State v. AbuduState v. Abudu
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 6, 2023
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Alicia Paolucci and Poula Hanna, Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, J.:
¶ 1 Defendant-appellant, Irakoze Abudu, appeals from the trial court’s judgment entry of conviction entered after a jury trial. For the reasons that follow, this court affirms his convictions.
¶ 3 On November 26, 2019, Abudu was re-indicted in Cuyahoga C.P. No. CR-19-645527-B, charging him with 8 counts — attempted murder (Count 1); aggravated burglary (Counts 2 and 3); felonious assault (Counts 4, 5, and 7); aggravated robbery (Count 6); and vandalism (Count 8).1 Counts 1-5 contained both one- and three-year firearm specifications.
¶ 4 The case against Abudu was delayed because of the Covid-19 pandemic and continuances received for requesting an expert witness and completing competency evaluations. The case was further delayed because of hearings on pretrial motions requesting separate trials and challenging speedy trial, suppression of eyewitness identification, and admissibility of evidence. On May 31, 2022, trial commenced, where the jury heard the following evidence regarding both incidents.
I. Jury Trial
¶ 5 On June 4, 2019, Muzamil Islow (“Muzamil”) was celebrating his birthday at his aunt’s house on West 84th Street in Cleveland. Abudu, a person
A. The Attack on Edward Ginley
¶ 6 Around 8:15 p.m. that evening, Edward Ginley (“Ginley”) drove a commercial vehicle down West 84th Street to clean the gutters on a friend’s home. A residential surveillance camera captured the entirety of the events as they unfolded; the video was played for the jury and admitted into evidence.
¶ 7 The video shows Ginley driving past a group of individuals and attempting to park along the curb of the street where a white vehicle was already parked. Muzamil testified about the video and identified himself and Abudu as the individuals standing next to Abudu’s blue Dodge, which was also parked along the curb. He stated that he saw the truck hit the white car and that he, Abudu, and others immediately approached the driver when he got out of the truck.
¶ 8 Ginley testified that he did not know the individuals that approached him but identified Abudu as the person who put his arm around him and stated, “you better have some money.” Ginley testified that Abudu then knocked him down and started punching him. As the video showed, the violent assault against him lasted for approximately 15 minutes. Both Ginley and Muzamil testified that Abudu was the primary aggressor but that he ordered others in the group to hold Ginley down and strike him. Ginley stated that Abudu and other members of the group
¶ 9 During Ginley’s attempts to get help, Abudu got into Ginley’s truck, drove it down the street, and crashed it into a telephone pole. Another residential surveillance camera captured this incident, which was also played for the jury and admitted into evidence. Ultimately, Ginley was able to flee the area in his crashed truck. He subsequently went to the hospital, where he was treated for four broken ribs, a punctured lung, a broken clavicle, a fractured patella, scrapes, and trauma to his head, including some missing teeth. He was hospitalized for four days.
¶ 10 During his initial interview with police, Ginley described his attacker as wearing a white t-shirt and hat. On June 6, 2019, Detective Daniel Zola, acting as a blind administrator, presented Ginley with a photo array to identify his attacker. Ginley identified Abudu with 90 percent certainty as the person who physically assaulted him and crashed his truck. At trial, Ginley positively identified Abudu as the person who attacked him.
¶ 11 Muzamil corroborated Ginley’s account of what occurred and identified Abudu in the surveillance videos as the person wearing the white t-shirt and hat, leading the attack, and crashing Ginley’s truck. Muzamil admitted that he participated in the assault and robbery. He further admitted that he was charged for offenses associated with the attack but entered into a plea agreement with the state in exchange for testifying against Abudu. Finally, he admitted that as a result
B. The Shooting of Abdullahi Islaw
¶ 12 Following the brutal group attack of Ginley, the group rejoined the party. Muzamil’s brother, Abdullahi, arrived later that night. According to Muzamil, Abudu “stared down” Abdullahi, who remained seated in his vehicle with his wife, Miriam Ibrahim (“Miriam”), who was pregnant. As a result, a verbal altercation occurred between Abudu and Abdullahi. Muzamil testified that Abudu acted “aggressively like he wanted some problems.” (Tr. 1017.) Muzamil stated that he tried to diffuse the situation by telling Abudu that Miriam was pregnant, and “you’re not doing anything here.” Id. According to Muzamil, Abudu continued to antagonize Abdullahi and when Abudu attempted to open the car door, Muzamil punched Abudu, causing them to fight. When Abdullahi attempted to break up the fight, Abudu then punched Abdullahi. Muzamil testified that after the fight ended, Abudu threatened them, stating that he was “going to shoot the house up.” (Tr. 1020.)
¶ 13 Abdullahi testified that he and Abudu had known each other since 2013, when they were both young. According to Abdullahi, they were at one time “like family,” but on this date, there was an ongoing and unresolved conflict between them. Abdullahi testified that he discovered that Abudu was at his mother’s house on West 84th Street and he wanted to go there to confront Abudu. When he arrived,
¶ 14 Abdullahi said that he left the party but believed that Abudu was following him because he saw Abudu’s blue vehicle nearby. Accordingly, he was not surprised when Abudu arrived in the parking lot of his apartment complex, which was only two miles away from West 84th Street. Abdullahi testified that Abudu acted “violently,” pulled out a gun, and pointed it at him. Even though Abdullahi retreated up to his apartment, Abudu followed him and kicked in the apartment door. Once inside the apartment, Abudu pointed a revolver at Abdullahi and fired the weapon, striking him on the left side of his body. Abdullahi testified that he believed he was going to die.
¶ 15 Hassan Mohamed (“Hassan”), an acquaintance, and Miriam both testified that they saw Abudu confront Abdullahi in the parking lot of the apartment building. They both stated that Abudu then followed them upstairs, and although they locked the apartment door, Abudu kicked in the door, confronted Abdullahi, and shot him. Miriam called 911; the recording was played for the jury.
¶ 17 The jury found Abudu not guilty of vandalism as charged in Count 8, but guilty of the remaining seven offenses, including the attendant firearm specifications. Following merger and the application of the Reagan Tokes Law, the trial court sentenced Abudu to a stated minimum term of 16 years with a maximum term of 19 years in prison.
¶ 18 Abudu now appeals, raising eight assignments of error.
II. Speedy Trial
¶ 19 In his first assignment of error, Abudu contends that the “trial court’s excessive pretrial delays during the Covid-19 pandemic violated [his] constitutional right to a speedy trial under the Sixth and Fourteenth Amendments to the U.S. Constitution and [Article I, Section 10] of the Ohio Constitution.”
¶ 20 The
¶ 21 A defendant, however, must meet the “threshold requirement” of a “presumptively prejudicial” delay to trigger a Barker analysis. State v. Duncan, 8th Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 8. “‘Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.’” Long at id., quoting Barker at 530. Courts have generally held that a delay approaching one year becomes “presumptively prejudicial.” Long at id., citing Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1.
¶ 22 Abudu makes a general statement that “he remained in pretrial detention for years” while the court delayed his case. This statement is insufficient to meet the threshold requirement of a “presumptively prejudicial” delay to trigger a Barker analysis. Even if this court finds that the statement is sufficient when compared with the record, Abudu has failed to demonstrate any error.
III. Crim.R. 14
¶ 24 Abudu contends in his second assignment of error that the trial court erred by permitting the state to proceed with an indictment that should have been severed under
¶ 25 This court reviews a trial court’s decision on joinder for an abuse of discretion. State v. Wilson, 2016-Ohio-2718, 51 N.E.2d 676, ¶ 21 (8th Dist.) An abuse of discretion occurs when the court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
¶ 26
¶ 27 In this case, Abudu requested separate trials regarding the two incidents because the evidence from the shooting incident would be inadmissible in the assault incident and trying them together would be unfairly prejudicial because his codefendant in the assault case was the brother of the shooting victim.2 On appeal, he contends that a risk existed that the jury would not be able to keep the evidence of each allegation segregated and, because both incidents alleged that he engaged in acts of violence, a danger existed that the jury would infer a criminal disposition and combine the evidence to find him “guilty of something.”
¶ 28 The state can refute a defendant’s claim of prejudicial joinder in two ways: (1) a showing that the evidence of each crime is simple and direct (the “joinder test”), or (2) evidence of the other crimes would be admissible even if the counts were severed (the “other acts” test). State v. Anderson, 2017-Ohio-931, 86 N.E.3d 870, ¶ 25 (8th Dist.), citing Lott at 163. When the evidence is “simple and direct,” an accused is not prejudiced by joinder regardless of the nonadmissibility of evidence of the crimes as other acts under
¶ 29 “Simple and direct” evidence means that the evidence of each crime is “so clearly separate and distinct as to prevent the jury from considering evidence of [some crimes] as corroborative of the other.” State v. Belle, 8th Dist. Cuyahoga Nos. 107046 and 107300, 2019-Ohio-787, ¶ 25, citing State v. Quinones, 11th Dist. Lake No. 2003-L-015, 2005-Ohio-6576, ¶ 48. Evidence is “simple and direct” if the trier of fact is capable of segregating the proof required for each offense. Belle at id., citing State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, 937 N.E.2d 136, ¶ 39 (10th Dist.). “The very essence of the rule is that the evidence be such that the jury is unlikely to be confused by it or misuse it.” Id. Thus, as this court has stated, “Ohio appellate courts routinely find no prejudicial joinder where the evidence is presented in an orderly fashion as to the separate offenses or victims without significant overlap or conflation of proof.” State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 16, citing State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225, 2010-Ohio-4202, ¶ 33.
¶ 30 During the hearing on Abudu’s motion to sever, the state and defense counsel agreed “that the shooting took place and that * * * led to the identification in the prior [assault] incident * * * that led to a name which led to a photo array which led to someone being selected.” (Tr. 67.) The trial court found that based on this agreement and the allegations of the case, the investigations into both incidents were intertwined, involving some of the same witnesses to both incidents that
¶ 31 We find that the state satisfied its burden of demonstrating that the evidence was simple and direct. The two incidents were distinct from each other in terms of evidence, but not in terms of investigation and conduct. The attack on Ginley occurred on West 84th Street only a few hours before Abdullahi was shot at his apartment approximately two miles away on Detroit Avenue. The first incident involved a physical assault in the street resulting in Abudu stealing Ginley’s truck and crashing it into a pole. The second incident involved a shooting inside Abdullahi’s apartment after Abudu kicked in the door. Ginley testified about the physical attack, which was captured by surveillance camera. Abdullahi testified about Abudu shooting him in the chest after kicking in the apartment door. Accordingly, the evidence was separate and distinct, and not confusing.
¶ 32 Based on the foregoing, we find that the trial court did not abuse its discretion in denying Abudu’s motion to sever because the evidence regarding the two incidents was simple and direct and thus satisfied the joinder test; accordingly, the other acts test need not be considered. See Lott, 51 Ohio St.3d at 163; Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, at ¶ 66. The second assignment of error is overruled.
¶ 33 Abudu contends in his third assignment of error that the trial court erred in denying his motion to suppress two photographic lineups prepared by law enforcement, violating his right to due process and a fair trial under the
¶ 34 A motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Consequently, we give deference to the trial judge’s factual findings, but we review the application of law to fact de novo. Id.; see also State v. Davis, 8th Dist. Cuyahoga No. 83033, 2004-Ohio-1908.
¶ 35 In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court held that an identification derived from unnecessarily suggestive procedures, which have a likelihood of leading to a misidentification, violates a defendant’s right to due process.
¶ 36 In determining the admissibility of challenged identification testimony, a reviewing court applies a two-prong test: (1) did the defendant demonstrate that the identification procedure was unduly suggestive; and, if so (2) whether the identification, viewed under the totality of the circumstances, is reliable despite its suggestive character. State v. Bryson, 8th Dist. Cuyahoga No. 98298, 2013-Ohio-934, ¶ 42, citing State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 19.
A. Ginley Identification
¶ 38 Regarding Ginley’s identification, Abudu generally contended in his motion to suppress that the officers failed to follow
¶ 40 Regarding the photo array shown to Ginley, Detective Dymphna O’Neill testified that she created the six-pack photo array line by using a database through the Attorney General’s office — OHLEG’s Lineup Wizard.5 She explained the process:
If I knew a suspect or an alleged perpetrator, I would run their information through the lineup. It autopopulates that person’s information, and then you find other similar suspects that they give you a range, do you want plus or minus two years all the way up to 10 years. There is a range on age, height, their age, height, there is a third one, weight. So you put in what your parameters are. I go plus or minus 2 years, 2 inches and a few years. So it populates pictures.
(Tr. 144-145). According to Detective O’Neill, she followed the proper protocol used by the city of Cleveland in creating the six-pack photo array.
¶ 41 Detective Zola testified that he acted as the blind administrator in presenting the photo array to Ginley at Fairview Hospital two days after the attack. He testified that
Detective O’Neill gave me the photo array, I showed it to the victim, I explained there are 6 photos, if the suspect is in there who committed this crime. It would be documented by the numbers underneath the photos. I explained to him that I was not the detective in this case, I couldn’t help him pick anybody.
(Tr. 200.) He further testified about his advisement to Ginley:
I explained to the victim that this photo lineup is a photo lineup of 6 males, these males may have different hair styles in the photos, facial hair might be changed, some of the photos might be older or newer than others just to kind of see if he could pick the suspect out of there. Sometimes they can’t. Sometimes they pick nobody.
(Tr. 202.) Detective Zola testified that Ginley looked at the array for a few minutes before identifying Abudu as the person who attacked him. (Tr. 209-210.) He stated that the procedures used were in compliance with Cleveland Police policy and the Ohio Revised Code. (Tr. 202.) On cross-examination, Detective Zola explained that the Revised Code permits the use of a folder system, but the Cleveland Police Department utilizes a blind administrator in a substantially similar process.
¶ 42 Contrary to Abudu’s assertion,
¶ 43 As for the make-up or creation of the array, counsel contended that the hairstyles of only two of the fillers were similar to Abudu’s hairstyle and that Abudu’s skin tone was darker than the others in the photo array. He appeared to assert that only people who share Abudu’s skin tone — that of others from the same geographical region in Africa — should have been used in the photo lineup.
¶ 45 A distinction in skin tone, however, can taint a photo array, but the difference must be significant to be prejudicial. In State v. Cox, 11th Dist. Trumbull No. 95-T-5279, 1997 Ohio App. LEXIS 2244, 25 (May 23, 1997), the court held that “the fact that appellant was arguably the darkest skinned African American individual in the photo array did not render the identification unreliable since there was not such a significant difference in skin tones to make the distinction prejudicial.” In upholding the photo array, the Cox Court noted that the victim had “ample opportunity to view the assailant before the shooting occurred,” thus lending to the reliability of the identification. Id. See also State v. Garner, 7th Dist. Columbiana No. 11 CO 1, 2012-Ohio-6271 (array upheld where defendant’s lighter skin tone was similar to some of the others in the 18-person photo array); State v. McDade, 11th Dist. Lake No. 97-L-059, 1998 Ohio App. LEXIS 4533, (Sept. 25, 1998) (photo array upheld where skin tones varied among individuals).
¶ 47 Our review of the photo array reveals that the five filler photographs are all reasonably close to Abudu’s photograph in appearance, showing no significant variations in hair length, complexion, age, features, or dress. Admittedly, Abudu’s skin tone appears darker than the other five filler photographs, but not so significantly as to taint Ginley’s identification or render the photo array overly suggestive. The attack lasted for 15 minutes; thus Ginley was able to view his attacker for a significant period of time, including the fact that Abudu approached Ginley first, placed his arm around him, and walked with him. Also, as the trial court correctly pointed out, Abudu was wearing a ball cap during the assault; thus his hairstyle was not a factor in Ginley’s identification of Abudu. Based on the
¶ 48 Because neither the photo array itself nor the procedure used by the police detective was impermissibly suggestive, for purposes of our review of the trial court‘s denial of defendant’s suppression motion, we need not address Abudu’s claims that Ginley’s identification from the photo array was unreliable. See State v. Lee, 10th Dist. Franklin No. 06AP-226, 2007-Ohio-159, ¶ 13, citing Wills, 120 Ohio App.3d at 325.
B. Abdullahi Identification
¶ 49 Abudu contends that the single photo presented to Abdullahi was inherently unreliable.6 In support, Abudu cites to cases involving identifications made by victims who did not know their attackers. See State v. Henderson, 2d Dist. Montgomery No. 28241, 2020-Ohio-6 (stranger rape); State v. Green, 2d Dist. Montgomery No. 28614, 2020-Ohio-5206 (stranger burglary); State v. Martin, 127 Ohio App.3d 272, 712 N.E.2d 795 (2d Dist.1998) (stranger robbery). These cases, however, are clearly distinguishable because Abdullahi and Abudu were not strangers — they had known each other since they were young.
¶ 50 This court has found that the showing of a single photograph is not impermissibly suggestive when the witness knew the suspect and identified him by name prior to seeing the photograph. State v. Lennon, 8th Dist. Cuyahoga No. 104344, 2017-Ohio-2753, ¶ 54 (identification not suggestive when witness knew of defendant and his street name prior to the crime), citing State v. Huff, 145 Ohio App.3d 555, 763 N.E.2d 695 (1st Dist.2001) (a strong showing of reliability can arise from the fact that a victim knew the perpetrator of a crime before the crime was committed).
¶ 51 In this case, Abdullahi testified that he and Abudu had known each other since 2013, when they were both young. In fact, Abdullahi stated that at one time they were “like family.” (Tr. 1199.) Accordingly, any challenge to Abdullahi’s identification of Abudu goes to the weight of the evidence, not to its admissibility. See Lennon at ¶ 61.
¶ 52 Abudu’s third assignment of error is overruled.
V. Prejudicial and Irrelevant Evidence
¶ 53 In his fourth assignment of error, Abudu contends that the trial court erred by admitting a still photograph taken from a screenshot of a video that showed him holding a purported handgun.
¶ 54 A review of the record reveals that the state did not introduce this exhibit during trial or publish the photograph to the jury, and thus, the trial court did not admit the photograph into evidence. No error occurred. The assignment of error is overruled.
VI. Sufficiency of the Evidence
¶ 55 Abudu contends in his fifth assignment of error that his convictions are not supported by sufficient evidence.
A. The Attack on Ginley
¶ 57 Abudu was convicted of aggravated robbery (infliction of serious physical harm during the commission of a theft offense (
B. The Shooting of Abdullahi
¶ 58 Regarding the shooting of Abdullahi, Abudu was convicted of attempted murder (purposely attempting to cause death of another (
VII. Manifest Weight of the Evidence
¶ 60 In his sixth assignment of error, Abudu contends that his convictions are against the manifest weight of the evidence.
¶ 61 Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. * * * Weight is not a question of mathematics, but depends on its effect in inducing belief.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387. In a manifest-weight analysis, the reviewing court sits as a “thirteenth juror” and reviews “‘the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines 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.’” Thompkins at id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The discretionary power to grant a new trial should be exercised only in exceptional cases where the evidence weighs heavily against the conviction. Thompkins at 386.
A. The Attack on Ginley
¶ 62 Abudu contends that his convictions are against the manifest weight of the evidence because although surveillance video captured the assault and subsequent crash of the truck, the evidence did not establish that he was the
¶ 63 This court previously discussed and rejected Abudu’s argument that the photo array was inherently suggestive. We now reject his challenge regarding the reliability of Ginley’s identification. Consideration of the following factors is used to determine the reliability of an identification: (1) the opportunity of the witness to view the perpetrator at the time of the offense, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the perpetrator, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200.
¶ 64 Ginley’s opportunity to observe Abudu at the time of the crime was significant because Abudu placed his arm around Ginley and walked with him to his truck — they were mere inches apart from each other. The attack lasted approximately 15 minutes, thus affording Ginley significant time to observe Abudu both during the attack and then as Abudu got into the truck, drove away, and
¶ 65 Regarding Muzamil’s testimony and identification of Abudu as the person who assaulted Ginley, Muzamil admitted that he entered into a plea deal with the state for a reduction in his charges. And the jury considered Muzamil’s motivations to testify against Abudu — “here for my brother” who was shot. (Tr. 1072-1073.) In fact, Abudu’s counsel brought any inconsistencies, questionable testimony, and self-serving motivations to the jury’s attention. “The jury was free to believe all, part, or none of the testimony of each witness.” State v. Colvin, 10th Dist. Franklin No. 04AP-421, 2005-Ohio-1448, ¶ 34. Accordingly, the jury was able to assess what weight, if any, it would attribute to Muzamil’s testimony. Even without Muzamil’s testimony, the jury heard Ginley’s account of the attack and saw the attack through video evidence as it occurred.
¶ 66 Abudu contends that his convictions are against the manifest weight of the evidence because no physical evidence connected him to the shooting of Abdullahi.
¶ 67 Courts have repeatedly held that a lack of physical evidence, standing alone, does not render a conviction against the manifest weight of the evidence. State v. Conner, 10th Dist. Franklin No. 12AP-698, 2013-Ohio-2773, ¶ 12, citing State v. Berry, 10th Dist. Franklin No. 10AP-1187, 2011-Ohio-6452, ¶ 20. In State v. Jackson, 7th Dist. Jefferson No. 09 JE 13, 2009-Ohio-6407, the court held that physical evidence was unnecessary to link the defendant to the crime because the victim identified the defendant as the perpetrator, whom she knew because he was her neighbor. Id. at ¶ 15. “If [the victim’s] testimony is believed, then the lack of fingerprints, DNA, footprints or any other type of physical evidence does not render the conviction against the manifest weight of the evidence.” Id. at ¶ 16.
¶ 68 Here, despite the lack of physical evidence — i.e., fingerprints, a firearm, or shell casings — Abdullahi testified that Abudu threatened to kill him when they were on West 84th Street earlier that night. He identified Abudu as the person who then confronted him in the parking lot of his apartment building, followed him up to his apartment, kicked in the apartment door, pointed a gun at his chest, and shot him. Testimony from Muzamil, Hassan, and Miriam corroborated Abdullahi’s testimony. Finally, the jury heard the frantic 911 call made by Miriam crying for help while she provided emergency medical assistance to her
¶ 69 Accordingly, this is not the exceptional case where the jury clearly lost its way and created such a manifest miscarriage of justice that requires this court to reverse Abudu’s convictions and order a new trial. His sixth assignment of error is overruled.
VIII. Cumulative Error
¶ 70 Abudu contends in his seventh assignment of error that the cumulative effect of trial-court errors denied him his right to a fair trial.
¶ 71 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. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. We have found no error. Thus, the doctrine of cumulative error does not apply to this case, and we overrule this assignment of error.
IX. Reagan Tokes Law
¶ 72 Abudu contends in his final assignment of error that the trial court erred when it sentenced him to an indefinite sentence under S.B. 201, commonly referred to as the Reagan Tokes Law, because the law is unconstitutional under the
¶ 73 Abudu does not cite to this court’s en banc decision of State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 17-51 (8th Dist.), wherein this court rejected most of the arguments he raises challenging the constitutionality of the Reagan Tokes Law. This court in State v. Pierce, 8th Dist. Cuyahoga No. 111605, 2023-Ohio-528, ¶ 51-54, also addressed and rejected Abudu’s additional argument challenging the Reagan Tokes Law as violating his substantive due process rights. Accordingly, based on the authority of Delvallie and Pierce, this court summarily overrules Abudu’s challenges to the Reagan Tokes Law and his assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, A.J., and
LISA B. FORBES, J., CONCUR
N.B. Administrative Judge Anita Laster Mays is constrained to apply Delvallie’s en banc decision. For a full explanation of her analysis, see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Laster Mays, J., concurring in part and dissenting in part).
Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Forbes, J., dissenting).