Court of Appeals of Ohio, Eighth District, Cuyahoga
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
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.
JOURNAL ENTRY AND OPINION
J. BOYLE, PRESIDING JUDGE
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  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  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
3. Mr. Robertson's convictions were not supported by the
manifest weight of the evidence.
Finding merit to Robertson's second assignment of error,
we affirm in part, reverse in part, and remand for
Procedural History and Factual Background
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.
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.
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.
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.
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.
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.
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."
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.
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
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."
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.
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.
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.
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.
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."
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[.]
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
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."
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.
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
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 ...