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State v. Glover

Court of Appeals of Ohio, Twelfth District, Fayette

August 28, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
CALVIN DEAN GLOVER, Defendant-Appellant.

         CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI 20160109

          Jess C. Weade, Fayette County Prosecuting Attorney, John M. Scott, for plaintiff-appellee

          CiceroAdams, LLC, Jay A. Adams, for defendant-appellant

          OPINION

          M. POWELL, J.

         {¶ 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 face.

         {¶ 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 MERGED.

         {¶ 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.[1]

         {¶ 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 ...


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