[Cite as State v. Groves, 2022-Ohio-443.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. 20CA3904 

 

 v. : 

 

JESSICA GROVES, : DECISION AND JUDGMENT ENTRY 

 

 Defendant-Appellant. : 

_________________________________________________________________ 

 APPEARANCES: 

Valerie Webb, Portsmouth, Ohio for appellant.1 

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. 

Willis, Assistant Scioto County Prosecuting Attorney, Portsmouth, 

Ohio, for appellee. 

CRIMINAL APPEAL FROM COMMON PLEAS COURT 

DATE JOURNALIZED:2-8-22 

ABELE, J. 

{¶1} This is an appeal from a Scioto County Common Pleas Court 

judgment of conviction and sentence. A jury found Jessica Groves, 

defendant below and appellant herein, guilty of (1) aggravated 

murder, (2) murder, (3) kidnapping, (4) child endangerment, (5) 

tampering with evidence, (6) interference with custody, (7) gross 

abuse of a corpse, and (8) four counts of felonious assault. 

1

 Different counsel represented appellant during the trial 
SCIOTO, 20CA3904 2

{¶2} Appellant raises the following assignment of error for 

review: 

“APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF 

COUNSEL DUE TO HER TRIAL COUNSEL ABDICATING HIS 

ROLE AS HER ADVOCATE AS WELL AS COMMITTING A 

SERIES OF BAFFLING ACTS AND/OR OMISSIONS DURING 

THE LITIGATION AND TRIAL OF APPELLANT’S CASE.” 

 

{¶3} On June 14, 2019, a Scioto County Grand Jury returned an 

indictment that charged appellant with multiple, serious felony 

offenses.2 Daniel Groves, appellant’s spouse and co-defendant, 

pleaded not guilty to a similar list of charges on June 17, 2019. 

Appellant initially pleaded not guilty by reason of insanity, but 

after the trial court found appellant competent to stand trial, on 

September 24, 2019 appellant entered not guilty pleas. 

court proceedings. 2

The Scioto County Grand Jury returned an indictment that 

contained the following eleven counts: Count 1 - aggravated murder, 

in violation of R.C. 2903.01(C), an unspecified felony; Count 2 - 

murder, in violation of R.C. 2903.02(B), an unspecified felony; 

Count 3 - kidnapping, in violation of R.C.2905.01(A)(5), a firstdegree felony; Count 4 - endangering children, in violation of R.C. 

2919.22(A), a third-degree felony; Count 5 - tampering with 

evidence, in violation of R.C. 2921.12(A)(1), a third-degree 

felony; Count 6 - interference with custody, in violation of R.C. 

2919.23(A)(1), a fourth-degree felony; Count 7 - gross abuse of a 

corpse, in violation of R.C. 2927.01(B), a fifth-degree felony; 

Count 8 - felonious assault, in violation of R.C. 2903.11(A)(1), a 

second-degree felony; Count 9 - felonious assault, in violation of 

R. 2903.11(A)(1), a second-degree felony; Count 10 - felonious 

assault, in violation of R.C. 2903.11(A)(1), a second-degree 

felony; and Count 11 - felonious assault, in violation of R.C. 

2903.11(A)(1), a second-degree felony.
SCIOTO, 20CA3904 3

{¶4} On January 6, 2020, a five-day joint jury trial began 

with both co-defendants present. Registered Nurse Darienne Liles 

worked at Southern Ohio Medical Center (SOMC) on January 10, 2019 

when appellant and Daniel Groves (hereinafter Groves) arrived at 

the hospital at 5:25 a.m. Liles testified that appellant appeared 

to be “flat, disconnected and uncooperative,” refused to provide a 

urine sample, and refused to answer questions about prenatal care. 

Appellant was completely dilated, but “not in pain, * * * very 

unusual for somebody who we’ve not administered pain medicine to.” 

Moments before the baby’s birth, Groves stated that appellant “had 

used heroin two days ago.” 

{¶5} SOMC staff eventually obtained appellant’s urine sample 

that tested positive for amphetamines. Approximately 30 minutes 

after appellant entered the hospital, she delivered Baby Dylan 

(Dylan). Nurse Liles testified that Groves “seemed worried and 

almost afraid.” “Whenever we were questioning her they were both 

just making * * * eye contact with each other, not acting like they 

were paying much attention to us.” “The only thing [Groves] said 

was that she [appellant] had used heroin that she was always too 

high to go to her prenatal care visits.” * * * “[W]e thought he was 

almost looking to [appellant] for permission to answer our 

questions. I could feel a couple of times he wanted to say things 

or answer and he did not.” Liles testified that neither appellant 
SCIOTO, 20CA3904 4

nor Groves requested to see Dylan after his birth. 

{¶6} Registered Nurse Tori Howell cares for newborns in the 

SOMC nursery. Howell testified that because Dylan, born 

approximately one month early, had difficulty breathing, they 

removed him to the nursery. Howell also testified that (1) Dylan’s 

preliminary screen showed “unconfirmed positive” for amphetamines, 

and (2) the umbilical cord tested positive for amphetamines, 

methamphetamines, fentanyl, opiates, and morphine. Howell further 

testified that, while Dylan was in the nursery for several days, 

Groves visited once and neither parent asked about Dylan’s 

condition. 

{¶7} SOMC Obstetrician-Gynecologist Dr. Darren Adams was on 

call when appellant and Groves arrived at the hospital. The 

hospital called Dr. Adams because appellant had no prenatal care 

and was ready to deliver. When Dr. Adams arrived, appellant, 

dilated at nine and one-half centimeters, appeared distant and did 

not answer questions. Dr. Adams believed appellant might have been 

impaired because, typically, a mother that far dilated with no pain 

medication would be in extreme pain. Appellant, however, “was just 

distant, an - - an odd reaction.” Dr. Adams delivered Dylan within 

minutes and he weighed 5 pounds, 10 ounces, and was 19 inches long. 

Later that day, Dr. Adams returned to care for appellant’s 

postpartum hemorrhage. 
SCIOTO, 20CA3904 5

{¶8} Assistant Nurse Manager Stacey Riffitt testified 

appellant kept Dylan for 15 minutes after his birth, but “didn’t 

hold him. She didn’t ask how his condition was. She just said, 

‘Put him there on the wall.’” Also, Dylan was diagnosed with 

neonatal abstinence syndrome, meaning that he had been exposed to 

drugs in utero and was in withdrawal. Dylan had tremors, could not 

quiet himself, and needed to be comforted. Riffitt explained that 

the umbilical cord test shows “every substance the mother used from 

20 weeks gestation on.” Riffitt also testified that Dylan required 

an oxygen treatment immediately after birth, but they weaned him 

from the oxygen treatment within 90 minutes and he was otherwise 

“very healthy” with no injuries. 

{¶9} When Nurse Riffitt spoke with Groves in appellant’s 

hospital room, Daniel Groves told Riffitt he had “just talked with 

the physician and asked if meth could be found in heroin.” Groves 

also told Riffitt that appellant is a nurse who used heroin and, 

after she learned of her pregnancy, she continued to use heroin, 

“enough to keep the withdrawal symptoms from happening to her.” 

Riffitt returned to the room and Groves’ eyes “looked a little more 

glassy. He would not make eye contact with me. His speech was 

slow.” Riffitt believed Groves was under the influence of 

something. Riffitt further testified that, after Dylan stayed at 

the hospital for five days to monitor drug withdrawal symptoms, the 
SCIOTO, 20CA3904 6

hospital discharged Dylan to Scioto County Children’s Services 

(SCCS). 

{¶10} SOMC Social Worker Christine Procter Frantz testified 

that Dylan’s initial discharge plan permitted him to go home with 

Daniel Groves due to Groves’ negative drug screen, and because he 

told SCCS that he did not know about appellant’s drug use during 

pregnancy. Frantz also stated that, although SCCS considered the 

unconfirmed positive drug screen not to be a true positive, the 

hospital disagreed and sought to keep Dylan until they received the 

umbilical cord test results “because with mom and baby both being 

positive it should be an automatic removal.” 

{¶11} SOMC Social Work Services Manager Mandy Burchett 

testified that, after the hospital received the cord toxicology 

results on January 15, 2019, Dylan would be discharged to foster 

care. 

{¶12} On January 16, 2019, SCCS filed a complaint in the 

juvenile court and alleged Dylan (age six days), and appellant’s 

other child, Daniel, Jr., (age 14), to be abused, neglected and 

dependent. SCCS also sought an ex parte order to place Dylan in 

SCCS custody and Daniel Jr. under an order of protective 

supervision. 

{¶13} On January 16, 2019, the juvenile court awarded Dylan’s 

custody to SCCS and, on January 28, 2019, the court further 
SCIOTO, 20CA3904 7

ordered: (1) the children remain in SCCS custody, (2) appellant 

complete a drug abuse evaluation and follow all recommendations, 

and (3) appellant report to juvenile court and complete an 

assessment to participate in the Family Reunification Court. 

{¶14} After foster parent and elementary school teacher Andrea 

Bowling received a call to ask her to foster parent a drugdependent infant, she took physical custody of Dylan. Bowling 

observed Dylan’s tremors, sweats and his desire to be held at all 

times. Also, during visitation with Dylan’s parents at SCCS, 

Bowling believed a “possibility that [appellant] was under the 

influence of something.” When Dylan reunited with his parents on 

January 28, 2019, Bowling gave the parents diapers, supplies and a 

letter with Bowling’s contact information and statement that she 

would be available if the parents needed anything. After the 

family visitation, Bowling also called SCCS about her concerns with 

appellant’s demeanor. 

{¶15} Scioto County Help Me Grow Service Coordinator Stephanie 

Jenkins administers an Early Intervention Program. In this 

program, staff will (1) conduct home visits to screen and monitor a 

child’s progress, (2) assist parents to understand developmental 

milestones, (3) work directly with children, and (4) refer a family 

to other programs including WIC, Head Start, medical cards, food 

stamps, therapies, and transportation. After Jenkins received a 
SCIOTO, 20CA3904 8

January 25, 2019 referral, she made multiple attempts, from January 

to March, to contact Dylan’s parents. However, on March 11, 2019 

Help Me Grow terminated appellant and Groves from the program 

because of their lack of a response. 

{¶16} SCCS Caseworker Patricia Craft, who served as Dylan’s 

caseworker, testified that, after Dylan’s removal from Groves’ 

custody and the juvenile court’s emergency order that awarded 

custody to SCCS, foster parent Andrea Bowling took physical custody 

of Dylan. A safety plan identified appellant’s substance abuse as 

a threat, and required appellant to (1) sign a release form, (2) 

obtain a drug and alcohol assessment, (3) submit to weekly contact 

and drug treatment, (4) remain outside the home unless supervised, 

and (5) submit to supervised visits. 

{¶17} Caseworker Craft testified that she first met Dylan’s 

parents on January 25, 2019 at a family team meeting. Participants 

at the meeting included Caseworker Johnson, Andrea Bowling, Craft, 

appellant and Daniel Groves. SCCS informed both parents that they 

should complete drug and alcohol assessments, participate in 

individual counseling, and comply with court orders. Groves also 

told Craft that he had a six-month leave from his employment at 

Rural King. Immediately after the team meeting, the parents had a 

one-hour visit with Dylan. Afterward, Bowling told Craft that she 

thought appellant was “loopy” and “on drugs.” At that time Daniel, 
SCIOTO, 20CA3904 9

Jr. remained in Groves’ custody. 

{¶18} Caseworker Craft further explained that, because Groves 

had no violent criminal history and no prior SCCS involvement, SCCS 

policy provided that Dylan should be returned to Groves if he could 

successfully pass another drug screen. Interestingly, although 

Groves’ screen did test clean, neither Craft nor anyone else 

directly observed Groves during the drug screen process. 

{¶19} SCCS returned Dylan to Daniel Groves on January 28, 2019. 

At the February 4, 2019 home visit, Caseworker Craft observed that 

Dylan appeared to be quiet and exhibited no visible injuries. 

Additionally, appellant was in treatment and SCCS required her to 

attend treatment “until further notice” and to continue to report 

to drug court. 

{¶20} Between February 4 and 21, 2019, Caseworker Craft made 

multiple unsuccessful phone attempts to contact Daniel Groves. 

Craft and another caseworker also visited Groves’ home, but found 

no one. Craft then visited Daniel, Jr.’s school and gave him a 

note to ask Groves to call Craft. Craft also left notes in Groves’ 

door and mailbox, and, on February 21, 2019, Craft visited Groves’ 

residence. During this attempted visit, Craft observed Daniel, Jr. 

exit his school bus and enter the home. Craft also noticed two 

dogs and a chain with a “No Trespassing” sign, but did not see 

cars. The next day, Craft again returned to Groves’ home, but did 
SCIOTO, 20CA3904 10

not see cars. 

{¶21} On February 25, 2019, Caseworker Craft completed her 

monthly home visit and observed that Dylan appeared to be clean, 

appropriately dressed and displayed no visible injuries. According 

to Groves, Dylan had recently visited the doctor and weighed 8 

pounds, 9 ounces, and was 22 inches long. Groves also told Craft 

that appellant stayed at the residence only during the day, but 

Craft could not verify this information. 

{¶22} At the time of the next monthly scheduled home visit on 

March 18, 2019, Groves told Caseworker Craft that he was in Canton 

visiting his ill father. At the rescheduled March 21, 2019 visit, 

Craft found no one home. After she returned to her office, Craft 

received voicemail from Groves that said he was in Canton with his 

father. 

{¶23} At the March 27, 2019 juvenile court hearing, appellant 

appeared but Groves did not. The juvenile court adjudicated the 

children to be abused, neglected and dependent, pointed out that 

appellant did not complete the drug treatment program, and 

concluded that Dylan’s best interests required him to remain in 

SCCS custody pending disposition. 

{¶24} At the March 28, 2019 home visit, Caseworker Craft 

interacted with Groves, appellant and Dylan. Although Craft did 

not inquire why Groves did not attend the March 27, 2019 
SCIOTO, 20CA3904 11

adjudication, she did observe appellant feed Dylan. Also, Craft 

did not observe any injuries to Dylan. When both parents told 

Craft that they had kept all appointments and asked whether 

appellant could return home, Craft said she would ask her 

supervisor. Craft also reminded them about the April 3, 2019 court 

hearing and her next home visit on April 9, 2019. 

{¶25} On April 3, 2019, Groves texted Caseworker Craft and said 

that, although he and appellant had been ill, they drove to Canton 

to visit Groves’ father when their car broke down and they became 

stranded. On April 17, 2019, Craft unsuccessfully attempted to 

inform Groves that the guardian ad litem wanted to visit their home 

and that Craft’s next home visit would be April 24, 2019. At this 

point, because Groves had texted Craft from four different numbers, 

she and the guardian ad litem attempted to contact Groves at all 

four numbers. Further, Craft learned that, since February 8, 2019, 

appellant had not complied with her individual therapy visits and 

she last attended a group session on March 26, 2019. 

{¶26} At the April 18, 2019 juvenile court hearing, Groves’ 

attorney, appellant’s attorney, Caseworker Craft and the SCCS 

attorney all attended, but appellant and Groves did not. At the 

conclusion of the hearing, the juvenile court ordered Dylan to 

remain with SCCS. 

 
SCIOTO, 20CA3904 12

{¶27} On April 19, 2019, Caseworker Craft again visited Groves’ 

home, knocked on the door for several minutes, then left cards in 

the door and mailbox that asked Groves to call. Craft also 

contacted Rural King because she thought Groves could be at work, 

but Rural King informed her that Groves quit his job in 2018. That 

same day, Groves texted Craft and said he was still “up north” and 

a friend watches his home when he is away. Groves also told Craft 

that Dylan was “doing great. Growing like a weed. LOL.” Because 

of car trouble, Groves said his uncle could bring him home Monday 

or Tuesday and he would contact Craft. 

{¶28} Caseworker Craft continued to attempt to contact Dylan’s 

parents on April 19, 22, 23, and 24, 2019. Craft then visited 

school to talk with Daniel, Jr., who appeared to be nervous, but 

told her Dylan was fine. When Craft asked if appellant stayed at 

their home, first Daniel, Jr. said, “yes,” then he said 

“occasionally.” When asked about his ill grandfather in Canton, 

Daniel, Jr. replied, “Who was that?” 

{¶29} On April 24, 2019, SCCS took custody of Daniel, Jr. and 

placed him with an aunt and uncle. Shortly thereafter, Caseworker 

Craft received Groves’ text that asked why Daniel, Jr. did not come 

home from school. Craft then visited Groves’ home and, because of 

parked cars assumed everyone to be home, but received no answer. 

Craft then texted Groves to tell him to bring Dylan, along with the 
SCIOTO, 20CA3904 13

children’s personal items, to the agency the next day. Groves said 

he would do so, but did not. On April 25, 2019, the juvenile court 

continued protective supervision of Daniel, Jr., and continued 

Dylan’s temporary custody with SCCS. 

{¶30} On April 30, 2019, Caseworker Craft filed a missing 

person report with the Scioto County Sheriff’s Department. Craft 

continued to communicate with Groves and, on May 3, 2019, visited 

the residence, along with another caseworker and a deputy sheriff. 

On May 7, 2019, Craft returned to the residence and observed all 

vehicles present. On May 15, 2019, SCCS visited the residence and 

noted one missing vehicle. On May 23, 31, and June 7, 2019, SCCS 

attempted additional home visits, but to no avail. Craft also 

testified that other agencies, including the juvenile court and 

Care Source, searched for Groves. 

{¶31} On June 10, 2019, Caseworker Craft learned that law 

enforcement had arrested both Groves and appellant and “Jessica and 

Daniel was [sic.] telling them that I came several months ago and 

took the child.” Craft, however, testified that she last observed 

Dylan on March 28, 2019. Craft also conceded on cross-examination 

that SCCS did not issue an Amber Alert because a supervisor 

believed that, if an Amber Alert goes out, it “would give a bad 

reputation for the agency because we lost a child.” 
SCIOTO, 20CA3904 14

{¶32} Pediatrician Dr. Mohammad Ali first observed Dylan at the 

hospital soon after his birth, then a few times at his office. Dr. 

Ali testified that Dylan stayed at the hospital longer than normal 

due to drug withdrawal symptoms. On January 16, 2019, Dr. Ali 

observed Dylan in his office for a well-newborn check, and Dylan’s 

foster parent informed him that Dylan sneezed, perspired 

excessively, had tremors, but otherwise appeared to be well. Dr. 

Ali learned about the abnormal newborn 17-hydroxy progesterone 

screening, that indicated elevated risk for congenital adrenal 

hyperplasia, but Dylan’s care transferred to a different pediatric 

practice and miscommunication occurred about whether the screening 

had been repeated. Dr. Ali also testified that, although he did 

not know whether the screening had been repeated, this abnormality 

would not cause bone fractures, bruising or swelling of the head. 

{¶33} Christ Care Pediatrics Pediatrician Dr. Gregory Hudson 

testified he first observed Dylan on February 7, 2019. Dr. Hudson 

discussed the abnormal 17-hydroxy progesterone screening and 

ordered additional lab work to recheck the abnormal panel. As 

instructed, appellant and Groves returned to Dr. Hudson’s office on 

February 21, 2019 when Dr. Hudson learned that Groves had completed 

all but one lab test. Because Dr. Hudson was not the attending 

pediatrician at Dylan’s birth, and because he did not know that the 
SCIOTO, 20CA3904 15

hospital had completed a 17-hydroxy progesterone test, Dr. Hudson 

ordered another test. Additionally, although Dylan exhibited no 

injuries at his February 21, 2019 office visit, he weighed on the 

low end of normal. Consequently, Dr. Hudson scheduled a March 7, 

2019 return visit. Groves, however, did not return with Dylan. 

{¶34} Dr. Hudson further explained that, due to the testing 

mix-up, his office sent two letters to appellant to stress the 

importance of another test and threatened that, if appellant did 

not repeat the screening, “they will involve Children’s Protective 

Services.” In addition to the letters, Dr. Hudson’s office called 

Groves and appellant, but received no response. Dr. Hudson further 

testified that in his 30 years of experience, he had never seen a 

two-to-three month old baby fracture his own skull, ribs, arms or 

legs. 

{¶35} Mahajan Therapeutics Therapist Jessica Byrd testified 

that SCCS referred appellant to their facility for assessment and 

treatment. Appellant completed her drug and mental health 

assessments on January 18, 2019, attended an individual therapy 

session on February 8, 2019 and submitted to several supervised 

drug screens. However, after February 8, 2019, appellant became 

“very inconsistent and eventually then just totally stopped 

coming.” Byrd also contacted SCCS on February 14, 15, 22, 27, 
SCIOTO, 20CA3904 16

March 1, and April 2, 2019 about appellant’s noncompliance. 

Apparently, appellant attended one group counseling session on 

March 26, 2019, but Byrd said she was “a little bit different. * * 

* she was very defensive. It seemed like she was edgy, a little 

angry, just upset that Children’s Services like wasn’t letting her 

husband just be with the baby.” Byrd also suspected appellant was 

under the influence of drugs or alcohol at her March 26, 2019 

session. 

{¶36} Scioto County Juvenile Court Intake Officer and 

Investigator Greg Dunham testified that, after SCCS removed Dylan, 

the juvenile court ordered appellant to report to Dunham twice per 

month. Dunham met with appellant on January 24, 2019, reviewed her 

requirements and completed a drug court assessment. Appellant, 

however, missed three report dates and did not appear until March 

28, 2019 when she told Dunham she missed appointments because she 

had no transportation. Dunham also visited appellant’s residence 

on May 31, June 3, June 4, June 5, and June 10, 2019, but could not 

locate appellant. 

{¶37} Scioto County Sheriff’s Captain John Murphy visited the 

Groves home on May 20, 2019 and attempted to locate Dylan, but the 

driveway had been “cabled off” with motion detectors. Murphy did 

hear dogs inside the home, but he did not see anyone. When Murphy 
SCIOTO, 20CA3904 17

began to leave, he spoke with a neighbor who told him that “they 

[the Groves] leave early morning hours and they come back late at 

night. They’re usually on a four-wheeler riding up and down the 

roadway.” During this conversation, Murphy observed appellant and 

Groves riding atop a four-wheeler. Murphy attempted to stop them, 

but Groves “took off through a field and I gave chase through the 

grassy field, and they hit the woods and we could not pursue any 

further.” 

{¶38} Scioto County Sheriff’s Detective Adam Giles testified he 

secured a search warrant on June 10, 2019 and visited the Groves 

home, along with other officers. After officers surrounded the 

home, they knocked on the door and asked the occupants to exit. 

Approximately 15 to 20 minutes later, appellant exited, screamed, 

cursed and informed officers that SCCS had already taken Dylan. 

Appellant would not, however, answer whether Groves remained inside 

the home. When Groves did not exit, officers sent a robot into the 

home. Eventually, officers apprehended Groves and he told them he 

had “been asleep the whole time.” When Giles asked about Dylan, 

Groves said SCCS had already taken him. 

{¶39} Otway Volunteer Fire Department firefighters Steven 

Gambill and Dan Shirey testified that the department used a truck 

and chain saws to access a logging road to search a well, but the 
SCIOTO, 20CA3904 18

water level prevented a search. Instead, they dropped a hook into 

the well and retrieved two milk crates, connected with a heavy 

padlocked chain. Montgomery County Coroner’s Office Forensic 

Pathologist Dr. Susan Brown received Dylan’s body in two milk 

crates, connected with a chain and “three padlocks * * * 12 zip 

ties, and * * * eight metal wires * * * [and] 18 large rocks.” 

Dylan had been “wrapped in multiple layers of plastic and around 

all of this plastic is this iron anchor type device.” Dr. Brown 

testified that Dylan’s body exhibited (1) skull fractures (that did 

not occur simultaneously), (2) bruises on right side of chest and 

left leg, (3) laceration on left arm, (4) fractures of the left 

humerus or the upper arm bone * * * and * * * fracture of the left 

radius and ulna, the bones of the left forearm, (5) fractures of 

left tibia, and (6) on the sixth rib an “old healing fracture, and 

the same thing on rib seven next to it, a large nodular area, which 

is a healing old fracture, left rib six and seven.” The 

examination further revealed that the rib fractures did not occur 

at the same time as the other fractures. Dr. Brown testified that 

Dylan’s “cause of death is homicidal violence of undetermined 

etiology.” She explained Dylan had been a victim of blunt force 

trauma, but the “specific cause of death can’t be determined 

because a typical exam could not be performed because his body was 
SCIOTO, 20CA3904 19

decomposing from being concealed in - - in water for months.” Dr. 

Brown also believed that the fractures showed at least three 

different traumas. Toxicology reports also detected 

methamphetamine and amphetamine in Dylan’s liver. 

{¶40} Scioto County Sheriff’s Detective Jodi Conkel interviewed 

appellant after her arrest and described her as “very standoffish, 

cold, didn’t really want to talk to me, kind of annoyed.” 

Appellant told Conkel that SCCS had taken Dylan and Daniel, Jr., 

and that she did not use illegal drugs. Later that day, Conkel 

interviewed Groves who also maintained that SCCS had taken Dylan. 

Conkel said Groves appeared to be “dope sick,” which he did admit 

to Conkel. Groves later told Conkel that he found Dylan in his 

crib deceased. 

{¶41} On June 12, 2019, Detective Conkel interviewed appellant 

and Groves. During this conversation, Groves admitted that SCCS 

did not take Dylan. The Sheriff’s Office also accommodated Groves’ 

request to talk to appellant, and a video recording of their jail 

conversation revealed additional information: 

DEFENDANT D. GROVES: When they took me out there 

yesterday - - wanted me to take them where he was at, and 

I took them - - some bullshit place because - - don’t 

tell them where he is because if they find his body - - 

DEFENDANT J. GROVES: (Inaudible). 
SCIOTO, 20CA3904 20

DEFENDANT D. GROVES: If they find his body and if they 

find out where he had a broken arm and shit, we’re 

fucked. It don’t matter. 

DEFENDANT J. GROVES: They don’t know where he’s at. I 

don’t know where he’s at. 

{¶42} At some point, Groves agreed to take authorities to 

Dylan’s body. Detective Conkel also testified about a calendar 

found in the mobile home with a notation “Worse [sic.] day ever” on 

April 24, 2019, the date SCCS removed Daniel, Jr. 

{¶43} Daniel, Jr., the co-defendants’ 15-year old son, 

testified he first found out about appellant’s pregnancy “somewhere 

around in November” 2018. Before his April 24, 2019 removal from 

the home, Daniel, Jr. observed bruising and swelling on Dylan’s 

head, and, when he asked his parents what happened, Groves told him 

“about him getting a - - like a dream catcher stuck within his arm 

and him swinging a small tiny stone up to his head. I’m not sure 

if that caused the injury - - the swelling of his head. I don’t 

believe it was.” Daniel, Jr. also testified that every couple of 

months, he provided his urine to Groves, both before and after 

Dylan’s birth, and Groves then put the urine in a capped lid 

bottle. 

{¶44} At the close of the state’s case-in-chief, the trial 

court conducted a lengthy and thorough discussion with the codefendants and informed them about their right to testify or not to 
SCIOTO, 20CA3904 21

testify, and the consequences of either choice, including crossexamination about prior criminal offenses. After both codefendants informed the court that they wished to testify, 

appellant testified as follows: 

Q [Jessica’s Counsel Mr. Stratton]: Jessica, did you, and 

you only, cause the death of your son, Dylan Groves? 

A: Yes. 

Q: Did Daniel Groves participate in the killing of Dylan? 

A: No. 

Q: Was Daniel Groves aware of any of the injuries that 

you caused Dylan that may have led to his death? 

A: No. 

Q: Did you hide all the injuries that you caused Dylan 

from your husband? 

A: Yes. 

* * * 

Q: Jessica Groves, the injuries that Dylan sustained 

happened on what date? 

A: On March 27th. 

Q: Dylan died on what date? 

A: March 28th. 

* * * 

Q: Where did you take Dylan after he died? 

A: He was at our house for a couple days. 

Q: And then where did you take him? 
SCIOTO, 20CA3904 22

A: To the well. 

Q: Did you murder Dylan Groves? 

A: Not intentionally. 

{¶45} On cross-examination, the state asked appellant how she 

caused Dylan’s death, to which she replied, “[i]t was an accident.” 

When asked about the rib fractures, appellant replied, “by dropping 

him.” When asked about the skull fracture, appellant said, “I 

don’t remember. * * * It had to be from dropping him.” When asked 

about the upper arm fracture, appellant replied “Nothing that I 

ever did was intentional. * * * I have to live with this for the 

rest of my life. * * * You have devoured my family.” When pressed 

for details about how she caused Dylan’s death, appellant told the 

prosecutor, “I’ve admitted to my guilt. * * * And I have to live 

without - - my children. * * * I’m done talking to you.” At that 

point, the trial court admonished appellant that she must submit to 

cross-examination or her testimony would be stricken. Appellant 

then responded to most questions “I don’t remember.” Eventually, 

appellant did state that she did not have a clear mind “because of 

drugs,” and that Groves, her co-defendant, participated only in the 

preparation and concealment of Dylan’s body. 

{¶46} After Groves testified about his prior shoplifting 

conviction, he addressed the facts in the case at bar and stated 
SCIOTO, 20CA3904 23

that appellant first told him about her pregnancy in October or 

November 2019. About five minutes into their trip to the hospital 

for Dylan’s birth, appellant also told Groves that “she had been 

using drugs and that she had not went to her [prenatal] 

appointments.” According to Groves, he hesitated to answer medical 

questions at the hospital because he had not processed what he had 

just learned, and that appellant could be “intimidating.” Groves 

did say he visited Dylan once in the nursery and inquired about his 

health. Groves also claimed he was not impaired while at the 

hospital, but that he may have given that appearance because he had 

“been up for over 30 some hours straight.” Additionally, Groves 

testified that he provided his own urine sample at the hospital, 

but admitted that, on other occasions, he asked Daniel, Jr. for his 

urine, but always for a friend to use for drug tests. Groves 

explained the reason he did not give his urine to his friend is 

because he “smoked some marijuana and occasionally would hit - - 

smoke, you know a little.” Thus, Groves claimed he did not use his 

son’s urine to fake his own drug test. 

{¶47} Groves also testified that he recalled seeing bruises on 

Dylan’s head, but did not see swelling. Groves believed Dylan’s 

head bruise resulted from an accident with a dream catcher, and 

that the bruise appeared to be on Dylan’s forehead, not all around 
SCIOTO, 20CA3904 24

his head. Groves testified he did not cause Dylan’s death and he 

was not present when Dylan died. Instead, Groves said he found 

Dylan deceased in his crib. Groves also stated that, after 

appellant told him that because he had custody SCCS would blame him 

for Dylan’s death, he became scared and lied to law enforcement. 

Groves did admit, however, that he told Detective Conkel that he 

had “seen [appellant] hit him probably four times, probably,” * * * 

“because he wouldn’t stop crying and because she was so * * * 

agitated and aggravated and if I brought her coke [cocaine] she 

wouldn’t be that way.” Groves also admitted he told Conkel, “[o]ne 

time I saw her, she had a hold of him like below his arms. * * * 

Like by his ribs or something and she just kind of went ahh.” Once 

again, Groves said he did not tell the truth because he feared “he 

would get the blame for it completely.” 

{¶48} After hearing the evidence, the jury found appellant 

guilty of: (1) aggravated murder, in violation of R.C. 2903.01(C), 

an unclassified felony, (2) murder, in violation of R.C. 

2903.02(B), an unclassified felony, (3) kidnapping, in violation of 

R.C. 2905.01(A)(5), a first-degree felony, (4) child endangerment, 

in violation of R.C. 2919.22(A), a third-degree felony with a 

serious physical harm specification, (5) tampering with evidence, 

in violation of R.C. 2921.12(A)(1), a third-degree felony, (6) 
SCIOTO, 20CA3904 25

interference with custody, in violation of R.C. 2919.23(A)(1), a 

fourth-degree felony with a physical harm specification, (7) gross 

abuse of a corpse, in violation of R.C. 2927.01(B), a fifth-degree 

felony, and (8) four counts of felonious assault, in violation of 

R.C. 2903.11(A)(1), second-degree felonies. 

{¶49} At that point, the trial court: (1) merged Count 1 

aggravated murder, Count 2 murder, and Count 11 felonious assault, 

(2) merged Count 3 kidnapping and Count 6 interference with 

custody, and (3) merged Count 8 felonious assault and Count 10 

felonious assault. 

{¶50} For sentencing, the trial court imposed the following 

prison sentences: (1) life without parole for Count 1 aggravated 

murder, (2) ten years for Count 3 kidnapping, (3) 36 months for 

Count 4 endangering children, (4) 36 months for Count 5 tampering 

with evidence, (5) 12 months for Count 7 gross abuse of a corpse, 

(6) eight years for Count 8 felonious assault, and (7) eight years 

for Count 9 felonious assault. The court also ordered (1) Counts 5 

and 7 to be served concurrently, (2) Count 1, 2, 3, 4, 6, 8, 9, 10, 

and 11 to be served consecutively, and (3) five-year mandatory 

post-release control. 

{¶51} Consequently, the trial court sentenced appellant to 

serve an aggregate prison term of life without parole, plus an 
SCIOTO, 20CA3904 26

additional 32 years. This appeal followed3. 

I. 

{¶52} In her sole assignment of error, appellant asserts that 

her trial counsel’s performance fell below an objective standard of 

reasonable performance and representation. Appellant argues that, 

during the trial court proceeding, her counsel abdicated his role 

as her advocate and, instead, committed a series of baffling acts 

3 Co-defendant Daniel Groves’ appellate case number is 

20CA3902. At the conclusion of the trial, the jury found Daniel 

Groves not guilty of aggravated murder, but guilty of: (1) murder, 

in violation of R.C. 2903.02(B), an unclassified felony, (2) 

kidnapping, in violation of R.C. 2905.01(A)(5), a first-degree 

felony, (3) child endangerment, in violation of R.C. 2919.22(A), a 

third-degree felony with a serious physical harm specification, (4) 

tampering with evidence, in violation of R.C. 2921.12(A)(1), a 

third-degree felony, (5) interference with custody, in violation of 

R.C. 2919.23(A)(1), a fourth-degree felony with a physical harm 

specification, (6) gross abuse of a corpse, in violation of R.C. 

2927.01(B), a fifth-degree felony, and (7) four counts of felonious 

assault, in violation of R.C. 2903.11(A)(2), second-degree 

felonies. The trial court: (1) merged Count 2 murder and Count 11 

felonious assault, (2) merged Count 3 kidnapping and Count 6 

interference with custody, and (3) merged Count 8 felonious assault 

and Count 10 felonious assault. The court then imposed the 

following prison sentence (1) 15 years to life for Count 2 murder, 

(2) 10 years for Count 3 kidnapping, (3) 36 months for Count 4 

endangering children, (4) 36 months term for Count 5 tampering with 

evidence, (5) 12 months for Count 7 gross abuse of a corpse,(6) 

eight years for Count 8 felonious assault, (7) eight years for 

Count 9 felonious assault. The court further ordered: (1) the 

tampering with evidence and abuse of a corpse sentences to be 

served concurrently with each other, (2) the sentences in Counts 2, 

3, 4, 6, 8, 9, 10, and 11 to be served consecutively, and (3) a 

five year mandatory post-release control. Thus, the court 

sentenced Daniel Groves to serve an aggregate prison term of 47 
SCIOTO, 20CA3904 27

or omissions. In particular, appellant contends that, although 

counsel did act according to appellant’s wishes and appellant 

acknowledged her guilt in order to absolve her co-defendant husband 

of murder, she would have been in a better position had trial 

counsel simply not spoken a word during her trial. 

A. Trial Strategy 

{¶53} Appellant initially asserts that her trial counsel’s 

strategy fell below the realm of legitimate trial strategy. 

Specifically, appellant argues that her trial counsel “abandoned 

his role as an advocate for [appellant] and instead acted as 

another prosecutor in a misguided attempt to pin the blame of Dylan 

Groves’ death on appellant to save her codefendant, Daniel Groves.” 

{¶54} The Sixth Amendment to the United States Constitution, 

and Article I, Section 10 of the Ohio Constitution, provides that 

criminal defendants shall have the assistance of counsel for their 

defense. The United States Supreme Court has interpreted this 

provision to mean that a criminal defendant is entitled to the 

“reasonably effective assistance” of counsel. Strickland v. 

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

{¶55} To establish a claim of ineffective assistance of 

counsel, a defendant must show (1) counsel's deficient performance, 

years to life. 
SCIOTO, 20CA3904 28

and (2) the deficient performance prejudiced the defense and 

deprived the defendant of a fair trial. Id. at 687. To establish 

a deficient performance, a defendant must prove that counsel's 

performance fell below an objective level of reasonable 

representation. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, 848 N.E.2d 810, ¶ 95. Additionally, courts need not analyze 

both prongs of the Strickland test if a claim can be resolved under 

one prong. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 

N.E.2d 52 (2000); State v. Clark, 4th Dist. Pike No. 02CA684, 2003-

Ohio-1707, ¶ 17; State v. Blair, 4th Dist. Athens No. 18CA24, 2019-

Ohio-2768, ¶ 58; State v. Bowling, 4th Dist. Jackson No. 19CA2, 

2020-Ohio-813, ¶ 12-13. 

{¶56} When a court examines whether counsel's representation 

amounts to deficient performance, “a court must indulge a strong 

presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance.” Strickland at 689, 466 U.S. 

668, 104 S.Ct. 2052. Moreover, because a properly licensed 

attorney is presumed to execute their duties ethically and 

competently, State v. Taylor, 4th Dist. Washington No. 07CA11, 

2008-Ohio-482, ¶ 10, a defendant bears the burden to show 

ineffectiveness by demonstrating that counsel's errors were “so 

serious” that counsel failed to function “as the ‘counsel’ 
SCIOTO, 20CA3904 29

guaranteed * * * by the Sixth Amendment.” Strickland at 687, 466 

U.S. 668, 104 S.Ct. 2052. 

{¶57} In the case sub judice, appellant asserts that her trial 

counsel provided ineffective legal assistance, but it appears that 

counsel based his actions on a particular underlying strategy, a 

strategy to which appellant and her co-defendant husband explicitly 

agreed. 

{¶58} Generally, a defendant has no constitutional right to 

determine trial tactics and strategy of counsel. State v. Cowans,

87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999); State v. Conway, 108 

Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 150. Rather, 

decisions about viable defenses are the exclusive domain of defense 

counsel, after consultation with the defendant. Id.; State v. 

Crank, 5th Dist. Stark No. 2016CA00042, 2016-Ohio-7203, ¶ 18. 

“When there is no demonstration counsel failed to research the 

facts or the law or counsel was ignorant of a crucial defense, a 

reviewing court defers to counsel’s judgment in the matter.” Crank

at ¶ 18, citing State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 

1189 (1980). 

{¶59} At trial, witness presentation, questioning and crossexamination usually falls within the ambit of trial strategy. 

Debatable trial tactics do not generally establish ineffective 
SCIOTO, 20CA3904 30

assistance of counsel. State v. Hoffner, 102 Ohio St.3d 358, 2004-

Ohio-3430, 811 N.E.2d 48, ¶ 45. Further, even if the wisdom of an 

approach is questionable, debatable trial tactics do not constitute 

ineffective assistance of counsel. State v. Phillips, 74 Ohio 

St.3d 72, 85, 656 N.E.2d 643 (1995). 

{¶60} Appellant cites State v. Burgins, 44 Ohio App.3d 158, 542 

N.E.2d 707 (4th Dist.1988) to support her argument that the events 

that transpired in the case at bar should not be viewed as 

appropriate trial strategy. Convicted of theft, Burgins argued he 

did not receive effective assistance of counsel when, during 

closing argument, counsel stated that even he did not believe 

Burgins, and that he expected the jury to find Burgins guilty. 

This court held that when a defendant’s counsel in a criminal case 

tells the jury that counsel does not believe counsel’s own client, 

and that counsel also expects the jury to return a guilty verdict, 

the defendant has been denied the effective assistance of counsel. 

Although defense tactics, and even ineffective defense tactics, are 

usually not considered grounds for reversal, when such a deviation 

from the norm occurs that ordinary trial counsel would scoff at 

hearing of it, a reviewing court may reverse a guilty verdict and 

order a new trial. 

 
SCIOTO, 20CA3904 31

{¶61} Appellee, however, points to State v. May, 1st Dist. 

Hamilton No. C-070290, 2008-Ohio-1731. In May, the defendant had 

been charged with both aggravated robbery and robbery, but after 

counsel stipulated to May’s guilt on the robbery charge, the jury 

found May guilty of robbery, but not guilty of aggravated robbery. 

On appeal, May argued he received ineffective assistance. The 

First District held, however, that unlike Burgins, nothing in the 

record suggested that May planned to maintain his innocence. May

at ¶ 9. Thus, even if May’s attorney’s stipulations arguably 

constituted error, because overwhelming evidence of guilt existed, 

the trial’s outcome would not have changed, even absent the 

stipulations. Consequently, the court concluded that no prejudice 

occurred. Id. at ¶ 10. 

{¶62} Appellee also points out that in State v. McGlone, 4th 

Dist. Scioto No. 90CA1910, 1992 WL 50021 (Mar.11, 1992), counsel 

admitted guilt on a minor offense to make more credible his 

proclamations of innocence on the more serious offenses. Thus, 

appellee contends that the instant case is more similar to May and 

McGlone than Burgins because, although appellant’s counsel’s 

opening statement admitted her guilt, counsel had “the primary goal 

of attempting to exonerate Daniel Groves from the Aggravated 

Murder, Murder, and Felonious Assault counts.” Appellee further 
SCIOTO, 20CA3904 32

points out that this strategy ultimately proved to be successful 

because the jury did, in fact, find appellant’s husband codefendant not guilty of aggravated murder. In addition, like May, 

nothing in the record suggests that appellant planned to maintain 

her innocence. In fact, appellant openly stated her intention to 

concede guilt in an attempt to help her husband. 

{¶63} As appellee further notes, appellant’s trial counsel 

stated during the December 18, 2019 pretrial: “MR. STRATTON: Your 

Honor, just as mentioned in chambers, that the one issue that we 

will address before opening statements at trial. THE COURT: I will 

- I’ll ask you to remind me of that before - - before we give 

openings after - - once we have a jury selected.” At the beginning 

of the trial, appellant’s counsel stated, “My client has indicated 

to me that she intends to testify and that my opening statement and 

the statements through questioning will have to do with that 

testifying, and that she wants me to proceed accordingly.” 

{¶64} Thereafter, the trial court explained to appellant her 

right to testify or not to testify, the implications of both, and 

that she could change her mind. Appellant stated that she 

understood the trial court’s advisements, had consulted with 

counsel about her wishes, and had no questions: 
SCIOTO, 20CA3904 33

THE COURT: All right. Now, early on in this case during 

some pretrial hearings we had some discussions here in 

the courtroom about whether to try these cases together 

or to try them separately. Do you remember those 

pretrial hearings we had on that, Ms. Groves? 

DEFENDANT J. GROVES: I do. 

THE COURT: And we discussed a case here in the courtroom 

called Bruton, which deals with the issues of statements 

from codefendants in cases, and those statements being 

offered where they implicate a codefendant where someone 

doesn’t testify. Do you remember those discussions? 

DEFENDANT J. GROVES: I do. 

THE COURT: And do you feel like you understood that when 

we discussed that? 

 

DEFENDANT J. GROVES: Yes, Your Honor. 

TRIAL COURT: Do you understand that if - - if you do 

testify in this matter, and I can tell you I - - I’m not 

trying to influence you one way or the other. This is 

solely your decision. But do you understand that if you 

do choose to testify then some of those statements that 

the State is indicating that they would not be using in 

this trial may then come into evidence? Do you 

understand that? 

DEFENDANT J. GROVES: Yes, Your Honor. 

THE COURT: And that would be - - well, we’d probably have 

a hearing to determine what or what extent those 

statements came in. But do you have any questions for me 

concerning this issue? 

DEFENDANT J. GROVES: No, Your Honor, I don’t. 

THE COURT: Do you feel like you understand the issues and 

do you feel like you have information to make that 

decision? 
SCIOTO, 20CA3904 34

DEFENDANT J. GROVES: Yes, Your Honor. 

THE COURT: All right. And, ma’am, do you understand that 

the decision whether to testify or you don’t testify is 

solely your decision? 

DEFENDANT J. GROVES: Yes, I do. 

Appellant’s trial counsel then gave opening statement as follows: 

 * * * 

My client, Jessica Groves, was, and still is, a drug 

addict. There is no doubt about that fact. She and she 

alone, caused the injuries to Dylan Groves, which lead to 

his death. She murdered Dylan Groves. She will testify 

that she murdered Dylan Groves. She will testify to the 

injuries that she caused to Dylan Groves. The two inch 

fracture on the skull, the one inch fracture on the 

skull, the half inch laceration on the left arm, fracture 

of the left humerus, fracture of the left radius and 

ulna, red contusion on the right side of the chest, 

healed rib fractures and the drugs in Baby Dylan’s 

system, these are the injuries caused to Dylan Groves by 

Jessica Groves. 

Finally, you might ask why put everybody through this 

ordeal? Why put everybody through this trauma? The 

answer is because she’s going to do the right thing right 

now. And that right thing is to take personal 

responsibility for her crimes and sins. And that right 

thing also is to protect and defend an innocent man. 

* * * Daniel Groves had nothing to do with the death of 

Dylan Groves, and he did not cause these injuries. He 

was foolishly unaware of these injuries. And I say 

foolishly because hindsight is always 20/20, and 

sometimes you’re oblivious to what’s going on. This is 

especially true for someone that you have loved. 

Dylan Groves died on March 28th, and Daniel found him 

unresponsive. Once he found him panic and confusion set 
SCIOTO, 20CA3904 35

in. And with that panic and confusion came poor decision 

and that we saw - saw here today. Did he help hide the 

body? Yes. Did he suggest the well? Yes. He knew 

where this well was. Did he help craft the coffin and 

preserve Dylan? Yes he did. But that is all he did. 

Jessica Groves is the person responsible for the death of 

Dylan Groves. She is here in front of you today taking 

personal responsibility for her crimes, and her sins. 

Thank you, Your Honor. 

Appellant’s co-defendant husband’s counsel’s gave opening statement 

as follows: 

 * * * 

[W]e would argue and support that position in this matter 

that Ms. Groves is the principal perpetrator in this 

matter, and this is - - and the position that has 

actually been held by the State in this case since this 

case was arraigned right here in this courtroom. 

* * * 

That will be the position that Mr. Groves will hold. 

That is the position that actually Jessica Groves is 

going to own in this matter, as you’ve heard from the 

opening statement. 

* * * 

Ladies and Gentlemen, you heard my co-counsel in this 

matter the - - Mr. Stratton, who’s representing Mrs. 

Groves talk about how my client participated in helping 

her dispose the body. You heard Ms. Hutchinson set up 

here and tell you that my client actually after some 

misconception that he did lead the law enforcement agency 

to the recovery of Dylan’s body. But that’s it, Ladies 

and Gentlemen, he only helped dispose of the body. He 

did eventually cooperate with the police, because he 

couldn’t lie about it anymore. 
SCIOTO, 20CA3904 36

 * * * 

And I believe you will hear law enforcement come in and 

talk to you about that. 

He led them to where Dylan had been placed. He did not 

cause the - - his death. He never kidnapped him. He 

never caused his death. He ever [sic.] endangered him. 

He never interfered with custody. He never caused harm 

to this child. He cannot be the source of felonious 

assault that he has also been charged with. And that’s 

what I want you to listen for. Either that’s going to be 

proven or not proven throughout this case. And it is our 

position that that will not be proven by the State. That 

will be accounted for by the actions of Jessica Groves, 

and she is going to own all of those actions and she will 

tell you in her own words, or we anticipate her telling 

you in her own words, how - - whether you call it my 

client was blind, whether you call it that he was 

foolishly unaware as Mr. Stratton pointed out, he may 

have been, Ladies and Gentlemen, but he had no knowledge. 

He had no participation. And he was not the source of 

the injuries that resulted in Dylan’s death. 

{¶65} After appellant’s counsel’s opening statement and 

admission that appellant alone caused Dylan’s death, and 

acknowledgment that appellant’s co-defendant husband did not 

participate or cause Dylan’s death, the following exchange 

occurred: 

THE COURT: Ms. Groves, you’ve heard your lawyers opening 

statement in this matter; is that correct? 

DEFENDANT J. GROVES: Yes, Your Honor. 

THE COURT: All right. We had some discussions this 

morning about your ultimate defense strategy in this 

matter. Was that consistent with your strategy as you 

intend to present your defense in this matter? 
SCIOTO, 20CA3904 37

DEFENDANT J. GROVES: Yes, Your Honor. 

THE COURT: All right. Have you had plenty of opportunity 

to consult with him about this strategy? 

DEFENDANT J. GROVES: Yes, I have, Your Honor. 

THE COURT: You understand that the State still has to 

prove their case in this matter, regardless of his 

opening statement? But do you understand that 

potentially that - - at least in some respects in this - 

- Some count of this indictment could - - could harm your 

chances as to an ultimate outcome. Do you understand 

that? 

DEFENDANT J. GROVES: Yes, sir. 

THE COURT: And you’ve contemplated this before you’ve 

proceeded with this strategy; is that correct? 

DEFENDANT J. GROVES: Yes, sir. 

As the appellee points out, appellant and her co-defendant both 

urged their counsel to employ this particular strategy so that 

appellant could admit culpability for Dylan’s death, and to allow 

her husband co-defendant to only admit that he helped to conceal 

Dylan’s body. 

{¶66} The right to effective assistance of counsel also extends 

to opening and closing arguments. Yarborough v. Gentry, 540 U.S. 

1, 5–7, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003); Bell v. Cone, 535 U.S. 

685, 701–02, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). As appellee 

notes, as a general matter both the prosecution and the defense 
SCIOTO, 20CA3904 38

have “wide latitude during opening and closing arguments.” State 

v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, ¶ 22, 

citing State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio3109, ¶ 33, Sunbury v. Sullivan, 5th Dist Delaware No. 11CAC030025, 

2012-Ohio-3699, ¶ 30; McLeod v. Mt. Sinai Med. Ctr., 166 Ohio 

App.3d 647, 2006-Ohio-2206, 852 N.E.2d 1235, ¶ 30 (reversed in part 

by Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio5587, 876 N.E.2d 1201), citing Presley v. Hammack, 7th Dist. 

Jefferson No. 02 JE 28, 2003-Ohio-3280. 

{¶67} In general, only in cases “ ‘[w]here gross and abusive 

conduct occurs, is the trial court bound, sua sponte, to correct 

the prejudicial effect of counsel's misconduct.’ ” (Emphasis 

omitted.) Pesek v. Univ. Neurologists Assn., Inc., 87 Ohio St.3d 

495, 501, 721 N.E.2d 1011 (2000), quoting Snyder v. Stanford, 15 

Ohio St.2d 31, 37, 238 N.E.2d 563 (1968), superceded by rule on 

other grounds as stated in King v. Branch Motors Express Co., 70 

Ohio App.2d 190, 197, 435 N.E.2d 1124 (2d Dist.1980). “Moreover, 

counsel's behavior has to be of such a reprehensible and heinous 

nature that it constitutes prejudice before a court can reverse a 

judgment because of the behavior.” McLeod at ¶ 31, citing Hunt v. 

Crossroads Psych. & Psychological Ctr., 8th Dist. Cuyahoga No. 

79120, 2001 WL 1558574 (Dec. 6, 2001); Kubiszak v. Rini's 
SCIOTO, 20CA3904 39

Supermarket, 77 Ohio App.3d 679, 688, 603 N.E.2d 308 (8th 

Dist.1991); Redlin v. Rath, 6th Dist. Lucas No. L–06–1144, 2007-

Ohio-2540, ¶ 44. 

{¶68} In the case sub judice, appellant does not claim that at 

trial she disagreed with, or objected to, her counsel's strategy to 

concede guilt during opening statement, which is a requirement for 

her argument that reversible error occurred. State v. Froman, 162 

Ohio St.3d 435, 2020-Ohio-4523, ¶ 142, citing McCoy v. Louisiana, 

__ U.S.__, 138 S.Ct. 1500, 1511, 200 L.Ed.2d 821 (2018). For 

example, in McCoy, supra, the U.S. Supreme Court examined a 

defendant’s right to control his or her defense. In McCoy, defense 

counsel conceded the defendant’s guilt several times throughout the 

trial, despite the defendant’s repeated objections. The court held 

that under the Sixth Amendment, a defendant retains the autonomy to 

decide that the defense objective is to assert innocence, much like 

the decisions “whether to plead guilty, waive the right to a jury 

trial, testify in one’s own behalf, and to forego an appeal.” 138 

S.Ct. at 1508. 

{¶69} The McCoy court also distinguished Florida v. Nixon, 543 

U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), when the defendant 

remained silent and did not object to counsel’s strategy to concede 

guilt. McCoy, however, clearly opposed counsel’s strategy to 
SCIOTO, 20CA3904 40

concede guilt and made this known “before and during trial, both in 

conference with his lawyer and in open court.” McCoy, 138 S. Ct. 

at 1509. Additionally, the prejudicial error analysis under 

Strickland v. Washington for counsel’s ineffective assistance did 

not apply because this issue concerned the client’s autonomy, not 

counsel’s competence. Consequently, because a McCoy-type violation 

constitutes structural error, a defendant need not show prejudice. 

In the case at bar, however, we recognize that appellant chose to 

remain silent about her trial strategy. Moreover, when asked to 

expressly acknowledge to the trial court her approval of this 

particular strategy, she did so. However, apparently in retrospect 

appellant now opposes this strategy. Although this strategy may 

appear to be unusual, it nevertheless conformed to the appellant’s 

wishes and sought to achieve her goal to help her co-defendant 

husband avoid a murder conviction. 

{¶70} Appellant also cites State v. Owens, 81 Ohio App.3d 412, 

416-417, 611 N.E.2d 369 (4th Dist.1992) in support. Owens involved 

DNA typing admissibility for a defendant charged with rape. On the 

day of trial, defense counsel, who did not subpoena his expert 

witness, requested a continuance because he could not locate his 

expert and he argued he could not go forward without the expert. 

After the court denied counsel’s motion for a continuance and 
SCIOTO, 20CA3904 41

motion to withdraw, counsel moved for a mistrial on the grounds of 

his own ineffective assistance. The court, however, denied the 

motion, but counsel told the court he would present no witnesses 

for the defense and rested. Id. We, however, believe Owens is 

inapplicable to the case at bar. In the case sub judice, the trial 

court openly, fully and repeatedly discussed and questioned 

appellant and her co-defendant regarding their satisfaction with 

counsel, their ability to communicate with counsel, their 

opportunity to view discovery and the evidence against them, and 

their opportunity to discuss their cases with counsel. In fact, 

the court reviewed these issues multiple times at pretrial hearings 

on August 1, August 28, October 30, and December 18, 2019. 

Further, at the start of the trial, appellant’s counsel stated, “My 

client has indicated to me that she intends to testify and that my 

opening statement and the statements through questioning will have 

to do with that testifying, and that she wants me to proceed 

accordingly.” Once again, the trial court fully discussed with 

appellant her options and decisions, including whether appellant 

and her co-defendant understood their right to testify or not to 

testify, and that they could change their decision. Moreover, 

before appellant took the stand, she again indicated that she 

understood the ramifications of her testimony. 
SCIOTO, 20CA3904 42

{¶71} Appellant, now, in retrospect, believes that she should 

have employed a different trial strategy. Although appellant’s 

strategy to admit to the commission of a murder in an attempt to 

exonerate her co-defendant husband may, in hindsight, be viewed as 

a questionable trial strategy, an attorney who defers to a client’s 

wishes does not generally render ineffective assistance. State v. 

Reine, 4th Dist. Scioto No. 06CA3102, 2007-Ohio-7221, citing State 

v. Roberts, 110 Ohio St.3d 71, 2005-Ohio-3665, 850 N.E.2d 1168, ¶ 

148; State v Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 

285, ¶ 100; Cowans, 87 Ohio St.3d at 81; see e.g., State v. Keith, 

79 Ohio St.3d 514, 536, 684 N.E.2d 47 (1997) (deferring to client’s 

desire not to present mitigation during penalty phase does not 

constitute ineffective assistance). 

{¶72} The deficient performance portion of an ineffectiveness 

claim “is necessarily linked to the practice and expectations of 

the legal community: ‘The proper measure of attorney performance 

remains simply reasonableness under prevailing professional norms.’ 

” Padilla v. Kentucky, 559 U.S. 356, 366, 130 S.Ct. 1473, 176 

L.Ed.2d 284 (2010), quoting Strickland, 466 U.S. at 688; accord

Hinton v. Alabama, 571 U.S. 263, 272-273, 134 S.Ct. 1081, 188 

L.Ed.2d 1 (2014); accord State v. Bradford, 4th Dist. Adams No. 

20CA1109, 2020-Ohio-4563, ¶ 18. Prevailing professional norms 
SCIOTO, 20CA3904 43

dictate that “a lawyer must have ‘full authority to manage the 

conduct of the trial.’ ” State v. Pasqualone, 121 Ohio St.3d 186, 

2009-Ohio-315, 903 N.E.2d 270, ¶ 24, quoting Taylor v. Illinois, 

484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). 

{¶73} Moreover, and critical to this analysis, courts should 

not simply assume the existence of prejudice but, instead, require 

that prejudice be affirmatively shown. Reine at ¶ 41, citing State 

v. Hairston, 4th Dist. Scioto No. 06CA2089, 2007-Ohio-3707, citing 

State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 22. 

Thus, even if, for purposes of argument, we believe that counsel’s 

actions in the case sub judice could be viewed as somewhat 

misguided, we also cannot conclude that, but for counsel’s errors, 

the result of the trial would have been different. Although a 

strategy that includes appellant’s admission that she alone caused 

Dylan’s death could be viewed, in hindsight, as unwise, the second 

prong of Strickland requires a defendant to establish prejudice. 

To do so, a defendant must demonstrate that a reasonable 

probability exists that “ ‘but for counsel's errors, the result of 

the proceeding would have been different. A reasonable probability 

is a probability sufficient to undermine the outcome.’ ” Hinton, 

571 U.S. at 275, quoting Strickland, 466 U.S. at 694; Bradford, 4th 

Dist. Adams No. 20CA1109, 2020-Ohio-4563, at ¶ 21; State v. Short, 
SCIOTO, 20CA3904 44

129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State 

v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph 

three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d 

378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component 

requires a “but for” analysis). 

{¶74} Thus, “ ‘the question is whether there is a reasonable 

probability that, absent the errors, the factfinder would have had 

a reasonable doubt respecting guilt.’ ” Hinton, 571 U.S. at 275, 

quoting Strickland, 466 U.S. at 695. As noted above, courts should 

not simply presume the existence of prejudice but, instead, must 

require a defendant to affirmatively establish prejudice. Bradford 

at ¶ 21; Clark at ¶ 22; State v. Tucker, 4th Dist. Ross No. 

01CA2592, 2002 WL 507529 (Apr. 2, 2002). Moreover, as courts 

repeatedly recognize, speculation is insufficient to establish the 

prejudice component of an ineffective assistance of counsel claim. 

Bradford, supra; State v. Tabor, 4th Dist. Jackson No. 16CA9, 2017-

Ohio-8656, ¶ 34; State v. Jenkins, 4th Dist. Ross No. 13CA3413, 

2014-Ohio-3123, ¶ 22; State v. Simmons, 4th Dist. Highland No. 

13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley, 4th Dist. Gallia No. 

10CA13, 2012-Ohio-1625, ¶ 25; State v. Leonard, 4th Dist. Athens 

No. 08CA24, 2009-Ohio-6191, ¶ 68; accord State v. Powell, 132 Ohio 

St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (purely speculative 
SCIOTO, 20CA3904 45

argument cannot serve as the basis for ineffectiveness claim). 

{¶75} In the case sub judice, our review of the evidence 

adduced at trial reveals that appellee presented 20 witnesses and 

79 exhibits. The jury heard, inter alia, that: (1) appellant 

lacked prenatal care for Dylan because of drug use, (2) appellant 

was under the influence of drugs when she arrived at the hospital, 

(3) appellant did not comply with hospital staff requests, (4) 

appellant’s hospital test results revealed the presence of 

methamphetamines, fentanyl, and opiates, (5) Dylan’s umbilical cord 

tested positive for amphetamines, methamphetamines, fentanyl, 

opiates and morphine, (6) appellant showed little interest in Dylan 

at the hospital, (7) appellant did not comply with the SCCS case 

plan, (8) appellant failed to follow through with drug treatment, 

(9) appellant fled from law enforcement, (10) appellant lied to 

investigators, (11) Dylan, while born with neonatal abstinence 

syndrome, was otherwise healthy when he left the hospital, (12) 

Dylan was a victim of blunt force trauma and his cause of death was 

“homicidal violence of undetermined etiology,” and (13) appellant 

and her co-defendant discussed during a jailhouse conversation the 

location and condition of Dylan’s body. 

{¶76} Consequently, after our review of the evidence adduced at 

trial, including the witness testimony and physical evidence, we do 
SCIOTO, 20CA3904 46

not believe that appellant satisfied her burden to show that a 

reasonable probability exists that, absent the alleged errors, 

trial counsel’s performance changed the trial’s outcome and the 

jury would have had a reasonable doubt about appellant’s guilt. 

B. Errors and Omissions 

{¶77} In addition to the challenge of trial counsel’s trial 

strategy to admit guilt, appellant further contends that her trial 

counsel made several other significant errors that prejudiced her. 

1. Failure to Obtain and Request Investigative 

Services 

{¶78} Appellant asserts that trial counsel unreasonably failed 

to request investigative services, to which she is entitled in an 

aggravated murder case pursuant to R.C. 2929.024. The version of 

R.C. 2929.024 in effect at the time of appellant’s trial stated: 

If the court determines that the defendant is indigent 

and that investigation services, experts, or other 

services are reasonably necessary for the proper 

representation of a defendant charged with aggravated 

murder at trial or at the sentencing hearing, the court 

shall authorize the defendant's counsel to obtain the 

necessary services for the defendant, and shall order 

that payment of the fees and expenses for the necessary 

services be made in the same manner that payment for 
SCIOTO, 20CA3904 47

appointed counsel is made pursuant to Chapter 120. of the 

Revised Code. * * * 

{¶79} “R.C. 2929.024 requires trial judges to grant funds in 

aggravated murder cases for investigative services and experts when 

‘reasonably necessary for the proper representation’ of indigent 

defendants. Such decisions are to be made ‘in the sound discretion 

of the court’ based upon ‘(1) the value of the expert assistance to 

the defendant’s proper representation * * * and (2) the 

availability of alternative devices that would fulfill the same 

functions.’” State v. Mason, 82 Ohio St.3d 144, 150, 694 N.E.2d 

932 (1998), citing Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264, 

paragraph four of the syllabus. Consequently, “due process, as 

guaranteed by the Fifth and Fourteenth Amendments to the United 

States Constitution and Section 16, Article I of the Ohio 

Constitution, requires that an indigent criminal defendant be 

provided funds to obtain expert assistance at state expense only 

where the trial court finds, in the exercise of a sound discretion, 

that the defendant has made a particularized showing (1) of a 

reasonable probability that the requested expert would aid in his 

defense, and (2) that denial of the requested expert assistance 

would result in an unfair trial.” Id. 
SCIOTO, 20CA3904 48

{¶80} In the case sub judice, and as appellee points out, 

appellant does not raise specific points or arguments about what 

particular investigative services would have been reasonably 

necessary. Instead, appellant argues that her “fundamental rights 

were violated when trial counsel inexplicably failed to request any 

funding to seek investigative assistance in this matter.” We, 

however, disagree. Here, appellant did not demonstrate a 

particularized need for assistance and did not establish that any 

denial of expert assistance resulted in an unfair trial. Moreover, 

as we point out in other portions of this opinion, we also believe 

that the evidence of appellant’s guilt adduced at trial in this 

case is overwhelming. 

{¶81} Therefore, in view of the foregoing reasons, we disagree 

with appellant’s contention that trial counsel’s failure to seek 

investigative assistance denied appellant her constitutional or 

statutory rights. 

2. Failure to Sever 

{¶82} Appellant also asserts that despite prejudicial joinder 

with her co-defendant’s trial, her trial counsel did not request a 

separate trial. However, as this court wrote in State v. Evans,
SCIOTO, 20CA3904 49

4th Dist. Scioto No. 08CA3268, 2010-Ohio-2554, ¶ 41, as a general 

rule the law favors the joinder of defendants and the avoidance of 

multiple trials because it “ ‘conserves judicial and prosecutorial 

time, lessens the not inconsiderable expenses of multiple trials, 

diminishes inconvenience to witnesses, and minimizes the 

possibility of incongruous results in successive trials before 

different juries.’ ” State v. Daniels, 92 Ohio App.3d 473, 484, 

636 N.E.2d 336 (1st Dist.1993), quoting State v. Thomas, 61 Ohio 

St.2d 223, 225, 400 N.E.2d 401 (1980); see also State v. Goodner,

195 Ohio App.3d 636, 2011-Ohio-5018, 961 N.E.2d 254, ¶ 39, citing 

State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d 661 (1992); State 

v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). 

{¶83} To establish that a trial court’s refusal to sever a 

trial constitutes reversible error, a defendant must show: “(1) 

that his rights were prejudiced, (2) that at the time of the motion 

to sever, he provided the trial court with sufficient information 

so that it could weigh the considerations favoring joinder against 

the defendant's right to a fair trial, and (3) given the 

information provided to the court, it abused its discretion in 

refusing to separate the charges for trial.” Schaim, 65 Ohio St.3d 

at 59, citing Torres, 66 Ohio St.2d 340 at syllabus; Evans at ¶ 42. 

A trial court abuses its discretion when it acts unreasonably, 
SCIOTO, 20CA3904 50

arbitrarily, or unconscionably. Adams, supra, at 157. However, a 

trial court’s refusal to grant a severance request does not 

constitute an abuse of discretion when the prejudicial aspects of 

joinder are too general and speculative. Evans at ¶ 42, citing 

State v. Payne, 10th Dist. Franklin No. 02AP–723, 02AP-725, 2003–

Ohio–4891. 

{¶84} In the case sub judice, appellant complains that her 

trial counsel did not move to sever her case from her codefendant’s case and that the “benefits of such a motion are 

immediately apparent.” Appellant contends that, if the court had 

severed the cases, defense counsel could have argued that appellee 

could not prove who caused Dylan’s injuries. However, we once 

again recognize that appellant and her co-defendant explicitly 

expressed to counsel and to the court their wishes concerning their 

respective cases and their trial strategy. As we previously 

discussed, the court fully advised appellant before the trial 

began: 

THE COURT: All right. Now, early on in this case during 

some pretrial hearings we had some discussions here in 

the courtroom about whether to try these cases together 

or to try them separately. Do you remember those 

pretrial hearings we had on that, Ms. Groves? 

DEFENDANT J. GROVES: I do. 

THE COURT: And we discussed a case here in the courtroom 
SCIOTO, 20CA3904 51

called Bruton, which deals with the issues of statements 

from codefendants in cases, and those statements being 

offered where they implicate a codefendant where someone 

doesn’t testify. Do you remember those discussions? 

DEFENDANT J. GROVES: I do. 

THE COURT: And do you feel like you understood that when 

we discussed that? 

DEFENDANT J. GROVES: Yes, Your Honor. 

* * * 

THE COURT: Ms. Scott, Mr. Stratton, do you have any 

issues on this Bruton issue? We discussed it pretty 

thoroughly at the pretrial hearings when we decided 

whether to try these cases together or separately? 

Anything further, Ms. Scott? 

MS. SCOTT: Not at this time, Your Honor. I believe that 

we have either addressed or discussed the issues and 

ruled any conflicts out at this time. Thank you. 

THE COURT: Mr. Stratton? 

MR. STRATTON: No issues, Your Honor. 

THE COURT: All right. I am going to order the no - - at 

this point no statement be played to the jury that would 

implicate a codefendant. We may readdress that ruling 

depending on what Defense portion of this case would look 

like. 

{¶85} In State v. Rosen, 151 Ohio St. 339, 86 N.E.3d 24 (1949), 

different counsel represented the defendants, as in the case at 

bar, but their defenses were antagonistic. The court held, 

“[w]here it is disclosed, preceding the trial of codefendants 

jointly charged with the commission of a felony, that a signed 
SCIOTO, 20CA3904 52

confession by one of the defendants, made in the absence of his 

codefendants, will be put in evidence, which confession contains 

statements showing the guilt of a codefendant, and based thereon an 

application for separate trial is duly made by that codefendant, it 

is the duty of the trial court either to grant the application or 

to order the prejudicial matter withheld or deleted before 

admitting the confession in evidence.” Rosen at syllabus. 

{¶86} As noted above, however, Rosen involved defendants with 

mutually antagonistic defenses. Generally, defenses are mutually 

antagonistic when each defendant attempts to exculpate himself or 

herself and inculpate his or her co-defendant. Daniels, 92 Ohio 

App.3d at 486, 636 N.E.2d 336. In the case at bar, however, 

appellant and her co-defendant did not advance mutually 

antagonistic defenses. Instead, they agreed, as their expressed 

trial strategy, that appellant alone would admit that she caused 

Dylan’s death, and her co-defendant husband would admit only to his 

participation in the disposal of Dylan’s body. 

{¶87} Further, even if the defenses appeared, for the purposes 

of argument, to be mutually antagonistic, mutually antagonistic 

defenses are not prejudicial per se. Evans, 4th Dist. Scioto No. 

08CA3268, 2010-Ohio-2554, ¶ 43, citing Zafiro v. U.S., 506 U.S. 

534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Instead, to 
SCIOTO, 20CA3904 53

demonstrate prejudice that results from mutually antagonistic 

defenses, “the defenses must be antagonistic to the point of being 

irreconcilable and mutually exclusive.” State v. Walters, 10th 

Dist. Franklin No. 06AP–693, 2007–Ohio–5554, at ¶ 23, citing U.S. 

v. Berkowitz, 662 F.2d 1127, 1133 (5th Cir.1981). The essence or 

core of the defenses must conflict, such that the jury, in order to 

believe the core of one defense, must necessarily disbelieve the 

core of the other. Walters at ¶ 23. 

{¶88} In the case sub judice, we recognize that both appellant 

and her co-defendant testified at trial, and that the essence of 

their testimony, that appellant alone caused Dylan’s death and her 

co-defendant husband participated only in concealing Dylan’s body, 

is not in conflict. Thus, we cannot conclude that counsel’s 

failure to request to sever the cases constitutes ineffective 

assistance. As stated above, the trial court fully, openly and 

thoroughly discussed with the parties their desired trial strategy 

to ensure that they fully understood the ramifications of their 

plan. Although unusual, trial counsel did obey his client’s wishes 

in light of the trial court’s numerous warnings and admonitions 

that, once again, fully informed the parties of the consequences of 

their strategy. 
SCIOTO, 20CA3904 54

{¶89} Additionally, even without appellant’s, or her codefendant’s, testimony, the jury would have heard testimony and 

evidence that (1) appellant lacked prenatal care for Dylan due to 

drug use, (2) appellant was under the influence of drugs when she 

arrived at the hospital, (3) appellant did not cooperate with 

hospital staff, (4) appellant’s test results revealed a positive 

test for methamphetamines, fentanyl, and opiates, (5) Dylan’s 

umbilical cord was positive for amphetamines, methamphetamines, 

fentanyl, opiates and morphine, (6) appellant showed little 

interest in Dylan at the hospital, (7) appellant did not comply 

with the SCCS case plan, (8) appellant failed to complete drug 

treatment, (9) appellant fled from law enforcement, (10) appellant 

lied to investigators, (11) Dylan, while born with neonatal 

abstinence syndrome, was otherwise healthy when he left the 

hospital, a (12) Dylan was a victim of blunt force trauma and his 

cause of death was “homicidal violence of undetermined etiology,” 

and (13) appellant and her co-defendant husband discussed during a 

jailhouse conversation the location and condition of Dylan’s body. 

{¶90} After our review, and in light of the foregoing, we 

conclude that appellant did not establish that she suffered 

prejudice from the joint trial and from counsel’s failure to file a 

motion to sever appellant’s trial from the trial of her co-
SCIOTO, 20CA3904 55

defendant. 

 

 3. Counsel’s Assistance in Preparing 

 Appellant’s Testimony 

{¶91} Appellant asserts that, in spite of trial counsel’s 

opening statement that appellant alone caused Dylan’s death and 

that she takes full responsibility for her actions, at trial and 

during appellant’s testimony, she nevertheless appeared to be 

“unprepared to answer the most basic question as to how she caused 

any injuries to her child.” 

{¶92} In support of her argument, appellant cites State v. 

Ikharo, 10th Dist. Franklin No. 02AP-632, 2003-Ohio-2319. In 

Ikharo, the defendant, charged with one count of burglary, heard 

counsel’s opening statement that Ikharo had nothing to hide and 

would indeed testify, in spite of his prior criminal convictions. 

Apparently, no physical evidence existed of forcible entry and the 

evidence adduced at trial was not otherwise overwhelming. Ikharo, 

however, chose not to testify and the jury found him guilty. The 

Tenth District determined that Ikharo established counsel’s 

deficient performance because counsel disclosed Ikharo’s prior 

convictions during opening statement when, in fact, Ikharo 
SCIOTO, 20CA3904 56

subsequently chose not to testify. Id. at ¶ 18. Consequently, the 

court concluded that in light of the less than overwhelming 

evidence adduced at trial, a reasonable probability existed that 

the results of Ikharo’s trial would have been different because the 

“evidence adduced at trial was not sufficient enough to outweigh 

defense counsel’s deficient performance.” Id. at ¶ 21. However, 

unlike Ikharo, after our review in the case at bar we believe that 

the evidence of appellant’s guilt is overwhelming. 

{¶93} Appellant also now appears to argue that at trial, she 

did not actually take full responsibility for her crimes, as trial 

counsel had promised. However, appellant did testify, in essence, 

in the manner that counsel laid out during opening statement. 

Although appellant’s testimony may have been somewhat less than 

forthcoming, appellant did testify that she caused Dylan’s death 

and helped her co-defendant husband conceal Dylan’s body. On 

cross-examination, appellant did appear to be somewhat evasive or 

reticent in providing details concerning her actions with Dylan, 

and then stated it was “an accident,” “not intentional,” or “by 

dropping him.” Shortly thereafter, appellant stated she was “done 

talking to you [the prosecutor],” accused appellee of “devouring” 

her family, and stated, “I’ve admitted to my guilt.” During a 

bench conference, trial counsel stated, “Your Honor, I’ve told her 
SCIOTO, 20CA3904 57

to answer truthfully and answer the questions, that she does - - 

does not have a right to - - to not answer questions while she 

takes the stand.” Later, appellant testified that she did not 

recall details because “my mind wasn’t clear * * * because of 

drugs.” Appellant also admitted she wrapped Dylan in six layers of 

plastic and admitted that her co-defendant husband helped her, and 

that she and her co-defendant husband drove Dylan to the well on 

their four-wheeler, “[w]e put him in the well and we sit in the 

field and cried.” 

{¶94} Although at trial appellant may have appeared to be 

uncooperative, and apparently refused to fully answer certain 

questions about various details concerning Dylan’s injuries and 

death, she did, however, admit that she caused Dylan’s death and 

helped to conceal his body. These admissions occurred as trial 

counsel pursued the co-defendants’ joint trial strategy. 

{¶95} Finally, we once again recognize the overwhelming 

evidence in the case at bar that far outweighs any possible mistake 

that counsel committed in this regard. Thus, we cannot conclude 

that trial counsel’s actions prejudiced appellant. 

4. Electing Trial by Jury 
SCIOTO, 20CA3904 58

{¶96} Appellant asserts that trial counsel should have advised 

appellant to plead guilty, rather than proceed to a jury trial. 

Appellant points out that concessions of guilt, in any form, are 

among the most troublesome actions defense counsel can make, and 

cites State v. Goodwin, 84 Ohio St.3d 331, 336-37, 703 N.E.2d 1251 

(1999), in support. 

{¶97} In Goodwin, during a murder trial counsel conceded his 

client’s guilt and stated that all three men (including two codefendants) “are guilty of all charges in the indictment.” Id. at 

336. The Supreme Court of Ohio held that courts must consider a 

defense counsel’s concession of guilt on a case-by-case basis, and, 

when examined within the context of the entire record of the trial 

proceedings, “the statements of guilt made by Goodwin’s defense 

counsel were neither deficient nor prejudicial. The statements 

made did not constitute an abandonment of defense of Goodwin.” Id. 

at 338. Instead, the court determined that counsel’s statements 

appeared to have been an attempt to concede Goodwin’s participation 

in the robbery, and to preserve the credibility of the only 

plausible defense theory that, in light of the strong evidence 

against Goodwin and despite Goodwin’s participation in the robbery, 

he did not kill the victim. The Goodwin court further noted that 
SCIOTO, 20CA3904 59

even assuming, arguendo, that counsel’s statements may have 

arguably constituted deficient representation, the prejudice 

requirement had not been satisfied because overwhelming evidence 

existed against the defendant, including physical evidence and a 

confession. 

{¶98} Similarly, in the case sub judice we conclude that, under 

the unique circumstances present in the case at bar, counsel’s 

statements and counsel’s participation to permit appellant to 

decline to enter a guilty plea, but rather to concede guilt at 

trial in the hope of reducing her co-defendant husband’s criminal 

culpability, which also undergirded her co-defendant’s trial 

strategy, made no practical difference in the trial’s result. 

{¶99} Moreover, as the appellee points out, the December 18, 

2019 pretrial transcript confirms that “there have been no offers 

made from either side.” Thus, no evidence exists in the record of 

any offer, other than to plead guilty to the charges included in 

the indictment. Once again, appellant adopted a trial strategy to 

help her co-defendant husband escape a murder conviction and to 

require appellee to present evidence to prove the elements of the 

charged crimes. 

5. Meaningful Cross-Examination 
SCIOTO, 20CA3904 60

{¶100} Appellant asserts that, despite having received funds for 

the assistance of a forensic expert to help to interpret Dr. 

Brown’s autopsy report, trial counsel made no meaningful attempt to 

cross-examine Dr. Brown as to alternate possible causes of Dylan’s 

injuries. 

{¶101} In support of this proposition, appellant cites State v. 

Yarber, 102 Ohio App.3d 185, 656 N.E.2d 1322, (12th Dist.1995). In 

Yarber, after convictions of two counts of rape and one count of 

gross sexual imposition, the appellate court concluded that counsel 

provided ineffective assistance throughout the proceedings, 

including the failure to: (1) file a motion to suppress his 

confession (appellant had a third-grade education, speechimpediment, and was illiterate), (2) object to prosecutor’s leading 

questions, and (3) question the victim regarding testimonial 

inconsistencies. In addition, the court observed that counsel 

appeared confused, made nonsensical objections, asked confusing 

questions, and failed to establish a coherent trial strategy. Id.

at 1324-1325. 

{¶102} Appellant contends that the case sub judice has several 

parallels with Yarber. We, however, disagree. Although trial 

counsel in the case at bar did not conduct an in-depth cross-
SCIOTO, 20CA3904 61

examination of Dr. Brown’s autopsy report, counsel instead opted 

for an unusual, but coherent, trial strategy. Pursuant to 

appellant’s wishes, the defense strategy included appellant’s 

decision to admit that she caused Dylan’s death, while her codefendant husband would admit that he concealed Dylan’s body. In 

hindsight, although this course of action may appear to be somewhat 

ill-advised, both appellant’s counsel and co-defendant’s counsel 

executed the precise strategy that their clients sought to advance. 

{¶103} Thus, after our review, we cannot conclude that counsel’s 

cross-examination of Dr. Brown constituted ineffective assistance 

of counsel. 

6. Failure to Present Mitigation Evidence at 

Sentencing 

{¶104} Appellant asserts that trial counsel also failed to 

present any evidence, testimony, or make any other attempt at 

mitigation for purpose of sentencing. Here, counsel’s sentencing 

statement is as follows: “This has been a difficult matter for this 

entire community. It’s - - it’s been shared with a lot of people. 

Jessica took responsibility and I just asked the court to consider 

that in sentencing.” 
SCIOTO, 20CA3904 62

{¶105} Appellant now argues that trial counsel failed to (1) 

seek any possibility of parole, (2) explore, or even mention, the 

possibility of post-partum depression, and (3) call witnesses or 

present evidence in mitigation. 

{¶106} Appellant points to Williams v. Taylor, 529 U.S. 362, 120 

S.Ct. 1495, 146 L.Ed.2d 389 (2000) in support. Williams, convicted 

of robbery and capital murder and sentenced to death, argued that 

he had been denied the effective assistance of counsel when counsel 

failed to investigate and failed to present substantial mitigating 

evidence to the sentencing jury. The court determined that counsel 

failed to: (1) conduct an investigation that would have uncovered 

“extensive records graphically describing Williams’ nightmarish 

childhood, not because of a strategic calculation but because they 

incorrectly thought that state law barred access to such records,” 

(2) introduce available evidence that Williams was “borderline 

mentally retarded” and did not advance beyond the sixth grade, (3) 

seek prison records regarding appellant’s commendations for his 

assistance in prosecuting a prison drug ring and returning a 

guard’s missing wallet, and (4) present testimony from a prison 

ministry volunteer who offered to testify regarding Williams’ good 

behavior in prison. The court concluded these omissions “clearly 

demonstrate that trial counsel did not fulfill their obligation to 
SCIOTO, 20CA3904 63

conduct a thorough investigation of the defendants’ background.” 

Id. at 395-396. More important, however, and absent in the case 

sub judice, is that the Williams court also concluded that a 

reasonable probability existed that the result of the sentencing 

phase would have been different if the jury had heard that 

evidence. 

{¶107} In the case sub judice, after our review we cannot 

conclude that appellant has shown that the trial court’s sentence 

would have been different had counsel presented additional 

mitigation evidence. Here, the trial court, prior to sentencing, 

had access to appellant’s competency evaluation, which detailed her 

substance abuse history and her motivation to “feign deficits in 

her legal knowledge.” The report also indicated that appellant did 

not show symptoms suggestive of a severe mental illness, and that 

her “presentation and history are suggestive of an underlying 

personality disorder complicated by her substance abuse. Further, 

she appeared to be psychiatrically stable during the assessment, 

and testing revealed evidence of exaggerating or feigning 

psychiatric difficulties.” The assessment further revealed that 

appellant is “of average intellect, with no history of an 

intellectual disability,” that appellant graduated from high school 

and obtained training and employment in the healthcare field. 
SCIOTO, 20CA3904 64

{¶108} A trial counsel does not necessarily render ineffective 

assistance by deferring to a client’s desire to not present 

mitigation evidence. The Supreme Court of Ohio has held that “a 

defendant is entitled to decide what she [or he] wants to argue and 

present as mitigation in the penalty phase, see, e.g., Jenkins, 15 

Ohio St.3d at 189, 15 OBR 311, 473 N.E.2d 264, citing Lockett v. 

Ohio (1978), 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973, 

including the decision to present no evidence.” State v. Roberts, 

110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 140. Thus, 

an attorney who declines to present evidence in mitigation, in 

deference to a client's desire, does not render ineffective 

assistance. Id. at ¶ 148, citing State v. Monroe, 105 Ohio St.3d 

384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 100; Cowans, 87 Ohio St.3d 

68, 81, 717 N.E.2d 298 (1999); Keith, 79 Ohio St.3d 514, 536, 684 

N.E.2d 47 (1997). See also State v. Armor, 2017-Ohio-396, 84 

N.E.3d 181 (10th Dist.) (no deficient performance for failure to 

present mitigation evidence when record did not show what 

information investigation would have revealed and whether such 

information could have aided defendant.) 

{¶109} While in the case sub judice we cannot discern from the 

record what discussions may, or may not, have occurred between 

appellant and trial counsel regarding this issue, we believe that 
SCIOTO, 20CA3904 65

appellant did not establish prejudice arising from counsel’s 

failure to present mitigating evidence at sentencing. The trial 

court heard the evidence, including appellant’s trial testimony, 

and had access to appellant’s competency evaluation materials. We 

therefore do not believe that appellant’s trial counsel’s actions 

constituted a deficient performance. 

{¶110} Accordingly, after our review and based upon the 

foregoing reasons, we overrule appellant’s assignment of error and 

affirm the trial court’s judgment. 

 JUDGMENT AFFIRMED. 

 
SCIOTO, 20CA3904

66
SCIOTO, 20CA3904

67

JUDGMENT ENTRY 

 It is ordered that the judgment be affirmed. Appellee shall 

recover of appellant the costs herein taxed. 

 The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court 

directing the Scioto County Common Pleas Court to carry this 

judgment into execution. 

 If a stay of execution of sentence and release upon bail has 

been previously granted, it is continued for a period of 60 days 

upon the bail previously posted. The purpose of said stay is to 

allow appellant to file with the Ohio Supreme Court an application 

for a stay during the pendency of the proceedings in that court. 

The stay as herein continued will terminate at the expiration of 

the 60-day period. 

 The stay will also terminate if appellant fails to file a 

notice of appeal with the Ohio Supreme Court in the 45-day period 

pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio 

Supreme Court. Additionally, if the Ohio Supreme Court dismisses 

the appeal prior to the expiration of said 60 days, the stay will 

terminate as of the date of such dismissal. 

 A certified copy of this entry shall constitute that mandate 

pursuant to Rule 27 of the Rules of Appellate Procedure. 

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion 

 For the Court 

 BY:____________________________ 

 Peter B. Abele, Judge 

 

 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 

commences from the date of filing with the clerk.