STATE OF OHIO, Plaintiff-Appellee -vs- ABULAY NIAN, Defendant-Appellant
Case No. 15CAA070052
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
July 25, 2016
2016-Ohio-5146
Hon. W. Scott Gwin, P.J.; Hon. Patricia A. Delaney, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 14 CR I 11 0522; JUDGMENT: AFFIRMED
For Plaintiff-Appellee:
CAROL HAMILTON O‘BRIEN DELAWARE CO. PROSECUTOR MARK C. SLEEPER 140 North Sandusky St. Delaware, OH 43015
For Defendant-Appellant:
DAVID E. STENSON Suite 316 131 North Ludlow Street Dayton, OH 45402
{¶1} Appellant Abulay Nian appeals from the June 16, 2015 Judgment Entry of Prison Sentence of the Delaware County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} At the time of these events, victim Jane Doe was 17 years old and lived with her Mother and two brothers in Delaware County, Ohio. To avoid disclosure of the identity of the sexual-assault victim and minor witnesses, the brothers will be referred to as John Doe and Richard Roe. John Doe is mentally disabled and requires the assistance of an “independent co-worker,” a home health aide who helps him with independent living skills. Richard Roe was age 15.
{¶3} On November 15, 2014, Mother, the three children, and appellant were in the home. Appellant had worked with the family for approximately two weeks as John Doe‘s home health aide. He was employed through an agency Mother found with the assistance of the Delaware County Disabilities Board. Appellant spent several hours with John Doe five days a week, helping him with chores and tasks of independent living such as laundry and cooking. During those two weeks, appellant and John Doe would often “hang out” in John Doe‘s bedroom, listening to music. Jane Doe and Richard Roe would join them in listening to music or in going to a park to play basketball.
{¶4} On this date, appellant came downstairs and exited the house to retrieve his time sheet from his car. Mother and Richard Roe were in the downstairs living room. Mother signed off on the time sheet. Appellant went back upstairs and Mother assumed he was saying goodbye to John Doe.
{¶6} Mother observed appellant leave the house. Richard Roe went upstairs and discovered his sister “curled up in a ball” crying in her bedroom. She was FaceTiming with a friend and testified she told the friend and her brother what happened and asked what she should do. Richard Roe said Mother had to be told. He and Jane Doe told Mother what happened and she called the Delaware County Sheriff‘s Department immediately. Mother also called the agency which employed appellant and left a message instructing the agency not to permit appellant to return to their home.
{¶7} A deputy came to the house, took a report, collected the clothes Jane Doe had been wearing, and instructed her to go to Nationwide Children‘s Hospital for a sexual assault examination. A rape kit was collected at the hospital and submitted to B.C.I for forensic analysis.
{¶8} A forensic biologist found amylase, a component of saliva, on the interior crotch of Jane Doe‘s leggings. A cutting from the area yielded a mixture of D.N.A.; Jane Doe was the major contributor and the comparison with appellant‘s D.N.A. was
{¶9} Appellant was charged by indictment with two counts of forcible rape pursuant to
{¶10} Appellant was found guilty upon Count II.
{¶11} On May 13, 2015, appellant filed a motion for new trial based upon jury misconduct. The motion was accompanied by an affidavit of a juror stating that during deliberations, another juror “introduced into the discussions facts about [appellant] being from Sierra Leone and having a prior record,” facts allegedly obtained from newspaper accounts of the trial. Appellee responded with a motion in opposition.
{¶12} The trial court overruled the motion for new trial on June 3, 2015 and the matter proceeded to sentencing on June 15, 2015. The trial court imposed a prison term of 5 years and determined appellant to be a Tier III sex offender.
{¶13} Appellant now appeals from the trial court‘s June 16, 2015 judgment entry of conviction and sentence.
{¶14} Appellant raises nine assignments of error:
ASSIGNMENTS OF ERROR
{¶15} “I. APPELLANT‘S CONVICTION IS AGAINST THE SUFFICIENCY OF THE EVIDENCE AS A MATTER OF LAW.”
{¶17} “III. PROSECUTORIAL MISCONDUCT DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶18} “IV. APPELLANT WAS DENIED DUE PROCESS OF LAW THROUGH THE TRIAL COURT‘S ERRONEOUS BELIEF THAT SENTENCING WAS MANDATORY.”
{¶19} “V. APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND IMPARTIAL PANEL OF JURORS AS GUARANTEED UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AS THE RESULT OF JURORS’ IMPROPER CONSIDERATION OF EXTRANEOUS INFORMATION AND THE TRIAL COURT‘S REFUSAL TO GRANT APPELLANT A NEW TRIAL.”
{¶20} “VI. TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION OF APPELLANT‘S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶21} “VII. THE COURT ERRED IN INSTRUCTING JURORS TO STRIKE INFORMATION THEY HAD HEARD FROM DEFENSE COUNSEL.”
{¶23} “IX. THE CUMULATIVE EFFECT OF THE FOREGOING ERRORS DENIED APPELLANT A FAIR TRIAL.”
ANALYSIS
I., II.
{¶24} Appellant‘s first and second assignments of error are related and will be considered together. Appellant argues his conviction upon one count of rape is against the manifest weight and sufficiency of the evidence. We disagree.
{¶25} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held, “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶26} Appellee argues appellant failed to preserve the issue of the sufficiency of the evidence because he did not make a motion for acquittal pursuant to
{¶27} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶28} Appellant was found guilty of one count of rape pursuant to
{¶29} Nonetheless, appellant argues the evidence of the act of cunnilingus as described by the victim at trial is insufficient to sustain his rape conviction because the conduct described does not rise to the level of “sexual conduct” pursuant to
{¶30} Appellant argues his rape conviction is against the manifest weight of the evidence because there is no evidence he intended to place his mouth on the victim‘s vagina and there is no evidence the act was committed for sexual pleasure. We note, however, the victim testified the act was committed after appellant had forcibly kissed her, pulled down her leggings, and held her in place with his hands “gripping” her thighs. It is well-established that the weight of the evidence and the credibility of the witnesses are
{¶31} Appellant further argues the physical evidence does not support his conviction, but as appellee points out, amylase, an enzyme found in the highest concentrations of saliva, was found on the inner crotch area of the leggings. A swab from the same surface contained appellant‘s D.N.A. While the forensic expert could not testify the amylase specifically came from appellant because amylase does not contain D.N.A., it is circumstantial evidence that supports the victim‘s testimony. We are mindful, moreover, that “[c]orroboration of victim testimony in rape cases is not required.” State v. Meeks, 5th Dist. No. 2014CA00017, 2015-Ohio-1527, 34 N.E.3d 382, ¶ 81, appeal not allowed, 143 Ohio St.3d 1543, 2015-Ohio-4633, 40 N.E.3d 1180, citing State v. Cuthbert, 5th Dist. Delaware No. 11CAA070065, 2012-Ohio-4472, 2012 WL 4474720, ¶ 28 and State v. Johnson, 112 Ohio St.3d 210–217, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 53.
{¶32} We find that this is not an “‘exceptional case in which the evidence weighs heavily against the conviction.‘” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175. The jury neither lost its way nor created a miscarriage of justice in convicting appellant upon one count of rape. Appellant‘s first and second assignments of error are overruled.
III.
{¶33} In his third assignment of error, appellant argues he was deprived of a fair trial by numerous instances of prosecutorial misconduct. We disagree.
{¶34} The test for prosecutorial misconduct is whether the prosecutor‘s remarks and comments were improper and if so, whether those remarks and comments
{¶35} Appellant cites a number of instances of alleged prosecutorial misconduct throughout the trial. We note appellant did not object to any of these comments at trial. If trial counsel fails to object to the alleged instances of prosecutorial misconduct, the alleged improprieties are waived, absent plain error. State v. White, 82 Ohio St.3d 16, 22, 1998–Ohio–363, 693 N.E.2d 772 (1998), citing State v. Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992).
{¶36} We therefore review appellant‘s allegations under the plain-error standard. Pursuant to
{¶37} Appellant asserts the prosecutor mischaracterized the victim‘s testimony in closing argument but we disagree. In closing argument, a prosecutor may comment on “what the evidence has shown and what reasonable inferences may be drawn therefrom.” State v. Young, 5th Dist. Richland No. 14CA25, 2015-Ohio-2075, ¶ 25, citing Lott, supra, 51 Ohio St.3d at 165. The summary of the victim‘s testimony cited here is a fair comment on the evidence.
{¶38} Appellant alleges the prosecutor “provided inaccurate sentencing information to the court,” to wit, that the rape conviction implicated a mandatory prison sentence pursuant to
{¶39} Appellant argues the prosecutor improperly impugned defense trial counsel but we disagree with the characterization of the statements. “Prosecutors are entitled to respond, fairly, to arguments of the defense.” State v. Young, supra at ¶ 30. The prosecutor did not impugn counsel.
{¶40} Appellant summarily argues the prosecutor committed several other acts of misconduct but upon our review of the record, we disagree that the statements were improper, much less that “absent the prosecutor‘s comments, the jury would not have found defendant guilty.” State v. Clay, 181 Ohio App.3d 563, 2009–Ohio–1235, 910 N.E.2d 14 at ¶ 49 (8th Dist.), citing State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984).
{¶41} Appellant has not demonstrated any improper conduct by the prosecutor, much less any that rises to the level of plain error. Appellant‘s third assignment of error is overruled.
IV.
{¶42} In his fourth assignment of error, appellant argues the trial court sentenced him under the incorrect belief that the mandatory provisions outlined in
{¶43} As we noted in our discussion of appellant‘s third assignment of error, the prosecutor advised the trial court that a prison term is mandatory upon any rape conviction pursuant to
{¶44} Appellant again argues the mandatory term does not apply in this case because the victim is not under the age of 13 and he was not indicted as a sexually-violent predator. These are not requirements to impose a mandatory prison term upon a rape conviction.
{¶45} Appellant‘s fourth assignment of error is overruled.
V.
{¶46} In his fifth assignment of error, appellant argues juror misconduct required the trial court to grant appellant‘s motion for new trial. We disagree.
{¶47} The analysis of a case involving alleged juror misconduct requires a two-tier inquiry. First, it must be determined whether there was juror misconduct. Second, if juror misconduct is found, it must then be determined whether the misconduct materially affected appellant‘s substantial rights. State v. Meeks, supra, 2015-Ohio-1527 at ¶ 115, citing State v. Taylor, 73 Ohio App.3d 827, 833, 598 N.E.2d 818 (4th Dist.1991).
{¶48} The hearing in this case was conducted pursuant to
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon that or any other juror‘s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror‘s mental processes in connection therewith. A juror may testify
on the question whether extraneous prejudicial information was improperly brought to the jury‘s attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented. * * * *.
{¶49} The trial court‘s decision that no juror misconduct occurred, and subsequent denial of a new trial, is not an abuse of discretion. In cases involving outside influences on jurors, trial courts are granted broad discretion in dealing with the contact and determining whether to declare a mistrial or to replace an affected juror. Id. at ¶ 117, citing State v. Phillips, 74 Ohio St.3d 72, 89, 656 N.E.2d 643, 661 (1995), and United States v. Daniels, 528 F.2d 705, 709–710 (C.A.6, 1976); United States v. Williams, 822 F.2d 1174, 1189 (C.A.D.C.1987); Annotation, 3 A.L.R.5th 963, 971, Section 2 (1992). A trial judge‘s determination of possible juror bias should be given great deference only upon the appellate court‘s satisfaction that the trial judge exercised sound discretion in determining whether juror bias existed and whether it could be cured. Id., citing State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d 243, ¶ 29. We are satisfied the trial court exercised sound discretion.
{¶50} Appellant failed to produce sufficient evidence of improper outside influence upon the jury. The existence of a newspaper article about the case is not sufficient evidence that an act of juror misconduct occurred.
{¶51} Appellant‘s fifth assignment of error is overruled.
VI.
{¶53} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong test. Initially, a defendant must show that trial counsel acted incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).
{¶54} “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the wide range of professionally competent assistance.” Id. at 690.
{¶55} Even if a defendant shows that counsel was incompetent, the defendant must then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong, the defendant must show that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
{¶56} First, appellant cites defense trial counsel‘s failure to object to the mandatory prison term. As we addressed supra, appellant‘s prison term is mandatory.
{¶57} Next, appellant cites defense trial counsel‘s comments in voir dire and opening statement about appellant‘s status as an immigrant and his understanding of
{¶58} Finally, appellant cites multiple failures to object without stating what the basis for objection might have been. None of the cited examples are necessarily objectionable and trial counsel‘s decision to ignore them may be reasonably attributed to trial strategy. Trial strategy and even debatable trial tactics do not establish ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. Strategic choices made after substantial investigation “will seldom if ever” be found wanting. Strickland, supra, 466 U.S. at 681. Moreover, the failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel. State v. Crawford, 5th Dist. No. 07 CA 116, 2008-Ohio-6260, 2008 WL 5077638, ¶ 72, appeal not allowed, 123 Ohio St.3d 1474, 2009-Ohio-5704, 915 N.E.2d 1255, citing State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999). Ultimately we find no reasonable probability the outcome of the trial would have been different had such objections been raised. See, State v. Graber, 5th Dist. No. 2002CA00014, 2003-Ohio-137, 2003 WL 124283, ¶ 154, appeal not allowed, 101 Ohio St.3d 1466, 2004-Ohio-819, 804 N.E.2d 40.
{¶59} Appellant‘s sixth assignment of error is overruled.
VII.
{¶61} In opening statement, defense trial counsel stated appellant came to the U.S. from Sierra Leone. Further, in reference to texts between appellant and the victim after the rape, defense trial counsel stated appellant understood the victim referred to a “hug,” prompting him to apologize, and he did not realize she alleged rape. When these comments were not supported by any evidence at trial, the trial court properly instructed the jury to disregard.
{¶62} “[A] court‘s instructions to the jury should be addressed to the actual issues in the case as posited by the evidence and the pleadings.” State v. Farringer, 5th Dist. Fairfield No. 14-CA-43, 2015-Ohio-2644, ¶ 19, appeal not allowed, 144 Ohio St.3d 1440, 2015-Ohio-5468, 43 N.E.3d 451, citing State v. Guster, 66 Ohio St.2d 266, 271, 421 N.E.2d 157 (1981). A trial court does not abuse its discretion when it instructs the jury to disregard an issue raised by a defendant in opening statement when no evidence in support is presented at trial. State v. Johnson, 11th Dist. Ashtabula No. 2001-A-0043, 2002-Ohio-6570, ¶ 27.
{¶63} Appellant‘s seventh assignment of error is overruled.
VIII.
{¶64} In his eighth assignment of error, appellant summarily argues the trial court erred in allegedly making a conclusory statement regarding appellant‘s guilt during jury instructions. We disagree.
{¶66} Appellant‘s eighth assignment of error is overruled.
IX.
{¶67} In his ninth assignment of error, appellant claims the effect of cumulative errors in the jury trial deprived him of a fair trial. We disagree.
{¶68} In State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the Ohio Supreme Court held pursuant to the cumulative error doctrine “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal.”
{¶69} In the instant case, we do not find multiple instances of harmless error triggering the cumulative error doctrine, and appellant‘s ninth assignment of error is therefore overruled.
{¶70} Appellant‘s nine assignments of error are overruled and the judgment of the Delaware County Court of Common Pleas is affirmed.
By: Delaney, J. and Gwin, P.J. Baldwin, J., concur.