State v. Groves

[Cite as State v. Groves, 2022-Ohio-443.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 20CA3904
v. :
JESSICA GROVES, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Valerie Webb, 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 Jessica Groves,
defendant below and appellant herein, guilty of (1) aggravated
murder, (2) murder, (3) kidnapping, (4) child endangerment, (5)
tampering with evidence, (6) interference with custody, (7) gross
abuse of a corpse, and (8) four counts of felonious assault.
1
Different counsel represented appellant during the trial
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{¶2} Appellant raises the following assignment of error for
review:
“APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL DUE TO HER TRIAL COUNSEL ABDICATING HIS
ROLE AS HER ADVOCATE AS WELL AS COMMITTING A
SERIES OF BAFFLING ACTS AND/OR OMISSIONS DURING
THE LITIGATION AND TRIAL OF APPELLANT’S CASE.”
{¶3} On June 14, 2019, a Scioto County Grand Jury returned an
indictment that charged appellant with multiple, serious felony
offenses.2 Daniel Groves, appellant’s spouse and co-defendant,
pleaded not guilty to a similar list of charges on June 17, 2019.
Appellant initially pleaded not guilty by reason of insanity, but
after the trial court found appellant competent to stand trial, on
September 24, 2019 appellant entered not guilty pleas.
court proceedings.
2
The Scioto County Grand Jury returned an indictment that
contained 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. 2903.11(A)(1), a second-degree felony; Count 10 - felonious
assault, in violation of R.C. 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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{¶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 Daniel Groves (hereinafter Groves) arrived at
the hospital at 5:25 a.m. Liles testified that appellant appeared
to be “flat, disconnected and uncooperative,” refused to provide a
urine sample, and refused to answer questions about prenatal care.
Appellant 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, Groves stated that appellant “had
used heroin two days ago.”
{¶5} SOMC staff eventually obtained appellant’s urine sample
that tested positive for amphetamines. Approximately 30 minutes
after appellant entered the hospital, she delivered Baby Dylan
(Dylan). Nurse Liles testified that Groves “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 [Groves] said
was that she [appellant] had used heroin that she was always too
high to go to her prenatal care visits.” * * * “[W]e thought he was
almost looking to [appellant] 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 appellant
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nor Groves 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. Howell further
testified that, while Dylan was in the nursery for several days,
Groves visited once and neither parent asked about Dylan’s
condition.
{¶7} SOMC Obstetrician-Gynecologist Dr. Darren Adams was on
call when appellant and Groves arrived at the hospital. The
hospital called Dr. Adams because appellant had no prenatal care
and was ready to deliver. When Dr. Adams arrived, appellant,
dilated at nine and one-half centimeters, appeared distant and did
not answer questions. Dr. Adams believed appellant might have been
impaired because, typically, a mother that far dilated with no pain
medication would be in extreme pain. Appellant, however, “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 appellant’s
postpartum hemorrhage.
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{¶8} Assistant Nurse Manager Stacey Riffitt testified
appellant kept Dylan for 15 minutes after his birth, but “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
the umbilical cord test shows “every substance the mother used from
20 weeks gestation on.” Riffitt also testified that Dylan required
an oxygen treatment immediately after birth, but they weaned him
from the oxygen treatment within 90 minutes and he was otherwise
“very healthy” with no injuries.
{¶9} When Nurse Riffitt spoke with Groves in appellant’s
hospital room, Daniel Groves told Riffitt he had “just talked with
the physician and asked if meth could be found in heroin.” Groves
also told Riffitt that appellant is a nurse who used heroin and,
after she learned of her pregnancy, she continued to use heroin,
“enough to keep the withdrawal symptoms from happening to her.”
Riffitt returned to the room and Groves’ eyes “looked a little more
glassy. He would not make eye contact with me. His speech was
slow.” Riffitt believed Groves 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
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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
Daniel Groves due to Groves’ negative drug screen, and because he
told SCCS that he did not know about appellant’s drug use during
pregnancy. Frantz also stated that, although SCCS considered the
unconfirmed positive drug screen 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, after the hospital received the cord toxicology
results on January 15, 2019, Dylan would be discharged to foster
care.
{¶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 also 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
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ordered: (1) the children remain in SCCS custody, (2) appellant
complete a drug abuse evaluation and follow all recommendations,
and (3) appellant 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 [appellant] was under the
influence of something.” When Dylan reunited with his parents on
January 28, 2019, Bowling gave the parents 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
appellant’s demeanor.
{¶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, (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
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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 appellant and Groves 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 appellant’s substance abuse as
a threat, and required appellant 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, Craft,
appellant and Daniel Groves. SCCS informed both parents that they
should complete drug and alcohol assessments, participate in
individual counseling, and comply with court orders. Groves also
told Craft that he had a six-month leave from his employment at
Rural King. Immediately after the team meeting, the parents had a
one-hour visit with Dylan. Afterward, Bowling told Craft that she
thought appellant was “loopy” and “on drugs.” At that time Daniel,
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Jr. remained in Groves’ custody.
{¶18} Caseworker Craft further explained that, because Groves
had no violent criminal history and no prior SCCS involvement, SCCS
policy provided that Dylan should be returned to Groves if he could
successfully pass another drug screen. Interestingly, although
Groves’ screen did test clean, neither Craft nor anyone else
directly observed Groves during the drug screen process.
{¶19} SCCS returned Dylan to Daniel Groves 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, appellant 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 unsuccessful phone attempts to contact Daniel Groves.
Craft and another caseworker also visited Groves’ home, but found
no one. Craft then visited Daniel, Jr.’s school and gave him a
note to ask Groves to call Craft. Craft also left notes in Groves’
door and mailbox, and, on February 21, 2019, Craft visited Groves’
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 again returned to Groves’ home, but did
SCIOTO, 20CA3904 10
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 Groves, Dylan had recently visited the doctor and weighed 8
pounds, 9 ounces, and was 22 inches long. Groves also told Craft
that appellant 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, Groves 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 voicemail from Groves that said he was in Canton with his
father.
{¶23} At the March 27, 2019 juvenile court hearing, appellant
appeared but Groves did not. The juvenile court adjudicated the
children to be abused, neglected and dependent, pointed out that
appellant did not complete the 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 Groves, appellant and Dylan. Although Craft did
not inquire why Groves did not attend the March 27, 2019
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adjudication, she did observe appellant feed Dylan. Also, Craft
did not observe any injuries to Dylan. When both parents told
Craft that they had kept all appointments and asked whether
appellant could return home, Craft said she would ask her
supervisor. Craft also reminded them about the April 3, 2019 court
hearing and her next home visit on April 9, 2019.
{¶25} On April 3, 2019, Groves texted Caseworker Craft and said
that, although he and appellant had been ill, they drove to Canton
to visit Groves’ father when their car broke down and they became
stranded. On April 17, 2019, Craft unsuccessfully attempted to
inform Groves that the guardian ad litem wanted to visit their home
and that Craft’s next home visit would be April 24, 2019. At this
point, because Groves had texted Craft from four different numbers,
she and the guardian ad litem attempted to contact Groves at all
four numbers. Further, Craft learned that, since February 8, 2019,
appellant had not complied with her individual therapy visits and
she last attended a group session on March 26, 2019.
{¶26} At the April 18, 2019 juvenile court hearing, Groves’
attorney, appellant’s 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.
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{¶27} On April 19, 2019, Caseworker Craft again visited Groves’
home, knocked on the door for several minutes, then left cards in
the door and mailbox that asked Groves to call. Craft also
contacted Rural King because she thought Groves could be at work,
but Rural King informed her that Groves quit his job in 2018. That
same day, Groves texted Craft and said he was still “up north” and
a friend watches his home when he is away. Groves also told Craft
that Dylan was “doing great. Growing like a weed. LOL.” Because
of car trouble, Groves 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 then visited
school to talk with Daniel, Jr., who appeared to be nervous, but
told her Dylan was fine. When Craft asked if appellant stayed at
their home, first Daniel, Jr. said, “yes,” then he said
“occasionally.” When asked about his ill grandfather in Canton,
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 Groves’ text that asked why Daniel, Jr. did not come
home from school. Craft then visited Groves’ home and, because of
parked cars assumed everyone to be home, but received no answer.
Craft then texted Groves to tell him to bring Dylan, along with the
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children’s personal items, to the agency the next day. Groves 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 Groves 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 also
testified that other agencies, including the juvenile court and
Care Source, searched for Groves.
{¶31} On June 10, 2019, Caseworker Craft learned that law
enforcement had arrested both Groves and appellant 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.”
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{¶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 informed him that Dylan 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.
{¶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, appellant and Groves 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 because he did not know that the
SCIOTO, 20CA3904 15
hospital had completed a 17-hydroxy progesterone test, Dr. Hudson
ordered another test. Additionally, although Dylan exhibited no
injuries at his February 21, 2019 office visit, he weighed 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 appellant to stress the
importance of another test and threatened that, if appellant did
not repeat the screening, “they will involve Children’s Protective
Services.” In addition to the letters, Dr. Hudson’s office called
Groves and appellant, but received no response. Dr. Hudson further
testified that in his 30 years of experience, he had never seen a
two-to-three month old baby fracture his own skull, ribs, arms or
legs.
{¶35} Mahajan Therapeutics Therapist Jessica Byrd testified
that SCCS referred appellant to their facility for assessment and
treatment. Appellant 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, appellant became
“very inconsistent and eventually then just totally stopped
coming.” Byrd also contacted SCCS on February 14, 15, 22, 27,
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March 1, and April 2, 2019 about appellant’s noncompliance.
Apparently, appellant attended one group counseling session on
March 26, 2019, but Byrd said she 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 appellant 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 appellant to report to Dunham twice per
month. Dunham met with appellant on January 24, 2019, reviewed her
requirements and completed a drug court assessment. Appellant,
however, missed three report dates and did not appear until March
28, 2019 when she told Dunham she missed appointments because she
had no transportation. Dunham also visited appellant’s residence
on May 31, June 3, June 4, June 5, and June 10, 2019, but could not
locate appellant.
{¶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 home, but he did not see anyone. When Murphy
SCIOTO, 20CA3904 17
began to leave, he spoke with a neighbor who told him that “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 appellant and
Groves riding atop a four-wheeler. Murphy attempted to stop them,
but Groves “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, appellant exited, screamed,
cursed and informed officers that SCCS had already taken Dylan.
Appellant would not, however, answer whether Groves remained inside
the home. When Groves did not exit, officers sent a robot into the
home. Eventually, officers apprehended Groves and he told them he
had “been asleep the whole time.” When Giles asked about Dylan,
Groves said 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
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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 the sixth rib an “old healing fracture, and
the same thing on rib seven next to it, a large nodular area, which
is 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
SCIOTO, 20CA3904 19
decomposing from being concealed in - - in water for months.” Dr.
Brown also believed that the fractures showed at least three
different traumas. Toxicology reports also detected
methamphetamine and amphetamine in Dylan’s liver.
{¶40} Scioto County Sheriff’s Detective Jodi Conkel interviewed
appellant after her arrest and described her as “very standoffish,
cold, didn’t really want to talk to me, kind of annoyed.”
Appellant told Conkel that SCCS had taken Dylan and Daniel, Jr.,
and that she did not use illegal drugs. Later that day, Conkel
interviewed Groves who also maintained that SCCS had taken Dylan.
Conkel said Groves appeared to be “dope sick,” which he did admit
to Conkel. Groves later told Conkel that he found Dylan in his
crib deceased.
{¶41} On June 12, 2019, Detective Conkel interviewed appellant
and Groves. During this conversation, Groves admitted that SCCS
did not take Dylan. The Sheriff’s Office also accommodated Groves’
request to talk to appellant, 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).
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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.
{¶42} At some point, Groves 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.
{¶43} Daniel, Jr., the co-defendants’ 15-year old son,
testified he first found out about appellant’s pregnancy “somewhere
around in November” 2018. Before his April 24, 2019 removal from
the home, Daniel, Jr. observed bruising and swelling on Dylan’s
head, and, when he asked his parents what happened, Groves 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 Groves, both before and after
Dylan’s birth, and Groves then put the urine in a capped lid
bottle.
{¶44} At the close of the state’s case-in-chief, the trial
court conducted a lengthy and thorough discussion with the co-
defendants and informed them about their right to testify or not to
SCIOTO, 20CA3904 21
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,
appellant 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?
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?
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A: To the well.
Q: Did you murder Dylan Groves?
A: Not intentionally.
{¶45} On cross-examination, the state asked appellant how she
caused Dylan’s death, to which she replied, “[i]t was an accident.”
When asked about the rib fractures, appellant replied, “by dropping
him.” When asked about the skull fracture, appellant said, “I
don’t remember. * * * It had to be from dropping him.” When asked
about the upper arm fracture, appellant 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 details about how she caused Dylan’s death, appellant 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 appellant that she must submit to
cross-examination or her testimony would be stricken. Appellant
then responded to most questions “I don’t remember.” Eventually,
appellant did state that she did not have a clear mind “because of
drugs,” and that Groves, her co-defendant, participated only in the
preparation and concealment of Dylan’s body.
{¶46} After Groves testified about his prior shoplifting
conviction, he addressed the facts in the case at bar and stated
SCIOTO, 20CA3904 23
that appellant first told him about her pregnancy in October or
November 2019. About five minutes into their trip to the hospital
for Dylan’s birth, appellant also told Groves that “she had been
using drugs and that she had not went to her [prenatal]
appointments.” According to Groves, he hesitated to answer medical
questions at the hospital because he had not processed what he had
just learned, and that appellant could be “intimidating.” Groves
did say he visited Dylan once in the nursery and inquired about his
health. Groves also claimed he was not impaired while at the
hospital, but that he may have given that appearance because he had
“been up for over 30 some hours straight.” Additionally, Groves
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. Groves
explained the reason he did not give his urine to his friend is
because he “smoked some marijuana and occasionally would hit - -
smoke, you know a little.” Thus, Groves claimed he did not use his
son’s urine to fake his own drug test.
{¶47} Groves also testified that he recalled seeing bruises on
Dylan’s head, but did not see swelling. Groves believed 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
SCIOTO, 20CA3904 24
his head. Groves testified he did not cause Dylan’s death and he
was not present when Dylan died. Instead, Groves said he found
Dylan deceased in his crib. Groves also stated that, after
appellant told him that because he had custody SCCS would blame him
for Dylan’s death, he became scared and lied to law enforcement.
Groves did admit, however, that he told Detective Conkel that he
had “seen [appellant] 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.” Groves also admitted he told Conkel, “[o]ne
time I saw her, she had a hold of him like below his arms. * * *
Like by his ribs or something and she just kind of went ahh.” Once
again, Groves said he did not tell the truth because he feared “he
would get the blame for it completely.”
{¶48} After hearing the evidence, the jury found appellant
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)
SCIOTO, 20CA3904 25
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.
{¶49} At that point, 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.
{¶50} For sentencing, the trial court imposed the following
prison sentences: (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 also ordered (1) Counts 5
and 7 to be served concurrently, (2) Count 1, 2, 3, 4, 6, 8, 9, 10,
and 11 to be served consecutively, and (3) five-year mandatory
post-release control.
{¶51} Consequently, the trial court sentenced appellant to
serve an aggregate prison term of life without parole, plus an
SCIOTO, 20CA3904 26
additional 32 years. This appeal followed3.
I.
{¶52} In her sole assignment of error, appellant asserts that
her trial counsel’s performance fell below an objective standard of
reasonable performance and representation. Appellant argues that,
during the trial court proceeding, her counsel abdicated his role
as her advocate and, instead, committed a series of baffling acts
3
Co-defendant Daniel Groves’ appellate case number is
20CA3902. At the conclusion of the trial, the jury found Daniel
Groves 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. 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. The court then imposed the
following prison sentence (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 term 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, (7) eight years for
Count 9 felonious assault. The court further ordered: (1) the
tampering with evidence 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
five year mandatory post-release control. Thus, the court
sentenced Daniel Groves to serve an aggregate prison term of 47
SCIOTO, 20CA3904 27
or omissions. In particular, appellant contends that, although
counsel did act according to appellant’s wishes and appellant
acknowledged her guilt in order to absolve her co-defendant husband
of murder, she would have been in a better position had trial
counsel simply not spoken a word during her trial.
A. Trial Strategy
{¶53} Appellant initially asserts that her trial counsel’s
strategy fell below the realm of legitimate trial strategy.
Specifically, appellant argues that her trial counsel “abandoned
his role as an advocate for [appellant] and instead acted as
another prosecutor in a misguided attempt to pin the blame of Dylan
Groves’ death on appellant to save her codefendant, Daniel Groves.”
{¶54} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provides that
criminal defendants shall have the assistance of counsel for their
defense. The United States Supreme Court has 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 a claim of ineffective assistance of
counsel, a defendant must show (1) counsel's deficient performance,
years to life.
SCIOTO, 20CA3904 28
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 prongs of the Strickland test 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.
{¶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 their duties ethically and
competently, State v. Taylor, 4th Dist. Washington No. 07CA11,
2008-Ohio-482, ¶ 10, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel's errors were “so
serious” that counsel failed to function “as the ‘counsel’
SCIOTO, 20CA3904 29
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 her trial
counsel provided ineffective legal assistance, but it appears that
counsel based his actions on a particular underlying strategy, a
strategy to which appellant and her co-defendant husband explicitly
agreed.
{¶58} Generally, a defendant has no constitutional right to
determine trial tactics and strategy of counsel. 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 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 usually falls within the ambit of trial strategy.
Debatable trial tactics do not generally establish ineffective
SCIOTO, 20CA3904 30
assistance of counsel. State v. Hoffner, 102 Ohio St.3d 358, 2004-
Ohio-3430, 811 N.E.2d 48, ¶ 45. Further, even 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 her argument that the events
that transpired 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 even he did not believe
Burgins, and that he 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,
and that 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 defense 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.
SCIOTO, 20CA3904 31
{¶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, May argued he received ineffective assistance. The
First District held, however, that unlike Burgins, nothing in the
record suggested that May planned to maintain his innocence. May
at ¶ 9. Thus, 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
stipulations. Consequently, the court concluded that no prejudice
occurred. Id. at ¶ 10.
{¶62} Appellee also points out that in State v. McGlone, 4th
Dist. Scioto No. 90CA1910, 1992 WL 50021 (Mar.11, 1992), counsel
admitted guilt on a minor offense to make more credible his
proclamations of innocence on the more serious offenses. Thus,
appellee contends that the instant case is more similar to May and
McGlone than Burgins because, although appellant’s counsel’s
opening statement admitted her guilt, counsel had “the primary goal
of attempting to exonerate Daniel Groves from the Aggravated
Murder, Murder, and Felonious Assault counts.” Appellee further
SCIOTO, 20CA3904 32
points out that this strategy ultimately proved to be successful
because the jury did, in fact, find appellant’s husband co-
defendant not guilty of aggravated murder. In addition, like May,
nothing in the record suggests that appellant planned to maintain
her innocence. In fact, appellant openly stated her intention to
concede guilt in an attempt to help her husband.
{¶63} As appellee further notes, appellant’s trial counsel
stated during the December 18, 2019 pretrial: “MR. STRATTON: Your
Honor, just as mentioned in chambers, that the one issue that we
will address before opening statements at trial. THE COURT: I will
- I’ll ask you to remind me of that before - - before we give
openings after - - once we have a jury selected.” At the beginning
of the trial, appellant’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.”
{¶64} Thereafter, the trial court explained to appellant her
right to testify or not to testify, the implications of both, and
that she could change her mind. Appellant stated that she
understood the trial court’s advisements, had consulted with
counsel about her wishes, and had no questions:
SCIOTO, 20CA3904 33
THE COURT: All right. Now, early on in this case during
some pretrial hearings we had some discussions here in
the courtroom about whether to try these cases together
or to try them separately. Do you remember those
pretrial hearings we had on that, Ms. Groves?
DEFENDANT J. GROVES: I do.
THE COURT: And we discussed a case here in the courtroom
called Bruton, which deals with the issues of statements
from codefendants in cases, and those statements being
offered where they implicate a codefendant where someone
doesn’t testify. Do you remember those discussions?
DEFENDANT J. GROVES: I do.
THE COURT: And do you feel like you understood that when
we discussed that?
DEFENDANT J. GROVES: Yes, Your Honor.
TRIAL COURT: 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?
DEFENDANT J. GROVES: Yes, Your Honor.
THE COURT: And that would be - - well, we’d probably have
a hearing to determine what or what extent those
statements came in. But do you have any questions for me
concerning this issue?
DEFENDANT J. GROVES: No, Your Honor, I don’t.
THE COURT: Do you feel like you understand the issues and
do you feel like you have information to make that
decision?
SCIOTO, 20CA3904 34
DEFENDANT J. GROVES: Yes, Your Honor.
THE COURT: All right. And, ma’am, do you understand that
the decision whether to testify or you don’t testify is
solely your decision?
DEFENDANT J. GROVES: Yes, I do.
Appellant’s trial counsel then 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
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
SCIOTO, 20CA3904 35
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 co-defendant husband’s counsel’s gave opening statement
as follows:
* * *
[W]e would argue and support that position in this matter
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.
SCIOTO, 20CA3904 36
* * *
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
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.
{¶65} After appellant’s counsel’s opening statement and
admission that appellant alone caused Dylan’s death, and
acknowledgment that appellant’s co-defendant husband 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?
SCIOTO, 20CA3904 37
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
chances as to an ultimate outcome. Do you understand
that?
DEFENDANT J. GROVES: Yes, sir.
THE COURT: And you’ve contemplated this before you’ve
proceeded with this strategy; is that correct?
DEFENDANT J. GROVES: Yes, sir.
As the appellee points out, appellant and her co-defendant both
urged their counsel to employ this particular strategy so that
appellant could admit culpability for Dylan’s death, and to allow
her husband co-defendant to only admit that he helped to conceal
Dylan’s body.
{¶66} The right to effective assistance of counsel also extends
to opening and closing arguments. Yarborough v. Gentry, 540 U.S.
1, 5–7, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003); Bell v. Cone, 535 U.S.
685, 701–02, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). As appellee
notes, as a general matter both the prosecution and the defense
SCIOTO, 20CA3904 38
have “wide latitude during opening and closing arguments.” State
v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, ¶ 22,
citing State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-
3109, ¶ 33, Sunbury v. Sullivan, 5th Dist Delaware No. 11CAC030025,
2012-Ohio-3699, ¶ 30; McLeod v. Mt. Sinai Med. Ctr., 166 Ohio
App.3d 647, 2006-Ohio-2206, 852 N.E.2d 1235, ¶ 30 (reversed in part
by Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-
5587, 876 N.E.2d 1201), citing Presley v. Hammack, 7th Dist.
Jefferson No. 02 JE 28, 2003-Ohio-3280.
{¶67} In general, only in cases “ ‘[w]here gross and abusive
conduct occurs, is the trial court bound, sua sponte, to correct
the prejudicial effect of counsel's misconduct.’ ” (Emphasis
omitted.) Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d
495, 501, 721 N.E.2d 1011 (2000), quoting Snyder v. Stanford, 15
Ohio St.2d 31, 37, 238 N.E.2d 563 (1968), superceded by rule on
other grounds as stated in King v. Branch Motors Express Co., 70
Ohio App.2d 190, 197, 435 N.E.2d 1124 (2d Dist.1980). “Moreover,
counsel's behavior has to be of such a reprehensible and heinous
nature that it constitutes prejudice before a court can reverse a
judgment because of the behavior.” McLeod at ¶ 31, citing Hunt v.
Crossroads Psych. & Psychological Ctr., 8th Dist. Cuyahoga No.
79120, 2001 WL 1558574 (Dec. 6, 2001); Kubiszak v. Rini's
SCIOTO, 20CA3904 39
Supermarket, 77 Ohio App.3d 679, 688, 603 N.E.2d 308 (8th
Dist.1991); Redlin v. Rath, 6th Dist. Lucas No. L–06–1144, 2007-
Ohio-2540, ¶ 44.
{¶68} In the case sub judice, appellant does not claim that at
trial she disagreed with, or objected to, her counsel's strategy to
concede guilt during opening statement, which is a requirement for
her argument that reversible error occurred. State v. Froman, 162
Ohio St.3d 435, 2020-Ohio-4523, ¶ 142, citing McCoy v. Louisiana,
__ U.S.__, 138 S.Ct. 1500, 1511, 200 L.Ed.2d 821 (2018). For
example, in McCoy, supra, the U.S. Supreme Court examined a
defendant’s right to control his or her defense. In McCoy, defense
counsel conceded the defendant’s guilt several times throughout the
trial, despite the defendant’s repeated objections. The court held
that under the Sixth Amendment, a defendant retains the autonomy to
decide that the defense objective is to assert innocence, much like
the decisions “whether to plead guilty, waive the right to a jury
trial, testify in one’s own behalf, and to forego an appeal.” 138
S.Ct. at 1508.
{¶69} The McCoy court also distinguished Florida v. Nixon, 543
U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), when the defendant
remained silent and did not object to counsel’s strategy to concede
guilt. McCoy, however, clearly opposed counsel’s strategy to
SCIOTO, 20CA3904 40
concede guilt and made this known “before and during trial, both in
conference with his lawyer and in open court.” McCoy, 138 S. Ct.
at 1509. Additionally, the prejudicial error analysis under
Strickland v. Washington for counsel’s ineffective assistance did
not apply because this issue concerned the client’s autonomy, not
counsel’s competence. Consequently, because a McCoy-type violation
constitutes structural error, a defendant need not show prejudice.
In the case at bar, however, we recognize that appellant chose to
remain silent about her trial strategy. Moreover, when asked to
expressly acknowledge to the trial court her approval of this
particular strategy, she did so. However, apparently in retrospect
appellant now opposes this strategy. Although this strategy may
appear to be unusual, it nevertheless conformed to the appellant’s
wishes and sought to achieve her goal to help her co-defendant
husband avoid a murder conviction.
{¶70} Appellant also cites State v. Owens, 81 Ohio App.3d 412,
416-417, 611 N.E.2d 369 (4th Dist.1992) in support. Owens involved
DNA typing admissibility for a defendant charged with rape. On the
day of trial, defense counsel, who did not subpoena his expert
witness, requested a continuance because he could not locate his
expert and he argued he could not go forward without the expert.
After the court denied counsel’s motion for a continuance and
SCIOTO, 20CA3904 41
motion to withdraw, counsel moved for a mistrial on the grounds of
his own ineffective assistance. The court, however, denied the
motion, but counsel told the court he would present no witnesses
for the defense and rested. Id. We, however, believe Owens is
inapplicable to the case at bar. In the case sub judice, the trial
court openly, fully and repeatedly discussed and questioned
appellant and her 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 counsel. In fact,
the court reviewed these issues multiple times at pretrial hearings
on August 1, August 28, October 30, and December 18, 2019.
Further, at the start of the trial, appellant’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 fully discussed with
appellant her options and decisions, including whether appellant
and her co-defendant understood their right to testify or not to
testify, and that they could change their decision. Moreover,
before appellant took the stand, she again indicated that she
understood the ramifications of her testimony.
SCIOTO, 20CA3904 42
{¶71} Appellant, now, in retrospect, believes that she should
have employed a different trial strategy. Although appellant’s
strategy to admit to the commission of a murder in an attempt to
exonerate her co-defendant husband may, in hindsight, be viewed as
a questionable trial strategy, an attorney who defers to a client’s
wishes does not generally 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; see e.g., State v. Keith,
79 Ohio St.3d 514, 536, 684 N.E.2d 47 (1997) (deferring to client’s
desire not to present mitigation during penalty phase does not
constitute ineffective assistance).
{¶72} The deficient performance portion of an ineffectiveness
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 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
SCIOTO, 20CA3904 43
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).
{¶73} Moreover, and critical to this analysis, courts should
not simply assume the existence of prejudice but, instead, require
that prejudice be affirmatively shown. 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.
Thus, even if, for purposes of argument, we believe that counsel’s
actions in the case sub judice could be viewed as somewhat
misguided, we also cannot conclude that, but for counsel’s errors,
the result of the trial would have been different. Although a
strategy that includes appellant’s admission that she alone caused
Dylan’s death could be viewed, in hindsight, as unwise, the second
prong of Strickland requires a defendant to establish prejudice.
To do so, a defendant 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,
SCIOTO, 20CA3904 44
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).
{¶74} 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 should
not simply presume the existence of prejudice but, instead, must
require a defendant to affirmatively establish prejudice. Bradford
at ¶ 21; Clark at ¶ 22; State v. Tucker, 4th Dist. Ross No.
01CA2592, 2002 WL 507529 (Apr. 2, 2002). Moreover, as courts
repeatedly recognize, 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
SCIOTO, 20CA3904 45
argument cannot serve as the basis for ineffectiveness claim).
{¶75} In the case sub judice, our review of the evidence
adduced at trial reveals that appellee presented 20 witnesses and
79 exhibits. The jury heard, inter alia, that: (1) appellant
lacked prenatal care for Dylan because of drug use, (2) appellant
was under the influence of drugs when she arrived at the hospital,
(3) appellant did not comply with hospital staff requests, (4)
appellant’s hospital test results revealed the presence of
methamphetamines, fentanyl, and opiates, (5) Dylan’s umbilical cord
tested positive for amphetamines, methamphetamines, fentanyl,
opiates and morphine, (6) appellant showed little interest in Dylan
at the hospital, (7) appellant did not comply with the SCCS case
plan, (8) appellant failed to follow through with drug treatment,
(9) appellant fled from law enforcement, (10) appellant lied to
investigators, (11) Dylan, while born with neonatal abstinence
syndrome, was otherwise healthy when he left the hospital, (12)
Dylan was a victim of blunt force trauma and his cause of death was
“homicidal violence of undetermined etiology,” and (13) appellant
and her co-defendant discussed during a jailhouse conversation the
location and condition of Dylan’s body.
{¶76} Consequently, after our review of the evidence adduced at
trial, including the witness testimony and physical evidence, we do
SCIOTO, 20CA3904 46
not believe that appellant satisfied her burden to show that a
reasonable probability exists that, absent the alleged errors,
trial counsel’s performance changed the trial’s outcome and the
jury would have had a reasonable doubt about appellant’s guilt.
B. Errors and Omissions
{¶77} In addition to the challenge of trial counsel’s trial
strategy to admit guilt, appellant further contends that her trial
counsel made several other significant errors that prejudiced her.
1. Failure to Obtain and Request Investigative
Services
{¶78} Appellant asserts that trial counsel unreasonably failed
to request investigative services, to which she is entitled in an
aggravated murder case pursuant to R.C. 2929.024. The version of
R.C. 2929.024 in effect at the time of appellant’s trial stated:
If the court determines that the defendant is indigent
and that investigation services, experts, or other
services are reasonably necessary for the proper
representation of a defendant charged with aggravated
murder at trial or at the sentencing hearing, the court
shall authorize the defendant's counsel to obtain the
necessary services for the defendant, and shall order
that payment of the fees and expenses for the necessary
services be made in the same manner that payment for
SCIOTO, 20CA3904 47
appointed counsel is made pursuant to Chapter 120. of the
Revised Code. * * *
{¶79} “R.C. 2929.024 requires trial judges to grant funds in
aggravated murder cases for investigative services and experts when
‘reasonably necessary for the proper representation’ of indigent
defendants. Such decisions are to be made ‘in the sound discretion
of the court’ based upon ‘(1) the value of the expert assistance to
the defendant’s proper representation * * * and (2) the
availability of alternative devices that would fulfill the same
functions.’” State v. Mason, 82 Ohio St.3d 144, 150, 694 N.E.2d
932 (1998), citing Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264,
paragraph four of the syllabus. Consequently, “due process, as
guaranteed by the Fifth and Fourteenth Amendments to the United
States Constitution and Section 16, Article I of the Ohio
Constitution, requires that an indigent criminal defendant be
provided funds to obtain expert assistance at state expense only
where the trial court finds, in the exercise of a sound discretion,
that the defendant has made a particularized showing (1) of a
reasonable probability that the requested expert would aid in his
defense, and (2) that denial of the requested expert assistance
would result in an unfair trial.” Id.SCIOTO, 20CA3904 48
{¶80} In the case sub judice, and as appellee points out,
appellant does not raise specific points or arguments about what
particular investigative services would have been reasonably
necessary. Instead, appellant argues that her “fundamental rights
were violated when trial counsel inexplicably failed to request any
funding to seek investigative assistance in this matter.” We,
however, disagree. Here, appellant did not demonstrate a
particularized need for assistance and did not establish that any
denial of expert assistance resulted in an unfair trial. Moreover,
as we point out in other portions of this opinion, we also believe
that the evidence of appellant’s guilt adduced at trial in this
case is overwhelming.
{¶81} Therefore, in view of the foregoing reasons, we disagree
with appellant’s contention that trial counsel’s failure to seek
investigative assistance denied appellant her constitutional or
statutory rights.
2. Failure to Sever
{¶82} Appellant also asserts that despite prejudicial joinder
with her co-defendant’s trial, her trial counsel did not request a
separate trial. However, as this court wrote in State v. Evans,
SCIOTO, 20CA3904 49
4th Dist. Scioto No. 08CA3268, 2010-Ohio-2554, ¶ 41, as a general
rule the law favors the 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, 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).
{¶83} To establish that a trial court’s refusal to sever a
trial constitutes reversible error, a defendant must show: “(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) 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 abuses its discretion when it acts unreasonably,
SCIOTO, 20CA3904 50
arbitrarily, or unconscionably. Adams, supra, at 157. However, a
trial court’s refusal to grant a severance request does not
constitute an abuse of discretion when the prejudicial aspects of
joinder are too general and speculative. Evans at ¶ 42, citing
State v. Payne, 10th Dist. Franklin No. 02AP–723, 02AP-725, 2003–
Ohio–4891.
{¶84} In the case sub judice, appellant complains that her
trial counsel did not move to sever her case from her co-
defendant’s case and that the “benefits of such a motion are
immediately apparent.” Appellant contends that, if the court had
severed the cases, defense counsel could have argued that appellee
could not prove who caused Dylan’s injuries. However, we once
again recognize that appellant and her co-defendant explicitly
expressed to counsel and to the court their wishes concerning their
respective cases and their trial strategy. As we previously
discussed, the court fully advised appellant before the trial
began:
THE COURT: All right. Now, early on in this case during
some pretrial hearings we had some discussions here in
the courtroom about whether to try these cases together
or to try them separately. Do you remember those
pretrial hearings we had on that, Ms. Groves?
DEFENDANT J. GROVES: I do.
THE COURT: And we discussed a case here in the courtroom
SCIOTO, 20CA3904 51
called Bruton, which deals with the issues of statements
from codefendants in cases, and those statements being
offered where they implicate a codefendant where someone
doesn’t testify. Do you remember those discussions?
DEFENDANT J. GROVES: I do.
THE COURT: And do you feel like you understood that when
we discussed that?
DEFENDANT J. GROVES: Yes, Your Honor.
* * *
THE COURT: Ms. Scott, Mr. Stratton, do you have any
issues on this Bruton issue? We discussed it pretty
thoroughly at the pretrial hearings when we decided
whether to try these cases together or separately?
Anything further, Ms. Scott?
MS. SCOTT: Not at this time, Your Honor. I believe that
we have either addressed or discussed the issues and
ruled any conflicts out at this time. Thank you.
THE COURT: Mr. Stratton?
MR. STRATTON: No issues, Your Honor.
THE COURT: All right. I am going to order the no - - at
this point no statement be played to the jury that would
implicate a codefendant. We may readdress that ruling
depending on what Defense portion of this case would look
like.
{¶85} In State v. Rosen, 151 Ohio St. 339, 86 N.E.3d 24 (1949),
different counsel represented the defendants, as in the case at
bar, but their defenses were antagonistic. The court held,
“[w]here it is disclosed, preceding the trial of codefendants
jointly charged with the commission of a felony, that a signed
SCIOTO, 20CA3904 52
confession by one of the defendants, made in the absence of his
codefendants, will be put in evidence, which confession contains
statements showing the guilt of a codefendant, and based thereon an
application for separate trial is duly made by that codefendant, 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 inculpate his or her co-defendant. Daniels, 92 Ohio
App.3d at 486, 636 N.E.2d 336. In the case at bar, however,
appellant and her co-defendant did not advance mutually
antagonistic defenses. Instead, they agreed, as their expressed
trial strategy, that appellant alone would admit that she caused
Dylan’s death, and her co-defendant husband would admit only to his
participation in the disposal of Dylan’s body.
{¶87} Further, even if the defenses appeared, for the purposes
of argument, to be 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., 506 U.S.
534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Instead, to
SCIOTO, 20CA3904 53
demonstrate 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). The essence or
core of the defenses must 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, we recognize that both appellant
and her co-defendant testified at trial, and that the essence of
their testimony, that appellant alone caused Dylan’s death and her
co-defendant husband participated only in concealing Dylan’s body,
is not in conflict. Thus, we cannot conclude that counsel’s
failure to request to sever the cases constitutes ineffective
assistance. As stated above, the trial court fully, openly and
thoroughly discussed with the parties their desired trial strategy
to ensure that they fully understood the ramifications of their
plan. Although unusual, trial counsel did obey his client’s wishes
in light of the trial court’s numerous warnings and admonitions
that, once again, fully informed the parties of the consequences of
their strategy.
SCIOTO, 20CA3904 54
{¶89} Additionally, even without appellant’s, or her co-
defendant’s, testimony, the jury would have heard testimony and
evidence that (1) appellant lacked prenatal care for Dylan due to
drug use, (2) appellant was under the influence of drugs when she
arrived at the hospital, (3) appellant did not cooperate with
hospital staff, (4) appellant’s test results revealed a positive
test for methamphetamines, fentanyl, and opiates, (5) Dylan’s
umbilical cord was positive for amphetamines, methamphetamines,
fentanyl, opiates and morphine, (6) appellant showed little
interest in Dylan at the hospital, (7) appellant did not comply
with the SCCS case plan, (8) appellant failed to complete drug
treatment, (9) appellant fled from law enforcement, (10) appellant
lied to investigators, (11) Dylan, while born with neonatal
abstinence syndrome, was otherwise healthy when he left the
hospital, a (12) Dylan was a victim of blunt force trauma and his
cause of death was “homicidal violence of undetermined etiology,”
and (13) appellant and her co-defendant husband discussed during a
jailhouse conversation the location and condition of Dylan’s body.
{¶90} After our review, and in light of the foregoing, we
conclude that appellant did not establish that she suffered
prejudice from the joint trial and from counsel’s failure to file a
motion to sever appellant’s trial from the trial of her co-
SCIOTO, 20CA3904 55
defendant.
3. Counsel’s Assistance in Preparing
Appellant’s Testimony
{¶91} Appellant asserts that, in spite of trial counsel’s
opening statement that appellant alone caused Dylan’s death and
that she takes full responsibility for her actions, at trial and
during appellant’s testimony, she nevertheless appeared to be
“unprepared to answer the most basic question as to how she caused
any injuries to her child.”
{¶92} In support of her argument, appellant cites State v.
Ikharo, 10th Dist. Franklin No. 02AP-632, 2003-Ohio-2319. In
Ikharo, the defendant, charged with one count of burglary, heard
counsel’s opening statement that Ikharo had nothing to hide and
would indeed testify, in spite of his prior criminal convictions.
Apparently, no physical evidence existed of forcible entry and the
evidence adduced at trial was not otherwise overwhelming. Ikharo,
however, chose not to testify and the jury found him guilty. The
Tenth District determined that Ikharo established counsel’s
deficient performance because counsel disclosed Ikharo’s prior
convictions during opening statement when, in fact, Ikharo
SCIOTO, 20CA3904 56
subsequently chose not to testify. Id. at ¶ 18. Consequently, the
court concluded that in light of the less than overwhelming
evidence adduced at trial, a reasonable probability existed that
the results of Ikharo’s trial would have been different because the
“evidence adduced at trial was not sufficient enough to outweigh
defense counsel’s deficient performance.” Id. at ¶ 21. However,
unlike Ikharo, after our review in the case at bar we believe that
the evidence of appellant’s guilt is overwhelming.
{¶93} Appellant also now appears to argue that at trial, she
did not actually take full responsibility for her crimes, as trial
counsel had promised. However, appellant did testify, in essence,
in the manner that counsel laid out during opening statement.
Although appellant’s testimony may have been somewhat less than
forthcoming, appellant did testify that she caused Dylan’s death
and helped her co-defendant husband conceal Dylan’s body. On
cross-examination, appellant did appear to be somewhat evasive or
reticent in providing details concerning her actions with Dylan,
and then stated it was “an accident,” “not intentional,” or “by
dropping him.” Shortly thereafter, appellant stated she was “done
talking to you [the prosecutor],” accused appellee of “devouring”
her family, and stated, “I’ve admitted to my guilt.” During a
bench conference, trial counsel stated, “Your Honor, I’ve told her
SCIOTO, 20CA3904 57
to answer truthfully and answer the questions, that she does - -
does not have a right to - - to not answer questions while she
takes the stand.” Later, appellant testified that she did not
recall details because “my mind wasn’t clear * * * because of
drugs.” Appellant also admitted she wrapped Dylan in six layers of
plastic and admitted that her co-defendant husband helped her, and
that she and her co-defendant husband drove Dylan to the well on
their four-wheeler, “[w]e put him in the well and we sit in the
field and cried.”
{¶94} Although at trial appellant may have appeared to be
uncooperative, and apparently refused to fully answer certain
questions about various details concerning Dylan’s injuries and
death, she did, however, admit that she caused Dylan’s death and
helped to conceal his body. These admissions occurred as trial
counsel pursued the co-defendants’ joint trial strategy.
{¶95} Finally, we once again recognize the overwhelming
evidence in the case at bar that far outweighs any possible mistake
that counsel committed in this regard. Thus, we cannot conclude
that trial counsel’s actions prejudiced appellant.
4. Electing Trial by Jury
SCIOTO, 20CA3904 58
{¶96} Appellant asserts that trial counsel should have advised
appellant to plead guilty, rather than proceed to a jury trial.
Appellant points out that concessions of guilt, in any form, are
among the most troublesome actions defense counsel can make, and
cites State v. Goodwin, 84 Ohio St.3d 331, 336-37, 703 N.E.2d 1251(1999), in support.
{¶97} In Goodwin, during a murder trial counsel conceded his
client’s guilt and stated that all three men (including two co-
defendants) “are guilty of all charges in the indictment.” Id. at
336. The Supreme Court of Ohio held that courts must consider a
defense counsel’s concession of guilt on a case-by-case basis, and,
when examined within the context of the entire record of the trial
proceedings, “the statements of guilt made by Goodwin’s defense
counsel were neither deficient nor prejudicial. The statements
made did not constitute an abandonment of defense of Goodwin.” Id.
at 338. Instead, the court determined that counsel’s statements
appeared to have been an attempt to concede Goodwin’s participation
in the robbery, and to preserve the credibility of the only
plausible defense theory that, in light of the strong evidence
against Goodwin and despite Goodwin’s participation in the robbery,
he did not kill the victim. The Goodwin court further noted that
SCIOTO, 20CA3904 59
even assuming, arguendo, that counsel’s statements may have
arguably constituted deficient representation, the prejudice
requirement had not been satisfied because overwhelming evidence
existed against the defendant, including physical evidence and a
confession.
{¶98} Similarly, in the case sub judice we conclude that, under
the unique circumstances present in the case at bar, counsel’s
statements and counsel’s participation to permit appellant to
decline to enter a guilty plea, but rather to concede guilt at
trial in the hope of reducing her co-defendant husband’s criminal
culpability, which also undergirded her co-defendant’s trial
strategy, made no practical difference in the trial’s result.
{¶99} Moreover, as the appellee points out, the December 18,
2019 pretrial transcript confirms that “there have been no offers
made from either side.” Thus, no evidence exists in the record of
any offer, other than to plead guilty to the charges included in
the indictment. Once again, appellant adopted a trial strategy to
help her co-defendant husband escape a murder conviction and to
require appellee to present evidence to prove the elements of the
charged crimes.
5. Meaningful Cross-Examination
SCIOTO, 20CA3904 60
{¶100} Appellant asserts that, despite having received funds for
the assistance of a forensic expert to help to interpret Dr.
Brown’s autopsy report, trial counsel made no meaningful attempt to
cross-examine Dr. Brown as to alternate possible causes of Dylan’s
injuries.
{¶101} In support of this proposition, appellant cites State v.
Yarber, 102 Ohio App.3d 185, 656 N.E.2d 1322, (12th Dist.1995). In
Yarber, after convictions of two counts of rape and one count of
gross sexual imposition, the appellate court concluded that counsel
provided ineffective assistance throughout the proceedings,
including the failure to: (1) file a motion to suppress his
confession (appellant had a third-grade education, speech-
impediment, and was illiterate), (2) object to prosecutor’s leading
questions, and (3) question the victim regarding testimonial
inconsistencies. In addition, the court observed that counsel
appeared confused, made nonsensical objections, asked confusing
questions, and failed to establish a coherent trial strategy. Id.
at 1324-1325.
{¶102} Appellant contends that the case sub judice has several
parallels with Yarber. We, however, disagree. Although trial
counsel in the case at bar did not conduct an in-depth cross-
SCIOTO, 20CA3904 61
examination of Dr. Brown’s autopsy report, counsel instead opted
for an unusual, but coherent, trial strategy. Pursuant to
appellant’s wishes, the defense strategy included appellant’s
decision to admit that she caused Dylan’s death, while her co-
defendant husband would admit that he concealed Dylan’s body. In
hindsight, although this course of action may appear to be somewhat
ill-advised, both appellant’s counsel and co-defendant’s counsel
executed the precise strategy that their clients sought to advance.
{¶103} Thus, after our review, we cannot conclude that counsel’s
cross-examination of Dr. Brown constituted ineffective assistance
of counsel.
6. Failure to Present Mitigation Evidence at
Sentencing
{¶104} Appellant asserts that trial counsel also failed to
present any evidence, testimony, or make any other attempt at
mitigation for purpose of sentencing. Here, counsel’s sentencing
statement is as follows: “This has been a difficult matter for this
entire community. It’s - - it’s been shared with a lot of people.
Jessica took responsibility and I just asked the court to consider
that in sentencing.”
SCIOTO, 20CA3904 62
{¶105} Appellant now argues that trial counsel failed to (1)
seek any possibility of parole, (2) explore, or even mention, the
possibility of post-partum depression, and (3) call witnesses or
present evidence in mitigation.
{¶106} Appellant points to Williams v. Taylor, 529 U.S. 362, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000) in support. Williams, convicted
of robbery and capital murder and sentenced to death, argued that
he had been denied the effective assistance of counsel when counsel
failed to investigate and failed to present substantial mitigating
evidence to the sentencing jury. The court determined that counsel
failed to: (1) conduct an investigation that would have uncovered
“extensive records graphically describing Williams’ nightmarish
childhood, not because of a strategic calculation but because they
incorrectly thought that state law barred access to such records,”
(2) introduce available evidence that Williams was “borderline
mentally retarded” and did not advance beyond the sixth grade, (3)
seek prison records regarding appellant’s commendations for his
assistance in prosecuting a prison drug ring and returning a
guard’s missing wallet, and (4) present testimony from a prison
ministry volunteer who offered to testify regarding Williams’ good
behavior in prison. The court concluded these omissions “clearly
demonstrate that trial counsel did not fulfill their obligation to
SCIOTO, 20CA3904 63
conduct a thorough investigation of the defendants’ background.”
Id. at 395-396. More important, however, and absent in the case
sub judice, is that the Williams court also concluded that a
reasonable probability existed that the result of the sentencing
phase would have been different if the jury had heard that
evidence.
{¶107} In the case sub judice, after our review we cannot
conclude that appellant has shown that the trial court’s sentence
would have been different had counsel presented additional
mitigation evidence. Here, the trial court, prior to sentencing,
had access to appellant’s competency evaluation, which detailed her
substance abuse history and her motivation to “feign deficits in
her legal knowledge.” The report also indicated that appellant did
not show symptoms suggestive of a severe mental illness, and that
her “presentation and history are suggestive of an underlying
personality disorder complicated by her substance abuse. Further,
she appeared to be psychiatrically stable during the assessment,
and testing revealed evidence of exaggerating or feigning
psychiatric difficulties.” The assessment further revealed that
appellant is “of average intellect, with no history of an
intellectual disability,” that appellant graduated from high school
and obtained training and employment in the healthcare field.
SCIOTO, 20CA3904 64
{¶108} A trial counsel does not necessarily render ineffective
assistance by deferring to a client’s desire to not present
mitigation evidence. The Supreme Court of Ohio has held that “a
defendant is entitled to decide what she [or he] wants to argue and
present as mitigation in the penalty phase, 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,
including the decision to present no evidence.” State v. Roberts,
110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 140. Thus,
an attorney who declines to present evidence in mitigation, in
deference to a client's desire, does not render ineffective
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.) (no deficient performance for failure to
present mitigation evidence when record did not show what
information investigation would have revealed and whether such
information could have aided defendant.)
{¶109} While in the case sub judice we cannot discern from the
record what discussions may, or may not, have occurred between
appellant and trial counsel regarding this issue, we believe that
SCIOTO, 20CA3904 65
appellant did not establish prejudice arising from counsel’s
failure to present mitigating evidence at sentencing. The trial
court heard the evidence, including appellant’s trial testimony,
and had access to appellant’s competency evaluation materials. We
therefore do not believe that appellant’s trial counsel’s actions
constituted a deficient performance.
{¶110} Accordingly, after our review and based upon the
foregoing reasons, we overrule appellant’s assignment of error and
affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
SCIOTO, 20CA3904
66
SCIOTO, 20CA3904
67
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.