[Cite as State v. Grier,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vs-

ROBERT GODFREY GRIER

Defendant-Appellant

JUDGES: Hon. Sheila G. Farmer, P. J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.

Case No. 2010 CA 00246

OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2010 CR 00653

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 1, 2011 APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO RODNEY A. BACA PROSECUTING ATTORNEY 610 Market Avenue North RONALD MARK CALDWELL Canton, Ohio 44702 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413

Wise, J.

{¶1} Appellant Robert Godfrey Grier appeals from his conviction and sentence

in the Stark County Court of Common Pleas for robbery and drug trafficking. The

relevant facts leading to this appeal are as follows.

{¶2} The events at issue center on a disrupted undercover drug buy on May 6,

2010 on the near west side of Canton. At about 7:50 PM that evening, Detective

Zachary Taylor of the Canton Police Department was working an investigation in an

unmarked pickup truck near Newton Place NW when he was approached by appellant.

A brief conversation ensued, during which Taylor asked appellant what he had to sell.

Appellant then jumped into the front passenger seat and directed Taylor to drive around

the downtown area. Appellant pulled out a clear plastic bag at one point, but Taylor

could not see what was in it. Eventually, appellant told Taylor to pull into a secluded

alley near Eighth Street and Shorb Avenue NW. Appellant also told Taylor to shut off

the lights and engine; however, the officer left the engine running. Unbeknownst to

Taylor, his monitoring equipment had malfunctioned, and back-up officers had lost his

exact location.

{¶3} Appellant then asked Taylor to give him money up front so that he could

go to a nearby house and purchase crack cocaine. After some discussion, appellant agreed to get the crack first and return to the vehicle to make the sale. However, shortly

after appellant got out of the vehicle, he came over to the driver’s side open window and

suddenly jumped at the cash Taylor was holding. Taylor put the vehicle in reverse as a

struggle ensued between the two men. The gear shift was somehow forced into the

drive position, and the truck began moving forward. Appellant finally gave up the

struggle and pulled himself out of the vehicle’s window.

{¶4} Taylor drove away from the alley and reported via a handheld radio he

had hidden under the seat that he “just got robbed.” As he drove, Taylor saw appellant

walking between some houses. He relayed this information to other officers, who were

able to apprehend appellant on a porch in the 700 block of Shorb Avenue.

{¶5} Appellant was transported to the station, where he agreed to talk to police.

He insisted that Officer Taylor had tried to sell drugs to him, not vice versa, and that he

had merely intended to assault Taylor, not rob him. Appellant also offered to assist in

future undercover operations.

{¶6} On June 14, 2010, the Stark County Grand Jury indicted appellant on one

count of robbery (R.C. 2911.02(A)(3)) and one count of trafficking in cocaine (R.C.

2925.03(A)(1)/(C)(4)(a)). Appellant entered pleas of not guilty to both charges, and the

matter proceeded to a jury trial on July 28-29, 2010. The jury court found appellant

guilty as charged. The court thereafter sentenced appellant, inter alia, to six years in

prison.

{¶7} On September 1, 2010, appellant filed a notice of appeal. He herein raises

the following four Assignments of Error: {¶8} “I. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.

{¶9} “II. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTION

AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶10} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE

APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY FAILING TO GRANT

HIS MOTION FOR MISTRIAL.

{¶11} “IV. THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION

IN SENTENCING APPELLANT TO THE MAXIMUM PRISON TERM.”

I.

{¶12} In his First Assignment of Error, appellant contends he was denied the

effective assistance of counsel at his trial. We disagree.

{¶13} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984),

,

,

. Ohio

adopted this standard in the case of State v. Bradley (1989),

,

. These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's

assistance was ineffective; i.e., whether counsel's performance fell below an objective

standard of reasonable representation and was violative of any of his essential duties to

the client. If we find ineffective assistance of counsel, we must then determine whether

or not the defense was actually prejudiced by counsel's ineffectiveness such that the

reliability of the outcome of the trial is suspect. This requires a showing that there is a

reasonable probability that but for counsel's unprofessional error, the outcome of the trial would have been different.

Trial counsel is entitled to a strong presumption that

all decisions fall within the wide range of reasonable professional assistance. State v.

Sallie (1998),

,

.

Opening Statements

{¶14} Appellant first challenges his trial counsel’s performance during opening

arguments. After the trial court afforded both counsel the opportunity for opening

statements and the prosecutor had made his remarks, defense counsel spoke to the

jury chiefly concerning the burden of proof being on the State and that the verdict must

be based entirely on the evidence at trial. Appellant presently faults his trial counsel for

not talking to the jury about the nature of the evidence with which they would be

presented or what the defense would contradict.

{¶15} In many cases, it may be prudent for a defense attorney to avoid

presenting a theory of the case to the jury in opening statements, as any subsequent

failure to develop and present evidence on such theory would invite the State to later

comment on that failure to the jurors. See State v. Harris, Cuyahoga App.No. 87915,

, citing State v. Collins,

,

. In

the case sub judice, defense counsel chose to focus on a strategy of challenging

whether the State could meet its burden of proof. Upon review, we do not find trial

counsel's performance in this regard fell below an objective standard of reasonable

representation.

Responding to Officer’s Testimony

{¶16} Appellant secondly challenges the failure of his trial counsel to object to

certain portions of the testimony of Detective Taylor. Appellant takes specific issue with Taylor's testimony that he had alerted other officers over a radio that he had been

robbed, and that he declined to work with appellant as a confidential informant because

appellant could not be trusted given his conduct during the incidents of May 6, 2010.

Appellant also points to Taylor's testimony about appellant’s statements that he was a

crack user, that he knew crack dealers, and that he could help the police in catching

people connected with the crack trade.

{¶17} It is well established that “[c]ompetent counsel may reasonably hesitate to

object [to errors] in the jury's presence because objections may be considered

bothersome by the jury and may tend to interrupt the flow of a trial.” State v. Rogers

(April 14, 1999), Summit App.No. 19176,

, citing State v. Campbell

(1994),

,

(internal quotations omitted). Moreover,

the United States Supreme Court and the Ohio Supreme Court have held a reviewing

court “need not determine whether counsel's performance was deficient before

examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.”

, quoting

. In this

instance, given the State’s evidence that appellant approached the detective, directed

him to drive around city streets, and took him to an apparent crack house before

suddenly trying to wrest cash from him, we find overwhelming support for the trafficking

and robbery charges, and we are unpersuaded that appellant’s case was prejudiced by

appellant’s trial counsel handling of the detective’s testimony.

Responding to Officer’s Qualifications as a Witness

{¶18} Finally, appellant contends his trial counsel effectively allowed the State to

use Detective Taylor as an expert witness, based on the officer’s testimony about crack cocaine being a Schedule II substance, the levels of strength of crack, and its effect on

a user. See Tr. at 155. However, given that police officers combating the illegal

narcotics trade would generally be expected to develop basic familiarity with many of

the scientific aspects involved, we again are unpersuaded that appellant’s case was

prejudiced by appellant’s trial counsel handling of the detective’s testimony in this

regard.

{¶19} Appellant’s First Assignment of Error is therefore overruled.

II.

{¶20} In his Second Assignment of Error, appellant contends his conviction for

cocaine trafficking and robbery was not supported by sufficient evidence and was

against the manifest weight of the evidence. We disagree.

{¶21} In reviewing a claim of insufficient evidence, “[t]he 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.” State v. Jenks (1991),

,

,

paragraph two of the syllabus.

{¶22} In regard to the offense of trafficking in drugs, R.C. 2925.03(A)(1) sets

forth the essential elements: “No person shall knowingly sell or offer to sell a controlled

substance.” See State v. Moore, Stark App.No. 2008-CA-00228,

, ¶ 12.

The definition of “sale” has the same meaning as in R.C. 3719.01. See, R.C.

2925.01(A). “ ‘Sale’ includes delivery, barter, exchange, transfer, or gift, or offer thereof,

and each transaction of those natures made by any person, whether as principal,

proprietor, agent, servant, or employee.” R.C. 3719.01(AA). {¶23} In the case sub judice, Detective Taylor recalled that appellant came up to

the open window after the officer pulled over to the curb. Appellant asked what the

officer needed, at which point Taylor “asked [appellant] what he had.” Tr. at 130.

Appellant thereupon jumped in the undercover truck and directed Taylor to drive around

Canton. More discussion ensued, and when appellant asked what Taylor needed, the

officer said “forty.” Taylor recalled that appellant stated at least twice he would get

“crack” for him. See Tr. at 133, 134. Appellant at that point directed Taylor to stop at a

particular location near Shorb Avenue.

{¶24} In regard to the charge of robbery, R.C. 2911.02(A)(3) reads as follows:

“No person, in attempting or committing a theft offense or in fleeing immediately after

the attempt or offense, shall *** [u]se or threaten the immediate use of force against

another.”

{¶25} Appellant essentially seeks to downplay the extent of the struggle for the

cash and maintains that the officer simply assumed that appellant was reaching for the

money. However, Detective Taylor provided the following details as to what transpired

after appellant suddenly re-approached the undercover vehicle:

{¶26} “So if you could picture the door is here, steering wheel, I had the money

in this hand here. He jumps across and reaches to get the money.

{¶27} “I threw the vehicle in reverse, floored it, and for some reason just like I

guess you would if you were a little kid, I was kind of like playing the keep-away game

like oh, no, but I grabbed his left arm with my left arm, and I got the money in this hand,

and now we’re spinning. He’s halfway in the vehicle and we’re trying to go in reverse, but like I said, it’s kind of this make-shift parking area, pretty much the back yard of a

house. So we’re not really going anywhere. We’re just spinning.

{¶28} “His right arm is right here. He reaches forward with his right arm to get

the money. At this point I drop the money and grab his right arm, and he’s going for,

you know, the money. It drops out of hand. I grab his hand, and now we go into the

gearshift and go straight down into one of the forward gears. I’m not sure which gear it

was but we go forward.

{¶29} “Now, I got ahold of his left hand and I got ahold of his right hand, and I’m

crossed up with him, and he actually begins to reach down and mess with the keys of

the truck trying to shut the truck off.

{¶30} “We begin to go forward at this time. You can see him, he’s a big guy. I’m

a bigger guy. We’re in the cab of a compact pickup truck tussling over the car keys and

this money. He’s pretty much laying on top of me. No one is driving this vehicle. We’re

in the backyard of this house. I think, you know, help is going to come. Unfortunately,

help didn’t know where I was and they couldn’t hear the struggle going on.

{¶31} “So now, the situation has kind of gone from bad to worse, and add on to

that the fact that I got my full throttle on this vehicle and no one’s driving it, no one’s

steering.

{¶32} “It got to the point where I was contemplating using legal force due to the

fact that what am I going to do if Mr. Grier gets this vehicle stopped? What am I going

to do if Mr. Grier gets the keys out of this vehicle? * * *.” Tr. at 136-138. {¶33} Upon review, we find the testimony, construed most favorably to the State,

amply supported both charges against appellant. Appellant’s claim of insufficiency of the

evidence is therefore not well taken.

{¶34} Appellant also raises a “manifest weight” challenge. Our standard of

review on a manifest weight challenge to a criminal conviction is stated as follows: "The

court, 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 reversed and a new trial ordered." State v. Martin

(1983),

,

. See also, State v. Thompkins

(1997),

,

. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction."

.

{¶35} Appellant’s chief challenge goes to the robbery conviction, where he calls

into factual question how Detective Taylor was able to put the vehicle into reverse while

simultaneously holding the cash in his right hand and fending off appellant. Appellant

also questions why it would have been necessary for him to have walked around to the

driver’s side window to get the cash when he could have simply grabbed it while still

seated in the passenger’s seat. We also note appellant initially told police that Detective

Taylor was the seller, despite Taylor’s testimony that he had been running several

controlled buy operations on that date. Nonetheless, upon review, we find the jury did

not clearly lose its way and create a manifest miscarriage of justice requiring that

appellant's conviction be reversed and a new trial ordered. {¶36} Appellant’s Second Assignment of Error is therefore overruled.

III.

{¶37} In his Third Assignment of Error, appellant contends the trial court erred in

failing to declare a mistrial. We disagree.

{¶38} Our standard of review for evaluating a trial court's decision to grant or

deny a mistrial is abuse of discretion. State v. Graewe, Tuscarawas App.No. 2007 AP

10 0070,

, citing State v. Sage (1987),

,

. In order to find an abuse of discretion, we must determine the trial

court's decision was unreasonable, arbitrary or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore (1983),

,

.

{¶39} The specific incident at issue concerns Detective Taylor’s testimony that

appellant, while being interviewed at the station after his arrest, told officers he would be

willing to “work off” some of the charges. Tr. at 142. Appellant’s trial counsel objected at

that point and moved for a mistrial on the basis that the jury was given the impression

that appellant had a record of other charges pending against him. Tr. at 143.

{¶40} The record reflects that the trial court conducted a voir dire of Detective

Taylor, outside the presence of the jury, during which Taylor clarified that appellant was

talking about the robbery and trafficking charges that had just occurred. On cross-

examination during this voir dire, defense counsel asked: "Maybe I was wrong but I

thought your response when the Jury was still here to that question was that Mr. Grier

offered to work off previous charges or prior charges." Tr. at 148. Taylor responded:

"No, sir. Just the charges that he was going to be charged with that day. It was the robbery and the trafficking in cocaine."

After the voir dire, Taylor repeated this

testimony for the jury to review. Tr. at 150-152.

{¶41} Upon review of the aforesaid, we hold the trial court's denial of the motion

for mistrial was not arbitrary, unreasonable or unconscionable.

{¶42} Appellant’s Third Assignment of Error is therefore overruled.

IV.

{¶43} In his Fourth Assignment of Error, appellant contends the trial court erred

in sentencing him to the maximum terms on each count. We disagree.

{¶44} We note the Ohio Supreme Court's Foster decision [

,

] holds that judicial fact finding is not required before a court imposes

non-minimum, maximum or consecutive prison terms. See, e.g., State v. Williams,

Muskingum App. No. CT2009-0006,

, ¶ 19, citing State v. Hanning,

Licking App.No. 2007CA00004,

. Subsequent to Foster, in a

plurality opinion, the Ohio Supreme Court established a two-step procedure for

reviewing a felony sentence. State v. Kalish,

,

,

. The first step is to “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id.

{¶45} In the case sub judice, the trial court stated in its written entry that it had

considered the record, the oral statements of the parties, and any presentence reports.

See Sentencing Entry, August 13, 2010. The court also specifically referenced the purposes of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism

factors found in R.C. 2929.12. Id.

{¶46} Based on our review of the record, and pursuant to Foster and Kalish, we

do not find the trial court acted clearly and convincingly contrary to law or abused its

discretion in rendering maximum sentences under the facts and circumstances of this

case.

{¶47} Appellant’s Fourth Assignment of Error is therefore overruled.

{¶48} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.

___________________________________

___________________________________

___________________________________

JUDGES JWW/d 0706 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ROBERT GODFREY GRIER : : Defendant-Appellant : Case No. 2010 CA 00246

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

Costs assessed to appellant.

___________________________________

___________________________________

___________________________________

JUDGES