[Cite as State v. Stevens,
2023-Ohio-2153.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30336
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ROBIN STEVENS, JR. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 19 10 3512
DECISION AND JOURNAL ENTRY
Dated: June 28, 2023
STEVENSON, Judge.
{¶1} Defendant-Appellant Robin Stevens, Jr. appeals from his convictions in the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} Mr. Stevens was indicted by a grand jury on one count of rape in violation of R.C.
2907.02, a felony of the first degree; one count of attempted rape in violation of R.C. 2923.02 and
R.C. 2907.02, a felony of the first degree; and two counts of gross sexual imposition, in violation
of R.C. 2907.05, felonies of the third degree. The charges stemmed from a June 2019 incident at
Mr. Stevens’s home.
{¶3} The 14-year-old victim, D.G., testified at trial that in 2019, when she was 11 years
old, she spent the night with her siblings at Mr. Stevens’s home. D.G.’s mother testified that Mr.
Stevens is the father of her youngest two children and that D.G. spent June 9, 2019, at Mr.
Stevens’s home along with her siblings.
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{¶4} D.G. testified that Mr. Stevens “carried me to his bed and then like - - he like started
playing with my butt and my boobs and stuff. And then he had pulled down my pants and started
playing with my vagina.” D.G. testified that Mr. Stevens inserted his finger into her vagina. D.G.
also testified that Mr. Stevens “pulled down his pants and like it didn’t go in, but like it was sliding
across I guess.” When asked what part of the body “it” was, D.G. testified that she was referring
to Mr. Stevens’s penis.
{¶5} According to D.G., she was in Mr. Stevens’s bed when she awoke the next morning.
D.G. testified that when she awoke, Mr. Stevens was “touching me again, like playing with my
butt and boobs and stuff.” D.G. testified that Mr. Stevens “tried to put his penis inside of me and
it didn’t go in.”
{¶6} D.G’s aunt picked her up from Mr. Stevens’s house that morning. Aunt and mother
took D.G. to the hospital.
{¶7} A social worker interviewed D.G. at Akron Children’s Hospital’s Risk Evaluation
Center (“CARE”) on June 9, 2019. The social worker testified that D.G. said that Mr. Stevens
touched her in his daughter’s room and in his bed. Social worker explained that trauma can impact
a victim’s ability to put things in chronological order and affect her ability to remember.
{¶8} A doctor testified as to D.G.’s medical records from CARE. The medical records
included D.G.’s report of vaginal digital penetration and the method of evidence collection for the
sexual assault kit. The doctor testified that D.G. reported that the assailant’s penis contacted her
vagina, but “[n]o vaginal penetration with penis occurred.”
{¶9} A detective testified that, on June 10, 2019, he was assigned to investigate the
incident involving D.G. The detective testified that a sexual assault evidence collection kit, also
known as a rape kit, was performed and a DNA analysis was done. The detective explained that
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he did not interview D.G. because a forensic interview with a licensed social worker had been
conducted at CARE.
{¶10} A forensic scientist testified regarding the submitted rape kit from D.G. The
forensic scientist testified that D.G.’s vaginal swabs were positive for phosphatase activity, which
is found in large quantities with semen and is a positive test for semen, and that Mr. Stevens could
not be excluded as a contributor. D.G.’s perianal swabs were negative for acid phosphatase. Mr.
Stevens’s DNA could not be excluded from the sperm fraction collected from D.G.’s vaginal
swabs and underwear. The forensic scientist testified that the collected “male DNA profile was
consistent with Robin Stevens, Jr.”
{¶11} The defense called friend A.C. and then live-in girlfriend, B.M. (“Girlfriend”) as
witnesses. A.C. testified that she picked up Mr. Stevens’s children from a pool party and drove
them back to Mr. Stevens’s house. A.C. testified that she stayed at Mr. Stevens’s house for
“[m]aybe like two hours, three hours” after the children were sent to bed.
{¶12} Girlfriend testified that, when she arrived home at midnight on the night at issue,
Mr. Stevens was inebriated and the children were upstairs. Girlfriend testified that she went to
sleep with Mr. Stevens, who fell right asleep, and that she did not believe that Mr. Stevens got up
during the night.
{¶13} Mr. Stevens testified at trial. Mr. Stevens testified that he went to bed with
Girlfriend on the night in question. Mr. Stevens denied all D.G.’s allegations.
{¶14} The jury found Mr. Stevens guilty of all counts in the indictment. Mr. Stevens
appeals this judgment of conviction raising three assignments of error for our review.
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I.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR A MISTRIAL BASED ON PROSECUTORIAL MISCONDUCT[.]
{¶15} Mr. Stevens argues in his first assignment of error that the trial court erred in
denying his motion for a mistrial based on his allegations of prosecutorial misconduct. We
disagree.
{¶16} “Great deference is afforded to a trial court’s decision regarding a motion for
mistrial ….” State v. McKinney, 9th Dist. Summit No. 24430, 2009-Ohio-2225, ¶ 20. This
Court has recognized “that the trial judge is in the best position to determine whether the
declaration of a mistrial is warranted under the circumstances as they have arisen in the
courtroom.” State v. Edwards, 9th Dist. Summit No. 28164,
2017-Ohio-7231, ¶ 12. Accordingly,
this Court will not second-guess the trial court’s determination absent an abuse of discretion. State
v. Ahmed,
103 Ohio St.3d 27,
2004-Ohio-4190, ¶ 92. See also State v. Kyle, 9th Dist. Summit No.
24655,
2010-Ohio-4456, at ¶ 25; State v. Horne, 9th Dist. Summit No. 25238,
2011-Ohio-1901, ¶
18.
{¶17} An abuse of discretion is more than an error of judgment; it means that the trial
court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may not
substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd.,
66 Ohio St.3d 619,
621 (1993).
{¶18} “Mistrials need be declared only when the ends of justice so require and a fair trial
is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). “The essential inquiry
on a motion for mistrial is whether the substantial rights of the accused are adversely affected.”
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Wadsworth v. Damberger, 9th Dist. Medina No. 3024-M, 2000 WL 1226620, *2 (Aug. 30, 2000).
“In determining whether a defendant was deprived of a fair trial, a court must determine whether,
absent the error or irregularity, ‘the jury would have found the appellant guilty beyond a reasonable
doubt.’” Edwards, 9th Dist. Summit No. 28164,
2017-Ohio-7231, at ¶ 13, quoting Columbus v.
Aleshire,
187 Ohio App.3d 660,
2010-Ohio-2773, ¶ 42 (10th Dist.), citing State v. Maurer,
15
Ohio St.3d 239, 267 (1984). “To determine whether the alleged misconduct resulted in prejudice,
a court must consider (1) the nature of the error, (2) whether an objection was made, (3) whether
the trial court provided corrective instructions, and (4) the strength of the evidence against the
defendant.” Edwards at ¶ 13, citing Aleshire at ¶ 42.
{¶19} In support of his first assignment of error, Mr. Stevens cites portions of the State’s
cross-examination of Girlfriend. The record establishes that the State asked Girlfriend whether
she was “aware that evidence has been presented in this trial that Mr. Stevens’ sperm or semen
was found in the vagina” of D.G. Girlfriend replied that she was not aware. Defense counsel
objected and the trial court instructed the State to rephrase the question. The State then asked
Girlfriend whether she was “aware of evidence that Mr. Stevens’ sperm is in the vagina” of D.G.
Girlfriend again replied that she was not aware.
{¶20} The State then asked Girlfriend whether she had “an explanation for that?” Defense
counsel objected “to the form and mischaracterization of the evidence” and asked that “it be
stricken from the record” and that the court “instruct the jury to disregard that question.” The court
sustained the objection and a sidebar discussion, outside of the jury’s hearing, was held.
{¶21} During the sidebar discussion, defense counsel emphasized that the semen “was
found in the vaginal area” rather than inside the vagina. Defense counsel asked for a mistrial,
which was denied.
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{¶22} The State offered to “rephrase the question to say [the semen] was found in her
[D.G.’s] vaginal area.” An assistant co-prosecutor noted the doctor’s testimony “as to how the
vaginal swab is taken and that characterization was not just external.”
{¶23} The State then asked Girlfriend, “Ma’am, evidence has been presented that Robin
Stevens’ semen was found in the area of [D.G.’s] vagina?” Defense counsel objected, arguing that
“[t]here was never any testimony that semen was found. The only thing that was testified to, based
on the evidence presented, was a sperm fraction. That is a big difference.” The court sustained
the objection and asked the State to rephrase the question. The State then asked Girlfriend,
“Ma’am, evidence was presented in this trial of sperm found near [D.G.’s] vagina and that sperm
belonged to Robin Stevens. Can you explain that?” Girlfriend replied, “I don’t know.”
{¶24} With respect to closing arguments, Mr. Stevens argues that the State
mischaracterized the biological evidence and that this mischaracterization “is extremely
prejudicial.” Mr. Stevens does not cite any portions of the record to support his argument that the
State mischaracterized the biological evidence in closing arguments.
{¶25} As previously set forth, a trial court’s decision denying a motion for a mistrial is
reviewed for an abuse of discretion. Ahmed, 103 Ohio St.3d 27,
2004-Ohio-4190, at ¶ 92. An
abuse of discretion is more than an error of judgment; it means that the trial court was
unreasonable, arbitrary, or unconscionable in its ruling. Blakemore,
5 Ohio St.3d at 219.
{¶26} The record establishes that, during the cross-examination of Girlfriend, the trial
court ordered stricken from the record, and ordered the jury to disregard, the State’s questions and
the answers regarding Mr. Stevens’s sperm being found in D.G.’s vagina and whether the
Girlfriend had an explanation for this finding. The State rephrased the question and Girlfriend was
asked about evidence as to Mr. Stevens’s semen being “found in the area of [D.G.’s] vagina.”
7
Defense counsel objected to the use of the word “semen” and argued that only a “sperm fraction”
was found. The trial court sustained the objection and the State rephrased the question. The State
then asked Girlfriend about Mr. Stevens’s sperm being found near D.G.’s vagina. There was no
objection to this question.
{¶27} After reviewing the record, this Court does not find that the trial court’s decision to
deny Mr. Stevens’s motion for a mistrial during the state’s cross-examination of Girlfriend was
unreasonable or arbitrary. The State’s question as to Mr. Stevens’s sperm being found in D.G.’s
vagina was stricken and the jury was ordered to disregard the question. Mr. Stevens’s objection
as to semen being found in the area of D.G.’s vagina was sustained.
{¶28} “‘A jury is presumed to follow the instructions, including curative instructions,
given it by a trial judge.’” State v. Simpson, 9th Dist. Lorain No. 11CA010138, 2012-Ohio-3195,
¶ 37, quoting State v. Garner,
74 Ohio St.3d 49, 59 (1995). Mr. Stevens directs us to no evidence
in the record that the jury disregarded the court’s instructions, and his belief that the State’s
questioning of Girlfriend was somehow responsible for the jury verdict is pure speculation.
{¶29} As to the State’s alleged improper remarks in closing arguments, Mr. Stevens’s
brief does not comply with the appellate rules and we decline to address the merits of this
argument. App.R. 16(A)(7) provides that “[t]he appellant shall include in [his] brief … [a]n
argument containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to the authorities,
statutes, and parts of the record on which appellant relies.” See also State v. Franks, 9th Dist.
Summit No. 28533, 2017-Ohio-7045, ¶ 15-16.
{¶30} Mr. Stevens has not provided any “citations to the … parts of the record” upon
which he relies with respect to alleged improper remarks in closing arguments. App.R. 16(A)(7).
8
He has provided no citations to any pleadings, motions, evidentiary materials, or portions of the
transcript that would support his argument that, considering the prosecutor’s comments in closing
arguments, a mistrial should have been granted. “Where an appellant fails to develop an argument
in support of his assignment of error, this Court will not create one for him.” Franks at ¶ 16, citing
State v. Harmon, 9th Dist. Summit No. 26426, 2013-Ohio-2319, ¶ 6, citing App.R. 16(A)(7) and
Cardone v. Cardone, 9th Dist. Summit No. 18349,
1998 WL 224934, *8 (May 6, 1998).
{¶31} For the reasons set forth above, Mr. Stevens’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABSED ITS DISCRETION WHEN IT DENIED
APPELLANT’S MOTION TO CONTINUE TRIAL[.]
{¶32} Mr. Stevens argues in his second assignment of error that the trial court abused its
discretion when it denied his motion to continue the trial. We disagree.
{¶33} The record establishes that, on the day of trial, defense counsel moved for a
continuance of trial to review “newly developed information.” The “newly developed information”
counsel wanted to review was that “the victim of the crime in [a] North Carolina [case] is the same
victim here.” Defense counsel wanted time to investigate this and explore “whether the mother
had induced the child to make up these allegations against Mr. Stevens ….” Defense counsel
speculated that there could be exculpatory information in the CARE center interview of the out-
of-state case relating to the instant case.
{¶34} The State opposed the requested continuance and responded that the allegations in
this matter occurred when D.G. was 11, and the new allegations against a separate individual
occurred when D.G. was 14. The allegations were separated by almost three years in time and
involved two separate alleged perpetrators. The assistant prosecutor argued that “[w]e have no
9
reason to believe that the current allegations in North Carolina have anything to do with our trial
here. We believe that any subsequent allegations are irrelevant and not a basis for a continuance.”
{¶35} In denying Mr. Stevens’s motion for continuance, the trial court stated that it was
“not going to continue this trial based on something that happened two years and nine months
later.” The trial court noted that Mr. Stevens’s request “is presupposing that this victim is, on one
hand, going to come into this court and testify one way and in North Carolina going to tell them
that she was put up to this. And it just doesn’t - - I don’t follow the logic in it and I don’t believe
that it warrants a continuance in this case.”
{¶36} The Ohio Supreme Court has held that “[t]he grant or denial of a continuance is a
matter that is entrusted to the broad, sound discretion of the trial judge.” State v. Unger, 67 Ohio
St.2d 65 (1981), syllabus. In making its decision, the trial court must consider and weigh all
competing considerations.
Id. at 67. The trial court must balance any potential prejudice to the
defendant against the court’s right to control its own docket and the public’s interest in the prompt
and efficient dispatch of justice.
Id. at 67. When reviewing a decision that has been entrusted to
the discretion of the trial court an appellate court may not substitute its judgment for that of the
trial court. State v. Finnerty,
45 Ohio St.3d 104, 107 (1989).
{¶37} A trial court’s decision to grant or deny a continuance is reviewed under an abuse
of discretion standard. State v. Perry, 9th Dist. Lorain No. 00CA007634, 2001 WL 123462, *3
(Feb. 14, 2001), citing
Unger at 67. Abuse of discretion, as previously set forth, connotes more
than an error of law or judgment, but implies that the judgment can be characterized as
unreasonable, arbitrary, or unconscionable. Blakemore,
5 Ohio St.3d at 219.
{¶38} Mr. Stevens argues that, in requesting a continuance, his attorney wanted time to
review the additional evidence and information “to determine whether any information could be
10
exculpatory for his client before going forward in this matter.” Mr. Stevens points out that a
specific time frame for the requested continuance was never mentioned; that, while the case had
been pending for a significant amount of time when it went to trial, “most of that time was due to
Covid regulations and not any specific actions of the defendant[,]” and, “[t]here was no discussion
of any inconvenience to the litigants.” Mr. Stevens argues that the requested continuance was
reasonable and necessary and that “a blanket denial, without any specific findings of a detriment
to others is an abuse of discretion.” We disagree.
{¶39} Mr. Stevens requested a continuance on the day of trial. As this Court has
recognized, a continuance at this late juncture would cause inconvenience to the State, the
witnesses, and the court. State v. Petty, 9th Dist. Summit No. 19611, 2000 WL 1257802, *2 (Sept.
6, 2000). Defense counsel requested a continuance to review additional information that occurred
almost three years later between D.G. and another individual in a different state. Defense counsel
offered no basis for his theory that D.G.’s mother induced the child to fabricate the allegations or
coached the child. Defense counsel merely speculated that there could be exculpatory information
in the CARE center interview regarding the allegation against the alleged perpetrator in the
unrelated case.
{¶40} Based on a review of the record, we cannot say that the trial court abused its
discretion in denying Mr. Stevens’s motion for continuance. Mr. Stevens’s second assignment of
error is overruled.
ASSIGNMENT OF ERROR III
THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE[.]
{¶41} Mr. Stevens argues in his third assignment of error that the trial court’s verdict was
against the manifest weight of the evidence. We disagree.
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{¶42} When deciding whether a criminal conviction is against the manifest weight of the
evidence, this Court must consider the entire record and “weigh the evidence and all reasonable
inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339,
340 (9th Dist.1986). A reversal on a manifest weight of the evidence challenge is reserved for
exceptional cases where the evidence weighs heavily against the conviction. State v. Thompkins,
78 Ohio St.3d 380, 387 (1997).
{¶43} Having reviewed the record, we cannot conclude that this is the exceptional case
where the evidence weighs heavily against Mr. Stevens’s conviction. See Otten at 340. D.G.
testified that, in June of 2019 when she was 11 years old, she spent the night at Mr. Stevens’s home
with her siblings. D.G. testified that Mr. Stevens “carried me to his bed and then like - - he like
started playing with my butt and my boobs and stuff. And then he had pulled down my pants and
started playing with my vagina.” D.G. testified that Mr. Stevens inserted his finger into her vagina.
D.G. also testified that Mr. Stevens’s penis “didn’t go in, but like it was sliding across I guess.”
{¶44} D.G. further testified that she awoke in Mr. Stevens’s bed the next morning and
that, at that time, Mr. Stevens’s was again “like playing with my butt and boobs and stuff.”
According to D.G., Mr. Stevens “tried to put his penis inside of me and it didn’t go in.”
{¶45} D.G. acknowledged that, according to the police report, she reported that Mr.
Stevens entered the room that she was in and not that he took her to his room as she testified to in
court.
{¶46} The jury heard testimony from the social worker who interviewed D.G. at the
CARE center; D.G.’s mother; the investigating detective; the forensic scientist at the Ohio Bureau
12
of Criminal Investigation; and a doctor at Akron Children’s Hospital. The doctor testified as to
D.G.’s medical records from CARE, which included D.G’s report of vaginal digital penetration
and the method of evidence collection for the sexual assault kit. The doctor testified that D.G.
reported that the assailant’s penis contacted her vagina, but “[n]o vaginal penetration with penis
occurred.” D.G.’s vaginal swabs were positive for phosphatase activity, which is found in large
quantities with semen and is a positive test for semen, and Mr. Stevens could not be excluded as a
contributor. D.G.’s perianal swabs were negative for acid phosphatase. Mr. Stevens’s DNA could
not be excluded from the sperm fraction collected from D.G.’s vaginal swabs and underwear.
{¶47} In addition to testifying on his own behalf, Mr. Stevens’s called two witnesses at
trial. Friend A.C. testified that she picked up Mr. Stevens’s children from a pool party and drove
them back to Mr. Stevens’s house. A.C. testified that she stayed at Mr. Stevens’s house for
“[m]aybe like two hours, three hours” after the children were sent to bed.
{¶48} Girlfriend testified that she arrived home around midnight, that Mr. Stevens was
inebriated when she arrived home, and that the children were upstairs. According to Girlfriend’s
testimony, she went to sleep with Mr. Stevens, who fell right to sleep. Girlfriend did not believe
that Mr. Stevens’s got up during the night.
{¶49} Mr. Stevens also testified. Mr. Stevens denied all D.G.’s allegations.
{¶50} The jury was free to believe D.G.’s testimony. See State v. Clark, 9th Dist. Wayne
No. 14AP0002, 2015-Ohio-2978, ¶ 24. As the trier of fact, the jury was in the best position to
judge D.G.’s credibility, as well as the credibility of the other witnesses, and to evaluate their
testimony accordingly. See State v. Simmons, 9th Dist. Lorain No. 18CA011262,
2020-Ohio-614,
¶ 10. The forensic scientist testified that there were “two contributors” to the DNA obtained from
the rape kit. The contributors were D.G. and “also a male DNA profile developed.” The fact that
13
this “male DNA profile was consistent with Robin Stevens, Jr.,” could have been taken by the jury
as evidence of Mr. Stevens’s guilt.
{¶51} “A conviction is not against the manifest weight of the evidence merely because
there is conflicting evidence before the trier of fact.” State v. Haydon, 9th Dist. Summit No. 19094,
1999 WL 1260298, *7 (Dec. 22, 1999). Likewise, “[a] verdict is not against the manifest weight
of the evidence because the finder of fact chose to believe the State’s witnesses rather than the
defendant’s version of the events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-
3189, ¶ 16. Upon review, Mr. Stevens has not shown that this is the exceptional case where the
jury lost its way by convicting him. See Otten,
33 Ohio App.3d at 340. Accordingly, his third
assignment of error is overruled.
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III.
{¶52} Mr. Stevens’s assignments of error are overruled. The judgment of the Summit
County Court of Common pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SCOT STEVENSON
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
15
ANGELE KILLE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
