State v. Robinson

[Cite as State v. Robinson, 2020-Ohio-4880.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-19-79

        v.

JOHN S. ROBINSON,                                         OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2018 0191

                                      Judgment Affirmed

                           Date of Decision: October 13, 2020




APPEARANCES:

        William T. Cramer for Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-79


PRESTON, J.

       {¶1} Defendant-appellant, John S. Robinson (“Robinson”), appeals the

November 15, 2019 judgment of sentence of the Allen County Court of Common

Pleas. For the reasons that follow, we affirm.

       {¶2} Just before midnight on May 2, 2018, a Ford F-350 pickup truck driven

by Robinson entered northbound traffic on I-75 near Beaverdam, Ohio via an exit

ramp. After leaving the exit ramp and entering the main travel lanes, Robinson’s

southbound pickup truck collided head-on with a northbound Ford Explorer driven

by Richard Watson. At the time, Watson, his wife, Deena Frye, and their children,

Colby, Conner, Chlo’ee, and Christopher, were returning home to Michigan from a

family vacation in Florida. While Watson escaped the crash with relatively minor

injuries, the rest of his family was more severely injured—none more seriously than

Christopher, who ultimately died from multiple blunt force injuries of the chest and

abdomen. Law enforcement officers responding to the crash detected the odor of

alcohol on Robinson’s breath and noted that Robinson exhibited several indicators

of impairment, including bloodshot eyes and slurred speech. Based on these

observations, law enforcement officers obtained a search warrant to collect samples

of Robinson’s blood.      Subsequent testing of Robinson’s blood revealed that

Robinson had a blood alcohol concentration of .13 grams of alcohol per 100

milliliters of whole blood.


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       {¶3} On June 13, 2018, Robinson was indicted on seven counts: Count One

of aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second-

degree felony; Count Two of operating a vehicle under the influence of alcohol in

violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor; Count Three of

operating a vehicle under the influence of alcohol (“OVI”) in violation of R.C.

4511.19(A)(1)(b), a first-degree misdemeanor; and Counts Four through Seven of

aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), third-degree

felonies. (Doc. No. 4). On June 25, 2018, Robinson appeared for arraignment and

pleaded not guilty to the counts of the indictment. (Doc. No. 13).

       {¶4} The case proceeded to a jury trial on November 12-14, 2019. On

November 14, 2019, the jury found Robinson guilty on all seven counts of the

indictment. (Doc. Nos. 191, 192, 193, 194, 195, 196, 197). After accepting the

jury’s verdicts, the trial court proceeded immediately to sentencing. First, the trial

court determined that Counts Two and Three merged for purposes of sentencing.

(Doc. No. 200). The State elected to sentence Robinson on Count Three. (Id.). The

trial court then sentenced Robinson as follows: 8 years in prison on Count One; 180

days in prison on Count Three; 60 months in prison on each of Counts Four and

Seven; and 54 months in prison on each of Counts Five and Six. (Id.). Finally, the

trial court ordered that all of these terms of imprisonment be served consecutively




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Case No. 1-19-79


to each other for an aggregate term of 27 years and 6 months in prison. (Id.). The

trial court filed its judgment entry of sentence on November 15, 2019. (Id.).

       {¶5} On December 13, 2019, Robinson filed a notice of appeal. (Doc. No.

208). He raises three assignments of error for our review.

                            Assignment of Error No. I

       Appellant’s constitutional right to the effective assistance of
       counsel was violated when counsel failed to challenge the
       admissibility of the blood-alcohol test results.

       {¶6} In his first assignment of error, Robinson argues that his trial counsel

was ineffective for failing to challenge the admissibility of the blood test results.

Robinson argues that because his blood was drawn more than three hours after the

collision, the test results were inadmissible to prove that he violated R.C.

4511.19(A)(1)(b)—a so-called “per se” OVI. (Appellant’s Brief at 9-10). He

contends that his trial counsel should have at least requested that the trial court

instruct the jury that the test results could be used to prove a violation of R.C.

4511.19(A)(1)(a), a so-called “under-the-influence” OVI, but that they could not be

used to prove a per se OVI. (See

id. at 8-10).

Robinson maintains that he was

prejudiced because he “would not have been convicted of the per se OVI in Count

Three if the blood-alcohol evidence was properly limited” and because “the easy

conviction on the per se OVI was likely to influence the jury on the other counts *

* *.” (Id. at 10-11).


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Case No. 1-19-79


       {¶7} “In criminal proceedings, a defendant has the right to effective

assistance of counsel under both the United States and Ohio Constitutions.” State

v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45.                 A

defendant asserting a claim of ineffective assistance of counsel must establish: (1)

counsel’s performance was deficient or unreasonable under the circumstances; and

(2) the deficient performance prejudiced the defendant. State v. Kole, 

92 Ohio St. 3d 303

, 306 (2001), citing Strickland v. Washington, 

466 U.S. 668

, 687, 

104 S. Ct. 2052

(1984). In order to show that counsel’s conduct was deficient or unreasonable, the

defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment. Strickland at 689. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie, 

81 Ohio St. 3d 673

, 675 (1998).

Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance. State v. Frazier, 

61 Ohio St. 3d 247

, 255 (1991). Rather, the

errors complained of must amount to a substantial violation of counsel’s essential

duties to his client. See State v. Bradley, 

42 Ohio St. 3d 136

, 141-142 (1989), citing

State v. Lytle, 

48 Ohio St. 2d 391

, 396 (1976).

       {¶8} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been


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Case No. 1-19-79


different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’”

Id., quoting Strickland at

694.

       {¶9} In this case, to convict Robinson of each of the seven counts with which

he was charged, the State was required to prove that Robinson violated R.C.

4511.19(A). To convict Robinson of aggravated vehicular homicide, the State had

to show that Robinson caused the death of another “[a]s the proximate result of

committing a violation of [R.C. 4511.19(A)] * * *.” R.C. 2903.06(A)(1)(a).

Similarly, to convict Robinson of each count of aggravated vehicular assault, the

State had to prove that Robinson caused serious physical harm to another “[a]s the

proximate result of committing a violation of [R.C. 4511.19(A)] * * *.” R.C.

2903.08(A)(1)(a). Finally, Robinson was also separately charged with violations of

R.C. 4511.19(A)(1)(a), an under-the-influence OVI, and R.C. 4511.19(A)(1)(b), a

per se OVI. To convict Robinson of an under-the-influence OVI, the State had to

demonstrate that Robinson was “under the influence of alcohol” at the time he was

operating his truck. R.C. 4511.19(A)(1)(a). On the other hand, to convict Robinson

of a per se OVI, the State needed to show only that Robinson had “a concentration

of eight-hundredths of one per cent or more but less than seventeen-hundredths of

one per cent by weight per unit volume of alcohol in [his] whole blood” when he

was operating his truck. R.C. 4511.19(A)(1)(b).


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Case No. 1-19-79


        {¶10} R.C. 4511.19 expressly allows for the admission of blood test results

in prosecutions for violations of R.C. 4511.19(A)(1)(a) or 4511.19(A)(1)(b),

provided that certain guidelines are followed during the collection and testing of

blood samples. See R.C. 4511.19(D). Specifically, R.C. 4511.19(D)(1)(b) provides

that “[i]n any criminal prosecution * * * for a violation of [R.C. 4511.19(A)] * * *,

the court may admit evidence on the concentration of alcohol * * * in the

defendant’s whole blood * * * at the time of the alleged violation as shown by

chemical analysis of the [defendant’s whole blood] withdrawn within three hours of

the time of the alleged violation.” Thus, R.C. 4511.19(D)(1)(b) places limitations

on the admissibility of blood test results based on the temporal proximity of the

blood withdrawal to the alleged violation of R.C. 4511.19(A).

         {¶11} Yet, test results derived from blood that was withdrawn more than

three hours after an alleged violation of R.C. 4511.19(A) are not categorically

inadmissible. It is well settled that “[i]n a criminal prosecution for violation of R.C.

[4511.19(A)(1)(b), a per se OVI], * * * the results of a properly administered bodily

substances test may be admitted in evidence only if the bodily substance is

withdrawn within [three] hours of the time of the alleged violation.”1 (Emphasis




1
  In Lucas, the court interpreted and applied a former version of R.C. 4511.19. In this former version, what
is now R.C. 4511.19(A)(1)(b) was found at R.C. 4511.19(A)(2) and what is now R.C. 4511.19(A)(1)(a) was
found at R.C. 4511.19(A)(1). In addition, this former version required that bodily substances be withdrawn
within two hours of the alleged violation rather than three hours as provided by the current version of the
statute.

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added.) Newark v. Lucas, 

40 Ohio St. 3d 100

(1988), paragraph one of the syllabus.

However, “a blood sample taken outside the time frame set out in R.C. 4511.19(D)

is admissible to prove that a person is under the influence of alcohol as proscribed

by R.C. 4511.19(A)(1)(a) * * *, provided that the administrative requirements of

R.C. 4511.19(D) are substantially complied with and expert testimony is offered.”

State v. Hassler, 

115 Ohio St. 3d 322

, 2007-Ohio-4947, ¶ 19; see Lucas at paragraph

two of the syllabus. Therefore, the admissibility of test results of belatedly drawn

blood depends on the type of OVI that the results are being offered to prove, i.e.,

whether the results are being offered to prove an under-the-influence OVI or a per

se OVI, the particular circumstances of the blood draw and subsequent testing, and

the availability of expert testimony.

       {¶12} Here, there is no dispute that Robinson’s blood was withdrawn more

than three hours after the alleged violations of R.C. 4511.19(A). Robinson’s truck

collided with Watson’s vehicle at approximately 11:45 p.m. on May 2, 2018. (Nov.

12-14, 2019 Tr., Vol. I, at 281-282); (Nov. 12-14, 2019 Tr., Vol. II, at 321, 367);

(State’s Ex. 48). His blood was not withdrawn until 3:41 a.m. the following day.

(Nov. 12-14, 2019 Tr., Vol. II, at 382-383); (State’s Exs. 46, 47). Thus, nearly four

hours passed between the time of the alleged offenses and the time that Robinson’s

blood was collected. Because Robinson’s blood was not drawn within the three-

hour window set forth in R.C. 4511.19(D), the test results should not have been


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Case No. 1-19-79


admitted to prove that Robinson committed a per se OVI. Lucas at paragraph one

of the syllabus.   Furthermore, although the test results were not necessarily

inadmissible to show that Robinson committed an under-the-influence OVI, their

admissibility for this purpose should have depended on whether the State could offer

expert testimony as well as proof of substantial compliance with R.C. 4511.19(D)’s

administrative requirements. Hassler at ¶ 19.

       {¶13} However, while it would likely have been prudent for Robinson’s trial

counsel to contest the admissibility of the blood test results, we need not determine

whether Robinson’s trial counsel’s failure to do so constituted unreasonable or

deficient performance. Even assuming that Robinson’s trial counsel’s performance

was unreasonable or deficient under the circumstances, because the State presented

considerable additional evidence that Robinson was under the influence of alcohol,

Robinson has failed to establish that, but for his trial counsel’s performance, there

is a reasonable probability that the outcome of his trial would have been different.

       {¶14} At trial, the State presented several witnesses who testified both to the

amount of alcohol that Robinson consumed on the evening of May 2, 2018 and to

his behavior in the moments immediately before the collision and immediately after.

The State established that Robinson entered Vino Bellissimo, a bar and restaurant

in Lima, Ohio, at approximately 5:03 p.m. on the evening of May 2, 2018. (Nov.

12-14, 2019 Tr., Vol. I, at 234-235); (State’s Ex. 6). Ashley Hartman (“Hartman”),


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Case No. 1-19-79


who was working as a bartender at Vino Bellissimo, testified that Robinson

consumed four full servings of beer during his visit. (Nov. 12-14, 2019 Tr., Vol. I,

at 236-237). Three of these servings were 10-ounce pours of Dogfish Head 120

Minute IPA, which, according to Hartman, contained approximately 18 percent

alcohol by volume. (Id. at 242-243); (State’s Exs. 5, 6). The fourth serving was a

10-ounce pour of a beer called “Dick Kicker Malt Liquor,” which Hartman

estimated as containing 14 percent alcohol by volume. (Nov. 12-14, 2019 Tr., Vol.

I, at 240-241); (State’s Exs. 5, 6). Hartman testified that Robinson also consumed

one small sample of a high-alcohol-by-volume beer. (Nov. 12-14, 2019 Tr., Vol. I,

at 236); (State’s Ex. 6). Security camera footage from the evening of May 2, 2018,

shows that Robinson finished his final beer at approximately 6:34 p.m. and left Vino

Bellissimo at approximately 6:51 p.m. (State’s Ex. 6).

       {¶15} After leaving Vino Bellissimo, Robinson saw a movie at a nearby

theater. (State’s Ex. 64). After the movie, Robinson drove to Thirsty’s, a bar and

restaurant in Beaverdam, where he arrived shortly after 9:30 p.m. (State’s Ex. 48).

Ashlee Plaugher (“Plaugher”), who was working as a bartender at Thirsty’s, testified

that Robinson drank three bottles of Roebling, a “vanilla espresso import beer,”

during his visit. (Nov. 12-14, 2019 Tr., Vol. I, at 272-273); (State’s Ex. 7). Plaugher

stated that Roebling comes in either a 12-ounce bottle or a 16-ounce bottle, though

she was not certain which, and that it contains 7.8 percent alcohol by volume. (Nov.


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Case No. 1-19-79


12-14, 2019 Tr., Vol. I, at 273). Plaugher testified that Robinson’s stay at Thirsty’s

lasted no more than two hours, and other evidence supports that Robinson began

driving away from Thirsty’s at approximately 11:43 p.m. (Id. at 279); (State’s Ex.

48).

       {¶16} Chelsey Crawford (“Crawford”) testified that on the night of May 2,

2018, she was driving on I-75 from Lima to Beaverdam. (Nov. 12-14, 2019 Tr.,

Vol. I, at 281-282). She stated that, at approximately 11:45 p.m., she was exiting I-

75 at the Beaverdam exit when she saw a “heavy duty” Ford F-350 pickup truck

“turn onto the exit ramp the wrong way” ahead of her. (Id. at 282-283). Crawford

testified that as soon as she realized that the pickup truck was driving straight toward

her, she flashed her high-beams repeatedly and “lay[ed] on [her] horn.” (Id. at 284-

285). However, according to Crawford, she did not see anything that indicated that

the driver of the truck saw or reacted to her warning signals. (Id. at 285-286).

Crawford testified that as the truck continued driving toward her down the exit

ramp, she realized that it was not going to stop. (Id. at 286). As a result, Crawford

was forced to veer off to the side of the exit ramp to avoid colliding with the truck.

(Id.). Crawford testified that, as far as she could tell, the driver of the truck did not

react when she veered off of the ramp. (Id.). She stated that she watched in her

rearview mirror as the truck entered northbound traffic on I-75 and struck another

vehicle. (Id. at 288). Crawford did not observe any illumination of the truck’s brake


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Case No. 1-19-79


lights or any other indication that the driver of the truck realized that he was driving

the wrong way. (Id.).

       {¶17} Trooper Michael Kinsinger (“Trooper Kinsinger”), who responded to

the scene of the crash between 11:45 p.m. and 11:50 p.m., testified that when he

first made contact with Robinson, Robinson was outside of his truck and leaning

against it. (Nov. 12-14, 2019 Tr., Vol. II, at 316). Trooper Kinsinger stated that

when he encountered Robinson, he “detect[ed] an odor of alcoholic beverage upon

his breath.” (Id. at 318). After this initial encounter, Robinson was moved to the

front seat of Trooper Kinsinger’s patrol vehicle, where, according to Trooper

Kinsinger, “the odor of alcohol became more present upon [Robinson’s] breath.

Became stronger.” (Id.). Trooper Kinsinger testified that he also noticed that

Robinson’s eyes were bloodshot, that he was unsteady on his feet, and that he was

slurring his speech—all of which suggested to Trooper Kinsinger that Robinson was

impaired. (Id. at 318-319, 322). Trooper Kinsinger further testified that he took

photographs of the signage posted around the exit ramp that Robinson used to enter

I-75. (Id. at 331). These photographs reflect that the exit ramp was flanked on both

sides by unobstructed, highly reflective signs reading “Do Not Enter” and “Wrong

Way.” (State’s Exs. 22-26).

       {¶18} Sergeant Steven Posada (“Sergeant Posada”), who responded to the

crash around midnight, testified that when he spoke to Robinson at the scene, he


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Case No. 1-19-79


smelled the odor of alcohol emanating from Robinson and observed that Robinson

was slurring his words. (Nov. 12-14, 2019 Tr., Vol. II, at 370, 384-385). In

addition, Sergeant Posada testified that wrong-way driving is itself typically “a huge

sign of impairment.” (Id. at 375).

       {¶19} Finally, Joshua Schlosser (“Schlosser”) testified that he received a

phone call from Robinson just before midnight on May 2, 2018. (Id. at 401). The

truck Robinson was driving on May 2, 2018, was registered in Schlosser’s wife’s

name, and Robinson was in the process of purchasing it. (Id. at 390). Schlosser

testified that when he answered the phone, Robinson “frantically started saying,

‘Mayday, Mayday, Mayday.         I’ve been in an accident, hit head on, possible

fatalities.’” (Id. at 401). Schlosser stated that Robinson was “slurring, * * * sounded

intoxicated or not of his right mind.” (Id. at 403).

       {¶20} To summarize, the State established that, in a period of less than seven

hours, Robinson consumed over 40 ounces of extraordinarily potent beer as well as

36-48 ounces of a beer that, while less potent, contained nearly eight percent alcohol

by volume. Shortly after finishing the last of these drinks, Robinson got into his

truck and turned onto an exit ramp. Robinson, who ignored or failed to see both the

road signs warning him against his course of travel and Crawford’s signals, then

continued southward along the exit ramp until he entered northbound traffic on I-

75, where he collided head-on with Watson’s vehicle. Law enforcement officers


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Case No. 1-19-79


responding to the scene of the crash detected the odor of alcohol about Robinson’s

person. They also observed that Robinson’s eyes were bloodshot and that he was

unsteady on his feet. Finally, both of the officers as well as Schlosser noticed that

Robinson was slurring his words.

       {¶21} Although the blood test results certainly supplement this evidence,

when the test results are excluded from consideration, the State’s evidence still

proves overwhelmingly that Robinson was under the influence of alcohol when his

truck collided with Watson’s vehicle on the night of May 2, 2018. Accordingly,

with respect to his under-the-influence OVI conviction, Robinson has not

demonstrated that he was prejudiced by his trial counsel’s performance because

there is not a reasonable probability that he would have been acquitted of this charge

even if his trial counsel had succeeded in having the test results excluded from the

case entirely.

       {¶22} The same is true of Robinson’s aggravated-vehicular-homicide and

aggravated-vehicular-assault convictions.      To convict Robinson of aggravated

vehicular homicide and aggravated vehicular assault, the State was not required to

prove that Robinson committed a per se OVI. Instead, the State had to prove only

that Robinson committed some type of OVI, including an under-the-influence OVI.

Therefore, because there is not a reasonable probability that Robinson would not

have been convicted of the under-the-influence OVI and because it was enough for


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Case No. 1-19-79


the State to prove that Robinson committed an under-the-influence OVI, Robinson

has likewise failed to demonstrate that there is a reasonable probability that he

would not have been convicted of aggravated vehicular homicide and aggravated

vehicular assault.

       {¶23} Nevertheless, there is one area in which Robinson’s arguments have

slightly more traction. Robinson argues that “[t]here was a reasonable probability

of a different outcome insofar as [he] would not have been convicted of the per se

OVI in Count Three if the blood-alcohol evidence was properly limited.”

(Appellant’s Brief at 10). He further notes that when the trial court found that his

two OVI convictions merged for purposes of sentencing, the State elected to

sentence on the per se OVI rather than the under-the-influence OVI. (Id.). Thus,

he argues that he would not have been convicted of and sentenced on the per se OVI

had the blood test results been excluded. (Id. at 10-11).

       {¶24} We agree with Robinson to the extent that, had his trial counsel

succeeded in excluding the blood test results, he could not and would not have been

convicted of and sentenced on the per se OVI. However, because Robinson was

convicted of violating both R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(b),

rather than some other combination of OVIs, we cannot conclude that Robinson was

prejudiced. R.C. 4511.19(A), in addition to other offenses, provides for two

categories of per se OVIs based on the alcohol concentration in a person’s whole


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Case No. 1-19-79


blood: “low-test” per se OVIs and “high-test” per se OVIs. R.C. 4511.19(A)(1)(b),

(f). Robinson was charged with and convicted of a low-test per se OVI. R.C.

4511.19(A)(1)(b). The potential penalties for a low-test per se OVI differ from the

potential penalties for a high-test per se OVI.     R.C. 4511.19(G)(1)(a)(i)-(ii).

However, the potential penalties for a low-test per se OVI and an under-the-

influence OVI are identical. R.C. 4511.19(G)(1)(a)(i). Therefore, even if the per

se OVI had been removed from the equation entirely, Robinson would still have

faced the same potential penalties because he was also convicted of an under-the-

influence OVI. As there is nothing in the record suggesting that Robinson was

sentenced more harshly simply because the OVI for which he was sentenced was a

per se OVI, the only apparent difference is that Robinson would have been

sentenced for an under-the-influence OVI rather than a per se OVI. Thus, while

Robinson is correct that the outcome of his case would have been different in that

he could not have been convicted and sentenced on the per se OVI absent the blood

test results, the outcome would have been different only in form. This does not

amount to prejudice.

      {¶25} Robinson’s first assignment of error is overruled.

                           Assignment of Error No. II

      The trial court abused its discretion by excluding evidence of
      potential contributory negligence.



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Case No. 1-19-79


       {¶26} In his second assignment of error, Robinson argues that the trial court

erred by granting the State’s motion in limine and preventing him from testifying

about Watson’s driving. Specifically, Robinson argues that because “there was a

reasonable probability that a jury would have found Watson’s erratic driving to have

been the sole proximate cause of the crash if [he] were allowed to testify on that

issue,” the trial court erred by preliminarily excluding this testimony. (Appellant’s

Brief at 13). Robinson notes that because of the trial court’s ruling, he “did not

testify [or] ma[ke] [an] attempt to introduce evidence regarding Watson’s driving,”

aside from a proffer in which his trial counsel explained what testimony he might

offer if given the chance to testify about Watson’s driving. (Id. at 11).

       {¶27} Before we can reach the merits of the arguments Robinson raises under

his second assignment of error, we must first consider the State’s claim that

Robinson did not preserve his objections to the trial court’s ruling on the motion in

limine because he “did not obtain a final ruling on the admissibility of evidence of

the victim’s manner of driving.” (Appellee’s Brief at 12). “‘“A motion in limine is

defined as ‘[a] pretrial motion requesting [the] court to prohibit opposing counsel

from referring to or offering evidence on matters so highly prejudicial to [the]

moving party that curative instructions cannot prevent [a] predispositional effect on

[the] jury.’”’” State v. Miller, 3d Dist. Allen No. 1-18-17, 2018-Ohio-4648, ¶ 8,

quoting State v. Wild, 2d Dist. Clark No. 2009 CA 83, 2010-Ohio-4751, ¶ 27,


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Case No. 1-19-79


quoting State v. French, 

72 Ohio St. 3d 446

, 449 (1995), quoting Black’s Law

Dictionary 1013 (6th Ed.1990). “‘A ruling on a motion in limine reflects the court’s

anticipated treatment of an evidentiary issue at trial and, as such, is a tentative,

interlocutory, precautionary ruling.’”

Id., quoting French at

450. “‘The established

rule in Ohio is that the grant or denial of a motion in limine is not a ruling on the

evidence.’”

Id., quoting State v.

Thompson, 3d Dist. Union Nos. 14-04-34 and 14-

04-35, 2005-Ohio-2053, ¶ 26, citing State v. Grubb, 

28 Ohio St. 3d 199

, 200-201

(1986). “‘In deciding such motions, the trial court is at liberty to change its ruling

on the disputed evidence in its actual context at trial.’”

Id., quoting Defiance v.

Kretz, 

60 Ohio St. 3d 1

, 4 (1991). Accordingly, “‘[f]inality does not attach when [a

motion in limine] is granted.’”

Id., quoting Kretz at

4, citing Grubb at 201-202.

       {¶28} “In order to preserve for appeal any error in the trial court’s resolution

of a motion in limine, the objecting party must ‘seek the introduction of the evidence

by proffer or otherwise’ at trial ‘to enable the court to make a final determination as

to its admissibility.’” (Emphasis deleted.)

Id. at ¶ 9,

quoting Grubb at paragraph

two of the syllabus and citing State v. Brown, 

38 Ohio St. 3d 305

(1988), paragraph

three of the syllabus. “Then, ‘[a]n appellate court will * * * review the correctness

of the trial court’s ruling on the objection rather than the ruling on the motion in

limine.’”

Id., quoting Wild at

¶ 29, citing State v. White, 4th Dist. Gallia No.




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Case No. 1-19-79


95CA08, 

1996 WL 614190

, *3 (Oct. 21, 1996) and Wray v. Herrell, 4th Dist.

Lawrence No. 93CA08, 

1994 WL 64293

, *6 (Feb. 24, 1994).

         {¶29} After reviewing the record, we agree with the State that Robinson

failed to preserve for appeal any errors in the trial court’s resolution of the State’s

motion in limine. The State filed its motion in limine on the morning of November

12, 2019, just before jury selection began in Robinson’s trial. (Doc. No. 185). In

its motion in limine, the State explained that it anticipated that Robinson “may want

to present testimony regarding alleged bad driving of, or unrestrained passengers in,

the victim vehicle in this case.” (Id.). The State argued that “under Ohio law, such

evidence of the victim’s comparative or contributory negligence is not relevant in

[a] criminal case.” (Id.). The State requested that the trial court issue an order

“prohibiting the defense from presenting, at trial, any evidence of the victim’s

conduct that the jury might consider as contributing to injuries suffered in this case.”

(Id.).

         {¶30} After jury selection, the trial court turned to the State’s motion in

limine. The trial court began by granting the State’s motion in part and barring

Robinson from presenting “any evidence of the failure to wear a seatbelt.” (Nov.

12-14, 2019 Tr., Vol. I, at 179-180). The trial court then considered whether to

prevent Robinson from presenting evidence about Watson’s driving. Though the

trial court had not yet formally granted the State’s motion in its entirety and


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Case No. 1-19-79


prohibited Robinson from testifying about Watson’s driving, it is evident that

Robinson’s trial counsel expected such a ruling from the trial court. (See

id. at 178- 179).

In apparent anticipation of an unfavorable ruling on the State’s motion in

limine, Robinson’s trial counsel acknowledged that he “ha[d] to make an attempt to

introduce [evidence of Watson’s driving] first and have it ruled on

contemporaneously by the court” in order to preserve for appeal any errors in the

trial court’s resolution of the State’s motion. (Id. at 179). To that end, Robinson

made the following proffer:

       [I]t is at least apparent at this point that [Robinson] may take the stand

       and during the course of his testimony was desirous of explaining

       what he observed, including what he perceived as the driving of the

       victim vehicle; where it was, how it drove, if it was trying to avoid or

       whatever, things like that. So, to the extent that’s contributory, I

       understand it’s not allowed. But to the extent that it’s informational

       only I think the court can instruct around that if * * * [Robinson]

       testifies that way. In other words, if [Robinson] would testify that Mr.

       Watson, driving the vehicle, was reckless or if he turned a certain

       direction or something like that or did or did not make evasive

       maneuvers, if he testifies to his observation without maybe




                                         -20-
Case No. 1-19-79


       concluding that that’s * * * part of the act * * * part of the cause of

       death or injury, that he can at least testify to those facts * * *.

(Id. at 180-181). After the proffer, the trial court ruled that it was not “going to

allow testimony in that regard because * * * it would unduly confuse the jury on the

issues because they’re not going to get a contributory negligence or comparative

negligence type of instruction.” (Id. at 182-183). Accordingly, the trial court ruled

that “at this point the State’s motion will be granted.” (Id. at 183). However, the

trial court emphasized that it was possible that it could “reconsider” its ruling on the

State’s motion in limine in light of the evidence presented at trial. (Id.). The trial

court never revisited its ruling.

       {¶31} Despite Robinson’s proffer, the trial court never made a final, definite

determination as to the admissibility of evidence relating to Watson’s driving. The

trial court’s statement that it was granting the State’s motion “at this point” and its

commitment to reconsider its ruling if appropriate clearly indicate that the trial

court’s ruling was tentative and nonfinal. Therefore, because the trial court’s ruling

on the State’s motion in limine was never converted into a final ruling on the

admissibility of evidence of Watson’s driving, Robinson failed to preserve for

appeal any error in the trial court’s resolution of the State’s motion in limine.

       {¶32} Moreover, even if the trial court had rendered a final ruling based on

Robinson’s proffer, the form of the proffer would make it nearly impossible for this


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Case No. 1-19-79


court to review the correctness of such a ruling. Under Evid.R. 103, “[e]rror may

not be predicated upon a ruling which * * * excludes evidence unless a substantial

right of the party is affected * * * and * * * the substance of the evidence was made

known to the court by offer * * *.” Evid.R. 103(A)(2). “‘“The purpose of a proffer

is to assist the reviewing court in determining, pursuant to Evid.R. 103, whether the

trial court’s exclusion of evidence affected a substantial right of the appellant.”’”

Brown v. Burnett, 2d Dist. Clark No. 2019-CA-57, 2020-Ohio-297, ¶ 39, quoting

State v. Mullins, 2d Dist. Montgomery No. 21277, 2007-Ohio-1051, ¶ 36, quoting

In re Walker, 

162 Ohio App. 3d 303

, 2005-Ohio-3773, ¶ 37 (11th Dist.). “[T]he

proffer must satisfy two elements. First, the offering party must explain the legal

theory supporting admissibility of the testimony. Second, the offering party must

demonstrate what the witness was expected to testify to and what that evidence

would have proven or tended to have proven.” Elkins v. Veolia Transp., Inc., 10th

Dist. Franklin No. 10AP-203, 2010-Ohio-5209, ¶ 31, citing Ross v. St. Elizabeth

Health Ctr., 

181 Ohio App. 3d 710

, 2009-Ohio-1506, ¶ 29 (7th Dist.). A proffer that

provides “no specific information * * * does not provide an appropriate basis for

review.” Brown at ¶ 44, citing State v. Tyra, 2d Dist. Montgomery No. 27040, 2017-

Ohio-313, ¶ 28.

       {¶33} Here, rather than detailing his proposed testimony with the required

specificity, Robinson’s proffer consisted only of speculation and general


                                        -22-
Case No. 1-19-79


descriptions of the kind of things about which Robinson wanted to testify. We

suspect that Robinson would not have portrayed Watson’s driving in a favorable

light. Yet, from Robinson’s proffer, we cannot be certain how Robinson would

have testified. Robinson’s proffer embraces everything from testimony of model

driving on Watson’s part to testimony that Watson deliberately ran into Robinson’s

truck. Thus, even with a final admissibility determination, this ambiguity would

frustrate meaningful review. See Brown at ¶ 37-39, 43-44, 51-52 (where a proffer

claimed that experts were qualified to render opinions and that their opinions were

admissible but failed to actually disclose their opinions, appellate court lacked a

meaningful basis for review).

       {¶34} Robinson’s second assignment of error is overruled.

                           Assignment of Error No. III

       Appellant’s constitutional right to testify at trial was violated
       when the trial court failed to ensure that appellant knowingly,
       intelligently, and voluntarily waived that right.

       {¶35} In his third assignment of error, Robinson argues that he was

improperly deprived of his constitutional right to testify in his own defense because

the trial court did not ensure that he knowingly, intelligently, and voluntarily waived

that right. Robinson argues that the trial court “should have informed [him] that he

had a right to testify” because there was an “open disagreement” between himself




                                         -23-
Case No. 1-19-79


and his trial counsel about the decision whether to testify in his defense.

(Appellant’s Brief at 14).

       {¶36} “Generally, the defendant’s right to testify is regarded both as a

fundamental and a personal right that is waivable only by an accused.” State v. Bey,

85 Ohio St. 3d 487

, 499 (1999). However, “a trial court is not required to conduct

an inquiry with the defendant concerning the decision whether to testify in his

defense.” (Emphasis sic.)

Id. {¶37} While Robinson

acknowledges that trial courts do not usually have a

duty to conduct an inquiry with the defendant concerning the defendant’s decision

whether to testify, he argues that an exception applies where there are “any

statements or actions from the defendant indicating disagreement with counsel

[about the decision to testify] or the desire to testify * * *.” United States v. Webber,

208 F.3d 545

, 551 (6th Cir.2000). He maintains that this exception is applicable

here because he “filed a pro se motion shortly before trial requesting different

counsel due to a disagreement with counsel” and that during a hearing on the

motion, it was apparent that he and his trial counsel “had a difference of opinion on

trial strategy.” (Appellant’s Brief at 14). Robinson also claims that the exception

applies because “defense counsel indicated that Robinson wished to testify” during

pretrial discussions regarding the State’s motion in limine. (Id.).




                                          -24-
Case No. 1-19-79


       {¶38} However, assuming that Robinson has identified an exception to the

general rule, we conclude that this exception does not apply under the particular

facts of this case. Although Robinson did file a motion for new counsel shortly

before trial, which was premised on disagreements with his trial counsel, the motion

itself and the proceedings at the hearing on the motion make clear that these

disagreements did not relate to Robinson’s decision whether to testify in his own

defense. Rather, Robinson sought new counsel because he felt that his trial counsel

had not provided him with discovery materials to which he felt entitled and because

he disagreed with his trial counsel’s decisions on whether certain witnesses would

be subpoenaed and on how other evidence would be prepared and presented. (See

Doc. No. 173); (See generally Nov. 5, 2019 Tr.). Furthermore, there is nothing in

the transcript of Robinson’s trial suggesting that Robinson desired to testify or that

he and his trial counsel disagreed about whether he should do so. Robinson’s trial

counsel merely stated that Robinson “may take the stand” and explained what

Robinson’s testimony might be “if [Robinson] would testify * * *.” (Nov. 12-14,

2019 Tr., Vol. I, at 180-181). In addition, when the time came for Robinson to put

on his own evidence, Robinson did not present any evidence but instead rested his

case without comment from Robinson or his trial counsel about whether Robinson

wished to testify. (Nov. 12-14, 2019 Tr., Vol. III, at 529). Accordingly, because

we have found nothing in the record suggesting that Robinson misunderstood or


                                        -25-
Case No. 1-19-79


was unaware of his right to testify or that the trial court was aware of a disagreement

between Robinson and his trial counsel over Robinson’s decision whether to testify,

we conclude that the trial court did not err by failing to ensure, sua sponte, that

Robinson knowingly, intelligently, and voluntarily waived his right to testify.

       {¶39} Robinson’s third assignment of error is overruled.

       {¶40} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




                                         -26-
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