State v. RasheedState v. Rasheed
Rendered on September 6, 2024
DAVID R. MILES, Attorney for Appellant
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
LEWIS, J.
{1} Defendant-Appellant Malik Taleeb Rasheed appeals from his conviction for felonious assault in the Montgomery County Common Pleas Court following a jury trial. For the following reasons, the judgment of the trial court will be affirmed.
{2} On November 1, 2022, Rasheed was indicted by a Montgomery County grand jury on one count of felonious assault (serious physical harm), in violation of
{3} Rasheed was originally scheduled for arraignment on November 3, 2022, which the arraignment was continued by the court until November 7, 2022, at which point counsel was appointed. Rasheed successfully moved for a continuance from November 23, 2022, until December 5, 2022. On December 5, 2022, a trial date was scheduled for January 19, 2023.
{4} On January 3, 2023, Rasheed filed a motion to dismiss count two of the indictment because the indictment failed to specify the specific deadly weapon allegedly used to commit the offense. The trial court denied Rasheed‘s motion to dismiss on January 31, 2023, and a new trial date was scheduled for the week of February 16, 2023.
{5} A final pretrial was held on February 14, 2023. Rasheed declined to accept a plea offer from the State, and the case proceeded to a jury trial the following day. After jury selection began, Rasheed informed the court that he wished to proceed pro se. A discussion was held on the record outside the hearing of the jury, and Rasheed was eventually permitted to proceed pro se. Following jury selection and after the jury was impaneled and sworn in, Rasheed requested a continuance in order to prepare for trial and further requested to have new standby counsel appointed. Following lengthy discussions, the court declared a mistrial and continued the trial to the next available date.
{7} Between the time of the mistrial and the second jury trial, Rasheed filed numerous pro se motions, including several motions to dismiss based on speedy trial violations. The trial court granted one motion regarding discovery, but all of Rasheed‘s other motions were overruled.
{8} A jury trial commenced on June 12, 2023. The following evidence was presented at trial.
{9} M.F. testified that she met Rasheed in early September 2022.1 At that time, M.F. was living on Kenilworth Avenue with her children. Because Rasheed was homeless, she allowed him to stay at her house from time to time. On October 22, 2022, Rasheed came to M.F.‘s home around 3:30 p.m., and they ran errands together. Around 7 p.m. they returned to her home on Kenilworth. M.F. was in the process of moving, so she continued packing things and cleaning the house while Rasheed went upstairs to lay down on a bed. At some point, while only the two of them were in the home, M.F. went upstairs to clean the bathroom, and Rasheed got up and started asking M.F. about some
{10} After M.F. got out from under the iron, Rasheed dragged her downstairs by her hair. Rasheed struck M.F. a few times and then dragged her to the dining room because she told him his money was stashed in some bags of tea. As she was trying to buy time by looking through tea bags, Rasheed grabbed a ceramic jar and hit her with it across her face, causing a laceration. He told her that he was going to hit her with something every 10 seconds until she gave him his money. While she was pretending to look for the money, Rasheed kicked her with steel toe boots in her chest, causing her to smash into a television.
{11} After M.F. struck the television, Rasheed went to the living room door. M.F. tried to run through the kitchen to the back door, but Rasheed grabbed her by her hair and dragged her back to the dining room; he then struck her several more times in the face. Rasheed then went into the kitchen, where M.F. had a two-liter jug of aloe, and he
{12} Rasheed repeatedly told M.F., who was on the floor, to get up. While she was on the floor, he kicked her in the back and neck several times. He then went to M.F.‘s bag, where she kept a handgun, and he took it out. Rasheed told her that neither of them was going to get out of there alive. Rasheed tried to operate the gun, but it had a problem with a screw, and Rasheed just jiggled the gun around without firing it. When Rasheed went to the front door again, M.F. ran out the back door. M.F. saw her neighbors outside. At first, she told them she did not need help because Rasheed came outside beside her, and he still had the gun. When the neighbors started to walk away, Rasheed told M.F. that she needed medical attention and that they should get her to a hospital. However, when Rasheed went back into the house, M.F. ran to her neighbor‘s house and asked for help. The neighbors called 911 for her.
{13} M.F. testified that she was taken by medics to the hospital and was hospitalized for a week. She had seven broken ribs, a broken spine, a broken sternum, and missing patches of hair. She needed stitches behind her arm, behind her knee, and on her face due to multiple lacerations. M.F. went to a burn clinic for treatment of her face, but she still had scarring on the left side of her face and her lip at the time of trial; she also had a tilt to her gait at trial as a result of all the injuries.
{14} After M.F. was released from the hospital, she looked for the iron and the gun. She never found the gun Rasheed had taken but did locate the iron in her belongings after she moved from the Kenilworth residence; she turned the iron over to police. M.F. denied that she had taken any drugs or alcohol on the night of the assault,
{15} In response to the 911 calls, Dayton Police were dispatched to M.F.‘s residence on Kenilworth Avenue on a domestic violence complaint; the officers were told that the victim was at her neighbor‘s house on Kenilworth and the assailant (with a gun) was inside M.F.‘s residence. Dayton Police Officer Richard Thimmes and his partner, Officer Joshua Gundaker, were the first officers to arrive at M.F.‘s home. Officer Thimmes testified he made contact with Rasheed as Rasheed walked out the back side door of the house. Rasheed claimed he did not have any weapons on him but his “baby might“; he also told the officers that M.F. had taken mushrooms and freaked out on him. The officers did not locate any weapons on Rasheed, but he did have a bag of marijuana and a lighter.
{16} After officers obtained consent from M.F.‘s son to search her home, they found an ironing board but no iron and a gun box with ammunition but no gun. The officers also found a braid of hair from M.F. on the floor. No drugs or other weapons were found inside the house.
{17} Dayton Police Sergeant Salli Jones testified that she had responded to the 911 call and went to M.F.‘s neighbor‘s home on Kenilworth, where she observed M.F. sitting on the floor with a towel over her face. M.F. was wrapped in a blanket and her clothing and person appeared to be damp. Sergeant Jones observed burns on M.F.‘s face and a laceration on her cheekbone. When officers attempted to speak to M.F., she could only respond with groans and moans. M.F. did not appear to be intoxicated or under the influence; rather, she appeared to be in shock. M.F. was non-responsive to
{18} Sergeant Tim Turner of the Montgomery County Sheriff‘s Office testified to his duties as administrative sergeant for the regional dispatch center, which handles 911 calls. Sergeant Turner testified as the keeper of records for the two 911 calls made on October 22, 2022, by M.F.‘s neighbors. The first 911 call was made at approximately 9:50 p.m., with the second call was made around 9:59 p.m. Officers did not arrive on the scene until 10:09 p.m.
{19} Detective Alaina Hammond of the Dayton Police Department was assigned to the case the day after the assault occurred. Detective Hammond testified she spoke to M.F.‘s son and the neighbors on Kenilworth to obtain statements the day after the incident. Hammond attempted to locate any additional witnesses or video cameras from surrounding locations but was unsuccessful. She also obtained a search warrant for Rasheed‘s vehicle but did not find a gun or an iron there. Days later, Hammond had a canine search the area outside of M.F.‘s residence for firearms, without success.
{20} Detective Hammond met with M.F. while she was still in the hospital. Hammond testified that M.F. appeared to be in a lot of pain. M.F. wore a C-collar on her neck and had a brace with handles on it in the front to help move her torso. Although M.F. was in a hospital bed with bandages around her face and had some difficulty speaking, she provided a statement to Hammond about what had happened.
{21} Detective Hammond obtained a certified copy of M.F.‘s hospital records from Miami Valley Hospital; they showed that she had been admitted on October 22, 2022, and discharged on October 29, 2022. The records also reflected that M.F. had a
{22} In late January or early February 2023, Detective Hammond again met with M.F. in person for a statement. By then, M.F.‘s appearance had improved and many of her injuries had healed. M.F. provided Detective Hammond with a green bag containing the iron M.F. claimed had been used in the incident. M.F. also provided a gun box for the firearm M.F. said Rasheed had used on the night of the assault, but no firearm was inside the box. The firearm was never located.
{23} Following the jury trial, Rasheed was found guilty as charged. On July 11, 2023, the parties appeared for sentencing. Although Rasheed had represented himself at trial, he requested counsel for sentencing. Therefore, the trial court appointed counsel and continued the sentencing hearing.
{24} On August 1, 2023, the parties again appeared for sentencing, this time with Rasheed represented by counsel. The trial court merged the two counts and the State elected sentencing on felonious assault with a deadly weapon. The trial court imposed a mandatory minimum prison term of 8 years with a maximum prison term of 12 years, pursuant to the Reagan Tokes Act. The trial court advised Rasheed that he would be subject to a mandatory term of post-release control upon his release from prison for not less than 18 months but no more than 3 years. The court filed its judgment entry on August 3.
{25} Rasheed filed a notice of appeal on August 28, 2023. However, this Court
{26} On September 19, 2023, the trial court issued an amended judgment entry from which Rasheed filed a timely notice of appeal. He now raises seven assignments of error.
II. Speedy Trial
{27} Rasheed‘s first assignment of error states:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS.
{28} Rasheed argues that the trial court erred in overruling his several motions to dismiss on statutory speedy trial grounds. Rasheed contends that his speedy trial time should not have been extended by the declaration of a mistrial or the court‘s referral for Rasheed‘s competency and sanity evaluations. We do not agree.
{29} “The right to a speedy trial is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution, made obligatory on the states by the Fourteenth Amendment. Section 10, Article I of the Ohio Constitution guarantees an accused this same right.” State v. Hughes, 86 Ohio St.3d 424, 425 (1999), citing State
{30} Pursuant to
{31} “Speedy-trial provisions are mandatory, and, pursuant to
(B) Any period during which the accused is mentally incompetent to stand trial or during which the accused‘s mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;
(C) Any period of delay necessitated by the accused‘s lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon the accused‘s request as required by law;
(D) Any period of delay occasioned by the neglect or improper act of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
. . .
(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion . . .
{32} “Upon review of a speedy-trial issue, a court is required to count the days of delay chargeable to either side and determine whether the case was tried within applicable time limits.” Sanchez at ¶ 8. “A defendant establishes a prima facie speedy trial violation when his motion reveals that a trial did not occur within the time period
{33} First, Rasheed argues that his speedy trial rights were violated before his first trial started on February 15, 2023. The record reflects that Rasheed was arrested on October 22, 2022, so his statutory speedy trial time started to run on October 23, 2022. He was held in custody solely on these charges for the duration of the case; therefore, Rasheed was entitled to the triple-count provision enumerated under
{34} On November 23, 2022, a scheduling conference was held at which defense counsel requested a continuance. The request was granted, and the matter was continued until December 5, 2022. Counsel‘s request for a continuance constituted a tolling event and extended Rasheed‘s speedy trial time an additional 13 days. See
{35} On December 5, 2022, Rasheed orally requested that the case be dismissed on speedy trial grounds, which the trial court orally overruled. Because Rasheed‘s speedy trial rights had not been violated at that time, the trial court did not err in denying Rasheed‘s motion to dismiss. That same day, a jury trial was scheduled for January 19, 2023, with a final pretrial on January 6, 2023.
{36} On January 3, 2023, Rasheed filed a motion to dismiss one count of the indictment. Two days later, counsel filed a motion to withdraw. At the January 6, 2023 final pretrial hearing, the trial court granted counsel‘s motion to withdraw, appointed new counsel, and continued the case until January 10, 2023. On January 10, 2023, newly-appointed counsel requested a continuance of one week, which the trial court granted. Although, generally, lack of counsel for the accused and/or counsel‘s request for a continuance would constitute tolling events, time was already being tolled at that point due to Rasheed‘s January 3, 2023 motion to dismiss. The tolling ended when the trial court overruled the motion to dismiss on January 31, 2023. State v. Bickerstaff, 10 Ohio St.3d 62, 67 (1984) (“It is evident from a reading of the statute that a motion to dismiss acts to toll the time in which a defendant must be brought to trial.“) Thus, time was tolled an additional 29 days from January 3, 2023, until January 31, 2023.
{37} On January 31, 2023, a jury trial was scheduled for the following month. Defense moved to dismiss on speedy trial grounds, which the court orally overruled. Once again, due to prior tolling events, the trial court did not err in overruling the motion to dismiss because Rasheed‘s speedy trial time had not yet expired. Rasheed‘s first jury
{38} After jury selection, a mistrial was declared, and the jury was discharged. Rasheed‘s second jury trial did not begin until June 12, 2023. According to Rasheed, his speedy trial time was not extended by the mistrial because it was not a tolling event. We agree that a mistrial is not a tolling event pursuant to
{39} Consistent with constitutional speedy trial standards, the reasonableness standard requires a four-factor analysis: “(1) the length of the delay, (2) the reason for the delay, (3) the defendant‘s assertion of his right to a speedy trial, and (4) the prejudice to the defendant.” State v. Hull, 2006-Ohio-4252, ¶ 21-22, citing Barker v. Wingo, 407 U.S. 514, 530 (1972). “[T]hese four factors are balanced considering the totality of the circumstances, with no one factor controlling.” State v. Perkins, 2009-Ohio-3033, ¶ 8 (2d Dist.), citing Barker.
{40} The trial court found that the delay between Rasheed‘s mistrial and the commencement of his second trial was reasonable and therefore that Rasheed‘s constitutional speedy trial rights had not been violated. Under the facts of this case, we agree that Rasheed‘s constitutional speedy trial rights were not violated and, therefore, the trial court did not err in overruling Rasheed‘s multiple motions to dismiss on speedy
{41} Assuming (without deciding) that the approximately four-month delay triggered a Barker analysis, the delay was not sufficiently prejudicial to merit the dismissal of the charges against Rasheed. First, the State was not responsible for the delay. “Only the portion of the delay which is attributed to the government‘s neglect is to be weighed in a defendant‘s favor.” State v. Triplett, 78 Ohio St.3d 566, 569 (1997), citing Doggett at 658. The reasons for the mistrial were Rasheed‘s eleventh-hour request to proceed pro se and his inability to do so without newly appointed standby counsel and an opportunity to prepare. Accordingly, the initial delay was the result of Rasheed‘s actions and could not be attributed to the State. A new trial date was then scheduled at the court‘s earliest availability, approximately two months later on April 24, 2023. However, that trial date was vacated and continued as a result of Rasheed‘s request for a competency evaluation, during which time the trial court could not have proceeded to trial. State v. Berry, 72 Ohio St.3d 354, 359 (1995) (stating that a criminal defendant who is legally incompetent may not be tried). Although Rasheed contends that the trial court should have neither granted a mistrial nor ordered a competency evaluation, neither of
{42} There is little doubt that Rasheed asserted his right to a speedy trial by repeatedly filing motions to dismiss for speedy trial violations. The record reflects that, following his mistrial, Rasheed filed more than 20 motions, the majority of which sought dismissal of his charges; the State responded to those motions, and the trial court issued decisions. Although the third Barker factor weighed in favor of Rasheed, this factor was not dispositive.
{43} Finally, we see no prejudice to Rasheed as a result of the delay. The initial reason for the delay, i.e. granting the mistrial, was to prevent Rasheed from being prejudiced by having to proceed pro se without standby counsel and without sufficient preparation. The second delay, the competency evaluation, was also conducted for Rasheed‘s benefit, at his request, to make sure he was legally capable of proceeding to trial. Nevertheless, Rasheed claims in his brief that he was prejudiced because, in his first trial, the State questioned the prospective jurors about the possibility that the victim would not testify at trial, but this did not occur at the second trial at which the victim did testify. But Rasheed had the same opportunity to question the prospective jurors that the State did. Rasheed has failed to explain how this fact prejudiced him. The fourth Barker factor weighed against finding a constitutional violation.
{44} In balancing the Barker factors, we conclude that the delay in this case was
III. Mistrial
{45} The second assignment of error states:
THE TRIAL COURT ERRED IN DECLARING A MISTRIAL.
{46} Rasheed claims that the trial court abused its discretion in declaring a mistrial sua sponte, because he only requested a minimal continuance of the trial and a fair trial was still able to be had. The State responds that the trial court did not abuse its discretion in declaring a mistrial because of Rasheed‘s impromptu decision to represent himself on the day of trial and his inability to do so without a continuance.
{47} “Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible.” (Citations omitted.) State v. Franklin, 62 Ohio St.3d 118, 127 (1991). Reviewing courts grant “great deference to the trial court‘s discretion in this area, in recognition of the fact that the trial judge is in the best position to determine whether the situation in his courtroom warrants the declaration of a mistrial.” State v. Glover, 35 Ohio St.3d 18, 19 (1988). The Ohio Supreme Court, recognizing that there are a variety of circumstances in which a mistrial may arise, “has been reluctant to formulate precise, inflexible standards. Rather, the court has deferred to the trial court‘s exercise of discretion in light of all the surrounding circumstances . . . .” State v. Widner, 68 Ohio St.2d 188, 190 (1981). “The granting or denial of a motion for mistrial rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.” (Citations omitted.) State v. Treesh, 90 Ohio St.3d 460, 480 (2001). “A trial court abuses its discretion when it makes a decision that is unreasonable,
{48} “In examining the trial judge‘s exercise of discretion in declaring a mistrial, a balancing test is utilized, in which the defendant‘s right to have the charges decided by a particular tribunal is weighed against society‘s interest in the efficient dispatch of justice.” Glover at 19, citing State v. Calhoun, 18 Ohio St.3d 373, 376 (1985); United States v. Scott, 437 U.S. 82, 92 (1978). “[A] defendant‘s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public‘s interest in fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689 (1949). “Where the facts of the case do not reflect unfairness to the accused, the public interest in insuring that justice is served may take precedence.” Glover at 19, citing Arizona v. Washington, 434 U.S. 497, 505 (1978).
{49} After a lengthy discussion on the record, the trial court declared a mistrial based on the following reasoning:
I think that Mr. Rasheed has made the record that he doesn‘t want to be represented by [defense counsel]. He‘s also made the record that he is not prepared to go forward today. And in the judgment of the Court, he won‘t be ready to go for the balance of this week, as a result of which I‘m going to declare a mistrial of this case, or of this trial, based on the conduct of Mr. Rasheed, who has said, number one, he doesn‘t want to be
represented by [defense counsel]. Number two, he needs to be represented—he needs additional time for preparation. . . . And number three, because at this point, I don‘t think that Mr. Rasheed is capable at this time of defending this case. So we‘ll declare a mistrial. We‘ll excuse the jury. We‘ll give you a date of the 24th of April. If we can move something in sooner than that, fine.
Mistrial Tr. 192.
{50} The record supports the trial court‘s decision to grant a mistrial. At the beginning of the jury trial, Rasheed was represented by counsel. Then, shortly after defense counsel began voir dire, Rasheed stated for the first time that he wished to proceed pro se. Eventually, the trial court agreed to permit him to do so. However, by the time Rasheed informed the court that he was unprepared to go forward with the jury trial without a continuance, the jury had already been selected and sworn in. Although Rasheed indicated he only needed a continuance for a few days, the trial court‘s schedule was unable to accommodate that. The following Monday was a federal holiday, and the courtroom was unavailable for several weeks. (The trial court judge at that time was a visiting judge who was using another judge‘s courtroom, which was unavailable in the ensuing weeks.) The trial began on a Wednesday morning, and the discussion of a mistrial occurred that afternoon. The trial court informed Rasheed that he could have the rest of the evening to prepare to go forward with trial the following day, but Rasheed declined, indicating that he needed more time than that to prepare. Although Rasheed was unequivocal that he wanted to represent himself, he also requested new standby
{51} Under these circumstances, the trial court did not abuse its discretion in declaring a mistrial. The trial court‘s reasoning reflected significant justification for declaring a mistrial and that the ends of justice would have otherwise been defeated. Accordingly, Rasheed‘s second assignment of error is overruled.
IV. Competency and Sanity Evaluations
{52} Rasheed‘s third assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING A NOT GUILTY BY REASON OF INSANITY EVALUATION AND A COMPETENCY TO STAND TRIAL EVALUATION.
{53} Rasheed argues that the trial court abused its discretion by ordering competency and insanity evaluations. According to Rasheed, the reason the trial court ordered the evaluations was “to get around appellant‘s speedy trial rights.” Appellant‘s Brief, p. 11. We do not agree.
{54} “Fundamental principles of due process require that a criminal defendant who is legally incompetent shall not be subjected to trial.” Berry, 72 Ohio St.3d at 359. “If a defendant ‘lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense[,]’ he may not stand trial.” State v. Voris, 2022-Ohio-152, ¶ 34 (2d Dist.), quoting State v. Skatzes
{¶ 55} “In a criminal action in a court of common pleas, . . . the court, prosecutor, or defense may raise the issue of the defendant‘s competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court‘s own motion.”
{¶ 56} In this case, it was Rasheed who raised the issue of competency and specifically requested a competency evaluation. Immediately after the trial court declared a mistrial on February 15, 2023, Rasheed stated that “I need a . . . competency hearing.” Mistrial Tr. 193. Because the trial court had already declared a mistrial and rescheduled a new trial date, Rasheed‘s request occurred before trial. Where a defendant has raised the issue of competency before trial, courts have found that
{¶ 57} The judge issued an order for both a competency and a sanity evaluation on March 16, 2023. The entry ordering the competency evaluation noted that Rasheed‘s “behavior in court on February 15, 2023, has raised for the court the issue of his competence to stand trial.” Entry Ordering Competency Evaluation. As noted above,
{¶ 58} Rasheed did not file a plea of not guilty by reason of insanity as is required under
{¶ 59} “Crim.R. 52(A) defines harmless error in the context of criminal cases and provides: ‘Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.‘” State v. Morris, 2014-Ohio-5052, ¶ 23. Generally, an error is viewed as affecting a defendant‘s substantial rights only if the error was prejudicial. State v. Harris, 2015-Ohio-166, ¶ 36. “Accordingly,
{¶ 60} Rasheed‘s concern on appeal is that the orders for competency and sanity
{¶ 61} Rasheed‘s third assignment of error is overruled.
V. Sufficiency of the Evidence
{¶ 62} In his fourth assignment of error, Rasheed argues:
APPELLANT‘S CONVICTIONS FOR FELONIOUS ASSAULT ARE BASED UPON INSUFFICIENT EVIDENCE.
{¶ 63} Rasheed contends there was insufficient evidence to identify him as the perpetrator of the offense because the police did not find the iron or the gun on the night of the assault and because Rasheed did not attempt to evade the police. Further, Rasheed argues that there was insufficient evidence to establish that the iron was a deadly weapon for him to be convicted under
{¶ 64} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to
a. Identity
{¶ 65} “The State has the burden to prove every element of the crime charged beyond a reasonable doubt, including the identity of the person who committed the crime.” (Citations omitted.) State v. Bailey, 2017-Ohio-2679, ¶ 18 (2d Dist.). Proof of the identity of the accused can be made by circumstantial or direct evidence. State v. Tate, 2014-Ohio-3667, 15, citing Jenks at 272-273. “Ohio courts have held that the testimony of one witness, if believed by the jury, is enough to support a conviction.” State v. Strong, 2011-Ohio-1024, ¶ 42 (10th Dist.), citing State v. Dunn, 2009-Ohio-1688, ¶ 133 (5th Dist.).
{¶ 66} Viewing the evidence in the light most favorable to the prosecution, we find that a reasonable jury could have found that the State had established Rasheed‘s identity beyond a reasonable doubt. M.F.‘s testimony alone provided sufficient evidence of identity to support a conviction. M.F. testified that she had met Rasheed in early September 2022, and they had developed a relationship. Her testimony at trial identified Rasheed as the perpetrator who assaulted her on October 22, 2022, and she provided
{¶ 67} In addition to M.F.‘s testimony, multiple officers identified Rasheed as the individual arrested at M.F.‘s home on October 22, 2022, and testified that he was the individual in the police body camera footage that was shown to the jury. Moreover, although Rasheed did not testify, he made it obvious to the jury through his questioning of the witnesses that he was present with M.F. at her residence on October 22, 2022. The fact that the police did not find the iron or the gun on the night of the assault, or that Rasheed did not attempt to evade the police that night, did not detract from the evidence establishing his identity as the perpetrator of the offense. Accordingly, this argument is without merit.
b. Deadly Weapon
{¶ 68} Rasheed was convicted of felonious assault with a deadly weapon, in violation of
{¶ 69} The testimony at trial established that Rasheed plugged in an iron to heat it up and then pressed the hot iron onto M.F.‘s face, which caused significant burns. M.F. testified that, as Rasheed was plugging in the iron and holding her down, he said that they were both going to die that day. Although we acknowledge that an iron is not typically thought of as a deadly weapon, the testimony at trial established that the iron was used as a weapon and, further, that Rasheed was threating the victim not only with harm but with death while he used the iron as a weapon. The fact that Rasheed‘s use of the iron did not result in death under these circumstances did not preclude it from being deemed a deadly weapon. Considering the severity of the burns inflicted, the use of the hot iron on the victim‘s face, and that Rasheed had threatened her with death contemporaneously with using the hot iron, we conclude that a jury could had reasonably concluded that the iron, as used in this case, was a deadly weapon.
{¶ 70} Rasheed‘s conviction was supported by sufficient evidence, and his fourth assignment of error is overruled.
{¶ 71} In his fifth assignment of error, Rasheed alleges the following:
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE TWO 911 PHONE CALLS.
{¶ 72} Rasheed argues that the trial court erred in admitting two 911 phone calls into evidence because the callers themselves did not testify at trial. Notably, Rasheed did not object to the admissibility of the two 911 calls on the basis of hearsay or improper authentication during trial. During Sergeant Turner‘s testimony, Rasheed made a general objection to the first 911 call and argued about the credibility of the statements made on the recording. When asked about any objection to admitting the first 911 call, Rasheed indicated that he did not object to the first one and said to “keep the first call.” Trial Tr. 678.
{¶ 73} Regarding the second 911 call, during Sergeant Turner‘s testimony, Rasheed again objected based on arguments about the credibility of the statements made on the recording. However, he then stated that he “wanted to let these jurors hear the second [911 call].” Trial Tr. 562. He later objected to the admissibility of the second 911 call based on the credibility of the statements made on the call, but not due to hearsay or its lack of authenticity. Trial Tr. 678. In each instance, Rasheed‘s objections went to the weight of the evidence, but not its admissibility.
{¶ 74} “A first principle of appellate jurisdiction is that a party ordinarily may not present an argument on appeal that it failed to raise below.” State v. Wintermeyer, 2019-Ohio-5156, ¶ 10, citing Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). Because
a. Proper Authentication
{¶ 75}
{¶ 76} Sergeant Turner testified that his duties as the Administrative Sergeant for the Montgomery County Sheriff‘s Office included being the keeper of records for the regional dispatch center. He testified that the two CDs he had produced contained the
b. Hearsay
{¶ 77} “Hearsay” is defined in
{¶ 78} A “present sense impression” is defined in
{¶ 79}
{¶ 80} In this case, no plain error is demonstrated in admitting the recordings of the two 911 calls; they were admissible as present sense impressions. “911 calls are usually admissible under the excited utterance or the present sense impression exception to the hearsay rule.” (Citations omitted.) State v. Norris, 2015-Ohio-624, ¶ 12 (2d Dist.). Here, M.F. had just been severely beaten when she went next door to her neighbor‘s house. When the neighbors called 911 shortly thereafter, they relayed to dispatch M.F.‘s physical appearance and her need for medical attention. In the first 911 call, a male neighbor described that M.F. was cold, wet, and barefoot. He also informed dispatch that M.F. was injured and needed an ambulance, even though he did not observe any
{¶ 81} In each of the two 911 calls, the neighbor‘s statements were “‘describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter,’ and therefore admissible notwithstanding the hearsay rule.” State v. Tibbetts, 92 Ohio St.3d 146, 158-159 (2001), quoting
{¶ 82} Although the information about the iron and the gun could potentially be considered hearsay, we discern no error warranting reversal because the admission of
{¶ 83} Rasheed‘s fifth assignment of error is overruled.
VII. Cross-Examination
{¶ 84} In his sixth assignment of error, Rasheed argues:
THE TRIAL COURT ERRED IN NOT ALLOWING APPELLANT TO CROSS-EXAMINE A STATE‘S WITNESS WITH IMPEACHMENT PURSUANT TO OHIO EVIDENCE RULE 609.
{¶ 85} In support of his sixth assignment of error, Rasheed points to his cross-examination of M.F. in which he asked her, “Have you ever had any run-in with the police or have you been arrested or any type of questionable things – fraud –.” Trial Tr. 422-423. The trial court sustained the State‘s objection to this question, and Rasheed moved on. Rasheed now claims that
{¶ 86} “Cross-examination of a witness is a matter of right, but the ‘extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion
{¶ 87} A trial court has broad discretion in determining the extent to which testimony will be admitted under
{¶ 88} We cannot conclude that the trial court abused its discretion in limiting Rasheed‘s cross-examination of M.F., as the questioning was impermissible. In accordance with
{¶ 89} If Rasheed intended to use
{¶ 90} To the extent Rasheed contends that the trial court should have asked him the basis for the question and what proof he might have had, essentially asking Rasheed to make a proffer, we decline to require a court to act as counsel for a pro se defendant. “It is well established that pro se litigants are presumed to have knowledge of the law and legal procedures and that they are held to the same standard as litigants who are
{¶ 91} Rasheed‘s sixth assignment of error is overruled.
VIII. Sentencing Entry
{¶ 92} In his final assignment of error, Rasheed raises the following error:
THE TRIAL COURT ERRED IN NOT PLACING REAGAN TOKES LANGUAGE IN THE SENTENCING JUDGMENT ENTRY.
{¶ 93} Rasheed does not dispute that the trial court properly informed him of the required notifications under the Reagan Tokes Act at the time of sentencing. However, Rasheed argues that the court erred by not including those notifications in its written judgment entry. We do not agree.
{¶ 94} “The ‘Reagan Tokes Law,’ which became effective in March 2019, requires that for certain first- and second-degree felony offenses, a sentencing court impose on the offender an indefinite sentence consisting of a minimum and a maximum prison term.” State v. Hacker, 2023-Ohio-2535, ¶ 1. When sentencing an offender to an indefinite prison term, the trial court must first select a stated minimum term from a range of potential minimum prison terms.
{¶ 95} A trial court is required to notify the offender of all the Reagan Tokes advisements set forth in
{¶ 96} Rasheed filed a timely notice of appeal from the August 3, 2023 judgment entry; the entry did not contain any Reagan Tokes advisements. However, when the appeal of the August 3, 2023 judgment entry was dismissed for lack of a final appealable order, the case was remanded, and a new entry was filed on September 19, 2023. In addition to stating the minimum and maximum prison terms for the offense for which Rasheed had been convicted, the new entry included the following Reagan Tokes
The defendant was advised that there is a rebuttable presumption that he/she will be released from service of the sentence at the expiration of the minimum term or presumptive early release date, whichever is earlier, and that the Department of Rehabilitation and Corrections may rebut the presumption if it makes certain specified determinations.
{¶ 97} According to Rasheed, each of the specific notifications identified in
{¶ 98}
{¶ 99} Even though the statute does not require the notifications be included in the sentencing entry, Rasheed relies on State v. Bates, 2022-Ohio-475, to support his argument that they should be included. In Bates, the Ohio Supreme Court reaffirmed that once the trial court orally provides all the required advisements for post-release control at the sentencing hearing, it must also incorporate those advisements into the sentencing entry. Id. at ¶ 12, citing State v. Grimes, 2017-Ohio-2927, ¶ 8. According to Rasheed, the same analysis that requires post-release control notifications to be included in the judgment entry should similarly apply to the Reagan Tokes notifications. We do not agree.
{¶ 100} ” ‘Post-release control’ means a period of supervision by the adult parole authority after a prisoner‘s release from imprisonment, other than under a term of life imprisonment, that includes one or more post-release control sanctions imposed under
{¶ 101} On the other hand, in State v. Hacker, 2023-Ohio-2535, the Ohio Supreme Court held that because a judge sets the minimum and maximum prison terms under Reagan Tokes, the Ohio Department of Rehabilitation and Correction (“DRC“) does not exercise judicial power in violation of the separation of powers when it prolongs an
{¶ 102} Furthermore, unlike post-release control, the Reagan Tokes notifications do not apply to every prison sentence, and the statutory scheme does not allow the DRC to restrain a defendant‘s liberty after serving his or her sentence like a post-release control violation could. Once a defendant is sentenced to prison and the trial court imposes the minimum and maximum prison terms, as set forth by statute, the sentence for the offender has been set. Unlike post-release control, the Reagan Tokes notifications are not part of a defendant‘s sentence but merely information a trial court must provide to a defendant at the time of sentencing. Neither including nor failing to include the
IX. Conclusion
{¶ 104} Having overruled all the assignments of error, we will affirm the judgment of the trial court.
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EPLEY, P.J. and TUCKER, J., concur.