State v. RobinsonState v. Robinson
RELEASED AND JOURNALIZED: November 24, 2010
Timothy R. Sterkel
1414 South Green Road
Suite 310
Cleveland, Ohio 44121
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Brent C. Kirvel
Assistant County Prosecutor
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶ 1} Defendant-appellant, Samuel Robinson (“Robinson“), appeals his convictions and sentence. Finding no merit to the appeal, we affirm.
{¶ 2} In March 2009, Robinson was charged with one count of aggravated burglary (Count 1), three counts of rape (Counts 2-4), three counts of kidnapping (Counts 5-7), and one count of child endangering (Count 8).1 The matter proceeded to a jury trial in October 2009.
{¶ 4} The trial court sentenced Robinsоn to 7 to 25 years in prison for aggravated burglary and 9 to 25 years in prison on each rape count, with the rape counts to be served consecutively to each other and consecutively to the aggravated burglary count.3 The court also sentenсed him to six months for child endangering, to be served concurrently to the aggravated burglary and rape counts. The court classified Robinson as a Tier III sex offender.
{¶ 5} The following evidence was adduced at trial.
{¶ 6} In the early morning hours of November 2, 1994, the victim (“W.V.“),4 awoke to a knock at the door of her home on West 30th Street in Cleveland. She heard someone manipulating the lock on her door, so she looked out the window and observed Robinson outside. She then ran to the
{¶ 7} Robinson then performed oral sex on W.V., while her daughter was next to her оn the bed. He next vaginally raped W.V. while she laid on her back. After this act, he conversed with her about prison and her boyfriend‘s and roommate‘s whereabouts. Robinson then vaginally raped W.V. again. He had her stand up with her leg propped on the bed. Her daughter wаs crying so Robinson told her to hold the baby and turn her back so he could vaginally rape her from behind.
{¶ 8} Robinson then got dressed and left. He came back a minute later and asked W.V. for a screwdriver and left again. She then put on a robe, grabbed her daughter, and ran to her friend‘s house. Her friend called an ambulance and W.V. was taken to the hospital, where a rape kit was
{¶ 9} Cleveland Police Detеctive Christina Cottom (“Detective Cottom“) of the Sex Crimes and Child Abuse Unit testified that she was assigned to this case when the Ohio Bureau of Criminal Identification and Investigation (“BCI“) notified her that Robinson‘s DNA was linked to the November 1994 rape of W.V. The BCI had a “hit” on Robinson‘s DNA because оf a sample obtained in an unrelated March 2008 rape case. Cottom located W.V. and confirmed that she wanted to proceed with the case. W.V. met with Cottom and gave her a statement. Cottom also showed W.V. a photo array from which she identified Robinson. Cottom included a picture of Robinson in the array because the DNA analysis of the rape kit sample identified Robinson as the perpetrator.
{¶ 10} Robinson now appeals, raising four assignments of error for review.
Motion to Suppress
{¶ 11} In the first assignment of error, Robinson argues that the court erred when it failed to suppress the pretrial photo identification by W.V.
{¶ 12} In reviewing a trial court‘s ruling on a motion to suppress, the reviewing court must keep in mind that weighing the evidence and determining the credibility of witnesses are functions for the trier of fact.
{¶ 13} Robinson first argues that the photo array shown to W.V. was unduly suggestive because the individuals in the photo array have differences in their skin complexion. W.V. stated that her attacker had a dark complexion, and Robinson asserts that two of the individuals in the рhoto array were light skinned, African-American males. Second, he argues that he “stood out like a beacon” because none of the other individuals in the array had an upturned nose as W.V. described to the police. Third, he complains that the first four photographs depict individuals with layered clothing and the last two photographs depict individuals in shirts.5
{¶ 15} In Neil v. Biggers (1972), 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401, the United States Supreme Court set forth the following factors to consider regarding potential misidentification:
“the opportunity of the witness to view the criminal at the time of the crime, the witnеss’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation * * *.”
{¶ 17} Here, Robinson failed to establish that the identification procedure was unreasonably suggestive. W.V. viewed the photo array in December 2008, which was 14 years after the offense. In her initial statement to the police, she described Robinson with some specificity. She stated that he had dark skin, a сrew cut, an upturned nose, and wore a hooded sweatshirt. At the suppression hearing, Detective Cottom testified that when she assembled the photo array, she used a picture of Robinson that was as close to the date of the crime that she could find. She then used pictures of individuals who have similar features to Robinson, which included his nose, skin complexion, and clothing. When she handed W.V. the photo array, W.V. immediately said “[t]hat‘s him.” She circled Robinson‘s picture and wrote her name underneath the photo. Because all six photos are of African-American men with facial hair, short hair, and similar build, and the upturned nose could be depicted in any of the photos, we find that the photo
{¶ 18} Accordingly, the first assignment of error is overruled.
Statute of Limitations
{¶ 19} In the second assignment of error, Robinson argues that the court erred when it failed to dismiss the indictment because the six-year statute of limitations had expired.
{¶ 20} In the instant case, Robinson moved to dismiss the indictment, arguing that under
{¶ 21} On the date the offenses were committed, November 2, 1994, the statute of limitations fоr a felony was six years under
“Section 2901.13 of the Revised Code, as amended by this act, applies to an offense committed on and after the effective date of this act and applies to an offense committed prior to the effective date of this act if prosecution for that offense was not barred under section
2901.13 of the Revised Code as it existed on the day prior to the effective date of this act.”
{¶ 22} Thus, if the statute of limitations had not exрired by March 8, 1999, an offender is subject to prosecution under the amended version of
{¶ 23} Here, Robinson was subject to prosecution because less than six years elapsed from the time of the offenses (November 1994) and the аmendment of
{¶ 24} Accordingly, the second assignment of error is overruled.
Merger
{¶ 25} In the third assignment of error, Robinson argues that the trial court erred when it failed to merge the two vaginal rape counts (Counts 3 and 4). He relies on State v. Elyel (Mar. 21, 1984), Hamilton App. No. C-830403,
{¶ 26} However, Jones was overruled by the Ohio Supreme Court in State v. Jones (1997), 78 Ohio St.3d 12, 676 N.E.2d 80 (”Jones II“). In Jones II, the court found that “significant intervening acts” (loss of erection and withdrawal from vagina) supported a determination that precluded the merger of the two vaginal rape acts. Id. at 14.
{¶ 27} In Elyel, the court concluded “that the principal, or most persuasive, inquiry as to whether one act or multiple punishable acts of rape are involved, is the * * * ‘nature of the act and risk of harm to the victim.‘”
{¶ 28} Here, there were two distinct and separate acts of rape. The first act occurred when W.V. was lying down; the second act occurred later when she was standing up with one leg on the bed and holding her screaming baby, with Robinson penetrating her from behind. Therefore, we agree with the trial court‘s decision finding that Counts 3 and 4 were separate acts.
{¶ 29} Accordingly, the third assignment of error is overruled.
Ineffective Assistance of Counsel
{¶ 30} In the fourth assignment of error, Robinson argues that he was denied effective assistance of trial counsel. He claims that defense counsel erred when he failed to present any evidence. In order to substantiate a claim for ineffеctive assistance of counsel, Robinson must demonstrate “(a)
{¶ 31} In the instant case, almost 15 years passed since the date of the crime and the time of trial. Additionally, the DNA evidence identified Robinson as the perpetrator.6 Other than Robinson‘s blanket assertion that defense counsel failed to present any evidence, Robinson offers nothing to rebut the presumption that counsel‘s actions were the product of a sound trial strategy. See State v. Williams, Cuyahoga App. Nos. 92009 and 92010, 2009-Ohio-5553, ¶47. He fails to assert which witnesses he wanted to testify or what other evidence hе wished to present. There are numerous ways to provide effective assistance of counsel, and debatable trial tactics and strategies do not constitute a denial of that assistance. State v. Wright, Cuyahoga App. No. 92344, 2009-Ohio-5229, ¶45, citing State v. Clayton (1980), 62 Ohio St.2d 45, 49, 402 N.E.2d 1189. Therefore, we decline to find that Robinson‘s trial counsel rendered ineffective assistance of counsel.
{¶ 33} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated.
A certified copy оf this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, PRESIDING JUDGE
LARRY A. JONES, J., and
COLLEEN CONWAY COONEY, J., CONCUR