STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOHN S. ROBINSON, DEFENDANT-APPELLANT.
CASE NO. 1-19-79
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
October 13, 2020
2020-Ohio-4880
PRESTON, J.
Appeal from Allen County Common Pleas Court, Trial Court No. CR2018 0191. Judgment Affirmed.
William T. Cramer for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-appellant, John S. Robinson (“Robinson“), appeals the November 15, 2019 judgment of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} Just before midnight on May 2, 2018, a Ford F-350 pickup truck driven by Robinson entered northbound traffic on I-75 near Beaverdam, Ohio via an exit ramp. After leaving the exit ramp and entering the main travel lanes, Robinson‘s southbound pickup truck collided head-on with a northbound Ford Explorer driven by Richard Watson. At the time, Watson, his wife, Deena Frye, and their children, Colby, Conner, Chlo‘ee, and Christopher, were returning home to Michigan from a family vacation in Florida. While Watson escaped the crash with relatively minor injuries, the rest of his family was more severely injured—none more seriously than Christopher, who ultimately died from multiple blunt force injuries of the chest and abdomen. Law enforcement officers responding to the crash detected the odor of alcohol on Robinson‘s breath and noted that Robinson exhibited several indicators of impairment, including bloodshot eyes and slurred speech. Based on these observations, law enforcement officers obtained a search warrant to collect samples of Robinson‘s blood. Subsequent testing of Robinson‘s blood revealed that Robinson had a blood alcohol concentration of .13 grams of alcohol per 100 milliliters of whole blood.
{¶4} The case proceeded to a jury trial on November 12-14, 2019. On November 14, 2019, the jury found Robinson guilty on all seven counts of the indictment. (Doc. Nos. 191, 192, 193, 194, 195, 196, 197). After accepting the jury‘s verdicts, the trial court proceeded immediately to sentencing. First, the trial court determined that Counts Two and Three merged for purposes of sentencing. (Doc. No. 200). The State elected to sentence Robinson on Count Three. (Id.). The trial court then sentenced Robinson as follows: 8 years in prison on Count One; 180 days in prison on Count Three; 60 months in prison on each of Counts Four and Seven; and 54 months in prison on each of Counts Five and Six. (Id.). Finally, the trial court ordered that all of these terms of imprisonment be served consecutively
{¶5} On December 13, 2019, Robinson filed a notice of appeal. (Doc. No. 208). He raises three assignments of error for our review.
Assignment of Error No. I
Appellant‘s constitutional right to the effective assistance of counsel was violated when counsel failed to challenge the admissibility of the blood-alcohol test results.
{¶6} In his first assignment of error, Robinson argues that his trial counsel was ineffective for failing to challenge the admissibility of the blood test results. Robinson argues that because his blood was drawn more than three hours after the collision, the test results were inadmissible to prove that he violated
{¶8} Prejudice results when “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been
{¶9} In this case, to convict Robinson of each of the seven counts with which he was charged, the State was required to prove that Robinson violated
{¶11} Yet, test results derived from blood that was withdrawn more than three hours after an alleged violation of
{¶12} Here, there is no dispute that Robinson‘s blood was withdrawn more than three hours after the alleged violations of
{¶13} However, while it would likely have been prudent for Robinson‘s trial counsel to contest the admissibility of the blood test results, we need not determine whether Robinson‘s trial counsel‘s failure to do so constituted unreasonable or deficient performance. Even assuming that Robinson‘s trial counsel‘s performance was unreasonable or deficient under the circumstances, because the State presented considerable additional evidence that Robinson was under the influence of alcohol, Robinson has failed to establish that, but for his trial counsel‘s performance, there is a reasonable probability that the outcome of his trial would have been different.
{¶14} At trial, the State presented several witnesses who testified both to the amount of alcohol that Robinson consumed on the evening of May 2, 2018 and to his behavior in the moments immediately before the collision and immediately after. The State established that Robinson entered Vino Bellissimo, a bar and restaurant in Lima, Ohio, at approximately 5:03 p.m. on the evening of May 2, 2018. (Nov. 12-14, 2019 Tr., Vol. I, at 234-235); (State‘s Ex. 6). Ashley Hartman (“Hartman“),
{¶15} After leaving Vino Bellissimo, Robinson saw a movie at a nearby theater. (State‘s Ex. 64). After the movie, Robinson drove to Thirsty‘s, a bar and restaurant in Beaverdam, where he arrived shortly after 9:30 p.m. (State‘s Ex. 48). Ashlee Plaugher (“Plaugher“), who was working as a bartender at Thirsty‘s, testified that Robinson drank three bottles of Roebling, a “vanilla espresso import beer,” during his visit. (Nov. 12-14, 2019 Tr., Vol. I, at 272-273); (State‘s Ex. 7). Plaugher stated that Roebling comes in either a 12-ounce bottle or a 16-ounce bottle, though she was not certain which, and that it contains 7.8 percent alcohol by volume. (Nov.
{¶16} Chelsey Crawford (“Crawford“) testified that on the night of May 2, 2018, she was driving on I-75 from Lima to Beaverdam. (Nov. 12-14, 2019 Tr., Vol. I, at 281-282). She stated that, at approximately 11:45 p.m., she was exiting I-75 at the Beaverdam exit when she saw a “heavy duty” Ford F-350 pickup truck “turn onto the exit ramp the wrong way” ahead of her. (Id. at 282-283). Crawford testified that as soon as she realized that the pickup truck was driving straight toward her, she flashed her high-beams repeatedly and “lay[ed] on [her] horn.” (Id. at 284-285). However, according to Crawford, she did not see anything that indicated that the driver of the truck saw or reacted to her warning signals. (Id. at 285-286). Crawford testified that as the truck continued driving toward her down the exit ramp, she realized that it was not going to stop. (Id. at 286). As a result, Crawford was forced to veer off to the side of the exit ramp to avoid colliding with the truck. (Id.). Crawford testified that, as far as she could tell, the driver of the truck did not react when she veered off of the ramp. (Id.). She stated that she watched in her rearview mirror as the truck entered northbound traffic on I-75 and struck another vehicle. (Id. at 288). Crawford did not observe any illumination of the truck‘s brake
{¶17} Trooper Michael Kinsinger (“Trooper Kinsinger“), who responded to the scene of the crash between 11:45 p.m. and 11:50 p.m., testified that when he first made contact with Robinson, Robinson was outside of his truck and leaning against it. (Nov. 12-14, 2019 Tr., Vol. II, at 316). Trooper Kinsinger stated that when he encountered Robinson, he “detect[ed] an odor of alcoholic beverage upon his breath.” (Id. at 318). After this initial encounter, Robinson was moved to the front seat of Trooper Kinsinger‘s patrol vehicle, where, according to Trooper Kinsinger, “the odor of alcohol became more present upon [Robinson‘s] breath. Became stronger.” (Id.). Trooper Kinsinger testified that he also noticed that Robinson‘s eyes were bloodshot, that he was unsteady on his feet, and that he was slurring his speech—all of which suggested to Trooper Kinsinger that Robinson was impaired. (Id. at 318-319, 322). Trooper Kinsinger further testified that he took photographs of the signage posted around the exit ramp that Robinson used to enter I-75. (Id. at 331). These photographs reflect that the exit ramp was flanked on both sides by unobstructed, highly reflective signs reading “Do Not Enter” and “Wrong Way.” (State‘s Exs. 22-26).
{¶18} Sergeant Steven Posada (“Sergeant Posada“), who responded to the crash around midnight, testified that when he spoke to Robinson at the scene, he
{¶19} Finally, Joshua Schlosser (“Schlosser“) testified that he received a phone call from Robinson just before midnight on May 2, 2018. (Id. at 401). The truck Robinson was driving on May 2, 2018, was registered in Schlosser‘s wife‘s name, and Robinson was in the process of purchasing it. (Id. at 390). Schlosser testified that when he answered the phone, Robinson “frantically started saying, ‘Mayday, Mayday, Mayday. I‘ve been in an accident, hit head on, possible fatalities.‘” (Id. at 401). Schlosser stated that Robinson was “slurring, * * * sounded intoxicated or not of his right mind.” (Id. at 403).
{¶20} To summarize, the State established that, in a period of less than seven hours, Robinson consumed over 40 ounces of extraordinarily potent beer as well as 36-48 ounces of a beer that, while less potent, contained nearly eight percent alcohol by volume. Shortly after finishing the last of these drinks, Robinson got into his truck and turned onto an exit ramp. Robinson, who ignored or failed to see both the road signs warning him against his course of travel and Crawford‘s signals, then continued southward along the exit ramp until he entered northbound traffic on I-75, where he collided head-on with Watson‘s vehicle. Law enforcement officers
{¶21} Although the blood test results certainly supplement this evidence, when the test results are excluded from consideration, the State‘s evidence still proves overwhelmingly that Robinson was under the influence of alcohol when his truck collided with Watson‘s vehicle on the night of May 2, 2018. Accordingly, with respect to his under-the-influence OVI conviction, Robinson has not demonstrated that he was prejudiced by his trial counsel‘s performance because there is not a reasonable probability that he would have been acquitted of this charge even if his trial counsel had succeeded in having the test results excluded from the case entirely.
{¶22} The same is true of Robinson‘s aggravated-vehicular-homicide and aggravated-vehicular-assault convictions. To convict Robinson of aggravated vehicular homicide and aggravated vehicular assault, the State was not required to prove that Robinson committed a per se OVI. Instead, the State had to prove only that Robinson committed some type of OVI, including an under-the-influence OVI. Therefore, because there is not a reasonable probability that Robinson would not have been convicted of the under-the-influence OVI and because it was enough for
{¶23} Nevertheless, there is one area in which Robinson‘s arguments have slightly more traction. Robinson argues that “[t]here was a reasonable probability of a different outcome insofar as [he] would not have been convicted of the per se OVI in Count Three if the blood-alcohol evidence was properly limited.” (Appellant‘s Brief at 10). He further notes that when the trial court found that his two OVI convictions merged for purposes of sentencing, the State elected to sentence on the per se OVI rather than the under-the-influence OVI. (Id.). Thus, he argues that he would not have been convicted of and sentenced on the per se OVI had the blood test results been excluded. (Id. at 10-11).
{¶24} We agree with Robinson to the extent that, had his trial counsel succeeded in excluding the blood test results, he could not and would not have been convicted of and sentenced on the per se OVI. However, because Robinson was convicted of violating both
{¶25} Robinson‘s first assignment of error is overruled.
Assignment of Error No. II
The trial court abused its discretion by excluding evidence of potential contributory negligence.
{¶27} Before we can reach the merits of the arguments Robinson raises under his second assignment of error, we must first consider the State‘s claim that Robinson did not preserve his objections to the trial court‘s ruling on the motion in limine because he “did not obtain a final ruling on the admissibility of evidence of the victim‘s manner of driving.” (Appellee‘s Brief at 12). “A motion in limine is defined as ‘[a] pretrial motion requesting [the] court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to [the] moving party that curative instructions cannot prevent [a] predispositional effect on [the] jury.‘” State v. Miller, 3d Dist. Allen No. 1-18-17, 2018-Ohio-4648, ¶ 8, quoting State v. Wild, 2d Dist. Clark No. 2009 CA 83, 2010-Ohio-4751, ¶ 27,
{¶28} “In order to preserve for appeal any error in the trial court‘s resolution of a motion in limine, the objecting party must ‘seek the introduction of the evidence by proffer or otherwise’ at trial ‘to enable the court to make a final determination as to its admissibility.‘” (Emphasis deleted.) Id. at ¶ 9, quoting Grubb at paragraph two of the syllabus and citing State v. Brown, 38 Ohio St.3d 305 (1988), paragraph three of the syllabus. “Then, ‘[a]n appellate court will * * * review the correctness of the trial court‘s ruling on the objection rather than the ruling on the motion in limine.‘” Id., quoting Wild at ¶ 29, citing State v. White, 4th Dist. Gallia No.
{¶29} After reviewing the record, we agree with the State that Robinson failed to preserve for appeal any errors in the trial court‘s resolution of the State‘s motion in limine. The State filed its motion in limine on the morning of November 12, 2019, just before jury selection began in Robinson‘s trial. (Doc. No. 185). In its motion in limine, the State explained that it anticipated that Robinson “may want to present testimony regarding alleged bad driving of, or unrestrained passengers in, the victim vehicle in this case.” (Id.). The State argued that “under Ohio law, such evidence of the victim‘s comparative or contributory negligence is not relevant in [a] criminal case.” (Id.). The State requested that the trial court issue an order “prohibiting the defense from presenting, at trial, any evidence of the victim‘s conduct that the jury might consider as contributing to injuries suffered in this case.” (Id.).
{¶30} After jury selection, the trial court turned to the State‘s motion in limine. The trial court began by granting the State‘s motion in part and barring Robinson from presenting “any evidence of the failure to wear a seatbelt.” (Nov. 12-14, 2019 Tr., Vol. I, at 179-180). The trial court then considered whether to prevent Robinson from presenting evidence about Watson‘s driving. Though the trial court had not yet formally granted the State‘s motion in its entirety and
[I]t is at least apparent at this point that [Robinson] may take the stand and during the course of his testimony was desirous of explaining what he observed, including what he perceived as the driving of the victim vehicle; where it was, how it drove, if it was trying to avoid or whatever, things like that. So, to the extent that‘s contributory, I understand it‘s not allowed. But to the extent that‘s informational only I think the court can instruct around that if * * * [Robinson] testifies that way. In other words, if [Robinson] would testify that Mr. Watson, driving the vehicle, was reckless or if he turned a certain direction or something like that or did or did not make evasive maneuvers, if he testifies to his observation without maybe
concluding that that‘s * * * part of the act * * * part of the cause of death or injury, that he can at least testify to those facts * * *
(Id. at 180-181). After the proffer, the trial court ruled that it was not “going to allow testimony in that regard because * * * it would unduly confuse the jury on the issues because they‘re not going to get a contributory negligence or comparative negligence type of instruction.” (Id. at 182-183). Accordingly, the trial court ruled that “at this point the State‘s motion will be granted.” (Id. at 183). However, the trial court emphasized that it was possible that it could “reconsider” its ruling on the State‘s motion in limine in light of the evidence presented at trial. (Id.). The trial court never revisited its ruling.
{¶31} Despite Robinson‘s proffer, the trial court never made a final, definite determination as to the admissibility of evidence relating to Watson‘s driving. The trial court‘s statement that it was granting the State‘s motion “at this point” and its commitment to reconsider its ruling if appropriate clearly indicate that the trial court‘s ruling was tentative and nonfinal. Therefore, because the trial court‘s ruling on the State‘s motion in limine was never converted into a final ruling on the admissibility of evidence of Watson‘s driving, Robinson failed to preserve for appeal any error in the trial court‘s resolution of the State‘s motion in limine.
{¶32} Moreover, even if the trial court had rendered a final ruling based on Robinson‘s proffer, the form of the proffer would make it nearly impossible for this
{¶33} Here, rather than detailing his proposed testimony with the required specificity, Robinson‘s proffer consisted only of speculation and general
{¶34} Robinson‘s second assignment of error is overruled.
Assignment of Error No. III
Appellant‘s constitutional right to testify at trial was violated when the trial court failed to ensure that appellant knowingly, intelligently, and voluntarily waived that right.
{¶35} In his third assignment of error, Robinson argues that he was improperly deprived of his constitutional right to testify in his own defense because the trial court did not ensure that he knowingly, intelligently, and voluntarily waived that right. Robinson argues that the trial court “should have informed [him] that he had a right to testify” because there was an “open disagreement” between himself
{¶36} “Generally, the defendant‘s right to testify is regarded both as a fundamental and a personal right that is waivable only by an accused.” State v. Bey, 85 Ohio St.3d 487, 499 (1999). However, “a trial court is not required to conduct an inquiry with the defendant concerning the decision whether to testify in his defense.” (Emphasis sic.) Id.
{¶37} While Robinson acknowledges that trial courts do not usually have a duty to conduct an inquiry with the defendant concerning the defendant‘s decision whether to testify, he argues that an exception applies where there are “any statements or actions from the defendant indicating disagreement with counsel [about the decision to testify] or the desire to testify * * *.” United States v. Webber, 208 F.3d 545, 551 (6th Cir.2000). He maintains that this exception is applicable here because he “filed a pro se motion shortly before trial requesting different counsel due to a disagreement with counsel” and that during a hearing on the motion, it was apparent that he and his trial counsel “had a difference of opinion on trial strategy.” (Appellant‘s Brief at 14). Robinson also claims that the exception applies because “defense counsel indicated that Robinson wished to testify” during pretrial discussions regarding the State‘s motion in limine. (Id.).
{¶39} Robinson‘s third assignment of error is overruled.
{¶40} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
Judgment Affirmed