         [Cite as State v. Robbins, 2013-Ohio-612.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-120107
                                                          TRIAL NO. B-1003748
        Plaintiff-Appellee,                           :
                                                             O P I N I O N.
  vs.                                                 :

DAVID ROBBINS,                                        :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and Cause
                          Remanded

Date of Judgment Entry on Appeal: February 22, 2013


Joseph T. Deters, Prosecuting Attorney, and James Michael Keeling, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}    This is an appeal from a judgment of conviction and sentence in a

criminal case. David Robbins challenges his convictions based upon the admission

of statements he made to police officers after his arrest, which he contends were

involuntary and should have been suppressed, the admission of “other acts”

evidence, insufficiency of the evidence and ineffective assistance of counsel. He

challenges his sentences on the grounds that the trial court erroneously imposed

postrelease control and imposed consecutive sentences without making the

statutorily mandated findings. For the reasons that follow, we affirm the convictions

but vacate the sentences in part and remand the cause for resentencing.

       {¶2}    Mr. Robbins was indicted for aggravated murder, murder, and four

counts of felonious assault.   He repeatedly stabbed Yolanda Smith, causing her

death, and cut Doris Robbins when she came to Ms. Smith’s defense. Ms. Robbins is

the spouse of the defendant and the mother of Ms. Smith. According to evidence

adduced at trial, Mr. Robbins had been married to Ms. Robbins for the past 21 years,

but also had been engaging in sexual relations with Ms. Smith for the past eight years

       {¶3}    Mr. Robbins filed a motion to suppress statements that he had made

to police when he was questioned three days after the stabbing. Following a hearing,

the trial court denied Mr. Robbins’s motion. A bench trial followed.

       {¶4}    Norwood police officer Matt Evans testified at trial that he had

responded to Millcrest Park on June 4, 2010. When he arrived at the park, he was

met by Ms. Robbins who told Officer Evans that her daughter had been stabbed. Ms.

Smith was barely breathing and had no noticeable pulse. According to Officer Evans,

Ms. Robbins identified the person who had stabbed Ms. Smith as “Dave.”




                                          2
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}    Ms. Robbins testified that at the suggestion of the defendant, she and

Ms. Smith agreed to meet at the park so that Ms. Smith could give Ms. Robbins

advice about Ms. Robbins’s relationship with the defendant. When Ms. Robbins

asked Ms. Smith whether she thought the Robbinses could work out their marital

problems, Ms. Smith answered, “Hell no, momma.” At that point, Mr. Robbins

walked behind Ms. Smith, hit her in the back, and then grabbed her by the collar and

began to stab her. The two fell to the ground wrestling. Ms. Robbins intervened and

tried to pull Mr. Robbins off of Ms. Smith, and in the process was cut by the knife.

Mr. Robbins jumped up and fled. Ms. Robbins further testified that she had not

learned that Mr. Robbins and Ms. Smith had had a sexual relationship and that Mr.

Robbins was the father of Ms. Smith’s twin boys until after he had been charged in

this matter.

       {¶6}    Detective Kurt Ballman testified about his interview with Mr. Robbins

after he had been taken into custody.   Detective Ballman related that after he had

informed Mr. Robbins of his Miranda rights, Mr. Robbins gave multiple accounts

about what had happened at the park. Mr. Robbins first claimed that he only

remembered falling down with Ms. Smith and that he had then blacked out. Later,

Mr. Robbins stated that he had stabbed Ms. Smith only after she had stabbed him.

He indicated a cut on his left hand that he said had been caused by Ms. Smith.

When Detective Ballman told Mr. Robbins that this story did not sound truthful, Mr.

Robbins stated that he had been upset because Ms. Smith had recently ended their

eight-year affair. At the park, he heard Ms. Smith tell her mother that he had raped

her.   Angered by the accusation, he grabbed a knife and stabbed Ms. Smith. Mr.

Robbins said he could remember stabbing Ms. Smith only once.




                                         3
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}     Denise Wallace testified on behalf of Mr. Robbins. According to Ms.

Wallace, Robbins had shown up at her house on June 4 with blood on his head and a

cut on his finger. Mr. Robbins told her that Ms. Smith had pulled a knife on him and

that he had blacked out.

       {¶8}     Mr. Robbins took the stand in his own defense. He stated that he had

begun a sexual relationship with Ms. Smith in an attempt to get her pregnant so that

she could leave the Army. By his account, he told Ms. Robbins about the relationship

during the week prior to June 4, and it was Ms. Smith who had suggested meeting in

the park.     Mr. Robbins testified that he did not remember much of what had

happened at the park. He only remembered that Ms. Smith had grabbed him by his

shirt and that he had run to his truck and driven away.

       {¶9}     At the conclusion of the trial, the court found Mr. Robbins guilty of

murder, two counts of felonious assault against Ms. Smith, and one count of

felonious assault against Ms. Robbins. He was acquitted of aggravated murder and

one count of felonious assault. The felonious assault counts involving Ms. Smith

were merged into the murder count, and the trial court imposed 15 years to life for

murder and eight years for felonious assault. The sentences were made consecutive.

       {¶10}    In his first assignment of error, Mr. Robbins asserts that the trial

court erred when it denied his motion to suppress the statements he had made

following his arrest. Mr. Robbins acknowledged that Detective Ballman had read

him his Miranda rights. But he contends that the waiver of his right to remain silent

and his subsequent statements were not voluntarily made because he had not taken

his diabetes medicine, had eaten little food, and had been sleep-deprived.

       {¶11}    We review the voluntariness of Mr. Robbins’s waiver and statements

under a totality-of-the-circumstances test. State v. Eley, 77 Ohio St.3d 174, 178, 672



                                          4
                       OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 640 (1996). That Mr. Robbins signed a written waiver form is strong proof of

the validity of the waiver. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844

(1988). And Mr. Robbins testified at the suppression hearing that he had voluntarily

waived his Miranda rights. The police provided him with his asthma medication and

with a bag of potato chips, but were unable to locate his diabetes medication.

Despite his claims that he was suffering from the effects of diabetes and sleep

deprivation, the recording of the police interview demonstrates that Mr. Robbins was

lucid, coherent, and had no difficulty communicating with Detective Ballman.

Having reviewed the record, we conclude that the trial court’s finding that Mr.

Robbins voluntarily waived his right to remain silent was supported by competent,

credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). The

first assignment of error is overruled.

        {¶12}    In his second assignment of error, Mr. Robbins argues the trial court

abused its discretion when it admitted evidence of his other bad acts. Over Mr.

Robbins’s objection, the court permitted Ms. Robbins to testify that Mr. Robbins had

beaten her in the past.1

        {¶13}    Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in

conformity therewith.” “Other acts” evidence may be admissible, however, “for other

purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake.”          Evid.R. 404(B).      The state argues that Ms.

Robbins’s testimony was admissible to explain the relationship between Ms.


1 In his assignment of error, Mr. Robbins also asserts that the admission of the testimony was
plain error, but because he objected at the time of the testimony, he preserved the error for our
review. We are not limited to plain-error review. See Crim.R. 52(B).


                                               5
                     OHIO FIRST DISTRICT COURT OF APPEALS



Robbins, Ms. Smith, and Mr. Robbins, and the immediate background of the crime.

The defendant contends that any probative value of such evidence is “substantially

outweighed by the danger of unfair prejudice” and therefore it should have been

excluded pursuant to Evid.R. 403(A).

       {¶14}   Even if we were to assume that the evidence should not have been

admitted, any error was harmless. The case was tried to the bench. Thus, we

presume that “the court considered only the relevant, material, and competent

evidence in arriving at its judgment unless it affirmatively appears to the contrary.”

State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). Further, admission of

Ms. Robbins’s testimony was harmless in light of the other overwhelming evidence of

Mr. Robbins’s guilt. The second assignment of error is overruled.

       {¶15}   In his third assignment of error, Mr. Robbins asserts that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence.

       {¶16}   When an appellant challenges the sufficiency of the evidence, we must

determine whether the state presented adequate evidence on each element of the

offenses. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On

the other hand, when reviewing whether a judgment is against the manifest weight of

the evidence, we must determine whether the trier of fact clearly lost its way and

created a manifest miscarriage of justice. Id. at 387.

       {¶17}   We conclude that the state presented sufficient evidence of murder

and felonious assault. And having reviewed the record, we are unable to conclude

that the trial court lost its way in finding Mr. Robbins guilty of the offenses. The

court was in the best position to determine the credibility of the witnesses. The third

assignment of error is overruled.



                                           6
                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18}       Mr. Robbins’s fourth assignment of error raises two separate errors

for our review. First, he contends that the trial court erred when it refused to acquit

him because he acted in self-defense. In one of his statements to Detective Ballman

and during his testimony, Mr. Robbins stated that Ms. Smith had attacked him first

with a knife. This version of events, however, was contradicted by Ms. Robbins’s

testimony.     Further, Dr. Karen Looman corroborated Ms. Robbins’s account when

she testified that Ms. Smith had been stabbed in the chest and back, and had suffered

defensive wounds to her hands.           Given this testimony and the overwhelming

evidence of Mr. Robbins’s guilt, the court did not err in failing to acquit on the basis

of self-defense.

       {¶19}       Within this assignment of error, Mr. Robbins also suggests that his

attorney was ineffective for failing to argue self-defense.         To prevail on this

argument, Mr. Robbins must demonstrate that his counsel’s performance was

deficient and that, absent his counsel’s errors, the result of the proceedings would

have been different. See State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373

(1989); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Counsel’s decision not to argue self-defense was a reasonable, tactical

one that we will not second-guess on appeal. And even if counsel had argued self-

defense, we are not convinced the result of the trial would have been different. The

fourth assignment of error is overruled.

       {¶20}       Mr. Robbins’s fifth assignment of error is that the trial court erred

when it imposed postrelease control as part of a murder sentence and failed to

address court costs.

       {¶21}       Mr. Robbins correctly contends that postrelease control does not

apply to sentences for murder. But in this case, Mr. Robbins also was sentenced for



                                             7
                       OHIO FIRST DISTRICT COURT OF APPEALS



felonious assault, a felony of the second degree, for which postrelease control is

mandatory. We note, however, that the trial court notified Mr. Robbins that he was

subject to five years of postrelease control. For a second-degree felony, only three

years of postrelease control is required. R.C. 2967.28(B)(2). We conclude therefore

that the trial court erred in notifying Mr. Robbins of the incorrect length of

postrelease control.

       {¶22}   The trial court also failed to address the issue of court costs when

sentencing Mr. Robbins. R.C. 2947.23(A) mandates that a trial court include in the

sentence the costs of prosecution. The trial court erred when it failed to address

costs and to make the appropriate order in its judgment entry. See State v. Lukacs,

188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506 (1st Dist.).          The fifth

assignment of error is sustained.

       {¶23}   In his sixth assignment of error, Mr. Robbins asserts that the trial

court erred in imposing excessive and consecutive sentences without having made

statutorily mandated findings.

       {¶24}   Our review of Mr. Robbins’s sentence has two steps. First, we must

determine whether the sentence was “clearly and convincingly contrary to law.”

State v. Valdez, 1st Dist. No. C-110646, 2012-Ohio-5754, citing State v. Kalish, 120

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 14. Second, if it was not contrary

to law, we review the sentence under an abuse-of-discretion standard. Id.; see R.C.

2953.08(G)(2).

       {¶25}   Before imposing consecutive sentences, the trial court must find that

“the consecutive service is necessary to protect the public from future crime or to

punish the offender and that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the



                                         8
                     OHIO FIRST DISTRICT COURT OF APPEALS



public.” R.C. 2929.14(C)(4). Then, the court must make at least one of the findings

listed in R.C. 2929(C)(4)(a)-(c).

       {¶26}   Here, the trial court did not make any findings before imposing

consecutive sentences. Therefore, we sustain the sixth assignment of error and

vacate the sentences to the extent that they were made consecutive.

       {¶27}   The cause is remanded for the trial court to consider whether

consecutive sentences are appropriate under R.C. 2929.14(C), and if so, to make the

proper findings on the record, for a consideration of court costs, and for the

imposition of the proper term of postrelease control. In all other respects, the trial

court’s judgment is affirmed.

          Judgment affirmed in part, sentences vacated in part, and cause remanded.


H ENDON , P.J., and H ILDEBRANDT , J., concur.


Please note:
       The court has recorded its own entry this date.




                                           9
