STATE OF OHIO v. ASIM SEKIC
No. 95679
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 22, 2011
2011-Ohio-4809
EILEEN A. GALLAGHER, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-531300
PLAINTIFF-APPELLEE
vs.
ASIM SEKIC
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 22, 2011
Richard Agopian
The Hilliard Building
1415-1419 West Ninth Street
Second Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Brian S. Deckert
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{1} Asim Sekic appeals from his conviction and sentence rendered in the Cuyahoga County Common Pleas Court. Asim argues that (1) the trial court erred in instructing the jury and in ordering restitution; and (2) the state of Ohio failed to support his conviction with sufficient evidence, and the jury lost its way in convicting him of felonious assault. For the following
{2} This case involves two families who are joined by marriage: the Fords and the Sekics. Andreas Sekic, who is Asim‘s son, is married to Lisa Sekic (nee Ford). Lisa‘s mother, Barbara Ford, is married to Lisa‘s stepfather, Steve “Brance” Ford. Barbara and Steve had one biological child together, Kristopher Ford (“Kris“), who is Lisa‘s stepbrother. At the beginning of Lisa and Andreas‘s marriage, the two families got along well. However, relations deteriorated after Kris, an admitted drug abuser, stole Christmas gifts from Lisa and Andreas‘s children. The families were further estranged after Andreas accused Lisa‘s mother, Barbara, of stealing clothes while she babysat the children.
{3} These two incidents led to tense relations between the two families, which culminated in the events of November 17, 2009. Both the Fords and the Sekics have widely disparate versions of the events of that night.
{4} According to Andreas Sekic, on that date, he stopped by Drug Mart on his way home from work. As he walked into the store, he observed Kris and Kenneth Ford, Steve‘s brother, sitting in a car in the parking lot. Andreas later saw Steve inside Drug Mart. Andreas attempted to avoid a
{5} Realizing that he forgot to pick up cigarettes, Andreas stopped at a convenient store, which happened to be located within a two to three minute drive from the Fords’ residence. However, Andreas did not exit his vehicle because Steve arrived at that same convenient store, by himself, a short time later. Neither of the men said anything to each other and Steve eventually left the parking lot.
{6} Andreas testified that he was nervous about seeing the Fords and about their behavior that night, so he called his father Asim. Andreas asked Asim to come and meet him at the convenient store parking lot. Asim obliged and brought his daughter, Vanessa, Andreas‘s sister, with him. Andreas and Asim spoke about what had occurred that night and Andreas suggested that they go over to the Fords’ residence to try and work out their differences. Asim had never met any member of the Ford family, other than Lisa, and Andreas wanted him there as a type of mediator. Vanessa had not met any of the Fords either and she thought they would be able to discuss the upcoming Thanksgiving holiday.
{8} Vanessa‘s testimony was consistent with that of Andreas‘s and she further testified that Kris bumped Andreas with his chest. Moreover,
{9} In contravention to the facts enunciated above, Kris, Steve, Kenneth, and Barbara Ford testified as follows:
{10} Kris testified that he, Steve, and Kenneth were leaving the Drug Mart parking lot when they observed Lisa‘s vehicle, which unbeknownst to the three males, was being driven by Andreas that day. Steve wanted to wait and see if Lisa had any of the children with her so he pulled near the vehicle. However, Andreas appeared and when he observed the Fords, Andreas began jumping and gesticulating wildly and screaming at the Fords inside their vehicle. Steve stated that he waved at Andreas and then pulled out of the parking lot.
{11} Both Kris and Steve testified that Andreas followed their vehicle as they drove home. Steve reported that he dropped off Kris and Kenneth at the apartment and then drove to a nearby convenient store, where he again saw Andreas. Kris and Steve believed that Andreas was following them and that was why he was at the convenient store. Steve testified they did not go inside the store and simply returned home.
{12} A short time later, Kris, Kenneth, and Steve heard loud banging on the sliding glass door. Kris testified that as he opened the door, Andreas
{13} Barbara testified to similar facts as Kris, although she claimed that after the attack, her hair hurt, but that she could not remember being hit or grabbed. Barbara also stated that she called the Olmsted Falls Police Department.
{14} Steve testified that after Andreas hit Kris with the flower pot, both Andreas and Asim came into the apartment, grabbed Kris, and pulled him outside. Steve testified that Andreas and Asim kicked and beat Kris while he lay on the ground and that he observed Asim with a chrome plated gun right before Asim hit him in the face with the gun. Steve further testified that Asim had grabbed Barbara by the hair and threw her inside of the home.
{15} Kenneth testified in a similar manner as Steve, Barbara, and
{16} Olmsted police sergeant, Kimberly Flood, and firefighter/paramedic, Chad Gluss, arrived at the scene. Chad Gluss stated that Kris had lost a lot of blood and that his ear had been ripped away from his head. Based on the statements from the Ford family, Sergeant Kimberly Flood arrested both Andreas and Asim later that night.
{17} On November 19, 2009, a Cuyahoga County Grand Jury indicted both Andreas and Asim with two counts of felonious assault, one count of aggravated burglary, and two counts of assault. Both Andreas and Asim elected to proceed to trial and their cases were tried jointly. The State presented the following witnesses: Chad Gluss, Kris Ford, Barbara Ford, Steve Ford, Kenneth Ford, and Sgt. Kimberly Flood. In response, Asim presented the following witnesses: Vanessa Sekic, Lisa Sekic, and Andreas Sekic. At the close of the evidence, the jury found Asim guilty of count one, felonious assault, and not guilty of all remaining counts. On July 30, 2010, the court sentenced Asim to two years in prison and ordered him to pay
{18} Asim appeals, raising the five assignments of error contained in the appendix to this opinion.
{19} In his first assignment of error, Asim argues that the State failed to present sufficient evidence that he aided and abetted Andreas in the commission of felonious assault. In his fourth assignment of error, Asim argues that his conviction is against the manifest weight of the evidence. Although these arguments involve different standards of review, we will consider them together.
{20} The standard of review with regard to the sufficiency of the evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184.
{21} Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, 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 submitted 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.” (Citation omitted.)
{22} In evaluating a challenge based on manifest weight of the evidence, a court sits as the thirteenth juror, and intrudes its judgment into proceedings that it finds to be fatally flawed through misrepresentation or misapplication of the evidence by a jury that has “lost its way.” State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541.
{23} This court is mindful that weight of the evidence and the credibility of witnesses are primarily for the trier of fact and a reviewing court must not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the State has proven the offense beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, at paragraphs one and two of the syllabus. The goal of the reviewing court is to determine whether the new trial is mandated. A reviewing court should only grant a new trial in the “exceptional case in which the evidence weighs heavily against a conviction.” State v. Lindsey, 87 Ohio St.3d 479, 2000-Ohio-465, 721 N.E.2d 995. (Internal citation omitted.)
{24} Based on the trial court‘s instructions, the jury convicted Asim of complicity to commit felonious assault in violation of
{25} Felonious assault is defined by
“(A) No person shall knowingly do either of the following:
“(1) Cause serious physical harm to another or to another‘s unborn.”
{26} Ohio‘s complicity statute,
“No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
***
“(2) Aid or abet another in committing the offense; ***”
{27} As stated by this court in State v. Langford, Cuyahoga App. No. 83301, 2004-Ohio-3733:
“In order to constitute aiding and abetting, the accused must have taken some role in causing the commission of the offense. State v. Sims (1983), 10 Ohio App.3d 56, 460 N.E.2d 672. ‘The mere presence of an accused at the scene of the crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor.’ State v. Widner (1982), 69 Ohio St.2d 267, 269, 431 N.E.2d 1025, 1027. Additionally, even if the accused has knowledge of the commission of the crime, his presence at the scene is not enough to convict him of aiding and abetting. State v. Cummings (Apr. 21, 1992), Franklin App. No. 90AP-1144, citing United States v. Head (C.A.6, 1991), 927 F.2d 1361, 1373; State v. Woods (1988), 48 Ohio App.3d 1, 2, 548 N.E.2d 954. A person aids or abets another when he supports, assists, encourages, cooperates with, advises, or incites the principal in the commission of the crime and shares the criminal intent of the principal. State v. Johnson, 93 Ohio St.3d 240, 245-246, 2001-Ohio-1336, 754 N.E.2d 796. ‘Such intent may be inferred from the circumstances surrounding the crime.’ Id. at 246, 754 N.E.2d 796.
“Aiding and abetting may be shown by both direct and circumstantial
evidence, and participation may be inferred from presence, companionship, and conduct before and after the offense is committed. State v. Cartellone (1981), 3 Ohio App.3d 145, 150, 444 N.E.2d 68, citing State v. Pruett (1971), 28 Ohio App.2d 29, 34, 273 N.E.2d 884. Aiding and abetting may also be established by overt acts of assistance such as driving a getaway car or serving as a lookout. Id. at 150, 273 N.E.2d 884. See State v. Trocodaro (1973), 36 Ohio App.2d 1, 301 N.E.2d 898.”
{28} As stated above, the description of the events that occurred on November 17, 2009 were disparate, depending on whether a State‘s witness or a defense witness provided the description. Nonetheless, viewing the evidence in the light most favorable to the prosecution, as we are required to do, we have no choice but to conclude that the state presented sufficient evidence that Asim aided and abetted in the commission of felonious assault against Kris.
{29} Specifically, Kris testified that Asim and Andreas appeared at his door that evening and that Andreas hit him with a flower pot, rendering him unconscious. Kris stated that after he regained consciousness, he observed Asim and Andreas kicking him while he was on the ground. Barbara and Steve also testified that Asim kicked Kris while he was on the ground. More importantly, Kris, Barbara, Steve, and Kenneth all testified that Asim and Andreas acted aggressively and in concert in their attack on Kris.
{30} While this evidence is not the only version before the finder of
{31} Moreover, we further find that the trier of fact did not lose its way in convicting Asim of felonious assault. Though Asim argues that his version of events should have been relied upon by the jury, the trier of fact is in the best position to weigh the evidence and the credibility of witnesses. As the reviewing court, we find that the trier of fact could reasonably conclude from the substantial evidence presented by the state, that the state has proven the offenses beyond a reasonable doubt. Accordingly, we cannot state that the trier of fact lost its way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered.
{32} Asim‘s first and fourth assignments of error are overruled.
{33} In his second and third assignments of error, Asim argues the trial court erred in its instruction to the jury. Specifically, in his second assignment of error, Asim argues the trial court erred in providing the jury with an instruction of aiding and abetting felonious assault. In his third assignment of error, he argues the trial court erred in failing to instruct the
{34} A trial court has the discretion to determine whether the evidence adduced at trial was sufficient to require a corresponding jury instruction. State v. Fulmer, 117 Ohio St.3d 326, 2008-Ohio-936, 883 N.E.2d 1052. Such a decision will not be disturbed absent a finding that the trial court abused its discretion. The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1150. Thus, an appellate court may not substitute its judgment for that of the trial court. Id. at 219. It is with this standard of review in mind that we address Asim‘s two assignments of error.
Aiding and Abetting
{35} In this assigned error, Asim argues that because there was no evidence that he aided and abetted Andreas in committing the felonious assault against Kris, the trial court erred in instructing the jury as such. However, in our analysis of Asim‘s first assignment of error we found that the State presented sufficient evidence to allow the trier of fact to deliberate
Self-Defense and Defense of a Family Member
{36} In this portion of his appeal, Asim argues the court should have instructed the jury on self-defense and defense of a family member. We disagree.
{37} A trial court does not need to instruct the jury on self-defense unless the defendant has successfully raised the affirmative defense by introducing “sufficient evidence, which, if believed, would raise a question in the minds of reasonable [triers of fact] concerning the existence of such issue.” State v. Melchior (1978), 56 Ohio St.2d 15, 381 N.E.2d 195, paragraph one of the syllabus. Evidence is sufficient where there is reasonable doubt of guilt based upon a claim of self-defense. Id. at 20. “If the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.” Id. Accordingly, if the evidence submitted at trial is believed by the trier of fact, the question is whether that evidence will create reasonable doubt of the defendant‘s guilt. A trial court does not err in refusing to include a self-defense jury instruction when the
{38} To establish self-defense at trial, the accused must show by a preponderance of the evidence that (1) he was not at fault in creating the situation giving rise to the disturbance; (2) he had a bona fide belief that he was in imminent danger of death or great bodily harm; (3) that his only means of escape from such danger was in the use of such force; and (4) he must not have violated any duty to retreat or avoid the danger. Id. at 20-21.
{39} In the present case, we agree with the trial court that Asim failed to raise a valid claim of self-defense, although, based on a different standard. The trial court considered the evidence in the light most favorable to the defendant and found that Asim failed to meet, by a preponderance of the evidence, the requirements for a self-defense instruction. However, the standard is not preponderance of the evidence, as used by the trial court, but whether there is sufficient evidence if the evidence is believed. State v. Belanger, 190 Ohio App.3d 377, 2010-Ohio-5407, 941 N.E.2d 1265; State v. Robbins (1979), 58 Ohio St.2d 74, 388 N.E.2d 755.
{40} In this case, we cannot ignore the fact that Asim was at fault in creating the situation that gave rise to the altercation with Kris. It is
{41} Even if we were to believe that Asim‘s motives for approaching the Ford family were pure and that Kris was the main aggressor toward Andreas out on the patio, we cannot ignore that Asim caused the situation resulting in Kris‘s injuries. The evidence revealed that Kris Ford and his family removed themselves from the hostile environment while Asim and his son chose to further confront the family at their home. Thus, Asim‘s own actions caused the altercation.
{42} Given these facts, a self-defense claim is inappropriate. See State v. Nichols, Scioto App. No. 01CA2775, 2002-Ohio-415. “Ohio courts have long recognized that a person cannot provoke assault or voluntarily enter an encounter and then claim a right of self-defense. Id., State v. Vines (May 29, 1975), Cuyahoga App. No. 33871; State v. Sanchez (Apr. 24, 1986), Cuyahoga App. No. 50566. We therefore agree with the trial court‘s conclusion that the evidence adduced below did not support a self-defense jury instruction.
{43} Asim‘s second and third assignments of error are overruled.
{44} In his fifth and final assignment of error, Asim argues the trial court erred in ordering him to pay $14,000 in restitution. This assigned error has merit.
{45} In this portion of Asim‘s appeal, our standard of review of the trial court‘s decision is abuse of discretion. State v. Marbury (1995), 104 Ohio App.3d 179, 661 N.E.2d 271; State v. Berman, Cuyahoga App. No. 79542, 2002-Ohio-1277. In determining restitution, a trial court abuses its discretion if evidence of the actual loss does not support the amount of restitution awarded. Marbury, Berman. Pursuant to
{46} In the present case, the state represented to the court that Kris owed medical bills of $7,740 to the hospital as well as an approximated
{47} Asim filed the instant delayed appeal on September 9, 2010. The court‘s July 30, 2010 final sentencing order contained all the required elements to constitute a final appealable order. More importantly, the order contained a finite sum of restitution. See State v. Brewer, Cuyahoga App. No. 94144, 2010-Ohio-5242. Further, there is no statutory authority allowing a trial court to exercise continuing jurisdiction to modify the amount of restitution after sentencing. Id.
{48} Accordingly, we find that the trial court erred by imposing restitution without first holding a hearing as required by
{49} Asim‘s fifth assignment of error is sustained.
Judgment affirmed in part, reversed in part, and remanded to the lower court for proceedings consistent with this opinion.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR
Assignments of Error:
“I. The appellant‘s conviction for felonious assault was not supported by sufficient evidence.”
“II. The trial court erred by instructing on a charge of aiding and abetting felonious assault.”
“III. The trial court erred in failing to instruct on self defense and defense of a family member (other).”
“IV. Defendant‘s conviction for felonious assault was against the manifest weight of the evidence.”
“V. It was error to order restitution.”