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State of Ohio v. Kansas D. Grube

February 7, 2013

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KANSAS D. GRUBE, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: McFarland, P. J.

Cite as State v. Grube,

: DECISION AND JUDGMENT

: ENTRY

{¶1} Kansas D. Grube appeals her conviction in the Gallia County Court of Common Pleas after a jury found her guilty of one count of aggravated murder and one count of child endangering. On appeal, Grube contends (1) the trial court violated her rights to due process and a fair trial in the absence of sufficient evidence to convict her of aggravated murder;

(2) her constitutional rights were violated when the trial court failed to give a jury instruction as to the lesser-included offenses of reckless homicide and/or involuntary manslaughter; (3) the trial court also erred when it failed to merge her convictions for aggravated murder and child endangering for purposes of sentencing; and (4) her trial counsel rendered ineffective assistance of counsel. Upon review, we find the trial court committed plain error in failing to consider whether Appellant's convictions were based on conduct evidencing a single or separate animus, pursuant to the Supreme Court of Ohio's decisions in State v. Johnson, 128 Ohio St. 3d 153, 2010- Ohio-6314, 942 N.E.2d 1061 and State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, 922 N.E.2d 923. Accordingly, we sustain Appellant's third assignment of error and remand to the trial court for further consideration. FACTS

{¶2} On February 19, 2010, the Gallia County Grand Jury indicted Kansas Grube on three counts: count one, aggravated murder in violation of R.C. 2903.01(C); count two, murder in violation of R.C. 2903.02(B)(2); and, count three, endangering children, in violation of R.C. 2919.22(B)(1). The case proceeded to a jury trial on September 29, 2010, in which Appellant was convicted of aggravated murder and endangering children, but the jury rendered no verdict on the charge of murder. The trial court sentenced Appellant to life in prison without the possibility of parole for aggravated murder and eight years for endangering children. She appealed her convictions in State v. Grube, 4th Dist. No. 10CA16, 2012-Ohio-2180, in which this court held because the record was devoid as to any disposition as to count two, murder, the charge remained pending and the trial court's judgment entries finding Appellant guilty and sentencing her were not final appealable orders. Thus, the appeal was dismissed.

{¶3} Appellant next filed a motion for reconsideration, which was denied. However, in our decision, we noted the trial court's filing of a separate entry dismissing count two would be appropriate. On August 21, 2012, the trial court filed a judgment entry dismissing count two. On September 7, 2012, Appellant filed a notice of appeal indicating appeal from the October 4, 2010 judgment entry which became final and appealable as of the August 21st entry disposing of count two. Appellant has now perfected a timely appeal.

{¶4} The events leading up to Appellant's indictment by the grand jury are set forth as follows. In February 2012, Appellant Kansas Grube and her husband Matt Grube (hereinafter "Matt") resided in a mobile home in Gallia County with their 4-year-old daughter H.G. and 2 ½ month old son, J.G. *fn1 Appellant was a stay-at-home mother and Matt worked the midnight shift at a group home for MRDD patients. During the day, Matt usually slept and Appellant cared for the children. On February 12, 2010, Matt left for work sometime between 10:30 and 10:45. Ten minutes after he left, he received a call from Appellant indicating J.G. was not breathing. When Matt returned home, he began administering CPR to J.G. Shortly thereafter, medical personnel and Sergeant Eric Werry, responded to the 911 call. J.G. was transported to Holzer Medical Center, where he was pronounced dead later in the evening. J.G. had no visible injuries.

{¶5} Dr. Daniel Whiteley, the Gallia County Coroner was called to the Holzer ER. Dr. Whitely initially opined J.G. died from sudden infant death syndrome (SIDS). Pursuant to Ohio law, Dr. Whitely ordered an autopsy. The autopsy, performed by Dr. Russell Uptegrove revealed J.G. had two skull fractures, one in the left posterior parietal area and one in the right occipital area. Based on this report, Dr. Whitely determined to a reasonable degree of medical certainty J.G.'s death was a homicide. He advised the local authorities. Detective Chad Wallace obtained a search warrant for the Grube residence and took the Grubes to the Gallia County Sheriff's Department for questioning. Appellant gave a videotaped statement and was eventually charged with aggravated murder, murder, and felony child endangering.

THE STATE'S CASE

{¶6} When the matter came on for trial, the State of Ohio presented testimony from Detective Wallace, Sgt. Werry, Dr. Whitely, Dr. Uptegrove, Dr. Phillip Scribano, Crystal Sowards, and Matt Grube. The doctors opined

J.G. died from two blunt force traumas to the skull. Dr. Scribano testified as an expert on pediatric child abuse.

{¶7} The substance of Crystal Sowards' testimony was that she had previously known Appellant and her husband from working with Matt in the past, and from "Drug Court," in which Appellant and she had participated. Crystal Sowards was also incarcerated in the Gallia County jail the night Appellant was questioned and held. Appellant related to Crystal Sowards several explanations for what may have caused J.G.'s injuries and death.

{¶8} Matt Grube testified on the day of J.G.'s death, slept the entire day until 9:00 p.m., his normal routine. When he awoke he prepared for work, fixed a toilet problem, and went to get cigarettes for Appellant and himself around 10:00 p.m. He was gone approximately ten minutes. When he returned, he finished getting ready, gave Appellant a kiss, and left around 10:30 p.m. When he left for work, Matt noticed J.G. was lying asleep on the living room couch. At approximately 10:38 Matt received a call from Appellant telling him J.G. was dead. He immediately returned home and began performing CPR on J.G. Appellant was speaking to 911 when he returned. Soon after, Stella Blanton, a relative, arrived and Matt gave J.G. to her to perform CPR. An emergency squad and law enforcement also arrived.

J.G. was eventually transported to Holzer ER.

{¶9} Matt described Appellant as a loving mother. He denied marital problems. He acknowledged a 2008 arrest for domestic violence involving Appellant. He also acknowledged having gone through Drug Court for abuse of pain medication. Matt's testimony revealed he knew Detective Wallace from high school.

{¶10} The State also played for the jury Appellant's videotaped statement given to Detective Wallace on February 13, 2010. During her statement, Appellant described the events of the day J.G. similar to her testimony at trial, given below. She stated Matt was asleep all day. She repeatedly denied hurting J.G., beating J.G., being "rough" with him, or hurting any child. She stated she was being truthful. Appellant indicated she had taken her prescribed medication on the day of the interview, but stated it did not affect her thought processes. When Appellant "could not remember" certain events or time frames which transpired on the day J.G. died, she stated "I don't remember, I'm prescribed Xanax and I took it yesterday." Towards the end of the interview, Appellant admitted she was "rough" with J.G. when she gave him his bottle, and his head hit the wooden part of the couch. At one point in the interview, Appellant stated "I didn't do this shit on purpose."

THE DEFENSE CASE

{¶11} Appellant elected to testify at trial, and her testimony did not portray Matt or their marriage in a positive light. She indicated Matt and his family had tried to get her to abort J.G. She testified Matt was trying to give up the rights to his other children. Appellant testified Matt had a temper, there were various incidents of domestic violence which she never reported, and he had left bruises and marks on her and the children.

{¶12} Appellant's version of the events of February 12, 2012, was that she had played with the children, done household chores, and watched television and played on the computer during the day. She testified J.G. had been asleep during the day and he awoke around 4:00 p.m. She fed, changed, and played with him. She tried to keep the children quiet while Matt slept, because he would get very upset and curse at them. Around 6:00 p.m., J.G. went back to sleep and he slept for 4-5 hours. Appellant testified J.G. liked to sleep on his side. She placed him on the couch with a pillow between him and the back of the couch. During that period of time, Appellant did laundry, dishes, smoked outside or in the bathroom, and used the computer.

{¶13} Appellant testified Matt awoke around 9:00 p.m. when H.G. began jumping on his bed. After Matt awoke, she heard him in various other rooms of the home. She was in the bathroom cleaning. Appellant testified she was unaware Matt left the home for cigarettes, and she denied asking him to get them. She was unaware when Matt returned from the convenience store. During this time, when she walked through the living room, she could still see J.G. sleeping on the couch. Appellant testified she did not see Matt touch J.G. that night, but she was not with him every minute in every room.

{¶14} Appellant testified Matt's routine was to kiss her and the children when he left for work. On the night in question, she was at the computer, when he kissed her and H.G., but did not kiss J.G. She testified he seemed nervous, stopping and staring at the children before he left. After Matt left, Appellant closed out items on her computer, went to the restroom, and came back to check on J.G. She then noticed he was not breathing. Appellant had noticed earlier the pillow was no longer behind him. Appellant immediately called Matt. She next called her grandfather, who knew CPR, and 911. Appellant, Matt, and the extended family eventually ended up at the Holzer ER where they were later told J.G. had died of SIDS.

{¶15} After Appellant left the hospital, she went to her grandfather's house for a few hours. Matt picked her up around 4:00 a.m. or 5:00a.m. on February 13th. They went to Walmart to pick up computer cleaner, and then home. Appellant was sleeping throughout the day. At approximately 2:00 p.m. or 3:00 p.m. Matt brought her three pills that she had been prescribed. Shortly afterwards, Detective Wallace arrived and she went with him voluntarily to the Gallia County Sheriff's Department. Appellant testified she was on probation and thought his visit was probation-related.

{¶16} Regarding her statement to Detective Wallace, Appellant testified she was not paying attention to what he said to her because of the medication she had just taken and because she had just lost her son. Appellant testified she felt Detective Wallace was "putting words in her mouth," and she "went along with things" because she was sad and wanted to go home. Appellant testified although she admitted to hurting J.G. on the video, it was not true.

{¶17} Appellant testified that J.G. fell out of her arms at the consignment shop on the day before. She rushed him to Matt, and Matt said

J.G. was fine. She testified, partly due to the length of time since the events occurred and partly because of her medication, there were a lot of things she had blocked out and did not remember.

{¶18} Samuel Eisenaugle, Appellant's grandfather, Stella Blanton, Appellant's aunt by marriage, and Heidi Van Hoose, Appellant's step- mother testified on Appellant's behalf. The substance of their testimony was that Appellant was a loving mother who had cared for other children in the past. They testified they had never seen her hurt a child. Appellant's witnesses acknowledged they were not present at Appellant's home on the day of J.G.'s death.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT VIOLATED KANSAS GRUBE'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE, IT ENTERED A JUDGMENT ENTRY, CONVICTING KANSAS OF AGGRAVATED MURDER.

II. THE TRIAL COURT VIOLATED KANSAS GRUBE'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT FAILED TO GIVE THE JURY AN INSTRUCTION AS TO THE LESSER- INCLUDED OFFENSES OF RECKLESS HOMICIDE AND/OR INVOLUNTARY MANSLAUGHTER.

III. THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES FOR OFENSES THAT AROSE FROM THE SAME CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER R.C. 2941.25.

IV. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR ONE

{¶19} Under the first assignment of error, Appellant argues there was insufficient evidence to convict her of the aggravated murder of J.G. Appellant contends there was no evidence presented that she acted purposefully to cause J.G.'s injuries and death. Appellant cites her testimony that she dropped her child the day before while they were in a consignment shop as evidence of recklessness only. She essentially argues she was convicted due to the testimony of Dr. Phillip Scribano, who related that the scientific research and literature regarding child abuse identifies substance use as a significant risk factor for child abuse. For the reasons which follow, we disagree with Appellant.

A. STANDARD OF REVIEW

{¶20} In reviewing for sufficiency of evidence, appellate courts look to the adequacy of the evidence and whether the evidence, if believed, supports a finding of guilt beyond a reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997); State v. Jenks, 61 Ohio St. 3d 259, 273, 574 N.E.2d 492 (1991). In other words, after viewing the evidence and all inferences reasonably drawn therefrom in the light most favorable to the prosecution, could any rational trier of fact have found all essential elements of the offenses beyond a reasonable doubt? State v. Hancock, 108 Ohio St. 3d 57, 840 N.E.2d 1032, 2006-Ohio-160, at ¶ 34; State v. Jones, 90 Ohio St. 3d 403, 417, 739 N.E.2d 300 (2000). The sufficiency of the evidence test "raises a question of law and does not allow us to weigh the evidence." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Instead, the sufficiency of the evidence test "'gives full play to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" State v. Thomas, 70 Ohio St. 2d 79-80, 434 N.E.2d 1356 (1982); State v. DeHass, 10 Ohio St.2d 230, 227 N.E. 2d 212 (1967), paragraph one of the syllabus.

B. LEGAL ANALYSIS

{¶21} The jury convicted Appellant of aggravated murder,

R.C. 2903.01 (C) which is defined as follows: "[no] person shall purposely cause the death of another who is under thirteen years of age at the time of the commission of the offense. " The code defines "purposely" as "[a] person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature." R.C. 2901.22 (A). Appellant argues there was no evidence she acted purposely to cause the death of her baby and that without the testimony of Dr. Scribano, she would not have been convicted. However, we believe even if the testimony of Dr. Scribano had been excluded, there was sufficient evidence that any rational trier of fact could have found all essential elements of aggravated murder proven beyond a reasonable doubt.

{¶22} First, the jury heard evidence from three medical experts that J.G. died as a result of two separate blunt force injuries to the head. Dr. Dan Whitely, the Gallia County Coroner, testified when he arrived at the Holzer Medical Center ER, J.G. had already been pronounced dead and had no visible bruises or injuries. Early on, Dr. Whitely opined J.G. had died of sudden infant death syndrome, (SIDS). Because J.G. was under age two, Dr. Whitely ordered an autopsy which was performed by the Montgomery County Coroner's Office. Based upon the autopsy report received regarding J.G., Dr. Whitely opined to a reasonable degree of medical certainty that the manner of J.G.'s death was homicide.

{¶23} The jury also heard testimony from Dr. Russel Uptegrove, the forensic pathologist who performed the autopsy of J.G. on February 13, 2010. Dr. Uptegrove testified initially, he saw no external signs of injury. During the process of opening J.G.'s scalp, he found two separate large areas of hemorrhage. He found a skull fracture 3 ¾ inches in length in the posterior left parietal region of the head. A second fracture, 1 ½ inches in length was identified on the right hand side of the occipital region. Dr. Uptegrove testified the significance of the two skull fractures was that two separate blunt impacts to J.G.'s head caused the injuries. He further testified that it takes significant force to fracture a bone in an infant's skull, as opposed to an adult's skull. He opined to a reasonable degree of medical certainty the cause of J.G.'s death was blunt force injury of the head. On cross-examination, Dr. Uptegrove further opined that the lack of external injury or bruising was due to the short interval between onset injury and death, most likely under one hour.

{¶24} Dr. Phillip Scribano, the expert in pediatric emergency medicine and pediatric child abuse who reviewed the case, also testified on behalf of the State. Dr. Scribano reviewed medical records, investigative reports, a video recording of the interview with Kansas Grube, the coroner's report, and literature regarding the statistics of child abuse by caregivers who are drug dependent. Dr. Scribano testified the literature indicates two- thirds of deaths that are reviewed formally identify substance use in a caregiver as a contributing factor in the deaths of children.

{¶25} Dr. Scribano also testified J.G.'s injuries were the result of severe physical abuse. He opined the injuries were not from routine household falls common to children, but from some type of forceful or violent episode. He testified significant force would cause the types of fractures in an infant's skull. He stated the injuries were worrisome in any infant who did not have a history of a high speed motor vehicle crash or a fall from windows several stories in height.

{¶26} Appellant's trial strategy was to try to create reasonable doubt and shift blame to her husband, Matt Grube. During the interview with Detective Wallace, Appellant indicated her husband was asleep the entire day prior to J.G.'s death. However, at trial, she tried to create a window of opportunity for Matt to have harmed J.G. At trial, she admitted she never saw Matt touch the baby that night, but also stated she was not with him at every minute in every room. She testified Matt woke up for work around 9:00 and during that hour of time, she was working around the house and did not even know he had left to go to a convenience store to get cigarettes. Appellant testified that Matt did not kiss the baby as he usually did each night. In closing, counsel argued that during the hour Matt was up and left for work, he had the opportunity to cause J.G.'s death. Counsel emphasized Kansas was busy doing household chores and could account for everything she did.

{ΒΆ27} During the course of the investigation, Appellant offered several different scenarios as to how J.G. might have been seriously injured, and these scenarios came to light at trial. The jury heard Appellant's ...


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