[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
Tuscarawas County, Case No. 2019 AP 08 0024                                         4


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.
Tuscarawas County, Case No. 2019 AP 08 0024                                            5


       {¶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
Tuscarawas County, Case No. 2019 AP 08 0024                                             8


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
Tuscarawas County, Case No. 2019 AP 08 0024                                              9


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.
Tuscarawas County, Case No. 2019 AP 08 0024                                        12


       {¶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.
