STATE OF OHIO, Plaintiff-Appellee, - vs - KHALID A. HABO, Defendant-Appellant.
CASE NO. 2012-P-0056
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2013-Ohio-2142
[Cite as State v. Habo, 2013-Ohio-2142.]
TIMOTHY P. CANNON, P.J.
Criminal Appeal from the Portage County Municipal Court, Ravenna and Kent Divisions, Case No. R11 CRB 2650. Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
James E. MacDonald, 212 Casterton Avenue, Akron, OH 44303 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Khalid A. Habo, appeals the judgment of the Portage County Municipal Court, Ravenna Division, convicting him on one count of domestic violence following a jury trial. Appellant argues his conviction must be overturned because the trial court made multiple, imрroper evidentiary rulings which resulted in an unfair trial. He also argues the evidence is insufficient to support a conviction; the conviction is against the manifest weight of the evidence; and his trial counsel was ineffective.
{¶2} On October 4, 2011, two complaints were filed charging appellant with domestic violence; one charge alleged violence аgainst his wife, Rehab Khattab, and one charge alleged violence against his daughter, age 7, known throughout the proceedings as “Juvenile A.” Both charges were first-degree misdemeanors in violation of
{¶3} Appellant pled not guilty, and the matter proceeded to a jury trial. During trial, testimony revealed the strenuous relationship between appellant and his wife. The undisputed evidence indicates the pair, who lived together in a house in Streetsboro, Ohio, with their three kids, became estranged and the relationship strained. Aftеr divorce proceedings initiated on October 22, 2010, the tranquility of the household further deteriorated. Exchanges between the pair were so charged and contentious that Ms. Khattab commenced the practice of secretly carrying around a concealed tape recorder. Testimony also indicated Ms. Khattab locked herself in her bedroom with the children on a daily basis. On November 19, 2010, one day after a hearing concerning temporary parental rights and responsibilities, appellant, exercising his parenting time, prepared to take his children to school for the first time since the divorce complaint was filed.
{¶4} There are two versions of events from this point forward. Ms. Khattab testified that the children did not want to go with appellant to school. Ms. Khattab explained that appellant previously threatened to take the children away from their mother, and as a result, the children were crying hysterically and generally resistant to appellant‘s efforts. Ms. Khattab explained appellant, visibly infuriated, violently grabbed the children from their waistband and threw them into his automobile. Ms. Khattab stated she was kicked for attempting to intervene and her daughter, Juvenile A, was smacked across the face for “talking back” and disobeying appellаnt‘s orders. Ms. Khattab audio recorded the incident in secret, the tape of which was played for the jury. The tape reveals loud crying and screaming. An audible smack can be heard with Ms. Khattab yelling out “don‘t hit my children.”
{¶5} Appellant‘s testimony illustrated a different atmosphere on the day in question. Appellant testified he prepared the children‘s breakfast and packed their lunch in anticipation for the upcoming school day. Appellant explained his children entered his automobile without incident and he buckled them into their seats. He stated Ms. Khattab came charging out of the house in a disheveled and hysterical state. Appеllant testified Ms. Khattab attempted to remove the children from the automobile while creating noise and confusion. Appellant explained Ms. Khattab staged the commotion for the tape recording by slapping her thigh while repeating “don‘t hit my children.” Appellant denied ever hitting his wife or daughter.
{¶6} Officer Jason Fogleman responded to the disturbance call and testified at trial. Officer Fogleman noted that, as he approached the scene, he witnessed yelling, crying, screaming, and two adults engaged in a struggle in an open garage. Officer
{¶7} On October 12, 2011, the jury acquitted appellant on the charge alleging domestic violence against his wife, but convicted him on the domestic violence charge against his daughter.
{¶8} Curiously, the record indicates appellant filed a motion, captioned “motion in limine,” also on October 12, 2011, seeking to permit additional testimony from another witness, a court-appointed guardian ad litem for the children, which allegedly would affect the credibility of Ms. Khattab‘s version of events. The trial court denied the motion.
{¶9} On May 15, 2012, the trial court sentenced appellant to serve 180 days in jail and pay a $1,000 fine. The trial сourt stayed the prison term and $900 of the fine, contingent upon various conditions including successful completion of community work service and no violation of law for two years. The trial court also stayed execution of the sentence pending appeal.
{¶10} Appellant now appeals and asserts six assignments of error. Appellant‘s first assignment of error states:
{¶11} “The conviction of domestic violence was based upon insufficient evidence and the trial court erred as a matter of law in overruling appellant‘s Rule 29 motion at the close of the state‘s case-in-chief.”
{¶12} Appellant first argues his conviction is bаsed upon insufficient evidence. The state contends appellant has waived this argument on appeal because he did not renew his
{¶13} We recognize there is a conflict among the appellate districts throughout Ohio as to whether the failure to renew a
{¶14}
{¶15} Appellant was convicted under
{¶16} In support, appellant highlights State v. Adaranijo, 153 Ohio App.3d 266, 2003-Ohio-3822 (1st Dist.), which reversed a domеstic violence conviction following a bench trial on the grounds of insufficient evidence. Testimony elicited two versions of events in Adaranijo: one version that the defendant smacked his child, age 13, across the face, and one version that he did not. The First District explained, in either case, the defendant did not commit domestic violence under
{¶17} In City of Warren v. Culver, 11th Dist. No. 2003-T-0023, 2004-Ohio-333, this court examined the language of Warren Ordinance 537.14(a), which is identical to the language of the domestic violence statute here,
{¶18} Here, there is sufficient evidence to support a finding that appellant knowingly caused or attempted to cause physical harm to sustain a conviction of domestic violence against Juvenile A, to wit: Ms. Khattab testified she observed appellant smack their daughter across the face; a tape recording of the incident revealed an audible smack, children frantically crying, and Ms. Khattab hysterically
{¶19} Appellant argues in the alternative that, assuming he did contact the victim, he did not exceed his rights of parental discipline. The Ohio Supreme Court, in State v. Suchomski, 58 Ohio St.3d 74, 75 (1991), recognized the right of parents to control and raise their own children by imposing reasonable physical discipline to punish the child‘s misconduct. The Court recognized “injury” to be the invasion of any legally-protected interest, and a child does not have a legally-protected interest that is invaded by proper and reasonable parental discipline. This stems from a parent‘s right to manage the rearing of his or her child, a fundamental liberty interest. State v. Hause, 2d Dist. No. 17614, 1999 Ohio App. LEXIS 3627, *6 (Aug. 6, 1999), citing Santosky v. Kramer, 455 U.S. 745 (1982). Accоrdingly, the domestic violence statute does not prohibit a parent from properly disciplining his or her child, and “[a] parent may use physical punishment as a method of discipline without violating the domestic violence statutes as long as the discipline is proper and reasonable under the circumstances.” State v. Vandergriff, 11th Dist. No. 99-A-0075, 2001 Ohio App. LEXIS 4285, *10 (Sept. 21, 2001).
{¶20} However, the accused bears the burden of establishing parental discipline as an affirmative defense. State v. Phillips, 10th Dist. No. 12AP-57, 2012-Ohio-6023, ¶18, citing State v. Zielinski, 12th Dist. No. CA2010-12-121, 2011-Ohio-6535, ¶27; see also Vandergriff, supra, at *10, and Cadwallader, 2004-Ohio-6336, ¶23 (“in domestic violence cases where the victim is a child, appellate courts have recognized the affirmative defense of ‘proper and reasonable parental discipline’ of the child“). Indeed,
{¶21} At trial, appellant did not pursue this theory of the case; instead, he maintained he had no contact with the victim. He therefore did not raise this affirmative defense during trial nor did he elicit any testimony that would support it. Appellant points again to Adaranijo, where the First District concluded that, even though the defendant did not assert it, the evidence manifestly raised and proved the parental discipline affirmative defense on his behalf. Id. at ¶13. Regardless of the propriety of an appellate court raising and accepting on an appellant‘s behalf an affirmative defense not previously raised at the trial level, we cannot ignore that the burden of proof rested on appellant to make a prima facie case of parental discipline as an affirmative defense. It was therefore incumbent upon him to meet the burden of production by producing or coming forward with sufficient evidence to establish the affirmative defense. See Vandergriff, supra, at *11. It was additionally incumbent upon appellant to meet the burden of persuasion by arguing that the evidence successfully established the defense. Id. Further, “[a]n essential part of raising the defense is getting a jury instruction that permits a finding [that reasonable parental discipline] has been met.” Id. at *11.
{¶22} Rather than pursue this defense, appellant argued he had no contact with the victim whatsoever. In fact, appellant used propensity logic to suggest it was not in his character to ever hit a child, given his duty as a pediatrician. Appellant testified that, in his profession, he regularly advises parents about the dangers of smacking or spanking a child, explaining such abuse “would never be productive.” Presenting the
{¶23} Even if the affirmative defense had been raised, we note “[a] review for sufficiency of the evidence does not apply to affirmative defenses, because the review does not consider the strength of the defense evidence.” State v. Phillips, 2012-Ohio-6023, ¶13, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶37. In Phillips, the defendant argued his conduct was insufficient to constitute domestic violence against his minor child because he used proper and reasonable parental discipline. Id. The defendant in Phillips raised the affirmative defense at trial. Id. However, the Tenth Appellate District exрlained that the defendant could not challenge the jury‘s rejection of his claim of reasonable parental discipline on the basis of sufficiency because a claim of insufficient evidence challenges the sufficiency of the state‘s evidence. Id.
{¶24} Appellant‘s first assignment of error is without merit.
{¶25} Appellant‘s second assignment of error states:
{¶26} “The conviction is against the manifest weight of the evidence.”
{¶27} To determine whether a verdict is against the manifest weight of the evidence, a reviewing court must consider the weight of the evidence, including the credibility of the witnesses and all reasonable inferences, to determine whether the trier of fact “lost its way and creatеd such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In weighing the evidence submitted at a criminal trial, an
{¶28} Appellant‘s principle contention under his second assignment of error is that the conviction is against the manifest weight of thе evidence because it is “based upon uncorroborated and contradictory hearsay[.]” The jury in this case was indeed presented with two versions of events. It must be emphasized that the trier of fact is in the best position to evaluate testimony and resolve inconsistencies, if any, by observing the witness‘s manner and demeanor on the witness stand—attributes impossible to glean through a printed record. See generally State v. Sevilla, 10th Dist. No. 06AP-954, 2007-Ohio-2789, ¶14. We therefore afford the jury verdict deference. In addition to the conflicting version of events offered by Ms. Khattab and appellant, either of which the jury could have believed, the evidence included the statement mаde by Juvenile A to the police that her father had hit her. This supported Ms. Khattab‘s version of events. After a detailed review of the record, we find the jury verdict is not against the manifest weight of the evidence.
{¶29} Appellant‘s second assignment of error is without merit.
{¶30} Appellant‘s third assignment of error states:
{¶31} “The trial court erred as a matter of law and committed plain and cumulative error in: (1) the admission of testimonial statements to the police; (2) the
{¶32} A court‘s evidentiary rulings are reviewed under an abuse of discretion standard. State v. Poling, 11th Dist. No. 2008-A-0071, 2010-Ohio-1155, ¶19, citing State v. Sweeney, 11th Dist. No. 2006-L-252, 2007-Ohio-5223, ¶22. Even where a court abuses its discretion in the admission of evidence, we must review whether the defendant suffered material prejudice due to the ruling. Id.
{¶33} Appellant argues that, under the doctrine of cumulative error, three separate evidentiary rulings allegedly made in error compound into prejudicial error. “The cumulative error doctrine provides that while certain errors, individually, may not be prejudicial, when those errors are combined the aggregate effect denies the defendant a fair trial.” State v. Jackson, 11th Dist. No. 2008-T-0024, 2010-Ohio-1270, ¶43, citing State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus.
{¶34} The record indicates appellant did not object to any of the thrеe purported evidentiary errors. Accordingly, appellant has waived all but plain error.
{¶35} Appellant first contends the trial court erred in admitting Juvenile A‘s “testimonial” statements to the police. Appellant contends his Sixth Amendment Confrontation Clause rights were violated when Officer Fogleman testified to what Juvenile A told him during the on-scene interview. Officer Fogleman testified during the state‘s case-in-chief that the victim, Juvenile A, explained “[appellant] had grabbed her by the neck and at one point had slapped her.” Conversely, the state contends that, even if the Confrontation Clause was implicated, any error in this case is harmless error. As set forth above, however, we are to employ a plain error analysis. As noted by the Tenth Appellate District: “Where preserved by objection, review of Confrontation Clause claims is for harmless error. Confrontation Clause claims not preserved by objection are reviewed for plain error * * *.” State v. Scott, 10th Dist. No. 05AP-1144, 2006-Ohio-4981, ¶11, fn. 4.
{¶36} “It is a well established principle that Confrontation Clause rights, like other constitutional rights, can be waived.” State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, ¶14. Not only can a defendant waive this right, but “a defendant‘s counsel generally is capable of waiving Confrontation Clause rights without the specific approval of the defendant.” Id. at ¶22. This is because “a lawyer must have ‘full authority to manage the conduct of the trial. The adversary process could not function effectively if every taсtical decision required client approval.‘” Id. at ¶24, quoting Taylor v. Illinois, 484 U.S. 400, 418 (1988). “[D]ecisions by counsel are generally given effect as to what arguments to pursue, * * * what evidentiary objections to raise, * * * and what agreements to conclude regarding the admission of evidence * * *. Absent a demonstration of ineffectiveness, counsel‘s word on such matters is the last.” Id., quoting New York v. Hill, 528 U.S. 110, 115 (2000).
{¶37} Given the unique facts of this case, we recognize that the failure to object at the trial level on the grounds the statement was testimonial and implicated the Confrontation Clause may have been a tactical decision and thus an intentional relinquishment of the right. Indeed, Officer Fogleman‘s recounting оf the events in lieu of having Juvenile A take the stand to offer emotionally-charged testimony could have been beneficial to appellant. Nothing in the record indicates Juvenile A was found incompetent to testify. Additionally, the failure or decision not to object clearly affected the manner in which the state presented its case-in-chief. As appellant did not object, and as the statement became evidence for the jury‘s consideration, the state had no need to call Juvenile A to testify or otherwise attempt to introduce the statement. That evidence is therefore naturally not before this court in the record. It is simply not clear whether this failure was deliberate. Accordingly, appellant has not met the burden of establishing plain error. Further, under appellant‘s line of reasoning, the trial court, to avoid the alleged error in this case, would have been required to raise an objection on behalf of appellant.
{¶38} Appellant did not call his daughter to testify. This could be for a multitude of reasons. One could be that he believed her testimony would be harmful to his cause. It may have been much less damaging to allow the officer to testify on a limited basis to what Juvenile A told him. In fact, if that was the case, and there is a retrial, new counsel might come to the exact same conclusion as the original trial counsel. The reality is this
{¶39} As appellant relies on cumulative error, we need not address the other points under this assignment of error. Nonetheless, the failure to have an interpreter to interpret the Arabic on the tаpe played to the jury and allowing “discriminatory ethnicity-based” statements do not rise to the level of plain error, especially when appellant could offer his own interpretation of the Arabic on the tape. Appellant testified in this case. If there were erroneous interpretations made, he had every opportunity to offer testimony to that effect, but chose not to. Because he offered no contradictory interpretation of what was on the tape, it was not error for the trial court to fail to hire a third party to interpret the statements. Further, Ms. Khattab‘s translations detailed how appеllant called her a dog and accused her of being unreligious; the comments were not material to the issue of domestic violence.
{¶40} Appellant‘s third assignment of error is without merit.
{¶41} Appellant‘s fourth assignment of error states:
{¶42} “The trial court abused its discretion in overruling appellant‘s motion in limine thereby foreclosing the possibility to impeach the statements of Juvenile A or to impeach the state‘s witness. Further, the cumulative effect of the errors in the third and fourth assignments of error resulted in an unfair trial.”
{¶43} “A ‘motion in limine’ is defined as a ‘pretrial request that certain inadmissible evidence not be referred to or offered at trial.‘” State v. Freeze, 12th Dist. No. CA2011-11-209, 2012-Ohio-5840, ¶43, quoting Black‘s Law Dictionary (9th Ed.2009). The record before this court indicates appеllant filed a motion after trial, seeking to include additional testimony from new witnesses. It therefore appears the motion was erroneously captioned “motion in limine.”
{¶44} Moreover, in order to preserve any error for this appeal, appellant should have made the record by calling these witnesses at trial and, if the anticipated testimony was indeed met with successful objection, proffer the testimony or make the substance of the testimony known to the court outside the presence of the jury, pursuant to
{¶45} Appellant‘s fourth assignment of error is without merit.
{¶46} Appellant‘s fifth assignment of error states:
{¶47} “The defendant was denied a fair trial based upon the ineffective assistance of trial counsel.”
{¶48} In order to prevail on an ineffective assistance of counsel claim, appellant must demonstrate that trial counsel‘s performance fell below an objective standard of reasonable representation, and there is a reasonable probability that, but for counsel‘s error, the result of the proceeding would have been different. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus, adopting the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). If a claim can be disposed of by showing a lack of sufficient prejudice, there is no need to consider the first prong, i.e., whether trial counsel‘s performance was deficient. Id. at 142, citing Strickland at 695-696. There is
{¶49} Appellant argues his trial counsel provided ineffective assistance for numerous reasons. We note appellant has not included as one of these reasons trial counsel‘s failure to object to Officer Fogleman‘s testimony regarding Juvenile A‘s statement on either hearsay or Confrontation Clause grounds. Therefore, this particular failure to object will not be considered in our analysis. See
{¶50} First, appellant contends trial counsel was ineffective for failing to make any arguments to support the
{¶51} Next, appellant contends his counsel should have objected to alleged “prior bad acts” testimony wherein Ms. Khattab detailed “years of abuse and fighting” and suggested that physical violence against one‘s wife was permissible in Egyptian culture. We note “failure to object is within the realm of trial tactics and, therefore, does not definitively establish deficient performance by counsel.” State v. Gray, 2d Dist. No. 20980, 2007-Ohio-4549, ¶20. In this matter, it simply cannot be concluded that appellant was prejudiced by these passing comments, especially when appellant was acquitted on the domestic violence charge as against his wife.
{¶52} Appellant additionally argues his trial counsel should have objected to Ms. Khattab‘s “de facto interpretation” of portions of Arabic heard on the tape of the incident. We cannot conclude trial counsel‘s performance fell below an objective standard of
{¶53} Appellant also argues his trial counsel failed to file a motion to dismiss on speedy trial grounds. We note that appellant, after the state of Ohio filed its brief on appeal, asked this court to supplement the record on appeal with the dоcket and filings contained in a previously-filed case. This request was denied by this court. In his merit brief, appellant concedes there is a notation on a pretrial report from the prior case that he waived speedy trial; however, he argues there is nothing signed by him that illustrates he knowingly and voluntarily waived his speedy-trial right. This notation illustrates the need to have this type of claim resolved in a postconviction petition proceeding. Whether the statutory or constitutional speedy trial time limits were exhausted is not a matter that can be resolved in the record before this court, nor could it be resolved merely by supplementing the record with the prior case record. A postconviction relief proceeding would allow both parties to introduce evidence and/or testimony that would allow the issue to fully be addressed.
{¶54} Finally, appellant asserts that the failure to raise the affirmative defense of proper and reasonable parental discipline, when the facts prove it, is ineffective assistance of counsel. However, it is well established that strategic and tactical decisions of trial counsel fall within the scope of objectionably reasonable judgment. Strickland v. Washington, 466 U.S. 668, 699 (1984). The decision to assert the defense that appellаnt had no contact with the victim was within the realm of trial tactics.
{¶55} Appellant‘s fifth assignment of error is without merit.
{¶56} Appellant‘s final assignment of error states:
{¶57} “The trial court erred as a matter of law and lost jurisdiction to sentence appellant due to an impermissible delay between conviction and sentence.”
{¶58} Appellant argues the approximately seven-month time span in between the verdict and sentence was unreasonable, unnecessary, and impermissible.
{¶59} We are mindful of the authority cited by appellant: that
{¶60} This court has previously found delays between conviction and sentencing to be unreasonable and unnecessary, though it has been in circumstances where there was no reason for the delay. See City of Warren v. Ross, 116 Ohio App.3d 275 (11th Dist.1996) (more than four years passed between conviction and sentence and the record failed “to provide any reason whatsoever for this delay“); Willoughby v. Lukehart, 39 Ohio App.3d 74 (11th Dist.1987) (more than one year passed between conviction and sentence for no apparent reason). Here, however, the record indicates reasons justifying the delay of approximately seven months: appellant filed post-verdict motions, including a motion for new trial, which required consideration and disposition; a presentence investigation report was ordered; and the court transferred the cause from the Ravenna Division to the Kent Division.
{¶61} Appellant‘s sixth assignment of error is without merit.
{¶62} Accordingly, the judgment of the Portage County Municipal Court, Ravenna and Kent Divisions, is affirmed.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O‘TOOLE, J., concurs in judgment only.