State v. Grevious , 2019 Ohio 1932 ( 2019 )

[Cite as State v. Grevious, 2019-Ohio-1932.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-05-093
: OPINION
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:
MICHAEL T. GREVIOUS, II, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2016-08-1134
Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Koenig & Long, LLC, Charles A. Koenig, 5354 North High Street, Columbus, Ohio 43214, for
appellant
PIPER, J.
{¶ 1} Appellant, Michael Grevious, appeals his conviction in the Butler County Court
of Common Pleas for aggravated murder.
{¶ 2} On July 24, 2016, an altercation occurred at Doubles Bar between members of
the Gilbert family and a rival group. The altercation escalated into a gunfight during which
eight people were shot, including Orlando Gilbert. Kalif Goens was also shot and died from
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his injuries. Grevious was present at Doubles Bar on the night of the shootout and knew
Goens well as the son of his father's girlfriend.1
{¶ 3} On the afternoon of August 3, 2016, Zachary Harris and two conspirators, Tony
Patete and Melinda Gibby, drove in a populated area searching for the vehicle driven by
Orlando. The three located Orlando's vehicle, and began following him. The three then
pulled beside Orlando's car and shot him and his passenger, Todd Berus, with an AK-47
automatic rifle. Orlando was killed instantly and Berus perished shortly thereafter. Harris,
Patete, and Gibby fled and engaged police on a chase, each separately captured by police.2
{¶ 4} The investigation that followed revealed that Grevious hired Harris to kill
Orlando in retaliation for Goens' death, that Harris had tried and failed on multiple occasions
to locate Orlando in order to kill him, and that Grevious orchestrated and pursued Harris'
execution of Orlando through hundreds of phone calls and text messages in the days
between the shooting at Doubles Bar and the ultimate killing of Orlando and Berus.
{¶ 5} The investigation also uncovered that on July 24, 2016, Grevious fired shots at
a member of the Gilbert family, Jariaus, on the night of the shootout at Doubles Bar. In
regard to that investigation, Grevious was charged with felonious assault for shooting at
Jariaus and having weapons under disability, along with a firearm specification. In regard to
the homicide of Orlando on August 3, 2016, Grevious was charged with aggravated murder
that carried a death penalty specification by which the state alleged that Grevious committed
murder-for-hire, along with an additional firearm specification.
{¶ 6} Grevious pled not guilty to the charges and the matter proceeded to an eight-
day jury trial. Before the trial began, Grevious moved the court to sever the charges against
1. The record indicates that Grevious referred to Goens as his brother.
2. All three pled guilty to two counts of aggravated murder and received life sentences.
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him so that he could be tried separately for the aggravated murder and felonious assault
charges. The trial court overruled Grevious' motion, finding that the indicted charges were
connected because the events of the shootout at Doubles Bar led to Orlando's death. The
trial court also overruled Grevious' motion to suppress a photographic lineup identification of
him by a woman the police interviewed during the investigation.
{¶ 7} A jury found Grevious guilty of aggravated murder, but not guilty of the
felonious assault and having weapons under disability charges. The jury recommended
imposing a life sentence rather than the death penalty, and the trial court imposed the
suggested life sentence without the possibility of parole. Grevious now appeals his
conviction, raising six assignments of error.3 For ease of discussion, we will address the
assignments of error out of order.
{¶ 8} Assignment of Error No. 4:
{¶ 9} THE EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT AS A MATTER OF
LAW TO SUPPORT APPELLANT'S CONVICTION ON THE CHARGE OF AGGRAVATED
MURDER COMMITTED FOR HIRE.
{¶ 10} In his fourth assignment of error, Grevious argues that his conviction for
aggravated murder was not supported by sufficient evidence.
3. Grevious also suggests that this court deprived him of due process by imposing a page limit on his appellate
brief. This court normally imposes a 20-page limit on appellate briefs according to Loc.R. 11(A)(3). However,
this court, within its discretion, granted Grevious' request for extra pages, and permitted him 40 pages to present
his arguments, thus doubling the normal page limit. That 40-page allowance was 40 full pages in which
Grevious could present his arguments, exclusive of the brief formalities required by our court including a table of
contents, table of cases and authorities, assignments of error and issues presented for review, and appendices.
Notwithstanding that fact, Grevious argues that he was not able to present all the reasons his conviction should
have been reversed given the space limits. However, the Ohio Supreme Court has already determined that page
limits are constitutional, specifically finding that 40 pages was a reasonable number of pages to provide
appellants the ample opportunity to concisely present arguments. Ziegler v. Wendel Poultry Serv., Inc., 67 Ohio
St. 3d 10, 22 (1993). That this court requires appellants to be succinct does not amount to a denial of due
process. This is especially true where Grevious, who was in complete control of how to use his 40 pages of
argument, dedicated several pages to already-settled areas of law, half of a page to reiterating the number of
assignments of error he would be discussing in his brief, 13 pages to reviewing procedural posture and facts,
and half of another page to reviewing what mitigating factors were presented during the sentencing phase
despite this court's inability to review the sentence. These pages were utilized as such, by his own choice, in lieu
of raising what Grevious speculates were potentially meritorious arguments.
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{¶ 11} When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence in order to determine whether such evidence, if
believed, would support a conviction. State v. Krieger, 12th Dist. Warren No. CA2017-12-
167, 2018-Ohio-4483. The relevant inquiry is "whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt." State v. Watson, 12th Dist.
Warren No. CA2014-08-110, 2015-Ohio-2321, ¶ 22.
{¶ 12} Grevious was convicted of complicity to aggravated murder in violation of R.C.
2903.01(A), which provides, "no person shall purposely, and with prior calculation and
design, cause the death of another or the unlawful termination of another’s pregnancy." R.C.
2929.04(A)(2) establishes murder-for-hire as a ground for imposing a death penalty
specification to an aggravated murder charge. A murder-for-hire is proved by evidence of
compensation or some remuneration being offered. State v. Lindsey, 87 Ohio St. 3d 479
(2000).
{¶ 13} Complicity requires the defendant to have solicited or procured another to
commit the underlying offense, aided and abetted another in committing the underlying
offense, or conspired with another to commit the offense that was actually committed. R.C.
2923.03(A) and (C). To support a conviction for complicity by aiding and abetting, the
evidence must show that the defendant supported, assisted, encouraged, cooperated with,
advised, or incited the principal in the commission of the crime, and that the defendant
shared the criminal intent of the principal. State v. Gragg, 173 Ohio App. 3d 270, 2007-Ohio-
4731, ¶ 20 (12th Dist.). Evidence of aiding and abetting may be shown by direct or
circumstantial evidence, and participation in criminal intent may be inferred from presence,
companionship, and conduct before or after the offense is committed. Id.
{¶ 14} During the trial, the state presented sufficient evidence to support Grevious'
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conviction for aggravated murder and the murder-for-hire specification. Grevious and Harris,
who knew each other from time spent in the same jail, exchanged numerous phone calls and
text messages between the time of the shooting at Doubles Bar and Orlando's murder.
Along with other evidence, the cellular phone and text message records demonstrate that
Grevious was complicit in the premediated murders and that Grevious paid Harris for
committing the murders.
{¶ 15} The state provided evidence from Harris' phone records in addition to data that
demonstrated the location of each man as they communicated with each other and as they
met at various locations while planning the murder. During that time frame, Grevious and
Harris exchanged hundreds of phone calls and text messages. The text messages ended
the night before the murder, with Grevious instructing Harris to "delete everything." The day
after Orlando was killed, Grevious terminated his cellular phone plan.
{¶ 16} Through the phone records and text messages, the state produced evidence
that Grevious supplied Harris with a description of Orlando's car, and gave Harris Orlando's
location numerous times to facilitate the murder. On one occasion, Harris texted Grevious to
ask where Orlando was currently located and Grevious answered, "Yeah, he out in the
hood." Harris responded, "Oh, yeah, we got him. * * * Yeah, it over." Grevious also called
and sent text messages to Harris, especially after Harris failed to kill Orlando on earlier
occasions, demanding Orlando's homicide must take place, and demeaning Harris for his
previous failures to locate and kill Orlando. For example, after one failed attempt, Grevious
demanded that Harris "come back here" and told Harris, "you just spit in my face." Grevious
also texted, "Damn Z I ain't never know ya for playing me, brah. * * * I need ya, bro. * * * I'm
not even tripping. I just need that shit done." During a later text message exchange, in which
Harris promised to complete the job, Grevious responded to Harris, "I need this to happen. *
* * We need it brah. Just come 'cause n***as looking at me like I'm on some bullshit."
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{¶ 17} In addition to the phone records and text messages, the jury heard testimony
from a woman and man Harris hired to drive to Hamilton from Columbus so that he could
meet with Grevious and receive payment for the killing. The two testified that Harris hired
them to drive to Hamilton where Harris "had a job to do" and "was going to pick up money
from his friend." According to their testimony, the only person they saw Harris meet that
evening was Grevious. At one point, the woman could hear Harris and Grevious speaking as
they were standing outside of her car where she sat in the driver's seat. The woman testified
that she heard Grevious say to Harris, "you'll get the rest once it's handled." After the
meeting, Harris paid the woman and man $1,250.00, and he texted a friend that he had just
been paid "bands," which is a slang word for one thousand dollars.
{¶ 18} The state also presented evidence that during the time before the execution
was completed, Kalif Goens' brother made a recorded telephone call from jail in which he
expressed displeasure that Orlando had not yet been killed. During that phone call, Goens's
brother stated, "I thought he been paid * * * I thought their ticket was paid." The state also
presented evidence that mere minutes after Orlando was killed, Grevious suggested meeting
Harris at the motel to "get paid the rest of the money."
{¶ 19} Harris' co-conspirator, Melinda Gibby, also testified for the state. Gibby testified
that Grevious directed her, Harris, and Patete's actions during the hours preceding Orlando's
death. Grevious told the team which motel to stay in, and she recounted the various
attempts made that day to kill Orlando after Grevious advised Harris of Orlando's location.
After the team was unable to locate Orlando that evening, they went back to the motel and
waited for word from Grevious. Gibby testified that on the morning of the murders, Grevious
told Harris that Orlando was "taunting him, laughing and taunting him," and that they had to
"get this job taken care of." Grevious then directed the team to the location where they
ultimately began following Orlando in his car, killing him within a short time.
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{¶ 20} This evidence, especially when viewed in a light most favorable to the
prosecution, demonstrates that Grevious clearly supported, assisted, encouraged,
cooperated with, advised, and incited Harris in the commission of Orlando's premeditated
murder, and that he shared Harris' criminal intent. Moreover, the evidence also
demonstrates that Harris received renumeration for his part in the murder from Grevious so
that the murder-for-hire specification was also supported by sufficient evidence. Grevious'
fourth assignment of error is therefore, overruled.
{¶ 21} Assignment of Error No. 1:
{¶ 22} APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE
PROCESS IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION, AS A CONSEQUENCE OF THE TRIAL COURT'S FAILURE TO SEVER
THE FELONIOUS ASSAULT CHARGE FROM THE AGGRAVATED MURDER CHARGE AT
TRIAL.
{¶ 23} Grevious argues in his first assignment of error that the trial court erred by
denying his motion to sever.
{¶ 24} The law favors joining multiple offenses in a single trial pursuant to Crim.R. 8(A)
if the offenses charged are of the same or similar character. State v. Wilkins, 12th Dist.
Clinton No. CA2007-03-007, 2008-Ohio-2739, ¶ 13. However, a defendant may move to
sever the offenses pursuant to Crim.R. 14 where it appears that joinder would be prejudicial.
State v. Rose, 12th Dist. Butler No. CA2011-11-214, 2012-Ohio-5607, ¶ 12. The accused
bears the burden of proving that prejudice. State v. Parker, 12th Dist. Butler No. CA2017-12-
176, 2019-Ohio-830, ¶ 12.
{¶ 25} The decision to grant or deny a motion to sever is a matter in the trial court's
discretion, and therefore, we review the trial court's decision using an abuse of discretion
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standard. State v. Matthews, 12th Dist. Butler No. CA2012-09-175, 2013-Ohio-3482, ¶ 35.
"An abuse of discretion implies that the trial court's decision was unreasonable, arbitrary, or
unconscionable." Rose at ¶ 11.
{¶ 26} While the defendant bears the burden of proving prejudicial joinder, the state
may rebut a defendant's claim of prejudice by utilizing one of two methods. State v. Moshos,
12th Dist. Clinton No. CA2009-06-008, 2010-Ohio-735, ¶ 79. Initially, pursuant to the "other
acts test," the state may rebut the defendant's claim of prejudice by demonstrating it could
have introduced evidence of the joined offenses at separate trials pursuant to the "other acts"
provision found in Evid.R. 404(B). State v. Coley, 93 Ohio St. 3d 253, 259 (2001). On the
other hand, the state may separately negate a claim of prejudice by satisfying the less
stringent "joinder test," which requires the state to merely demonstrate "that evidence of each
crime joined at trial is simple and direct." Moshos at ¶ 79. The joinder test only requires that
the evidence of each joined offense is simple and distinct and ensures that a jury would be
capable of segregating the proof required for each offense. State v. Morsie, 12th Dist.
Warren No. CA2012-07-064, 2014-Ohio-172.
{¶ 27} "A showing by the state that the evidence relating to each crime is simple and
direct negates any claims of prejudice and renders joinder proper." State v. Bice, 12th Dist.
Clermont No. CA2008-10-098, 2009-Ohio-4672, ¶ 53. Thus, if the state can meet the joinder
test, it need not meet the stricter "other acts" test. State v. Johnson, 88 Ohio St. 3d 95, 109
(2000). An accused is not prejudiced by joinder when simple and direct evidence exists,
regardless of the admissibility of evidence of other crimes under Evid.R. 404(B). State v.
Franklin, 62 Ohio St. 3d 118, 122 (1991).
{¶ 28} Grevious alleges that the trial court erred in not severing the charges against
him. However, the record demonstrates that the trial court did not abuse its discretion where
the offenses charged were connected and the evidence relating to each of the charged
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crimes was simple and direct.
{¶ 29} As the trial court noted, the two charges stemmed from instances that were
connected to constitute part of the same scheme, plan, or criminal conduct. Specifically, the
state presented evidence of the shooting at Doubles Bar and Goens' murder as the motive
for Grevious hiring Harris to kill Orlando. The evidence related to the felonious assault
charge would also show that Grevious participated in the shootout against the Gilberts by
shooting at Jariaus, and that he was present when Goens was shot by someone associated
with the Gilberts.
{¶ 30} The evidence was also simple and direct regarding both charges. The
evidence specific to the felonious assault charge was that an eyewitness had seen Grevious
shoot at Jariaus on the night of the shoot out at Doubles Bar. Separate from that charge and
its underlying evidence, the state presented evidence that Grevious was complicit in
aggravated murder because he arranged Orlando's murder by hiring Harris. The evidence
was not confusing or difficult to understand, even though it was voluminous in regard to text
messages, phone records, and the like.
{¶ 31} Even then, the trial court gave a specific jury instruction that the multiple
charges from the indictment were separate and distinct from each other. The trial court
further explained to the jury that it had to make separate findings as to each count,
uninfluenced by any other charge. This instruction, and the other reasons noted above,
demonstrate that Grevious suffered no prejudice from being tried for multiple crimes during
the same trial. See State v. Shouse, 12th Dist. Brown No. CA2013-11-014, 2014-Ohio-4620,
¶ 30 (the jury is presumed to follow jury instructions).
{¶ 32} Grevious argues in his brief that the state charged both crimes in an attempt to
"place in the jurors' minds that Appellant has a propensity for retaliatory conduct and a prior
felony conviction for violence." However, there is no indication in the record that the jury was
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persuaded by the felonious assault and having weapons under disability charges to find
Grevious guilty of aggravated murder. Instead, the record clearly demonstrates that the jury
understood what evidence was directed at what charge, and it clearly weighed the evidence
separately as the trial court instructed it to do.
{¶ 33} The jury's verdict demonstrates that it believed the state failed to prove beyond
a reasonable doubt that Grevious was guilty of felonious assault and having weapons under
disability. Thus, by its finding that the state failed in its burden of proof, the jury was not
impassioned so as to lose its commitment to weigh the evidence, follow the trial court's
instructions of law, and decide the charges separately. Grevious acknowledged at oral
argument that many of the facts and circumstances from the shootout at Doubles Bar would
have been admissible at a trial on the aggravated murder charge if the charges had been
tried separately. As such, the trial court did not commit an abuse of discretion by not
severing Grevious' charges, and his first assignment of error is overruled.
{¶ 34} Assignment of Error No. 2:
{¶ 35} APPELLANT WAS DENIED A FAIR AND IMPARTIAL TRIAL WHEN THE
TRIAL COURT ALLOWED THE STATE TO PRESENT IRRELEVANT AND HIGHLY
PREJUDICIAL EVIDENCE OF THE MURDERS OF ORLANDO GILBERT AND TODD
BERUS, WHICH WAS OF LITTLE OR NO PROBATIVE VALUE AND WAS
OVERWHELMINGLY PREJUDICIAL TO APPELLANT.
{¶ 36} Grevious argues in his second assignment of error that the trial court erred in
permitting the state to present evidence of Orlando Gilbert's and Todd Berus' murders as
committed by Harris and his two accomplices.
{¶ 37} Grevious did not object at trial to the evidence he now claims was erroneously
admitted and has thus waived all but plain error on appeal. State v. McNeil, 12th Dist.
Warren No. CA2018-09-115, 2019-Ohio-1200. To constitute plain error, the error must be
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obvious and is justiciable only when the outcome of the trial would have been different
without the error. State v. Yanez, 12th Dist. Butler No. CA2016-10-190, 2017-Ohio-7209.
Review of plain error is made with utmost caution and only to prevent a manifest miscarriage
of justice. Id.
{¶ 38} The admission or exclusion of evidence is a matter committed to the sound
discretion of the trial court. State v. Meredith, 12th Dist. Warren No. CA2004-06-062, 2005-
Ohio-2664, ¶ 26. Absent an abuse of discretion, this court will not reverse the trial court's
decision to admit or exclude relevant evidence. Id. According to Evid.R. 401, relevant
evidence "means evidence 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."
{¶ 39} Grevious claims that the jury should not have heard any evidence regarding the
drive-by shooting nor should it have seen photographs of the crime scene because such was
irrelevant and prejudicial. However, and according to R.C. 2923.03(B), "no person shall be
convicted of complicity under this section unless an offense is actually committed." As such,
the state had to prove that the underlying offense, aggravated murder, was actually
committed. Evidence of Orlando's murder with prior calculation and design was therefore
required, and the state used the now-challenged evidence to carry its burden of proof.
{¶ 40} To demonstrate the prior calculation and design, the state presented evidence
of Harris and his conspirators planning the killing, shooting Orlando and Berus with the AK
rifle, and the events that unfolded after the murders regarding the conspirators fleeing and
attempting to avoid capture. Grevious argues that presenting evidence of these facts was
meant to "plant in [the jurors'] minds the urge to punish someone for the crime." However,
the jury heard directly from Gibby during her testimony that she was sentenced to life for her
part in the crime. Thus, the jury was well aware that punishment had, in fact, been rendered
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for Orlando's and Berus' murders.
{¶ 41} To further support the precalculated nature of the homicides, the state
presented evidence that Harris came from Columbus to Hamilton with the AK rifle, purchased
ammunition while in the area, and that the bullets fired from the rifle killed Orlando and
Berus. The state showed photographs of Orlando's body to prove that the bullets fired that
day entered his body, causing his death. Despite Grevious' contention that the state was
simply "piling" on evidence to "evoke reactions of disgust and outrage from the jurors," the
record demonstrates that these photographs were not repetitive, overly gruesome, or
voluminous in nature.
{¶ 42} The state also presented testimony from eyewitnesses who observed the
homicides. However, the witnesses did not testify to any gruesome details, and instead,
testified to seeing the truck pulling along side of Orlando's car, the gun being fired into the
car, and that both Orlando and Berus appeared deceased when the eyewitnesses tried to
render aid. While Grevious claims that this evidence was "excessively cumulative," the
testimony supported the state's assertions that the homicides were purposeful and
calculated, and that Orlando and Berus were killed as a result.
{¶ 43} The trial court did not commit error, plain or otherwise, in permitting the state to
address the murders of Orlando and Berus, or in admitting any evidence relevant to the fact
that the aggravated murders occurred. Grevious' second assignment of error is therefore,
overruled.
{¶ 44} Assignment of Error No. 3:
{¶ 45} THE TRIAL COURT ERRED BY FAILING TO EXCLUDE [A WITNESS']
IDENTIFICATION OF APPELLANT IN A PHOTO ARRAY LINE-UP, AS UNRELIABLE AND
IRREPARABLY MISLEADING AS A RESULT OF IMPERMISSIBLY COERCIVE AND
SUGGESTIVE TACTICS EMPLOYED BY LAW ENFORCEMENT DURING PRESENTATION
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OF THE PHOTO ARRAY.
{¶ 46} Grevious argues in his third assignment of error that the trial court erred in
denying his pretrial motion to suppress the identification made of him by a state's witness
during a photographic lineup.
{¶ 47} To seek suppression of a photographic lineup, a defendant must argue that the
procedure of the lineup did not comply with R.C. 2933.83 and that the lineup was a violation
of his constitutional rights. State v. Matthews, 12th Dist. Butler No. CA2012-09-175, 2013-
Ohio-3482, ¶ 29. R.C. 2933.83(B) requires law enforcement agencies that conduct lineups to
adopt specific procedures for conducting the lineups and to comply with minimum
requirements outlined in the statute such as blind administration of the lineup by one who
does not know the identity of the purported suspect. Due process requires a court to
suppress a witness' identification of the suspect if the identification process was
unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all
the circumstances. State v. Waddy, 63 Ohio St. 3d 424 (1992).
{¶ 48} Grevious argues that the trial court erred in permitting evidence of a
photographic lineup because such was performed in a suggestive manner and through
coercive behavior on the part of the detectives who administered the lineup. During her
testimony, the woman who drove Harris to Hamilton to meet with Grevious testified that
detectives came to her home and presented a photographic lineup to determine if she could
identify the man that met with and talked to Harris. The woman chose the picture of
Grevious and identified him as the man who met with Harris that night. After the woman
made her identification, detectives referred to Grevious by both his nickname, Skitzo, and his
legal name, Michael Grevious, at some point during the remainder of their interview with her.
Grevious now asserts that the detectives using his names with the woman made her
identification of him invalid. That assertion is not supported by the record.
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{¶ 49} The record indicates that the proper procedures were followed by detectives
when they interviewed the woman and as she made her identification of Grevious from the
photographic lineup. Regardless of whether the woman knew Grevious' legal or nickname,
she was able to choose his photograph from the lineup and confirmed that the man in the
photograph was the man with whom Harris met and spoke to on the night she drove Harris to
Hamilton. The fact that detectives used Grevious' legal and nickname after the woman made
her identification is wholly irrelevant to whether the photo lineup was properly administered.
{¶ 50} This is especially true where the woman testified at trial that she knew
Grevious' name from watching the news in the days following the double murders. While
Grevious claims that the woman only knew his name after being informed by law
enforcement, the record clearly demonstrates that the woman learned Grevious' name from
other sources before the detectives spoke to her. Regardless, and as noted above, the
detectives did not raise Grevious' name until after the woman identified his photograph from
the lineup as the man with whom Harris met.
{¶ 51} Also irrelevant to the lineup identification is Grevious' contention that the
detectives coerced the woman by threatening that she could either be a witness or a
defendant in criminal proceedings that resulted from the homicide investigation. As long-held
by the Ohio Supreme Court, "admonitions to tell the truth" are not considered coercive
because "officers may discuss the advantages of telling the truth, advise suspects that
cooperation will be considered, or even suggest that a court may be lenient with a truthful
defendant." State v. Belton, 149 Ohio St. 3d 165, 2016-Ohio-1581, ¶ 111.
{¶ 52} There is no indication in the record that the photographic lineup was rendered
invalid by detectives' suggestion that the woman cooperate or by hearing Grevious' names
after making her identification. As such, Grevious' third assignment of error is overruled.
{¶ 53} Assignment of error No. 5:
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{¶ 54} APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO DUE
PROCESS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION, AS A CONSEQUENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 55} Grevious argues in his fifth assignment of error that he was denied effective
assistance of counsel for his trial counsel's deficient conduct before and during trial.
{¶ 56} To prevail on an ineffective assistance of counsel claim, appellant must show
his trial counsel's performance was deficient, and that he was prejudiced as a result. State v.
Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052 (1984). Trial counsel's performance will
not be deemed deficient unless it fell below an objective standard of reasonableness.
Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's
errors, there is a reasonable probability that the result of his trial would have been different.
Id. at 694.
{¶ 57} The failure to satisfy either prong of the Strickland test is fatal to an ineffective
assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-
4625, ¶ 7.
{¶ 58} Grevious argues that his trial counsel was ineffective for failing to pursue a
motion to suppress and failing to object to the evidence regarding the murders of Orlando
and Berus.
{¶ 59} Grevious filed a pretrial motion to suppress because his phone was seized
during execution of a search warrant. During a hearing on pretrial motions, counsel informed
the court that he had since learned that the phone was seized during a search of the home
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belonging to Grevious' father so that Grevious lacked standing to challenge the search
warrant. Counsel therefore withdrew the motion to suppress.
{¶ 60} Grevious' counsel was correct in withdrawing the motion, as Grevious lacked
standing to challenge the search of his father's home. Fourth Amendment privacy rights are
"personal rights," which may not be "vicariously asserted." Rakas v. Illinois, 439 U.S. 128,
133, 99 S. Ct. 421 (1978). As such, a person who alleges error using evidence taken from
someone else's property cannot claim that his own rights have been violated. State v.
Coleman, 45 Ohio St. 3d 298 (1989). Only those whose personal rights have been violated
can raise Fourth Amendment claims. Id. Thus, in order to challenge a search or seizure on
Fourth Amendment grounds, a defendant must possess a legitimate expectation of privacy in
the area searched, and the burden is upon the defendant to prove facts sufficient to establish
such expectation. State v. Renner, 12th Dist. Clinton No. CA2002-08-033, 2003-Ohio-6550.
{¶ 61} The hearing transcript clearly demonstrates that Grevious fully admitted that the
search warrant was executed at his father's residence, and Grevious stated that he did not
live with his father. Thus, trial counsel was not ineffective for withdrawing the motion to
suppress where Grevious had no standing to challenge it.
{¶ 62} Regarding his second claim that his counsel was ineffective for not objecting to
the evidence related to Orlando's and Berus' murders, we have already determined that the
trial court did not err in admitting the evidence. As such, Grevious cannot demonstrate that
his counsel's objections to the evidence would have been sustained or that the results of his
trial would have been different.
{¶ 63} The record shows an overwhelming amount of evidence of Grevious' guilt, and
nothing he claims now as the basis for ineffective assistance of counsel would have made
any difference in the jury's verdict. As such, Grevious' fifth assignment of error is overruled.
{¶ 64} Assignment of Error No. 6:
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{¶ 65} APPELLANT IS ENTITLED TO APPELLATE REVIEW OF HIS SENTENCE,
AND R.C. 2953.08(D)(3), WHICH PROHIBITS REVIEW OF A SENTENCE IMPOSED FOR
AGGRAVATED MURDER, VIOLATES APPELLANT'S RIGHTS UNDER THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND IS,
THEREFORE, UNCONSTITUTIONAL.
{¶ 66} Grevious argues in his final assignment of error that his sentence is
unconstitutional because the applicable statutes distinguish between defendants convicted of
lesser crimes and those who commit aggravated murder with the potential for capital
punishment.
{¶ 67} R.C. 2929.03(D)(2)(a) and (c) provide that a jury must recommend a sentence
of life with or without parole eligibility when that jury finds the defendant guilty of aggravated
murder and the death specification but elects not to impose the death penalty, and that the
trial court must then impose the recommended sentence.
{¶ 68} There is no constitutional right to appellate review of a criminal sentence
because the right of such review is that conferred by statute. State v. Campbell, 8th Dist.
Cuyahoga No. 103982, 2016-Ohio-7613. The Ohio Supreme Court has determined that R.C.
2953.08(D) is unambiguous, and pursuant to that statute, a sentence imposed for aggravated
murder as outlined above cannot be reviewed. State v. Porterfield, 106 Ohio St. 3d 5, 2005-
Ohio-3095.
{¶ 69} However, this does not create equal protection issues, as Grevious claims.
Ohio courts are in agreement that Ohio's sentencing statutes pass rational basis review
because the Ohio General Assembly has a legitimate interest in treating the worst offenders
differently than other felony offenders and the challenged statute provides a rational means
to achieve that interest. State v. Wilson, 4th Dist. Lawrence No. 16CA12, 2018-Ohio-2700;
State v. Weaver, 5th Dist. Muskingum No. CT2016-0033, 2017-Ohio-4374; and State v.
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Burke, 2d Dist. Montgomery No. 26812, 2016-Ohio-8185.
{¶ 70} We agree with and adopt the analysis and rationale of our sister districts who
have determined that R.C. 2953.08(D)(3) is constitutional. After considering all of Grevious'
arguments in regard to this issue, we overrule Grevious' final assignment of error.
{¶ 71} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J. concur.
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