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State v. Robinson

Court of Appeals of Ohio, Second District, Montgomery

July 19, 2019

STATE OF OHIO Plaintiff-Appellee
v.
KENDRICK ROBINSON Defendant-Appellant

          Criminal Appeal from Common Pleas Court Case No. 2016-CR-2654

          MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Attorney for Plaintiff-Appellee

          CHARLES W. SLICER III, Attorney for Defendant-Appellant

          OPINION

          WELBAUM, P.J.

         {¶ 1} Defendant-appellant, Kendrick Robinson, appeals from his conviction in the Montgomery County Court of Common Pleas after a jury found him guilty of two counts of felonious assault. In support of his appeal, Robinson contends that the trial court erred in allowing hearsay testimony under the excited utterance exception to the hearsay rule. Robinson also contends that his trial counsel provided ineffective assistance by failing to object to various matters during his trial and by failing to disclose certain evidence to the State. Robinson further contends that his conviction for both counts of felonious assault was not supported by sufficient evidence. For the reasons outlined below, Robinson's conviction will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On September 1, 2016, Robinson was indicted for two counts of kidnapping in violation of R.C. 2905.01(A)(3) and (A)(4), one count of rape in violation of R.C. 2907.02(A)(2), two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2), and one count of aggravated menacing in violation of R.C. 2903.21(A). Except for aggravated menacing, each of the charges included a repeat violent offender specification.

         {¶ 3} Robinson's charges stemmed from a physical altercation with his girlfriend, L.D. It was alleged that on the night of August 21, 2016, Robinson tied up L.D., severely beat her, raped her with a hammer, poked her body with a knife, poured bleach in her mouth, and burnt her with lit cigarettes. It was also alleged that Robinson threatened the mother of his children, E.C., by telling her that he would cut her throat, their children's throats, and her mother's throat if she did not stay out of the bedroom where he was assaulting L.D. Robinson pled not guilty to the charges and the matter proceeded to a jury trial.

         {¶ 4} During trial, L.D. testified that she was living at Daybreak, a Dayton youth homeless shelter, at the time the altercation with Robinson took place. Testimony provided by L.D., Robinson, and Officer Byron Branch of the Dayton Police Department indicated that an earlier altercation broke out in the Daybreak parking lot while Robinson was there to pick up L.D. During this altercation, several Daybreak residents began harassing Robinson and throwing items at his car. Officer Branch testified that he arrived at the scene and made contact with Robinson, who he later learned was the victim. Branch testified that he documented the event and thereafter permitted Robinson and L.D. to leave the scene together. Branch testified that his interactions at Daybreak were captured by his cruiser camera.

         {¶ 5} A second Dayton police officer, Robert Christoffers, also responded to the scene at Daybreak. Officer Christoffers testified that he investigated the matter and spoke to the Daybreak security guard. According to Christoffers, the security guard advised him that Robinson had been set up to be "jumped" by the Daybreak residents. Robinson also testified at trial and indicated that the security guard had advised him that L.D. was the one who set him up.

         {¶ 6} Approximately four hours after the incident at Daybreak, Officer Branch and Officer William Overholtz responded to a residence on Warner Avenue on an assault call. When the officers arrived at the scene, they discovered L.D. lying in a bedroom severely beaten. Officer Overholtz testified that L.D.'s face was black and blue and extremely swollen. Overholtz also observed bruises, cuts, and red marks everywhere on L.D.'s body. Overholtz testified that L.D. was scared and crying when he approached her at the residence. Overholtz claimed that L.D.'s lips were quivering and that she was so upset she could barely speak. The only thing L.D. was able to tell Overholtz at the residence was "my boyfriend did it, my boyfriend did it." Trans. p. 244. Overholtz testified that he was unable to get any other information from L.D. until he met with her at the hospital approximately one and a half hours later.

         {¶ 7} Continuing, Overholtz testified that when he arrived at the hospital, L.D. was still upset and crying. Although Overholtz testified that he was eventually able to calm L.D. down enough to speak with her, he testified that L.D. began crying and quivering again as they discussed the altercation with Robinson. Over defense counsel's objection, the trial court permitted the State to elicit hearsay testimony from Overholtz as to what L.D. told him had happened during the altercation. The testimony was permitted under the excited utterance exception to the hearsay rule in Evid.R. 803(2).

         {¶ 8} Thereafter, Overholtz testified that L.D. said Robinson stuck the handle of a hammer in her anal cavity and vagina. Overholtz also testified that L.D. said Robinson "hog-tied" her and then picked her up and threw her on the ground while she was defenseless. Overholtz also recalled L.D. telling him that Robinson had tied a towel in her mouth with wire and then poured bleach on the towel and into her mouth. Overholtz further testified that L.D. said Robinson burnt her ears with lit cigarettes, poured beer on her face, and punched and kicked her. Overholtz next testified that L.D. said Robinson used a knife to poke her vagina and nose and told her to sit on the knife while he was holding it up to his groin. Overholtz also recalled L.D. telling him that Robinson walked her over to a mirror and told her to tell herself that she looked beautiful.

         {¶ 9} Despite being severely beaten by Robinson, L.D. professed her continuing love for Robinson at trial and was declared a hostile witness by the State. L.D. testified that Robinson never raped her and also denied Robinson ever poured bleach into her mouth or burned her with cigarettes. L.D. did, however, testify that Robinson hit her repeatedly on the face and all over her body. L.D. also testified that Robinson stuck a rag in her mouth and used electronic cords to tie her wrists and ankles.

         {¶ 10} In addition, L.D. testified that Robinson beat her and threw her to the ground while she was restrained. L.D. further recalled Robinson stomping on her face with his foot, choking her with his hands, and pouring beer on her face. L.D. also testified that Robinson touched parts of her body with a knife and made her stand in front of a mirror and tell herself that she looked pretty. L.D. claimed that the physical altercation with Robinson continued on and off for a period of two hours.

         {¶ 11} In his defense, Robinson admitted to smacking and punching L.D. in the face, but claimed that he was acting in self-defense. Robinson testified that just prior to the altercation, he and L.D. had engaged in consensual sexual activity during which Robinson tied L.D. up with electrical cords and inserted a hammer into her anal cavity. Although L.D. denied ever having drugs, Robinson testified that the physical altercation started after L.D. became mad at him for flushing her drugs down the toilet. After he flushed L.D.'s drugs down the toilet, Robinson claimed that L.D. angrily jumped on him and hit him multiple times. To defend himself, Robinson testified that he threw L.D. on the bed, smacked her, and punched her twice in the face. In doing so, Robinson admitted to using "a little unnecessary force." Trans. p. 502.

         {¶ 12} Robinson also testified that he never threatened the mother of his children, E.C, who lived with him on Warner Avenue. E.C., however, testified that when she came home from work on the night in question, Robinson grabbed her face, told her that L.D. tried to get him jumped, and threatened to cut her throat, their children's throats, and her mother's throat if she went into the bedroom where he was assaulting L.D.

         {¶ 13} To contradict Robinson's claim that he was acting in self-defense, the State presented a recording of a jail-house telephone call between Robinson and E.C. wherein Robinson explained why he beat L.D. During this call, Robinson can be heard telling E.C. that he became so angry about L.D. setting him up to be jumped, that he wanted to let L.D. know what it was like to get jumped. On another jail-house call with L.D., Robinson can also be heard telling L.D. not to cooperate with the State and instructing L.D. not to appear at the grand jury proceedings.

         {¶ 14} Following deliberations, the jury found Robinson guilty of both felonious assault charges. However, the jury found Robinson not guilty of aggravated menacing and was unable to reach a verdict on the charges of kidnapping and rape. Because the jury could not reach a verdict on those charges, the trial court declared a mistrial as to the kidnapping and rape charges. The trial court then sentenced Robinson to serve eight years in prison for each count of felonious assault and ten years in prison for the repeat violent offender specification. The trial court ordered the sentences to be served consecutively for a total prison term of 26 years.

         {¶ 15} Robinson now appeals from his conviction, raising three assignments of error for review. For ease of discussion, we will address Robinson's assignments of error out of order.

         Second Assignment of Error

         {¶ 16} Under his second assignment of error, Robinson contends that the trial court erred in allowing hearsay testimony under the excited utterance exception in Evid.R. 803(2). Specifically, Robinson claims that the trial court should have prohibited Officer Overholtz from testifying to statements made by L.D. at the hospital describing the beating she received from Robinson. According to Robinson, the only statement that qualified as an excited utterance was L.D. blurting out "my boyfriend did it, my boyfriend did it" when Overholtz first approached her at the scene. ...


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