[Cite as State v. Roberson, 2017-Ohio-4339.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-16-1131

        Appellee                                   Trial Court No. CR0201503139

v.

Ronald Roberson                                    DECISION AND JUDGMENT

        Appellant                                  Decided: June 16, 2017

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Karin L. Coble, for appellant.

                                               *****

        MAYLE, J.

        {¶ 1} Following a jury trial, defendant-appellant, Ronald Roberson, appeals the

June 16, 2016 judgment of the Lucas County Court of Common Pleas convicting him of

domestic violence, aggravated burglary, rape, and participating in a criminal gang. We

affirm, in part, and reverse, in part.
                                         I. Background

         {¶ 2} On December 18, 2015, Roberson was indicted on one count of domestic

violence, in violation of R.C. 2919.25(A) and (D)(5); two counts of aggravated burglary,

in violation of R.C. 2911.11(A)(1); one count of rape, in violation of R.C. 2907.02(A)(2)

and (B); one count of aggravated robbery, in violation of R.C. 2911.01(A)(1)1; and one

count of participating in a criminal gang, in violation of R.C. 2923.42(A) and (B). The

charges stemmed from Roberson’s involvement with two women, A.A. and C.G., and his

alleged participation in the Bee Hive gang, a branch of the Crips gang.

         {¶ 3} The case was tried to a jury beginning June 13, 2016. The state presented

the testimony of 12 witnesses, including officers and detectives who investigated the

incidents underlying the indictment; a sexual assault nurse examiner (“SANE”);

Detective William Noon, a certified gang specialist; and the two victims. Roberson also

presented a witness and testified on his own behalf. The following facts were developed

at trial.

                                   A. August 27, 2015 Events

         {¶ 4} Roberson met C.G. in August of 2015. He introduced himself as “Gotti”

and asked for her phone number. The day after they met, Roberson called C.G. and

asked to come to her house. She assented and the pair smoked marijuana until C.G.

asked Roberson to leave. Later that week Roberson came to C.G.’s home with a friend.



1
    The state dismissed this count prior to trial.




2.
The three of them smoked marijuana and then Roberson and his friend left. This was the

extent of C.G.’s interactions with Roberson prior to August 27, 2015.

       {¶ 5} Roberson and C.G. both testified that late in the evening of August 26 or

early in the morning of August 27 Roberson went to C.G’s home and she voluntarily let

him into her home. Beyond that, they presented different versions of the events that

occurred.

       {¶ 6} C.G. testified that Roberson called her around midnight while she was

sleeping. He told her that he was at a nearby gas station and asked to come over. She

agreed. When Roberson knocked on the door, C.G. opened it and let him in. He

immediately asked to use her bathroom, which was upstairs where her children were

sleeping. She said he could, but he did not return after several minutes. She went up to

check on her children and found Roberson in her bedroom, not the bathroom. He asked

C.G. to sleep with him, but she told him they should take their time before making the

relationship sexual. Roberson grabbed C.G.’s hand to pull her toward the bed, started

kissing her, removed her underwear, and engaged in vaginal intercourse with her.

Although C.G. was not interested in sleeping with Roberson, she did not tell him “no”

when he initiated the sexual activity. She claimed that she was scared to fight him

because she did not know him well and did not know what he would do if she refused.

C.G. did, however, reply “no” when Roberson asked her if she liked what he was doing

and she testified that she also said “no” two other times during the encounter. She also

scratched Roberson on his side or his back during sex.




3.
       {¶ 7} C.G. further testified that after Roberson finished he asked to use C.G.’s

phone charger, which he retrieved from the first floor. He charged his phone in her

bedroom for a brief time and then went back downstairs. C.G. testified that she was

scared so she laid in her bed after Roberson went downstairs. C.G. heard voices

downstairs, but could not identify how many people she heard or if one of them was

Roberson. After the voices stopped, C.G. went downstairs and saw that her front door

was open and her TVs, computer, and game system were missing. She later discovered

that smaller items from upstairs, including her children’s tablets, were also missing. C.G.

then texted Roberson, telling him that he had 15 minutes to return her property or she was

going to call police. She sent him 14 text messages over the course of approximately 30

minutes. One of the messages said, “And you rapped [sic] me I told you no over and

over again.” Roberson did not respond to any of the messages.

       {¶ 8} C.G. testified that she called the police after texting Roberson. Officers

responded and took C.G. to the Toledo Hospital to have a rape kit performed. At trial,

C.G. read from a certified copy of her hospital records. Although C.G.’s testimony

largely matched the information in the hospital records, the records contained some

additional details. According to the medical records, C.G. told the SANE who examined

her that she had asked Roberson to leave when she found him upstairs. The medical

records also described her encounter with Roberson in the bedroom a bit differently. She

claimed that Roberson said “come here,” grabbed her by both arms, and threw her on the




4.
bed. The defense did not object to the admission of the records or to C.G. reading from

the records.

       {¶ 9} Roberson provided a different version of the evening’s events. He testified

that C.G. contacted him and asked him to come to her house. He walked over from a

nearby gas station. When he arrived, the two of them smoked marijuana and engaged in

some foreplay. He claimed that he never asked to use the bathroom. He also claimed

that C.G. suggested they go upstairs to her bedroom where the two engaged in consensual

sex. He testified that C.G. became uncomfortable after they had sex and asked him to

leave, which he did. He did not lock the door when he left. He claimed he did not take

any of C.G.’s property and it would have been impossible for him to take a television, a

computer, and a game system with him because he walked to C.G.’s house.

       {¶ 10} The SANE who examined C.G. testified at trial. She said that C.G.’s

demeanor when she arrived at the hospital was “very distraught.” She testified that C.G.

did not have any physical injuries, which she said is not uncommon in rape victims. She

also testified from the hospital records, which contained her notes of the evening’s events

as told to her by C.G. According to the SANE, C.G. had met a man named Gotti

approximately a year before. He called C.G. in the middle of the night and asked to come

over. She agreed. When Gotti came to the house he asked to use the restroom. C.G.

followed him upstairs and found him sitting on her bed. Gotti grabbed her by both arms,

threw her on the bed, and raped her. C.G. did not want to make any noise because she

did not want to wake her children. When Gotti finished, he asked to use her phone




5.
charger, which she gave him. When his phone was charged he went downstairs, but C.G.

did not know what he did while he was downstairs. C.G. stayed in her room, but could

hear noises and voices coming from downstairs. When the noises stopped she went

downstairs, locked the door, noticed that some of her property was missing, and called

the police.

       {¶ 11} The evidence the SANE collected was sent to the Ohio Bureau of

Investigation (“BCI”). Two BCI technicians testified to receiving the evidence from the

Toledo Police Department (“TPD”) and testing it for DNA. BCI found sperm and a

mixture of DNA on C.G.’s vaginal swab. Roberson’s DNA was found in both the sperm

and the DNA mixture. The chance of the DNA belonging to someone other than

Roberson is one in 35 quintillion, 470 quadrillion unrelated individuals.

       {¶ 12} Detective Rebecca Kincaid investigated C.G.’s rape allegations. Before

discussing the details of C.G.’s case, Detective Kincaid explained her background in

investigating sexual assaults. Based on that experience, she testified that there is no

typical response from sexual assault victims and very few victims display signs of

physical injury. Regarding C.G., Detective Kincaid testified that the only information

she had about the perpetrator at the time was his nickname of Gotti. She consulted the

TPD gang unit to try to determine Gotti’s identity. Although there were several men

nicknamed “Gotti” in the system, none of them matched the physical description given by

C.G.




6.
       {¶ 13} Detective Kincaid obtained a search warrant for Roberson’s DNA based on

the BCI test results. She executed the warrant on December 10, 2015, after Roberson

was arrested for the aggravated burglary incident with the second victim in this case,

A.A. Roberson said little while Detective Kincaid collected his DNA sample. He did,

however, deny knowing C.G. or ever spending time on the street where C.G. lived.

Roberson explained at trial that he did not recognize C.G.’s name when Detective

Kincaid mentioned it and he believed that C.G.’s house was on a street other than the one

Detective Kincaid asked about. It was not until she received the DNA results that

Detective Kincaid was able to positively identify Roberson as Gotti.

       {¶ 14} Based on these events, Roberson was charged with rape and one count of

aggravated burglary.

                             B. November 23, 2015 Events

       {¶ 15} A.A., the mother of two of Roberson’s children, testified about her

interactions with Roberson. At the time of trial, A.A. was in jail on a material witness

warrant to ensure her appearance at trial. Before A.A. took the stand, her appointed

counsel informed the court that A.A. had reluctantly agreed to cooperate and testify.

       {¶ 16} A.A. testified that she and Roberson were in a romantic relationship from

2011 to 2015. Though the relationship ended, they maintained contact because of the

children. At the time of the November incident, A.A. was approximately seven months

pregnant with a child not fathered by Roberson.




7.
       {¶ 17} Roberson periodically stayed the night at A.A.’s home to see his children

and help get them on the bus in the morning. Roberson spent the night at A.A.’s on

November 22, 2015, and returned the next afternoon to pick up some of his belongings.

While he was in the house, A.A. returned home and saw Roberson’s new girlfriend, Kiara

Gray, sitting in a car in front of the house. It is at this point that A.A.’s and Roberson’s

versions of events diverge.

       {¶ 18} A.A. testified that she was upset by Gray’s presence at her home and

confronted Roberson about it. A.A. claimed that she and Roberson “got into it,” which

included name-calling and “going back and forth with each other.” During the argument,

Roberson grabbed her by the neck and shoulder and threw her to the ground. A.A. ran

into the house to call the police and Roberson followed. Roberson apologized to A.A.,

but A.A. told Roberson that she was calling the police anyway. Roberson then grabbed

her, threw her up against a wall, and hit her head against the wall approximately four

times. She fell to the floor, and he left.

       {¶ 19} Roberson recalled the encounter differently. He testified that A.A. was

swearing at him and “getting all in my area, in my space.” He walked away, telling her

he was going to get his things and leave. A.A. continued to call Roberson “disrespectful”

while he claimed he was “blowing the situation off.” Roberson said that he went inside

the house for less than five minutes to see his younger brother and that he never touched

A.A. Gray testified and corroborated Roberson’s version of events, although she




8.
admitted that she was outside the house and did not see what happened while he was

inside.

          {¶ 20} After Roberson and Gray left, A.A. called the police. Detective Rick

Molnar responded and took A.A.’s statement. She and Detective Molnar both testified

that she did not have any visible injuries from the incident and did not go to the hospital

that day. The next day, however, A.A. went to the hospital because she was having

contractions and back pain and was concerned for the wellbeing of her child. The state

asked A.A. to read from a certified copy of her hospital records. Although the narrative

in the hospital records was largely the same as A.A.’s previous testimony, it also

contained allegations that the perpetrator was A.A.’s ex-boyfriend—whom A.A.

identified as Roberson—and that the perpetrator choked her and kicked her in the right

side of her stomach. The defense did not object to the admission of the records or to

A.A. reading from the records.

          {¶ 21} Detective Molnar testified about his investigation of the incident. In

addition to testifying that A.A. did not have any visible injuries, he confirmed that she

was visibly pregnant at the time. He also testified that A.A. never mentioned another

female being present with Roberson.

          {¶ 22} Based on these events, Roberson was charged with domestic violence.

                                C. December 10, 2015 Events

          {¶ 23} A.A. testified that she was afraid of Roberson after November 23. As a

result, he was not welcome at her home after that date. Between November 23 and




9.
December 10, Roberson called and texted A.A. numerous times. She did not want to

communicate with him and sent him messages that said “quit talking to me” and “don’t

text me.” She also refused to let Roberson see his children at her home; all of his visits

with the children after November 23 happened at his mother’s house.

       {¶ 24} On December 10, 2015, A.A. was in her kitchen cooking. Her boyfriend

left the house and, shortly after, Roberson entered through the closed, unlocked front

door. A.A. did not immediately notice Roberson; she believed her boyfriend had

returned to the house, so she was not concerned about the door opening. After entering,

Roberson grabbed A.A. by the neck and began choking her. A.A. claimed that he said

“you think what I did to you last time was bad, just watch what I do to you this time” and

“think this shit again, think what I did to you last time. Watch what I do to you this

time.” This continued until Roberson’s daughter came down the stairs and pulled at his

leg. Roberson then left the house. A.A. testified that the whole incident lasted

approximately one minute. When Roberson left, A.A. called the police. Detective

Molnar investigated this case as well. He and A.A. both testified that she did not have

any visible injuries from Roberson’s assault. A.A. never sought medical treatment

because of this incident.

       {¶ 25} A.A. explained that, prior to November 23, Roberson would call her when

he wanted to come over and he would either knock when he arrived or she would unlock

the door and he would let himself in. On December 10, Roberson called A.A. at least




10.
twice, but he did not tell her that he was coming to her house. He did, however, follow

his normal practice of walking in her unlocked front door.

      {¶ 26} Once again, Roberson provided a different version of the evening’s events.

He testified that he was with Gray that evening and never went to A.A.’s house. He

picked Gray up from work around 4:00 or 4:30, picked her children up from school, and

then went to Gray’s family member’s house. He claimed that he was with Gray the entire

evening, except for approximately ten minutes when he went to the store. He stated that

A.A.’s house was approximately a 20 to 25 minute drive from his location.

      {¶ 27} Gray once again corroborated Roberson’s version of events. She added

that Roberson went to the store around 8:30 or 9:00 p.m. and returned with the items she

had asked him to pick up. She admitted on cross-examination, however, that she did not

go to the store with Roberson and had no way of knowing what he did while he was out

of her presence. Gray also testified that, as Roberson was being arrested on

December 10, she told the arresting officers that Roberson had been with her the entire

evening. But the investigating officer, Detective Molnar, testified that he never had any

contact with Gray and further asserted that no witnesses ever told him that Roberson was

not at A.A.’s house on December 10.

      {¶ 28} Based on these events, Roberson was charged with a second count of

aggravated burglary.




11.
                          D. Participating in a Criminal Gang

       {¶ 29} The final count of the indictment involved participating in a criminal gang.

The charge arose from Roberson’s alleged participation in the Bee Hive gang from

January 1, 2010, through December 18, 2015. The bulk of the state’s evidence regarding

this charge came from the testimony of Detective William Noon.

       {¶ 30} Detective Noon is a certified gang specialist on the TPD’s gang task force.

He has worked with that unit for over 14 years. He testified that street gangs have existed

in Toledo for 25 to 30 years and there are approximately 20 gangs that claim territory in

Toledo. Gang members wear certain colors, use specific hand signs, often have other

affiliation indicators such as tattoos, and hang out in specified areas that the TPD

considers the gang’s territory.

       {¶ 31} Noon said the Bee Hive gang consists of approximately 50 to 55 members,

although the number fluctuates because members go to jail, switch gangs, or quit the

gang. Bee Hive territory is in the area bounded by Bancroft Street, Collingwood

Boulevard, Central Avenue, and Cherry Street, which includes Rockingham Street. Bee

Hive members wear the color blue and display a hand sign that is made by pressing the

first two fingers to the thumb and extending the pinky, which represents a bee’s stinger.

He also claimed that Bee Hive members are violent and commit the crimes of burglary

and domestic violence, though he was unaware of any Bee Hives who had committed

sexual assault. He conceded that not all gang members are violent. Further, he said that




12.
the TPD gang unit monitors social media websites to identify gang members based on

their posts and pictures, and to observe gang members’ activities.

       {¶ 32} Specific to Roberson, Noon testified that Roberson’s street name is Ron

Gotti. Roberson has used the name since at least 2010. The only contact Noon ever had

with Roberson was a conversation the two had on a street corner in 2012, during which

Roberson allegedly admitted that he was a member of the Bee Hive. Detective Noon did

not have a written report or any recordings of the encounter. Detective Noon was

involved in the investigation of a 2012 federal criminal case against Bee Hive members,

but Roberson was not one of them. Additionally, Detective Noon testified that Roberson

had not been the focus of any task force investigations since the 2012 federal case ended.

       {¶ 33} The state introduced three photographs taken from a Facebook page

belonging to “Ron Gotti.” Noon said the photos identified Roberson as a Bee Hive

member. Each printout indicates when the photo was posted to Facebook, but not when

it was taken. In the first photo, a man is holding money in his mouth and raising one

hand with the first two fingers pressed to the thumb and the pinky extended. Noon

claimed that this was the Bee Hive hand sign. The picture was posted to the site on

November 20, 2015. In the second, the same man is holding up his hands. Tattoos are

visible on his fingers, but they are difficult to read. Noon testified that they were the

words “bee” and “hive.” The printout shows the photo was posted to Facebook in

October, but the day and year are not visible. The final picture shows two fists with the

words “bee” and “hive” tattooed in blue ink on the fingers. The picture was posted to




13.
Facebook on October 14, 2013. Noon did not remember Roberson having the tattoos in

2012.

        {¶ 34} Roberson, contrary to Detective Noon’s testimony, did not recall ever

meeting Detective Noon on a street corner. He did, however, identify himself as the man

in the pictures from Ron Gotti’s Facebook page. Roberson claimed that he had been in

the Bee Hive gang, but that he was no longer a member. He testified that he was last

involved with the gang before having children. He testified to getting the finger tattoos in

2008 or 2009. Although he uses his mother’s Rockingham Street address, he does not

reside there. He admitted to his continued association with Bee Hive members and stated

that he spends time in the Rockingham neighborhood because he has friends and family

who still live in the area. Roberson denied active involvement in the gang.

                                       E. Outcome

        {¶ 35} After hearing the evidence, the jury found Roberson guilty of all counts.

The court proceeded directly to sentencing. It sentenced Roberson to 11 months in prison

on the domestic violence count; 9 years in prison on each aggravated burglary count; 9

years in prison on the rape count; and 6 years in prison on the participating in a criminal

gang count. The court ordered Roberson to serve his sentences for the domestic violence,

aggravated burglary, and rape convictions consecutively, and his sentence for the

participating in a criminal gang conviction concurrently with the other counts. His

aggregate sentence is 27 years and 11 months in prison.




14.
       {¶ 36} Roberson appeals the trial court’s decision, setting forth four assignments

of error:

              Assignment of Error One: Appellant was denied Due Process of law

       because several of his convictions are unsupported by sufficient evidence,

       and his convictions are also against the manifest weight of the evidence.

              Assignment of Error Two: The offense of “participation in a

       criminal gang,” as applied to appellant, violates appellant’s First

       Amendment rights to freedom of speech, expression, and association.

              Assignment of Error Three: The trial court erred to appellant’s

       prejudice in denying appellant’s motion to sever counts in the indictment

       for separate trials.

              Assignment of Error Four: Appellant’s Sixth Amendment right to

       counsel was violated because he received ineffective assistance of counsel.

                                  II. Law and Analysis

                  A. Sufficiency and Manifest Weight of the Evidence

       {¶ 37} In Roberson’s first assignment of error, he contends that his convictions are

not supported by sufficient evidence and are against the manifest weight of the evidence.

The state counters that it presented sufficient evidence to sustain Roberson’s convictions

and the convictions are supported by the manifest weight of the evidence. We address

each argument in turn.




15.
       {¶ 38} In reviewing a challenge to the sufficiency of the evidence, we view the

evidence in a light most favorable to the prosecution and determine whether “any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113,

684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh

the evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448,

2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support

a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997).

       {¶ 39} When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the jury clearly lost its way

in resolving evidentiary conflicts so as to create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. Id. at 387. We do not view

the evidence in a light most favorable to the state. “Instead, we sit as a ‘thirteenth juror’

and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’” State v.

Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at

388. Reversal on manifest weight grounds is reserved for “the exceptional case in which

the evidence weighs heavily against the conviction.” Thompkins at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Although under a

manifest weight standard we consider the credibility of witnesses, we extend special




16.
deference to the jury’s credibility determinations given that it is the jury that has the

benefit of seeing the witnesses testify, observing their facial expressions and body

language, hearing their voice inflections, and discerning qualities such as hesitancy,

equivocation, and candor. State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616,

¶ 14.

                                   1. Domestic Violence

        {¶ 40} Under R.C. 2919.25(A), it is a crime to knowingly cause or attempt to

cause physical harm to a family or household member. Although domestic violence is

generally a fourth-degree misdemeanor, the charge becomes a fifth-degree felony if the

offender knew that the victim was pregnant. R.C. 2919.25(D)(2), (5). A person acts

“knowingly,” regardless of his purpose, when he is aware that his conduct will probably

cause a certain result or will probably be of a certain nature. R.C. 2901.22(B). A person

has knowledge of circumstances when he is aware that such circumstances probably

exist. Id.

        {¶ 41} Roberson contends that the evidence supporting his domestic violence

conviction was insufficient for several reasons: Roberson’s and Gray’s testimony

contradicted A.A.’s version of events, A.A. did not have any visible injuries, and A.A. is

not a reliable witness because she was jailed before trial on a material witness warrant.

The state counters that Roberson’s arguments all relate to the witnesses’ credibility,

which the court does not review in a sufficiency challenge.




17.
       {¶ 42} We agree that all of Roberson’s arguments relate to the witnesses’

credibility. We do not consider credibility in a sufficiency analysis. The jury was in the

best position to assess the witnesses’ credibility and it determined that A.A.’s testimony

was more credible than the testimony of Roberson and Gray. We will not second-guess

that determination on appeal.

       {¶ 43} We also find that Roberson’s domestic violence conviction is not against

the manifest weight of the evidence. Although we consider witnesses’ credibility when

reviewing a manifest weight claim, we still give special deference to the jury’s credibility

determinations. At trial, Roberson and Gray testified to the same version of the events,

but their version was markedly different from A.A.’s version. The jury decided that A.A.

was more credible, and we extend special deference to that determination. Moreover,

Gray admitted that she was outside and therefore did not see what happened when A.A.

and Roberson were inside A.A.’s home. Considering all of this, we cannot find that the

jury lost its way and created a manifest miscarriage of justice by convicting Roberson of

domestic violence.

                                 2. Aggravated Burglary

       {¶ 44} Next, Roberson argues that his two convictions for aggravated burglary are

not supported by sufficient evidence and are against the manifest weight of the evidence.

       {¶ 45} Under the relevant aggravated burglary statute, R.C. 2911.11(A)(1), it is

illegal for any person “by force, stealth, or deception” to trespass in an occupied structure

or in a separately secured or separately occupied portion of an occupied structure, when a




18.
person other than the person’s accomplice is present, with purpose to commit any

criminal offense, if the offender either inflicts, or attempts or threatens to inflict physical

harm on another.

       {¶ 46} “Force” is “any violence, compulsion, or constraint physically exerted by

any means upon or against a person or thing.” R.C. 2901.01(A)(1). Any force, however

slight, is sufficient to establish the “force” element of aggravated burglary. See Goins v.

State, 90 Ohio St. 176, 107 N.E. 335 (1914), syllabus (upholding burglary conviction

when defendant further opened an already partially-open door to a chicken house). This

includes turning a doorknob and pushing open an unlocked door or pulling on a locked

door. State v. Austin, 6th Dist. Lucas No. L-09-1011, 2009-Ohio-6258, ¶ 22, citing State

v. Lane, 50 Ohio App.2d 41, 46, 361 N.E.2d 535 (10th Dist.1976) (“Defendant must have

forced open a closed but unlocked door. This forcing open may have been accomplished

by defendant by using his strength to turn the doorknob and pushing the door open”).

       {¶ 47} “Stealth” is defined as “‘any secret, sly or clandestine act to avoid

discovery and to gain entrance into or to remain within a residence of another without

permission.’” State v. Harris, 6th Dist. Lucas Nos. L-06-1402 and L-06-1403, 2008-

Ohio-6168, ¶ 93, quoting State v. Ward, 85 Ohio App.3d 537, 540, 620 N.E.2d 168 (3d

Dist.1993).

       {¶ 48} “Deception” means knowingly deceiving another or causing another to be

deceived by any false or misleading representation, by withholding information, by

preventing another from acquiring information, or by any other conduct, act, or omission




19.
that creates, confirms, or perpetuates a false impression in another, including a false

impression as to law, value, state of mind, or other objective or subjective fact. R.C.

2913.01(A). The deception element can be proven by showing that the defendant

received permission to enter the home by using a ruse. In re J.M., 7th Dist. Jefferson No.

12 JE 3, 2012-Ohio-5283, ¶ 17-18 (defendant received permission by asking to use the

bathroom); State v. Dukes, 3d Dist. Allen Nos. 1-02-64, 1-02-92, and 1-02-93, 2003-

Ohio-2386, ¶ 23 (defendant received permission by lying about needing to make a phone

call).

         {¶ 49} “Trespass,” as pertinent here, occurs when a defendant, without privilege to

do so, knowingly enters or remains on the land or premises of another. R.C.

2911.21(A)(1). A person’s privilege to be on property can be limited to a certain room or

area of the property. State v. Sparent, 8th Dist. Cuyahoga No. 96710, 2012-Ohio-586,

¶ 9 (privilege limited to certain rooms defendant was contracted to paint); In re J.M. at

¶ 12 (privilege limited to using bathroom); State v. Rhodes, 9th Dist. Medina No. 1769,

1989 Ohio App. LEXIS 2839, 5 (July 19, 1989) (privilege limited to first floor

bathroom). If a defendant’s presence at the property is initially lawful, a trespass may

nonetheless occur if the defendant’s privilege is revoked or terminated. State v. Petefish,

7th Dist. Mahoning No. 10 MA 78, 2011-Ohio-6367, ¶ 22. For example, a defendant’s

privilege is revoked when he commits a criminal offense inside the home. See State v.

Swiergosz, 6th Dist. Lucas No. L-12-1293, 2013-Ohio-4625, ¶ 18.




20.
       {¶ 50} To prove the defendant had a “purpose to commit a criminal offense,” the

state must show that the defendant invaded the building specifically to commit a crime or

formed the intent to commit a crime during the course of a trespass. State v. Fontes, 87

Ohio St.3d 527, 721 N.E.2d 1037 (2000), syllabus. A person acts “purposely” when it is

his specific intention to cause a certain result or, when the gist of the offense is a

prohibition against conduct of a certain nature, regardless of what the person intends to

accomplish thereby, it is his specific intention to engage in conduct of that nature. R.C.

2901.22(A). Intent can rarely be proven by direct evidence, but it can be inferred from

the facts and circumstances surrounding the case. State v. Teamer, 82 Ohio St.3d 490,

492, 696 N.E.2d 1049 (1998).

       {¶ 51} “Physical harm to persons” means any injury, illness, or other

physiological impairment, regardless of its gravity or duration. R.C. 2901.01(A)(3). It is

possible for the force or threat of force used to commit rape to satisfy the “inflicts, or

attempts or threatens to inflict physical harm on another” element of aggravated burglary.

See State v. K.W., 12th Dist. Warren No. CA2016-01-004, 2016-Ohio-7365, ¶ 22

(agreeing with trial court’s assessment that rape “is an attempt to or threat to inflict

physical harm”); State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534, 2013-

Ohio-3234, ¶ 32-33, 36 (noting that aggravated burglaries were not completed until

defendant inflicted physical harm by raping the victims), rev’d on other grounds, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892; State v. Nguyen, 4th Dist. Athens No.




21.
12CA14, 2013-Ohio-3170, ¶ 108 (“The force or threat of force used to commit the rape

could satisfy the requirement for aggravated burglary * * *”).

                               a. August 27, 2015 Incident

       {¶ 52} Roberson contends that his aggravated burglary conviction for the August

27, 2015 incident with C.G. is not supported by sufficient evidence and is against the

manifest weight of the evidence because the state failed to prove the “by force, stealth, or

deception,” “trespass,” “with purpose to commit * * * any criminal offense,” and

“inflicts, or attempts or threatens to inflict physical harm” elements of aggravated

burglary.

       {¶ 53} First, Roberson claims that the state failed to present any evidence that he

trespassed or entered C.G.’s home by “force, stealth, or deception” because C.G. opened

her door and voluntarily let him into the house. Based on the evidence, however, the jury

could have inferred that Roberson’s request to use C.G.’s bathroom was a ruse that he

used to get into the house. Lying to gain entry to a home fulfills the deception element of

aggravated burglary. In re J.M., 2012-Ohio-5283, at ¶ 17-18; Dukes, 2003-Ohio-2386, at

¶ 23. If Roberson gained entry to the home by lying about needing to use the bathroom,

he never had privilege to be in the home and committed a trespass by deception the

moment he walked through C.G.’s door.

       {¶ 54} Alternatively, even if Roberson initially entered C.G.’s home with

permission, the evidence still supports the jury’s verdict. C.G. testified that she only gave

Roberson permission to enter her bathroom, but he nonetheless proceeded to quietly enter




22.
her bedroom. Roberson therefore exceeded the scope of C.G.’s permission, committing

trespass. See Sparent, 2012-Ohio-586 (when a person’s privilege to be in a home is

restricted to a certain area, leaving that area constitutes a trespass). And there was

sufficient evidence that he committed this trespass by stealth given that C.G. testified that

Roberson secretly entered her bedroom without her knowledge. Harris, 2008-Ohio-

6168, at ¶ 93 (stealth consists of any secret or sly act done to avoid discovery and remain

in the residence of another without permission).

       {¶ 55} Furthermore, any privilege Roberson had to be in C.G.’s home was

revoked when he began raping C.G. A person’s privilege to remain in another’s home is

rescinded when the person commits a crime in the home. See Swiergosz, 2013-Ohio-

4625, at ¶ 18. As we discuss below, we are upholding Roberson’s rape conviction.

When Roberson began raping C.G., he lost any privilege he may have had to be in her

home and became a trespasser.

       {¶ 56} Next, Roberson argues that there was no evidence of him inflicting,

attempting to inflict, or threatening to inflict physical harm on C.G. Rape can be the

physical harm upon which the state bases an aggravated burglary charge. See K.W.,

2016-Ohio-7365, at ¶ 22; Ruff, 2013-Ohio-3234, at ¶ 32-33, 36; Nguyen, 2013-Ohio-

3170, at ¶ 108. The state’s proof of a rape is sufficient to support the physical harm

element.

       {¶ 57} Finally, Roberson claims that the state did not present sufficient evidence

that he had the purpose to commit a crime when he entered C.G.’s home. Purpose to




23.
commit a crime need not exist when the offender enters the victim’s home; rather, it is

sufficient for the state to prove that the offender developed such purpose during a

trespass. Fontes, 87 Ohio St.3d 527, 721 N.E.2d 1037, at syllabus. Here, there was

sufficient evidence from which the jury could infer that Roberson, at a minimum, had the

purpose to commit some crime—whether rape or theft—when he entered C.G.’s home,

entered the second floor of her home after asking to use the bathroom, or when he snuck

into C.G.’s bedroom.

       {¶ 58} We therefore find that Roberson’s conviction of aggravated burglary

related to the August 27, 2015 incident is supported by sufficient evidence.

       {¶ 59} Moreover, considering the record and the credibility of the witnesses, we

are not persuaded that the evidence weighs heavily against a conviction on this count.

While Roberson testified that all of the events of August 27 happened with C.G.’s

consent, we cannot say that the jury lost its way in disbelieving his testimony, or created

a manifest miscarriage of justice by convicting him. Thus, Roberson’s conviction of

aggravated burglary of C.G. is not against the manifest weight of the evidence.

                             b. December 10, 2015 Incident

       {¶ 60} Roberson also argues that the aggravated burglary conviction related to the

December 10, 2015 incident lacked sufficient evidence and is against the manifest weight

of the evidence because the state failed to prove that he committed trespass “by force,

stealth, or deception.” Roberson contends that he followed his normal practice of calling




24.
A.A. before coming to her home and either knocking on or opening the door, which, he

argues, shows that he neither trespassed nor used “force” to enter the home.

      {¶ 61} Although Roberson testified that he followed his normal practice of calling

A.A. before coming to her house and letting himself in, A.A. testified that Roberson was

no longer allowed in her house after the November 23, 2015 domestic violence incident.

A.A. also said that although Roberson called her twice on December 10, 2015, he did not

tell A.A. that he was coming to her house. There was, therefore, sufficient evidence for

the jury to determine that Roberson was a trespasser at A.A.’s house on December 10,

2105, because A.A. had revoked any prior privilege he may have had to be there.

      {¶ 62} We also find sufficient evidence of force. A forcible breaking occurs when

a defendant uses any force, however slight, to gain entry into a structure. Goins, 90 Ohio

St. 176, 107 N.E. 335, at syllabus; State v. Austin, 6th Dist. Lucas No. L-09-1011, 2009-

Ohio-6258, ¶ 22. Thus, evidence that a defendant “us[ed] his strength to turn the

doorknob and push[ed] the door open” is sufficient to demonstrate use of force. Lane, 50

Ohio App.2d at 46, 361 N.E.2d 535.

      {¶ 63} Finally, we find that Roberson’s conviction of aggravated burglary is not

against the manifest weight of the evidence. We simply cannot say the jury lost its way

or created a manifest miscarriage of justice by believing A.A. rather than Roberson, or by

finding that Roberson’s entry into A.A.’s home was accomplished by force.




25.
                                          3. Rape

       {¶ 64} Roberson argues that the rape conviction is unsupported by sufficient

evidence and is against the manifest weight of the evidence because the state failed to

prove that Roberson compelled C.G. to submit to sexual conduct by force or threat of

force. The state contends that force can be inferred from the circumstances surrounding

the sexual activity.

       {¶ 65} A rape conviction under R.C. 2907.02(A)(2) requires the state to prove that

the defendant engaged in sexual conduct with another by compelling the other person to

submit by force or threat of force. “Force” for purposes of a rape conviction is defined

the same way it is for an aggravated burglary conviction—i.e., “any violence,

compulsion, or constraint physically exerted by any means upon or against a person or

thing.” R.C. 2901.01(A)(1).

       {¶ 66} “A defendant purposely compels another to submit to sexual conduct by

force or threat of force if the defendant uses physical force against that person, or creates

the belief that physical force will be used if the victim does not submit.” State v. Schaim,

65 Ohio St.3d 51, 600 N.E.2d 661 (1992), paragraph one of the syllabus. The force

required to commit rape is that which is necessary to overcome the will of the victim.

State v. Muller, 3d Dist. Defiance No. 4-11-09, 2012-Ohio-3530, ¶ 57. It is a relative

term that depends on the age, size, and strength of the parties and their relation to each

other. State v. Eskridge, 38 Ohio St.3d 56, 526 N.E.2d 304 (1988), paragraph one of the

syllabus, citing State v. Labus, 102 Ohio St. 26, 38-39, 130 N.E. 161 (1921).




26.
       {¶ 67} A victim’s non-consent to sexual conduct is not required to prove forcible

rape; rather, evidence of consent—or lack thereof—goes to the state’s ability to prove

whether the defendant purposefully forced or compelled the victim. State v. Hartman, 2d

Dist. Montgomery No. 26609, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 27. Courts have found

sufficient force to support a conviction under R.C. 2907.02(A)(2) when defendants

engaged in combinations of minimal physical force (e.g., pushing and pulling), removing

the victim’s clothing, and laying on top of the victim after the victim expressed

disinterest in or discomfort with the sexual contact. E.g., Hartman (defendant pushed

adult victim onto a bed, removed her clothes, laid on top of her, and pulled her into a

shower); Muller (defendant removed intoxicated adult victim’s clothes and did not stop

intercourse when victim “batted at him”); State v. El-Berri, 8th Dist. Cuyahoga No.

89477, 2008-Ohio-3539 (defendant bent 16-year-old victim over a couch, removed her

clothes, and engaged in vaginal intercourse with her); State v. Rupp, 7th Dist. Mahoning

No. 05 MA 166, 2007-Ohio-1561 (defendant removed adult victim’s clothing, laid on top

of her, and engaged in vaginal intercourse with her while she attempted to push him away

and told him “no”); State v. Shannon, 11th Dist. Lake Nos. 2002-L-007 and 2002-L-008,

2004-Ohio-1669 (defendant pushed down 15-year-old victim’s partially-removed pants,

laid on top of her, and proceeded with intercourse after she replied “uh-uh” to him asking

“Is this okay?”). Regardless of the defendant’s actions, the state is not required to prove

that the victim physically resisted the attack. R.C. 2907.02(C).




27.
       {¶ 68} Whether the state proved that Roberson compelled C.G. to submit to sexual

conduct by force comes down to credibility. C.G. said that the encounter was not

consensual, Roberson grabbed her hand and pulled her toward the bed, he removed her

underwear, she told Roberson “no” at least twice during the encounter, she replied “no”

when he asked her if she “liked it when he was doing it,” and she scratched Roberson

during sex. Roberson, on the other hand, maintains that they had consensual sex initiated

by C.G., who felt some remorse afterward. The jury believed C.G.’s version of events,

which we must honor. On that basis, we find that C.G.’s testimony about Roberson’s

actions—which included removing C.G.’s underwear, pulling her hand, and continuing

intercourse after C.G. told him she did not like what he was doing and said “no” other

times during sex—provides sufficient evidence that Roberson compelled C.G. to submit

to vaginal intercourse by force.

       {¶ 69} Furthermore, after reviewing the evidence and the credibility of the

witnesses, we are not convinced that the evidence weighs heavily against a conviction on

this count. We cannot say that the jury lost its way or created a manifest miscarriage of

justice by believing C.G. rather than Roberson. We find, therefore, that Roberson’s

conviction of rape is not against the manifest weight of the evidence.

                          4. Participating in a Criminal Gang

       {¶ 70} Roberson objects to his conviction of participating in a criminal gang. He

asserts that the state did not present sufficient evidence to show that the Bee Hive is a

gang, that he actively participated in a gang, that he furthered the purposes of the gang,




28.
that he aided or abetted any gang member in committing criminal conduct, or that he

committed criminal conduct himself. The state responds that it sufficiently demonstrated

that the Bee Hive is a criminal gang, that Roberson actively participated in the Bee Hive

gang, and that he personally engaged in criminal conduct.

       {¶ 71} Under R.C. 2923.42(A)

              No person who actively participates in a criminal gang, with

       knowledge that the criminal gang engages in or has engaged in a pattern of

       criminal gang activity, shall purposely promote, further, or assist any

       criminal conduct * * *, or shall purposely commit or engage in any act that

       constitutes criminal conduct * * *.

       {¶ 72} The gang participation statute requires proof of four elements: (1) the

existence of a criminal gang, (2) appellant’s active participation in the gang,

(3) appellant’s knowledge that the gang engages in or has engaged in a pattern of

criminal gang activity, and (4) appellant’s purposeful promotion, furtherance, or

assistance of, or commission of or engagement in, any criminal conduct.

       {¶ 73} A “criminal gang” is defined as

              an ongoing formal or informal organization, association, or group of

       three or more persons to which all of the following apply:

              (1) It has as one of its primary activities the commission of one or

       more [felonies].




29.
              (2) It has a common name or one or more common, identifying

       signs, symbols, or colors.

              (3) The persons in the organization, association, or group

       individually or collectively engage in or have engaged in a pattern of

       criminal gang activity. R.C. 2923.41(A).

       {¶ 74} A pattern of criminal gang activity occurs when “persons in the criminal

gang have committed, attempted to commit, conspired to commit, been complicitors in

the commission of, or solicited, coerced, or intimidated another to commit, attempt to

commit, conspire to commit, or be in complicity in the commission of two or more”

felonies. R.C. 2923.41(B)(1). The offenses used to demonstrate a pattern of criminal

gang activity must meet certain criteria. They must include at least one felony; one must

have taken place on or after January 1, 1999; the most recent offense must have occurred

within five years after at least one of the other offenses; and the two or more offenses

must have been committed on separate occasions or by two or more people. R.C.

2923.41(B)(2).

       {¶ 75} Here, although the state established that the Bee Hive is a criminal gang, it

failed to present sufficient evidence of the second element of the crime—i.e., that

Roberson “actively participat[ed]” in the Bee Hive gang during the period in the

indictment.

       {¶ 76} The phrase “actively participates” is not defined by the statute. We

recently held, however, that “the active participation element of the criminal gang statute




30.
requires the state demonstrate that appellant actually—not just nominally—took part in

the criminal gang.” State v. Smith, 6th Dist. Lucas No. L-15-1027, 2017-Ohio-776, ¶ 38.

Actual participation requires that the appellant perform “some role to benefit the gang.”

Id. at ¶ 39.

       {¶ 77} The state relied primarily on Detective Noon’s testimony and the Ron Gotti

Facebook pictures to support this charge. Detective Noon testified that Roberson

admitted Bee Hive membership in 2012; Noon did not recall Roberson having finger

tattoos during their 2012 meeting; Roberson was not targeted in the investigation of the

2012 federal case against other Bee Hive members; and the TPD’s gang unit had not

focused on Roberson at least since the end of the 2012 federal case. He also testified that

Bee Hive members engage in a pattern of property crimes and have engaged in crimes

against women. Detective Noon identified the territory, hand sign, and color common to

the Bee Hive. The pictures from Ron Gotti’s Facebook page show Roberson displaying

the Bee Hive hand sign and his “Bee Hive” finger tattoos done in blue ink. Though the

pictures were posted in 2015, 2013, and an unknown year, there is no indication of when

they were taken. The state also presented the testimony of Detective Kincaid, who asked

TPD’s gang unit to identify “Gotti,” the suspect in C.G.’s rape, but the gang unit was

unable to identify him.

       {¶ 78} Roberson testified that he was a former Bee Hive member, but had not

been active in years. He claimed he got the “Bee Hive” tattoos in 2008 or 2009. He did




31.
not recall ever meeting Detective Noon or identifying himself to Detective Noon as a Bee

Hive member.

       {¶ 79} In its brief, the state points to cases where the courts upheld participating in

a criminal gang convictions based on similar circumstantial evidence. These cases are

distinguishable, however, because in each of those cases the defendant was convicted

based on additional evidence pointing to active—rather than nominal—participation that

somehow benefitted the gang. In State v. Gaiter, 9th Dist. Summit No. 24758, 2010-

Ohio-2205, for example, the court found sufficient evidence to support a conviction

based on the defendant’s strong ties to other gang members; his tattoos memorializing

dead gang members; photos of him wearing gang colors, showing gang hand signs, and

standing at a dead gang member’s grave with other gang members; and—most

critically—evidence that the gang was involved in selling cocaine, the defendant was a

cocaine wholesaler, and the defendant was seen loitering with other gang members “in

the heart” of the gang’s drug territory. Id. at ¶ 62-63.

       {¶ 80} In State v. Swain, 6th Dist. Erie Nos. E-11-087 and E-11-088, 2013-Ohio-

5900, the other case the state relies on, we found sufficient evidence of active

participation based on a prison report in which defendant admitted his gang membership;

photos of the defendant and other gang members depicting them in gang colors, wearing

gang-related bandanas, displaying gang hand signs, and showing gang-related tattoos; a

gun wrapped in a gang-related bandana recovered from defendant’s residence; and

clothing taken from defendant’s closet that was personalized with the gang’s acronym.




32.
Id. at ¶ 24, 56. But there was also evidence that the defendant possessed crack cocaine

and had prepared crack cocaine for sale, and that gang members with whom he associated

also trafficked crack cocaine. Id. at ¶ 6, 10, 27.

       {¶ 81} In both Gaiter and Swain, the evidence showed that the defendant was not

only currently involved with the gang (clothing, hand signs, tattoos, and pictures with

other gang members), but was also doing something to benefit the gang (selling drugs).

Here, in contrast, the state failed to present any evidence that Roberson did anything to

benefit the Bee Hive gang. The state argues that the jury could infer that Roberson

arranged for Bee Hive members to burglarize C.G.’s home based on Noon’s testimony

that Bee Hive members engage in property crimes and C.G.’s testimony that she heard

unfamiliar voices in her home after Roberson left and before she discovered that various

items had been stolen. We disagree. Although the jury could reasonably infer that

Roberson allowed some other people to enter C.G.’s home, there was no additional

evidence from which the jury could infer that the unidentified people were Bee Hive

members. Simply put, the state failed to connect Roberson’s self-affiliation with the Bee

Hive gang (i.e., his tattoos, use of the gang sign, and admission to Detective Noon in

2012) to the aggravated burglary of C.G. or any other any activity that could somehow

benefit the gang.

       {¶ 82} Indeed, we have consistently required more evidence of active participation

than the state presented against Roberson. E.g., Smith, 2017-Ohio-776, at ¶ 41-44

(conviction upheld based on observation of defendant with active gang members,




33.
photograph of defendant flashing a gang sign, photograph of defendant’s birthday cake

decorated with gang symbols, evidence that defendant sold drugs and the gang supported

itself through drug sales, and evidence that defendant committed a drive-by shooting with

members of the gang); State v. Nelson, 6th Dist. Lucas No. L-15-1190, 2016-Ohio-7115,

¶ 41-42 (conviction upheld based on defendant’s recorded admission of participating in

the gang and evidence that the murder he participated in was in retaliation for a drive-by

shooting by a rival gang); State v. Allen, 6th Dist. Lucas No. L-14-1078, 2016-Ohio-

2742, ¶ 9-10 (conviction upheld based on defendant’s participation in recent gang fight,

defendant’s prior participation in a felony with another gang member, defendant’s gang

tattoo, tribute to a dead gang member on defendant’s Facebook page, photograph of

defendant with a gang member who was flashing a gang sign, and evidence that

defendant murdered a rival gang member in retaliation for his brother’s death).

       {¶ 83} In each of these cases, there was evidence that the defendants did more

than wear a gang’s color, show a gang’s hand sign, or have gang-related tattoos;

specifically, the evidence showed that the defendants engaged in conduct—from selling

drugs to murdering rivals—that furthered some interest of the gang. Here, the state did

not present any evidence that Roberson engaged in conduct that benefited the Bee Hive.

Roberson’s tattoos, admission of membership, admission of socializing with Bee Hive

members who live in his old neighborhood, and photo of him throwing a gang sign prove

association with the Bee Hive, but not active participation in its activities, which is

required for a conviction under R.C. 2923.42. At best, the state’s evidence shows that




34.
Roberson is and was at all times alleged in the indictment a passive, nominal, or former

Bee Hive member.

       {¶ 84} We find, therefore, that Roberson’s conviction of participating in a criminal

gang is not supported by sufficient evidence and we reverse on that basis. Roberson’s

first assignment of error is well-taken, in part.

                              B. First Amendment Violation

       {¶ 85} Because we find that Roberson’s conviction for participating in a criminal

gang is not supported by sufficient evidence, his second assignment of error—claiming

that the conviction violates his First Amendment rights to freedom of speech, freedom of

expression, and freedom of association—is moot.

                                    C. Motion to Sever

       {¶ 86} In his third assignment of error, Roberson contends that the counts in the

indictment were improperly joined and the trial court erred in failing to sever them for

separate trials. He claims that he was prejudiced because the joint trial of all counts

bolstered the state’s “thin” evidence on each count. The state counters that any prejudice

resulting from the joint trial is negated because the evidence on each count was simple

and direct, and because evidence from trials relating to A.A. and C.G. would be

admissible at a trial on participating in a criminal gang.

       {¶ 87} We review a trial court’s decision on a motion to sever for an abuse of

discretion. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 166.

Abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary, or




35.
unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d

200 (1996).

       {¶ 88} Two or more offenses can be charged in one indictment under Crim.R.

8(A) if the offenses (1) are of the same or similar character, (2) are based on the same act

or transaction, (3) are based on two or more acts or transactions connected together or

constituting parts of a common scheme or plan, or (4) are part of a course of criminal

conduct.

       {¶ 89} Criminal Rule 14 provides, however, that separate trials shall be ordered if

it appears that a defendant is prejudiced by joinder of offenses in one indictment.

Because joinder is favored for judicial economy, the defendant bears the burden of

claiming prejudice to prevent the joinder and providing sufficient information for the trial

court to weigh the right to a fair trial against the benefits of joinder. Schaim, 65 Ohio

St.3d at 59, 600 N.E.2d 661; State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981),

syllabus. A claim of prejudice depends on whether the advantages of joinder and

avoidance of multiple trials are outweighed by the right of a defendant to be tried fairly

on each charge. Torres at 343.

       {¶ 90} The state can use two methods to defeat a defendant’s claim of prejudice

under Crim.R. 14: the “other acts” test or the “joinder” test. State v. Lott, 51 Ohio St.3d

160, 163, 555 N.E.2d 293 (1990).




36.
       {¶ 91} Under the other acts test, the state must show that evidence of the other

charged offenses would be admissible as “other acts” under Evid.R. 404(B) even if the

counts are severed for trial. State v. Gibson, 6th Dist. Lucas Nos. L-13-1222 and

L-13-1223, 2015-Ohio-1679, ¶ 28, quoting State v. Townsend, 6th Dist. Lucas No.

L-00-1290, 2002 Ohio App. LEXIS 1633, 21-22 (Apr. 12, 2002). Under the second

method, the joinder test, the state can defeat a claim of prejudice by showing that the jury

is capable of separating the proof of each crime because the evidence of each crime is

simple and direct. Id. “Ohio appellate courts routinely find no prejudicial joinder where

the evidence is presented in an orderly fashion as to the separate offenses or victims

without significant overlap or conflation of proof.” State v. Robinson, 6th Dist. Lucas

No. L-09-1001, 2010-Ohio-4713, ¶ 51.

       {¶ 92} We find that the trial court did not abuse its discretion in denying

Roberson’s motion to sever because the evidence of each crime was separate, direct, and

capable of being separated—thereby satisfying the joinder test. At trial, the state first

presented its witnesses relating to the participating in a criminal gang charge, then

presented the witnesses relating to the incidents with A.A., and finished with the

witnesses relating to the incident with C.G. The record shows that the state presented its

evidence in an orderly fashion and without overlap of testimony or conflation of proof.

Roberson does not point to anything that suggests otherwise. We find that the evidence

in this case was sufficiently simple and direct to outweigh any prejudice joint trials might

have caused Roberson.




37.
       {¶ 93} Accordingly, because the evidence of each crime was separate and distinct,

we find that the trial court did not abuse its discretion in denying Roberson’s motion to

sever.2 For these reasons, Roberson’s third assignment of error is not well-taken.

                           D. Ineffective Assistance of Counsel

       {¶ 94} In his fourth assignment of error, Roberson claims that his Sixth

Amendment right to counsel was violated because his trial counsel provided ineffective

assistance.

       {¶ 95} Properly licensed Ohio lawyers are presumed to be competent. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. In order to prevail

on a claim of ineffective assistance of counsel, an appellant must show that counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial

court cannot be relied on as having produced a just result. Strickland v. Washington, 466

U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective

assistance of counsel, an appellant must show “(1) deficient performance of counsel, i.e.,

performance falling below an objective standard of reasonable representation, and

(2) prejudice, i.e., a reasonable probability that, but for counsel’s errors, the proceeding’s

result would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426,

892 N.E.2d 864, ¶ 204, citing Strickland at 687-88. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” State v. Sanders, 94


2
  Because we find that the state satisfied the joinder test, we need not consider whether it
also satisfied the other acts test.




38.
Ohio St.3d 150, 151, 761 N.E.2d 18 (2002). As recognized in Strickland, there are

“countless ways to provide effective assistance in any given case.” Id. at 689. “Judicial

scrutiny of counsel’s performance must be highly deferential.” State v. Bradley, 42 Ohio

St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689.

       {¶ 96} Roberson claims that his trial counsel was ineffective because she did not

object to the admission of the victims’ hospital records or various hearsay statements

within those records. In response, the state contends that the evidence was properly

admissible and, in any event, Roberson cannot prove that the result of the proceeding

would have been different if the evidence had not been admitted.

                                   1. Hospital Records

       {¶ 97} Evidence Rule 901 governs the authentication of evidence and provides, in

relevant part, that “[t]he requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the

material in question is what its proponent claims.” Evid.R. 901(A). Under R.C.

2317.422(A),

       the records, or copies or photographs of the records, of a hospital, * * * in

       lieu of the testimony in open court of their custodian, person who made

       them, or person under whose supervision they were made, may be qualified

       as authentic evidence if any such person endorses thereon the person’s

       verified certification identifying such records, giving the mode and time of




39.
       their preparation, and stating that they were prepared in the usual course of

       the business of the institution.

If records are properly certified under R.C. 2317.422(A), no further authentication is

needed for them to be admissible. See Gallagher v. Firelands Regional Med. Ctr., 6th

Dist. Erie No. E-15-055, 2017-Ohio-483, ¶ 31.

       {¶ 98} Here, the hospital records of C.G. and A.A. contain certifications from the

issuing medical providers that comport with the requirements of R.C. 2317.422(A),

making them properly authenticated and admissible. Thus, trial counsel’s failure to

object to their admission was, at a minimum, objectively reasonable. Indeed, even if an

objection had been raised, the remedy would have been in-person authentication rather

than exclusion of the records from evidence. We therefore cannot find that counsel was

ineffective for failing to object to the admission of certified hospital records.

                     2. Hearsay Statements in the Hospital Records

       {¶ 99} Hearsay statements made for the purpose of medical diagnosis or treatment

are admissible under Evid.R. 803(4). This exempts from the hearsay rule “[s]tatements

made for purposes of medical diagnosis or treatment and describing medical history, or

past or present symptoms, pain, or sensations, or the inception or general character of the

cause or external source thereof insofar as reasonably pertinent to diagnosis or

treatment.” Id. For such statements to be admissible under this exception, the declarant’s

motive must be consistent with that of a patient seeking treatment and it must be

reasonable for the medical provider to rely on the information in diagnosing and treating




40.
the declarant. State v. Ridley, 6th Dist. Lucas No. L-10-1314, 2013-Ohio-1268, ¶ 49,

citing State v. Clary, 73 Ohio App.3d 42, 52, 596 N.E.2d 554 (10th Dist.1991). We have

previously found that a description of the injuring event and identification of the

perpetrator fall within the medical diagnosis or treatment hearsay exception. Id. at ¶ 52,

citing State v. Stahl, 9th Dist. Summit No. 22261, 2005-Ohio-1137, ¶ 15.

       {¶ 100} In this case, the statements that A.A. and C.G. read from their medical

records described not only the symptoms they were experiencing, but also the events that

caused them to seek medical treatment and some reference to the identity of the

perpetrator (A.A. identified him as her ex-boyfriend and C.G. identified him as Gotti).

Both women made their statements in the course of receiving medical care after being

assaulted. The events surrounding the victims’ decision to seek medical treatment show

that both victims made their statements with the motive of receiving proper treatment and

it would be reasonable for a medical provider to rely on the information they provided.

Under these circumstances, such statements fall within the hearsay exception for medical

diagnosis and treatment.

       {¶ 101} Thus, trial counsel’s failure to object to the admission of those statements

was objectively reasonable. We find this assignment of error not well-taken.

                                        E. Merger

       {¶ 102} Finally, we address an issue that the state brought to the court’s attention

in its brief: whether the rape and aggravated burglary charges related to the August 27,

2015 incident should have merged for purposes of sentencing. Roberson did not initially




41.
raise the issue or assign it as error, although he did briefly argue this issue in his reply

brief.

         {¶ 103} An appellate court must determine an appeal on its merits based on the

assignments of error set forth in the briefs and will not address mere arguments. Jensen

v. AdChoice, Inc., 6th Dist. Lucas No. L-14-1014, 2014-Ohio-5590, ¶ 23, fn. 4, citing

App.R. 12(A)(1)(b); App.R. 16; Bonn v. Bonn, 10th Dist. Franklin No. 12AP-1047, 2013-

Ohio-2313, ¶ 9; and Firsdon v. Mid-American Natl. Bank, 6th Dist. Wood No.

WD-96-009, 1996 Ohio App. LEXIS 5583, 6, fn. 1 (Dec. 13, 1996). Roberson did not

assign as error the trial court’s failure to merge his convictions of rape and aggravated

burglary related to the August 27, 2015 incident. Therefore, we will not address his

“mere arguments” on this issue. Jensen at ¶ 23, fn. 4.

                                       III. Conclusion

         {¶ 104} The January 29, 2016 judgment of the Lucas County Court of Common

Pleas is affirmed as to Roberson’s convictions for domestic violence, aggravated

burglary, and rape and reversed and vacated as to his conviction for participating in a

criminal gang. The parties are ordered to divide the costs of this appeal equally pursuant

to App.R. 24.


                                                                   Judgment affirmed, in part,
                                                                        and reversed, in part.




42.
                                                                      State v. Roberson
                                                                      C.A. No. L-16-1131




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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