State v. Grubbs

2025 Ohio 1384

• Court: Ohio Court of Appeals
• Decided: April 18, 2025
• Docket: C-240165
• Status: Published

Opinion

[Cite as State v. Grubbs, 2025-Ohio-1384.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-240165 TRIAL NO. B-2106544-A Plaintiff-Appellee, :

vs. : OPINION JACK GRUBBS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 18, 2025

Connie M. Pillich, Hamilton County Prosecuting Attorney, and John D. Hill, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MOORE, Judge.

{¶1} Defendant-appellant Jack Grubbs appeals his conviction for murder,

arguing his conviction was based on inadmissible Evid.R. 404(B) evidence, due to the

ineffective assistance of counsel and prosecutorial misconduct, and contrary to the

manifest weight of the evidence.

{¶2} We hold that any error by the trial court in admitting other-acts evidence,

and any deficiency in counsel’s performance, were not prejudicial to Grubbs. We

further hold that no prosecutorial misconduct occurred, and Grubbs’s conviction was

not contrary to the manifest weight of the evidence. For these reasons, we affirm the

trial court’s judgment.

I. Factual and Procedural History

The Night of the Shooting

{¶3} Prior to the night of December 21, 2021, when Tyler Lee was killed,

Grubbs and Lee had been “boys,” i.e., friends. In fact, until early December, Lee lived

with Grubbs at a house located at 4337 Cappel Avenue in the Price Hill neighborhood

of Cincinnati, Ohio. Malachi Joy, Grubbs’s codefendant in this matter, also lived there.

{¶4} On the night of the shooting, both Grubbs and Lee arrived at the Cappel

Avenue address at approximately 6:30 p.m. Lee arrived in a black Dodge Charger

driven by his girlfriend, Paige Cox. Grubbs noticed the car as he saw it park in front of

his neighbor’s house next door. The windows of the car were tinted, so Grubbs could

not see the passengers. Grubbs exited from his own vehicle and walked toward the

house.

{¶5} Once he reached the porch of his house, Grubbs turned and saw that the

person that had gotten out of the Charger was approaching him. Grubbs responded by

drawing his gun and firing. Lee was hit with multiple gunshots and his body landed in

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front of a tree near the porch.

{¶6} Cox was sitting in the Charger looking at her phone and listening to music

when she heard the gunshots. After hearing the shots, she got out of the car and went

to where Lee’s body lay. Grubbs fled the scene; Lee died there.

{¶7} Grubbs fled to his father’s house in nearby Covington, Kentucky. He

threw the gun in a sewer and cut his long, unkempt hair, which he had become known

for. The police eventually found and arrested Grubbs. The investigation, trial, and

conviction underlying this appeal followed.

The Investigation

{¶8} At the scene of the shooting, Cincinnati Police (“CPD”) officers found

multiple shell casings near the front porch steps of Grubbs’s house. Lee’s body

remained by the tree in the front yard. Officers found marijuana and digital scales, as

well as ammunition, stray gun magazines, and several additional firearms belonging

to either Joy or Grubbs. Joy had hidden these items in a red backpack in the basement

of the house. A surgical mask was found on the front lawn, away from the porch and

closer to the street. Officers later found Lee’s revolver after impounding the Charger

as part of their investigation. Cox later admitted to taking the gun and hiding it in the

car after she saw that Lee had been shot.

Grubbs is Arrested and Charged

{¶9} Two days after the shooting, Grubbs was arrested in Kenton County,

Kentucky. He was charged with one count of murder with specifications in violation of

R.C. 2903.02(A), murder with specifications in violation of R.C. 2903.02(B), felonious

assault with specifications in violation of R.C. 2903.11(A)(2), and involuntary

manslaughter with specifications in violation of R.C. 2903.04(A). The involuntary-

manslaughter charge and its accompanying specifications were dismissed by the State

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prior to trial.

The Trial

The Neighbor’s Testimony

{¶10} Grubbs’s next-door neighbor testified that on the night of the shooting,

she heard gunshots and Cox screaming for help and saw a car speed by her house. The

neighbor also saw Cox sitting against the tree in Grubbs’s yard and holding Lee’s body

across her lap.

Paige Cox’s Testimony

{¶11} Cox testified that Joy and Lee communicated some time that day via

social media and planned for Lee to come to the Cappel Avenue address to buy

marijuana from Joy.

{¶12} According to Cox, Lee was at a party with Grubbs and Joy on December

19th and he spent the night at their house that evening following the party. She

testified that when he left for the party, Lee was wearing an “all-orange” hooded

sweatshirt with “words that had black on it.” Cox also testified that Lee was wearing

the same clothing when she picked him up from Grubbs’s house the next morning. Cox

was shown a screenshot of a picture she posted on Facebook on December 19th, which

showed Lee wearing the same sweatshirt. Cox testified that Lee was wearing the same

sweatshirt when Grubbs shot him.

{¶13} Cox testified that Lee’s face was not covered when he got out of the car

the night he was killed. She also stated that Joy told him to bring a gun for protection

when he came to the house, and that Lee had a revolver either in his sweatshirt or his

pants pocket.

{¶14} Before hearing the gunshots, Cox was looking at her phone and listening

to music, so she did not see the shooting. After hearing the gunshots, she heard either

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Joy or Grubbs say, “Not my boy, Tyler.” Cox described getting out of the car and seeing

Lee’s body lying “in front of the tree with his feet still on the walkway” leading to

Grubbs’s house. She also saw Grubbs “[try] to run into his house” then turn around

and run past her and flee the scene in his car.

{¶15} Cox saw Lee’s revolver lying on the ground next to his body. Cox took

the gun and hid it in the Charger under the front-passenger seat. Cox conceded that

she did not reveal that she hid Lee’s gun when she was initially interviewed by the

police. She admitted in her second interview to concealing the gun. Cox explained that

she did not expect Lee to die that night and took the gun out of fear that he would get

into trouble.

Malachi Joy’s Testimony

{¶16} Joy testified that Grubbs knew that Lee was coming over that day. He

stated that Lee was still living with them on December 21st and that he was just staying

with Cox “for a couple of days.” Joy recognized the outfit Lee wore in the screenshot

of the picture of Lee from Cox’s Facebook page, including the distinctive orange

sweatshirt. Joy also testified that Grubbs had long hair for about a year and a half prior

to the shooting. Joy also explained that the house on Cappel Avenue where he and

Grubbs lived had not recently been burglarized, however, a friend who stayed at the

house one night had taken Grubbs’s guns.

{¶17} Joy stayed with Lee and Cox until the ambulance arrived, then he went

into the house to hide the guns and marijuana that belonged either to him or Grubbs.

Expert Testimony

{¶18} Lee’s revolver was analyzed by the Hamilton County crime lab. The

analysis revealed that although Lee’s DNA was found on the gun’s handle his blood

was not.

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{¶19} Dr. Laib, an expert in forensic pathology, testified that a bullet had

struck Lee’s right hand and perforated multiple blood vessels, which was consistent

with the EMTs decision to apply a tourniquet to the arm to try to stop the bleeding.

The cuff on the right sleeve of Lee’s sweatshirt had holes that matched the wounds on

his right hand, indicating that the cuff was “down over the main part and palm of the

hand at the time the bullet went through it.” The wound on the hand also showed that

Lee was either shot through an object or at a distance as no gunpowder particles were

embedded around the wound. She explained her conclusion that Lee was shot from

one-and-a-half to three feet away.

{¶20} Dr. Laib explained that the injury to Lee’s hand caused much more

damage than the shot to his hip because the bullet hit blood vessels and caused an

“extensive amount of hemorrhaging” versus the nonfatal passing of the bullet through

the muscle and lodging in Lee’s hip bone. She testified that Lee could have “bled to

death . . . just from the injury to his hand.”

{¶21} Civilian criminalist Amanda Perkins testified that the Charger Cox

drove that night was parked right in front of the next-door neighbor’s house. There

was a streetlight in front of Grubbs’s house and one behind the Charger. After

recovering Lee’s gun from the Charger, Perkins saw blood on the barrel and cylinder

of Lee’s gun. A surgical mask was found away from the body.

Officer Horning’s Testimony

{¶22} CPD officer Kimberly Horning testified based on her experience, not as

an expert. She swabbed Lee’s gun handle to “hopefully identify who would be holding

the weapon.” Lee’s gun had “a lot of blood smears on it.” Lee’s blood was found along

the gun barrel along the cylinder, and there was a small area of blood near the trigger

guard. However, no blood was found on the handle. As to whether Lee was holding the

6 OHIO FIRST DISTRICT COURT OF APPEALS

gun when he was shot, Horning explained how the blood that was on the gun was

“transferred,” versus the blood “spatter” that would be expected if Lee were holding

the gun. She further testified that there was no damage to the handle of the gun.

Detective Steve Holstrom’s Testimony

{¶23} Erlanger, Kentucky, police Detective Steve Holstrom testified that an

Erlanger resident reported seeing a gun in a nearby sewer while looking for her cell

phone. Officers recovered the gun and sent it to the Cincinnati Crime Intelligence Gun

Unit. Detective Holstrom determined the gun belonged to Grubbs.

Detective Greg Gehring’s Testimony

{¶24} CPD Detective Gehring testified to conducting a “cellphone dump” on

Grubbs’s phone. It showed that Grubbs had downloaded Cox’s picture of Lee wearing

the orange hooded sweatshirt on December 19th—the same date as when Cox posted

the picture on Facebook. Gehring also testified that while “parts of Price Hill” are

dangerous, Cappel Avenue is not.

{¶25} Audio of the calls that Grubbs made to his grandmother, uncle, and

brother from the Kenton County jail were played at trial. Grubbs was heard telling his

family that he had his back turned and he had the screen door open when a person ran

“up behind” him, and he did not know it was Lee. There was no mention of him seeing

Lee holding a gun.

Jack Grubbs’s Testimony

{¶26} Grubbs described his experience with gun violence, stating that he

began carrying a firearm in 2019 out of fear after his friend was killed. He testified he

was “on edge” because someone had broken into the Cappel Avenue house the week

before Lee was killed and stole firearms, so he had a “bad feeling.”

{¶27} Grubbs testified that the night Lee was shot, he was returning home

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from making a marijuana sale nearby. Grubbs testified that when he turned onto his

street another car was coming “kind of head-on” in his direction and then parked

behind his neighbor’s car. He stated that he pulled into his driveway, and he could not

see because the Charger’s headlights were on, it was dark outside, and the all-black car

and tinted windows prevented him from seeing the passengers inside. He denied

seeing the Charger before that night or that he knew that Lee was coming over that

day.

{¶28} Grubbs testified that he saw a person get out of the Charger wearing the

hood up on his sweatshirt and “appeared to be wearing a mask.” Grubbs testified that

the person that exited from the car said, “What should I do?” Grubbs stated that he

did not recognize the voice and that he took the statement as “kind of, as a threat,

maybe.” In response, he explained he turned and said, “Watch out, man” as if to say,

“leave me alone.”

{¶29} Grubbs explained that he did not call for help because he was thinking

of getting into his house where he felt safe. Grubbs testified that he ran onto his porch

and when he turned around, the person ran “at him,” and was “right up on him” pulling

a gun with his right hand, so Grubbs shot him.

{¶30} Grubbs denied recognizing the orange and black sweatshirt Lee was

wearing. He testified that he did not know it was Lee until after he shot him when Lee

identified himself saying, “Ah. It’s Tyler, bro. You just shot me.” Grubbs testified that

he went down the porch steps and tried to help Lee get up.

{¶31} Grubbs stated that he left the scene and drove to his father’s house at

Joy’s urging and because, with Lee’s revolver lying next to his body, Grubbs was afraid

that Cox would use it to shoot him in retaliation for shooting Lee.

{¶32} Grubbs testified that he cut his hair because he knew he was going to jail

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even though he shot Lee in self-defense, and that he was trying to hide not because he

was avoiding the police, but because he was seeking defense counsel.

{¶33} At trial, the State highlighted Grubbs’s failure to mention in both phone

calls that Lee had a gun.

{¶34} On cross-examination, Grubbs denied making a video brandishing a

firearm, prompting the State to show Grubbs a still shot of a video from Grubbs’s

Facebook account. Grubbs identified himself and Joy “[h]olding firearms,” but

declined to recite the caption on the picture, which stated, “Say you my n**** I’ma [sic]

be your killer.” Instead, Grubbs stated only that the caption was paraphrasing a song

by the rapper Kodak Black. Over defense counsel’s objection, the court admitted the

still shot, finding the state was using it for impeachment and its prejudicial value did

not outweigh its probative value.

{¶35} Grubbs described himself as an entrepreneur who sold shoes, designer

clothing, and “a little bit of weed here and there.” Grubbs also admitted to selling guns,

although he claimed it wasn’t normal for him to do so. The State introduced photos of

a gun that Grubbs once offered for sale or trade. Grubbs conceded the gun in the

photographs was the same gun used to kill Lee. The exhibits were admitted with no

objection.

The Verdict

{¶36} The jury found Grubbs guilty of both murder counts, felonious assault,

and all accompanying specifications. The trial court merged the second count of

murder and the count of felonious assault with the first count of murder, and

sentenced Grubbs to 15 years to life. The court merged the specifications in Counts 2

and 3 with the specifications in Count 1 and sentenced Grubbs to three years, to be

served consecutively to his sentence for murder, for an indefinite aggregate prison

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term of 18 years to life. The involuntary manslaughter charge was dismissed prior to

trial.

II. Analysis

{¶37} Grubbs argues that his conviction was based on impermissible Evid.R.

404(B) evidence. He further argues that he was prejudiced by the ineffective assistance

of counsel for counsel’s failure to object to other-acts evidence and erroneously stating

that Grubbs had a burden to prove self-defense. Grubbs also asserts he was prejudiced

by prosecutorial misconduct. Specifically, Grubbs claims he was prejudiced by the

State’s comments calling him a liar and its claim that Lee was not holding a gun when

he was shot. Finally, Grubbs argues that his conviction is contrary to the manifest

weight of the evidence.

A. Evid.R. 404

{¶38} In his first and second assignments of error, Grubbs argues that the

admission of the Facebook photo and videos of him holding a gun, and evidence that

Grubbs possessed other weapons and trafficked in marijuana and Xanax, were

improper Evid.R. 404(B) evidence that prejudiced him. Grubbs makes a general

argument under the first, second, and third assignments of error—that the evidence

“played on the jurors’ emotions and invoked their negative feelings about young,

armed men who sell drugs in our community” and painted him as a “gun-toting drug

dealer.”

Notice of Intent to Use Evid.R. 404(B) Evidence

{¶39} As an initial matter, Grubbs argues that the State failed to file a notice

of intent to use Evid.R. 404(B) evidence. However, he did not raise this objection at

trial. Therefore, the issue is reviewed for plain error. See State v. Long, 53 Ohio St.2d

91 (1978), paragraph one of the syllabus.

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{¶40} Evid.R. 404(B) requires the proponent of other-acts evidence to

provide reasonable notice of its use in advance of trial. However, the rule requiring

notice “should not be construed to exclude otherwise relevant and

admissible evidence solely because of a lack of notice, absent a showing of bad faith.”

State v. Binks, 2018-Ohio-1570, ¶ 48 (12th Dist.).

{¶41} Because the lack of notice was not raised in the trial court, the record is

devoid of any evidence of bad faith, and the lack of notice cannot be the basis to

exclude any admissible evidence. See id. Accordingly, the trial court did not err by

allowing the State to introduce the other-acts evidence.

Admissibility of Other-Acts Evidence

{¶42} The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a

question of law. State v. Graham, 2020-Ohio-6700, ¶ 72, citing State v. Hartman,

2020-Ohio-4440, ¶ 22. Evid.R. 404 contemplates acts that may or may not be similar

to the crime at issue. State v. Morris, 2012-Ohio-2407, ¶ 13. Evid.R. 404(B) precludes

admitting improper character evidence relating to “past bad acts to prove action in

conformity therewith, which facilitates a conviction based on prior conduct rather

than the evidence at hand.” State v. McDaniel, 2021-Ohio-724, ¶ 15 (1st Dist.), quoting

State v. O’Connell, 2020-Ohio-1369, ¶ 1 (1st Dist.).

{¶43} A trial court has discretion to allow other-acts evidence that is

admissible for a permissible purpose, “such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” McDaniel

at ¶ 15; see Hartman at ¶ 22, citing State v. Williams, 2012-Ohio-5695, ¶ 17. Another

consideration permitting the admission of certain other-acts evidence is whether the

other acts “form part of the immediate background of the alleged act which forms the

foundation of the crime charged in the indictment” and are “inextricably related” to

11 OHIO FIRST DISTRICT COURT OF APPEALS

the crime. Id., quoting State v. Curry, 43 Ohio St.2d 66, 73 (1975).

The Still Shot of the Facebook Video

{¶44} We review Grubbs’s objection to the still shot of the Facebook video

using a three-step framework: (1) the evidence must be relevant to the particular

purpose for which it is offered, Evid.R. 401; (2) the other acts must be offered for a

legitimate purpose and not to show propensity to criminal conduct, Evid.R. 404(B);

and (3) the danger of unfair prejudice must not substantially outweigh the probative

value of that evidence, Evid.R. 403. McDaniel at ¶ 17; see Graham at ¶ 72, citing

Williams at ¶ 20. We review these three prongs under a mixed standard of review; the

first two pose legal questions, which we review de novo, and the third constitutes a

judgment call which we review for an abuse of discretion. McDaniel at ¶ 17.

{¶45} Evid.R. 401 defines relevant evidence as:

[E]vidence having any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less

probable than it would be without the evidence.

“It is almost always true that propensity evidence will have some relevance.” Hartman,

2020-Ohio-4440, at ¶ 25. The relevance inquiry does not ask whether the other acts

ultimately render the defendant’s guilt more or less likely. Id. at ¶ 26. Instead, the

inquiry considers whether the evidence is relevant to the particular purpose for which

it is offered. Id. The question is whether the other-acts evidence is “so related to the

crime charged in time or circumstances that evidence of the other acts is significantly

useful in showing the defendant’s intent in connection with the crime charged.” Id. at

¶ 58, quoting 1 Wharton’s Criminal Evidence at § 4:31 (15th Ed. 2019).

{¶46} In State v. Thomas, 2017-Ohio-8011, the Ohio Supreme Court warned

that other-weapons evidence—i.e., irrelevant evidence of weapons unrelated to the

12 OHIO FIRST DISTRICT COURT OF APPEALS

charges—falls within the scope of Evid.R. 404(B). State v. Gatewood, 2021-Ohio-

3325, ¶ 31 (1st Dist.). Therefore, evidence of dangerous weapons, even though found

in the defendant’s possession, must be excluded when they are not relevant to the

crimes charged and lead only to improper inferences about the defendant’s

character. Id., citing Thomas at ¶ 36.

{¶47} However, where other-acts evidence is offered to show a defendant’s

motive for lying, it is admissible. State v. McKinney, 2002-Ohio-3194, ¶ 18 (1st Dist.).

{¶48} Grubbs contends the Facebook still was not relevant to the charges

contained in the indictment. The State counters that the still was offered for

impeachment purposes, specifically, to show that Grubbs was not truthful in his

testimony that he only carried firearms for protection.

{¶49} The still shows Joy and Grubbs wearing ski masks, and each holding

multiple firearms. The evidence was, therefore, permissible for impeachment to show

that Grubbs was not being truthful when he claimed he only carried firearms for

protection. The still showed that Grubbs not only carried firearms for protection but

also made videos brandishing them.

{¶50} While the still was admissible for purposes of impeachment, that is not

the end of the analysis. The evidence must also be tested for undue prejudice under

Evid.R. 403(A), which provides:

Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion

of the issues, or of misleading the jury.

{¶51} Here, in addition to showing Grubbs posing with multiple firearms, the

still bore a caption paraphrasing a rap song lyric that read, “Say you my n**** I’ma

[sic] be your killer.”

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{¶52} Grubbs argues that in addition to the Facebook still being impermissible

other-acts evidence, it should be barred because it is unduly prejudicial. We agree.

{¶53} The still not only shows Grubbs holding multiple handguns and an AR-

15-style assault rifle but also shows Joy holding multiple guns and includes a reference

to an incendiary racial slur. Together, the image of the AR-15 military style weapon,

the reference to one of the most offensive words in the English language,1 and the

suggestion of violent intent included in the caption creates a potential for unfair

prejudice that substantially outweighs any probative value this evidence might

otherwise have.

{¶54} The trial court stated the State’s initial purpose in introducing the video

and still shot was to impeach Grubbs’s testimony. It is within the trial court’s

discretion to determine if the still shot’s prejudicial effect was outweighed by its

probative value. State v. Johnson, 2018-Ohio-4131, ¶ 36 (1st Dist.). A trial court abuses

its discretion when it acts unreasonably, arbitrarily, or unconscionably in determining

the evidentiary issue at hand. State v. O’Connell, 2020-Ohio-1369, ¶ 14 (1st Dist.). An

appellate court will not disturb the trial court’s decision to admit or exclude evidence

absent an abuse of discretion and a showing that the accused has suffered material

prejudice. Id., citing State v. Martin, 19 Ohio St.3d 122, 129 (1985).

{¶55} Here, the trial court abused its discretion in admitting the still shot

bearing the caption. Therefore, we agree with Grubbs’s argument that the Facebook

still was unduly prejudicial and should not have been introduced. However, as

1Grubbs, incorrectly asserted during oral argument that the jury heard the slur in its pure, unadulterated form. The record, however, shows that what the jury saw in the still was “n****” (sic). This, however, is a distinction without a difference, as it was clear from even the edited version of the word that it referenced “probably the most offensive word in English.” See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (Kavanaugh, J., concurring) (citing Random House Webster’s College Dictionary 894 (2d Rev.Ed. 2000).

14 OHIO FIRST DISTRICT COURT OF APPEALS

explained below, this error proves harmless and does not justify reversing Grubbs’s

conviction.

Harmless-Error Analysis

{¶56} Having found the admission of the Facebook still was in error, we must

decide if the error was harmless to determine if reversal is warranted. See State v.

Geary, 2016-Ohio-7001, ¶ 11 (1st Dist.); Crim.R. 52(A) (“Any error, defect, irregularity,

or variance which does not affect substantial rights shall be disregarded.”). Harmless-

error review requires (1) that the defendant be prejudiced by the improper admission

of the evidence, (2) that the appellate court believes the error was not harmless beyond

a reasonable doubt, and (3) upon excising the improper evidence, a determination

whether the remaining evidence overwhelmingly supports the defendant’s guilt.

O’Connell at ¶ 31; see State v. Morris, 2014-Ohio-5052, ¶ 27-29.

{¶57} Grubbs fails to show how he was prejudiced by the improper admission

of the Facebook still. Even if the still is excised, there remained overwhelming evidence

of Grubbs’s guilt. As set forth in more detail below, evidence of Grubbs’s guilt included

not only expert testimony refuting his claim of self-defense, but also evidence that he

fled the scene, hid the gun, and cut his trademark long hair. Therefore, we hold that

the trial court’s admission of the still was harmless error.

{¶58} Accordingly, we overrule Grubbs’s first assignment of error.

Evidence of Marijuana, Xanax, and Other Guns

{¶59} In his second assignment of error, Grubbs argues that the trial court

committed plain error and violated his due-process rights by admitting improper

Evid.R. 404(B) evidence, specifically that Grubbs possessed other weapons and sold

marijuana and Xanax. Grubbs argues the admission of the evidence was not harmless

and there was no overwhelming evidence of guilt independent of the evidence of drug

15 OHIO FIRST DISTRICT COURT OF APPEALS

sales and gun possession.

{¶60} As an initial matter, Grubbs did not object to admission of the

photographs of the gun he used to kill Lee, the photos of marijuana or other guns, or

Joy’s testimony regarding Xanax. Therefore, the admission of this evidence is subject

to a plain-error review. Johnson, 2018-Ohio-4131, at ¶ 29 (1st Dist.). Plain error does

not exist unless it can be said that but for the error, the outcome of the trial would

clearly have been otherwise. State v. Terry, 2024-Ohio-2876, ¶ 36 (1st Dist.).

{¶61} Grubbs conceded that the photographs of the guns from his cell phones,

which he posted on social media, showed him holding the gun used to kill Lee. The

gun had been found by Erlanger, Kentucky, police in a sewer near Grubbs’s father’s

house. As the gun tied Grubbs to Lee’s shooting, the photographic and physical

evidence was properly admitted.

{¶62} The evidence of drugs and other guns was initially introduced during

Joy’s testimony to establish why Lee had come to Grubbs’s house—to purchase

marijuana and possibly Xanax. The evidence was also used to show Grubbs’s illicit

drug activities and that Joy, Grubbs, and Lee each carried guns.

{¶63} Evidence of guns other than the one Grubbs used to shoot Lee, and the

one Joy used to shoot out of the window after hearing the gunshots outside, and drugs

that were introduced during the State’s case-in-chief were not relevant to the crimes

Grubbs was charged with. However, even if this evidence was excised, as specified in

detail above, the evidence of Grubbs’s guilt was overwhelming.

{¶64} As Grubbs failed to object to this evidence at trial and to show he was

prejudiced by its admission, we overrule his second assignment of error.

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B. Ineffective assistance of counsel

Other-Acts Evidence

{¶65} In Grubbs’s third assignment of error, he argues that counsel’s failure

to object to inadmissible Evid.R. 404(B) evidence that he possessed other weapons

and trafficked in marijuana and Xanax constituted ineffective assistance of counsel

and prejudiced his defense. He contends his counsel was ineffective for failing to object

to other-acts evidence that he possessed other guns, had no training in handling guns,

had no legal right to possess guns, and sold marijuana and Xanax. As with the first and

second assignments of error, Grubbs argues that he was prejudiced by being painted

as an “armed drug dealer.” Alternatively, he argues that the evidence was irrelevant.

{¶66} First, counsel’s failure to make objections is not, by itself, enough to

sustain a claim of ineffective assistance of counsel. State v. Ross, 2024-Ohio-3117, ¶ 3

(1st Dist.). A court will presume that a properly licensed attorney is competent, and

the defendant bears the burden to show ineffective assistance of counsel. Id. at ¶ 35.

To sustain a claim for ineffective assistance of counsel, the defendant must

demonstrate that counsel’s performance was deficient, and that the deficient

performance prejudiced the defense. Id., citing Strickland v. Washington, 466 U.S.

668 (1984).

{¶67} To establish that counsel’s performance was deficient, the defendant

must show counsel’s representation fell below an objective standard of

reasonableness. Id. at ¶ 36, citing Strickland at 687-688. Judicial scrutiny of counsel’s

performance must be highly deferential. Id. The defendant must overcome the

presumption that, under the circumstances, the challenged action might be considered

sound trial strategy. Id., citing Strickland at 689. A defendant is not deprived of the

effective assistance of counsel when counsel chooses, for strategic reasons, not to

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pursue every possible trial tactic. Id., citing State v. Brown, 38 Ohio St.3d 305, 319

(1988).

{¶68} To establish prejudice, a defendant must show that there is a reasonable

probability that but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Id. at ¶ 37, citing Strickland at 694. Prejudice from

defective representation that is sufficient to justify reversal of a conviction exists only

where the result of the proceeding was unreliable or fundamentally unfair because of

counsel’s performance. Id., citing Lockhart v. Fretwell, 506 U.S. 364, 369-370 (1993).

{¶69} Grubbs suggests the trial court should have sua sponte instructed the

jury to exclude or disregard the evidence of the other guns and drugs found in his

home. However, a court is under no such obligation every time other-acts evidence is

presented. Ross, 2024-Ohio-3117, at ¶ 56 (1st Dist.). Because counsel’s decision not to

request a limiting instruction “is sometimes a tactical one,” the Ohio Supreme Court

has stated that it does not “wish to impose a duty on the trial courts to read this

instruction when it is not requested.” Id., quoting State v. Schaim, 65 Ohio St.3d 51,

61, fn. 9 (1992).

{¶70} As explained above, Grubbs’s general claim that he was unduly

prejudiced by trial counsel’s failure to object to the admission of other-acts testimony

and hearsay evidence is not substantiated by the record. Grubbs fails to show that

there was a reasonable probability that the outcome of his trial would have been

different had counsel objected. Further, Grubbs fails to show that counsel’s failure to

object to the evidence was not a part of counsel’s trial strategy. See Ross at ¶ 56,

quoting Hartman, 2020-Ohio-4440, at ¶ 67 (“Depending on the nature of the other-

acts evidence and the context in which it is used, defense counsel may as a matter of

strategy wish to avoid highlighting the evidence for the jury.”).

18 OHIO FIRST DISTRICT COURT OF APPEALS

{¶71} Therefore, Grubb’s third assignment of error is overruled.

Self-defense

{¶72} In his fourth assignment of error, Grubbs argues that his counsel was

ineffective because he placed the burden of proof of self-defense on him, and that a

defendant does not have to show that he did not give rise to the affray and had a bona

fide belief of death or great bodily harm.

{¶73} At oral argument, Grubbs asserted for the first time that defense

counsel’s misstatement of the burden of proof for self-defense was per se ineffective

assistance of counsel. Not only was this argument improperly raised on appeal, but it

is also meritless.

{¶74} Ineffective assistance of counsel per se refers to situations where

counsel’s conduct is so egregious that counsel was not functioning as the “counsel”

that the Sixth Amendment guarantees, without needing to prove specific prejudice to

the defendant. See, e.g., Ludwig v. United States, 162 F.3d 456 (6th Cir. 1998) (An

attorney’s failure to file a notice of appeal, despite the wishes of the defendant,

amounts to ineffective assistance of counsel per se, regardless of the merits of the

appeal.); United States v. Peak, 992 F.2d 39 (4th Cir. 1993) (An attorney’s failure to

file a notice of appeal is per se ineffective and there is no requirement that the

defendant establish prejudice—that is, the defendant need not establish that the

appeal would raise meritorious grounds.). Other examples of per se ineffective

assistance of counsel regard complete failure of representation and conflict of interest.

See Cope v. United States, 385 Fed.Appx. 531 (6th Cir. 2010) (failure to investigate a

plausible alibi); Moss v. Hofbaur, 286 F.3d 851 (6th Cir. 2002) (failure to conduct any

meaningful adversarial challenge, including failure to have any defense theory

whatsoever, cross-examine more than half of the prosecution’s witnesses, object to any

19 OHIO FIRST DISTRICT COURT OF APPEALS

evidence, put on defense witnesses, make a closing argument, or put on mitigation

evidence).

{¶75} In asserting the affirmative defense of self-defense, a defendant has the

initial burden of producing legally sufficient evidence that his use of force was in self-

defense. State v. Mitchell, 2023-Ohio-2604, ¶ 12 (1st Dist.). To establish self-

defense in the use of deadly force, this court has previously held that a defendant must

show that:

(1) the defendant was not at fault in creating the situation giving rise to

the affray; (2) the defendant had a bona fide belief that [he or] she was

in imminent danger of death or great bodily harm and that [his or] her

only means of escape from such a danger was in the use of such force,

and (3) the defendant did not violate any duty to retreat or avoid the

danger.

McDonald, 2023-Ohio-1987, ¶ 17 (1st Dist.), quoting Ohio v. Wilson, 2022-Ohio-3801,

¶ 10.

{¶76} The State then bears the burden of persuasion to disprove at least one

of the elements of self-defense (or defense of another) beyond a reasonable doubt.

(Emphasis added.) Wilson at ¶ 10.

{¶77} Defense counsel initially stated in his closing argument that the State

had to prove beyond a reasonable doubt that Grubbs was at fault for the situation, did

not have reasonable grounds to fear death or great bodily harm, or that he “did not

have an honest belief, even if mistaken” that his use of deadly force was reasonable.

Counsel stated that Grubbs had to show “he was not at fault in creating the situation

that led [him] to be afraid, and he had a bona fide belief that he was in imminent

danger of death or great bodily harm, and his only way to escape was by using force.

20 OHIO FIRST DISTRICT COURT OF APPEALS

That’s it. There’s no duty to retreat any longer in Ohio.”

{¶78} It is the trial court’s duty, as it did here, to instruct the jury on self-

defense. See State v. Messenger, 2022-Ohio-4562, ¶ 26 (“At the close of [defendant’s]

jury trial, the trial court provided the jury with an instruction regarding self-defense,

which means that the trial court concluded that [defendant] put forward sufficient

evidence that he was acting in self-defense when he shot and killed [the victim].”).

Therefore, while the explanation by trial counsel in closing may have been

unnecessary, it was not a deficient performance, nor did it prejudice Grubbs. Counsel

did not misstate the law as the initial burden does fall on a defendant to show by a

preponderance of the evidence that he or she acted in self-defense. Regardless, and

more importantly, Grubbs has not shown that, but for counsel’s statements, the

outcome of his trial would have been different. As Grubbs fails to show prejudice, we

overrule his third assignment of error.

Duty to retreat

{¶79} Grubbs also argues that counsel was ineffective by failing to object to

the following exchange:

Q. At that particular moment when this alleged person was running

up on you, was it your thought that you needed to kill that person to

neutralize the threat?

A. No, not at all.

Q. What was your thought process?

A. My first thought was flight, when I tried running away.

Q. Now, you said “flight.” You’re right by the door of your house.

A. Yes, I was. That’s why I tried running into my house.

Q. Okay, so why didn’t you just go in the house?

21 OHIO FIRST DISTRICT COURT OF APPEALS

{¶80} R.C. 2901.09(C) is not an absolute prohibition on introducing evidence

involving the possibility of retreat. State v. Warth, 2023-Ohio-3641, ¶ 31 (1st Dist.).

Rather, the statute only prohibits factfinders from considering evidence involving the

possibility of retreat to determine whether the defendant's belief that force was

necessary was reasonable. Id. In cross-examining Grubbs about the reasonableness of

his fear in this instance, the State elicited testimony regarding whether Grubbs could

have continued into his home as he was standing on his porch. Therefore, whether it

was a failure or choice not to object, it did not fall below the objective standard of

reasonableness. As with his third assignment of error, Grubbs fails to show that there

was a reasonable probability that the outcome of his trial would have been different

had counsel objected.

{¶81} Grubbs’s fourth assignment of error is overruled.

C. The State’s comments do not amount to prosecutorial misconduct.

{¶82} In Grubbs’s fifth assignment of error, he argues that the State made

improper remarks during trial and closing arguments that constituted prejudicial

conduct sufficient to require reversal of his conviction. He first asserts that the State’s

premise that Lee was first shot in his hand was a misrepresentation of Dr. Laib’s

testimony because she could not identify in what order Lee sustained the bullet

wounds.

{¶83} In determining whether prosecutorial misconduct has occurred, the test

is whether (1) the prosecutor’s remarks were improper, and, if so, (2) “whether they

prejudicially affected the accused’s substantial rights.” State v. Howard, 2014-Ohio-

655, ¶ 31 (1st Dist.), quoting State v. Jones, 2012-Ohio-5677, ¶ 200. Although

prosecutors may not state their personal beliefs regarding guilt and credibility, they

may characterize a witness as a liar, or a claim as a lie, if the evidence reasonably

22 OHIO FIRST DISTRICT COURT OF APPEALS

supports that characterization. State v. Jones, 2007-Ohio-5458, ¶ 39 (1st Dist.).

{¶84} Grubbs concedes the trial court instructed the jury that closing

arguments are not evidence but argues the State’s “improper insinuations and

assertions of personal knowledge” amounted to “flagrant misconduct” which needed

to be rectified with “more definitive guidance.”

{¶85} Grubbs’s contention is problematic because the record and the State’s

responsive brief is devoid of any indication that it argued that Lee was first shot in his

hand. The verbiage Grubbs cites in the transcript does not suggest that the State tried

to persuade the jury that Lee was first shot in his hand. Instead, the record shows that

the State’s questions and arguments were based on Dr. Laib’s expert testimony, which

concluded that Lee was not holding his gun when he was shot.

{¶86} Next, Grubbs argues that the State calling him a liar on the record and

stating in closing that it did not believe Lee was wielding his gun when Grubbs shot

him expressed personal opinions regarding the validity of evidence during closing

arguments.

{¶87} The testimony Grubbs refers to regards his statement that Lee was

wearing a mask. The following exchange took place at trial regarding the location of

the surgical mask and where it was found in relation to Lee’s body:

Q. Well, you just told us that it was right next to him, and it clearly

wasn’t from this crime scene diagram. So you weren’t telling the truth,

were you?

A. I don’t know how the mask got there. He was wearing a mask,

though.

Q. But you just told us it was right next to him.

...

23 OHIO FIRST DISTRICT COURT OF APPEALS

A. Yes, I did say that.

Q. So you weren’t telling the truth.

A. I thought it was next to him.

Q. But you weren’t telling the truth, were you?

A. No, I was. I have no reason to lie to you, ma' am.

Q. Well, you’ve been lying here all day. You just lied about that.

{¶88} The State asked these questions based on Grubbs’s inconsistent

testimony. There is no prosecutorial misconduct where the State cross-examined

based on a reasonable characterization of the evidence and on Grubbs’s testimony.

{¶89} The same can be said for the State’s comment in closing that it did not

believe Lee’s gun was “out,” and that instead, it fell out of Lee’s pocket. This contention

was also based on a reasonable characterization of the evidence, specifically Dr. Laib’s

expert testimony that Lee was not holding the gun when Grubbs shot him.

{¶90} Finally, Grubbs accuses the State of “cherry-pick[ing]” evidence in its

closing regarding Grubbs’s assertions of why he feared for his life. Grubbs’s testimony

was that he saw a person get out of the car and say, “What should I do?” As testimony

is evidence, the State’s comments as reflected in Ohio law that “words alone do not

justify using deadly force” were not improper or a mischaracterization of the evidence.

This is particularly true where the State has the burden of persuasion to show that

Grubbs did not act in self-defense. Finally, the court instructed the jury that closing

arguments are not evidence. Accordingly, the prosecutor’s comments were not

improper, and Grubbs’s substantial rights were not prejudiced.

{¶91} Grubbs’s fifth assignment of error is overruled.

24 OHIO FIRST DISTRICT COURT OF APPEALS

D. Grubbs’s conviction was not against the manifest weight of the evidence.

{¶92} In his sixth assignment of error, Grubbs argues that his conviction was

not supported by the weight of the evidence. Grubbs contends his actions were based

on his “mistaken, but reasonable, belief an armed person was coming toward him

intending to do him serious bodily harm.” He asserts the only evidence presented

against his self-defense claim was his actions following the shooting, which failed to

prove beyond a reasonable doubt that he was not acting in self-defense. Grubbs further

asserts the evidence the jury based his conviction on was impermissible Evid.R.

404(B) evidence introduced to show his “propensity to commit crime and his reckless

use of firearms,” and misstatements of the expert testimony regarding whether Lee

pulled his gun before Grubbs shot him. Grubbs argues that “at best,” the evidence

shows that he acted “recklessly” which is not an element of murder or felony murder.

{¶93} When faced with a manifest-weight-of-the-evidence challenge, we must

consider whether the State “carried its burden of persuasion” before the trial

court. State v. Gibson, 2023-Ohio-1640, ¶ 8, quoting Messenger, 2022-Ohio-4562, at

¶ 26; see State v. Martin, 2022-Ohio-4175, ¶ 26. Unlike the evidence on an issue, the

burden of persuasion represents a party’s duty to convince the factfinder to view the

facts in his or her favor. Gibson at ¶ 8, citing Messenger at ¶ 17. Therefore, to conclude

that the factfinder’s adjudication of conflicting evidence ran counter to the manifest

weight of the evidence—which we reserve for only the most exceptional

circumstances—we must find that the factfinder disregarded or overlooked compelling

evidence that weighed against conviction. Id., citing State v. Thompkins, 78 Ohio St.3d

380, 387-388 (1997). We accordingly sit as a “thirteenth juror” in this respect. Id.

{¶94} As stated earlier, to establish self-defense, Grubbs had to meet his initial

25 OHIO FIRST DISTRICT COURT OF APPEALS

burden to produce evidence that he was not at fault, that he had a reasonable belief of

imminent danger of which the only means of escape was the use of force, and that he

had no duty to retreat. See McDonald, 2023-Ohio-1987, at ¶ 17 (1st Dist.). The

reference in R.C. 2901.05(B)(1) to “evidence presented that tends to support” self-

defense indicates that the defendant’s burden of production is not a heavy one and

that it might even be satisfied through the State’s evidence. Messenger at ¶ 21. The

State must then disprove at least one of the elements of self-defense beyond a

reasonable doubt. Wilson, 2022-Ohio-3801, at ¶ 10.

{¶95} R.C. 2901.09(B) is also a factor, which provides, “a person has no duty

to retreat before using force in self-defense. . . if that person is in a place in which the

person lawfully has a right to be.” State v. Warth, 2023-Ohio-3641, ¶ 30 (1st Dist.). A

trier of fact cannot consider the possibility of retreat in a claim of self-defense if the

defendant “reasonably believed that the force was necessary to prevent injury, loss, or

risk to life or safety.” (Emphasis added.) Id.; R.C. 2901.09(C). Therefore, although

Grubbs had a right to be on his property, his use of deadly force instead of going into

his home must be based on a reasonable fear that he was facing death or serious bodily

injury.

The jury was entitled to believe Grubbs’s justification for using deadly force was unreasonable.

{¶96} A jury is in the best position to judge the credibility of the

witnesses. State v. Hall, 2021-Ohio-3121, ¶ 44 (1st Dist.). The jury was entitled to

weigh the evidence, consider the motivations of the witnesses, and choose to believe

all, part, or none of the testimony offered. Id. When conflicting evidence is presented

at trial, a conviction is not against the manifest weight of the evidence simply because

the trier of fact believed the prosecution testimony. McDaniel, 2021-Ohio-724, at ¶ 25

26 OHIO FIRST DISTRICT COURT OF APPEALS

(1st Dist.).

{¶97} The only evidence offered to support Grubbs’s self-defense claim was

his own testimony. Grubbs maintained that he was on edge due to the previous

burglary and theft of guns from his home. Joy, however, testified that instead of a

burglary, a friend who had been invited to the house took the guns. In addition,

Grubbs’s claim of being in fear was further refuted by Detective Gehring’s and Carla

Triplett’s testimony that Cappel Avenue was in an area of Price Hill not generally

known to be dangerous.

{¶98} The State also refuted Grubbs’s self-defense claim by introducing the

recording of Grubbs’s initial account to his brother and uncle during a call from the

Kenton County jail. This initial account did not include any reference to Lee having a

gun. Grubbs also initially told his brother that he had the screen door open before

turning and opening fire.

{¶99} The State’s evidence suggested that Grubbs should have recognized Lee

as (1) Grubbs’s property and the property next door where Cox’s car was parked were

illuminated by streetlights, and neighboring houses were decorated with Christmas

lights, (2) the shooting occurred around 6:30 p.m. and it was not yet fully dark outside,

(3) Grubbs saw Lee wearing the same distinctive orange and black sweatshirt he wore

two days prior when he went to a party with Grubbs, (4) Grubbs downloaded a picture

of Lee wearing the sweatshirt three different times the night they went to the party,

and (5) the two had previously been roommates and had been friends for years.

{¶100} The State’s expert testimony reflected that Lee could not have been

holding his gun when he was shot because (1) there was no blood on Lee’s gun handle,

(2) blood from the wound Lee sustained in his right hand would have caused blood

spatter on the handle, and (3) the fact that the bullet went through Lee’s hand

27 OHIO FIRST DISTRICT COURT OF APPEALS

indicated the handle on his gun would have been damaged had Lee been holding it.

The forensic evidence showed that Lee bled profusely due to multiple gunshot wounds,

including the wound to his right hand, which alone could have resulted in Lee bleeding

to death.

{¶101} Grubbs contends in his merit brief that “[t]he only evidence that

possibly could have been construed against [his] claim of self-defense were his actions

following the shooting.” He cites Judge Bergeron’s concurrence in State v. Echols,

2023-Ohio-2206 (1st Dist.) (Bergeron, J., concurring), arguing that flight does not

create a presumption of guilt. The concurrence in Echols, however, was not focused on

flight; rather, it centered on witness intimidation and the citations in support of the

analysis were merely referenced regarding flight to get away from police or to avoid

prosecution in limited circumstances where the person was innocent.

{¶102} Ultimately, it is the jury’s prerogative to decide credibility and weigh

the evidence presented on both sides. See Hall, 2021-Ohio-3121, ¶ 45 (1st Dist.). The

jury was entitled to disbelieve Grubbs’s testimony and instead believe that his fleeing

to Covington, Kentucky, immediately after shooting Lee, throwing the gun into the

sewer, and cutting his hair were all indications of guilt.

{¶103} The issue at bar does not regard whether Grubbs’s killing Lee was an

accident or reckless. The issue comes down to whether Grubbs’s belief that Lee posed

an imminent threat of serious bodily harm or death was reasonable. The jury chose to

believe that it was not. The record is devoid of evidence that weighs heavily against the

conviction. This is not “the exceptional case in which the evidence weighs heavily

against the conviction.” Id. There is nothing in the record to suggest that the integrity

of the trial was tainted or that the jury clearly lost its way and created a manifest

injustice. See McDaniel, 2021-Ohio-724, at ¶ 25 (1st Dist.).

28 OHIO FIRST DISTRICT COURT OF APPEALS

{¶104} Grubbs’s sixth assignment of error is overruled.

III. Conclusion

{¶105} For the foregoing reasons, we affirm the trial court’s judgment.

Judgment affirmed.

ZAYAS, P.J., and BOCK, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.