[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
                                     4

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
                                     6

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
                                      9

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
