State v. Robertson

111 N.E.3d 659, 2018 Ohio 1640
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedApril 26, 2018
DocketNo. 105562
StatusPublished
Cited by1 cases

This text of 111 N.E.3d 659 (State v. Robertson) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Robertson, 111 N.E.3d 659, 2018 Ohio 1640 (Ohio Super. Ct. 2018).

Opinion

MARY J. BOYLE, P.J.:

*662{¶ 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.

*663{¶ 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 *664grabbed 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.

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Bluebook (online)
111 N.E.3d 659, 2018 Ohio 1640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robertson-ohctapp8cuyahog-2018.