State of Ohio/City of Toledo v. Hamdan M. Abdugheneima
Court of Appeals No. L-17-1013
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: November 3, 2017
2017-Ohio-8423
MAYLE, J.
Trial Court No. CRB-16-11725
Laurel A. Kendall, for appellant.
DECISION AND JUDGMENT
MAYLE, J.
{¶ 1} Defendant-appellant, Hamdan M. Abdugheneima, appeals the February 9, 2017 judgment of the Toledo Municipal Court convicting him of two counts of violating an order of protection. For the reasons that follow, we affirm the trial court judgment.
{¶ 2} On August 8, 2016, Hamdan Abdugheneima was served with an order of protection prohibiting him from contacting or coming within 500 feet of K.D., who was then his live-in girlfriend.1 Abdugheneima was charged under
{¶ 3} The case was tried to the court on December 5, 2016. According to the evidence presented by the state, Toledo police were called to the YWCA on August 17, 2016. There they met with K.D., who reported that she had received threatening text messages from Abdugheneima. K.D. showed her phone to the officers, and they saw a message that she had received that day that stated “Go to police you think scare me if I see you I will show you I will kill you or I will put you in jail and your kids are not from me you have your kids from street God will punish your face [sic][.]” There were additional messages on K.D.‘s phone, some of which the officers could not understand because they were not written in English.
{¶ 4} Officers verified that a protection order existed between the parties and that Abdugheneima had been served with the order. The detective assigned to the case determined that the number from which the messages were received belonged to Abdugheneima. He was charged with violating the protection order by sending the
{¶ 5} At trial, Abdugheneima testified and denied contacting K.D. He contended that there is an “app” available that enables a person to contact someone from one phone number but make it look like it came from another phone number—what he described as a fake caller ID. He claimed that his former wife had used this technology in the past to make it look as though he was being contacted by children‘s services when in fact it was she who was calling. Abdugheneima suggested that the victim, perhaps along with his ex-wife, had used this technology to frame him.
{¶ 6} The court rejected Abdugheneima‘s explanation and found him guilty. It ordered a presentence investigation report and continued the matter for sentencing on December 12, 2016. At that time, Abdugheneima requested an Arabic interpreter. The court granted his request and the matter was again continued for sentencing on December 19, 2016. The court imposed a term of imprisonment of 180 days, 90 days of which were suspended and the other 90 days to be served on GPS supervision. It also sentenced Abdugheneima to anger management classes and one year of active probation, imposed court costs, and issued an order of no contact with the victim with certain exclusion zones defined.
{¶ 7} Abdugheneima appealed and assigns the following errors for our review:
- The trial court erred to the prejudice of appellant by not appointing a foreign language interpreter as required by the
Ohio Rules of Superintendence (Sup.R. 88) and theOhio Revised Code (R.C. 2311.14) for the trial in this matter, when an interpreter was provided for the sentencing hearing. - Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §10 of the Constitution of the State of Ohio.
- Appellant‘s testimony without an interpreter was not sufficient to support a conviction, or in the alternative, his conviction was against the manifest weight of the evidence.
II. Law and Analysis
{¶ 8} K.D. and Abdugheneima speak Arabic as their primary language, however, they both testified in English. In his first assignment of error, Abdugheneima argues that he had difficulty communicating in English and it was, therefore, incumbent on the court to appoint a translator for him at trial as it did at sentencing. In his second assignment of error, he claims that trial counsel was ineffective for failing to request the appointment of a translator at trial. And in his third assignment of error, he contends that his language barrier produced a verdict that was either not supported by sufficient evidence or was against the manifest weight of the evidence.
A. Failure of the Trial Court to Appoint an Interpreter
{¶ 9} Abdugheneima claims that the trial court abused its discretion in failing to appoint an Arabic translator at trial. He insists that this is demonstrated by the fact that (1) there were 35 instances in the record where words in his responses were noted by the
{¶ 10} Under
{¶ 11} In addition to this statute,
A court shall appoint a foreign language interpreter in a case or court function in either of the following situations:
- A party or witness who is limited English proficient or non-English speaking requests a foreign language interpreter and the court determines the services of the interpreter are necessary for the meaningful participation of the party or witness;
- Absent a request from a party or witness for a foreign language interpreter, the court concludes the party or witness is limited English proficient or non-English speaking and determines the services of the interpreter are necessary for the meaningful participation of the party or witness.
{¶ 12} “[W]hether a party or witness is entitled to an interpreter is initially based on the trial court‘s assessment of their apparent ability to comprehend and communicate in English.” State v. Luna-Corona v. Esquivel-Parrales, 12th Dist. Butler No. CA2008-07-175, 2009-Ohio-2628, ¶ 10, citing State v. Castro, 2d Dist. Montgomery No. 14398, 1995 Ohio App. LEXIS 4105 (Sept. 20, 1995). The decision is within the trial court‘s
{¶ 13} We have carefully reviewed the trial transcript. While there are a number of instances where portions of Abdugheneima‘s responses were recorded as “unintelligible” at the time of transcription, there is no indication that the court or the parties did not understand Abdugheneima when listening to him in real time. In fact, objections interjected during his testimony indicate that counsel and the court were able to understand him. We address the very few instances where there was any reference to any purported language barrier.
{¶ 14} The first instance was during Abdugheneima‘s direct examination. His attorney asked if he knew of the existence of the protection order. Abdugheneima initially said no, and his attorney, realizing that Abdugheneima misunderstood, commented to the court: “And, Your Honor, I know you know that there is some language difficulties that—.” Through follow-up questioning, it was quickly clarified that Abdugheneima received the documents relating to the order of protection, but they were provided to him in court and not delivered to his home. He confirmed that he understood that he was not to contact K.D.
{¶ 15} A second instance occurred when Abdugheneima was explaining his “fake caller ID” theory. He testified that there is an app that enables one to place a call or
{¶ 16} The third instance occurred when the state viewed Abdugheneima‘s phone. While Abdugheneima indicated that he had a “picture” of the app on his phone, the state observed that what was contained on his phone appeared to be a video explaining how to use fake caller ID.3 Realizing this, the state asked Abdugheneima: “So you don‘t necessarily need an app, you can just do it on your phone without an app?”
{¶ 17} The final instance occurred when Abdugheneima claimed that he did not have a criminal record in the United States. After the court rendered its verdict, Abdugheneima acknowledged that charges had been filed against him in the past, but he denied having any convictions. The court confronted Abdugheneima with information to the contrary, which included a conviction resulting from a plea. Abdugheneima then suggested that he must have misunderstood his lawyer: “Maybe my English can‘t understand what he say is why.” The trial court did not believe Abdugheneima‘s explanation. The court told Abdugheneima “your English has nothing to do with it.”
{¶ 18} Ohio courts do not require the appointment of an interpreter where the defendant is able to effectively understand or communicate in the English language. Castro, 1995 Ohio App. LEXIS 4105, at *11. Courts recognize that “[a]n imperfect grasp of the English language may be sufficient as long as the defendant has the ability to understand and communicate in English.” State v. G.C., 10th Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶ 17. A trial court properly exercises
{¶ 19} In State v. Marquez, 11th Dist. Ashtabula No. 2007-A-0085, 2008-Ohio-5324, ¶ 35-36, the court found no error in the failure to appoint an interpreter for a witness even though the witness possessed only a seventh grade education, did not know how to read or write in English, and expressed reservations about his ability to fully understand English. The court found that the witness‘s answers at trial were responsive and “exhibited an appreciation of the essence of the questions which were posed.” Id. at ¶ 36.
{¶ 20} In State v. Mendoza, 11th Dist. Ashtabula No. 89-A-1425, 1989 Ohio App. LEXIS 4378 (Nov. 24, 1989), *6-7, the court found that an interpreter was not necessary where “for the most part,” the witness‘s answers were responsive to the questions. The court observed that all the times when there was difficulty understanding the witness, it was because he was talking too quickly in English. The court also concluded that “[a]ll confusion seemed to center on appellant‘s desire to either evade the question or to supplement his answers with unresponsive matter for which he would then be reprimanded by the trial court.” Id.
{¶ 22} We also reject Abdugheneima‘s contention that because the trial court granted his request for a translator at sentencing, it was incumbent on it to do so for trial. See G.C., 2016-Ohio-717, at ¶ 25-26 (rejecting appellant‘s argument that approval of reimbursement of interpreter fees for sentencing hearing, was implicit acknowledgment that interpreter was mandatory for plea hearing).
{¶ 23} We find that the trial court did not err in failing to appoint a translator for Abdugheneima. We, therefore, find his first assignment of error not well-taken.
B. Ineffective Assistance of Counsel
{¶ 24} In his second assignment of error, Abdugheneima argues that trial counsel was ineffective in failing to request the appointment of an interpreter. 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
{¶ 25} Because we conclude that Abdugheneima demonstrated an ability to effectively understand and communicate in the English language and was able to meaningfully participate at trial, we find that counsel was not deficient in failing to seek an interpreter, and we find no reasonable probability that the outcome of the proceedings would have been different had an interpreter been appointed.
{¶ 26} We, therefore, find Abdugheneima‘s second assignment of error not well-taken.
C. Sufficiency and Manifest Weight of the Evidence
{¶ 27} In his third assignment of error, Abdugheneima claims that his conviction was not supported by sufficient evidence or, alternatively, that the verdict was against the manifest weight of the evidence. He argues that he misspoke about whether he had the fake caller ID app because of his difficulties in communicating in English, and that his confusion was exploited by the state.
{¶ 28} 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). In reviewing a challenge to the sufficiency of evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could
{¶ 29} 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 finder of fact 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. Thompkins 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).
{¶ 30} To prove a violation of
{¶ 31} As for his challenge to the manifest weight of the evidence, Abdugheneima first stated that he had the fake caller ID app on his phone, clarified that it was actually just a picture of the app, then, after physically showing his phone to the state, was forced to concede that it was an instructional video showing how to use the app. He explained how he searched for the information on www.google.com, and he understood and was able to describe the difference between an app, a picture, and a video. Ultimately, the court‘s decision did not come down to an inability to understand Abdugheneima or Abdugheneima‘s inability to effectively communicate—it came down to Abdugheneima‘s credibility. Simply put, the court did not believe his testimony.
{¶ 32} Although under a manifest-weight standard we consider the credibility of witnesses, we must nonetheless extend special deference to the fact-finder‘s credibility determinations given that it is the fact-finder who 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.
{¶ 34} Accordingly, we find Abdugheneima‘s third assignment of error not well-taken.
III. Conclusion
{¶ 35} Abdugheneima demonstrated an ability to readily understand and communicate in the English language and the record shows that his mastery of English permitted him to meaningfully participate at trial. The trial court did not err in failing to appoint a translator for him, and counsel was not ineffective for failing to request one. There was sufficient evidence to support his conviction, and the conviction was not against the manifest weight of the evidence. The conviction resulted not because a language barrier prevented him from effectively communicating, but because the court found Abdugheneima‘s testimony not credible.
{¶ 36} We find Abdugheneima‘s three assignments of error not well-taken, and we affirm the February 9, 2017 judgment of the Toledo Municipal Court convicting Abdugheneima of violating an order of protection. The costs of this appeal are assessed against Abdugheneima under
Judgment affirmed.
Thomas J. Osowik, J. JUDGE
James D. Jensen, J. JUDGE
Christine E. Mayle, J. CONCUR. JUDGE