCS.
{¶27} On April 19, 2019, Caseworker Craft again visited
appellant’s home, knocked on the door for several minutes, then
left cards in the door and mailbox to ask appellant to call. Craft
also contacted Rural King because she thought appellant could be at
work, but Rural King informed her that appellant quit his job in
2018. That same day, appellant texted Craft and said he was still
“up north” and a friend watches his home when he is away.
Appellant also told Craft that Dylan is “doing great. Growing like
a weed. LOL.” Because of car trouble, appellant said his uncle
could bring him home Monday or Tuesday and he would contact Craft.
{¶28} Caseworker Craft continued to attempt to contact Dylan’s
parents on April 19, 22, 23, and 24, 2019. Craft also visited
school to talk with Daniel, Jr., who appeared to be nervous, but
told her that Dylan was fine. When Craft asked if Groves stayed at
their home, first Daniel, Jr. said, “yes,” then he said
“occasionally.” When asked about his ill grandfather in Canton,
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Daniel, Jr. replied “Who was that?”
{¶29} On April 24, 2019, SCCS took custody of Daniel, Jr. and
placed him with an aunt and uncle. Shortly thereafter, Caseworker
Craft received appellant’s text that asked why Daniel, Jr. did not
come home from school. Craft then visited appellant’s home, and
because of the parked cars, assumed everyone to be home, but
received no answer. Craft then texted appellant and told him to
bring Dylan, along with the children’s personal items, to the
agency the next day. Appellant said he would do so, but did not.
On April 25, 2019, the juvenile court continued protective
supervision of Daniel, Jr., and continued Dylan’s temporary custody
with SCCS.
{¶30} On April 30, 2019, Caseworker Craft filed a missing
person report with the Scioto County Sheriff’s Department. Craft
continued to communicate with appellant and, on May 3, 2019,
visited the residence, along with another caseworker and a deputy
sheriff. On May 7, 2019, Craft returned to the residence and
observed all vehicles present. On May 15, 2019, SCCS visited the
residence and noted one missing vehicle. On May 23, 31, and June
7, 2019, SCCS attempted additional home visits, but to no avail.
Craft testified that other agencies, including the juvenile court
and Care Source, searched for appellant.
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{¶31} On June 10, 2019, Caseworker Craft learned that law
enforcement had arrested both appellant and Groves and “Jessica and
Daniel was [sic.] telling them that I came several months ago and
took the child.” Craft, however, testified that she last observed
Dylan on March 28, 2019. Craft also conceded on cross-examination
that SCCS did not issue an Amber Alert because a supervisor
believed that, if an Amber Alert goes out, it “would give a bad
reputation for the agency because we lost a child.”
{¶32} Pediatrician Dr. Mohammad Ali first observed Dylan at the
hospital soon after his birth, then a few times at his office. Dr.
Ali testified that Dylan stayed at the hospital longer than normal
due to drug withdrawal symptoms. On January 16, 2019, Dr. Ali
observed Dylan in his office for a well-newborn check and Dylan’s
foster parent stated that he sneezed, perspired excessively, had
tremors, but otherwise appeared to be well. Dr. Ali learned about
the abnormal newborn 17-hydroxy progesterone screening, that
indicated elevated risk for congenital adrenal hyperplasia, but
Dylan’s care transferred to a different pediatric practice and
miscommunication occurred about whether the screening had been
repeated. Dr. Ali also testified that, although he did not know
whether the screening had been repeated, this abnormality would not
cause bone fractures, bruising or swelling of the head.
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{¶33} Christ Care Pediatrics Pediatrician Dr. Gregory Hudson
testified he first observed Dylan on February 7, 2019. Dr. Hudson
discussed the abnormal 17-hydroxy progesterone screening and
ordered additional lab work to recheck the abnormal panel. As
instructed, Groves and appellant returned to Dr. Hudson’s office on
February 21, 2019 when Dr. Hudson learned that Groves had completed
all but one lab test. Because Dr. Hudson was not the attending
pediatrician at Dylan’s birth, and he did not know that the
hospital had completed a 17-hydroxy progesterone test, Dr. Hudson
ordered another test. Although Dylan exhibited no injuries at his
February 21, 2019 office visit, he did weigh on the low end of
normal. Consequently, Dr. Hudson scheduled a March 7, 2019 return
visit. Groves, however, did not return with Dylan.
{¶34} Dr. Hudson further explained that, due to the testing
mix-up, his office sent two letters to Groves to indicate the
importance of another test and threatened that, if they did not
repeat the screening, “they will involve Children’s Protective
Services.” In addition to the letters, his office called appellant
and Groves, but received no response. Dr. Hudson further testified
that in his 30 years of experience, he had never observed a two to
three month old baby fracture his own skull, ribs, arms or legs.
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{¶35} Mahajan Therapeutics Therapist Jessica Byrd testified
that SCCS referred Jessica Groves to their facility for assessment
and treatment. Groves completed her drug and mental health
assessments on January 18, 2019, attended an individual therapy
session on February 8, 2019, and submitted to several supervised
drug screens. However, after February 8, 2019, Groves became “very
inconsistent and eventually then just totally stopped coming.”
Byrd also contacted SCCS on February 14, 15, 22, 27, March 1, and
April 2, 2019 about Groves’ noncompliance. Apparently, Groves
attended one group counseling session on March 26, 2019, but was “a
little bit different. * * * she was very defensive. It seemed like
she was edgy, a little angry, just upset that Children’s Services
like wasn’t letting her husband just be with the baby.” Byrd also
suspected Groves was under the influence of drugs or alcohol at her
March 26, 2019 session.
{¶36} Scioto County Juvenile Court Intake Officer and
Investigator Greg Dunham testified that, after SCCS removed Dylan,
the juvenile court ordered Jessica Groves to report to Dunham twice
per month. Dunham met with Groves on January 24, 2019, reviewed
her requirements and completed a drug court assessment. Groves,
however, missed three report dates and did not appear until March
28, 2019 when she told Dunham that she missed appointments because
SCIOTO, 20CA3902 17
she had no transportation. Dunham also visited the Groves
residence on May 31, June 3, June 4, June 5, and June 10, 2019, but
could not locate Groves.
{¶37} Scioto County Sheriff’s Captain John Murphy visited the
Groves home on May 20, 2019 and attempted to locate Dylan, but the
driveway had been “cabled off” with motion detectors. Murphy did
hear dogs inside the mobile home, but did not see anyone. When
Murphy began to leave, he spoke with a neighbor who told him “they
[the Groves] leave early morning hours and they come back late at
night. They’re usually on a four-wheeler riding up and down the
roadway.” During this conversation, Murphy observed Groves and
appellant riding atop a four-wheeler. Murphy did attempt to stop
them, but appellant “took off through a field and I gave chase
through the grassy field, and they hit the woods and we could not
pursue any further.”
{¶38} Scioto County Sheriff’s Detective Adam Giles testified he
secured a search warrant on June 10, 2019 and visited the Groves
home, along with other officers. After officers surrounded the
home, they knocked on the door and asked the occupants to exit.
Approximately 15 to 20 minutes later, Groves exited, screamed,
cursed and informed officers that SCCS had already taken Dylan.
Groves, however, would not answer whether appellant remained inside
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the home. When appellant did not exit, officers sent a robot into
the home. Eventually, officers apprehended appellant and he told
them he had “been asleep the whole time.” When Giles asked about
Dylan, appellant said that SCCS had already taken him.
{¶39} Otway Volunteer Fire Department firefighters Steven
Gambill and Dan Shirey testified that the department used a truck
and chain saws to access a logging road to search a well, but the
water level prevented a search. Instead, they dropped a hook into
the well and retrieved two milk crates connected with a heavy
padlocked chain. Montgomery County Coroner’s Office Forensic
Pathologist Dr. Susan Brown received Dylan’s body in two milk
crates, connected with a chain and “three padlocks * * * 12 zip
ties, and * * * eight metal wires * * * [and] 18 large rocks.”
Dylan had been “wrapped in multiple layers of plastic and around
all of this plastic is this iron anchor type device.” Dr. Brown
testified that Dylan’s body exhibited: (1) skull fractures (that
did not occur simultaneously), (2) bruises on right side of chest
and left leg, (3) laceration on left arm, (4) fractures of the left
humerus or the upper arm bone * * * and * * * fracture of the left
radius and ulna, the bones of the left forearm, (5) fractures of
left tibia, and (6) on sixth rib an “old healing fracture, and the
same thing on rib seven next to it, a large nodular area, which is
SCIOTO, 20CA3902 19
a healing old fracture, left rib six and seven.” The examination
further revealed that the rib fractures did not occur at the same
time as the other fractures. Dr. Brown testified that Dylan’s
“cause of death is homicidal violence of undetermined etiology.”
She explained Dylan had been a victim of blunt force trauma, but
the “specific cause of death can’t be determined because a typical
exam could not be performed because his body was decomposing from
being concealed in - - in water for months.” Dr. Brown also
believed the fractures showed at least three different traumas. At
June 13, 2019 autopsy, Dylan weighed four pounds and eight ounces,
when he had weighed 7 pounds and 15 ounces on February 21, 2019.
Furthermore, toxicology reports detected methamphetamine and
amphetamine in Dylan’s liver.
{¶40} Scioto County Sheriff’s Detective Jodi Conkel interviewed
Groves after her arrest and described her as “very standoffish,
cold, didn’t really want to talk to me, kind of annoyed.” Groves
told Conkel that SCCS had taken Dylan and Daniel, Jr., and that she
did not use illegal drugs. Later that day, Conkel interviewed
appellant who also maintained that SCCS had taken Dylan. Conkel
stated that appellant appeared to be “dope sick,” which he did
admit to Conkel. Appellant later told Conkel that he found Dylan
in his crib deceased.
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{¶41} On June 12, 2019, Detective Conkel interviewed Jessica
Groves and appellant. During this conversation, appellant admitted
that he knew that SCCS did not take Dylan. The Sheriff’s Office
also accommodated appellant’s request to talk to Groves, and a
video recording of their jail conversation revealed additional
information:
DEFENDANT D. GROVES: When they took me out there
yesterday - - wanted me to take them where he was at, and
I took them - - some bullshit place because - - don’t
tell them where he is because if they find his body - -
DEFENDANT J. GROVES: (Inaudible).
DEFENDANT D. GROVES: If they find his body and if they
find out where he had a broken arm and shit, we’re
fucked. It don’t matter.
DEFENDANT J. GROVES: They don’t know where he’s at. I
don’t know where he’s at.
At some point, appellant agreed to take authorities to Dylan’s
body. Detective Conkel also testified about a calendar found in
the mobile home with a notation “Worse [sic.] day ever” on April
24, 2019, the date SCCS removed Daniel, Jr.
{¶42} Daniel, Jr., the co-defendants’ 15-year old son,
testified he first found out about his mother’s pregnancy
“somewhere around in November” 2018. Before Daniel, Jr.’s April
24, 2019 removal from the home, Daniel, Jr. observed bruising and
swelling on Dylan’s head and, when he asked his parents what
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happened, appellant told him “about him getting a - - like a dream
catcher stuck within his arm and him swinging a small tiny stone up
to his head. I’m not sure if that caused the injury - - the
swelling of his head. I don’t believe it was.” Daniel, Jr. also
testified that every couple of months, he provided his urine to
appellant, both before and after Dylan’s birth, and appellant then
put the urine in a capped lid bottle.
{¶43} At the close of the state’s case-in-chief, the trial
court conducted a lengthy and thorough discussion with the co-
defendants. The court informed them about their right to testify
or not to testify, and the consequences of either choice, including
cross-examination about prior criminal offenses. After both co-
defendants informed the court that they wished to testify, Groves
testified as follows:
Q [Jessica’s Counsel Mr. Stratton]: Jessica, did you, and
you only, cause the death of your son, Dylan Groves?
A: Yes.
Q: Did Daniel Groves participate in the killing of Dylan?
A: No.
Q: Was Daniel Groves aware of any of the injuries that
you caused Dylan that may have led to his death?
A: No.
Q: Did you hide all the injuries that you caused Dylan
from your husband?
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A: Yes.
* * *
Q: Jessica Groves, the injuries that Dylan sustained
happened on what date?
A: On March 27th.
Q: Dylan died on what date?
A: March 28th.
* * *
Q: Where did you take Dylan after he died?
A: He was at our house for a couple days.
Q: And then where did you take him?
A: To the well.
Q: Did you murder Dylan Groves?
A: Not intentionally.
{¶44} On cross-examination, the state asked Jessica Groves how
she caused Dylan’s death, to which she replied, “[i]t was an
accident.” When asked about the rib fractures, Groves replied “by
dropping him.” When asked about the skull fractures, she said “I
don’t remember. * * * It had to be from dropping him.” When asked
about the upper arm fracture, she replied “Nothing that I ever did
was intentional. * * * I have to live with this for the rest of my
life. * * * You have devoured my family.” When pressed for
SCIOTO, 20CA3902 23
details about how she caused Dylan’s death, she told the
prosecutor, “I’ve admitted to my guilt. * * * And I have to live
without - - my children. * * * I’m done talking to you.” At that
point, the trial court admonished Groves that she must submit to
cross-examination, or her testimony would be stricken. She then
responded to most questions “I don’t remember.” Eventually, Groves
did state that she did not have a clear mind “because of drugs,”
and that appellant, her co-defendant, participated only in the
preparation and concealment of Dylan’s body.
{¶45} After appellant testified about his prior shoplifting
conviction, he addressed facts in the case at bar and stated that
Jessica Groves first told him about her pregnancy in October or
November 2019. About five minutes into their trip to the hospital
for Dylan’s birth, Groves also told appellant that “she had been
using drugs and that she had not went to her [prenatal]
appointments.” According to appellant, he hesitated to answer
medical questions at the hospital because he had not processed what
he had just learned, and that Groves could be “intimidating.”
Appellant did say he visited Dylan once in the nursery and inquired
about his health. Appellant also claimed he was not impaired at
the hospital, but he may have given that appearance because he had
“been up for over 30 some hours straight.” Additionally, appellant
SCIOTO, 20CA3902 24
testified that he provided his own urine sample at the hospital,
but admitted that, on other occasions, he asked Daniel, Jr. for his
urine, but always for a friend to use for drug tests. Appellant
explained the reason he did not give his own urine to his friend is
because he “smoked some marijuana and occasionally would hit - -
smoke, you know a little.” Thus, appellant claimed he did not use
his son’s urine sample to fake his own drug test.
{¶46} Appellant also testified that he recalled seeing bruises
on Dylan’s head, but did not see swelling. Appellant believed that
Dylan’s head bruise resulted from an accident with a dream catcher,
and that the bruise appeared to be on Dylan’s forehead, not all
around his head. Appellant also testified he did not cause Dylan’s
death and was not present when Dylan died. Instead, appellant said
he found Dylan deceased in his crib. Appellant also said that,
after Groves told him SCCS would blame him for Dylan’s death
because he had custody, he became scared and lied to law
enforcement. Appellant did admit, however, that he told Detective
Conkel that he had “seen [sic] her [Groves] hit him probably four
times, probably,” * * * “because he wouldn’t stop crying and
because she was so * * * agitated and aggravated and if I brought
her coke [cocaine] she wouldn’t be that way.” Appellant also
admitted he told Conkel, “[o]ne time I saw her, she had a hold of
SCIOTO, 20CA3902 25
him like below his arms. * * * Like by his ribs or something and
she just kind of went ahh.” Appellant again said he did not tell
the truth because he feared “he would get the blame for it
completely.”
{¶47} After hearing the evidence, the jury found appellant not
guilty of aggravated murder, but guilty of: (1) murder, in
violation of R.C. 2903.02(B), an unclassified felony, (2)
kidnapping, in violation of R.C. 2905.01(A)(5), a first-degree
felony, (3) child endangerment, in violation of R.C. 2919.22(A), a
third-degree felony with a serious physical harm specification, (4)
tampering with evidence, in violation of R.C. 2921.12(A)(1), a
third-degree felony, (5) interference with custody, in violation of
R.C. 2919.23(A)(1), a fourth-degree felony with a physical harm
specification, (6) gross abuse of a corpse, in violation of R.C.
2927.01(B), a fifth-degree felony, and (7) four counts of felonious
assault, in violation of R.C. 2903.11(A)(2), second-degree
felonies.
{¶48} At that point, the trial court: (1) merged Count 2 murder
and Count 11 felonious assault, (2) merged Count 3 kidnapping and
Count 6 interference with custody, and (3) merged Count 8 felonious
assault and Count 10 felonious assault.
SCIOTO, 20CA3902 26
{¶49} For sentencing, the trial court imposed the following
prison sentences: (1) 15 years to life for Count 2 murder, (2) 10
years for Count 3 kidnapping, (3) 36 months for Count 4 endangering
children, (4) 36 months for Count 5 tampering with evidence, (5) 12
months for Count 7 gross abuse of a corpse, (6) eight years for
Count 8 felonious assault, and (7) eight years for Count 9
felonious assault. The court also ordered (1) the tampering and
abuse of a corpse sentences to be served concurrently with each
other, (2) the sentences in Counts 2, 3, 4, 6, 8, 9, 10, and 11 to
be served consecutively, and (3) a mandatory five-year post-release
control term.
{¶50} Consequently, the trial court sentenced appellant to
serve an aggregate prison term of 47 years to life. This appeal
followed.3
3
Co-defendant Jessica Groves’ appellate case number is
20CA3904. The jury found her guilty of: (1) aggravated murder in
violation of R.C. 2903.01(C), an unclassified felony, (2) murder in
violation of R.C. 2903.02(B), an unclassified felony, (3)
kidnapping in violation of R.C. 2905.01(A)(5), a first-degree
felony, (4) child endangerment in violation of R.C. 2919.22(A), a
third-degree felony with a serious physical harm specification, (5)
tampering with evidence in violation of R.C. 2921.12(A)(1), a
third-degree felony, (6) interference with custody in violation of
R.C. 2919.23(A)(1), a fourth-degree felony with a physical harm
specification, (7) gross abuse of a corpse in violation of R.C.
2927.01(B), a fifth-degree felony, and (8) four counts of felonious
assault in violation of R.C. 2903.11(A)(1), second-degree felonies.
SCIOTO, 20CA3902 27
I.
{¶51} In his first assignment of error, appellant asserts that
his trial counsel provided ineffective assistance of counsel under
the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
{¶52} In particular, appellant claims that, in light of trial
counsel’s knowledge about the state’s intention to prove
complicity, his counsel should not have relied on co-defendant
Jessica Groves and her counsel to provide testimony in their joint
trial to establish that she alone caused Dylan’s death. Appellant
contends these actions fell below an objective standard of
reasonable representation, violated essential duties, prejudiced
With respect to Jessica Groves, the trial court: (1) merged
Count 1 aggravated murder, Count 2 murder and Count 11 felonious
assault, (2) merged Count 3 kidnapping and Count 6 interference
with custody, and (3) merged Count 8 felonious assault and Count 10
felonious assault.
The trial court then imposed the following prison sentences
for Jessica Groves: (1) life without parole for Count 1 aggravated
murder, (2) ten years for Count 3 kidnapping, (3) 36 months for
Count 4 endangering children, (4) 36 months for Count 5 tampering
with evidence, (5) 12 months for Count 7 gross abuse of a corpse,
(6) eight years for Count 8 felonious assault, and (7) eight years
for Count 9 felonious assault. The court further ordered Counts 5
and 7 to be served concurrently, Count 1, 2, 3, 4, 6, 8, 9, 10, and
11 to be served consecutively, and a mandatory five-year post-
release control term.
Consequently, the trial court sentenced Jessica Groves,
appellant’s co-defendant, to serve an aggregate prison term of life
without parole, plus an additional 32 years.
SCIOTO, 20CA3902 28
appellant and resulted in a reasonable probability that the trial’s
outcome would have been different had counsel pursued an
independent defense. Furthermore, appellant argues that trial
counsel’s cumulative failures, including the failure to file a
written motion for a change of venue along with supporting
evidence, the failure to request a separate trial, the failure to
file a written motion for a separate sentencing hearing along with
facts in mitigation, and the failure to attend his co-defendant’s
competency hearing and obtain a copy of the evaluation report, all
caused him prejudice and denied him a fair trial.
A. Reliance on Co-defendant’s Counsel and on the
Co-defendant to Testify in Joint Trial
{¶53} Appellant asserts that his trial counsel, knowing that
the state intended to prove appellant’s complicity, improperly
relied on the strategy of a co-defendant and her counsel to testify
in their joint trial that she alone caused Dylan’s death.
Appellant contends that these actions, or inactions, fell below an
objective standard of reasonable representation, violated essential
duties to the appellant, prejudiced him, and resulted in a
reasonable probability that the outcome of his trial would have
SCIOTO, 20CA3902 29
been different had counsel pursued an independent defense.
{¶54} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provide that
defendants in all criminal proceedings shall have the assistance of
counsel for their defense. The United States Supreme Court has
generally interpreted this provision to mean that a criminal
defendant is entitled to the “reasonably effective assistance” of
counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
{¶55} To establish an ineffective assistance of counsel claim,
a defendant must show (1) counsel's deficient performance, and (2)
the deficient performance prejudiced the defense and deprived the
defendant of a fair trial. Id. at 687. To establish a deficient
performance, a defendant must prove that counsel's performance fell
below an objective level of reasonable representation. State v.
Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.
Additionally, courts need not analyze both Strickland test prongs
if a claim can be resolved under one prong. See State v. Madrigal,
87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v. Clark, 4th
Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 17; State v. Blair, 4th
Dist. Athens No. 18CA24, 2019-Ohio-2768, ¶ 58; State v. Bowling,
4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 12-13.
SCIOTO, 20CA3902 30
{¶56} When a court examines whether counsel's representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689, 466 U.S.
668, 104 S.Ct. 2052. Moreover, because a properly licensed
attorney is presumed to execute all duties ethically and
competently, State v. Taylor, 4th Dist. Washington No. 07CA11,
2008-Ohio-482, ¶ 10, to establish ineffectiveness a defendant must
demonstrate that counsel's errors were “so serious” that counsel
failed to function “as the ‘counsel’ guaranteed * * * by the Sixth
Amendment.” Strickland at 687, 466 U.S. 668, 104 S.Ct. 2052.
{¶57} In the case sub judice, appellant asserts that trial
counsel performed ineffectively in light of counsel’s underlying
trial strategy. Appellee, however, claims that both appellant and
his co-defendant explicitly agreed to this particular strategy, and
so informed the trial court on multiple occasions.
{¶58} Generally, a defendant has no right to determine
counsel’s trial tactics and strategy. State v. Cowans, 87 Ohio
St.3d 68, 72, 717 N.E.2d 298 (1999); State v. Conway, 108 Ohio
St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150. Rather, decisions
about viable defenses are the exclusive domain of defense counsel,
after consultation with the defendant. Id.; State v. Crank, 5th
SCIOTO, 20CA3902 31
Dist. Stark No. 2016CA00042, 2016-Ohio-7203, ¶ 18. “When there is
no demonstration counsel failed to research the facts or the law or
counsel was ignorant of a crucial defense, a reviewing court defers
to counsel’s judgment in the matter.” Crank at ¶ 18, citing State
v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).
{¶59} At trial, witness presentation, questioning and cross-
examination falls within the ambit of trial strategy. Debatable
trial tactics do not generally establish an ineffective assistance
of counsel claim. State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-
3430, 811 N.E.2d 48, ¶ 45. Further, “[e]ven if the wisdom of an
approach is questionable, ‘debatable trial tactics’ do not
constitute ineffective assistance of counsel. State v. Phillips,
74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995).
{¶60} Appellant cites State v. Burgins, 44 Ohio App.3d 158, 542
N.E.2d 707 (4th Dist.1988) to support his argument that his trial
counsel’s actions in the case at bar should not be viewed as
appropriate trial strategy. Convicted of theft, Burgins argued he
did not receive effective assistance of counsel when during closing
argument, counsel stated that he himself did not believe Burgins,
and that he fully expected the jury to find Burgins guilty. This
court held that, when a defendant’s counsel in a criminal case
tells the jury that counsel does not believe counsel’s own client,
SCIOTO, 20CA3902 32
and counsel also expects the jury to return a guilty verdict, the
defendant has been denied the effective assistance of counsel.
Although defense tactics, and even ineffective tactics, are usually
not considered grounds for reversal, when such a deviation from the
norm occurs that ordinary trial counsel would scoff at hearing of
it, a reviewing court may reverse a guilty verdict and order a new
trial.
{¶61} Appellee, however, points to State v. May, 1st Dist.
Hamilton No. C-070290, 2008-Ohio-1731. In May, the defendant had
been charged with both aggravated robbery and robbery, but after
counsel stipulated to May’s guilt on the robbery charge, the jury
found May guilty of robbery, but not guilty of aggravated robbery.
On appeal, although May argued he received ineffective assistance,
the First District held that unlike Burgins, nothing in the record
suggested that May had planned to maintain his innocence. May at ¶
9. Moreover, even if May’s attorney’s stipulations arguably
constituted error, because overwhelming evidence of guilt existed,
the trial’s outcome would not have changed even absent the
stipulation. Thus, the court concluded that no prejudice occurred.
Id. at ¶ 10.
{¶62} Appellee also points to State v. McGlone, 4th Dist.
Scioto No. 90CA1910, 1992 WL 50021 (Mar.11, 1992), when counsel
SCIOTO, 20CA3902 33
admitted guilt on a minor offense to make more credible his
proclamations of innocence on a more serious offenses. Appellee
contends that the case sub judice is more similar to May and
McGlone than Burgins because, although appellant’s co-defendant’s
counsel’s opening statement admitted the co-defendant’s guilt on
the charges of aggravated murder, murder, and felonious assault,
counsel did leave the remaining counts in question “with the
primary goal of attempting to exonerate Daniel Groves from the
Aggravated Murder, Murder, and Felonious Assault counts.” Appellee
thus contends that appellant’s strategy actually proved to be
successful because the jury did, in fact, find appellant not guilty
of aggravated murder. Additionally, as in May, nothing in the
record appears to suggest that appellant planned to maintain his
innocence. In fact, a review of the trial court proceeding
actually suggests the opposite - that appellant openly planned to
concede guilt for his participation in the concealment of Dylan’s
body.
{¶63} In the case at bar, appellant’s co-defendant’s counsel
gave opening statement as follows:
* * *
My client, Jessica Groves, was, and still is, a drug
addict. There is no doubt about that fact. She and she
alone, caused the injuries to Dylan Groves, which lead to
SCIOTO, 20CA3902 34
his death. She murdered Dylan Groves. She will testify
that she murdered Dylan Groves. She will testify to the
injuries that she caused to Dylan Groves. The two inch
fracture on the skull, the one inch fracture on the
skull, the half inch laceration on the left arm, fracture
of the left humerus, fracture of the left radius and
ulna, red contusion on the right side of the chest,
healed rib fractures and the drugs in Baby Dylan’s
system, these are the injuries caused to Dylan Groves by
Jessica Groves.
Finally, you might ask why put everybody through this
ordeal? Why put everybody through this trauma? The
answer is because she’s going to do the right thing right
now. And that right thing is to take personal
responsibility for her crimes and sins. And that right
thing also is to protect and defend an innocent man.
* * * Daniel Groves had nothing to do with the death of
Dylan Groves, and he did not cause these injuries. He
was foolishly unaware of these injuries. And I say
foolishly because hindsight is always 20/20, and
sometimes you’re oblivious to what’s going on. This is
especially true for someone that you have loved.
Dylan Groves died on March 28th, and Daniel found him
unresponsive. Once he found him panic and confusion set
in. And with that panic and confusion came poor decision
and that we saw - saw here today. Did he help hide the
body? Yes. Did he suggest the well? Yes. He knew
where this well was. Did he help craft the coffin and
preserve Dylan? Yes he did. But that is all he did.
Jessica Groves is the person responsible for the death of
Dylan Groves. She is here in front of you today taking
personal responsibility for her crimes, and her sins.
Thank you, Your Honor.
Appellant’s counsel’s gave opening statement as follows:
* * *
[W]e would argue and support that position in this matter
SCIOTO, 20CA3902 35
that Ms. Groves is the principal perpetrator in this
matter, and this is - - and the position that has
actually been held by the State in this case since this
case was arraigned right here in this courtroom.
* * *
That will be the position that Mr. Groves will hold.
That is the position that actually Jessica Groves is
going to own in this matter, as you’ve heard from the
opening statement.
* * *
Ladies and Gentlemen, you heard my co-counsel in this
matter the - - Mr. Stratton, who’s representing Mrs.
Groves talk about how my client participated in helping
her dispose the body. You heard Ms. Hutchinson set up
here and tell you that my client actually after some
misconception that he did lead the law enforcement agency
to the recovery of Dylan’s body. But that’s it, Ladies
and Gentlemen, he only helped dispose of the body. He
did eventually cooperate with the police, because he
couldn’t lie about it anymore.
* * *
And I believe you will hear law enforcement come in and
talk to you about that.
He led them to where Dylan had been placed. He did not
cause the - - his death. He never kidnapped him. He
never caused his death. He ever [sic.] endangered him.
He never interfered with custody. He never caused harm
to this child. He cannot be the source of felonious
assault that he has also been charged with. And that’s
what I want you to listen for. Either that’s going to be
proven or not proven throughout this case. And it is our
position that that will not be proven by the State. That
will be accounted for by the actions of Jessica Groves,
and she is going to own all of those actions and she will
tell you in her own words, or we anticipate her telling
you in her own words, how - - whether you call it my
SCIOTO, 20CA3902 36
client was blind, whether you call it that he was
foolishly unaware as Mr. Stratton pointed out, he may
have been, Ladies and Gentlemen, but he had no knowledge.
He had no participation. And he was not the source of
the injuries that resulted in Dylan’s death.
{¶64} After appellant’s co-defendant’s counsel’s opening
statement and admission that appellant’s co-defendant alone caused
Dylan’s death, and acknowledgment that appellant did not
participate or cause Dylan’s death, the following exchange
occurred:
THE COURT: Ms. Groves, you’ve heard your lawyers opening
statement in this matter; is that correct?
DEFENDANT J. GROVES: Yes, Your Honor.
THE COURT: All right. We had some discussions this
morning about your ultimate defense strategy in this
matter. Was that consistent with your strategy as you
intend to present your defense in this matter?
DEFENDANT J. GROVES: Yes, Your Honor.
THE COURT: All right. Have you had plenty of opportunity
to consult with him about this strategy?
DEFENDANT J. GROVES: Yes, I have, Your Honor.
THE COURT: You understand that the State still has to
prove their case in this matter, regardless of his
opening statement? But do you understand that
potentially that - - at least in some respects in this -
- Some count of this indictment could - - could harm your
changes as to an ultimate outcome. Do you understand
that?
DEFENDANT J. GROVES: Yes, sir.
SCIOTO, 20CA3902 37
THE COURT: And you’ve contemplated this before you’ve
proceeded with this strategy; is that correct?
DEFENDANT J. GROVES: Yes, sir.
{¶65} As the appellee further points out, appellant concedes
that his trial counsel used “a strategy asked for by the Groves for
counsel to ‘work together,’” but now, on appeal, appellant argues
that the “work together” strategy caused him prejudice.
{¶66} Initially, we observe that in the case sub judice, the
trial court openly, fully and repeatedly discussed this particular
trial strategy with appellant and his co-defendant. The court
questioned appellant and his co-defendant regarding their
satisfaction with counsel, their ability to communicate with
counsel, their opportunity to view discovery and the evidence
against them, and their opportunity to discuss their cases with
their counsel. In fact, the court addressed these issues multiple
times at multiple pre-trial hearings on August 1, August 28,
October 30, and December 18, 2019. Further, at the start of the
trial, appellant’s co-defendant’s counsel stated, “My client has
indicated to me that she intends to testify and that my opening
statement and the statements through questioning will have to do
with that testifying, and that she wants me to proceed
accordingly.” Once again, the trial court thoroughly discussed
SCIOTO, 20CA3902 38
with appellant and his co-defendant their decision to testify,
including whether they understood their right to testify or not to
testify, and their right to change their decision if they so
desire.
{¶67} Moreover, before appellant’s co-defendant took the stand,
she again indicated that she understood the ramifications of her
testimony. The trial court asked appellant’s co-defendant if she
recalled prior discussions about whether to try the cases together
or separately, and the court referenced an earlier Bruton
discussion and asked appellant’s co-defendant:
Do you understand that if - - if you do testify in this
matter, and I can tell you I - - I’m not trying to
influence you one way or the other. This is solely your
decision. But do you understand that if you do choose to
testify then some of those statements that the State is
indicating that they would not be using in this trial may
then come into evidence? Do you understand that?
After appellant’s co-defendant indicated that she did understand
the ramifications of her decision, the trial court asked appellant
if he understood these matters and that his prior conviction could
be used at trial if he decided to testify. Appellant indicated
that he did so understand. The court also reiterated that the co-
defendants could change their decision about whether to testify.
The court also asked appellant’s co-defendant if she believed that
she had sufficient information to make her decision, to which she
SCIOTO, 20CA3902 39
replied that she did.
{¶68} Consequently, in the case sub judice appellant’s trial
counsel’s strategic decision to agree with appellant’s co-
defendant’s counsel’s strategic decision to have appellant’s co-
defendant admit guilt in an attempt to exonerate appellant from the
murder charge may arguably be viewed, in hindsight, as
questionable, but counsel is, within reason, tasked with following
his or her client’s wishes. Generally, attorneys who defer to a
client’s wishes or directives do not render ineffective assistance.
State v. Reine, 4th Dist. Scioto No. 06CA3102, 2007-Ohio-7221,
citing State v. Roberts, 110 Ohio St.3d 71, 2005-Ohio-3665, 850
N.E.2d 1168, ¶ 148; State v Monroe, 105 Ohio St.3d 384, 2005-Ohio-
2282, 827 N.E.2d 285, ¶ 100; Cowans, 87 Ohio St.3d at 81; State v.
Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47 (1997) (counsel defers
to client’s desire not to present mitigation evidence not
ineffective assistance).
{¶69} The deficient performance portion of an ineffective
assistance claim “is necessarily linked to the practice and
expectations of the legal community: ‘The proper measure of
attorney performance remains simply reasonableness under prevailing
professional norms.’ ” Padilla v. Kentucky, 559 U.S. 356, 366, 130
S.Ct. 1473, 176 L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at
SCIOTO, 20CA3902 40
688; accord Hinton v. Alabama, 571 U.S. 263, 272-273, 134 S.Ct.
1081, 188 L.Ed.2d 1 (2014); accord State v. Bradford, 4th Dist.
Adams No. 20CA1109, 2020-Ohio-4563, ¶ 18. Prevailing professional
norms dictate that “a lawyer must have ‘full authority to manage
the conduct of the trial.’ ” State v. Pasqualone, 121 Ohio St.3d
186, 2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v.
Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
{¶70} Appellant further argues that, although the trial court
asked appellant’s counsel if she had questions, the court did not
ask whether Bruton issues existed concerning appellant and his co-
defendant’s in-court confession. In Bruton v. United States, 391
U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, a postal inspector
testified regarding a non-testifying co-defendant’s confession.
The United States Supreme Court held that a defendant is deprived
of Sixth Amendment’s Confrontation Clause rights when a co-
defendant’s incriminating confession is introduced at their joint
trial, even if the jury is instructed to consider that confession
only against the co-defendant. Bruton, 391 U.S. at 126.
{¶71} However, when a co-defendant testifies, Bruton does not
usually apply because a defendant then has an opportunity to cross-
examine the co-defendant on the accuracy of the statement, thereby
removing the confrontation issue. See Nelson v. O’Neil, 402 U.S.
SCIOTO, 20CA3902 41
622, 629-30, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); U.S. v.
Chrismon, 965 F.2d 1465 (7th Cir.1992) (ordinarily, Bruton problem
avoided if maker of confession testifies at trial); U.S. v. Myers,
892 F.2d 642, 645 (7th Cir.1990)(if co-defendant testifies,
defendant can confront him all he likes and no Sixth Amendment
violation); State v. Ramirez, 5th Dist. Richland Nos. 16CA95,
16CA96, 2018-Ohio-595, ¶ 37 (underpinning of Bruton is inability to
confront and cross-examine a non-testifying co-defendant); State v.
Doherty, 56 Ohio App.2d 112, 381 N.E.2d 960 (1st Dist.
1978)(defendant given opportunity to cross-examine witness not
denied Sixth Amendment confrontation right). Thus, in view of the
foregoing, we do not believe that Bruton creates an issue in the
case at bar.
{¶72} Also critical to this analysis is that, even if, for
purposes of argument, we accept appellant’s assertion that trial
counsel rendered ineffective assistance, we could not conclude
that, but for counsel’s errors, the result of appellant’s trial
would have been different. Courts should not simply assume the
existence of prejudice, but instead require that prejudice be
affirmatively established. Reine at ¶ 41, citing State v.
Hairston, 4th Dist. Scioto No. 06CA2089, 2007-Ohio-3707, citing
State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22.
SCIOTO, 20CA3902 42
Although trial counsel’s strategy in the case sub judice, to allow
appellant’s co-defendant to admit that she caused Dylan’s death and
appellant to admit that he helped to conceal Dylan’s body, may
arguably, in hindsight, appear to be unwise, the second portion of
the Strickland test requires appellant to establish prejudice. To
do so, appellant must demonstrate that a reasonable probability
exists that “ ‘but for counsel's errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine the outcome.’ ” Hinton, 571
U.S. at 275, quoting Strickland, 466 U.S. at 694; Bradford, 4th
Dist. Adams No. 20CA1109, 2020-Ohio-4563, at ¶ 21; State v. Short,
129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph
three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d
378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component
requires a “but for” analysis).
{¶73} Thus, “ ‘the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt.’ ” Hinton, 571 U.S. at 275,
quoting Strickland, 466 U.S. at 695. As noted above, courts
ordinarily may not simply presume the existence of prejudice but,
instead, must require a defendant to affirmatively establish
SCIOTO, 20CA3902 43
prejudice. Bradford at ¶ 21; State v. Clark, 4th Dist. Pike No.
02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross No.
01CA2592, 2002 WL 507529 (Apr. 2, 2002). As this court has
previously recognized, speculation is insufficient to establish the
prejudice component of an ineffective assistance of counsel claim.
Bradford, supra; State v. Tabor, 4th Dist. Jackson No. 16CA9, 2017-
Ohio-8656, ¶ 34; State v. Jenkins, 4th Dist. Ross No. 13CA3413,
2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No.
13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia No.
10CA13, 2012-Ohio-1625, ¶ 25; State v. Leonard, 4th Dist. Athens
No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio
St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (purely speculative
argument cannot serve as basis for ineffectiveness claim).
{¶74} In the case sub judice, our review reveals that at trial
appellee presented 20 witnesses and 79 exhibits. The jury heard,
inter alia, that appellant: (1) failed to maintain contact with
SCCS, (2) failed to supervise his co-defendant, (3) served as
Dylan’s sole custodian at the time of his death, (4) admitted he
observed his co-defendant physically injure Dylan and the cause of
death was homicidal violence by blunt force trauma, (5) assisted
his co-defendant to conceal Dylan’s body, (6) repeatedly lied to
SCCS and to other authorities, (7) knowingly misled authorities to
SCIOTO, 20CA3902 44
the wrong location of Dylan’s body, (8) led authorities to the
actual location of Dylan’s body, and (9) made jailhouse statements
that revealed his knowledge of Dylan’s injuries and, inter alia,
his admission that he concealed Dylan’s body.
{¶75} Therefore, we believe that appellee adduced overwhelming
evidence at trial, including witness testimony and physical
evidence, to prove the elements of the crimes beyond a reasonable
doubt. Thus, we do not believe that appellant’s trial counsel’s
performance prejudiced appellant and changed the outcome of his
trial.
B. Alleged Cumulative Failures
1. Failure to File a Written Motion for Change
of Venue
{¶76} Appellant asserts that after voir dire, his trial counsel
rendered ineffective assistance when she made an oral motion for a
change of venue “unsupported by voluminous evidence of pervasive
pretrial publicity.” Appellant recognizes that, because almost all
of the approximately 63 individuals questioned during voir dire
expressed that they had either read, discussed or heard about this
matter through some form of media or family discussion, appellant’s
trial counsel did, in fact, make an oral motion for a change of
venue that the trial court denied. Nevertheless, appellant argues
SCIOTO, 20CA3902 45
that, in light of all the available information to support a change
of venue, trial counsel should have formulated a more thorough,
detailed written motion and included supporting materials to better
attempt to persuade the court to change the trial’s venue.
{¶77} Generally, the standard of review appellate courts use to
review a trial court’s denial of a motion to change venue is the
abuse of discretion standard. State v. Garvin, 197 Ohio App.3d
453, 2011-Ohio-6617, 967 N.E.2d 1277 (4th Dist.), ¶ 34, citing
State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185,
at ¶ 23. Thus, appellate courts should reverse trial court
decisions regarding change of venue only upon a clear showing of an
abuse of a trial court’s discretion. Id., citing State v. Metz,
4th Dist. Washington No. 96CA48, 1998 WL 199944 (Apr. 21, 1998),
citing State v. Gumm, 73 Ohio St.3d 413, 430, 653 N.E.2d 253(1995). The term abuse of discretion implies that a court’s
attitude is unreasonable, arbitrary or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983),
quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144(1980).
{¶78} The Supreme Court of Ohio addressed the issue of pretrial
publicity in State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665,
850 N.E.2d 1168. In Roberts, the defendant-wife and her lover
SCIOTO, 20CA3902 46
plotted to kill the defendant’s husband, and both were convicted of
aggravated murder. The court noted that, although a great deal of
publicity occurred in Trumbull County about the murder and the
trial, the defendant nevertheless failed to show that media
coverage “so saturated the county and influenced the potential
venire that she was deprived of a fair trial.” Id. at ¶ 115. “A
defendant claiming that pretrial publicity denied her a fair trial
must show that one or more jurors were actually biased.” State v.
Treesh, 90 Ohio St.3d 460, 464, 739 N.E.2d 749 (2001). Moreover,
“[p]retrial publicity - even pervasive, adverse publicity - does
not inevitably lead to an unfair trial.” Nebraska Press Assn. v.
Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683. Only in
rare cases is prejudice presumed. Treesh, 90 Ohio St.3d at 464,
739 N.E.2d 749.
{¶79} The United States Supreme Court has observed that
“Prominence does not necessarily produce prejudice, and juror
impartiality does not require ignorance.” Skilling v. U.S., 561
U.S. 358, 381, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), citing
Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751(1961) (Jurors not required to be “totally ignorant of facts and
issues involved; scarcely any of those best qualified to serve as
jurors will not have formed some impression or opinion as to the
SCIOTO, 20CA3902 47
merits of the case.); Reynolds v. United States, 98 U.S. 145, 155-
156, 25 L.Ed. 244 (1898)([E]very case of public interest is almost,
as matter of necessity, brought to attention of intelligent people
in the vicinity, and scarcely any one can be found among those best
fitted for jurors who has not read or heard of it, and who has not
some impression or some opinion in respect to its merits.).
{¶80} In the case sub judice, after trial counsel’s oral motion
for a change of venue, the trial court noted that, although most of
the jurors indicated that they had heard something about the case,
all prospective jurors indicated during voir dire that, if chosen,
they “could base their decision solely on the evidence and
testimony presented in the courtroom, put aside what they had
learned, to whatever extend [sic.] that was to each individual
juror, from other sources and that they would be fair and impartial
to both sides, and they indicated that they could follow the law as
instructed by the Court.”
{¶81} While we recognize and acknowledge that the case sub
judice generated an inordinate amount of publicity, both locally
and nationally, after our review of the record, and in light of the
trial court’s questions posed to prospective jurors and their
responses, we cannot conclude that appellant established that the
trial court’s decision to overrule the change of venue request
SCIOTO, 20CA3902 48
constitutes an abuse of discretion, or that a more fully supported
motion would have persuaded the court to change the trial’s
location. We find nothing in the record to support the claim that
the jurors could not fairly and impartially consider the evidence
and arrive at a fair and just verdict.
2. Failure to Move for a Separate Trial
{¶82} Appellant asserts that because he now believes that, in
his view, his joint trial with his co-defendant constituted
prejudicial joinder, his trial counsel’s failure to request a
separate trial amounts to ineffective assistance of counsel.
{¶83} This court wrote in State v. Evans, 4th Dist. Scioto No.
08CA3268, 2010-Ohio-2554, ¶ 41, that, as a general rule, the law
favors joinder of defendants and the avoidance of multiple trials
because it “ ‘conserves judicial and prosecutorial time, lessens
the not inconsiderable expenses of multiple trials, diminishes
inconvenience to witnesses, and minimizes the possibility of
incongruous results in successive trials before different juries.’
” State v. Daniels, 92 Ohio App.3d 473, 484, 636 N.E.2d 336 (1st
Dist.1993), quoting State v. Thomas, 61 Ohio St.2d 223, 225, 400
N.E.2d 401 (1980); see also State v. Goodner, 195 Ohio App.3d 636,
SCIOTO, 20CA3902 49
2011-Ohio-5018, 961 N.E.2d 254, ¶ 39, citing State v. Schaim, 65
Ohio St.3d 51, 58, 600 N.E.2d 661 (1992); State v. Torres, 66 Ohio
St.2d 340, 343, 421 N.E.2d 1288 (1981).
{¶84} To establish that a trial court’s refusal to sever a
trial constitutes prejudicial error, a defendant must establish:
“(1) that his rights were prejudiced, (2) that at the time of the
motion to sever, he provided the trial court with sufficient
information so that it could weigh the considerations favoring
joinder against the defendant's right to a fair trial, and (3) that
given the information provided to the court, it abused its
discretion in refusing to separate the charges for trial.” Schaim,
65 Ohio St.3d at 59, citing Torres, 66 Ohio St.2d 340 at syllabus;
Evans at ¶ 42. A trial court’s refusal to grant a request for
severance, when the prejudicial aspects of joinder are too general
and too speculative, does not constitute an abuse of discretion.
Evans at ¶ 42, citing State v. Payne, 10th Dist. Franklin No. 02AP–
723, 02AP-725, 2003–Ohio–4891. Once again, a trial court abuses
its discretion when it acts unreasonably, arbitrarily, or
unconscionably. Adams, supra, at 157.
{¶85} In the case sub judice, appellant asserts that his trial
counsel ignored a plethora of case law regarding prejudicial
joinder and that his co-defendant’s confession created prejudice.
SCIOTO, 20CA3902 50
One example of this contention that appellant cites is State v.
Rosen, 151 Ohio St. 339, 86 N.E.2d 24 (1949). In Rosen, different
counsel represented the defendants, but because they had
antagonistic defenses, the court held that the refusal to permit
cross-examination on rebuttal caused prejudice “[w]here it is
disclosed, preceding the trial of co-defendants jointly charged
with the commission of a felony, that a signed confession by one of
the defendants, made in the absence of his co-defendants, will be
put in evidence, which confession contains statements showing the
guilt of a co-defendant, and based thereon an application for
separate trial is duly made by that co-defendant, it is the duty of
the trial court either to grant the application or to order the
prejudicial matter withheld or deleted before admitting the
confession in evidence.” Rosen at syllabus.
{¶86} As noted above, however, Rosen involved defendants with
mutually antagonistic defenses. Generally, defenses are mutually
antagonistic when each defendant attempts to exculpate himself or
herself and, instead, inculpate his or her co-defendant. Daniels,
92 Ohio App.3d at 486, 636 N.E.2d 336. In the case at bar,
appellants did not maintain mutually antagonistic defenses.
Rather, their defenses were congruous in that they agreed, as part
of their trial strategy, that appellant’s co-defendant would admit
SCIOTO, 20CA3902 51
that she alone caused Dylan’s death and appellant would admit that
he helped to dispose of Dylan’s body.
{¶87} Furthermore, even assuming arguendo that appellant’s and
his co-defendant’s defenses were mutually antagonistic, mutually
antagonistic defenses are not prejudicial per se. Evans, 4th Dist.
Scioto No. 08CA3268, 2010-Ohio-2554, ¶ 43, citing Zafiro v. U.S.
(1993), 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317. To
establish prejudice that results from mutually antagonistic
defenses, “the defenses must be antagonistic to the point of being
irreconcilable and mutually exclusive.” State v. Walters, 10th
Dist. Franklin No. 06AP–693, 2007–Ohio–5554, at ¶ 23, citing U.S.
v. Berkowitz, 662 F.2d 1127, 1133 (5th Cir., 1981). In other
words, the essence or core of the defenses must be in conflict,
such that the jury, in order to believe the core of one defense,
must necessarily disbelieve the core of the other. Walters at ¶
23.
{¶88} In the case sub judice, both co-defendants testified at
trial. The essence of their testimony---that appellant’s co-
defendant alone caused Dylan’s death and appellant assisted in
disposing of Dylan’s body---is not in conflict. Thus, we cannot
conclude that counsel’s failure to request to sever the cases
constitutes ineffective performance. Moreover, as stated above,
SCIOTO, 20CA3902 52
the trial court thoroughly discussed this trial strategy with
appellant and his co-defendant to ensure they understood all the
ramifications of their plan. Although somewhat unusual, both
counsel respected, and followed, their client’s wishes.
{¶89} Moreover, we once again point out that, even without
appellant’s co-defendant’s testimony, the jury would have heard
testimony that appellant: (1) had sole custody of Dylan at the time
of his death, (2) admitted he observed appellant physically injure
Dylan and his cause of death was homicidal violence by blunt force
trauma, (3) failed to maintain contact with SCCS, (4) failed to
supervise his co-defendant, (5) assisted in concealing Dylan’s
body, (6) repeatedly lied to SCCS and to other authorities, (7) led
authorities to a false location to recover Dylan’s body, then led
authorities to the actual location, and (8) most incriminating,
made statements while incarcerated when he spoke with his co-
defendant:
When they took me out there yesterday - - wanted me to
take them to where he was at, and I took them - - some
bullshit place because - - don’t tell them where he is
because if they find his body - - * * * and if they find
out where he had a broken arm and shit, we’re fucked.
{¶90} In view of all of the foregoing, after our review we
conclude that appellant has not demonstrated that his trial
SCIOTO, 20CA3902 53
counsel’s failure to file a motion to sever his trial from his co-
defendant’s trial prejudiced him.
3. Failing to File a Written Motion for a Separate
Sentencing Hearing with Facts in Mitigation
{¶91} Appellant asserts that his trial counsel’s failure to
file a written motion for a separate sentencing hearing, along with
including supporting facts in mitigation, constitutes ineffective
assistance of counsel.
{¶92} As a preliminary matter, we point out that appellant does
not provide any case authority regarding this issue. Our review,
however, reveals that, in general, a trial counsel’s decision to
defer to a client’s desire to not present mitigation evidence does
not constitute ineffective assistance. The Supreme Court of Ohio
has held that a defendant is entitled to decide what he or she
wants to argue and present as mitigation. See, e.g., Jenkins, 15
Ohio St.3d at 189, 15 OBR 311, 473 N.E.2d 264, citing Lockett v.
Ohio (1978), 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973.
This includes the decision to present no evidence. Roberts, 110
Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 140. Thus, an
attorney’s decision to decline to present mitigation evidence, in
SCIOTO, 20CA3902 54
deference to a client’s desires, does not constitute ineffective
legal assistance. Id. at ¶ 148, citing State v. Monroe, 105 Ohio
St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 100; Cowans, 87 Ohio
St.3d 68, 81, 717 N.E.2d 298 (1999); Keith, 79 Ohio St.3d 514, 536,
684 N.E.2d 47 (1997). See also State v. Armor, 2017-Ohio-396, 84
N.E.3d 181 (10th Dist.) (defendant failed to show counsel’s failure
to properly investigate and present mitigating evidence prejudiced
the defendant when record did not show what information counsel’s
investigation would have revealed and whether such information
could have aided defendant).
{¶93} While we do not know from our review of the record what
discussions may, or may not, have occurred between appellant and
trial counsel regarding this issue, we believe that appellant did
not establish prejudice arising from trial counsel’s failure to
present mitigating evidence at sentencing. Because we do not know
what information may have been revealed after an investigation, and
whether such information could have benefitted appellant, we may
not simply engage in speculation in order to determine that
appellant suffered prejudice.
4. Waiving Attendance at Jessica Groves’
Competency Hearing
SCIOTO, 20CA3902 55
{¶94} Appellant asserts that his counsel performed
ineffectively when she (1) waived her attendance at appellant’s co-
defendant’s competency hearing, and (2) opted not to receive the
results of appellant’s co-defendant’s competency evaluation.
Appellant does not, however, present any additional facts or
details about this argument, nor citations to authority for this
proposition.
{¶95} In the case sub judice, after appellant’s co-defendant’s
competency evaluation, the trial court found her competent to stand
trial. We find nothing in the record to question the competency
evaluation proceeding, or perceive any benefit that may have flowed
to appellant. In Cowans v. Bagley, 639 F.3d 241,(6th Cir. 2011),
the Sixth Circuit concluded that defense counsel's failure to
request a competency hearing did not prejudice the defendant, and,
therefore, did not amount to ineffective assistance of counsel when
the results of the trial would not have changed. Id. at 250. If
counsel’s failure to request a competency hearing for his or her
own client does not amount to ineffective assistance, it is
difficult to conceive that counsel’s waiver of appellant’s
attendance at his co-defendant’s competency hearing, and a review
SCIOTO, 20CA3902 56
of that competency evaluation, amounts to ineffective assistance of
counsel. Consequently, this argument requires us to speculate
about the information that could have been available to appellant
and whether such information would have provided any benefit
{¶96} Therefore, we disagree with appellant’s assertion that
his trial counsel’s failure to become involved in appellant’s co-
defendant’s competency evaluation constitutes ineffective
assistance of counsel.
{¶97} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶98} In his second assignment of error, appellant asserts that
the trial court’s failure to provide the jury the R.C. 2923.03(D)
cautionary instruction constitutes plain error. Appellant claims
that, if the court had given the instruction, a different outcome
would have occurred at trial.
{¶99} In particular, appellant argues that, after the trial
court learned of appellant’s co-defendant’s intention to testify,
the court at that point should have asked appellant if he wished to
proceed with a joint trial, or if he had been counseled regarding
his decision to go forward with a joint trial. Appellant further
contends that, because his co-defendant could be viewed as his
SCIOTO, 20CA3902 57
accomplice and her testimony could be construed to be damaging to
appellant, his co-defendant’s trial testimony also required the
court to charge the jury with the R.C. 2923.03(D) cautionary
instruction.
{¶100} First, we point out that, as we addressed in our
discussion under appellant’s first assignment of error, appellant’s
co-defendant’s counsel’s opening statement fully acknowledged
appellant’s co-defendant’s guilt and her intention to take sole
responsibility for the acts that led to Dylan’s death. Appellant,
however, argues that in actuality his co-defendant did not, in
fact, do so, but instead argues that her testimony is a mix of
blame shifting, denial, and, “by any standard antagonistic to
Appellant’s defense.” Thus, appellant claims, the trial court’s
failure to give the jury the R.C. 2923.03(D) instruction
constitutes plain error.
{¶101} As appellant correctly observes, appellant’s trial
counsel did not request the trial court to give a cautionary jury
instruction on the issue of accomplice testimony. Consequently,
all but plain error has been waived. State v. Hunt, 4th Dist.
Scioto No. 17CA3811, 2018-Ohio-4183, ¶ 67, citing State v. Steele,
138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 29; State v.
Mockbee, 2013-Ohio-5504, 5 N.E.3d 50, ¶ 24 (4th Dist.); Crim.R.
SCIOTO, 20CA3902 58
52(B). “To constitute plain error, a reviewing court must find (1)
an error in the proceedings, (2) the error must be a plain, obvious
or clear defect in the trial proceedings, and (3) the error must
have affected ‘substantial rights’ (i.e., error must have affected
the trial’s outcome).” State v. Dickens, 174 Ohio App.3d 658,
2008-Ohio-39, 884 N.E.2d 92, ¶ 31 (4th Dist.), citing State v.
Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001), and State v.
Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240.
“Furthermore, notice of plain error must be taken with the utmost
caution, under exceptional circumstances, and only to prevent a
manifest miscarriage of justice.” Id., citing State v. Landrum, 53
Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus. “A reviewing court should notice plain error only if the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. Accord State v. Lewis,
4th Dist. Ross No. 14CA3467, 2015-Ohio-4303, ¶ 9.
{¶102} In the case sub judice, it is undisputed that appellant
and his co-defendant functioned as accomplices. Also undisputed is
the fact that the trial court (1) did not give the R.C. 2923.03(D)4
4
R.C. 2923.03(D) provides:
If an alleged accomplice of the defendant testifies
SCIOTO, 20CA3902 59
accomplice jury instruction, and (2) neither counsel requested the
trial court to give the accomplice jury instruction.
{¶103} “ ‘Ohio courts generally look to three factors to
determine whether a trial court’s failure to give the accomplice
instruction constitutes plain error: (1) whether the accomplice’s
testimony was corroborated by other evidence introduced at trial;
(2) whether the jury was aware from the accomplice’s testimony that
[he/she] benefitted from agreeing to testify against the defendant;
and/or (3) whether the jury was instructed generally regarding its
jury to evaluate the credibility of the witnesses and its province
to determine what testimony is worthy of belief.’ ” State v.
against the defendant in a case in which the defendant
is charged with complicity in the commission of or an
attempt to commit an offense, an attempt to commit an
offense, or an offense, the court, when it charges the
jury, shall state substantially the following:
“The testimony of an accomplice does not
become inadmissible because of his
complicity, moral turpitude, or self-
interest, but the admitted or claimed
complicity of a witness may affect his
credibility and make his testimony subject
to grave suspicion, and require that it be
weighed with great caution.
It is for you, as jurors in all the light of
all facts presented to you from the witness
stand, to evaluate such testimony and to
determine its quality and worth or its lack
of quality and worth.”
SCIOTO, 20CA3902 60
Bentley, 11th Dist. Portage No. 2004-P-0053, 2005-Ohio-4648, ¶ 58,
quoting State v. Woodson, 10th Dist. Franklin No. 03AP-736, 2004-
Ohio-5713, ¶ 18. “[I]f the first factor and one other factor are
present, the absence of the accomplice instruction will not affect
the outcome of the case.” Woodson at ¶ 18.
{¶104} Concerning the first factor in interpreting a previous
version of R.C. 2923.03, Ohio courts have held that corroborative
evidence need only be some evidence, independent of the
accomplice’s statement, that tends to connect the defendant with
the crime charged. It appears that this “other evidence” need not
necessarily be of sufficient strength, by itself, to constitute
proof beyond a reasonable doubt, but must directly, or by
reasonable inference, connect the defendant with the crime. State
v. Allsup, 67 Ohio App.2d 131, 135-136, 426 N.E.2d 499 (3d
Dist.1980); State v. Johnson, 4th Dist. Vinton No. 06CA650, 2007-
Ohio-2176, ¶ 39.
{¶105} In the case at bar, we believe that ample evidence
adduced at trial corroborated appellant’s co-defendant’s testimony.
As we indicated above, 20 prosecution witnesses testified
concerning the facts in this case, including appellant’s lack of
interest in Dylan at the hospital, his failure to supervise Dylan
SCIOTO, 20CA3902 61
at home, his flight from law enforcement, his lies to
investigators, his decision to eventually lead authorities to
Dylan’s body, and ultimately, his admission about his role in the
crimes. Consequently, because ample evidence corroborated
appellant’s co-defendant’s testimony, we conclude that the first
factor has been satisfied.
{¶106} With regard to the second factor, we first point out that
appellant’s co-defendant did not testify against appellant.
Rather, she testified:
Q [Jessica’s Counsel Mr. Stratton]: Jessica, did you, and
you only, cause the death of your son, Dylan Groves?
A: Yes.
Q: Did Daniel Groves participate in the killing of Dylan?
A: No.
Q: Was Daniel Groves aware of any of the injuries that
you caused Dylan that may have led to his death?
A: No.
Q: Did you hide all the injuries that you caused Dylan
from your husband?
A: Yes.
* * *
Q: Jessica Groves, the injuries that Dylan sustained
happened on what date?
A: On March 27th.
SCIOTO, 20CA3902 62
Q: Dylan died on what date?
A: March 28th.
* * *
Q: Where did you take Dylan after he died?
A: He was at our house for a couple days.
Q: And then where did you take him?
A: To the well.
Q: Did you murder Dylan Groves?
A: Not intentionally.
{¶107} On cross-examination, appellee inquired about how
appellant’s co-defendant caused Dylan’s death, to which his co-
defendant replied, “[i]t was an accident.” When asked about
details concerning the rib fractures, she replied, “by dropping
him.” When asked about the skull fractures, she said “I don’t
remember. * * * It had to be from dropping him.” When asked about
the upper arm fracture, she replied “Nothing that I ever did was
intentional. * * * I have to live with this for the rest of my
life.” When asked for details about how she caused Dylan’s death,
she told the prosecutor, “I’ve admitted to my guilt. * * * And I
have to live without - - my children. * * * I’m done talking to
you.” When admonished that she must submit to cross-examination or
her testimony would be stricken, she then responded to most
SCIOTO, 20CA3902 63
questions, “I don’t remember.” Eventually, she stated that she did
not have a clear mind “because of drugs.” However, she did, in
fact, testify that appellant, her husband co-defendant, did not
assist with or cause Dylan’s death, but did participate in the
preparation and concealment of Dylan’s body. Further, on cross-
examination appellant’s co-defendant testified:
Q: Who wrapped this baby’s body in six layers of plastic
and duct tape? Who did that?
A: I did.
Q: You did? Daniel Groves didn’t help you with that?
A: Yes, he did.
Q: Tell them what happened. Tell them about that
concealment.
A: I wanted to be able to go back and get my baby.
* * *
Q: Who drove Baby Dylan out to that well?
A: We both did.
Q: Tell the jury how that happened and what you did.
A: We took him out to the well . . . We put him in the
well and we sit in the field and cried.
{¶108} As appellee points out, the only testimony that
appellant’s co-defendant provided implicated appellant in the
crimes of tampering with evidence and gross abuse of a corpse,
SCIOTO, 20CA3902 64
crimes that appellant actually admitted. Here, we agree with
appellee that this is not testimony against appellant, when one
considers all of the evidence presented. Furthermore, as appellee
indicates, the trial court’s jury instructions in the case sub
judice thoroughly defined the terms complicity, aiding and
abetting, how complicity may be proven, the intent required, and
the knowledge that another was committing an offense.
{¶109} Although we also recognize that appellant’s co-defendant
did not offer many details about the precise manner of Dylan’s
death, she did clearly testify that appellant did not participate
in Dylan’s death, but instead, participated only in preparing
Dylan’s body to be concealed in the well, then helping to carry-out
that plan. Consequently, we do not believe that appellant’s co-
defendant testified “against” appellant. Moreover, we recognize
that the trial court also instructed the jury generally regarding
the jury’s duty to evaluate witness credibility.
{¶110} Thus, after our review, we believe that the trial court
satisfied the third factor. Consequently, we cannot say that the
trial court’s failure to give the accomplice instruction would have
altered the trial’s outcome. After our review of all of the
evidence presented at trial, and the trial court’s general
credibility instruction, we cannot conclude that the absence of a
SCIOTO, 20CA3902 65
R.C. 29323.03(D) instruction constitutes plain error.
{¶111} Appellant further asserts that his trial counsel’s
failure to either request the R.C. 2923.03(D) jury instruction, or
object to its omission, constitutes ineffective assistance of
counsel. However, as we point out above, even if appellant’s trial
counsel’s performance was arguably deficient or unreasonable under
the circumstances, we nevertheless conclude that appellant’s claim
must fail. Here, appellant cannot demonstrate a reasonable
probability exists that, but for trial counsel’s arguable errors,
the result of appellant’s trial would have been different.
{¶112} In the case at bar, SCCS released Dylan to appellant.
From the start, appellant failed to maintain contact with SCCS as
required, lied about his employment, and failed to supervise his
co-defendant’s visitation. When law enforcement, armed with a
search warrant, visited appellant’s home to look for Dylan,
appellant failed to comply with their request to exit the home and,
when questioned, lied and said that SCCS had taken the child.
Moreover, after appellant initially lied to law enforcement about
the location of Dylan’s body, appellant eventually led officers to
the actual location of Dylan’s body. Appellant also admitted that
he observed his co-defendant “hit [Dylan] probably four times.”
Most important, as we indicated above, during their jailhouse
SCIOTO, 20CA3902 66
discussion appellant told his co-defendant, “If they find his body
and if they find out where he had a broken arm and shit, we’re
fucked. It don’t matter.” Consequently, after our review, we
conclude that the trial court’s failure to provide a R.C.
2923.03(D) cautionary instruction does not constitute plain error.
{¶113} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
SCIOTO, 20CA3902
67
SCIOTO, 20CA3902
68
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court
directing the Scioto County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted, it is continued for a period of 60 days
upon the bail previously posted. The purpose of said stay is to
allow appellant to file with the Ohio Supreme Court an application
for a stay during the pendency of the proceedings in that court.
The stay as herein continued will terminate at the expiration of
the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio
Supreme Court. Additionally, if the Ohio Supreme Court dismisses
the appeal prior to the expiration of said 60 days, the stay will
terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.