Court of Appeals of Ohio, Twelfth District, Fayette
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI
C. Weade, Fayette County Prosecuting Attorney, John M. Scott,
CiceroAdams, LLC, Jay A. Adams, for defendant-appellant
1} Defendant-appellant, Calvin D. Glover, Jr.,
appeals his convictions and sentence in the Fayette County
Court of Common Pleas.
2} On May 6, 2016, the Fayette County Grand Jury
returned an eleven-count indictment charging Glover with two
counts of failure to comply, four counts of aggravated
vehicular assault, one count of trafficking in cocaine, one
count of trafficking in marijuana, one count of possession of
cocaine, one count of possession of drug paraphernalia, and
one count of misdemeanor possession of marijuana. The charges
stemmed from a motor vehicle collision that occurred at the
intersection of Temple Street and Delaware Street in
Washington Court House, Ohio. Glover entered pleas of not
guilty to the charges and the case proceeded to a jury trial.
3} Washington Court House Police Officer Derek
Pfeifer testified on behalf of the state that on April 17,
2016, he observed a white vehicle parked on Temple St. in
Washington Court House, Ohio. Pfeifer testified that when he
stopped his police cruiser next to the parked white vehicle,
it "jumped the sidewalk and the curb * * * t[aking] off
east bound on Temple Street at a high rate of speed."
Pfeifer characterized the white vehicle's speed as
"[e]xtremely excessive and reckless, " estimating
the speed to be approximately 100 m.p.h. The posted speed
limit in the area was 25 m.p.h. Pfeifer gave pursuit, with
lights and siren activated. Upon reaching the intersection of
Delaware Street and Temple Street, Pfeifer observed that the
white vehicle had been involved in a collision with another
vehicle. He observed debris in the roadway and the passenger
side of the white vehicle pinned against another car parked
on the street. The white vehicle was unoccupied and the
driver's door was ajar. Pfeifer did not observe anyone
exit the white vehicle.
4} Jeffery Brown testified that he witnessed the
white vehicle strike a dark-colored vehicle at the
intersection. Following the collision, he saw a black male
exit the driver's door of the white vehicle and run
through Brown's yard. Brown did not see the man's
5} Kelly Suttles also witnessed the collision and
identified Glover as the driver and only occupant of the
vehicle that caused the collision. Suttles could not
initially recall whether the white or dark-colored vehicle
caused the collision. However, upon refreshing her
recollection, she testified the white vehicle struck the
dark-colored vehicle at the intersection. Suttles
acknowledged that she is legally night blind, but the area
was "sufficiently lit up" to witness the collision.
6} Keith Benczi testified he also witnessed the
collision and identified Glover as the driver of the white
vehicle. Benczi "guaranteed" it was Glover driving
the white vehicle and that a white female appeared to be
running from the area. Benczi chased Glover after he exited
the white vehicle and began to run from the scene of the
accident. Benczi notified police Glover was hiding
"underneath some kind of structure behind" a house
up the road. Shortly thereafter, police apprehended Glover
from this location.
7} Washington Court House Police Sergeant Russell
Lowe testified he received a call following the collision and
responded to the scene. Lowe assisted in locating and
apprehending Glover, who was hiding about three to four
houses from the intersection where the collision occurred.
Lowe testified he participated in inventorying the contents
of the white vehicle and reconstructing the collision. Lowe
discovered two bags of marijuana, scales, small baggies,
syringes, approximately $10, 000 cash, and crack cocaine.
Based on his training and experience as a detective for 17
years and working as an undercover narcotics officer, Lowe
believed the items recovered from the white vehicle to be
indicative of the sale of narcotics.
8} Sergeant Todd Oesterle of the Fayette County
Sheriffs Office provided expert testimony regarding the
traffic crash investigation and reconstruction. Oesterle
testified that based on data downloaded from the airbag
control module, it is highly unlikely there were any
passengers in the white vehicle at the time of the collision.
At the time of impact, the white vehicle was travelling at
63.4 m.p.h. Oesterle's investigation of the vehicle
itself revealed the driver's seatbelt was the only one in
use at the time of the collision.
9} Three of the four occupants of the dark-colored
vehicle testified regarding the injuries they sustained from
the collision. These injuries included headaches, bruises,
burns, and abrasions requiring stitches. One occupant
sustained two broken vertebrae in his neck, a severe
concussion, and a torn pectoral muscle.
10} After the state rested its case-in-chief, Glover
moved for acquittal pursuant to Crim.R. 29. The trial court
granted Glover's motion with respect to one count of
aggravated vehicular assault and denied his motion with
respect to the remaining charges.
11} King Robert Isaac Dillard testified on behalf of
the defense. Dillard testified his mother owned the white
vehicle. According to Dillard, he, his mother, Glover, and an
unidentified female occupant were travelling together in the
white vehicle, Dillard and his mother exited the vehicle at a
friend's house and the unidentified woman then drove
herself and Glover to a store. Although Dillard testified he
"said go ahead but come right back" in regards to
the trip to the store, he later stated the unidentified woman
stole his mother's vehicle. On cross-examination, Dillard
acknowledged he had never discussed the alleged theft with
anyone before testifying. Pfeifer testified as a rebuttal
witness for the state. Pfeifer stated Dillard told him that
the only occupants of the white vehicle throughout the day in
question were himself and Glover.
12} Glover testified on his own behalf. Glover
stated the unidentified woman drove the white vehicle while
he was asleep in the back seat until a loud boom woke him.
Glover testified the white vehicle jumping the parking lot
and sidewalk curbs did not wake him from his deep sleep.
Glover attributed his deep sleep to an extended period of
partying that left him in a simultaneous state of drunk and
hung over similar to a "semi-concussion." Glover
described the collision as a blur and that he immediately
felt broken glass all over him. Following the collision,
Glover unsuccessfully attempted to exit the vehicle on the
passenger side. Next, Glover "jumped" over the
center console to the driver's door and exited the
vehicle. Glover described a medical condition that restricted
his mobility, which he referred to as
"dropped-foot." Glover did not provide any further
evidence regarding this claimed disability.
13} On cross-examination, Glover failed to identify
the source of the broken glass when confronted with
photographic evidence depicting intact windows on the white
vehicle. Additionally, the state questioned Glover regarding
three prior felony convictions for possession of drugs, and
one separate charge for weapons while under disability.
Glover acknowledged the drug convictions and denied being
convicted of the weapons while under disability charge. Upon
realizing that the weapons under disability charge had been
dismissed, the prosecutor acknowledged the mistake,
apologized, and moved on to further questioning.
14} Following the close of evidence, the trial court
denied the defense's renewed Crim.R. 29 motion. The jury
found Glover guilty on the remaining charges. In its
sentencing entry, the trial court merged as allied offenses
of similar import the failure to comply convictions, the
convictions for trafficking in cocaine and possession of
cocaine, and the convictions for trafficking in marijuana and
possession of marijuana. Accordingly, the trial court entered
convictions for one count of failure to comply, three counts
of aggravated vehicular assault, one count of trafficking in
cocaine, one count of trafficking in marijuana, and one count
of possession of drug paraphernalia. The trial court
sentenced Glover to an aggregate term of eight and one-half
years in prison.
15} Assignment of Error No. 1:
16} THE TRIAL COURT ERRED IN IMPOSING A SENTENCE
SEPARATELY FOR ALLIED OFFENSES WHEN SAID OFFENSES SHOULD HAVE
17} Glover contends the trial court erred by failing
to merge his three convictions for aggravated vehicular
assault because the individuals in the dark-colored vehicle
were injured by a single collision with the white vehicle
driven by Glover.
18} Whether offenses constitute allied offenses of
similar import subject to merger under R.C. 2941.25 is a
question of law that appellate courts review de novo.
Accord State v. Williams, 134 Ohio St.3d 482,
2012-Ohio-5699, ¶ 26-28. Pursuant to R.C. 2941.25, a
trial court shall not impose multiple punishments for the
same criminal conduct. The statute provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results
in two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the
indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
19} "In determining whether offenses are allied
offenses of similar import within the meaning of R.C.
2941.25, courts must evaluate three separate factors - the
conduct, the animus, and the import." State v.
Ruff,143 Ohio St.3d 114, 2015-Ohio-995, paragraph one
of the syllabus. If any of the following are true, a
defendant's convictions do not merge and he or she may be
sentenced for multiple offenses: "(1) the conduct
constitutes offenses of dissimilar import, (2) the conduct
shows that the offenses were committed separately, or (3) the
conduct shows that the offenses were committed with separate
animus." Id. at paragraph three of the
syllabus. Two or more offenses are of dissimilar import if
"the defendant's conduct constitutes ...