State v. Grube
| Decision Date | 07 February 2013 |
| Docket Number | No. 12CA7.,12CA7. |
| Citation | 987 N.E.2d 287 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Kansas D. GRUBE, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Timothy Young, Ohio State Public Defender, and Katherine A. Szudy, Ohio State Assistant Public Defender, Columbus, OH, for appellant.
C. Jeffrey Adkins, Gallia County Prosecuting Attorney, and Eric R. Mulford, Assistant Prosecuting Attorney, Gallipolis, OH, for appellee.
{¶ 1} Kansas D. Grube appeals her conviction in the Gallia County Court of Common Pleas after a jury found her guilty of one count of aggravated murder and one count of child endangering. On appeal, Grube contends (1) the trial court violated her rights to due process and a fair trial in the absence of sufficient evidence to convict her of aggravated murder; (2) her constitutional rights were violated when the trial court failed to give a jury instruction as to the lesser-included offenses of reckless homicide and/or involuntary manslaughter; (3) the trial court also erred when it failed to merge her convictions for aggravated murder and child endangering for purposes of sentencing; and (4) her trial counsel rendered ineffective assistance of counsel. Upon review, we find the trial court committed plain error in failing to consider whether Appellant's convictions were based on conduct evidencing a single or separate animus, pursuant to the Supreme Court of Ohio's decisions in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 and State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923. Accordingly, we sustain Appellant's third assignment of error and remand to the trial court for further consideration.
{¶ 2} On February 19, 2010, the Gallia County Grand Jury indicted Kansas Grube on three counts: count one, aggravated murder in violation of R.C. 2903.01(C); count two, murder in violation of R.C. 2903.02(B)(2); and, count three, endangering children, in violation of R.C. 2919.22(B)(1). The case proceeded to a jury trial on September 29, 2010, in which Appellant was convicted of aggravated murder and endangering children, but the jury rendered no verdict on the charge of murder. The trial court sentenced Appellant to life in prison without the possibility of parole for aggravated murder and eight years for endangering children. She appealed her convictions in State v. Grube, 4th Dist. No. 10CA16, 2012-Ohio-2180, 2012 WL 1700455, in which this court held because the record was devoid as to any disposition as to count two, murder, the charge remained pending and the trial court's judgment entries finding Appellant guilty and sentencing her were not final appealable orders. Thus, the appeal was dismissed.
{¶ 3} Appellant next filed a motion for reconsideration, which was denied. However, in our decision, we noted the trial court's filing of a separate entry dismissing count two would be appropriate. On August 21, 2012, the trial court filed a judgment entry dismissing count two. On September 7, 2012, Appellant filed a notice of appeal indicating appeal from the October 4, 2010 judgment entry which became final and appealable as of the August 21st entry disposing of count two. Appellant has now perfected a timely appeal.
{¶ 4} The events leading up to Appellant's indictment by the grand jury are set forth as follows. In February 2012, Appellant Kansas Grube and her husband Matt Grube (hereinafter “Matt”) resided in a mobile home in Gallia County with their 4–year–old daughter H.G. and 2 1/2 month old son, J.G.1 Appellant was a stay-at-home mother and Matt worked the midnight shift at a group home for MRDD patients. During the day, Matt usually slept and Appellant cared for the children. On February 12, 2010, Matt left for work sometime between 10:30 and 10:45. Ten minutes after he left, he received a call from Appellant indicating J.G. was not breathing. When Matt returned home, he began administering CPR to J.G. Shortly thereafter, medical personnel and Sergeant Eric Werry, responded to the 911 call. J.G. was transported to Holzer Medical Center, where he was pronounced dead later in the evening. J.G. had no visible injuries.
{¶ 5} Dr. Daniel Whiteley, the Gallia County Coroner was called to the Holzer ER. Dr. Whitely initially opined J.G. died from sudden infant death syndrome (SIDS). Pursuant to Ohio law, Dr. Whitely ordered an autopsy. The autopsy, performed by Dr. Russell Uptegrove revealed J.G. had two skull fractures, one in the left posterior parietal area and one in the right occipital area. Based on this report, Dr. Whitely determined to a reasonable degree of medical certainty J.G.'s death was a homicide. He advised the local authorities. Detective Chad Wallace obtained a search warrant for the Grube residence and took the Grubes to the Gallia County Sheriff's Department for questioning. Appellant gave a videotaped statement and was eventually charged with aggravated murder, murder, and felony child endangering.
{¶ 6} When the matter came on for trial, the State of Ohio presented testimony from Detective Wallace, Sgt. Werry, Dr. Whitely, Dr. Uptegrove, Dr. Phillip Scribano, Crystal Sowards, and Matt Grube. The doctors opined J.G. died from two blunt force traumas to the skull. Dr. Scribano testified as an expert on pediatric child abuse.
{¶ 7} The substance of Crystal Sowards' testimony was that she had previously known Appellant and her husband from working with Matt in the past, and from “Drug Court,” in which Appellant and she had participated. Crystal Sowards was also incarcerated in the Gallia County jail the night Appellant was questioned and held. Appellant related to Crystal Sowards several explanations for what may have caused J.G.'s injuries and death.
{¶ 8} Matt Grube testified on the day of J.G.'s death, slept the entire day until 9:00 p.m., his normal routine. When he awoke he prepared for work, fixed a toilet problem, and went to get cigarettes for Appellant and himself around 10:00 p.m. He was gone approximately ten minutes. When he returned, he finished getting ready, gave Appellant a kiss, and left around 10:30 p.m. When he left for work, Matt noticed J.G. was lying asleep on the living room couch. At approximately 10:38 Matt received a call from Appellant telling him J.G. was dead. He immediately returned home and began performing CPR on J.G. Appellant was speaking to 911 when he returned. Soon after, Stella Blanton, a relative, arrived and Matt gave J.G. to her to perform CPR. An emergency squad and law enforcement also arrived. J.G. was eventually transported to Holzer ER.
{¶ 9} Matt described Appellant as a loving mother. He denied marital problems. He acknowledged a 2008 arrest for domestic violence involving Appellant. He also acknowledged having gone through Drug Court for abuse of pain medication. Matt's testimony revealed he knew Detective Wallace from high school.
{¶ 10} The State also played for the jury Appellant's videotaped statement given to Detective Wallace on February 13, 2010. During her statement, Appellant described the events of the day J.G. similar to her testimony at trial, given below. She stated Matt was asleep all day. She repeatedly denied hurting J.G., beating J.G., being “rough” with him, or hurting any child. She stated she was being truthful. Appellant indicated she had taken her prescribed medication on the day of the interview, but stated it did not affect her thought processes. When Appellant “could not remember” certain events or time frames which transpired on the day J.G. died, she stated “I don't remember, I'm prescribed Xanax and I took it yesterday.” Towards the end of the interview, Appellant admitted she was “rough” with J.G. when she gave him his bottle, and his head hit the wooden part of the couch. At one point in the interview, Appellant stated “I didn't do this shit on purpose.”
{¶ 11} Appellant elected to testify at trial, and her testimony did not portray Matt or their marriage in a positive light. She indicated Matt and his family had tried to get her to abort J.G. She testified Matt was trying to give up the rights to his other children. Appellant testified Matt had a temper, there were various incidents of domestic violence which she never reported, and he had left bruises and marks on her and the children.
{¶ 12} Appellant's version of the events of February 12, 2012, was that she had played with the children, done household chores, and watched television and played on the computer during the day. She testified J.G. had been asleep during the day and he awoke around 4:00 p.m. She fed, changed, and played with him. She tried to keep the children quiet while Matt slept, because he would get very upset and curse at them. Around 6:00 p.m., J.G. went back to sleep and he slept for 4–5 hours. Appellant testified J.G. liked to sleep on his side. She placed him on the couch with a pillow between him and the back of the couch. During that period of time, Appellant did laundry, dishes, smoked outside or in the bathroom, and used the computer.
{¶ 13} Appellant testified Matt awoke around 9:00 p.m. when H.G. began jumping on his bed. After Matt awoke, she heard him in various other rooms of the home. She was in the bathroom cleaning. Appellant testified she was unaware Matt left the home for cigarettes, and she denied asking him to get them. She was unaware when Matt returned from the convenience store. During this time, when she walked through the living room, she could still see J.G. sleeping on the couch. Appellant testified she did not see Matt touch J.G. that night, but she was not with him every minute in every room.
{¶ 14} Appellant testified Matt's routine was to kiss her and the children when he left for work. On the night in question, she was at the computer, when he kissed her and H.G., but did not kiss J.G. She testified he seemed nervous, stopping and staring at the children before he left....
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