[Cite as State v. Grantham , 2020-Ohio-4418.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. DARRELL GRANTHAM Appellant C.A. No. 19CA011468

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CR090412

DECISION AND JOURNAL ENTRY Dated: September 14, 2020

HENSAL, Presiding Judge. {¶1} Darrell Grantham appeals his c onvictions and sentence in the Lo rain County Court

of Common Pleas. For the followi ng reasons, this Court affirms

. I. {¶2} Mr. Grantham lived for a time with the mother of two of his chi ldren, who was also the custodian of a 15-year-old girl. According to the girl, ov er the course of several months, Mr. Grantham engaged in various acts of sexual conduct with her. H e also sent her text messages requesting sexual conduct with her . After receiving the text m essages, the girl told her aunt about what had been going on. They contacted the police, who intervi ewed Mr. Grantham and searched his phone, revealing that the messages had been deleted. {¶3} The Grand Jury indicted Mr. Grant ham for three counts of rape, three counts of

unlawful sexual conduct with a mi nor, tampering with evidence, and importuning. Following a jury trial, the jury found him guilty of the tampering with evi dence and importuning counts, and2

the trial court sentenced him to a total of 24 months imprisonm ent. Mr. Grantham has appealed

his convictions and sentence , assigning three errors.

II.

ASSIGNMENT OF ERROR I THE TRIAL COURT DENIED MR. GRANTHAM DUE PROCESS, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, BY BEING VINDICTIVE IN ITS SENTENCING FOR EXERCISING HIS RIGHTS TO NOT PLEAD GUILTY AND HAVE HIS CASE TRIED BEFORE A JURY. {¶4} In his first assignment of error, Mr. Grantham argues that the trial court improperly punished him for exercising his r ight to a jury trial. Accordi ng to Mr. Grantham, he originally pleaded guilty to an amended indi ctment and the trial court was going to sentence him to community control. Even though his plea agreement with the Sta te eventually fell apart, he ended up being convicted of offenses t hat were less serious than thos e to which he had agreed to plead guilty. Despite being convicted of less serious offenses, the trial court imposed a 24-month prison sentence instead of sentencing him to community control. Mr. G rantham argues that it therefore

can be inferred that his sentence was vindictive for electing t o have a trial. {¶5} “A criminal defendant is guaranteed the right to a trial by jur y and cannot be punished for exercising that right by refusing a plea offer.” State v. Tucker , 9th Dist. Lorain No. 13CA010339, 2016-Ohio-1353, ¶ 29, citing State v. O’Dell , 45 Ohio St.3d 140 (1989), paragraph two of the syllabus. “Any increase in sentencing that is attri butable to the defendant’s decision to take the case to trial is improper.” Tucker at ¶ 29, citing State v. Morris , 159 Ohio App.3d 775, 2005-Ohio-962, ¶ 12 (4th Dist.). “ Consequently, a trial court must avoid the appearance that a

sentence has been enhanced because the defendant chose to take the case to trial.” Tucker at ¶ 29, citing State v. Chapman , 190 Ohio App.3d 528, 2010-Ohio-5924, ¶ 30 (9th Dist.), quotin g Morris3

at ¶ 13. “If a court makes statements from which it can be inf erred that the sentence was increased due to a defendant’s decision to proceed to trial, then that se ntence must be vacated unless the record contains unequivocal evide nce that the decision to proce ed to trial was not considered when sentencing the defendant.” State v. Turner , 9th Dist. Summit No. 27210, 2014-Ohio-4460, ¶ 22. {¶6} Mr. Grantham initially agreed to plead guilty to an amended ind ictment. He acknowledges that there was no sentencing agreement. Before ac cepting his plea, the court informed Mr. Grantham of all of its sentencing options, includi ng its ability to sentence him to send him to prison immediately. It told him, however, that it would not do that because it did not know anything about him or the cas e and would have a presentenc e investigation report prepared. {¶7} By the time the court reconvened for sentencing, there had been new allegations made against Mr. Grantham. Mr. Grantham, therefore, told the c ourt that he wanted to move to withdraw his plea and see how t he new allegations progressed. The court replied that the new allegations had indeed tipped its sentencing considerations and that it would have sent him to prison based on the new informa tion instead of probation like M r. Grantham was probably expecting. It, therefore, gran ted Mr. Grantham’ s request to wi thdraw his plea. {¶8} At sentencing following the trial, the court reminded Mr. Grant ham that, when it received the original presentence investigation report, its not es indicated that it was concerned.

The court also noted that one of Mr. Grantham’s convictions had a presumption of prison. Although the other offense did not have that presumption, the f act that it concerned conduct that

was sexual in nature was a factor that made the offense more se rious in nature. The court determined that, upon considera tion of the presentence investig ation report and its familiarity with the facts of the case from having sat through the trial, a pris on sanction was appr opriate in order to comport with the principles and purposes of sentencing. The court allowed Mr. Grantham a few4

days to report to prison, however, because it understood that h e may have anticipated community control based on the pre-trial negotiations between counsel. {¶9} Contrary to Mr. Grantham’s asse rtion, the record does not displ ay any vindictiveness by the trial cour t. Before trial, the court ind icated that it was going to sentence Mr. Grantham to prison based on what it had learned from the presen tence investigation report. Following the trial, the court remained concerned about the sex ual nature of Mr. Grantham’s

offenses. One of the offenses a lso had a presumption of prison . There is nothing in the record that suggests the court increased Mr. Grantham’s sentence because he decided to proceed to trial.

Turner , 2014-Ohio-4460, at ¶ 22. Mr. Grant ham’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO. {¶10} In his second assignment of error, Mr. Grantham argues that his tampering and importuning convictions are not s upported by sufficient evidenc e. Whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view the evidence in the light most fa vorable to the prosecution: An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitt ed at trial to determine whether such eviden ce, if believed, would convince th e average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the cr ime proven beyond a reasonable doubt.

State v. Jenks , 61 Ohio St.3d 259 (1991), paragrap h two of the syllabus.5

{¶11} Regarding Mr. Grantham’s convic tion for tampering with evidence , Revised Code Section 2921.12(A)(1) provides that “[n]o person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation.” Thus, the of fense has three elements: “(1) the knowledge of an official proceedin g or investigation in progres s or likely to be instituted, (2) the alteration, destruction, concealme nt, or removal of the potenti al evidence, [and] (3) the purpose of impairing the potential evidence’s availability or value in suc h proceeding or investigation.” State v. Straley , 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 11. {¶12} Mr. Grantham argues that there was no evidence that he deleted the emails he sent to the girl after he learned that she had or was going to repor t them to the police. He notes that the investigation did not begin until 20 days after he sent the mes sages and there was no evidence indicating when they were actua lly deleted from his phone or th at he took action t o delete them. {¶13} Mr. Grantham is correct that there is no direct evidence that h e deleted the text messages in response to a pendi ng or imminent investigation. W hether tampering with evidence occurred, however, may be inferred from the circumstances. State v. Sharp , 3d Dist. Putnam No. 12-13-01, 2014-Ohio-4140, ¶ 30. According to a police detectiv e who interviewed Mr. Grantham, when he spoke with the girl’s aunt, he learned that she had los t her composure and called Mr. Grantham to accuse him of raping the girl. The detective, ther efore, contacted Mr. Grantham to set up an interview about the ca ll he received from the aunt. During the interview, Mr. Grantham initially denied exchanging any text messages with the girl. L ater, he said that someone else had sent them while borrowing his phone. He eventually admitted th at he had sent messages to the girl but denied that there was anything sexual about them. Fin ally, he admitted that some of the6

messages were sexual in nature and accused the girl of being a flirt and a tease. There was also evidence that all of the text messages on the phone from before the date that the aunt contacted

Mr. Grantham had been deleted. {¶14} Upon review of the record, we c onclude that th e deletion of all messages from Mr. Grantham’s phone from before the date that the aunt accused him of harming the girl as well as his reluctance to acknowledge tha t he had exchanged messages wi th the girl constituted sufficient

evidence from which a reasonable trier of fact could infer that Mr. Grantham, knowing that an official proceeding or investigation was in progress or likely to be instituted, deleted the messages from his phone with the purpose of impairing their availability as evidence against him. Accordingly, to the extent that M r. Grantham challenges whether there was sufficient evidence to support his conviction for tampe ring with evidence, his second assignment of error is overruled. {¶15} Regarding Mr. Grantham’s conviction for importuning, Section 29 07.07(D)(1) provides that a person who is 18 years old or older shall not “ solicit another by means of a telecommunications device * * * to engage in sexual activity” i f “[t]he other person is thirteen years of age or older but less than sixteen years of age, the o ffender knows that the other person is thirteen years of age or older but less than sixteen years of a ge or is reckless in that regard, and the offender is four or more years older than the other person.” A ccording to Mr. Grantham, the messages that the State presented are not sexual in nature, do not solicit sexual activity, and simply contain abbreviations or misspellings. {¶16} As previously noted, Mr. Grantham admitted to law enforcement t hat the messages were sexual in nature. One of the messages asked the girl to c ome down to him after another

resident of the household left. He also asked her if he could “cum lick it[,]” which can be interpreted as a solicitation fo r sexual activity. Upon review of the record, we conclude that Mr.7

Grantham’s importuning convicti on was supported by sufficient e vidence. Mr. Grantham’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO CONSTITUTION. {¶17} In his third assignment of error, Mr. Grantham argues that his convictions are against the manifest weight of the evidence. When considering a challenge to the manifest weight of the evidence, this Court is r equired to consider the entire record, “weigh the evidence and all reasonable inferences, consider the credibility of witnesses an d determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its w ay and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidenc e pertains to the greater amount of credible evidence produced in a trial to support one side ov er the other side. Thompkins , 78 Ohio St.3d 380, at 387. An appellate court should only exercis e its power to reverse a judgment as against the manifest weight of the evidence in exceptional c ases. State v. Carson , 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340. {¶18} Mr. Grantham argues that the State failed to meet its burden of persuasion. He contends that people routinely delete messages from their phone s after a period of time and that sometimes messages get deleted accidentally. He argues that, i n light of the amount of time that passed between when he sent the messages and when the investiga tion started, as well as the lack of any evidence regarding when the messages were deleted, it ca nnot be inferred that he knowingly deleted the messages with the intent of impeding an investigati on. He also argues that the messages were simply brief instr uctions to another household me mber and do not signal a request8

for sexual activity. He notes that the State did not ask the g irl to explain what the messages meant

to her at trial. {¶19} It was not unreasonable for the jury to believe that it was mor e than coincidental that Mr. Grantham’s phone did not have any text messages on it from before the date on which the girl’s aunt accused him of harming the girl. The fact that Mr. Grantham later denied exchanging any messages with the girl supports an inference that he was at tempting to hide his conversations with her. Although the girl did not specifically testify that she interpreted the messages as sexual, she said that they disgusted her and that she did not want anyt hing to do with what they suggested. Accordingly, upon review of the evidence, we cannot say that th e jury lost its way when it determined that Mr. Grantham was guilty of tampering with evide nce and importuning. We

conclude that his convictions are not against the manifest weig ht of the evidence. Mr. Grantham’s third assignment of error is overruled.

III. {¶20} Mr. Grantham’s assignments of error are overruled. The judgmen t of the Lorain County Court of Comm on Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27.9

Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SCHAFER, J. TEODOSIO, J. CONCUR.

APPEARANCES: GIOVANNA V. BREMKE, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.