STATE OF OHIO, PLAINTIFF-APPELLEE, v. MOHAMED NUREIN, DEFENDANT-APPELLANT.
CASE NO. 14-21-18
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
May 23, 2022
[Cite as State v. Nurein, 2022-Ohio-1711.]
Appeal from Union County Common Pleas Court Trial Court No. 2021-CR-0041 Judgment Affirmed
Charles A. Koenig for Appellant
Samantha Hobbs for Appellee
MILLER, J.
{¶1} Defendant-appellant, Mohamed Nurein, appeals the June 30, 2021 judgment of sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm.
I. Background
{¶2} Shortly after 8:00 a.m. on the morning of February 13, 2021, the Union County Sheriff’s Office received a 911 call reporting gunshots at an apartment complex on Meadows Drive in Marysville. The caller reported that a short, slender Black male dressed in a blue shirt, black pants, and a black hat had fired a gun into one of the apartments. The caller further stated that the man had driven away in a white SUV, but that the white SUV had returned and was parked outside of the apartments.
{¶3} Responding to the 911 call, law enforcement officers located a white SUV that matched the caller’s description. The vehicle was occupied by one man, who generally matched the caller’s description of the shooter. Law enforcement officers ordered the man to exit the vehicle, and after about 30 seconds, he complied. The man was taken into custody and identified as Nurein.
{¶4} Once in custody, Nurein informed the officers that there was a handgun in the center console of the white SUV. The officers entered the vehicle, located a Century Arms 9 mm handgun in the center console as described by Nurein, and
{¶5} Nurein was then placed in the backseat of a police cruiser. There, Nurein was told that he would be taken to the police station where his hands would be swabbed to test for the presence of gunshot residue. Toward the end of the officer’s explanation, Nurein licked and rubbed his hands together. In spite of Nurein’s actions, samples from Nurein’s hands were preserved for later testing.
{¶6} Meanwhile, law enforcement officers went about establishing which apartment had been the target of the shooting. Eventually, officers located an apartment with three apparent exterior bullet holes. In one place, a bullet appeared to have passed through the soffit and roof. In another, a bullet appeared to have penetrated the exterior wall of a second-story room. Finally, a bullet appeared to have struck the apartment’s front door near the deadbolt lock. Officers established contact with the residents of the apartment and learned that the apartment was occupied by Nurein’s ex-wife, Zahra, and two of Nurein’s children, including his son, K.A. Officers further learned that Zahra and the two children had been inside of the apartment at the time of the shooting and that Zahra was the registered owner of the white SUV in which Nurein was located.
{¶8} This evidence was subsequently analyzed. The spent shell casing collected from outside of Zahra’s apartment was found to have the same markings as the two live 9 mm rounds found in and around the white SUV. Furthermore, ballistics testing established that the handgun taken from the white SUV was the weapon that fired the cartridge found outside of Zahra’s apartment as well as the bullet and bullet fragment obtained from within Zahra’s apartment. Finally, the sample taken from Nurein’s hands tested positive for the presence of gunshot residue.
{¶9} On March 9, 2021, the Union County Grand Jury returned an indictment charging Nurein as follows:
- Count One of felonious assault in violation of
R.C. 2903.11(A) , a second-degree felony, with an accompanying firearm specification pursuant toR.C. 2941.145(A) and a forfeiture specification pursuant toR.C. 2941.1417(A) ; - Count Two of endangering children in violation of
R.C. 2919.22(A) , a first-degree misdemeanor; Count Three of endangering children in violation of R.C. 2919.22(A) , a first-degree misdemeanor;- Count Four of improperly discharging a firearm at or into a habitation or school safety zone in violation of
R.C. 2923.161(A)(1) , a second-degree felony, with an accompanying firearm specification pursuant toR.C. 2941.145(A) and a forfeiture specification pursuant toR.C. 2941.1417(A) ; - Count Five of improperly discharging a firearm at or into a habitation or school safety zone in violation of
R.C. 2923.161(A)(1) , a second-degree felony, with an accompanying firearm specification pursuant toR.C. 2941.145(A) and a forfeiture specification pursuant toR.C. 2941.1417(A) ; - Count Six of attempted aggravated burglary in violation of
R.C. 2923.02 and2911.11(A)(2) , a second-degree felony, with an accompanying firearm specification pursuant toR.C. 2941.145(A) and a forfeiture specification pursuant toR.C. 2941.1417(A) ; - Count Seven of attempted trespass in a habitation in violation of
R.C. 2923.02 and2911.12(B) , a fifth-degree felony, with an accompanying firearm specification pursuant toR.C. 2941.145(A) and a forfeiture specification pursuant toR.C. 2941.1417(A) ; - Count Eight of tampering with evidence in violation of
R.C. 2921.12(A)(1) , a third-degree felony; and - Count Nine of aggravated menacing in violation of
R.C. 2903.21(A) , a fifth-degree felony.1
On March 12, 2021, Nurein appeared for arraignment and pleaded not guilty to the counts and specifications of the indictment.
{¶11} On April 29, 2021, the State filed a motion requesting that the trial court call Zahra as a court’s witness under
{¶12} A jury trial commenced on May 10, 2021. On May 11, 2021, the jury found Nurein guilty of all the counts and firearm specifications charged in the superseding indictment. The trial court accepted the jury’s verdicts and continued the matter for the preparation of a presentence investigation report.
{¶13} The matter proceeded to sentencing on June 30, 2021. At the sentencing hearing, the trial court determined that Counts Six and Seven would merge for purposes of sentencing. The State elected to have the trial court sentence Nurein on Count Six. In all, for Counts One through Six and Counts Eight through Ten, the trial court sentenced Nurein to a minimum term of 15 years and 3 months in prison, 12 years of which is mandatory, and a maximum term of 18 years and 3 months in prison. Finally, the trial court ordered forfeiture of Nurein’s handgun,
II. Assignments of Error
{¶14} On July 21, 2021, Nurein timely filed a notice of appeal. He raises the following six assignments of error for our review:
- The verdicts of the jury finding the appellant guilty of violating
R.C. 2903.11 ,2919.22 ,2923.161 ,2911.11 and2911.12 , Counts 1 through 7, were contrary to the manifest weight of the evidence. - The evidence adduced at trial is insufficient as a matter of law to support appellant’s convictions on Counts 6 and 7, attempted aggravated burglary and attempted trespass into a habitation.
- Appellant was deprived of his constitutional right to due process in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, when the trial court called the victim as a court witness, pursuant to
Evid.R. 614 . - Appellant was deprived of his constitutional rights to due process and to confront his accusers in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, as a consequence of the trial court admitting hearsay testimony of a recorded statement by appellant’s minor son under
Evid.R. 803(5) as a past recollection recorded. - Appellant was deprived of his constitutional rights to due process in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, as a consequence of the court denying him a meaningful opportunity to present a complete defense.
Appellant was deprived of his constitutional rights to due process in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, as a consequence of ineffective assistance of counsel.
For ease of discussion, we elect to address the assignments of error out of the order they were presented.
III. Discussion
A. Third Assignment of Error: Did the trial court abuse its discretion by calling Zahra as a court’s witness pursuant to Evid.R. 614 ?
{¶15} In his third assignment of error, Nurein argues that the trial court abused its discretion by calling Zahra as a court’s witness. Nurein maintains that it was inappropriate to call Zahra as a court’s witness because there was no indication that Zahra was going to testify in a manner inconsistent with her earlier statements to law enforcement officers. Nurein contends that the State simply did not like Zahra’s anticipated testimony that he was not the shooter and that the State’s request that Zahra be called as a court’s witness was a subterfuge intended to permit the State to cross-examine what should have been its own witness.
i. Applicable Law & Standard of Review
{¶16} Under
{¶17} The decision whether to call a witness as a court’s witness under
ii. The trial court did not abuse its discretion by calling Zahra as a court’s witness.
{¶18} Nurein argues that it is appropriate to utilize
{¶19} Notwithstanding Nurein’s arguments, this case presented a textbook occasion for application of
{¶20} At a pretrial hearing on the State’s request, the State further explained that “despite [the] court’s order not to have contact with [Zahra], [Nurein] has had multiple contacts with her including a phone call where she was crying and screaming.” (May 5, 2021 Tr. at 4). The State indicated that there had been 189 phone calls between Zahra and Nurein. Moreover, although the State acknowledged that Zahra committed to attend Nurein’s trial, the State represented that she had been reluctant and not “cooperative in terms of trial preparation or with law enforcement.” (May 5, 2021 Tr. at 5).
{¶21} Based on the State’s submissions, it is clear that Zahra, whose testimony was essential to the proper determination of the case, was partial in favor of Nurein. See Renner, 2013-Ohio-5463, at ¶ 23. Zahra is Nurein’s ex-wife and the mother of two of Nurein’s children, and she remained in frequent (and forbidden) contact with Nurein throughout the months leading up to trial. Furthermore, Zahra willingly communicated with Nurein’s defense counsel, and in fact appeared to regard Nurein’s defense counsel as her own attorney, while simultaneously rejecting the State’s offers to talk to her and K.A. Under these circumstances, it was not an abuse of discretion for the trial court to call Zahra as a court’s witness under
{¶22} Nurein’s third assignment of error is overruled.
B. Fourth Assignment of Error: Did the trial court err by admitting video footage of K.A.’s statements to police?
{¶23} In his fourth assignment of error, Nurein argues that the trial court erred by admitting a police body camera video recording of statements K.A. made to law enforcement officers who responded to the shooting. In this video, K.A. tells Zahra to “tell the truth,” identifies the shooter as Zahra’s “old husband,” “Mohamed,” and states that “Mohamed” had banged on the apartment door. Nurein contends that this video was admitted in violation of his constitutional right to confront his accusers and that it also constituted inadmissible hearsay.
i. Applicable Law & Standard of Review
{¶24} “The Confrontation Clause to the Sixth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment,
{¶25} “Only testimonial hearsay implicates the Confrontation Clause.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 185. “‘[T]estimonial statements are those made for “a primary purpose of creating an out-of-court substitute for trial testimony.”’” Id., quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011). Statements qualify as testimonial if they have a “primary purpose” of “establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). The Confrontation Clause prohibits admission of testimonial hearsay statements made by a witness who does not appear at trial “unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness.” Maxwell at ¶ 34, citing Crawford at 53-54.
{¶27} In this case, K.A. testified but could not remember the statements he made to law enforcement officers on the morning of the shooting. As a result, the State sought to introduce the video recording of K.A.’s statements as a recorded recollection.
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
{¶28} Nurein did not object to the admission of K.A.’s recorded statement either as a violation of his rights under the Confrontation Clause or as a violation of
ii. The trial court did not commit plain error by admitting the video footage of K.A.’s statements to police.
{¶29} In this case, we need not decide whether the video recording was properly admitted under
{¶31} First, while Nurein is correct that none of the other witnesses identified him in the courtroom as the shooter, there was testimony at least indirectly identifying him. Joe Stone, the 911 caller, and his sister, Brenda Stone, each testified that they were outside smoking cigarettes when they witnessed a man discharge a firearm into one of the apartments. (May 10, 2021 Tr., Vol. II, at 46-47, 51, 64-66, 69). Joe and Brenda each described the shooter in similar terms—a Black male, between 5’7” and 5’9”, wearing blue and black clothing. (May 10, 2021 Tr., Vol. II, at 49, 53, 65). Although Joe stated that he did not see the man law enforcement officers arrested when they arrived at the apartment complex, Brenda testified that she did see the arrestee and that the arrestee was the person she had seen shoot the gun into the apartment. (May 10, 2021 Tr., Vol. II, at 49, 67-68).
{¶32} Furthermore, Nurein’s conduct after he was detained served as further proof that he was the shooter. At trial, the State presented a video recording depicting Nurein in the backseat of the police vehicle shortly after he was detained. In the video, an officer informs Nurein that he will be taken to the police station where his hands will be swabbed to test for the presence of gunshot residue. (State’s Ex. 70). Nurein can then be seen licking the palm of his left hand and rubbing his hands together for approximately five seconds. (State’s Ex. 70). Apart from being the basis for his tampering-with-evidence charge, efforts like Nurein’s to “‘alter or destroy evidence * * * can serve as admissions by conduct of a consciousness of guilt’” and thus of guilt itself. State v. Brodbeck, 10th Dist. Franklin No. 08AP-134, 2008-Ohio-6961, ¶ 48, quoting State v. Brown, 8th Dist. Cuyahoga No. 52593, 1988 WL 86965, *3 (July 28, 1988); Brodbeck at ¶ 44.
{¶33} Finally, substantial physical evidence points to Nurein being the shooter. The evidence at trial showed that Nurein was taken into custody immediately after exiting Zahra’s white SUV, and no evidence was presented suggesting that anyone other than Nurein had been inside of the vehicle in the minutes preceding Nurein’s arrest. Moments after Nurein was detained, a 9 mm
{¶34} In light of the totality of the evidence in the record, we cannot conclude that the outcome of Nurein’s trial clearly would have been different had K.A.’s recorded statements not been admitted as evidence. At trial, Brenda effectively identified Nurein as the shooter, and evidence was presented showing that in the moments following his arrest, Nurein acted in a manner suggesting his awareness of his guilt. Furthermore, the evidence indicated that the bullet holes observed on
{¶35} Nurein’s fourth assignment of error is overruled.
C. Fifth Assignment of Error: Did the trial court unconstitutionally deprive Nurein of a meaningful opportunity to present a complete defense?
{¶36} In his fifth assignment of error, Nurein argues the trial court violated his constitutional rights by preventing him from presenting a complete defense. Specifically, Nurein claims the trial court prohibited him from pursuing lines of cross-examination that would have demonstrated that an alternative suspect, Zahra’s ex-boyfriend, Riyann, had violently confronted Zahra in the past and had possibly done so again.
i. Applicable Law
{¶37} As the Supreme Court of Ohio has explained:
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986), quoting California v. Trombetta, 467 U.S. 479, 485 (1984). However, “[a] defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restriction.” United States v. Scheffer, 523 U.S. 303, 308 (1998).
And states have a legitimate interest in ensuring that triers of fact are presented with reliable evidence and have “broad latitude under the Constitution to establish rules excluding evidence from criminal trials” to further that goal. Scheffer at 308, 309. Such “rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve’” and if they do not “infringe[] upon a weighty interest of the accused.” Id. at 308, quoting Rock v. Arkansas, 483 U.S. 44, 56, 58 (1987).
State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, ¶ 59.
{¶38} “‘A complete defense’ may include evidence of third-party guilt.” State v. Gillispie, 2d Dist. Montgomery Nos. 22877 and 22912, 2009-Ohio-3640, ¶ 120, citing Holmes v. South Carolina, 547 U.S. 319 (2006). But in making such a defense, the accused “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Thus, “criminal defendants do not necessarily have a right to present all evidence of third-party guilt.” (Emphasis sic.) State v. Jones, 2d Dist. Montgomery No. 27354, 2018-Ohio-2332, ¶ 33.
{¶39} “[I]t is widely accepted that evidence introduced to prove that another person may have committed the crime with which the defendant is charged ‘“may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove
ii. Nurein was not deprived of his right to present a complete defense.
{¶40} Nurein identifies two instances in which the trial court purportedly limited his cross-examination of witnesses in a way that deprived him of the opportunity to fully present his third-party-guilt defense. The first occurred while his trial counsel was cross-examining Zahra:
[Nurein’s Counsel]: Do you know – did you date a man named Riyann?
[Zahra]: Yes.
* * *
[Nurein’s Counsel]: Did you have problems with Riyann?
[Zahra]: Yeah.
[Nurein’s Counsel]: Okay, what kind of problems with Riyann?
[Prosecutor]: Object to the relevance, Your Honor.
[Trial Court]: (Inaudible)
[Nurein’s Counsel]: Yeah, I think it is relevant. Um, there’s a prior incident I want to get – I’ll rephrase the question, Your Honor.
* * *
[Nurein’s Counsel]: Was there an incident in September between you and Riyann?
[Zahra]: Yeah, September 9th or 8th, yeah.
[Nurein’s Counsel]: Okay. Were you – were you assaulted?
[Prosecutor]: Object, Your Honor.
[Zahra]: Yeah.
[Trial Court]: I’m going to sustain the objection unless you can show --
[Zahra]: Yeah.
[Trial Court]: -- a current nexus. Don’t answer the question.
[Nurein’s Counsel]: All right, but there was an incident in September?
[Zahra]: There was incident and –
[Trial Court]: I sustained his objection on this.
[Nurein’s Counsel]: When was the last time you had contact with Riyann?
[Zahra]: Oh, he – he been texting me, like, couple days later when he text me and he send me information about this case or something.
[Nurein’s Counsel]: He sent you information about this case?
[Zahra]: Yeah.
[Nurein’s Counsel]: So, he’s been – he’s staying with you while this case has been going on?
[Zahra]: Yeah.
[Nurein’s Counsel]: Is that on your cell phone?
[Zahra]: Yeah.
[Nurein’s Counsel]: Is that what you showed me when we met last Saturday?
[Zahra]: Yeah, the one I show you.
[Prosecutor]: Object, Your Honor.
[Trial Court]: Sustained.
[Zahra]: Yeah, exactly.
[Trial Court]: The jury will disregard that answer and the question.
(May 10, 2021 Tr., Vol. II, at 112-113).
{¶41} The second instance occurred while K.A. was being cross-examined regarding his video-recorded statements:
[Nurein’s Counsel]: Hi, [K.A.]. How are you? You said it was your mom’s old boyfriend [that shot at Zahra’s apartment]. Does she have an old boyfriend that you remember? Is that a yes? Do you know that old boyfriend’s name?
[K.A.]: Mohamed.
[Nurein’s Counsel]: Mohamed. It’s not Riyann?
[Trial Court]: Asked and answered. Are you through with the witness then?
[Prosecutor]: I am, Your Honor.
[Trial Court]: You have no questions, [Nurein’s trial counsel], of [K.A.] before the jury?
[Nurein’s Counsel]: No, Your Honor.
(May 10, 2021 Tr., Vol. II, at 130).
{¶42} After reviewing the record, we conclude that the trial court did not deprive Nurein of his right to present a complete defense by sustaining the State’s objections and limiting his cross-examination of Zahra and K.A. With respect to Zahra, it is clear that the trial court did not entirely foreclose Nurein from asking questions about Riyann or the alleged September incident. Rather, consistent with the well-established rule that evidence offered for the purpose of showing third-party guilt must sufficiently connect the third party to the crime, the trial court simply required that Nurein establish a direct link between the alleged September incident and the shooting. For instance, testimony about the alleged September incident might have been relevant if Nurein elicited evidence that Riyann continued to harass Zahra up until February 2021 or if the alleged September incident represented one in a series of confrontations between Zahra and Riyann potentially culminating in the shooting. The trial court afforded Nurein an opportunity to
{¶43} The same is true with respect to the cross-examination of K.A. Nurein’s trial counsel cross-examined K.A. about K.A.’s video-recorded identification of Nurein as the shooter. Nurein’s trial counsel asked K.A. the name of the “old boyfriend” K.A. was referring to in the video, and K.A. responded that it was “Mohamed.” Thus, when the trial court intervened after Nurein’s trial counsel asked K.A. whether the name of the “old boyfriend” was Riyann, the trial court was correct that the question had already been asked and answered. Unfortunately for the defense, K.A.’s answer was an identification of Nurein as the shooter, not the former boyfriend. However, nowhere did the trial court indicate that Nurein would not be permitted to ask K.A. any questions about Riyann. Instead
{¶44} Nurein’s fifth assignment of error is overruled.
D. Second Assignment of Error: Does sufficient evidence support the jury’s verdicts on Counts Six and Seven?
{¶45} In his second assignment of error, Nurein argues that the jury’s verdicts on Count Six (attempted aggravated burglary in violation of
i. Standard of Review
{¶46} “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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a
ii. Nurein’s Offenses
{¶47} Nurein was found guilty of two attempt offenses in violation of
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if * * *:
* * *
(2) The offender has a deadly weapon or dangerous ordnance on or about the offender’s person or under the offender’s control.
{¶48} “Trespass” is an element of both
iii. Sufficient evidence supports the jury’s verdicts on Counts Six and Seven.
{¶49} In arguing that the jury’s verdicts on Counts Six and Seven are not supported by sufficient evidence, Nurein relies almost exclusively on Zahra’s trial testimony. He observes that Zahra “said [he] was an overnight guest at her apartment from the evening of February 12, 2021 * * * through the following day when the shooting incident occurred,” that Zahra “testified that he had [the]
{¶50} But the fact that evidence was presented from which the jury could have found that Nurein had the privilege to enter Zahra’s apartment does not mean that the State failed to present sufficient evidence to enable the jury to make the contrary finding. As detailed under Nurein’s fourth assignment of error, the State presented ample evidence supporting that Nurein was the person who fired the handgun at Zahra’s apartment on the morning of February 13, 2021. Furthermore, the State presented evidence showing that one of the gunshots was fired at Zahra’s front door and that the bullet struck the door at a downward angle near the deadbolt lock. (State’s Exs. 19, 28). The State also established that a spent shell casing was recovered two to three feet away from Zahra’s front door. (State’s Exs. 18, 19, 20). A bullet fragment was found in the living room area behind the front door. In addition, the State presented security camera footage from approximately 8:08 a.m. depicting a person, possibly Nurein, moving around just outside of Zahra’s apartment. (State’s Ex. 64). Finally, the State elicited testimony from Brenda that, before she witnessed the shooting, she heard a male voice yell, “This is the last time!” (May 10, 2021 Tr., Vol. II, at 65).
{¶52} Nurein’s second assignment of error is overruled.
{¶53} In his first assignment of error, Nurein argues that the jury’s guilty verdicts on Counts One through Seven are against the manifest weight of the evidence. Nurein contends that the evidence weighs strongly against the jury’s finding that he was the person who shot at Zahra’s apartment on the morning of February 13, 2021.
i. Standard for Manifest-Weight-of-the-Evidence Review
{¶54} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[] the evidence and all reasonable inferences, consider[] the credibility of witnesses and determine[] whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court’s
ii. The jury’s verdicts on Counts One through Seven are not against the manifest weight of the evidence.
{¶55} In this assignment of error, Nurein does not focus on any particular element of the offenses charged in Counts One through Seven or on the evidence the State offered to prove any such element. Instead, Nurein’s argument centers on identity and his claim that the evidence weighs heavily against a finding that he was the perpetrator of the shooting. Yet, as we explained under Nurein’s fourth assignment of error, the State presented considerable competent, credible evidence establishing that Nurein was the person who shot at Zahra’s apartment on the morning of February 13, 2021. Nurein counters by arguing that the State’s evidence was merely circumstantial and that, in light of Zahra’s adamant testimony that he did not shoot at her apartment, the evidence supporting his guilt was eclipsed by the evidence demonstrating his innocence. However, “[c]ircumstantial evidence and direct evidence possess the same probative value” and “a conviction based solely on circumstantial evidence is no less sound than one based on direct evidence.” State v. Myles, 3d Dist. Marion No. 9-19-74, 2020-Ohio-3323, ¶ 32. Furthermore, “[d]eterminations of credibility and weight of the testimony are primarily for the trier of fact,” and in assessing a witness’s credibility, the trier of fact may believe “‘all, part, or none of [the] witness’s testimony.’” State v. Ferrell, 10th Dist.
{¶56} Nurein’s first assignment of error is overruled.
F. Sixth Assignment of Error: Did Nurein receive ineffective assistance of counsel?
{¶57} In his sixth assignment of error, Nurein argues that he received ineffective assistance of counsel. Nurein claims that his trial counsel performed deficiently by failing to object to the admission of K.A.’s video-recorded statement and by failing to proffer evidence supporting his defense theory, namely that Riyann was the person who shot at Zahra’s apartment.
{¶58} “In criminal proceedings, a defendant has the right to effective assistance of counsel under both the United States and Ohio Constitutions.” State v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A defendant asserting a claim of ineffective assistance of counsel must establish: (1) counsel’s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show counsel’s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel’s actions were not trial strategies prompted by reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a substantial violation of counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
ii. Nurein failed to establish that he received ineffective assistance of counsel.
{¶60} To begin, through our resolution of Nurein’s fourth assignment of error, we have effectively preempted Nurein’s argument that he received ineffective assistance of counsel due to his trial counsel’s failure to object to the admission of K.A.’s recorded statement. Under Nurein’s fourth assignment of error, we concluded that the trial court did not commit plain error by admitting the recording of K.A.’s statement because even if the statement had been excluded, the outcome of Nurein’s trial would not have changed. That is, we concluded that Nurein failed to demonstrate that he was prejudiced by the admission of the statement. To show plain error, “[t]he accused is * * * required to demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis sic.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22. Therefore, as the prejudice standards for plain-error and ineffective-assistance-of-counsel claims are the same, we have already determined that Nurein was not prejudiced by his trial counsel’s performance with
{¶61} As for Nurein’s claim that his trial counsel was ineffective for failing to proffer evidence that would have supported his defense theory, we cannot properly conclude whether his trial counsel performed deficiently or whether he was prejudiced. From the available record, we cannot determine what Nurein’s trial counsel’s proffer would have entailed had such proffer been made. In fact, the record contains no indication that Nurein’s trial counsel even had evidence of Riyann’s guilt available to proffer, and “[d]efense counsel cannot be found to be ineffective by failing to present or proffer evidence that does not exist.” State v. Jackson, 2d Dist. Montgomery No. 26050, 2015-Ohio-5490, ¶ 30. In any case, evidence implicating Riyann in the shooting, if it exists, is entirely outside of the record. “If an ineffective assistance of counsel claim concerns facts that are outside the record, we cannot consider the claim on direct appeal because we can only consider matters contained in the record.” State v. Hall, 10th Dist. Franklin No. 04AP-1242, 2005-Ohio-5162, ¶ 60. Without knowing what evidence, if any, was available for Nurein’s trial counsel to proffer showing that Riyann committed the offense, we can only speculate as to whether it was unreasonable for Nurein’s trial
{¶62} Nurein’s sixth assignment of error is overruled.
IV. Conclusion
{¶63} For the foregoing reasons, Nurein’s six assignments of error are overruled. Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the Union County Court of Common Pleas.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr