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State v. Robertson

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-604042-A

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender BY: Cullen Sweeney Jeffrey Gamso Assistant Public Defenders

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Owen M Patton Assistant County Prosecutor Justice Center

          BEFORE: Boyle, P.J., S. Gallagher, J., and Laster Mays, J.



         {¶1} Defendant-appellant, Ialie Robertson, appeals his gross sexual imposition and kidnapping convictions. He raises three assignments of error for our review:

1. Mr. Robertson was denied his right to effective assistance of counsel when [1] his lawyer failed to renew an objection to admission of Facebook message to AE from her stepfather when, despite a promise from the prosecutor, her father did not testify; and [2] his lawyer did not renew his Crim.R. 29 motion or move to vacate the verdicts and for a new trial when a "victim impact" letter from AE read to the court at sentencing indicated that she recognized that having sex with Robertson was a quid pro quo for his driving her to and from work.
2. Mr. Robertson was wrongly convicted of both gross sexual imposition and kidnapping. Because they are allied offenses of similar import pursuant to R.C. 2925.41, he could have been found guilty of both but should have only been sentenced for one.
3. Mr. Robertson's convictions were not supported by the manifest weight of the evidence.

         {¶2} Finding merit to Robertson's second assignment of error, we affirm in part, reverse in part, and remand for resentencing.

         I. Procedural History and Factual Background

         {¶3} Robertson was indicted in March 2016 on three counts: attempted rape in violation of R.C. 2923.02 and 2907.02(A)(2), a second-degree felony; gross sexual imposition in violation of R.C. 2907.05(A)(1), a fourth-degree felony; and kidnapping in violation of R.C. 2905.01(A)(4), a first-degree felony, with a furthermore clause that the victim was over the age of 18. Robertson pleaded not guilty to the indictment. The following evidence was presented to a jury.

         {¶4} The victim, A.E., testified that in February 2016, she and her three children were living with her mother, V.E., in V.E.'s one-bedroom apartment on the first floor of a six-story apartment building. V.E. rented her apartment from Cuyahoga County Metropolitan Housing Authority ("CMHA"). A.E. knew that she was not allowed to live in her mother's apartment, but she did not have anywhere else to go.

         {¶5} While living with her mother, A.E. got to know many of the residents, including Robertson, whom she knew as "Buggy." Robertson lived on the fifth floor of the building. A.E. also knew Ida, who was older and lived on the third floor of the building, Samantha, who was also older and lived on the third floor, and Marshall Underwood, who lived down the hall from her mother. Ida and Samantha would watch A.E.'s children when A.E. had to work.

         {¶6} A.E. was working at a Walmart in South Euclid in February 2016. She did not have a car, so she would take the bus. She had to change buses several times to get to work, so it could take up to two hours for her to get to work. That winter, Robertson offered to drive A.E. to work and to pick her up when she was done. In exchange for driving her to and from work, A.E. paid Robertson $15 per day. A.E. said that although the bus only cost her a little over $5 to get to work, paying Robertson was worth it because it was winter and she hated waiting for the bus in the cold. Also, when Robertson drove her to work, it only took about 25 minutes to get there. She explained that she lost her previous job because of being late due to the bus commute.

         {¶7} A.E. testified that Robertson was known for making sexual remarks and sexual jokes to everyone. In fact, A.E.'s mother complained to the apartment manager about Robertson's jokes sometime in 2015. A.E. said that when Robertson made sexual comments to her, she just "shrugged it off because "that was him." A.E. said that she was not scared of Robertson. She never took him seriously and never thought that he would "act on it" because she had known him for so long.

         {¶8} A.E. testified to several examples of Robertson's sexual comments. She said that when he drove her to work, he would "reach his hand over" and touch her hair and tell her that he loved it when she wore it down. He also made comments about her "fly" always being open and that her pants were too tight. A.E. said that she never responded to Robertson's comments and never initiated physical contact with him.

         {¶9} On February 25, 2016, A.E. worked at Walmart until 8:00 p.m. She made arrangements for Samantha to watch her children. Robertson transported her to work and back as scheduled. As they were driving back to the apartment building, Robertson asked her if she could put drops in his eyes that night. Robertson needed the drops every night, but could not do it himself. A.E. and others in the apartment building helped him with the drops. Before that day, A.E. had only put drops in Robertson's eyes "probably five or six" times. The first couple of times, she put the drops in Robertson's eyes in the lobby of the apartment building. The last two to three times, she went to his apartment to do it. A.E. had never been to Robertson's apartment for any reason other than to put drops in his eyes, and she had only been there "about three times total."

         {¶10} When the two of them got back to the apartment building, A.E. dropped her things off at her mom's apartment and then stopped by Samantha's to see her children. She was at Samantha's for about 20 minutes and then told Samantha that she would be right back to get "her kids" after she put drops in Robertson's eyes. Normally, A.E. put the drops in his eyes and left, and it would only take two or three minutes.

         {¶11} A.E. went to the fifth floor to Robertson's apartment, which had a small living room and kitchen and one small bedroom. A.E. was shorter than Robertson, so he had to sit down for her to put the drops in his eyes. Because Robertson did not have any furniture in his living room or kitchen, A.E. put the drops in Robertson's eyes while he sat on his bed.

         {¶12} When A.E. walked in Robertson's bedroom, he had a "joint" in an ashtray beside the bed. He asked her if she "wanted to hit" it. She told him "no." A.E. "grabbed" the drops from Robertson's dresser, which were beside the bed, and put them in Robertson's eyes. She briefly turned back toward the dresser to place the drops on it, and when she did, Robertson grabbed her by her knees and "flung" her on the bed. A.E. said that she ended up on her back on Robertson's bed, and he climbed on top of her. A.E. testified that Robertson held her down on the bed with his body, with one of his knees between her legs. A.E. stated that Robertson began to try to loosen her belt buckle. A.E. was still wearing her work clothes, which were "cotton work pants" and a navy shirt. Robertson told A.E. that her "pants weren't super tight, " which she believed meant that he was saying to her that she came to his apartment "[t]o sleep with him."

         {¶13} A.E. said that Robertson tried to get her buckle loose three times. When he could not get it loose, he tried to pull her pants down. As he did, his thumb was inside the waistband of her pants, and she could feel his thumb against her bare skin. Robertson pulled her pants halfway down her buttocks with his hand inside of her underwear as he did it.

         {¶14} A.E. testified that the whole incident lasted "a few minutes." She said that she fought Robertson the entire time and kept telling him "no, that's not what I came up here for, " and to get off of her. She said that she kept trying to "scoot on the bed so that [her] pants would come back up." She also tried to sit up, but he pulled her back down. She was scared, but did not scream because she "honestly thought he would stop." A.E. said that she was just in "shock, " because she thought that Robertson was her friend. Robertson never pulled her pants down all the way.

         {¶15} After a few minutes, A.E.'s cell phone rang. She said that her phone had fallen on the bed, but she could reach it. She saw that it was Samantha and told Robertson that she had to "get her kids." He let her go. As she was leaving, he walked her to the door and asked her if "he messed up." She left without answering his question.

         {¶16} When she left Robertson's apartment, she went to Samantha's to get her children. She did not tell Samantha what happened. She said that Samantha was really good friends with Robertson, so she did not want to tell her. Also, A.E. explained that she did not want anyone to know because nothing like that had ever happened to her. She was also worried that if everyone found out, she would have to move out of her mother's apartment and she did not have anywhere to go.

         {¶17} Soon after she got back to her mother's apartment, however, she wrote the following statement on Facebook at 10:20 p.m.: "I understand why they don't say anything even it's not your fault you still feel hopeless and to blame, I never gave the impression after 5 yrs I never gave that impression [four sad emojis] God help me."

         {¶18} Five minutes later, A.E. sent a private message to her stepfather (whom she referred to as her "father") on Facebook. She told her father that "somebody just tried to force [himself] on me after I said no like fifty times, he tried to pull my pants down and kept throwing me down." She further told her father that the man "kept asking me was I gone [sic] call the police on him and did he mess up with me." She said that if Samantha had not called, she does not know what would have happened. She begged her father not to tell anyone, stating that she did not "want any trouble." She told her father that she "never tried to lead [the man] on" and "never said I wanted him in any way. He always flirted but I never took it serious please I just wanna forget it ever happened." When her father told her that she needed to "get out of there, " she responded that she did not have anywhere to go. A.E. further told her father:

Im scared and he's gonna deny it hes gonna say I tried to come on to him but that never happened I just went to put some drops in his eyes like I always do but this time he grabbed me and threw me down he kept asking me did he mess up cause I kept saying no and he was trying to take it I'm not like that I never been like that I never told him I wanted him he was supposed to be my friend I just don't want any trouble[.]


         {¶19} Her father then asked, "I take it he lives there?" She replied "yes, " and said that the man had been driving her to and from work. She then stated, "I kept saying no I don't know if he thought I was playing or what but I kept saying no kept trying to move his hands."

         {¶20} In another Facebook post, A.E. expressed that she was not lying about what happened. She wrote, "what do I have to gain from this?" She testified that she had nothing to gain from lying, but everything to lose for telling the truth because she would lose "a place to stay."

         {¶21} Right after A.E. told her father, she then "messaged" Marshall Underwood, who lived up the hall from her mother, on Facebook and told him that Robertson had tried to force himself on her. A.E. then walked to Ida's apartment and told her. When she told Ida, she said that she broke down and cried hysterically.

         {¶22} After she told Ida, she went back to her mother's apartment. Her mother was awake, but in bed. A.E. was supposed to braid her mother's hair that night, but she asked her mother if she could do it in the morning. As she was leaving her mother's room, she "broke down" and told her what happened. Her mother called the police. Two days later, A.E. had to move out of her mother's apartment because of the incident. She moved into a hotel with her children. She never saw Robertson after the incident.

         {¶23} On cross-examination, A.E. admitted that she had smoked marijuana with Robertson in the past, but never in his apartment. She agreed that after this incident, she was no longer friends with Samantha. When asked if she and Robertson had talked about having sex "numerous times, " she replied that she never initiated any conversation with Robertson about sex but that Robertson "always" initiated it. She also denied ever talking about going to a hotel with Robertson to have sex. When asked if she and Robertson had talked about "having sex in his apartment that day, " she replied that she did not recall. The following exchange between Robertson's defense counsel and A.E. then took place:

Q. You don't recall? * * *
A. Of us having sex, no, I do ...

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