[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. 
2.

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. 
3.

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. 
4.

{¶ 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 
5.

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 
6.

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. 
7.

{¶ 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. 
8.

{¶ 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 
9.

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 
10. 

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 
11. 

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. 
12. 

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 
13. 

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 
14. 

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. 
15. 

{¶ 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. 
16. 

{¶ 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 
17. 

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. 
18. 

{¶ 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 
19. 

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 
20. 

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. 
21. 

{¶ 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. 
22. 

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 
23. 

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-Ohio6168, 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-Ohio4625, 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-Ohio3170, 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 
24. 

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 
25. 

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. 
26. 

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). 
27. 

{¶ 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). 
28. 

{¶ 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, 
29. 

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]. 
30. 

 (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 
31. 

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 
32. 

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-Ohio5900, 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. 
33. 

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, 
34. 

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-Ohio2742, ¶ 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 
35. 

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 
36. 

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). 
37. 

{¶ 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. 
38. 

{¶ 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. 
39. 

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 
40. 

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 
41. 

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 
42. 

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. 
43. 

 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