State v. Grieshop

2020 Ohio 392

• Court: Ohio Court of Appeals
• Decided: February 7, 2020
• Docket: 28481
• Status: Published

Opinion

[Cite as State v. Grieshop, 2020-Ohio-392.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28481 : v. : Trial Court Case No. 2018-CR-1411 : JOSEPH GRIESHOP : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 7th day of February, 2020.

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

KELLE M. SAULL, Atty. Reg. No. 0083746, DEREK R. DAILEY, Atty. Reg. No. 0084832, SARAH M. WALTER, Atty. Reg. No. 0095462 and JESSICA L. MONDAY, Atty. Reg. No. 0088067, 106 South Sandusky Avenue, Upper Sandusky, Ohio 43351 Attorneys for Defendant-Appellant

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TUCKER, P.J. -2-

{¶ 1} Defendant-appellant, Joseph Grieshop, appeals from his conviction for one

count of abduction, a third degree felony in violation of R.C. 2905.02(A)(2). Raising two

assignments of error, Grieshop argues that his conviction should be vacated because the

evidence against him was quantitatively and qualitatively inadequate to prove his guilt,

and because his trial counsel declined to cross-examine two of the State’s witnesses,

thereby failing to provide effective representation. We find that the evidence received by

the jury was adequate to support the verdict, and that Grieshop’s trial counsel was not

ineffective. Therefore, Grieshop’s conviction is affirmed.

I. Facts and Procedural History

{¶ 2} In December 2017, Grieshop and Ranjani Powers were married. Transcript

of Proceedings 206:1-206:10 and 328:20-329:5, May 7-9, 2019. Their relationship soon

soured, and Grieshop began sleeping in the basement of the martial residence. See id.

at 206:19-207:7 and 329:12-330:7. By Saturday, March 31, 2018, Powers had decided

that she and Grieshop should part company, and late that evening, the two had an

argument. Id. at 207:8-210:4 and 330:8-331:14.

{¶ 3} Powers, who apparently objected to Grieshop’s consumption of alcohol,

descended into the basement and began disposing of his alcoholic beverages by

emptying them into a utility sink. See id. at 209:17-210:4 and 330:8-333:18. The

basement included a coal room in which Powers believed that Grieshop kept an additional

supply of alcoholic beverages, and when she entered the coal room to search, Grieshop

shoved or threw her against a wall and locked her inside. See id. at 209:17-214:16.

{¶ 4} Grieshop denied that he intentionally shoved Powers and that he intentionally

locked her in the coal room. Id. at 332:6-333:23. Instead, Grieshop claimed that he -3-

“slammed the door” to the coal room in anger at Powers’s actions and left the house to

buy beer. Id. He testified that upon his return, he drank a can of beer in the driveway,

and from that vantage, he saw the light in Powers’s bedroom be turned on. Id. at 334:1-

334:14. At that point, he resumed his place in the basement and woke up the next

morning—Sunday, April 1, 2018—at approximately 6:00 a.m.; he testified that Powers

remained in her bedroom until 7:00 to 7:30 a.m. Id. at 334:4-335:21.

{¶ 5} Powers, on the other hand, testified that Grieshop left and returned several

times, intermittently lecturing her about his motive for locking her in the coal room and

threatening to kill her. Id. at 218:13-220:18. Eventually, to thwart her attempts to

escape, Grieshop cut the power line to the single light in the room and screwed or nailed

boards over the door. Id. at 220:3-223:21. He fell asleep after several hours. Id. at

223:9-226:22. At approximately 7:00 a.m., Powers knocked on the inside of the door,

and realizing that she was awake, Grieshop told her that he could hear her. Id. at 232:9-

233:21. Grieshop finally released Powers not long afterward, once she had agreed that

she would not disclose to anybody what had transpired. Id. at 233:22-235:24. He left

the house again, and later that day, Powers had Easter dinner at her sister’s house. Id.

at 236:17-237:3 and 246:18-247:21. She did not tell her family about the incident. Id.

at 247:14-247:21.

{¶ 6} Grieshop returned to the house the following morning—Monday, April 2,

2018—at approximately 2:00 to 3:00 a.m. Id. at 249:12-250:4. Between 6:00 and 6:30

a.m., Powers confronted him and surreptitiously made a recording of the ensuing

conversation with her cellular telephone. Id. at 249:22-251:21 and 336:13-336:21.

Grieshop then left for work. Id. at 253:10-253:21 and 339:5-341:10. -4-

{¶ 7} On the evening of Tuesday, April 3, 2018, officers with the Dayton Police

Department visited the house to place Powers under arrest on a charge of domestic

violence in response to a complaint submitted by Grieshop. Id. at 254:5-255:2 and

339:5-341:10. Powers described for the officers how Grieshop had confined her in the

coal room, and one of the officers proceeded to the basement to take photographs,

noticing among other things that the power line to the light in the coal room had been cut.

Id. at 255:3-255:10 and 291:12-298:20.

{¶ 8} The officers transported Powers to the Montgomery County Jail that night,

but after her bond was paid, she was released on the morning of Wednesday, April 4,

2018. Id. at 260:11-261:6. At her arraignment later the same day, Powers discovered

that the charges against her had been dropped. Id. at 261:7-261:19.

{¶ 9} On Thursday, April 5, 2018, Powers contacted the Artemis Center, seeking

advice, and on Friday, April 6, 2018, she spoke with Detective Nancy Kloos of the Dayton

Police Department, who took her statement. Id. at 261:17-262:24, 304:1-304:25 and

306:12-307:10. Detective Kloos interviewed Grieshop on Monday, April 9, 2018;

Grieshop waived his Miranda rights and executed a written statement of his own in which

he “ ‘apologize[d] to * * * Powers and the [c]ourt for his actions,’ ” which he characterized

as “ ‘wrong and not appropriate.’ ” Id. at 312:16-315:2, quoting State’s Exhibit 22.

{¶ 10} On May 10, 2018, a Montgomery County grand jury issued an indictment

against Grieshop charging him with one count of abduction under R.C. 2905.02(A)(2).

His case was tried to a jury, and on May 9, 2019, the jury found him guilty as charged.

The trial court filed a judgment entry on June 20, 2019.

{¶ 11} Grieshop timely filed a notice of appeal on June 21, 2019, but we dismissed -5-

the appeal for want of a final, appealable order in our decision of July 23, 2019. One day

later, the trial court filed an amended judgment entry, and on July 25, 2019, Grieshop

timely commenced the instant appeal.

II. Analysis

{¶ 12} For his first assignment of error, Grieshop contends that:

THE JURY VERDICT OF GUILTY TO ABDUCTION WAS BASED

ON INSUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 13} Grieshop argues that the “evidence in this case was both insufficient and

against the manifest weight of the evidence,” because Powers “didn’t disclose the alleged

event to anyone, [whether] friend, family or law enforcement[,] until at least 24 hours

afterward,” and observing that Powers initially did not intend to file a criminal complaint,

he concludes that “the facts did not support a guilty verdict of abduction” in this “ ‘he said,

she said’ scenario.” Appellant’s Brief 10-11; see also Transcript of Proceedings 252:11-

254:4. In other words, Grieshop argues that his conviction should be vacated because

Powers’s testimony was not credible. Appellant’s Brief 10-11.

{¶ 14} Sufficiency of the evidence “is the legal standard applied to determine

whether * * * the evidence [in a given case] is [adequate] as a matter of law to support

the * * * verdict.” State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), citing

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review of a

challenge to a conviction based on the sufficiency of the evidence, 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 -6-

a reasonable doubt.’ ” Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

{¶ 15} By contrast, in a challenge based on the weight of the evidence, an

appellate court considers not only the quantity of the evidence, but the quality of the

evidence, as well. See State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 12; State v. Thigpen, 2016-Ohio-1374, 62 N.E.3d 1019, ¶ 6 (8th Dist.).

Accordingly, the appellate court must review the record; weigh the evidence and all

reasonable inferences; consider the credibility of witnesses; and determine whether in

resolving conflicts in the evidence, the factfinder clearly lost its way and created a

manifest miscarriage of justice warranting a new trial. Thompkins at 387, citing State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); see also State v. Hill,

2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8. A trial court’s “judgment should

be reversed as being against the manifest weight of the evidence ‘only in the exceptional

case in which the evidence weighs heavily against the conviction.’ ” Hill at ¶ 8, quoting

Martin at 175.

{¶ 16} Although the appellate court “must defer to the factfinder’s decisions

whether, and to what extent, to credit the testimony of particular witnesses,” the court

nevertheless “may determine which of several competing inferences suggested by the

evidence should be preferred.” (Citation omitted.) State v. Cochran, 2d Dist.

Montgomery No. 27023, 2017-Ohio-216, ¶ 6. A determination that a conviction is

supported by the manifest weight of the evidence is also dispositive of the issue of the

sufficiency of the evidence, because “a finding that a conviction is supported by the

manifest weight of the evidence necessarily includes a finding of sufficiency.” (Citation -7-

omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11;

State v. Miller, 2d Dist. Montgomery No. 25504, 2013-Ohio-5621, ¶ 48, citing McCrary at

¶ 11.

{¶ 17} Grieshop nominally challenges the sufficiency of the evidence against him.

Here, the indictment charged Grieshop with one count of abduction in violation of R.C.

2905.02(A)(2). To obtain a conviction, the State had to prove that, without any legal

immunity, license or right, Grieshop knowingly: (1) used force or made threats directed at

Powers; (2) restrained Powers’s liberty; and (3) either created a risk that Powers would

thereby suffer physical harm, or caused Powers to experience fear. See R.C.

2905.02(A)(2). Powers’s own testimony, if accepted as truthful by the jury, provided

sufficient evidence to prove Grieshop’s guilt on all three of these elements, and officers

with the Dayton Police Department discovered physical evidence corroborating Powers’s

account of Grieshop’s actions. Transcript of Proceedings 209:17-214:16, 218:13-

226:22, 232:9-235:24, 249:22-251:21, 291:12-298:20, 306:12-312:15. Furthermore, the

written statement executed by Grieshop during his interview with Detective Kloos, in

which Grieshop offered an apology, could reasonably have been interpreted by the jury

as a tacit acknowledgement of his guilt. Id. at 312:16-315:2.

{¶ 18} Grieshop also insists that the jury found him guilty contrary to the manifest

weight of the evidence, and because the only direct evidence available to the jury was

the parties’ own testimony, the verdict depended in large part on the jury’s assessment

of Powers’s credibility and that of Grieshop himself. In his brief, Grieshop asks

rhetorically why, if Powers’s “story [were] true,” she would not have initially intended to

file a complaint against him. Appellant’s Brief 11. The State itself asked Powers -8-

essentially the same question at trial, and the jury had the opportunity to observe her

response and demeanor as part of its consideration of the credibility of her explanation.

Transcript of Proceedings 253:15-254:7.

{¶ 19} Having completed an independent evaluation of the transcript, we find no

reason to second-guess the jury’s assessment of Powers’s credibility merely because

she hesitated to lodge a criminal complaint against Grieshop, particularly in light of the

corroborating physical evidence and the statement executed by Grieshop.

Consequently, we hold that the State presented sufficient evidence to support Grieshop’s

conviction, and that the jury did not find Grieshop guilty contrary to the manifest weight of

the evidence. Grieshop’s first assignment of error is overruled.

{¶ 20} For his second assignment of error, Grieshop contends that:

ON INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 21} Grieshop argues that his trial counsel failed to provide effective assistance

because she did not cross-examine Powers at all and only engaged in a limited cross-

examination of Detective Kloos. Appellant’s Brief 11. Omitting mention of his own

testimony, Grieshop faults counsel for “leaving the [j]ury with only the victim’s version of

events.” Id.

{¶ 22} To prevail on a claim of “ineffective assistance of counsel, a defendant must

satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38

(2d Dist.). The Strickland test requires a showing that: “(1) defense counsel’s

performance was so deficient that [it did not fulfill the right to assistance of counsel] -9-

guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * *

defense counsel’s errors prejudiced the defendant.” Id., citing Strickland at 687.

Judicial “scrutiny of counsel’s performance must be highly deferential,” so “a [reviewing]

court must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana,

350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). To show prejudice, the defendant

bears the burden to demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of [a given] proceeding would have been different.” Id.

at 694; State v. Southern, 2d Dist. Montgomery No. 27932, 2018-Ohio-4886, ¶ 47. A

failure to make either showing defeats the claim. Cardenas at ¶ 38.

{¶ 23} Notwithstanding his argument that counsel was ineffective for allowing the

jury to hear “only [Powers]’s version of events,” Grieshop himself took the stand and

offered his own version of events. Appellant’s Brief 11. Given the deference due

counsel’s performance, we find it likely that counsel had professionally sensible reasons

for choosing not to cross-examine Powers and to limit her cross-examination of Detective

Kloos. Counsel, for example, might have been concerned that a cross-examination of

Powers would inspire sympathy among the jurors, and the most damaging aspect of

Detective Kloos’s testimony was the statement that Grieshop himself had written.

Grieshop, in any event, has not demonstrated a reasonable probability that the outcome

of his trial would have been different if counsel had cross-examined Powers or if counsel

had cross-examined Detective Kloos at greater length. Grieshop’s second assignment

of error is overruled.

III. Conclusion -10-

{¶ 24} The State introduced sufficient evidence during Grieshop’s trial to prove his

guilt with respect to each of the elements of abduction under R.C. 2905.02(A)(2), and

Grieshop has not demonstrated that the jury clearly lost its way in finding him guilty. In

addition, Grieshop’s trial counsel provided professionally reasonable representation, and

Grieshop has not shown that he was prejudiced by counsel’s performance. Therefore,

Grieshop’s conviction is affirmed.

DONOVAN, J. and FROELICH, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Michael P. Allen Kelle M. Saull Derek R. Dailey Sarah M. Walter Jessica L. Monday Hon. Michael W. Krumholtz