STATE OF OHIO v. SHUAIB A. HAJI MOHAMED
Nos. 102398 and 103602
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 17, 2016
2016-Ohio-1116
Stewart, P.J., Boyle, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-14-585924-A
RELEASED AND JOURNALIZED: March 17, 2016
Marcus S. Sidoti
Jordan & Sidoti, L.L.P.
50 Public Square, Suite 1900
Cleveland, OH 44113
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Kelly N. Mason
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} A jury found defendant-appellant Shuaib Haji Mohamed guilty of gross sexual imposition, attempted gross sexual imposition, two counts of kidnapping, and one count of attempted rape. The basis for the convictions was that Mohamed, a cab driver, sexually assaulted one of his fares. The eight assignments of error in this appeal fall under four categories: speedy trial, the admission of evidence, the sufficiency and weight of the evidence, and sentencing.
I. Speedy Trial Issues
{¶2} Because it is potentially dispositive, we begin with Mohamed‘s seventh assignment of error in which he complains that he was denied both his statutory and constitutional speedy trial rights.
{¶3}
{¶5} In response to the state‘s tolling argument, defense counsel said that a number of “requests” for continuances were incorrectly docketed as defense requests. When asked to specify which continuances were not granted at Mohamed‘s request, defense counsel replied, “[r]eally, anything past the second pretrial, I would suggest.” When the court asked again which of the continuances were not requested by the defense, counsel replied, “[y]our Honor, I apologize. I would have to go through the docket. I would have to research the issue as to the docketing and the case law * * *.” Although not convinced of Mohamed‘s argument, the court allowed him to file a brief in support of the speedy trial claim. When that brief was filed, it contained no more specificity than did defense counsel‘s argument in open court — it simply said that certain unidentified continuances were wrongly charged to the defendant and claimed that this was a common occurrence in the court of common pleas. The court denied the motion to dismiss.
{¶7} Mohamed‘s argument that the court denied him his constitutional right to a speedy trial is likewise without merit.
{¶8} In addition to the statutory speedy trial right provided in
II. Sufficiency and Weight of the Evidence
{¶10} Mohamed‘s fifth and sixth assignments of error contest the sufficiency and weight of the evidence.
{¶11} The Due Process Clause of the
{¶13} The victim rode in the passenger seat of the taxi. They went to a gas station where the victim was able to use a telephone, activate the new card, and make a cash withdrawal from an automatic teller machine. At this point, the victim discovered that she forgot to bring the keys to her apartment. Being locked out of her apartment, she used Mohamed‘s cell phone to call her former boyfriend. When there was no answer, Mohamed began driving her to the former boyfriend‘s house. En route, he began making comments of a sexual nature to the victim, then grabbed her breasts and thighs. At one point, he pulled the taxi over on the interstate highway, exposed his penis, and attempted to force the victim‘s head on it. All the time, the victim was surreptitiously trying to call the former boyfriend using Mohamed‘s cell phone. With his sexual advances denied, Mohamed drove the victim to the former boyfriend‘s house. The victim exited the car and memorized the taxi‘s license plate number before screaming for assistance. The former boyfriend heard the screams for help and came outside, yelling at Mohamed. Mohamed sped away.
{¶15} Although Mohamed argues that the state failed to prove both the gross sexual imposition and attempted gross sexual imposition counts, his appellate brief addresses only the gross sexual imposition charge contained in Count 2 of the indictment. That count charged Mohamed with grabbing the victim‘s breasts and vaginal area. Mohamed argues that the state failed to prove that he committed gross sexual imposition because there was no evidence to show that he touched the victim under her clothes.
{¶16}
{¶17} The offense of gross sexual imposition does not require skin-to-skin contact. State v. Young, 4th Dist. Athens No. 96CA1780, 1997 Ohio App. LEXIS 3882 (Aug. 15, 1997) (holding that touching a victim‘s buttock through her clothing constituted sexual contact); In re A.L., 12th Dist. Butler No. CA2005-12-520, 2006-Ohio-4329, fn. 1. Testimony that Mohamed grabbed the victim‘s breasts and thighs was sufficient to establish the offense of gross sexual imposition regardless of whether he did so over her clothing.
{¶19} Count 3 charged kidnapping in violation of
{¶20} A rational trier of fact could have found that Mohamed lied to the victim when he told her that her credit card had been denied, for the purpose of making her remain in his company. The day after the offenses were committed, the victim called her credit card issuer and learned that, not only did it not reject the credit card, it had no record of the victim‘s credit card having been charged by Mohamed. For purposes of
{¶21} Mohamed next argues that the jury‘s verdict was against the manifest weight of the evidence. He maintains that the victim‘s testimony was “confused and in conflict with her prior statement” to the police, a contradiction that he attributes to her intoxication.
{¶23} Mohamed‘s contention that the victim was intoxicated does not accurately reflect the evidence. While it is true that the victim consumed several drinks during the night out with her friend and there was some concern about driving after drinking, she also testified that they were forced to take a taxi home from their night out because they could not find her car. The victim did not testify that her inability to find the car was the result of her being intoxicated, but rather an unfamiliarity with the area where they parked the car.
{¶25} But other evidence supported the victim‘s credibility. The victim‘s identification of Mohamed was not an issue because the police found her cell phone in Mohamed‘s cab the day after the incident. While there would be no expectation of physical evidence to prove the crime of gross sexual imposition as alleged by the victim, the jury could find the victim‘s version of events credible given her emotional state at the time she first reported Mohamed‘s actions. The former boyfriend described the victim as “panicky, distraught, scared” when she appeared at his house. A recording of the 911 call corroborated the victim‘s emotional state as it recorded the victim crying in the background. And the transcript shows that the victim was apparently quite emotional during her cross-examination as defense counsel asked the victim if she needed a break. The jurors no doubt placed great emphasis on these factors. When a defendant raises credibility issues, we defer to the trier of fact because it is in the better position to view the witnesses and observe their demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Mohamed has not convinced us that this is the very rare case where his conviction was manifestly against the weight of the evidence.
{¶26} The first assignment of error complains that Mohamed was denied a fair trial because the state failed to produce the victim‘s recorded statement to the police until one week before trial and the DVD copy defense counsel received was defective and unplayable. Mohamed claimed a discovery violation and asked the court to dismiss the indictment as a sanction, but the court denied the motion.
{¶27} Although Mohamed characterizes the state‘s actions as a discovery violation, we find that no violation occurred. Defense counsel was in receipt of the DVD on the day that jury selection commenced, but did not actually attempt to view the DVD for days. By the state‘s own reckoning, it had for several months tried to give the DVD to defense counsel at pretrials, but defense counsel did not show up for those pretrials. And rather than immediately inform the state that he received an unplayable DVD, defense counsel waited until just before the start of the victim‘s testimony to inform the state. It has been said that the definition of chutzpah is being convicted of killing one‘s parents and pleading for mercy on the grounds of being an orphan. The legal analog to this is the invited error doctrine, which says that a party cannot take advantage of an error that he invited or induced. State v. Smith, 148 Ohio App.3d 274, 2002-Ohio-3114, 772 N.E.2d 1225, ¶ 30 (8th Dist.). It was pure chutzpah here for defense counsel to seek dismissal of the indictment as a sanction for the alleged discovery violation when he failed to make himself available to receive the DVD and then failed to view it in a timely manner.
IV. Ineffective Assistance of Counsel
{¶29} The second assignment of error complains that trial counsel was ineffective for failing to make adequate trial preparations and failing to request a jury instruction that Mohamed released the victim unharmed in a safe place.
{¶30} A defendant claiming ineffective assistance of counsel bears the burden of establishing two elements: (1) that trial counsel‘s performance fell below objective standards for reasonably effective representation, and (2) that counsel‘s deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶32} To satisfy the second Strickland element, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, the result of the proceedings would have been different. Id. at 694. A “reasonable probability” is defined as one that is “sufficient to undermine confidence in an outcome.” Id. at 694.
{¶33} We summarily overrule Mohamed‘s arguments that trial counsel was ineffective for failing to view the DVD prior to trial. While Mohamed can make the case that effective trial counsel would have viewed the DVD at an earlier point in time, he cannot show that counsel‘s error prejudiced him. As we noted, the court allowed Mohamed to play the entire DVD without recalling the victim to allow her to explain any inconsistencies.
{¶34} Mohamed next argues that trial counsel was ineffective for failing to request a jury instruction on whether he released the victim unharmed and in a safe place relative to the kidnapping charge in Count 5 of the indictment.
{¶36} Mohamed was found guilty of attempted rape and gross sexual imposition. Unlike a rape where the harm caused to a victim is obvious, the facts of this case do not demonstrate that Mohamed harmed the victim when committing his offenses. And to the extent that the victim suffered psychological effects from Mohamed‘s offenses, appellate courts have found that psychological harm “is not considered” for purposes of the statutory analysis. State v. Wright, 2013-Ohio-1424, 990 N.E.2d 615, ¶ 21 (7th Dist.), citing State v. Henderson, 10th Dist. Franklin No. 85AP-830, 1986 Ohio App. LEXIS 6317 (Apr. 8, 1986). These cases do not espouse the view that a crime victim‘s psychological harm is insignificant or not a harm at all: a view we also do not hold. But the cases recognize that the statute encourages the safe release of a victim while still holding the offender responsible for the kidnapping. Arguably all victims of crime are harmed in some fashion, but to apply the statute from that perspective renders the statute meaningless.
V. Other Acts Evidence
{¶38} The third assignment of error complains that the court erred by denying a motion in limine and allowing the state to introduce evidence that Mohamed smoked marijuana while driving his taxi, that the victim learned from her credit card company that her credit card had not been rejected contrary to what Mohamed told her, and that an unknown person tried to redeem a gift card that fell out of the victim‘s purse. Mohamed claims the state used this evidence in violation of
{¶39}
{¶41} Testimony by the victim that she called her credit card company and learned that the credit card had not been rejected was not used as other acts evidence, but to show that Mohamed intentionally lied about the rejection of the credit card in order to perpetuate the encounter with the victim. As such, it was relevant to proving his intent to restrain her liberty, an essential element of kidnapping.
{¶42} Mohamed next complains about testimony concerning a gift card that the victim lost in the taxi when the contents of her purse spilled out. Before trial, Mohamed sought an order prohibiting any mention of the gift card because it appeared that the person who unsuccessfully attempted to redeem the gift card may have purchased it from Mohamed‘s wife. There was no mention of the gift card during the victim‘s direct examination by the state. However, on cross-examination defense counsel asked her if she had any further contact with the police after reporting the sexual assault. The victim replied that she did when she realized that her gift card was missing. On redirect examination, the state inquired about the gift card and the victim testified that she only discovered that her gift card was missing when she went to buy a new cell phone using the gift card and discovered it missing from her purse.
{¶44} Finally, we reject the claim made in Mohamed‘s fourth assignment of error that the police detective improperly bolstered the victim‘s credibility. The detective testified that he told the victim to “be honest and tell me everything that happened, and that‘s what she did.” Mohamed argues that this improperly vouched for the victim‘s credibility. However, it is plain in context that the phrase “that‘s what she did” referred to telling her version of events, not the detective‘s opinion that the victim was honest in doing so. The court did not abuse its discretion by allowing the detective‘s statement into evidence.
VI. Consecutive Sentences
{¶45} After merging a number of the counts, the court sentenced Mohamed to ten years on the kidnapping and five years on the attempted rape, to run consecutively. Mohamed concedes that the court made the required findings in support of consecutive sentences, but argues that the findings are not supported by the record.
{¶46} We agree with Mohamed that the record does not support the court‘s finding that his “history of criminal conduct” demonstrates that consecutive sentences are necessary to protect the public from future crime committed by him. But because Mohamed‘s conviction for attempted rape was ordered to be served consecutively to the kidnapping conviction that we have reversed, this assigned error is now moot for purposes of this appeal.
It is ordered that appellee and appellant share the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN PART AND DISSENTS IN PART (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶48} I concur with the majority‘s decision with respect to the assigned errors deemed moot or affirmed, but must respectfully dissent from the majority‘s decision to reverse the kidnapping conviction based on the failure to instruct the jury on
{¶49} The phrase “releases the victim in a safe place unharmed” has not been statutorily defined. Instead, we have concluded that in instructing the jury, the phrase should be given its
{¶50} This plain and ordinary meaning is supported by the legislature‘s definition of “physical harm.” Had the legislature contemplated limiting “unharmed” to physical injuries alone, it would have either modified the term accordingly (physically unharmed) or defined “harm” as being a physical injury alone.
{¶51} The majority‘s analysis compounds the error in this district‘s shift from the plain and ordinary meaning of “unharmed” to our reliance on an unsupported, summarily stated conclusion by the Seventh District that psychological harm is not considered for the purposes of
{¶53} Undermining the Seventh District‘s conclusion, the Tenth District has issued decisions contrary to the Seventh District‘s broadly stated conclusion in Wright. In State v. Rodgers, 10th Dist. Franklin No. 98AP-790, 1999 Ohio App. LEXIS 1139, *4 (Mar. 16, 1999), the panel alluded to the fact that psychological harm may be enough to decline the mitigating instruction. See also State v. Reid, 10th Dist. Franklin No. 90AP-378, 1990 Ohio App. LEXIS 5218, *6 (Nov. 27, 1990) (attempting to rape a victim at gunpoint negates the need for the “releasing a victim in a safe place unharmed” jury instruction). Neither of those cases was considered by the Seventh District or the panels following Wright in this district.
{¶54} Mohamed kidnapped the victim by luring her back into the taxi and then sexually assaulted her. She was hardly released “unharmed” after Mohamed had already perpetrated the crimes. Offenders cannot terrorize their victims and then receive the benefit of a reduced