Case Information
*1
[Cite as
State v. Koch
,
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28000 :
v. : Trial Court Case No. 2016-CR-1987/3
:
IZMIR KOCH : (Criminal Appeal from
: Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . . .
O P I N I O N
Rendered on the 4th day of October, 2019.
. . . . . . . . . . .
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Rеg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
. . . . . . . . . . . . .
DONOVAN, J.
-2- Defendant-appellant Izmir Koch (hereinafter “Izmir”) appeals from his conviction for one count of felonious assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony of the second degree; and one count of felonious assault (serious physical harm), in violation of R.C. 2903.11(A)(1), also a felony of the second degree. Izmir filed a timely notice of appeal with this Court on May 18, 2018. The record establishes that the victim, Aydin Akhmdov, emigrated from
Russia to the United States in 2006, eventually settling in Dayton, Ohio. Aydin was initially self-employed as a truck driver. During this time, Aydin stored his truck and had it serviced at Ameripro Logistics, a local trucking company owned and managed by Mustafa Shakhmanov, Izmir’s cousin. At some point thereafter, Mustafa hired Aydin as a driver for Ameripro. Aydin testified that, in 2015, he broke his leg and was unable to maintain his employment with Ameripro. Aydin testified that when he stopped working for Ameripro, he was still owed approximately $1,800 in back pay. Aydin testified that for several months, he contacted Mustafa many times in
an effort to recover his back pay. Thereafter, on June 7, 2016, Aydin made multiple attempts tо contact Mustafa regarding his back pay, but his calls went unanswered. Eventually, Aydin called Ameripro’s truck dispatcher, Sevil Shakhmanov, Mustafa’s brother. Aydin testified that Sevil told him to come to the Ameripro office and speak directly to Mustafa in order to get his back pay. Aydin testified that he traveled to Ameripro later that day, but the doors were locked and he was unable to locate anyone. Aydin testified that it was only after he left Ameripro that he noticed that Sevil had called him several times. Aydin called Sevil back and was told to return to Ameripro if he wanted to be paid.
-3- Surveillance cameras located outside the Ameripro office recorded the encounter between Aydin, Sevil, and members of Sevil’s family. In the video, Aydin can be seen arriving at Ameripro and parking his motor vehicle on the street across from the business. Aydin testified that, as he sat in his parked car, he observed Sevil remove a tire iron from his car and hide it in his pants. The video depicts Sevil being joined by Mustafa, and the two men can be seen attempting to call Aydin across the street. Aydin testified that when he refused to come across the street, Sevil, Mustafa, and their brother, Sobir Shakhmanov, walked across the street to where Aydin was standing. As depicted in the video, while the three men wеre talking to Aydin, Izmir and
his brother, Murad Koch pulled up in a white BMW sedan behind where all of the men were talking. At that point, the men surrounded Aydin. As Aydin attempted to walk away from the men, Murad ran toward him and repeatedly hit him with a collapsible metal baton. As Aydin ran between some vehicles parked nearby, all five men followed him and began beating him. Aydin testified that, during the assault, Sevil struck him in the head with a tire iron. Eventually, Aydin was able to return to his vehicle and leave the scene of the assault. However, as Aydin was driving away, the video depicts Mustafa picking up a rock and throwing it at Aydin’s vehicle. Shortly thereafter, Aydin returned to Ameripro, parking his vehicle across the
street from the business. Aydin testified that he shouted at Sevil from across the street regarding the back pay he was owed. The video depicts Sevil responding by making a profane gesture directed at Aydin. In the video, the Shakhmanov brothers can also be seen in the Ameripro lobby placing metal poles and rebar just inside the door of the business.
-4- Aydin testified that Murad, armed with the metal baton, began yelling at him from across the street. At that point, Murad, Izmir, and Sevil walked across the street to where Aydin was standing. Aydin testified that they were yelling at him as they approached him, stating that they were going to “tear him to pieces.” Tr. 794. When Murad approached him with the metal baton, Aydin pulled out a pocketknife and stabbed him in the arm. Thereafter, Aydin attempted to run away but tripped and fell down in the parking lot, at which point Mustafa began striking him with a metal pole and Izmir can be seen kicking him in the head and upper body. Aydin testified that Sevil was about to hit him with a metal pole. Aydin, however, was able to retrieve a set of brass knuckles from his pocket and strike Sevil, knocking him to the ground. Aydin then ran across the street towards the Ameripro office in an effort to escape from his attackers. Upon reaching the parking lot in front of Ameripro, however, Aydin was struck
in the head from behind with a metal pole by Murad. When Aydin fell to the ground, Murad, Mustafa, and Kamil Abbasov began hitting him with metal poles. Izmir, who did not have a weapon, can be seen in the video kicking Aydin in the head. Thereafter, Sobir Shakhmanov pulled his brothers and cousins away from Aydin, who was clearly injured. Eventually, Aydin was able to stand up and walk back across the street toward his vehicle. Izmir followed Aydin across the street and continued assaulting him. Izmir’s brother, Baris Koch, joined in the assault, kicking Aydin in the head and knocking him to the ground. Mustafa, Murad, and Kamil also ran across the street to continue attacking Aydin. The video depicts the men chasing Aydin behind a wooden fence where the assault continued, according to Aydin. Eventually, Aydin walked out from behind the fence without his shirt and wearing only one shoe. Aydin walked to his vehicle and got
-5- inside, but when he tried to leave, Izmir walked over to the vehicle, reached into the front passenger side window and took the key out of the ignition. Thereafter, Aydin simply remained seated in his vehicle and waited for the police to arrive. During the initial assault, Aydin suffered a cut to his head when Sevil struck
him with a tire iron. Aydin required stitches and staples to close wounds on his head. Furthermore, as a result of the assaults, Aydin was diagnosed with post-concussive syndrome, anxiety, and post-traumatic stress disorder. Aydin testified that as a result of the assault, he continues to suffer from headaches, knee pain, and back pain. On July 5, 2016, Izmir and five co-defendants were indicted for one count
of felonious assault (deadly weapon), and one count of felonious assault (serious physical harm). [1] On August 10, 2016, Izmir filed a motion to suppress his statements to the police. On December 2, 2016, Izmir filed an amended motion to suppress in which he argued that Mustafa, the manager of Ameripro, did not give valid consent for the police to seize the surveillance video without a search warrant. On February 14, 2018, the trial court overruled Izmir’s motion to suppress on the following grounds: Izmir lacked standing to challenge thе video’s seizure because he failed to adduce evidence establishing that he had a reasonable expectation of privacy in Ameripro’s business property and/or the particular office where the surveillance video was maintained; and 2) even if Izmir had standing, the record established that Mustafa voluntarily provided the police with both oral and written consent to seize the surveillance video. The trial court initially intended to give each co-defendant a separate trial.
*6 -6- On November 8, 2017, Izmir filed a motion requesting that he and his brother, Murad, be tried together, which the trial court granted. Eventually, co-defendants Sevil and Kamil were also joined. On March 19, 2018, Izmir, Murad, Sevil, and Kamil’s jury trial commenced. After hearing testimony and seeing evidence adduced by the State and the defendants, the jury found Izmir and his co-defendants guilty of one count of felonious assault (deadly weapon) and one count of felonious assault (serious physical harm). The trial court sentenced Izmir to a term of community control sanctions not to exceed five years. It is from this judgment that Izmir now appeals. Izmir’s first assignment of error is as follows:
THE TRIAL COURT ERRED BY HOLDING THAT APPELLANT COULD NOT MOVE TO SUPPRESS EVIDENCE IN THIS MATTER BECAUSE HE DID NOT HAVE A PERSONAL EXPECTATION OF PRIVACY AT THE BUSINESS FROM WHICH THE SURVEILLANCE VIDEO WAS OBTAINED, IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION 14 OF THE CONSTITUTION OF OHIO. In his first assignment of error, Izmir contends that the trial court erred when
it overruled his motion to suppress the surveillance video seized by police from Mustafa’s office at Ameripro. Specifically, Izmir argues that the trial court erred when it found that he lacked standing to challenge the video’s seizure because he failed to establish that he had a reasonable expectation of privacy in Ameripro’s business property and/or the particular office where the surveillance video was maintained.
-7-
In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford ,
individuals from unreasonable searches and seizures. Terry v. Ohio ,
-8-
privacy in order to have standing to object to a search of his or her workplace is decided
on a case by case basis. O'Connor v. Ortega, 480 U.S. 709, 718,
incorporated in Ohio by Mustafa; Mustafa was listed as Ameripro’s registered agent. At the hearing on the motion to suppress, Mustafa testified that he was in charge of the day- to-dаy operation of Ameripro, and that his brothers, Sobir and Sevil, helped him manage the company. Conversely, Izmir was employed by a separate company, USA Freight, which was owned by Izmir’s father and operated by the Koch family. Mustafa testified that, although he provided Izmir and the other Koch brothers with swipe cards which allowed them to gain entrance to Ameripro grounds and keys to the side and back doors of the office, neither Izmir nor any of his brothers was involved in the day-to-day operation of Ameripro. Additionally, while Izmir had general access to parts of the Ameripro grounds and office, no evidence was adduced that Izmir had any access to Mustafa’s office, where the video surveillance system was maintained. In his brief, Izmir asserts that “the [Koch] brothers, including [Izmir], had
access to the room in which the video surveillance equipment for [Ameripro] was maintained and operated.” Appellant’s Amended Brief, p.12. In support of his argument in this regard, Izmir cites to pages 304 and 321-322 of the transcript of the suppression hearing. Upon review, however, none of the pages to which Izmir directs us support his
-9-
contention that he or any of his brothers had access to the room where the video
surveillance equipment was maintained and operated. Mustafa testified that the video
surveillance equipment was maintained in his personal office. The record establishes
that Mustafa was only asked about Baris Koch and the extent of his access to Mustafa’s
office. Mustafa testified that Baris was his cousin and had access to most of the
Ameripro office and grounds. However, Mustafa specifically testified that Baris did not
have access to the room where the video surveillance equipment was maintained and
operated. Moreover, Baris’s access or lack thereof was not dispositive of Izmir’s access.
Izmir also argues that Mustafa and the Shakhmanov brothers have an
extremely close familial bond with all of the Koch brothers. Izmir argues that, while they
are technically cousins, the Kochs and Shakhmanovs are more akin to brothers. Izmir
argues that this is highlighted by the fact that Mustafa provided all of the Koch brothers
with a card and keys allowing them access to the Ameripro office and grounds. However,
although Izmir argues that his possession of a swipe card and keys to the office
demonstrated he had a privacy expectation in the room containing the video surveillance
equipment, possession of such equipment, in and of itself, did not establish a reasonable
expectation of рrivacy in the video room. See State v. Logel , 2d Dist. Montgomery No.
21912,
which granted him access to portions of the Ameripro office and grounds, we agree with the trial court that Izmir failed to adduce any evidence that he had an expectation of privacy in the room containing the video surveillance equipment. It is undisputed that, as cousins of Mustafa, Izmir and Baris were granted the same level of access to the office and grounds at Ameripro. Accordingly, it was reasonable to infer that, if Baris Koch did not have access to the video surveillance room per Mustafa’s testimony, then Izmir would not have had access to the room either. Izmir bore the burden to establish that he had a protected privacy right therein; he did not do so. Therefore, we find that the trial court did not err when it overruled Izmir’s motion to suppress, finding that he lacked standing to challenge the video’s seizure because he did not establish that he had a reasonable expectation of privacy in Ameripro’s business property and/or the particular office where the surveillance video was maintained. Izmir’s first assignment of error is overruled. Izmir’s second assignment of error is as follows:
THE TRIAL COURT ERRED BY HOLDING THAT MUSTAFA GAVE CONSTITUTIONALLY VALID CONSENT FOR THE COLLECTION OF THE SURVEILLANCE VIDEO. In his second assignment, Izmir argues that the trial court erred when it held
that Mustafa voluntarily provided the police with both oral and written consent to seize the surveillance video. However, in our analysis of the prior assignment, we found that the trial court reasonably concluded that Izmir lacked standing to challenge the video’s seizure, because he failed to establish that he had reasonable expectation of privacy in Ameripro’s business property and/or the particular office where the surveillance video was maintained. Because he lacked standing to challenge the seizure of the surveillance video, Izmir’s second assignment is overruled as moot.
{¶ 26} Izmir’s third assignment of error is as follows:
THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL WHEN NEWS ACCOUNTS RELATING TO THE ARREST OF APPELLANT IN A SEPARATE MATTER WERE PUBLISHED DURING THE TRIAL, THEREBY VIOLATING HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION 10, OF THE CONSTITUTION OF OHIO. During the night after the second day of trial, on March 20, 2018, Izmir was
arrested by the FBI and taken into custody in Cincinnati, Ohio. Therefore, Izmir was not present when the trial was set to resume the next day, March 21, 2018. When the trial court informed the parties that it was considering resuming the trial without Izmir, his counsel and counsel for each co-defendant objected. The trial court re-set the trial to the next day and sent everyone home. Izmir was present for trial on March 22, 2018. Izmir’s counsel moved for a
mistrial after it was discovered that the U.S. Attorney’s Office had issued a press release regarding Izmir’s arrest in Cincinnati, which had been reported on by several local media outlets. In overruling Izmir’s motion for a mistrial, the trial court stated the following
outside the hearing of the jury:
TRIAL COURT: [The record] is clear, that this is not press interest being generated by the Montgomery County Prosecutor’s Office nor by the Dayton Police Department. We have a co-defendant who is attracting media interest through the Cincinnati market, and the Cincinnati Department of Justice U.S. Attorney’s Office, and/or their FBI offices.
So everybody in this room is harmless as to the situation that is arising. That is absolutely clear. And so we have third party players who are engaging in media activity that happens to have an impact on this. But nobody associated with this case is the cause – [of] the situation that we’re talking about.
So I want the record and the Court of Appeals to be very clear on that, that this is not a circumstance that is being generated by the prosecutor’s office in this case, nor by any local law enforcement agency. So that just – we can just put that to rest right now.
* * *
So the Court is going to deny the request for mistrials, and the rationale for doing so is that from [the] point of empanelment through all of our various recesses, including the rеcess that was given because of Izmir Koch’s incarceration down in Cincinnati, the jury has been told consistently and repeatedly to obey the Court’s orders on recess, to have no media contact, and to not allow anybody to relate to them any reports concerning the case that might arise in the media.
They have also been instructed that if they would come into contact with any information regarding the case, any aspect of it, or anybody involved in it, to immediately bring that to the Court’s attention.
The jury is presumed to be following the Court’s orders. At this point no juror has indicated that to the Court’s bailiff that they’ve had an issue with that. Nobody has asked to speak with the Court.
So given the instructions that the jury has received and the content and breadth of those instructions, at this point I am not going to grant the request for mistrial.
So as until now having contact with the jury about whether or not they’ve been able to abide by the Court’s instructions, in lieu of doing a one- by-one inquiry in chambers with the jury, my suggestion would be that we have the jurors go into the jury box and I ask them amass as opposed to one-on-one, have any of you had any contact with any information outside of the courtroom involving this case, any aspect of it, or anybody involved in it?
And if so, I want you to raise your hand, and I’m going to have to talk with you further about that. Don’t obviously blurt out anything that you’ve heard. And that way I do not subscribe to the view that there’s a chilling effect by asking the jurors that when they’re all together.
* * *
And then we can follow up and follow that trail where it may lead, but certainly at this point there is not enough to grant a mistrial.
(Emphasis added.) Tr. 858-860. At this point, the jury was brought back into the courtroom, and the following
exchange occurred:
TRIAL COURT: [Addressing the jury] So we’re getting ready to resume our proceedings, and before we do that I just need to take care of a housekeeping issue.
And so as you know, on all of our recesses, and especially on our overnight recesses I’ve given you those instructions about don’t talk about the case, don’t have contact with anybody involved in the case, and don’t come into contact with any media reports that concern the case.
And I also told you that if you happen to come into contact with any information that pertains to the case or the people involved in it, you need to bring that to the Court’s attention. And so it is the case that unexpectedly there has been some media coverage pertaining to the case that we’re dealing with.
So that sometimes happens. We didn’t anticipate that would occur, but it did occur. And so the question that I have to ask to you is whether or not any of you have happened to have any contact with any of those media reports.
And if so I’m going to need you to raise your hand. I don’t want you to say anything that you heard in any such media reports, but I need to find out whether or not any of you did in fact have contact directly or indirectly with any media reports concerning the case, any aspect of it or anybody involved with it. If so, will you please raise your hand?
Okay. And the record will reflect not a single juror is raising their hand. And they looked very perplexed as to what it is that I’m referring to, which is a great sign. That’s exactly how we wanted you to react to that question, quite frankly.
(Emphasis added.) Tr. 863-864. Thereafter, the trial court reiterated to the jury her initial instructions regarding not having any contact with media reports or anyone involved in the case, and if it that did occur, to bring it to the trial court’s attention immediately. Tr. 864. “A mistrial should not be ordered in a criminal case merely because some
error or irregularity has intervened, unless the substantial rights of the accused or the
prosecution are adversely affected; this determination is made at the discretion of the trial
court.” State v. Reynolds ,
court, and the court's decision will not be disturbed on appeal absent a finding that the
decision constitutes an abuse of discretion.” (Citation omitted.) State v. Wilkins , 183 Ohio
App.3d 824,
demonstrate that he was prejudiced by the media reports of his arrest in Cincinnati on the night after his second day of trial in the instant case. The trial judge addressed the jury panel together regarding potential exposure to the reports and determined that the media reports had not affected the jurors’ ability to decide the case fairly and impartially. The trial court's thorough voir dire dispelled any notion that the jurors had been exposed to any prejudicial information with respect to the local media reports. Izmir also argues that he was entitled to a mistrial because the jurors may
have thought the following: 1) that he “had been involved in some newsworthy, negative activity” since he had not been present in the courtroom on March 22, 2018; 2) that the trial court postponed the trial because of “unexpected delay;” and 3) that Izmir was present the nеxt day when the trial court questioned the jurors regarding the media reports. Izmir’s argument in this regard is undermined by the fact that the record
establishes that, when the trial court informed the jury that the trial was being delayed until the next day, the only individuals present in the courtroom were the judge, her staff, and the jury. In an effort to avoid the jurors doing a “head count” and realizing that Izmir was not present, the trial court had all of the defendants and their counsel step outside the courtroom while she informed the jury about the one-day delay. Tr. 840-843. Accordingly, based upon the actions taken by the trial court, the jury had no way to connect Izmir to the one-day trial delay and/or the trial court’s subsequent inquiry regarding the media reports.
Juror Number Seven On the morning of the final day of trial, March 26, 2018, Juror Number Seven
(hereinafter “No. 7”) informed the bailiff that she had been “browsing” past editions of the Dayton Daily News over the weekend and inadvertently read a portion of an article involving Izmir being charged in another case for an offense arising out of a fight. Tr. 1354. The following exchange then occurred out of the hearing of any other jurors:
NO. 7: And so I thought, oh, no, I’ve got to tell you guys in the morning.
TRIAL COURT: Yeah, absolutely.
NO. 7: So [the article] was rather uneventful, but it was one of our co-defendants –
TRIAL COURT: Uh-huh.
NO. 7: -- and it was a fight, and we already knew he was a fighter. We’ve been watching it all week.
* * *
TRIAL COURT: Okay. And, of cоurse, the question that we have for you about that circumstance is whether or not that is going to impact your ability to be a fair, neutral, and impartial juror on this particular case. And so the law goes to great lengths to make sure that individuals charged with a criminal offense are evaluated on the basis of that specific instance –
NO. 7: Uh-huh.
TRIAL COURT: -- right? And we don’t look at past or future for that particular individual. We are just trying to zero in with laser-like focus as to this particular instance.
NO. 7: Uh-huh.
TRIAL COURT: And so having heard that Izmir is alleged to have been involved in another altercation, does that impact your view of this case either as to him or any other individual involved in this case?
NO. 7: No.
TRIAL COURT: Okay. And is that something that you could totally and completely put aside and not consider, and decide this case exclusively on the basis of the evidence in this case?
NO. 7: Yes.
TRIAL COURT: Okay. And in following up with that, one of the most powerful forms of evidence in a case * * * is to suggest that somebody – has a particular character trait, right? A character trait for being a hothead, or a character trait for not being truthful * * * or something like that?
NO. 7: Uh-huh .
TRIAL COURT: Because it is the human mind that we tend to say, well, if you had that character on Tuesday, then you would have acted in conformity with that on Thursday for example, right?
NO. 7: Uh-huh. Uh-huh.
TRIAL COURT: And so the law doesn’t allow that to hapрen. We again take great strides to try to say that that doesn’t matter, right? What he did on Tuesday doesn’t matter because we are only interested in what happened on June the 7th of 2016 in this particular case.
So are you able to not use that information that appeared in the newspaper about an allegation against someone that they were involved in a fight to [sic], quite frankly, hold that against Mr. Izmir Koch, and believe that it’s more likely that he did something wrong in this particular instance? Are you able to just ignore that?
NO. 7: Yes, Your Honor.
(Emphasis added.) Tr. 1354-1356.
{¶ 37}
At that point, the trial court spoke with counsel for the defendants at sidebar,
specifically Izmir’s counsel, inquiring as to whether the parties were satisfied with the trial
court’s voir dire of No. 7, as well as the juror’s responses. None of the parties requested
a mistrial, and no one requested that No. 7 be discharged and replaced with an alternate
juror. Lastly, we note that there is no indication from the record that No. 7 told any of the
other jurors about the newspaper article she read about Izmir. Nevertheless, Izmir
argues on appeal that the trial court should have ordered a mistrial sua sponte.
Izmir failed to request a mistrial in the trial court, so he waived the issue,
absent plain error. State v. Hunter ,
and must have affected the outcome of the trial. State v. Payne , 114 Ohio St.3d 502,
when it failed to sua sponte order a mistrial based upon No. 7’s admission that she had accidentally read part of an article discussing a separate charge involving Izmir’s fight in another jurisdiction. The record establishes that the trial court engaged No. 7 in a thorough and thoughtful inquiry which established that, although she read the article, the juror was not prejudiced against Izmir and would be able to render a fair and impartial verdict based solely upon the evidence adduced in the instant case. We also note that none of the co-defendants’ attorneys or Izmir’s counsel, in particular, saw fit to request a mistrial based upon No. 7’s admission about the newspaper article. Rather, all of the attorneys present appeared satisfied with the trial cоurt’s inquiry and No. 7’s responses. Therefore, we find that this case does not present the exceptional circumstances or manifest miscarriage of justice required to invoke the plain-error doctrine.
{¶ 41} Izmir’s third assignment of error is overruled. Izmir’s fourth assignment of error is as follows:
THE VERDICT OF THE COURT FINDING APPELLANT GUILTY OF FELONIOUS ASSAULT WITH A DEADLY WEAPON WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN APPELLANT DID NOT HAVE OR USE A DEADLY WEAPON. In his fourth assignment, Izmir argues that his conviction for felonious
assault with a deadly weapon was against the manifest of the evidence because the surveillance video of the assault on Aydin established that he (Izmir) never possessed a weapon. “The manifest-weight-of-the-evidence standard of appellate review set forth
in State v. Thompkins ,
the believability of the evidence and asks which of the competing inferences suggested
by the evidence is more believable or persuasive.” (Citations omitted). State v. Jones , 2d
Dist. Montgomery No. 25724,
to the factfinder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson , 2d Dist. Montgomery No. 16288,
felonious assault in violation of R.C. 2903.11, which provides, in relevant part:
(A) No person shall knowingly do either of the following: * * *
(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance. The evidence adduced at trial established that while Izmir did not possess
a deadly weapon during the assault on Aydin, several of his co-defendants did possess deadly weapons and repeatedly used those weapons to attack Aydin. Therefore, while Izmir did not use a deadly weapon in the commission of felonious assault, he was charged under that Revised Code section on a theory of complicity. “Under R.C. 2923.03, a person may be an accomplice in an offense and
prosecuted as the principal offender if, among other things, he aids or abets another in
committing the offense while acting with the kind of culpability required for commission of
the offense.” State v. Coleman ,
advise, or incite the principal in the commission of the crime.” Id ., citing State v. Johnson ,
challenge. It is well settled that evaluating witness credibility is primarily for the trier of
fact. State v. Brown , 2d Dist. Montgomery No. 27571,
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION 10 OF THE CONSTITUTION OF OHIO WHEN HIS TRIAL COUNSEL ACQUIESCED IN THE ELIMINATION OF A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF ASSAULT, DID NOT REQUEST A JURY INSTRUCTION ON NON-DEADLY FORCE SELF DEFENSE, AND DID NOT MAINTAIN SEVERANCE OF APPELLANT’S CASE, INSTEAD MOVING FOR JOINDER. In his fifth assignment, Izmir contends that he was denied the effective
assistance of counsel based upon the following conduct of his trial counsel: 1) stipulating that Aydin suffered “serious physical harm,” thereby preventing a jury instruction on the lesser included offense of misdemeanor assault; 2) failing to request a jury instruction on non-deadly force self-defense; and 3) opting for joinder instead of keeping Izmir’s case severed from those of his co-defendants. We review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104
S.Ct. 2052,
chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown ,
38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective
assistance of counsel is not whether counsel pursued every possible defense; the test is
whether the defense chosen was objectively reasonable. Strickland at 689. A reviewing
court may not second-guess decisions of counsel which can be considered matters of
trial strategy. State v. Smith , 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable
strategic and tactical decisions may not form the basis of a claim for ineffective assistance
of counsel, even if, in hindsight, it looks as if a better strategy had been available. State
v. Cook ,
Stipulation to Serious Physical Harm As previously stated, Aydin testified that, as a result of being assaulted by Izmir and the other co-defendants, he suffered a cut to his head when Sevil struck him with a tire iron. Aydin required stitches and staples to close wounds on his head. Furthermore, as a result of the assaults, Aydin was diagnosed with post-concussive syndrome, anxiety, and PTSD. Aydin testified that he continues to suffer from headaches, knee pain, and back pain as a result of the assaults. When Aydin finished testifying, the parties and the trial court discussed
whether it was necessary for the doctors who treated Aydin to testify regarding the injuries he suffered during the attack. Counsel for each of the defendants and the trial court agreed that, based upon Aydin’s testimony and his medical recоrds, it was undisputed that he suffered serious physical harm as a result of being assaulted by Izmir and the other co-defendants. We note that during the same discussion, the parties and the trial court also agreed to stipulate that Murad suffered serious physical harm when he was stabbed by Aydin, and Mustafa suffered serious physical harm when he broke his hand during the assault. We also note that the trial court stated that, from its “perspective, * * * there is no doubt that the element of serious physical harm is established in connection with” the injuries Aydin suffered during the assault. Upon review, we find no fault with Izmir’s counsel’s decision to stipulate that
Aydin's injuries constituted serious physical harm within the meaning of R.C.
2903.11(A)(1). “Serious physical harm” is defined, in part, as “[a]ny physical harm that
involves acute pain of such duration as to result in substantial suffering or that involves
any degree of prolonged or intractable pain.” R.C. 2901.01(A)(5)(e). The record
indicates that Izmir’s counsel had received Aydin's medical records during discovery, and
that the nature and extent of Aydin's injuries were not in question. Thus, counsel's
decision to stipulate that Aydin's injuries constituted serious physical harm was a matter
of trial strategy. See State v. Earnest , 2d Dist. Montgomery No. 20124,
Non-Deadly Force Self-Defense Instruction Izmir also argues that his counsel was ineffective for failing to request a jury instruction on self-defense through the use of non-deadly force. At trial, Izmir’s defense was that he attacked Aydin in an attempt to defend his brother, Murad, after Murad had been stabbed in the arm by Aydin. “ ‘To establish self-defense for the use of less than deadly force in defense
of one's person, the defendant must prove: (1) he was not at fault in creating the situation
which gave rise to the event in which the use of non-deadly force occurred; (2) he had
honest and reasonable grounds to believe that such conduct was necessary to defend
himself against the imminent use of unlawful force; and (3) the force used was not likely
to cause death or great bodily harm.’ ” State v. Belcher , 2d Dist. Montgomery No. 24968,
circumstances, one may employ appropriate force to defend another individual against
an assault. However, ‘one who intervenes to help [another] stands in the shoes of the
person whom he is aiding, and if the person aided is the one at fault, then the intervenor
is not justified in his use of force and is guilty of an assault.’ * * * Therefore, one who
claims the lawful right to act in defense of another must meet the criteria for the affirmative
defense of self-defense.” State v. Wenger , 58 Ohio St.2d 336, 340, 390 N.E.2d 801
(1979). Accord State v. Turner , 2d Dist. Montgomery No. 24322,
Failure to Request Severance of Izmir’s Case {¶ 66} Lastly, Izmir contends that his trial counsel was ineffective for failing to request that his case be severed and tried separately from his co-defendants’ cases. Specifically, Izmir argues that joinder was inappropriate because he did not have a weapon, but all of his co-defendants used weapons in the attack on Aydin. Initially, we note that the co-defendants, including Izmir, were originally
scheduled to be tried separately. Several months before Izmir’s trial was scheduled to begin, however, his counsel, along with Murad’s counsel, filed a joint motion requesting that their cases be tried together. The trial court granted the motion, and ultimately, Izmir, Murad, Sevil, and Kamil were tried together. Joinder is governed by R.C. 2945.13, which states in pertinent part:
When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court, for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, orders one or more of said defendants to be tried separately. The law favors joinder beсause a single trial conserves time and expense
and may minimize the potentially disparate outcomes that can result from successive
trials before different juries. State v. Schiebel ,
If it appears that a defendant or the state is prejudiced by a joinder of * * * defendants in an indictment, * * * or by such joinder for trial together of indictments, * * *, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. Upon review, Izmir has failed to establish that his counsel's failure to file a
motion to sever would have changed the outcome of the trial. The charges in all of the indictments involved Izmir and his co-defendants acting in concert with each other. It was undisputed that each of Izmir’s co-defendants used weapons while Izmir only kicked Aydin in the head and body. However, that fact standing alone did not prejudice Izmir or deny him a fair trial pursuant to Crim.R. 14. All of the same evidence and exhibits, including the Ameripro surveillance video, would have been introduced even if Izmir had been tried separately. Additionally, Aydin’s testimony would have been the same in separate trials as it was in the joint trial. We also note that, when it was discovered on the third day of trial that Izmir had been arrested by the FBI and would not be available for trial that day, the trial court suggested that Izmir’s case be continued so that the joint trial of the remaining co-defendants could proceed. Each of the defense attorneys, including Izmir’s, objected and explained to the trial court that the defense case had been “strategically organized” insofar that trying the co-defendants’ cases together was necessary for their success. Thus, it is apparent from the record that the decision of the defense attorneys to try the co-defendants’ case together was a tactical decision. Accordingly, we find that there is nothing in the record which establishes that joinder of the defendants' cases was prejudicial to Izmir, and his counsel was not ineffective for failing to request severance.
{¶ 71} Izmir’s fifth assignment of error is overruled.
{¶ 72} Izmir’s sixth assignment of error is as follows:
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON NON-DEADLY USE OF FORCE SELF DEFENSE, AND ASSAULT AND/OR AGGRAVATED ASSAULT.
{¶ 73} In his sixth assignment, Izmir argues that the trial court should have instructed the jury sua sponte on non-deadly use of force self-defense. Izmir also argues that the trial court should have instructed the jury on assault and/or aggravated assault, as lesser included offenses of felonious assault.
Non-Deadly Use of Force Self-Defense
We note that Izmir did not request an instruction on non-deadly use of force
self-defense at trial, so he waived thus issue, absent plain error. Hunter, 131 Ohio St.3d
67,
and must have affected the outcome of the trial. Payne,
certain circumstances, one may employ appropriate force to defend another individual
against an assault. However, ‘one who intervenes to help a stranger stands in the shoes
of the person whom he is aiding, and if the person aided is the one at fault, then the
intervenor is not justified in his use of force and is guilty of an assault.’ * * * Therefore,
one who claims the lawful right to act in defense of another must meet the criteria for the
affirmative defense of self-defense.” Wenger,
Assault Instruction We also note that Izmir did not request a jury instruction on the lesser included offense of misdemeanor assault or object to the jury instructions that were given by the trial court. Therefore, our review of his argument that an assault instruction should have been given is limited to a plain error analysis. An instruction on a lesser-included offense should only be given where the
evidence warrants it, and where “the evidence does not support a conviction on a lesser
included offense, it would be erroneous to instruct the jury thereon, as to do so would
confront the jury with the choice of reaching an unreasonable conclusion.” State v. Dover ,
2d Dist. Clark No. 2013-CA-58,
“The question of whether a particular offense should be submitted to the
finder of fact as a lesser included offense involves a two-tiered analysis.”
(Citation omitted) State v. Deanda ,
State v. Pullen , 2d Dist. Montgomery No. 25829,
be a lesser-included offense of felonious assault. State v. Fuller , 2d Dist. Montgomery
No. 20658,
provides that no person shall “knowingly cause serious physical harm to another or to another's unborn.” Pursuant to R.C. 2903.13, to prove a simple assault, the State must prove beyond a reasonable doubt that the defendant:
(A) knowingly caused or attempted to cause physical harm to another or to another's unborn, or
(B) recklessly caused serious physical harm to another or to another's unborn. The only difference between felonious assault under R.C. 2903.11(A)(1)
and misdemeanor assault under R.C. 2903.13(A) is whether the harm caused was serious physical harm , as opposed to non-serious physical harm . The difference between felonious assault under R.C. 2903.11(A)(1), and misdemeanоr assault under R.C. 2903.13(B) is the culpable mental state: for felonious assault the evidence must establish that the defendant acted knowingly, but for a simple assault the evidence need only prove that the defendant acted recklessly; both offenses require proof that the act caused serious physical harm. We conclude that the evidence presented at trial did not reasonably support
a conviction for assault under R.C. 2903.13(A) and an acquittal on the indicted charge of felonious assault. A conviction for assault under R.C. 2903.13(A) and an acquittal on the indicted charge of felonious assault would have required the jury to find that Izmir knowingly caused physical harm to Aydin but that his conduct did not knowingly cause serious physical harm to Aydin. “Serious physical harm” to a person is found when hospitalization is required or temporary incapacity is caused, as supported by the facts in the present case. R.C. 2901.01(A)(5). In the instant case, the parties stipulated that Aydin suffered serious physical harm after being attacked by Izmir and his co-defendants. Because of the stipulation, no jury could have reasonably found Izmir not guilty of causing serious physical harm, but guilty of causing physical harm. Significantly, even without the stipulation, the video recording admitted into
evidence depicted Izmir swinging his arm toward Aydin's head and kicking him repeatedly
in the head and body after he fell to the ground. Furthermore, while Izmir was attacking
Aydin, the other co-defendants were striking him with metal poles and metal batons.
Thus, we conclude that under these facts no reasonable trier of fact could have found
that Izmir did not knowingly cause serious physical harm. See State v. Underwood, 2d
Dist. Montgomery No. 26711,
R.C. 2903.13(B), we conclude, upon consideration of the evidence, including the video, that no reasonable jury could have fond that Izmir's infliction of serious physical harm was reckless, but not knowing. Therefore, on the facts in evidence in this case, we conclude that the trial court did not err by not giving an instruction on misdemeanor assault.
Aggravated Assault
“In State v. Deem , 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), the Ohio
Supreme Court held that aggravated assault is not a lesser-included offense of felonious
assault. Rather, aggravated assault is an “inferior-degree offense,” as it contains
elements which are identical to the elements defining felonious assault, except for the
additional mitigating element of serious provocation. Id . at 201-211. Thus, “in a trial for
felonious assault, where the defendant presents sufficient evidence of serious
provocation, an instruction on aggravated assault must be given to the jury.’ * * * ” Statе
v. Morrow , 2d Dist. Clark No. 2002-CA-37,
and his brother, Murad, when he attacked Aydin. Of the four co-defendants, only Murad
testified during trial. Murad’s only explanation for why he and the other co-defendants
continued to attack Aydin was that they wanted to disarm him, keep him from picking up
another weapon, and keep him from hurting anyone else. Simply put, the evidence
adduced at trial established, at best, that Izmir attacked Aydin in order to defend himself
and/or defend his co-defendants.
In State v. Harding , 2d Dist. Montgomery No. 24062,
stated the following:
When analyzing the subjective prong of the test, “[e]vidence
supporting the privilege of self-defense, i.e., that the defendant feared for
his own personal safety, does not constitute sudden passion or fit of rage.”
State v. Stewart , Franklin App. No. 10AP-526,
Id . at ¶ 43. Upon review, we conclude that the trial court was not required to instruct
the jury on aggravated assault. See State v. Hancock , 2d Dist. Montgomery No. 19434,
THE FAILURE TO APPLY IN THE INSTANT CASE THE RULE SET FORTH BY THE UNITED STATES SUPREME COURT IN GRIFFITH V. KY. , 479 U.S. 314 (1987) AND ITS PROGENY THAT NEW RULES OF CRIMINAL PROCEDURE MUST BE APPLIED RETROACTIVELY FOR ALL CASES UNDER DIRECT REVIEW AS IT APPLIES TO OHIO’S SHIFTING OF THE BURDEN OF PROOF FROM THE DEFENDANT TO THE STATE FOR THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE WOULD VIOLATE THE DUE PROCESS CLAUSES OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE CONSTITUTION FOR THE STATE OF OHIO. In his final assignment, Izmir contends that he is entitled to retroactive
application of the changes made by the legislature to Ohio’s self-defense statute, R.C. 2901.05, as a result of Am.Sub.H.B. 228 (“H.B. 228”), which was effective on March 28, 2019. At the time of Izmir’s trial in March 2018, the burden of proof with respect to a claim of self-defense lay with the defendant. H.B. 228 amended R.C. 2901.05(B)(1), switching the burden of proof to the State. The statute states in pertinent part:
(B)(1) A person is allowed to act in self-defense, defense of another, or defense of that person's residence. If, at the trial of a person who is accused of an offense that involved the person’s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, defense of another, or defense of that person's residence, the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense , defense of another, or defense of that person's residence, as the case may be. It is undisputed that H.B. 228 did not become effective until more than year
after Izmir’s trial was completed. Nevertheless, Izmir argues that he is entitled to
retroactive application of the benefit in the switch in burden of proof for claims of self-
defense resulting from H.B. 228. In support of his argument, Izmir relies on three cases
discussing circumstances wherein new rules for the conduct of criminal prosecutions
were applied retroactively to cases that were pending on direct review or not yet final.
The first case cited by Izmir is Griffith v. Kentucky ,
472,
constitutional rule, as in Griffith and Elmore . Rather, H.B. 228 effected a statutory
change regarding the manner in which the burden of proof in a self-defense claim is
regulated at trial. Simply рut, the instant case does not involve a constitutional issue.
“Simply because the General Assembly has shifted the burden of proof going forward
with evidence of an affirmative defense of self-defense, defense of another, or defense
of the accused’s residence/vehicle, it does not equate to finding the former statute
unconstitutional.” State v. Krug , 11th Dist. Lake No. 2018-L-056,
Cir.1980), wherein the Sixth Circuit held that the defendant was not precluded from
seeking federal habeas corpus relief in order to challenge the fact that the jury was not
properly instructed on who had the burden of proof in regard to proving or disproving a
claim of self-defense, based upon the law that existed at the time of the defendant’s
original trial. Id . at 1131-1133. Isaac did not address the issue in the instant case,
namely the application of statutory amendments retroactively. We also note that the
court’s decision in Isaac was reversed by the United States Supreme Court and is no
longer good law. Engle v. Isaac ,
. . . . . . . . . . . . .
FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Anthony R. Cicero
Hon. Mary Lynn Wiseman
Notes
[1] Izmir was indicted along with his brothers, Murad and Baris, and his cousins, Mustafa, Sobir, and Sevil. Kamil was indicted on July 20, 2016.