[Cite as State v. Grier, 2011-Ohio-3815.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsROBERT GODFREY GRIER 

 Defendant-Appellant 

JUDGES: 

Hon. Sheila G. Farmer, P. J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 2010 CA 00246 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 2010 CR 00653 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 1, 2011 
APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO RODNEY A. BACA 

PROSECUTING ATTORNEY 610 Market Avenue North 

RONALD MARK CALDWELL Canton, Ohio 44702 

ASSISTANT PROSECUTOR 

110 Central Plaza South, Suite 510 

Canton, Ohio 44702-1413 

Wise, J. 

{¶1} Appellant Robert Godfrey Grier appeals from his conviction and sentence 

in the Stark County Court of Common Pleas for robbery and drug trafficking. The 

relevant facts leading to this appeal are as follows. 

{¶2} The events at issue center on a disrupted undercover drug buy on May 6, 

2010 on the near west side of Canton. At about 7:50 PM that evening, Detective 

Zachary Taylor of the Canton Police Department was working an investigation in an 

unmarked pickup truck near Newton Place NW when he was approached by appellant. 

A brief conversation ensued, during which Taylor asked appellant what he had to sell. 

Appellant then jumped into the front passenger seat and directed Taylor to drive around 

the downtown area. Appellant pulled out a clear plastic bag at one point, but Taylor 

could not see what was in it. Eventually, appellant told Taylor to pull into a secluded 

alley near Eighth Street and Shorb Avenue NW. Appellant also told Taylor to shut off 

the lights and engine; however, the officer left the engine running. Unbeknownst to 

Taylor, his monitoring equipment had malfunctioned, and back-up officers had lost his 

exact location. 

{¶3} Appellant then asked Taylor to give him money up front so that he could 

go to a nearby house and purchase crack cocaine. After some discussion, appellant 
agreed to get the crack first and return to the vehicle to make the sale. However, shortly 

after appellant got out of the vehicle, he came over to the driver’s side open window and 

suddenly jumped at the cash Taylor was holding. Taylor put the vehicle in reverse as a 

struggle ensued between the two men. The gear shift was somehow forced into the 

drive position, and the truck began moving forward. Appellant finally gave up the 

struggle and pulled himself out of the vehicle’s window. 

{¶4} Taylor drove away from the alley and reported via a handheld radio he 

had hidden under the seat that he “just got robbed.” As he drove, Taylor saw appellant 

walking between some houses. He relayed this information to other officers, who were 

able to apprehend appellant on a porch in the 700 block of Shorb Avenue. 

{¶5} Appellant was transported to the station, where he agreed to talk to police. 

He insisted that Officer Taylor had tried to sell drugs to him, not vice versa, and that he 

had merely intended to assault Taylor, not rob him. Appellant also offered to assist in 

future undercover operations. 

{¶6} On June 14, 2010, the Stark County Grand Jury indicted appellant on one 

count of robbery (R.C. 2911.02(A)(3)) and one count of trafficking in cocaine (R.C. 

2925.03(A)(1)/(C)(4)(a)). Appellant entered pleas of not guilty to both charges, and the 

matter proceeded to a jury trial on July 28-29, 2010. The jury court found appellant 

guilty as charged. The court thereafter sentenced appellant, inter alia, to six years in 

prison. 

{¶7} On September 1, 2010, appellant filed a notice of appeal. He herein raises 

the following four Assignments of Error: 
{¶8} “I. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL. 

{¶9} “II. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTION 

AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶10} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE 

APPELLANT HIS DUE PROCESS RIGHTS TO A FAIR TRIAL BY FAILING TO GRANT 

HIS MOTION FOR MISTRIAL. 

{¶11} “IV. THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION 

IN SENTENCING APPELLANT TO THE MAXIMUM PRISON TERM.” 

I. 

{¶12} In his First Assignment of Error, appellant contends he was denied the 

effective assistance of counsel at his trial. We disagree. 

{¶13} Our standard of review for ineffective assistance claims is set forth in 

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio 

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538 

N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for 

ineffective assistance of counsel. First, we must determine whether counsel's 

assistance was ineffective; i.e., whether counsel's performance fell below an objective 

standard of reasonable representation and was violative of any of his essential duties to 

the client. If we find ineffective assistance of counsel, we must then determine whether 

or not the defense was actually prejudiced by counsel's ineffectiveness such that the 

reliability of the outcome of the trial is suspect. This requires a showing that there is a 

reasonable probability that but for counsel's unprofessional error, the outcome of the 
trial would have been different. Id. Trial counsel is entitled to a strong presumption that 

all decisions fall within the wide range of reasonable professional assistance. State v. 

Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. 

Opening Statements

{¶14} Appellant first challenges his trial counsel’s performance during opening 

arguments. After the trial court afforded both counsel the opportunity for opening 

statements and the prosecutor had made his remarks, defense counsel spoke to the 

jury chiefly concerning the burden of proof being on the State and that the verdict must 

be based entirely on the evidence at trial. Appellant presently faults his trial counsel for 

not talking to the jury about the nature of the evidence with which they would be 

presented or what the defense would contradict. 

{¶15} In many cases, it may be prudent for a defense attorney to avoid 

presenting a theory of the case to the jury in opening statements, as any subsequent 

failure to develop and present evidence on such theory would invite the State to later 

comment on that failure to the jurors. See State v. Harris, Cuyahoga App.No. 87915, 

2007-Ohio-526, ¶ 5, citing State v. Collins, 89 Ohio St.3d 524, 527, 2000-Ohio-231. In 

the case sub judice, defense counsel chose to focus on a strategy of challenging 

whether the State could meet its burden of proof. Upon review, we do not find trial 

counsel's performance in this regard fell below an objective standard of reasonable 

representation. 

Responding to Officer’s Testimony

{¶16} Appellant secondly challenges the failure of his trial counsel to object to 

certain portions of the testimony of Detective Taylor. Appellant takes specific issue with 
Taylor's testimony that he had alerted other officers over a radio that he had been 

robbed, and that he declined to work with appellant as a confidential informant because 

appellant could not be trusted given his conduct during the incidents of May 6, 2010. 

Appellant also points to Taylor's testimony about appellant’s statements that he was a 

crack user, that he knew crack dealers, and that he could help the police in catching 

people connected with the crack trade. 

{¶17} It is well established that “[c]ompetent counsel may reasonably hesitate to 

object [to errors] in the jury's presence because objections may be considered 

bothersome by the jury and may tend to interrupt the flow of a trial.” State v. Rogers

(April 14, 1999), Summit App.No. 19176, 1999 WL 239100, citing State v. Campbell

(1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339 (internal quotations omitted). Moreover, 

the United States Supreme Court and the Ohio Supreme Court have held a reviewing 

court “need not determine whether counsel's performance was deficient before 

examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697. In this 

instance, given the State’s evidence that appellant approached the detective, directed 

him to drive around city streets, and took him to an apparent crack house before 

suddenly trying to wrest cash from him, we find overwhelming support for the trafficking 

and robbery charges, and we are unpersuaded that appellant’s case was prejudiced by 

appellant’s trial counsel handling of the detective’s testimony. 

Responding to Officer’s Qualifications as a Witness

{¶18} Finally, appellant contends his trial counsel effectively allowed the State to 

use Detective Taylor as an expert witness, based on the officer’s testimony about crack 
cocaine being a Schedule II substance, the levels of strength of crack, and its effect on 

a user. See Tr. at 155. However, given that police officers combating the illegal 

narcotics trade would generally be expected to develop basic familiarity with many of 

the scientific aspects involved, we again are unpersuaded that appellant’s case was 

prejudiced by appellant’s trial counsel handling of the detective’s testimony in this 

regard. 

{¶19} Appellant’s First Assignment of Error is therefore overruled. 

II. 

{¶20} In his Second Assignment of Error, appellant contends his conviction for 

cocaine trafficking and robbery was not supported by sufficient evidence and was 

against the manifest weight of the evidence. We disagree. 

{¶21} In reviewing a claim of insufficient evidence, “[t]he 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. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, 

paragraph two of the syllabus. 

{¶22} In regard to the offense of trafficking in drugs, R.C. 2925.03(A)(1) sets 

forth the essential elements: “No person shall knowingly sell or offer to sell a controlled 

substance.” See State v. Moore, Stark App.No. 2008-CA-00228, 2009-Ohio-4958, ¶ 12. 

The definition of “sale” has the same meaning as in R.C. 3719.01. See, R.C. 

2925.01(A). “ ‘Sale’ includes delivery, barter, exchange, transfer, or gift, or offer thereof, 

and each transaction of those natures made by any person, whether as principal, 

proprietor, agent, servant, or employee.” R.C. 3719.01(AA). 
{¶23} In the case sub judice, Detective Taylor recalled that appellant came up to 

the open window after the officer pulled over to the curb. Appellant asked what the 

officer needed, at which point Taylor “asked [appellant] what he had.” Tr. at 130. 

Appellant thereupon jumped in the undercover truck and directed Taylor to drive around 

Canton. More discussion ensued, and when appellant asked what Taylor needed, the 

officer said “forty.” Taylor recalled that appellant stated at least twice he would get 

“crack” for him. See Tr. at 133, 134. Appellant at that point directed Taylor to stop at a 

particular location near Shorb Avenue. 

{¶24} In regard to the charge of robbery, R.C. 2911.02(A)(3) reads as follows: 

“No person, in attempting or committing a theft offense or in fleeing immediately after 

the attempt or offense, shall *** [u]se or threaten the immediate use of force against 

another.” 

{¶25} Appellant essentially seeks to downplay the extent of the struggle for the 

cash and maintains that the officer simply assumed that appellant was reaching for the 

money. However, Detective Taylor provided the following details as to what transpired 

after appellant suddenly re-approached the undercover vehicle: 

{¶26} “So if you could picture the door is here, steering wheel, I had the money 

in this hand here. He jumps across and reaches to get the money. 

{¶27} “I threw the vehicle in reverse, floored it, and for some reason just like I 

guess you would if you were a little kid, I was kind of like playing the keep-away game 

like oh, no, but I grabbed his left arm with my left arm, and I got the money in this hand, 

and now we’re spinning. He’s halfway in the vehicle and we’re trying to go in reverse, 
but like I said, it’s kind of this make-shift parking area, pretty much the back yard of a 

house. So we’re not really going anywhere. We’re just spinning. 

{¶28} “His right arm is right here. He reaches forward with his right arm to get 

the money. At this point I drop the money and grab his right arm, and he’s going for, 

you know, the money. It drops out of hand. I grab his hand, and now we go into the 

gearshift and go straight down into one of the forward gears. I’m not sure which gear it 

was but we go forward. 

{¶29} “Now, I got ahold of his left hand and I got ahold of his right hand, and I’m 

crossed up with him, and he actually begins to reach down and mess with the keys of 

the truck trying to shut the truck off. 

{¶30} “We begin to go forward at this time. You can see him, he’s a big guy. I’m 

a bigger guy. We’re in the cab of a compact pickup truck tussling over the car keys and 

this money. He’s pretty much laying on top of me. No one is driving this vehicle. We’re 

in the backyard of this house. I think, you know, help is going to come. Unfortunately, 

help didn’t know where I was and they couldn’t hear the struggle going on. 

{¶31} “So now, the situation has kind of gone from bad to worse, and add on to 

that the fact that I got my full throttle on this vehicle and no one’s driving it, no one’s 

steering. 

{¶32} “It got to the point where I was contemplating using legal force due to the 

fact that what am I going to do if Mr. Grier gets this vehicle stopped? What am I going 

to do if Mr. Grier gets the keys out of this vehicle? * * *.” Tr. at 136-138. 
{¶33} Upon review, we find the testimony, construed most favorably to the State, 

amply supported both charges against appellant. Appellant’s claim of insufficiency of the 

evidence is therefore not well taken. 

{¶34} Appellant also raises a “manifest weight” challenge. Our standard of 

review on a manifest weight challenge to a criminal conviction is stated as follows: "The 

court, reviewing the entire record, weighs the evidence and all reasonable inferences, 

considers the credibility of witnesses and determines whether in resolving conflicts in 

the evidence, the jury clearly lost its way and created such a manifest miscarriage of 

justice that the conviction must be reversed and a new trial ordered." State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. See also, State v. Thompkins

(1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting of a new trial "should be 

exercised only in the exceptional case in which the evidence weighs heavily against the 

conviction." Martin at 175, 485 N.E.2d 717. 

{¶35} Appellant’s chief challenge goes to the robbery conviction, where he calls 

into factual question how Detective Taylor was able to put the vehicle into reverse while 

simultaneously holding the cash in his right hand and fending off appellant. Appellant 

also questions why it would have been necessary for him to have walked around to the 

driver’s side window to get the cash when he could have simply grabbed it while still 

seated in the passenger’s seat. We also note appellant initially told police that Detective 

Taylor was the seller, despite Taylor’s testimony that he had been running several 

controlled buy operations on that date. Nonetheless, upon review, we find the jury did 

not clearly lose its way and create a manifest miscarriage of justice requiring that 

appellant's conviction be reversed and a new trial ordered. 
{¶36} Appellant’s Second Assignment of Error is therefore overruled. 

III. 

{¶37} In his Third Assignment of Error, appellant contends the trial court erred in 

failing to declare a mistrial. We disagree. 

{¶38} Our standard of review for evaluating a trial court's decision to grant or 

deny a mistrial is abuse of discretion. State v. Graewe, Tuscarawas App.No. 2007 AP 

10 0070, 2008-Ohio-5143, ¶ 46, citing State v. Sage (1987), 31 Ohio St.3d 173, 182, 

510 N.E.2d 343. In order to find an abuse of discretion, we must determine the trial 

court's decision was unreasonable, arbitrary or unconscionable and not merely an error 

of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 

1140. 

{¶39} The specific incident at issue concerns Detective Taylor’s testimony that 

appellant, while being interviewed at the station after his arrest, told officers he would be 

willing to “work off” some of the charges. Tr. at 142. Appellant’s trial counsel objected at 

that point and moved for a mistrial on the basis that the jury was given the impression 

that appellant had a record of other charges pending against him. Tr. at 143. 

{¶40} The record reflects that the trial court conducted a voir dire of Detective 

Taylor, outside the presence of the jury, during which Taylor clarified that appellant was 

talking about the robbery and trafficking charges that had just occurred. On crossexamination during this voir dire, defense counsel asked: "Maybe I was wrong but I 

thought your response when the Jury was still here to that question was that Mr. Grier 

offered to work off previous charges or prior charges." Tr. at 148. Taylor responded: 

"No, sir. Just the charges that he was going to be charged with that day. It was the 
robbery and the trafficking in cocaine." Id. After the voir dire, Taylor repeated this 

testimony for the jury to review. Tr. at 150-152. 

{¶41} Upon review of the aforesaid, we hold the trial court's denial of the motion 

for mistrial was not arbitrary, unreasonable or unconscionable. 

{¶42} Appellant’s Third Assignment of Error is therefore overruled. 

IV. 

{¶43} In his Fourth Assignment of Error, appellant contends the trial court erred 

in sentencing him to the maximum terms on each count. We disagree. 

{¶44} We note the Ohio Supreme Court's Foster decision [109 Ohio St.3d 1, 

2006-Ohio-856] holds that judicial fact finding is not required before a court imposes 

non-minimum, maximum or consecutive prison terms. See, e.g., State v. Williams, 

Muskingum App. No. CT2009-0006, 2009-Ohio-5296, ¶ 19, citing State v. Hanning, 

Licking App.No. 2007CA00004, 2007-Ohio-5547, ¶ 9. Subsequent to Foster, in a 

plurality opinion, the Ohio Supreme Court established a two-step procedure for 

reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124. The first step is to “examine the sentencing court's compliance with all 

applicable rules and statutes in imposing the sentence to determine whether the 

sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first step is 

satisfied, the second step requires the trial court's decision be reviewed under an 

abuse-of-discretion standard. Id. 

{¶45} In the case sub judice, the trial court stated in its written entry that it had 

considered the record, the oral statements of the parties, and any presentence reports. 

See Sentencing Entry, August 13, 2010. The court also specifically referenced the 
purposes of sentencing set forth in R.C. 2929.11 and the seriousness and recidivism 

factors found in R.C. 2929.12. Id. 

{¶46} Based on our review of the record, and pursuant to Foster and Kalish, we 

do not find the trial court acted clearly and convincingly contrary to law or abused its 

discretion in rendering maximum sentences under the facts and circumstances of this 

case. 

{¶47} Appellant’s Fourth Assignment of Error is therefore overruled. 

{¶48} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas, Stark County, Ohio, is hereby affirmed. 

By: Wise, J. 

Farmer, P. J., and 

Delaney, J., concur. 

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 JUDGES 

JWW/d 0706 
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

ROBERT GODFREY GRIER : 

 : 

 Defendant-Appellant : Case No. 2010 CA 00246 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. 

 Costs assessed to appellant. 

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 JUDGES