State v. Grove , 2020 Ohio 1123 ( 2020 )

[Cite as State v. Grove, 2020-Ohio-1123.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
PAUL GROVE, JR. : Case No. 2019 AP 08 0024
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2017 CR 09 0204
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 25, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
AMANDA K. MILLER DONAVON HILL
Assistant Prosecuting Attorney 116 Cleveland Avenue North
Tuscarawas County Canton, Ohio 44702
125 East High Ave
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2019 AP 08 0024 2
Baldwin, J.
{¶1} Paul Grove appeals his conviction and sentence for: Aggravated Vehicular
Homicide, a violation of R.C. 2903.06(A)(1), a felony of the second degree; two counts of
Aggravated Vehicular Assault, violations of R.C. 2903.08 (A)(1)(a), felonies of the third
degree; Operating a Vehicle Under the Influence of Alcohol a Drug of Abuse or a
Combination of them, a violation of R.C. 4511.19(A)(1)(d), and Operating a Vehicle Under
the Influence of Alcohol a Drug of Abuse or a Combination of them, a violation of R.C.
4511.19(A)(1)(a), misdemeanors of the first degree. Appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} Grove was driving home from a graduation party when he lost control of his
vehicle and collided with two motorcycles. A motorcycle passenger was killed and the
two drivers were seriously wounded. Grove appeals his conviction contending that the
trial court imposed an illegal sentence, allowed inflammatory depictions of gruesome
injuries, that his conviction was against the manifest weight of the evidence and that he
was denied effective assistance of trial counsel.
{¶3} Paul Grove attended a graduation party for a family member and left for
home in his Chevrolet Trailblazer. At about 6:00 P.M. he was unable to negotiate a turn
and the right wheels of his vehicle went off the pavement, onto the berm and into a
graveled area. Grove overcorrected and lost control of his vehicle as it skidded on the
pavement and presented its passenger side to oncoming traffic in the opposite lane. The
Trailblazer and two motorcycles collided. The first motorcycle collided with the Trailblazer
at its front passenger side and as a result of the impact, the passenger on the motorcycle
Tuscarawas County, Case No. 2019 AP 08 0024 3
was ejected, the gas tank was ruptured and the driver was engulfed in flames. He was
unable to escape the flames due to other injuries caused by the impact.
{¶4} After the first collision, the Trailblazer’s counter-clockwise spin accelerated
and it struck the second motorcycle with its right rear section, throwing the motorcycle
and the driver to the ground. The driver of the second motorcycle was conscious and
attempted to help the driver of the first motorcycle and the passenger. He called for
emergency services, but handed the phone to Grove as his injuries prevented him from
completing the call.
{¶5} The Ohio State Highway Patrol began an investigation of the accident
shortly after it occurred. Trooper Clapper arrived after the emergency medical services
and spoke with Grove. The trooper noticed that appellant had the smell of an alcoholic
beverage coming from his person, his speech was slurred and his eyes were bloodshot
and glassy. The trooper put the appellant in his patrol car and read his Miranda Rights
to him, and appellant indicated he understood.
{¶6} The trooper asked appellant to write a statement and he agreed to do so.
In the statement, appellant explained that he was at a graduation party at a family
member’s home where he drank four beers, starting at one or two o'clock with the last
beer consumed about one half hour before giving the statement. He was heading home
when he came around a turn at about forty to forty-five miles per hour, hit some pea gravel
and lost control.
{¶7} Trooper Clapper then asked appellant to step out of the car to perform field
sobriety tests. The trooper completed the gaze nystagmus test and was giving appellant
instructions to perform the walk and turn test when appellant lost his balance and told the
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trooper he would not perform any more tests. The trooper arrested appellant for OVI and
provided him a copy of BMV Form 2255 which appellant signed. The trooper tested a
sample of his breath and the results were over the legal limit, indicating impairment.
{¶8} The trooper requested a second statement from appellant and within this
statement Grove disclosed that he began drinking before he arrived at the party. He had
"a couple" before the party and four more drinks at the party. The trooper then released
appellant into the custody of his mother and forwarded the investigatory file to the
Tuscarawas County Prosecutor's Office.
{¶9} Trooper Larry Gaskill investigated the accident in his role as an accident
reconstructionist and provided his opinion regarding the speed of the vehicles and the
cause of the collision.
{¶10} The trooper used two methods to calculate the speed of the vehicle at
different times during the crash. He used his observations at the scene, including the
markings on the road, to determine the speed of the Trailblazer just before impact was
between sixty to sixty-six miles per hour. He used data from the air bag control module in
the Trailblazer to determine that the speed of the vehicle at the moment Grove began
reacting to the impending crash was eighty miles per hour and he found that speed
consistent with his calculation of the speed just prior to impact. His analysis confirmed
that appellant's tires dropped off the side of the road and, as he attempted to come back
onto the road, he lost control, rotated counter-clockwise and was broadside as he entered
the path of the motorcycles. The first motorcycle impact increased the rate of rotation just
before the second impact. He concluded that the appellant's high rate of speed, in excess
of the speed limit for that road, resulted in the loss of control and crash.
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{¶11} Trooper Jeremy Grubb took several photographs of the accident scene and
the vehicles. While photographing the interior of the Trailblazer, he discovered a thirty-
pack of beer, an open, cold, partially empty can of beer in an insulated holder as well as
two empty beer cans.
{¶12} The Chief Medical Examiner for Summit County examined the body of the
passenger who was thrown from the motorcycle and confirmed that the blunt force trauma
from the crash caused her death.
{¶13} The drivers of the motorcycles suffered multiple injuries as a result of the
crash. One was burned over thirty-three percent of his body, suffered forty-two bone
fractures and spent three months in the hospital where he underwent several skin grafts.
The burn scars are still evident and will require constant care and his mobility is restricted.
The other driver suffered bruises, contusion and lacerations as well as fractures to his
foot. The fractures required several surgical repairs and have resulted in a permanent
restriction in his movement.
{¶14} The Tuscarawas County Grand Jury indicted Grove on one count of
Aggravated Vehicular Homicide, in violation of R.C. 2903.06(A)(1)(a), two counts of
Aggravated Vehicular Assault, in violation of R.C. 2903.08(A)(1)(a), one count of
Operating a Motor Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a
Combination of Them, in violation of R.C. 4511.19(A)(1)(d), one count of Operating a
Motor Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a Combination of Them,
in violation of R.C. 4511.19(A)(1)(a), one count of Operating a Motor Vehicle or
Agricultural Tractor Without Being in Control of it, in violation of R.C. 4511.202(B), one
count of Violation of Lanes of Travel on Roadways, in violation of R.C. 4511.33 (A) and/or
Tuscarawas County, Case No. 2019 AP 08 0024 6
(B), and one count of Violation of Speed Limits, in violation of R.C, 4511.21 (D)(1). The
matter proceeded to hearing on August 13, 2018 where Grove pled guilty to all counts
and was sentenced to eighteen years in prison.
{¶15} Grove appealed his conviction and we vacated his sentence because the
trial court did not inform Grove before accepting his guilty plea that Aggravated Vehicular
Homicide under R.C. 2903.06 required the trial court to impose a mandatory prison
sentence. State v. Grove, 5th Dist. Tuscarawas No. 2018AP100033, 2019-Ohio-1627, ¶
2. The case was remanded to the trial court and the matter was scheduled for a jury trial.
Prior to the commencement of the trial, the state dismissed the charges of Operating a
Motor Vehicle or Agricultural Tractor Without Being in Control of it, in violation of R.C.
4511.202(B), Violation of Lanes of Travel on Roadways, in violation of R.C. 4511.33 (A)
and/or (B), and Violation of Speed Limits, in violation of R.C, 4511.21 (D)(1). The jury
returned a verdict of guilty on all remaining counts and appellant was sentenced to an
aggregate term of eighteen years.
{¶16} Grove appealed and submitted four assignments of error.
{¶17} “I. APPELLANT'S SENTENCE WAS CONTRARY TO LAW.”
{¶18} “II. THE TRIAL COURT ERRED IN PERMITTING INFLAMMATORY IN-
COURT DEPICTIONS OF GRUESOME INJURIES.”
{¶19} “III. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶20} “IV. APPELLANT WAS DENIED DUE PROCESS DUE TO INEFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.”
Tuscarawas County, Case No. 2019 AP 08 0024 7
ANALYSIS
{¶21} Appellant opens his argument regarding the first assignment of error by
incorrectly describing the applicable law and shifting the burden of proof. He contends
that this court "may either increase, reduce, modify, or vacate a sentence and remand for
resentencing where record does not support, by clear and convincing evidence, the
sentencing court's findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or
2929.20(I), or the sentence is otherwise contrary to law." (Appellant's Brief p. 3). That
description is incorrect. The language of the relevant code section prohibits this court from
altering a sentence unless we find clear and convincing evidence the record does not
support the trial court’s sentencing. The cases cited by Appellant support our
interpretation. "That is, an appellate court may vacate or modify any sentence that is not
clearly and convincingly contrary to law only if the appellate court finds by clear and
convincing evidence that the record does not support the sentence." State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23 (2016). "On appeals
involving the imposition of consecutive sentences, R.C. 2953.08(G)(2)(a) directs the
appellate court “to review the record, including the findings underlying the sentence” and
to modify or vacate the sentence “if it *218 clearly and convincingly finds * * * [t]hat the
record does not support the sentencing court's findings under division * * * (C)(4) of
section 2929.14 * * * of the Revised Code.” State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 28.
{¶22} Appellant would have us review the record for clear and convincing
evidence in support of the sentence, when the statute and the precedent limits our
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authority to amend the sentence to circumstances where we find clear and convincing
evidence that the record does not support the sentence.
{¶23} Appellant concludes his argument contending that the trial court had
predetermined the sentence and that it failed to consider any mitigating evidence,
particularly that the Appellant accepted responsibility for his behavior. We have reviewed
the record and do not find clear and convincing evidence that the record does not support
the trial court's findings. We did find that contrary to appellant's assertions, the trial court
did consider mitigation when it found that:
8. The offender had been law-abiding for eight years prior to the offenses;
9. The offender was compliant with pretrial release supervision, and used
the time to work on treatment for his substance abuse disorder after the
positive drug screen in October, 2017; and
10. The offender expresses genuine remorse.
Judgment Entry on Sentencing, July 23, 2019, P. 3, Docket #213.
{¶24} Because we find that appellant's only objection to the sentence, lack of
consideration of mitigating circumstances, is contained within the record, and that there
is not clear and convincing evidence that the record does not support the sentencing
court's findings, the first assignment of error is overruled.
{¶25} In his second assignment of error, appellant contends that the trial court's
analysis leading to the ruling allowing the victim to display his injuries to the jury was
incomplete as it failed to weigh the probative value against the prejudicial and
inflammatory nature of the "disrobing." Appellant asserts "The shocking and gruesome
nature of the wounds would inflame and upset the jury." Appellant refers to the revelation
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by the victim as "disrobing," "prejudicial," "shocking," "gruesome," "inflammatory," and
"upsetting." Despite the conclusory descriptions in Appellant's brief, the record contains
no description of what was revealed to the jury or how it was revealed. "The record is
devoid of any description of this display" and "[w]e do not have a clear picture of what the
jury saw." State v. Martin, 1st Dist. Hamilton No. C-790494, 1980 WL 352989, *1.
{¶26} Under Evidence Rules 403 and 611(A), the admission of photographs is left
to the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 559
N.E.2d 710. Under Evidence Rule 403(A), the probative value of the evidence must be
weighed against the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury. Evid.R. 611(A) further provides, in relevant part, the trial court “shall exercise
reasonable control over the mode and order of ... presenting evidence so as ... to make
the ... presentation effective for the ascertainment of the truth” and to “avoid needless
consumption of time.” “Although a photograph may be rendered inadmissible by its
inflammatory nature, the mere fact that it is gruesome or horrendous is not sufficient to
render it inadmissible if the trial court, in the exercise of its discretion, feels that it would
prove useful to the jury.” State v. Woodards (1966), 6 Ohio St.2d 14, 25, 215 N.E.2d 568.
“The real question is whether the probative value of such photographs is outweighed by
the danger of prejudice to the defendant.” Id.{¶27} The victim testified as to the treatment of his burns after the injury and the
need for continued care, but did not describe his scars. Appellee asked if he suffered any
permanent disfigurement and appellant objected after which the following argument took
place outside the hearing of the jury:
Tuscarawas County, Case No. 2019 AP 08 0024 10
MS. SPIES: Objection. Can we go into chambers? (Whereupon, sidebar
was held as follows:)
MS. SPIES: Just putting on a show for the jury. This is more, this is
irrelevant. This is not probative at all.
MS. MILLER: An element of aggravated vehicular assault for the injuries
sustained by Mr. Indermill is serious physical harm and the definition of
serious physical harm is a permanent physical disfigurement. And
according to the best evidence rule, that's the best evidence.
MS. SPIES: He's just putting on a show. This is putting on a show for the
jury. This isn't proving anything. He has serious physical injuries. He's
already testified to that. We know how long he was in the burn unit, we know
he has to put lotion on, and we know this, we know that. For him to unbutton
his shirt and show the jury is ridiculous. It doesn't prove anything. We know
he has serious physical harm.
MS. MILLER: So you're stipulating? You're stipulating to that, the State has
met that evidence?
MS. SPIES: No, no I am not stipulating anything. But what I'm saying is
you're putting on a show -
THE COURT: You have to keep your voice down.
MS. SPIES: Sorry.
THE COURT: The jury can hear.
MS. SPIES: You're putting on a show for the jury and it's not necessary.
Tuscarawas County, Case No. 2019 AP 08 0024 11
THE COURT: I've prepared the jury instructions. The definitions that are
required, I think it is probative and the motion is overruled.
MS. SPIES: Come on Judge.
THE COURT: The objection is overruled.
Trial transcript, pp. 276-277.
{¶28} After the ruling, "[t]he Witness showed his injuries to the jury." We cannot
determine from this record what the jury observed or how the “injuries” were displayed or
the nature of the “injuries.”
{¶29} Trial counsel did not argue that the wound was gruesome, shocking or
inflammatory at trial, but only that the victim and appellee were "putting on a show" and
that it "doesn't prove anything." Appellant objected to the relevancy of the view and did
not contend that the view would be more prejudicial than probative. The court properly
responded to the objection made and determined that the view was probative. Appellant
failed to raise the issue of the alleged prejudicial nature of the view before the trial court
and that failure operates as a waiver of Appellant's right to assert such for the first time
on appeal. Hadley v. Figley, 5th Dist. No. 15-COA-001, 2015-Ohio-4600, 46 N.E.3d 1129,
¶ 22.
{¶30} Even if would interpret the objection as directed toward the alleged
prejudice that would result, Appellant did not make a complete record of what was
disclosed to the jury, so we would be compelled to conclude that the trial court exercised
its discretion appropriately.
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{¶31} For the forgoing reasons, we find appellant's second assignment of error
lacks support in the record. He did not assert that the view of the victims scars would be
more prejudicial than probative, so he as waived that issue. Even if he had preserved the
issue, the record lacks any description of the view that we could review.
{¶32} Appellant's second assignment of error is overruled.
{¶33} Appellant's argument in his third assignment of error is very difficult to
discern from the text of the brief. He cites several cases describing review of allegations
that a conviction was against the manifest weight and sufficiency of the evidence,
reproduces the text of the Revised Code Sections that were contained in the indictment
and notes that three of the charges were dismissed and therefor those charges were not
proven. He then states " [a]s they were not proven, the State must present evidence to
infer that Appellant caused the death and injury involved in the statutes." Appellant's
Brief, p. 8. He concludes by stating "the State's witnesses were not wearing helmets or
protective gear of any kind (TR at 278) and that the State's police witnesses indicated
that the motorcycle riders could have slowed down or in some other way mitigated the
accident, but did not. (TR at 165).” Appellant's Brief, p. 8.
{¶34} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held as follows: “An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
Tuscarawas County, Case No. 2019 AP 08 0024 13
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.”
{¶35} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id. State v. Schoeneman, 5th Dist. Stark No.
2017CA00049, 2017-Ohio-7472, ¶¶ 21-23.
{¶36} While the record does show that the victims were not wearing helmets and
one of the investigating officers did agree that it is possible that the victims may have
been able to slow, there is sufficient evidence in the record to support the jury's finding of
guilt. The testimony of the investigating officers provided competent evidence from which
a reasonable jury could conclude, beyond a reasonable doubt, that appellant was driving
at a high rate of speed, lost control of his vehicle which resulted in the death and serious
physical harm to the motorcycle riders on the road. The record contains sufficient
evidence for a reasonable juror to conclude, beyond a reasonable doubt, that appellant
Tuscarawas County, Case No. 2019 AP 08 0024 14
had consumed alcohol at a time and in sufficient quantity that his ability to drive at the
time of the crash was impaired in violation of R.C. 4511.19.
{¶37} After reviewing the record in a light most favorable to the prosecution, we
hold that a rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt and, after weighing the evidence and all reasonable
inferences, considering the credibility of witnesses and resolving conflicts in the
evidence, we hold this is not a case where the jury clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be overturned and a new trial
ordered.
{¶38} Appellant’s third assignment of error is overruled.
{¶39} In appellant's fourth assignment of error, he claims that he received
ineffective assistance of counsel because trial counsel failed to file a motion to suppress
the results of the OVI testing. Noticeably absent in appellant's argument is the assertion
that, had the motion been filed, it would have had a reasonable probability of changing
the outcome of the trial. Appellant neglects to describe how or why such a motion would
have been successful and relies only upon the assertion that failure to file the motion was
prejudicial.
{¶40} “To demonstrate ineffective assistance for failing to file a motion to
suppress, a defendant must show: (1) a basis for the motion to suppress; (2) that the
motion had a reasonable probability of success; and (3) a reasonable probability that
suppression of the challenged evidence would have changed the outcome at trial.” State
v. Phelps, 5th Dist. Delaware No. 18 CAA 02 0016, 2018-Ohio-4738, ¶ 13 quoting State
v. Clark, 6th Dist. Williams No. WM-09-009, 2010-Ohio-2383, ¶ 21. Accord State v.
Tuscarawas County, Case No. 2019 AP 08 0024 15
Abass, 5th Dist. Stark No. 2016CA00200, 2017-Ohio-7034, ¶¶ 39-40 (A failure to file a
motion to suppress constitutes ineffective assistance of counsel only if, based on the
record, the motion would have been granted).
{¶41} Appellant's argument is not that the motion would have been successful if
filed and that there was a reasonable probability that the outcome of the trial would have
been different had the motion been filed, but only that trial counsel was ineffective for
failing to file the motion. Appellant is inviting us to conclude that failure to file a motion to
suppress is ineffective assistance of counsel without exploring the likely success or
probable consequences of the filing of the motion. He submits that because the
aggravated vehicular homicide and aggravated vehicular assault charges are
"inextricably linked” to the OVI, we should disregard our holding that failure to file a motion
to suppress is not per se ineffective assistance of counsel. State v. Cline, 5th Dist. Licking
No. 09 CA 52, 2009-Ohio-6208, ¶ 19. Aside from this conclusory statement, Appellant
provided no authority or argument justifying a change in our position in Cline and we reject
his suggestion that the holding should be modified for this case.
{¶42} Appellant's fourth assignment of error is overruled because there is neither
evidence nor argument that a motion to suppress had a reasonable likelihood of success.
Tuscarawas County, Case No. 2019 AP 08 0024 16
{¶43} The decision of the Tuscarawas County Court of Common Pleas is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.