[Cite as State v. Robinson, 2014-Ohio-3645.]




               IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :       C.A. CASE NO.      2013 CA 69

v.                                                       :      T.C. NO.    12CR816

TRAVIS ROBINSON                                          :       (Criminal appeal from
                                                                 Common Pleas Court)
        Defendant-Appellant                              :

                                                         :

                                               ..........

                                               OPINION

                         Rendered on the          22nd       day of        August        , 2014.

                                               ..........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

ADRIAN KING, Atty. Reg. No. 0081882, P. O. Box 302, Xenia, Ohio 45385
     Attorney for Defendant-Appellant

                                               ..........

FROELICH, P.J.

                 {¶ 1} Travis Robinson appeals from a judgment of the Clark County Court

of Common Pleas, which found him guilty following a bench trial of one count of rape; no
                                                                                               2

presentence investigation was conducted, and the court sentenced Robinson to five years in

prison and designated him a Tier III sex offender.

       {¶ 2}    For the following reasons, the judgment of the trial court will be affirmed.

       {¶ 3}     In December 2012, Robinson was indicted on one count of rape in violation

of R.C. 2907.02(A)(1)(c), which provides that “[n]o person shall engage in sexual conduct

with another who is not the spouse of the offender * * * when any of the following applies: *

* * The other person’s ability to resist or consent is substantially impaired because of a

mental or physical condition or because of advanced age, and the offender knows or has

reasonable cause to believe that the other person’s ability to resist or consent is substantially

impaired because of a mental or physical condition or because of advanced age.”

       {¶ 4}    Pursuant to the bill of particulars, Robinson was accused of “insert[ing] his

penis into the victim’s mouth while she was unconscious” due to intoxication. Robinson

had videotaped the incident on his cell phone, which was later found by the complainant.

Robinson’s pre-trial motion to suppress the video was denied, and he does not challenge that

decision on appeal.

       {¶ 5}    The identities of the persons and the act depicted in the video were not

disputed at trial, nor was the complainant’s unconsciousness. However, the circumstances

surrounding the creation of the video and Robinson’s understanding of the complainant’s

“consent” were disputed.

       {¶ 6}    Robinson and the complainant, A.P., dated for more than two years and had

a sexual relationship throughout that time. They did not live together. Robinson had

cheated on A.P. several times and had given her sexually transmitted diseases. Nonetheless,
                                                                                          3

she envisioned a future with him, including children, and she testified that Robinson was

like a father to her young child. A.P. was very possessive of Robinson and became very

upset when she suspected him of cheating.

        {¶ 7}    The alleged rape occurred on the night of November 10-11, 2012, at the

complainant’s residence in Springfield. According to A.P., she, Robinson, and a couple of

friends were drinking hard liquor and smoking marijuana in her bedroom. A.P. did not

know how many shots of liquor she had consumed, but she said that it was “a lot,” and she

“hadn’t had any sleep.” A.P. and Robinson got into a physical and verbal fight, as they

frequently did, about Robinson’s cheating on A.P. The friends broke up the fight and then

left.

        {¶ 8}    According to A.P., she and Robinson had not had sexual intercourse of any

kind earlier in the evening and had not discussed doing so. She was very drunk, and she

does not remember any events from the time the friends departed until she awoke when

Robinson burned her on her “butt” with a cigarette. It was still dark outside at this time.

She jumped off the bed and began to yell at Robinson, and then noticed that she “didn’t have

any pants on” or underwear. (She had been dressed when she passed out or fell asleep.)

They renewed their fight, which was again broken up by others in the house. A.P. did not

know how long she had been unconscious, but she testified that she was still intoxicated

when she awoke and resumed her fight with Robinson. Robinson then left, and A.P. went

back to sleep.

        {¶ 9}    A.P. estimated that she slept until about 10 a.m. Shortly thereafter, she

looked under her bed for her shoes and began to receive phone calls from Robinson, who
                                                                                           4

was looking for his missing phone. A.P. found the phone under her bed.        A.P., with her

friend and housemate, J.J., began to look through the phone for evidence of Robinson’s

cheating. She discovered that the most recent video depicted her, wearing the clothes she

had worn the previous day, unconscious, with Robinson’s penis in her mouth. She became

very upset.

       {¶ 10} Although J.J. and his father urged A.P. to go to the police, she did not

immediately do so; she testified that she loved Robinson and wanted to work things out with

him. A.P. testified that she cried all day and, when she went to work that night, she was too

upset to work. She told some co-workers what had happened, and they also encouraged her

to go to the police. She went to the police department and then to the hospital, where a rape

kit was completed.

       {¶ 11} A.P. acknowledged having called some of the women whose numbers she

found on Robinson’s phone to ask if they were sleeping with Robinson. (One of the women

testified that she had received such a call on November 11 or 12, 2012.)           A.P. also

acknowledged that, after looking at Robinson’s phone, she was very angry, both about the

video and about his cheating. She stated that she and Robinson had never previously

recorded their sexual activities or talked about doing so.

       {¶ 12} On cross-examination, A.P. stated that she and Robinson had fought

frequently, including physical altercations, because of her anger about his cheating,

including “with underage girls.” She admitted that she had confronted some of these

women and/or girls. She also acknowledged that she had cheated on Robinson herself, so

he would know how she felt.
[Cite as State v. Robinson, 2014-Ohio-3645.]
        {¶ 13} A.P. was questioned about letters she had written to Robinson when he was

in jail prior to the rape on another charge. She admitted that, in the letters, she had

“probably” mentioned getting a camera to take “sexual pictures” of herself. They had also

talked about A.P.’s taking pictures for Robinson (before November 2012) in which she was

clothed in panties and a bra, or showing her feet and nylons, because he was “obsessed” with

those things, and she was familiar with his interests because they had been in a relationship

for more than two years.

        {¶ 14}     A.P. further stated that, after she was burned by Robinson and discovered

her partial state of undress, she “thought maybe [she and Robinson] had had sex,” but she

was not upset about this possibility until she saw the video. A.P. testified that she would

have done “anything sexually” with Robinson, if she had been awake, and would have

performed oral sex when she awoke if he had wanted her to do so, but that she had not given

Robinson permission to have sex with her when she was unconscious.                     She also

acknowledged that Robinson had told her in the past that he had “raped” her when she was

asleep, but that she had not believed him.

        {¶ 15} Springfield Police Officer Matthew Parr met with A.P. when she came to the

police station on November 12, 2012. He testified that she was “upset” and “embarrassed.”

 Parr testified that he observed bruises on A.P.’s body and marks and scratches on her neck,

consistent with her accounts of recent physical altercations with Robinson. (Parr did not

mention burn marks in his testimony.)          Parr also watched the video on the phone presented

by A.P., which depicted the complainant “unconscious or passed out in some regard and a

male inserting his penis in her mouth.” A.P. identified Robinson as the perpetrator and

owner of the phone. Parr sent A.P. to the hospital and went to Robinson’s house himself,
                                                                                                                                   6

where Robinson was arrested on a single charge of rape.

         {¶ 16} Robinson also testified about the events of November 10-11, 2012 and the

history of his relationship with A.P. Robinson admitted that he had seen other women

during his relationship with A.P., but he denied that any of them were minors. Robinson

stated that A.P. was very jealous and became “violently angry” when she suspected him of

cheating.        Robinson also testified that, throughout their relationship, he and A.P. had

vaginal and oral sex “almost every time [they] met up,” often involving alcohol and drugs,

and that A.P. had never said no to sex.

         {¶ 17}        Robinson stated that, on the evening in question, he, A.P. and some friends

had been drinking a “dark alcoholic liquor” called Paul Masson and Budweiser; the drinking

had begun before he arrived, but he joined in. He testified that he smelled, but did not see,

marijuana, and that he also saw A.P. with cocaine and pills, but did not see her ingest them.

Robinson stated that he and A.P. went to her bedroom at her initiative, played video games

for 15 to 20 minutes, and then A.P. asked if he “wanted to f***.” 1 A.P. proceeded to

engage in fellatio “for about five minutes,” but then she “just stopped,” and Robinson saw

that she was “sleeping.” Robinson “grabbed [his] phone and recorded a 25 or 30 second

video * * * to show her the following day that this incident had transpired because in the

past the same thing had happened and she never believed me.”

         {¶ 18} According to Robinson, A.P. woke up 15 to 20 minutes later when Robinson

pinched her on the leg.               (Robinson denied burning A.P. with a cigarette; although he

             1
               Because our opinions are widely available online, we have chosen to insert asterisks into certain offensive words that
   appear in the transcript of this case and in other cases.
                                                                                             7

smoked, he denied that he even had cigarettes with him on the night in question.) A.P. was

very angry when she awoke and accused Robinson of burning her. She also tried to take

back the shirt he was wearing, which she had given to him. According to Robinson, A.P.

grabbed a cracked CD and swung it at him, puncturing his hand.

       {¶ 19} Robinson testified that A.P. had been awake when the fellatio started and

had passed out or fallen asleep during the act. He also reiterated that A.P. had passed out

during sex numerous times in the past, and that she had initiated oral sex in the past while he

was sleeping.    A.P. texted Robinson the word “rapist” the following morning, but he

claimed he was confused and did not realize he had done anything wrong.

       {¶ 20} Robinson admitted that when he was confronted and interviewed by the

police, he had initially told several lies, including that he had broken up with A.P. months

earlier and had not seen her, that he was not the man in the video, and that he was being “set

up” by A.P. Later in the interview, he admitted that he had been “scared” and “in a state of

denial” and told the police the “somewhat” more truthful account that A.P. had asked to

have sex and had asked Robinson to record it. Robinson maintained that A.P. had “fallen

asleep” or had been “coked out,” rather than “passed out.” At the end of the interview,

Robinson agreed with the police officers that the video “looked bad,” but he testified that he

had agreed with them on this point “just to end the interview.”

       {¶ 21} The trial court found Robinson guilty of rape, a felony of the first degree; it

sentenced him to five years in prison, classified him as a Tier III sex offender, imposed a

mandatory five-year term of postrelease control, and ordered him to pay all costs and fees

permitted by law.
                                                                                             8

        {¶ 22} Robinson raises two assignments of error on appeal, which we address in an

order that facilitates our discussion.

        {¶ 23} The second assignment of error states:

                The court’s verdict should be reversed as against the manifest

        weight of the evidence.

        {¶ 24} Robinson contends that “reasonable doubt exists with regard to the mens

rea” because he believed that A.P. had consented to his sexual acts with her, because she had

invited him “to f***,” had had “sex with him on a constant basis,” had never refused to have

sex with him, and had been conscious when the sex began. Also, when he had told her in

the past that they had engaged in sex while she was unconscious, she had not believed him

but also had not objected. Therefore, he claims that he had “no reason to believe that he

could not finish what they had started.”

       {¶ 25}    “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.”        State v. Wilson, 2d Dist. Montgomery No. 22581,

2009-Ohio-525, ¶ 2. When evaluating whether a conviction is contrary to the manifest

weight of the evidence, the appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, citing State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
                                                                                               9

          {¶ 26}    Because the trier of fact sees and hears the witnesses at trial, we must defer

 to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

 witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,

 1997).     The fact that the evidence is subject to different interpretations does not render the

 conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of

 conviction should be reversed as being against the manifest weight of the evidence only in

 exceptional circumstances. Martin at 175.

          {¶ 27}    Robinson’s argument is based on his version of events, which was

contradicted by A.P. Although she was unconscious, and therefore could not provide a full

account of events, she denied that she had ever consented to having (or finishing) sex while

she was unconscious. Moreover, even if it had occurred previously, Robinson acknowledged

that A.P. had not believed his claims to that effect. The trial court could have reasonably

concluded that her failure to believe or to “object” to such an assertion in the past did not

amount to consent. Further, according to A.P., her incapacitation began prior to any sexual

activity, as the last event she remembered was the departure of her friends.

          {¶ 28}   The testimonies of Robinson and of A.P. contain some inconsistencies and

some uncorroborated claims. However, A.P. testified that she had not consented to having

sex when she was unconscious, and her inability to consent in that state was apparent. The

trial court did not clearly lose its way or create a manifest injustice when it found Robinson

guilty of rape.

          {¶ 29} The second assignment is error is overruled.

          {¶ 30} The first assignment of error states:
                                                                                              10

       Mr. Robinson should be granted a new trial because he was denied

       effective assistance of counsel when the trial [court] appointed counsel

       only one business day before trial.

       {¶ 31} Robinson claims that “no attorney could have effectively defended him” when

there was so little time between counsel’s appointment and trial. He argues that prejudice

should be presumed under these circumstances.

       {¶ 32}    We review alleged instances of ineffective assistance of trial counsel under

the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable

assistance.   Strickland, 466 U.S. at 688.      To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his or her errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been different.

Id.

       {¶ 33} Robinson was initially represented by an attorney from the public defender’s

office. On May 3, 2013, that attorney filed a motion to withdraw, asserting a conflict of

interest, because one of the witnesses disclosed by the State was also represented by the public

defender’s office. On May 6, the trial court held this motion “in abeyance” to see if the

witness would appear, and the trial was continued by agreement of the parties. The trial was

scheduled for July 15, 2013.
                                                                                          11

       {¶ 34}    On Thursday, July 11, 2013, Robinson appeared before the court and waived

his right to a jury trial. There had been no further entries into the record with respect to

Robinson’s representation, but he was represented at the jury waiver by Darnell Carter (an

attorney not associated with the public defender’s office). At trial on July 15 (a Monday), the

prosecutor stated that Carter had been appointed the previous Thursday (the day of the jury

waiver), and no one disputed this fact.

       {¶ 35}    In the preliminary remarks, the prosecutor noted that Carter “had a very brief

period of time to prepare for trial.” Thereafter, Carter stated that he was prepared to go

forward, and Robinson stated that he did not have any reservations about Carter’s representing

him at trial that day. The record also reveals that, on the day of trial, the State sought a

continuance, because one of its witnesses was not present, and Robinson’s attorney opposed

this motion.

       {¶ 36} The prosecutor stated that, although Carter was not counsel of record

throughout the proceedings, he had been in contact with the prosecutor “when this matter was

first indicted,” inquiring “as to the nature of the charges and the evidence against” Robinson.

The prosecutor also stated her belief that Carter had met with Robinson “on multiple

occasions over at the jail,” but acknowledged that she did not know the content of their

conversations. Defense counsel did not elaborate on any of his conversations with Robinson

and did not seek a continuance; the case proceeded to trial without objection.

       {¶ 37} Although the time between counsel’s acknowledgment as the attorney of

record and the trial was very short, counsel had previously been aware of and involved in the

case to some degree, and there is no basis to conclude that counsel was not prepared to
                                                                                              12

proceed on the day of trial. Counsel affirmatively stated that he was ready to proceed.

Under these circumstances, the trial court did not abuse its discretion in proceeding to trial.

         {¶ 38} Moreover, Robinson has not demonstrated that his trial counsel’s conduct fell

below an objective standard of reasonableness and that counsel committed any errors serious

enough to create a reasonable probability that, but for the errors, the result of the trial would

have been different. As far as we can tell from the record, counsel presented Robinson’s

defense very competently, including effective cross-examination of the State’s witnesses.

Robinson asserts on appeal that Carter “later indicated that he obtained information at trial

that would have changed his trial strategy;” however, Robinson has not indicated what the

information was, whether it would have been obtained before trial even if counsel had more

time, or how the strategy would have changed.

         {¶ 39} The first assignment of error is overruled.

         {¶ 40} The judgment of the trial court will be affirmed.



                                           ..........

HALL, J., concurs.

DONOVAN, J., dissenting:

         {¶ 41} I disagree. In my view, the egregious circumstances surrounding the trial

court ‘s appointment of counsel justify a presumption of ineffective assistance of counsel.

The very first thing newly appointed counsel did, prior to obtaining discovery, was advise the

trial court within moments of his appointment that Robinson would waive his right to jury

trial!   The prosecuting attorney noted, “we’ll make sure that discovery is available to
                                                                                           13

Mr. Carter.” Immediately thereafter, the jury waiver was executed without benefit of review

of discovery. This cannot be characterized as effective representation, when there has been

no opportunity yet to evaluate the strength of the State’s case, the wisdom of waiving a jury,

and a discussion of all possible defenses with Robinson.

       {¶ 42}    Under Cronic v. U.S., 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984),

and Powell v. Alabama, 287 U.S. 45, 53 S.Ct 55, 77 L.Ed. 158 (1932), prejudice must be

presumed when an individual is not accorded the right to counsel in any meaningful sense

where it is apparent that counsel did not have sufficient time to engage in thorough ongoing

investigation and preparation. In my view it is wholly unreasonable to suggest or conclude

that even the most talented, experienced defense attorney can prepare a first degree felony rape

trial in three days. (Two of those three days were over the weekend, which no doubt limited

access to witnesses, especially those in law enforcement). Robinson’s situation fits squarely

under the third prong of Cronic wherein the court noted that “the likelihood that any lawyer,

even a fully competent one, could provide effective assistance is so small that a presumption

of prejudice is appropriate.” Id. at 659-60.

       {¶ 43}    The court was aware of the public defender’s conflict of interest for over two

months prior to the reset jury trial, yet it did not rule on the public defender’s motion to

withdraw until the eleventh hour, while precious investigation and preparation time dissipated.

 This delay is inexcusable and unreasonable. Those two months would have provided the

new attorney a meaningful opportunity to investigate the case, interview witnesses, develop a

theory of defense, prepare the defendant for testifying and, oh yes, determine if a jury waiver

would be beneficial to Robinson in any respect.
                                                                                            14

       {¶ 44}    In my view, Robinson was denied his Sixth Amendment right to counsel,

given the inexplicable delay in change of counsel, immediate jury waiver, and ridiculously

brief period of time between appointment and trial.         While “the Constitution nowhere

specifies any period which must intervene between the required appointment of counsel and

trial,” the Court has recognized that “the denial of opportunity for appointed counsel to confer,

to consult with the accused and to prepare his defense, could convert the appointment of

counsel into a sham and nothing more than a formal compliance with the Constitution’s

requirement that an accused be given the assistance of counsel.” Avery v. Alabama, 308 U.S.

444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940). I would reverse for a new trial to provide new

counsel a meaningful opportunity to discharge his duties, which would also permit Robinson

to have his case fairly considered by twelve impartial jurors. This is a highly fact sensitive

case. I would reverse and remand.

                                          ..........

Copies mailed to:

Ryan A. Saunders
Adrian King
Hon. Douglas M. Rastatter
