State v. Robinson

[Cite as State v. Robinson, 2021-Ohio-3255.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

:
STATE OF OHIO :
: Appellate Case No. 2021-CA-3
Plaintiff-Appellee :
: Trial Court Case No. 2020-CR-221
v. :
: (Criminal Appeal from
JASHON ROBINSON : Common Pleas Court)
:
Defendant-Appellant :

...........

OPINION

Rendered on the 17th day of September, 2021.

...........

IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio
45419
Attorney for Defendant-Appellant

.............
 -2-

HALL, J.

{¶ 1} Jashon Robinson was found guilty by a jury of murder, felonious assault, and

felony murder; these offenses were merged for sentencing, and Robinson was convicted

of murder. On appeal, he contends that the jury should have found him guilty of the

inferior offenses of voluntary manslaughter, aggravated assault, and involuntary

manslaughter. Robinson also alleges that his trial counsel provided ineffective assistance

of counsel.

{¶ 2} We conclude that the jury did not lose its way in rejecting the inferior offenses

urged by Robinson and that Robinson fails to show that defense counsel performed

deficiently. Therefore we affirm.

I. Factual and Procedural Background

{¶ 3} On May 3, 2020, Robinson was walking on the sidewalk near Little Joe’s

Market in Springfield, Ohio. His cousin, Tyrone Clark, was sitting in a vehicle across the

street, saw Robinson, and called him over. As Robinson crossed the street, Tyler Fullen

drove past and saw him. Fullen made a U-tum, drove back, and stopped in the middle of

the street. He jumped out of his vehicle and confronted Robinson. Without any apparent

provocation, Fullen physically attacked Robinson. The two men fought, and Fullen ripped

out a clump of Robinson’s hair. Clark soon broke up the fight and separated the two men,

and another man, Victor Bishop, got involved. Clark and Bishop stood between Fullen

and Robinson, keeping them apart. Roughly 15 seconds later, with Clark and Bishop

standing between Robinson and Fullen, Robinson pulled out a handgun and fired twice

at Fullen. Clark and Bishop ran for safety, and Fullen fell to the ground. Robinson stepped

forward and, standing over Fullen, shot him a third time. Robinson simply walked away.
 -3-

Fullen was dead.1

{¶ 4} Robinson was indicted on one count of murder, in violation of R.C.

2903.02(A); felonious assault, in violation of R.C. 2903.11(A)(2); and felony murder, in

violation of R.C. 2903.02(B). Each count included a firearm specification. Evidence

supporting the above facts was presented to a jury. The evidence included witness

testimony and video from a nearby surveillance camera that had recorded the entire

confrontation. Robinson did not dispute what happened, but he maintained that he was

guilty only of the lesser offenses of voluntary manslaughter under R.C. 2903.03,

aggravated assault under R.C. 2903.12, and involuntary manslaughter under R.C.

2903.04, because Fullen’s attack had provoked him and led him to shoot Fullen under

the influence of passion or in a fit of rage. Robinson did not present any evidence

supporting this defense.

{¶ 5} The jury charge included instructions on the three inferior offenses, but the

jury rejected them; it found Robinson guilty on the indicted offenses of murder, felonious

assault, and felony murder and on the firearm specifications. The offenses were merged

for sentencing, and the State elected sentencing on the murder charge. The trial court

sentenced Robinson to a total of 18 years to life in prison.

{¶ 6} Robinson appeals.

II. Analysis

{¶ 7} In two assignments of error, Robinson brings evidentiary challenges and a

claim of ineffective assistance of defense counsel.

1The coroner who autopsied Fullen testified that one of the first two shots hit Fuller’s
aorta, which was “the fatal wound” that killed him. (Tr. 220.)
 -4-

A. Evidentiary challenges

{¶ 8} The first assignment of error alleges:

APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT

AND/OR SUFFICIENT WEIGHT OF THE EVIDENCE AND THUS A

VIOLATION OF DUE PROCESS.

{¶ 9} Robinson argues that the jury clearly lost its way by finding him guilty of

purposeful murder, felonious assault, and felony murder rather than the inferior offenses

of voluntary manslaughter, aggravated assault, and involuntary manslaughter.

{¶ 10} Sufficiency and manifest weight are different legal concepts. “A sufficiency-

of-the-evidence challenge asks whether the evidence adduced at trial ‘is legally sufficient

to support the jury verdict as a matter of law.’ ” State v. Worley, Ohio Slip Opinion No.

2021-Ohio-2207, __ N.E.3d __, ¶ 57, quoting State v. Lang, 129 Ohio St.3d 512, 2011-

Ohio-4215, 954 N.E.2d 596, ¶ 219. “In contrast, a manifest-weight challenge ‘concerns

“the inclination of the greater amount of credible evidence * * * to support one side of the

issue rather than the other.” ’ (Emphasis sic.) State v. Montgomery, 148 Ohio St.3d 347,

2016-Ohio-5487, 71 N.E.3d 180, ¶ 75, quoting State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990). “To

evaluate a claim that a jury verdict is against the manifest weight of the evidence, we

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that we must

reverse the conviction and order a new trial.” State v. Wilks, 154 Ohio St.3d 359, 2018-

Ohio-1562, 114 N.E.3d 1092, ¶ 168, citing Thompkins at 387, citing State v. Martin, 20
 -5-

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

{¶ 11} “Our criminal law recognizes that the provoked defendant is less worthy of

blame than the unprovoked defendant, but the law is unwilling to allow the provoked

defendant to totally escape punishment.” State v. Shane, 63 Ohio St.3d 630, 635, 590

N.E.2d 272 (1992). R.C. 2903.03 defines the offense of voluntary manslaughter this way:

“No person, while under the influence of sudden passion or in a sudden fit of rage, either

of which is brought on by serious provocation occasioned by the victim that is reasonably

sufficient to incite the person into using deadly force, shall knowingly cause the death of

another[.]” R.C. 2903.03(A). Accordingly, a defendant may mitigate a charge of murder

to the inferior offense of voluntary manslaughter if the defendant establishes at least one

of the two mitigating circumstances: “(1) sudden passion in response to serious

provocation by the victim sufficient to incite the defendant to use deadly force, and (2) a

sudden fit of rage in response to serious provocation by the victim sufficient to incite the

defendant to use deadly force.” State v. Rhodes, 63 Ohio St.3d 617, 617, 590 N.E.2d 261

(1992), fn. 2. The jury “must find a defendant guilty of voluntary manslaughter rather than

murder” if the State proves that the defendant knowingly killed the victim and the

defendant proves “the existence of one or both of the mitigating circumstances.” Id. at

617. See also State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096,

¶ 153, citing id. at 620 (“[a] defendant being tried for murder must prove the elements of

R.C. 2903.03(A) by a preponderance of the evidence”).

{¶ 12} “The test for voluntary manslaughter includes both an objective and a

subjective component.” Thompson at ¶ 153. The jury must first determine “whether a

serious provocation occurred and whether that provocation was ‘sufficient to arouse the
 -6-

passions of an ordinary person beyond the power of his or her control.’ ” Id., quoting

Shane at 634. Then the jury must decide “whether ‘this actor, in this particular case,

actually was under the influence of sudden passion or in a sudden fit of rage.’ ” Id., quoting

Shane at 635. Whether there was a cooling-off period must be considered, because “any

passion or rage felt by an offender who has had time to cool off does not qualify for

‘sudden passion’ or ‘sudden fit of rage.’ ” State v. Kanner, 7th Dist. Monroe No. 04 MO

10, 2006-Ohio-3485, ¶ 28. If “the accused had reflected, deliberated or cooled between

the time of provocation and the time the fatal stroke was given, or if there was time and

opportunity for cooling, the killing was with malice and intent to kill.” State v. Muscatello,

55 Ohio St.2d 201, 204, 378 N.E.2d 738 (1978).

{¶ 13} In this case, the circumstances are straightforward. Fullen launched an

unprovoked attack on Robinson and managed to pull out a clump of Robinson’s hair. The

fight was soon broken up, and two men stood between Fullen and Robinson. Fifteen

seconds after the fight ended, separated from Fullen by several feet and with two men

standing between them, Robinson pulled out a gun and shot Fullen twice. Robinson then

stepped forward and, standing over Fullen, shot him again. We note too that there was

testimony that, when Robinson was interviewed by the police three days later, he did not

complain of any injuries.

{¶ 14} We do not think that the jury lost its way by rejecting Robinson’s claim that

a mitigating circumstance existed. The jury could have decided that an unprovoked fight

was not something “sufficient to arouse the passions of an ordinary person beyond the

power of his or her control.” That is a judgment that the law permits the jury to make. See

Shane at 635 (“The jury, because it has the ability to find the sufficiently provoked
 -7-

defendant guilty of voluntary manslaughter, rather than murder, is able to exercise the

value judgment provided by the law in these circumstances.”). The jury also could have

reasonably found that Robinson had not actually been aroused or that he had had time

to cool off. The fight was short-lived and, other than the missing hair, Robinson was

apparently not seriously injured. The fight had ended about 15 seconds before Robinson

fired the first shots. There was a brief pause, and then Robinson shot Fullen again.

Commenting on similar facts, the Seventh District has said that “ ‘the fact that Appellant

shot the victim in the head and then stood over the victim and shot him multiple times

after that tends to show cool deliberation and not sudden passion.’ ” Kanner at ¶ 29,

quoting State v. Shakoor, 7th Dist. Mahoning No. 01CA121, 2003-Ohio-5140, ¶ 105. The

appellate court held that “the few seconds it takes to reload or readjust one’s weapon

indicates a sufficient cooling off period.” Id.

{¶ 15} In the end, we conclude that the jury did not lose its way in finding that

Robinson had failed to meet his burden to prove his claim of a mitigating circumstance.

He did not present any evidence, and his “failure to produce evidence in support of the

inferior offense cannot then be used as a sword” to undo his conviction. State v. Amey,

2018-Ohio-4207, 120 N.E.3d 503, ¶ 13 (8th Dist.). Although Fuller’s actions were

intolerable, “[his] assault was not grounds for an execution.” Id. at ¶ 27. This is not the

exceptional case in which the trier of fact lost its way and created a manifest injustice.

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

B. Ineffective assistance of counsel

{¶ 17} The second assignment of error alleges:

DEFENSE COUNSEL’S CUMULATIVE ERRORS CONSTITUTES [SIC]
 -8-

INEFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE

SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION AND OHIO CONSTITUTION.

{¶ 18} Robinson argues that defense counsel was ineffective by failing to prepare

for trial adequately, failing to present a complete defense, and filing an inadequate

Crim.R. 29 motion for acquittal.

{¶ 19} “Reversal of a conviction for ineffective assistance of counsel requires that

the defendant show that counsel’s performance was deficient and that the deficient

performance prejudiced the defendant so as to deprive him of a fair trial.” State v. Grate,

164 Ohio St.3d 9, 2020-Ohio-5584, __ N.E.3d __, ¶ 49, citing Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Because of the inherent

difficulties in making the first determination, a court must indulge in a strong presumption

that the challenged action might be considered sound trial strategy. Thus, judicial scrutiny

of counsel’s performance must be highly deferential.” State v. Bird, 81 Ohio St.3d 582,

692 N.E.2d 1013 (1998), citing Strickland at 689. See also State v. Carter, 72 Ohio St.3d

545, 558, 651 N.E.2d 965 (1995), citing Strickland at 689.

{¶ 20} Robinson argues that defense counsel was ineffective in failing to prepare

for trial adequately and failing to present a complete defense. Specifically, Robinson

argues that counsel failed to cross-examine the State’s witnesses effectively and to elicit

key information from them. “The scope of cross-examination falls within the ambit of trial

strategy, and debatable trial tactics do not establish ineffective assistance of counsel.”

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. Robinson

does not give any example of counsel’s allegedly ineffective cross-examination, and it is
 -9-

not clear to us what, if any, key information Robinson’s trial counsel failed to elicit from

the State’s witnesses.

{¶ 21} Robinson also argues that defense counsel failed to prevent the admission

of photographs that Robinson says were irrelevant and prejudicial. These photographs

contain images of Fullen’s body at the crime scene and during his autopsy. Robinson

contends that “counsel had a duty to ensure that the evidence in the case as presented

to the jury was not improper, irrelevant, or prejudicial.”

{¶ 22} We disagree with this contention because “the decision to either admit or

exclude relevant photos is committed to the sound discretion of the trial court.” State v.

Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-325, ¶ 20. All counsel can do is

object to the admission of a particular piece of evidence, and defense counsel did that in

this case.

{¶ 23} The essence of Robinson’s contention appears to be that the trial court

abused its discretion by admitting the photographs, but we disagree. The admission of

photographs is governed by Evid.R. 403(A), which provides that a court must exclude

relevant evidence “if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or of misleading the jury.” “When determining whether

the relevance of evidence is outweighed by its prejudicial effects, the evidence is viewed

in a light most favorable to the proponent, maximizing its probative value and minimizing

any prejudicial effect to the party opposing admission.” Lakes at ¶ 20, citing State v.

Frazier, 73 Ohio St.3d 323, 333, 652 N.E.2d 1000 (1995). The trial court reviewed the

photographs and admitted them over defense counsel’s objection that they were

inflammatory and redundant. We have viewed the photographs and we find no abuse of
 -10-

discretion in the trial court’s decision to admit them. The photos established the scene of

incident and showed the locations of the gunshot wounds. The trial court reasonably

concluded that their probative value outweighed any prejudicial effect.

{¶ 24} Robinson next argues that counsel should have presented evidence. Part

of this argument includes Robinson’s contention that defense counsel did not investigate

the case adequately. In death penalty litigation “ ‘[d]efense counsel has a duty to

investigate the circumstances of his client’s case and explore all matters relevant to the

merits of the case and the penalty, including the defendant’s background, education,

employment record, mental and emotional stability, and family relationships.’ ” State v.

Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, __ N.E.3d __ ¶ 154, quoting Goodwin v.

Johnson, 632 F.3d 301, 318 (6th Cir.2011). “Failure to reasonably investigate the

defendant’s background and present mitigating evidence to the jury at sentencing may

constitute ineffective assistance of counsel.” State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-

5584, __ N.E.3d __ ¶ 154, citing Wiggins v. Smith, 539 U.S. 510, 521-522, 123 S.Ct.

2527, 156 L.Ed.2d 471 (2003). Although this was not a death penalty case, Robinson had

the burden of demonstrating that his counsel rendered ineffective assistance by failing to

conduct an adequate investigation. See Grate at ¶ 154.

{¶ 25} In Strickland, a case involving a contention that counsel did not reasonably

investigate nonstatutory mitigating circumstances before a death penalty was imposed,

the Supreme Court observed “counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment.” Strickland at 690. “ ‘Attorneys need not pursue every conceivable avenue;

they are entitled to be selective.’ ” State v. Murphy, 91 Ohio St.3d 516, 542, 747 N.E.2d
 -11-

765 (2001), quoting United States v. Davenport, 986 F.2d 1047, 1049 (7th Cir.1993). The

record here simply does not show that defense counsel did not investigate something that

should have been investigated. Robinson says that defense counsel should have

investigated his psychological state, but there is no suggestion in the record that

Robinson had any relevant psychological problems to investigate. “[W]e cannot infer a

defense failure to investigate from a silent record.” State v. Were, 118 Ohio St.3d 448,

2008-Ohio-2762, 890 N.E.2d 263, ¶ 244.

{¶ 26} As to Robinson’s contention that counsel should have presented evidence

in support of his defense, we note that “ ‘[s]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable

* * *.’ ” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003),

quoting Strickland at 690. “Generally, counsel’s decision whether to call a witness falls

within the rubric of trial strategy and will not be second-guessed by a reviewing court.”

State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001). Robinson argues that

counsel should have called witnesses to testify about matters like Fullen’s aggressive

nature and how much strength it takes to pull out someone’s hair. Robinson also argues

that counsel should have presented mitigating evidence supporting his claim of sudden

passion or rage like his family, social, mental, and physical history. According to

Robinson, defense counsel should have presented evidence linking Robinson’s

behaviors after the shooting to characteristic behaviors of anger, rage, or sudden passion.

{¶ 27} Ultimately, nothing in the record shows that defense counsel’s decision not

to present evidence was the result of an inadequate investigation or other deficient

performance. The record simply does not show that mitigating evidence even existed.
 -12-

Even assuming that it did, whether defense counsel should have presented it bears on

his trial strategy, and Robinson fails to convince us that counsel’s strategy was

constitutionally deficient. We note that defense counsel’s opening and closing statements,

as well as his cross-examination of Clark, show that counsel did try to convince the jury

that Robinson acted out of rage, telling the jury during closing arguments that “Clark’s

evidence clearly indicates that he [Robinson] was beaten savagely, violently, for no

reason and was under the influence of passion and rage when he fired the shots that

killed Mr. Fullen.” (Tr. 295.) And counsel attempted to highlight Fullen’s aggressive nature

using Clark’s testimony of the “beat-down” and by referring to Fullen’s blood-alcohol level,

as well as Robinson’s torn out hair.

{¶ 28} Robinson also argues that the Crim.R. 29 motion for acquittal that defense

counsel made was inadequate. At the close of the State’s evidence, counsel simply asked

for acquittal under Crim.R. 29, saying, “[t]hat’s all I have, Judge. No argument.” (Tr. 269.)

The “failure to make a Crim.R. 29 motion for acquittal is not ineffective assistance when

such a motion would have been futile.” Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, __

N.E.3d __, at ¶ 146. The State presented overwhelming evidence that Robinson

committed the charged offenses. In that circumstance, we cannot find defense counsel

deficient for making a barebones Crim.R. 29 motion when such a motion was correctly

overruled.

{¶ 29} Finally, Robinson cumulative-error argument also fails. Under the

cumulative-error doctrine, “a conviction will be reversed when the cumulative effect of

errors in a trial deprives a defendant of a fair trial even though each of the numerous

instances of trial-court error does not individually constitute cause for reversal.” State v.
 -13-

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. As we did not find

that defense counsel was deficient at any point, we cannot find cumulative error.

{¶ 30} Given the evidence against Robinson and the absence of support in the

record to show that counsel performed deficiently, the claim of ineffective assistance must

fail.

{¶ 31} The second assignment of error is overruled.

III. Conclusion

{¶ 32} We have overruled both assignments of error. As such, the trial court's

judgment is affirmed.

.............

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Ian A. Richardson
Charles W. Slicer, III
Hon. Douglas M. Rastatter