State v. Robertson ( 2011 )

[Cite as State v. Robertson, 2011-Ohio-4806.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94527
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MELVIN ROBERTSON
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Application for Reopening
Motion No. 443440
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Cuyahoga County Common Pleas Court
Case No. CR-516228
RELEASE DATE: September 16, 2011
FOR APPELLANT
Melvin Robertson, pro se
Inmate No. 582-196
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} In State v. Robertson, Cuyahoga County Court of Common Pleas
Case No. CR-516228, the jury found applicant, Melvin Robertson, guilty of
rape. This court affirmed the judgment of conviction in State v. Robertson,
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Cuyahoga App. No. 94527, 2011-Ohio-325. The Supreme Court of Ohio
denied applicant’s motion for leave to appeal and dismissed the appeal as not
involving any substantial constitutional question. State v. Robertson, 128
Ohio St.3d 1485, 2011-Ohio-242, 946 N.E.2d 242.
{¶ 2} Robertson has filed with the clerk of this court an application for
reopening. He asserts that he was denied the effective assistance of
appellate counsel because appellate counsel did not assign as error that: the
trial court permitted an expert witness to bolster the credibility of the victim;
the prosecution knowingly used perjured testimony; the trial court prevented
the victim from testifying regarding her clothing; and the cumulative effect of
these purported errors denied Robertson a fair trial. Robertson also
complains that appellate counsel was ineffective for acknowledging in the
appellant’s brief that Robertson and the victim had intercourse.
{¶ 3} We deny the application for reopening. As required by App.R.
26(B)(6), the reasons for our denial follow.
{¶ 4} Having reviewed the arguments set forth in the application for
reopening in light of the record, we hold that applicant has failed to meet his
burden to demonstrate that “there is a genuine issue as to whether the
applicant was deprived of the effective assistance of counsel on appeal.”
App.R. 26(B)(5). In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701
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N.E.2d 696, the Supreme Court specified the proof required of an applicant.
“In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we held
that the two-prong analysis found in Strickland v. Washington (1984), 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to
assess a defense request for reopening under App.R. 26(B)(5). [Applicant]
must prove that his counsel were deficient for failing to raise the issues he
now presents, as well as showing that had he presented those claims on
appeal, there was a ‘reasonable probability’ that he would have been
successful. Thus [applicant] bears the burden of establishing that there was
a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective
assistance of counsel on appeal.” Id. at 25. Robertson cannot satisfy either
prong of the Strickland test. We must, therefore, deny the application on the
merits.
{¶ 5} In his first proposed assignment of error, Robertson contends that
his appellate counsel should have asserted that the trial court erred by
permitting an expert witness “to give testimony that improperly bolstered the
credibility of the alleged victim * * *.” Application, at 2. Specifically,
Robertson observes that the record does not contain any physical evidence of
a sexual assault.
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{¶ 6} Three days after the incident giving rise to this case, the 17 year
old victim, S.S., reported it to the police. She also went to MetroHealth
Medical Center where a rape kit was performed.
{¶ 7} A forensic scientist from the Bureau of Criminal Identification
and Investigation (“BCI”), Justin Barnhart, who analyzed the rape kit,
testified regarding his report including the “Comments” section which states,
in part: “Victim reports Subject used condom. Condom not recovered.
Subject forced victim to shower after incident and no other sexual contact,
consensual or otherwise, reported by victim between incident and Rape Kit
Collection.” State’s Exh. 13. Barnhart also responded to questions
regarding the effect of the following circumstances on the ability to recover
evidence: the use of a condom; the victim’s taking a shower; the occurrence of
the event while the victim was menstruating; and the length of time semen
and saliva can be detected in or on the body.
{¶ 8} Robertson contends that, by reading the comments section as well
as by giving his opinion regarding the effect of the passage of time on
recovering bodily fluids, Barnhart was improperly commenting on the
credibility of S.S. “An expert may not testify as to the expert’s opinion of the
veracity of the statements of a child declarant.” State v. Boston (1989), 46
Ohio St.3d 108, 545 N.E.2d 1220, syllabus, modified on other grounds in State
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v. Dever, 64 Ohio St.3d 401, 1992-Ohio-41, 596 N.E.2d 436, paragraph one of
the syllabus. In light of Boston, Robertson argues that Barnhart’s testimony
“only served to bolster the credibility of the alleged victims [sic]
uncorroborated testimony * * *.” Application at 3.
{¶ 9} The state correctly observes, however, that Boston prohibits an
expert witness from testifying whether the expert believes the victim.
Robertson has not demonstrated that Barnhart made any statement
regarding the credibility of S.S. Rather, the portions of Barnhart’s testimony
cited by Robertson pertain to scientific matters and the content of his report.
Robertson has not, therefore, demonstrated that appellate counsel was
deficient or that he was prejudiced by the absence of his first proposed
assignment of error.
{¶ 10} The trial giving rise to this appeal occurred in October 2009.
Initially, Robertson was tried in August 2009, but the jury was unable to
reach a unanimous verdict. In his second proposed assignment of error,
Robertson argues that the prosecution knowingly used perjured testimony.
That is, Robertson contends that the victim’s testimony changed significantly
in the second trial compared with the first trial and other statements in the
record.
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{¶ 11} The state responds, however, that the victim’s “inconsistencies”
do not constitute perjury under R.C. 2921.11: knowingly making a false,
material statement under oath. The state also observes that this court
considered the inconsistencies in S.S.’s testimony on direct appeal. See State
v. Robertson, Cuyahoga App. No. 94527, 2011-Ohio-325, ¶49 (noting that
Robertson’s trial counsel cross-examined S.S. on various inconsistencies).
{¶ 12} Trial counsel cross-examined S.S. regarding her inconsistent
statements as well as argued those inconsistencies to the jury. On direct
appeal, appellate counsel argued that the inconsistencies in her testimony
demonstrate that there was insufficient evidence as a matter of law and that
the conviction was against the manifest weight of the evidence. This court
extensively reviewed various aspects of the victim’s testimony – including
inconsistencies, acknowledged that the jury was in the best position to judge
credibility and concluded that they had not lost their way.
{¶ 13} We must conclude that appellate counsel was not deficient,
because he did indeed argue that the inconsistencies required reversal.
Likewise, we must conclude that Robertson was not prejudiced by the absence
of his second proposed assignment of error.
{¶ 14} S.S. had met B.S., a 16 year old female, on MySpace.com. B.S.
was living with Robertson, who was 36 years old. S.S. and B.S. arranged for
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S.S. to spend the night of September 19-20, 2008 at the home of B.S. and
Robertson. “Between approximately 2:30 a.m. and 3:30 a.m. on September 20,
2008, defendant and S.S. had sexual intercourse.” Cuyahoga App. No.
94527, 2011-Ohio-325, ¶3. S.S. testified that Robertson convinced her to stay
for breakfast. Id. ¶25. “Before they took S.S. home, defendant and B.S. told
S.S. to sing along with some music, and they videotaped her, although S.S.
did not know it at the time.” Id. ¶26.
{¶ 15} In his fourth proposed assignment of error, Robertson complains
that the trial court limited cross-examination of S.S. regarding the clothing
she wore during the video. He states that she was wearing more revealing
clothing during the video taken the morning after she said Robertson raped
her than the evening before “which proves a degree of comfort.” Application,
at 9. Robertson argues that the rape shield law, R.C. 2907.02(D), does not
require exclusion of the testimony regarding the victim’s clothing.
{¶ 16} The state correctly observes, however, that the rape shield law
“essentially prohibits the introduction of any extrinsic evidence pertaining to
the victim’s sexual activity, with limited exceptions.” State v. Ciacchi,
Cuyahoga App. No. 92705, 2010-Ohio-1975. We agree with the state that
her attire hours after the time during which she testified Robertson raped her
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is not relevant. Appellate counsel was not deficient nor was Robertson
prejudiced by the absence of this assignment of error.
{¶ 17} In his fifth proposed assignment of error, Robertson contends that
appellate counsel was ineffective for failing to assign as error the cumulative
effect of proposed assignments of error 1, 2 and 4. As the discussion above
demonstrates, none of these proposed assignments of error provides a basis
for concluding that there is a reasonable probability that Robertson would
have been successful on direct appeal if his appellate counsel had assigned
these errors. His fifth proposed assignment of error is not well-taken.
{¶ 18} In his third proposed assignment of error, Robertson complains
that his appellate counsel acknowledged in the appellant’s brief that
Robertson and S.S. had intercourse. He contends that his defense had been
throughout the trial that “no sexual activity took place, nor did a rape occur.”
Application, at 8. Yet, during closing argument, Robertson’s trial counsel
reminded the jury: “In voir dire I had a conversation with you about
distinguishing between morality and legality. And if it were illegal to try to
have consensual sex or have consensual sex with a 17 year old, he would be
here for that.” Trial Transcript, Vol. III, 703-704.
{¶ 19} Obviously, Robertson’s contention is based on a faulty recollection
of the record. The testimony during trial was that Robertson had intercourse
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with S.S. That testimony has not been contradicted. Appellate counsel was
not deficient nor was Robertson prejudiced by appellate counsel’s merely
stating the facts in the record. Robertson’s fourth proposed assignment of
error is not well-taken.
{¶ 20} Robertson has not met the standard for reopening. Accordingly,
the application for reopening is denied.
EILEEN A. GALLAGHER, JUDGE
SEAN A. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR