STATE OF OHIO, Plaintiff-Appellee, v. DONLEY K. GRINDSTAFF, Defendant-Appellant.
CASE NO. CA2013-09-074
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
6/16/2014
[Cite as State v. Grindstaff, 2014-Ohio-2581.]
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2004 CR 00643
R. Daniel Hannon, Clermont County Public Defender, Robert F. Benintendi, 10 South Third Street, Batavia, Ohio 45103, for defendant-appellant
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Donley K. Grindstaff, appeals from his convictions in the Clermont County Court of Common Pleas for operating a vehicle while under the influence of alcohol (OVI) and driving under suspension. For the reasons discussed below, we affirm Grindstaff‘s convictions.
{¶ 2} Around 2:20 a.m. on June 22, 2003, Officer Ron Robinson with the Goshen
{¶ 3} During this time, Robinson observed several signs of impairment. He asked Grindstaff to exit the vehicle and Robinson administered three field sobriety tests. Grindstaff was placed under arrest after he failed the horizontal gaze nystagmus (HGN) test, the one-leg stand test, and the walk and turn test. At the police station, Grindstaff refused to submit to a breath test. As a result of these events, Grindstaff was summoned to appear at the Clermont County Municipal Court on June 25, 2003 to face charges relating to a misdemeanor OVI, his refusal to submit to the breath test, driving under suspension, a speeding violation, and a license plate violation.
{¶ 4} On June 25, 2003, Grindstaff failed to appear in his municipal court case, and a bench warrant for his arrest was issued. The next day, on June 26, 2003, the state dismissed the OVI charge, informing the municipal court that the misdemeanor OVI had been refiled as a felony OVI. Subsequently, on August 25, 2004, Grindstaff was indicted in the common pleas court on one count of OVI in violation of
{¶ 5} Although warrants had been issued in 2003 and 2004, Grindstaff was not arrested until March 2013. Bond was originally set at $100,000, but was later modified to $25,000 upon Grindstaff‘s uncontested motion to decrease bond. Grindstaff was released on bond on April 19, 2013.
{¶ 6} The case proceeded to a four-day jury trial in July 2013. At trial, the state called Robinson and Jeff Bradley, a corrections officer with the Clermont County Sheriff‘s Office, as witnesses. Robinson testified about the traffic stop he initiated on June 22, 2003. Robinson explained that in order to refresh his memory of the events that occurred ten years prior, he had reviewed his notes and the report he had created in June 2003. Robinson stated he had pulled Grindstaff over on June 22, 2003, for speeding and for failing to have a working rear license plate light. While trying to obtain Grindstaff‘s identification, Robinson observed signs of impairment. Specifically, Robinson testified Grindstaff‘s eyes were bloodshot and glassy and Grindstaff‘s breath smelled so strongly of an alcoholic beverage that Robison could smell the alcohol even though Grindstaff was chewing tobacco.
{¶ 7} Robinson further testified that Grindstaff failed all three field sobriety tests administered that morning. With respect to the HGN test, Robinson observed a lack of smooth pursuit in the movement of Grindstaff‘s eyes. Robinson explained that all six cues an officer looks for when utilizing the HGN test were present, which indicated that Grindstaff was impaired. He further explained that with respect to the one-leg stand test, Grindstaff was unable to stand still on one leg to the count of 30. Grindstaff repeatedly dropped the leg he was supposed to keep elevated and he kept swaying and moving his arms in an attempt to keep his balance. Robinson testified that Grindstaff also failed the walk and turn test as he was unable to stand as instructed by the officer, with his right foot directly in front of his left foot, and was unable to take nine heel-to-toe steps while balancing on a flat line. During the middle of the walk and turn test, Grindstaff informed Robinson that Grindstaff recently had
{¶ 8} Based on Robinson‘s observations and Grindstaff‘s failure to perform the three field sobriety tests properly, Robinson opined that Grindstaff was impaired and should not have been operating a motor vehicle. Robinson arrested Grindstaff and transported him to the police station. Once at the station, Robinson asked Grindstaff to take a breath test, but Grindstaff refused even though he had been informed that his refusal to take the test would result in a license suspension. Grindstaff told Robinson he previously had been advised by an attorney “not to take any tests.” Grindstaff then executed a “2255 Form,” indicating that he had been made aware of his rights and was refusing to take the breath test. The “2255 Form,” which was entered into evidence, specifically advised Grindstaff that he could “at [his] own expense, have a physician, registered nurse, qualified technician or chemist of [his] choosing administer a chemical test or tests in addition to any administered at the direction of a police officer.” Grindstaff did not have an independent chemical test performed.
{¶ 9} After Grindstaff‘s refusal to take the breath test, Robinson informed Grindstaff that he had been summoned to appear in municipal court on June 25, 2003. Robinson then transported Grindstaff to his home. Robinson testified that at this time he was unaware Grindstaff had a prior felony OVI conviction. Robinson later learned Grindstaff had been convicted in September 2001 of a fourth-degree felony OVI in the Warren County Court of Common Pleas, in Warren County, Ohio in Case No. 01CR19209, which had resulted in Grindstaff‘s license being suspended for four years. A certified copy of Grindstaff‘s 2001 judgment entry of conviction was entered into evidence.1
{¶ 10} On cross-examination, Grindstaff challenged Robinson‘s ability to identify him as the individual pulled over on June 22, 2003. Robinson admitted that if he had not seen a
* * *
{¶ 11} During cross-examination, Robinson admitted that he had not observed any erratic driving or any other visual signs of impairment during the short time he followed Grindstaff on June 22, 2003. Further, Grindstaff‘s method of pulling the vehicle over did not indicate any signs of impairment. Robinson did not observe Grindstaff fumbling or struggling to hand over his identification and registration, and Grindstaff did not slur his speech. As for his administration of the field sobriety tests, Robinson admitted that it was possible for an individual to have nystagmus and fail the HGN test even though the individual had not been drinking. Robinson also admitted that his report from the June 22, 2003 traffic stop focused on the incorrect things Grindstaff did during the walk and turn test and the one-leg stand test, and did not mention those aspects of the tests that Grindstaff properly performed.
{¶ 12} Following Robinson‘s testimony, Bradley testified that he is the corrections officer in charge of the inmate phone system for the Clermont County Sheriff‘s Office. Bradley explained that while Grindstaff was awaiting trial, his jail phone calls were recorded, and copies of the recordings were made pursuant to the state‘s request. At this time the state, over Grindstaff‘s objection, entered into evidence a recording of a phone call Grindstaff made on March 23, 2013. During this call, Grindstaff and an unidentified male and female discussed his 2003 arrest for OVI. The state also entered into evidence certified copies of documents pertaining to Grindstaff‘s municipal court case. Specifically, the state entered
{¶ 13} Following the admission of the state‘s exhibits, the state rested and defense counsel made a
{¶ 14} The jury returned guilty verdicts on both counts and, with respect to the OVI count, found Grindstaff had previously been convicted of a felony OVI. Grindstaff was sentenced to a prison term of three years, of which 60 days was mandatory.
{¶ 15} Grindstaff now appeals, raising four assignments of error. For ease of discussion, we will address Grindstaff‘s third and fourth assignments of error together.
{¶ 16} Assignment of Error No. 1:
{¶ 17} THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE TELEPHONE CONVERSATION AND INSTRUCTING THE JURY AS TO CONSCIOUSNESS OF GUILT.
{¶ 18} In his first assignment of error, Grindstaff argues that his March 23, 2013 jail phone call should not have been introduced into evidence as it was not probative of flight. He further argues that a consciousness of guilt jury instruction should not have been given in this case as there was no evidence, absent the improperly admitted jail phone call, that he attempted to avoid apprehension.
Admissibility of the Phone Call
{¶ 19} At trial, over Grindstaff‘s objection, the state introduced into evidence Grindstaff‘s March 23, 2013 jail phone call. During the phone call, the following discussion
[GRINDSTAFF]: I figured they just dropped it or whatever because, I didn‘t have no - - I never even thought anything about it. Hell, I can‘t believe this is happening.
MALE VOICE: I wonder if that police officer that charged you - - caught you, is he still - - I wonder if he‘s still working for - -
[GRINDSTAFF]: I don‘t have no idea, you know.
MALE VOICE: Yeah.
[GRINDSTAFF]: I don‘t.
MALE VOICE: You didn‘t take the (inaudible) breath test, did you?
[GRINDSTAFF]: Do what now?
MALE VOICE: You didn‘t take no breath test or anything, did you?
[GRINDSTAFF]: Huh-uh. No. Who‘s this attorney you‘re going after? I get a hundred thousand dollars?
FEMALE VOICE: Well, that‘s only because you ran the last time, Keith.
[GRINDSTAFF]: No.
FEMALE VOICE: They don‘t want you to do that again.
[GRINDSTAFF]: (Inaudible). I mean from 2003. It took (inaudible) to know that.
FEMALE VOICE: From 2003?
[GRINDSTAFF]: Yes.
FEMALE VOICE: That‘s been ten years almost. I thought it was 2004 when you got that?
[GRINDSTAFF]: This is an ‘03 DUI. Now this is the one that I was worried about, you know what I mean? And they didn‘t - - the Grand Jury didn‘t I guess indict me until ‘04.
{¶ 20} Grindstaff had objected to the admission of the jail phone call on the basis that
{¶ 21} We review a trial court‘s decision to admit or exclude evidence for an abuse of discretion. State v. Boles, 12th Dist. Brown CA2012-06-012, 2013-Ohio-5202, ¶ 14. “A reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice.” Id., citing State v. Smith, 12th Dist. Fayette No. CA2007-10-035, 2008-Ohio-5931, ¶ 33. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Id. “It is not sufficient for an appellate court to determine that a trial court abused its discretion simply because the appellate court might not have reached the same conclusion or is, itself, less persuaded by the trial court‘s reasoning process than by the countervailing arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 14.
{¶ 23} Here, the trial court properly admitted the phone call as relevant evidence because it tended to show Grindstaff‘s consciousness of guilt and, further, helped explain why Grindstaff‘s trial occurred ten years after the underlying offense took place. Under the facts of this case, the state was entitled to argue Grindstaff‘s failure to appear was tantamount to flight, concealment, or related conduct to avoid prosecution for his 2003 felony OVI offense. We are unpersuaded that the probative value of the phone call was substantially outweighed by the danger of unfair prejudice.
{¶ 24} Moreover, we find Grindstaff‘s argument on appeal that the phone call could not have been evidence of flight as he never actually left the area, but rather continued to “live
{¶ 25} Grindstaff also argues that the jail phone call could not be considered evidence probative of flight given the trial court‘s decision to reduce bond in this case from $100,000 to $25,000. He contends that had he been “engaged in a 9-year campaign to avoid apprehension his bond would not have been reduced [as] the State and the Court would not have risked it.” We find that no merit to Grindstaff‘s argument. The fact that the trial court chose, in a separate, pretrial proceeding, to reduce Grindstaff‘s bond in in no way precluded the court from later concluding that the jail phone call was admissible at trial as evidence probative of flight. There is no indication in the record that the trial court had knowledge of the March 23, 2013 jail phone call at the time it reduced Grindstaff‘s bond.
{¶ 26} Accordingly, we find that trial court did not abuse its discretion in admitting the jail phone call into evidence.
Consciousness of Guilt Jury Instruction
{¶ 27} Grindstaff further argues that the trial court erred by giving the following jury instruction on consciousness of guilt:
* * * Evidence has been elicited that the Defendant after being charged with a misdemeanor OVI offense related to the incident in this case ran for the purpose of suggesting that the Defendant fled or attempted to flee in order to avoid prosecution.
The State has offered this evidence for the limited purpose of showing a consciousness of guilt on the part of the Defendant for the purpose of showing his guilt. It was not received, and you may not consider it for any other purpose. In considering this evidence, you should decide whether the evidence is credible and whether it shows that the Defendant fled or attempted to flee in
order to avoid prosecution. If you find that the evidence is credible, you should consider that there may be other innocent reasons to explain the Defendant‘s conduct. If you find that the evidence is credible, and you find that the Defendant‘s conduct was not motivated by consciousness of guilt, or if you are unable to determine the Defendant‘s motivation, you may not consider this evidence for any purpose. However, if you find that the evidence is credible and you find that the Defendant‘s conduct was motivated by consciousness of guilt, you may consider this evidence in determining whether or not the Defendant is guilty of the offense as charged.
You will determine what weight if any to be given to this evidence. * * *
{¶ 28} Jury instructions must contain “all matters of law necessary for the information of the jury in giving its verdict.”
{¶ 29} A jury instruction on consciousness of guilt based upon the flight of the accused is appropriate when supported by sufficient evidence in the record. State v. Wilson, 3d Dist. Allen No. 1-09-64, 2010-Ohio-2294, ¶ 9; State v. Craig, 8th Dist. Cuyahoga No. 94455, 2011-Ohio-206, ¶ 30. A defendant‘s failure to appear at trial is evidence that a trial court may consider when determining whether to provide a consciousness of guilt jury instruction. Jones, 2005-Ohio-5910 at ¶ 11; Hagwood, 1995 WL 407221 at *7.
{¶ 30} Here, evidence was presented that Grindstaff failed to appear in municipal court
{¶ 31} Further, the language utilized by the trial court in giving the consciousness of guilt instruction was proper as the instruction was substantially similar to the instruction set forth in Ohio Jury Instructions, CR Section 409.13 (Rev. Aug. 17, 2005), was clearly neutral in its effect, and only permitted, not required, the jury to draw the conclusion that Grindstaff displayed a consciousness of guilt by failing to appear in 2003. See, e.g., Wilson, 2010-Ohio-2294 at ¶ 10; State v. Shepard, 10th Dist. Franklin No. 07AP-223, 2007-Ohio-5405, ¶ 8; Jones, 2005-Ohio-5910 at ¶ 14. The instruction specifically provided that it was up to the jury to determine whether Grindstaff actually fled and, if so, whether the flight was motivated by guilt or some other innocent reason existed for the flight. Under the facts of this case, we find that the trial court‘s consciousness of guilt jury instruction was proper and not an abuse of the trial court‘s discretion.
{¶ 32} Accordingly, Grindstaff‘s first assignment of error is overruled.
{¶ 33} Assignment of Error No. 2:
{¶ 34} APPELLANT‘S RIGHT TO A FAIR TRIAL WAS PREJUDICIALLY AFFECTED BY IMPROPER REMARKS MADE BY THE STATE OF OHIO DURING CLOSING ARGUMENT.
{¶ 35} In his second assignment of error, Grindstaff contends that the prosecutor made statements during closing arguments that prejudiced his right to a fair trial.
{¶ 36} For a conviction to be reversed on the basis of prosecutorial misconduct, a defendant must prove that the prosecutor‘s comments were improper and that they
{¶ 37} At trial, defense counsel objected to the following statement by the prosecutor:
[STATE]: Finally, remember Officer Robinson isn‘t just out there to get anybody he can get. He testified under oath that when people have passed field tests in his presence, he‘s let them go home. [Defense counsel] made a big deal of the NHTSA [National Highway Traffic Safety Administration] manual. But he could not point out one thing Officer Robinson did wrong when giving instructions for the horizontal gaze nystagmus, the one-leg stand, or the walk-and-turn. Instead, he relied on the fact that it was ten years ago, a problem created by his own client.” (Emphasis added.)
Defense counsel argued that by commenting, “Instead, he relied on the fact that it was ten years ago, a problem created by his own client,” the prosecutor improperly used Grindstaff‘s alleged “flight” to place the blame on Grindstaff for the fact that the evidence in the case was over ten years old. Defense counsel asserted that the prosecutor‘s comments were improper given the trial court‘s instruction that Grindstaff‘s “flight” could only be considered for the limited purpose of showing his consciousness of guilt. In response to the objection, the state argued it was merely responding to defense counsel‘s closing argument, wherein defense counsel challenged Robinson‘s testimony and memory of events by stating, “Well, how much weight do we give to testimony that‘s from 10 years ago?” The trial court overruled defense counsel‘s objection, finding that the prosecutor was merely “responding to what [defense counsel] said” in his closing argument.
{¶ 39} Grindstaff‘s second assignment of error is, therefore, overruled.
{¶ 40} Assignment of Error No. 3:
{¶ 41} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY FAILING TO GRANT DEFENDANT‘S CRIMINAL RULE 29 MOTION FOR ACQUITTAL BECAUSE THE STATE FAILED TO ESTABLISH EACH MATERIAL ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT.
{¶ 42} Assignment of Error No. 4:
{¶ 43} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY ON THE JURY‘S VERDICT BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 44} In his third and fourth assignments of error, Grindstaff contends the trial court erred by denying his
{¶ 46} A manifest weight of the evidence challenge, on the other hand, examines the “inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other.” State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact 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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. “While appellate review includes the responsibility to consider the credibility of witnesses and weight given to the evidence, ‘these issues are primarily matters for the trier of fact to decide.‘” State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26.
{¶ 47} Grindstaff was convicted of a third-degree felony OVI in violation of former
{¶ 48} After reviewing the entire record, weighing inferences, and examining the credibility of witnesses, we find that Grindstaff‘s OVI conviction was not against the manifest weight of the evidence and was supported by sufficient evidence. The state presented testimony and evidence from which the jury could have found all the elements of OVI, including the challenged “impairment” element, proven beyond a reasonable doubt.
{¶ 49} At trial, Robinson testified that at the time he pulled Grindstaff over on June 22, 2003, Robinson had been an officer for over two years, had been trained in detecting impairment and administering OVI tests, and had made approximately 200 prior OVI arrests.
{¶ 50} Robinson also testified at trial that Grindstaff refused to take a breath test and did not have an independent chemical test performed. See State v. Free, 12th Dist. Clermont No. CA2005-04-023, 2006-Ohio-1436, ¶ 19, citing State v. Wargo, 11th Dist. Trumball No. 96-T-5528, 1997 WL 703373, * 4-5 (Oct. 31, 1997) (holding that under certain circumstances, a trier of fact may consider a defendant‘s refusal to submit to a chemical test as evidence in deciding whether the defendant is under the influence of alcohol). Evidence was also submitted demonstrating that although Grindstaff was summoned to appear in municipal court to face charges arising out of the June 22, 2003 traffic stop, Grindstaff did not appear and a bench warrant was issued. When Grindstaff was apprehended in 2013, Robinson was able to identify Grindstaff by using Grindstaff‘s social security number and date of birth and matching records from 2013 to records from 2003. Finally, evidence was admitted regarding Grindstaff‘s prior, 2001 felony OVI conviction in the Warren County Court of Common Pleas.
{¶ 52} The jury, as the trier of fact, was in the best position to weigh the evidence and judge the credibility of the witnesses on the issue of whether Grindstaff was operating his vehicle while under the influence of alcohol. “[A] conviction is not against the manifest weight of the evidence simply because the trier of fact believed the prosecution testimony.” State v. Williams, 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 35.
{¶ 53} Accordingly, we find Grindstaff‘s OVI conviction was not against the manifest weight of the evidence and was also supported by sufficient evidence. See Jones, 2013-Ohio-150 at ¶ 19. The trial court, therefore, did not err in denying Grindstaff‘s
{¶ 54} Grindstaff‘s third and fourth assignments of error are overruled.
{¶ 55} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.