STATE OF OHIO, Plaintiff-Appellee, vs. ISMAIL SALAAM, Defendant-Appellant.
APPEAL NOS. C-150092, C-150099
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 4, 2015
[Cite as State v. Salaam, 2015-Ohio-4552.]
SYLVIA S. HENDON, Presiding Judge.
TRIAL NO. 15CRB-1429
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 4, 2015
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Melanie J. Reising, Senior Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
{1} Defendant-appellant Ismail Salaam has appealed from the trial court‘s entry convicting him of domestic violence. Salaam challenges the trial court‘s admission of testimony about recorded jail telephone calls that he had made and the sufficiency and the weight of the evidence supporting his conviction. We hold that the trial court erred in admitting testimony regarding the recorded jail telephone calls. But because the error was harmless, and because Salaam‘s conviction was supported by both the sufficiency and the weight of the evidence, we affirm the trial court‘s judgment.
Facts and Procedure
{2} The victim of Salaam‘s offense was his live-in girlfriend, Maliyah Housworth. On January 19, 2015, Housworth and Salaam got into an argument after Salaam informed Housworth that he was leaving her. This upset Housworth, who did not want Salaam to leave without paying their home‘s electric bill. According to Housworth, she and Salaam bumped into each other in the hallway after he told her that he was leaving. Although the bump had been accidental, Salaam followed it by purposely kicking Housworth on her behind, causing her pain. Housworth then admittedly “went crazy,” because Salaam had kicked her. The two started “tussling on the couch.” Housworth suffered a bruise on her behind, a scratch to her face, a bruise on her arm, and an injury to her eye. Both Housworth and Salaam agreed that, during this latter incident, Salaam was predominately attempting to restrain Housworth while she swung at him.
{4} Over Salaam‘s objection, Officer Kowalski testified about the content of the calls. During the calls, Salaam had stated that he had smacked Housworth because she had “burned” him; that he would harm Housworth if she came to testify in court; and that he would kill Housworth if he were sentenced to jail time. Although the trial court allowed Officer Kowalski to testify about the content of these telephone conversations, it sustained Salaam‘s objection and did not allow the state to admit the discs containing the recorded calls into evidence. The court determined that the discs were a business record that had not been appropriately authenticated by the person who maintained the record.
{5} At the close of evidence, the trial court found Salaam guilty as charged and sentenced him to 180 days’ incarceration.
Evid.R. 1002
{6} In his first assignment of error, Salaam argues that the trial court admitted Officer Kowalski‘s testimony about the recorded jail telephone calls in
{7}
{8} Through Officer Kowalski‘s testimony, the state introduced the content of Salaam‘s recorded jail telephone calls. So, absent one of the exceptions enumerated in
{9} Because the original recordings were necessary to prove the content of the calls pursuant to
{10} Officer Kowalski‘s testimony revealed that Salaam had threatened Housworth to prevent her from testifying against him, and that he had admitted to slapping Housworth because she had “burned” him. After this testimony was introduced, the state presented additional rebuttal testimony from Housworth. Housworth explained that to “burn” someone was a slang term for infecting someone with a sexually transmitted disease. She further testified that Salaam had not slapped or smacked her during the January 19 incident, and that his reference to slapping her because she had burned him concerned an entirely separate episode.
{12} Because the admission of testimony concerning the jail telephone calls made by Salaam was harmless error, we overrule the first assignment of error.
Sufficiency and Weight
{13} In his second and third assignments of error, Salaam contends that his conviction for domestic violence was not supported by sufficient evidence and was against the manifest weight of the evidence. We consider these assignments together.
{14} Following our review of the record, we find that when viewing the evidence presented in the light most favorable to the prosecution, the trial court could reasonably have found the elements of domestic violence proven beyond a reasonable doubt. See State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Nor was this the rare case in which the trier of fact lost its way and committed such a manifest miscarriage of justice in convicting Salaam that his
{15} Salaam further contends that the trial court erred in failing to find that he had acted in self-defense. A defendant asserting self-defense in a nondeadly-force case must prove by a preponderance of the evidence “(1) that he was not at fault in creating the situation; (2) that he reasonably believed that he needed to use some force to defend himself against the imminent use of unlawful force; and (3) that the force used was not likely to cause death or great bodily harm.” State v. Browner, 1st Dist. Hamilton No. C-100247, 2010 Ohio App. LEXIS 5260, ¶ 8 (Dec. 15, 2010). Here, our analysis ends at the first inquiry. The evidence clearly establishes that Salaam was at fault in creating the violent situation. He instigated the entire altercation when he kicked Housworth in the behind. The trial court did not err in rejecting Salaam‘s self-defense argument.
{16} Salaam last argues that the trial court should have found him guilty of the lesser-included offense of minor-misdemeanor disorderly conduct. This court may modify a defendant‘s conviction when we find that the evidence establishes that the defendant was not guilty of the crime for which he was convicted, but was guilty of a lesser-included offense. See State v. Davis, 1st Dist. Hamilton No. C-040411, 2006-Ohio-4599, ¶ 13. But because we have determined that Salaam‘s conviction for domestic violence was supported by sufficient evidence, this argument is without merit.
Judgment affirmed.
CUNNINGHAM and MOCK, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.