STATE OF OHIO v. MAYAN SHAH
Appellate Case No. 25855
Trial Court Case No. 2012-CRB-7728
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
April 4, 2014
[Cite as State v. Shah, 2014-Ohio-1449.]
WELBAUM, J.
Criminal Appeal from Municipal Court
Rendered on the 4th day of April, 2014.
SHAUNA HILL, Atty. Rеg. No. 0074569, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 West Second Street, Suite 2150, P.O. Box 1262, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
WELBAUM, J.
{¶ 1} Defendant-Appellant, Mayan Shah, appeals from his conviction and sentence,
{¶ 2} We conclude that the trial court did not abuse its discretion in denying the motion in liminе. Any delay in disclosing a state witness was not the State’s fault, and Shah did not show prejudice, because he elected not to ask for a continuance. The testimony of the witness was also properly admitted under Evid.R. 404(B).
{¶ 3} We further conclude that the judgment was supported by sufficient evidence, and was not against the manifest weight of the evidence. The victim’s testimony was supported by sufficient corroboration, and Shah’s voluntary intoxication could not be taken into consideration to determine the existence of a mental state that is an element of the crime that was charged. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} In September 2013, the State filed a complaint in Dayton Municipal Court, alleging that Mayan Shah had committed Sexual Imposition in violation of
{¶ 5} Shah was one of the patrons of the Ale Fest. Shah had been in the Air Force
{¶ 6} M.P., her brother, and a mutual friend also attended the Ale Fest.1 M.P. and the rest of her party arrived near the start of the festival and left between 4:00 and 4:30 p.m. They were being picked up by M.P.’s sister-in-law, and went to a parking lot to the right of the structure that contained the Carillon bells to wait for their ride. M.P.’s feet were bothering her, so she told her brother and friend that she was going to go sit by a tree. M.P. had on a sundress and sat down with her knees together. A man, later identified as Shah, was directly in front of M.P., and was standing. M.P. had never seen him before. M.P. noticed Shah immediately because he was in her line of sight and he was looking at her. Shah did not say anything at that point, but continued to stand and stare.
{¶ 7} Because M.P. felt uncomfortable, she averted her eyes. When she glanced back, Shah was still staring, and he began to make a hand movement. His palms were touching and he was slowly moving them outward while staring at her. M.P.’s first reaction was that Shah wanted her to spread her knees apart, but she dismissed that because she did not know what he was doing. Out of her peripheral vision, she continued to see Shah making that motion.
{¶ 8} M.P. described Shah as looking “out of it,” and more than drunk. He was standing, making a strange gesture. M.P. thought Shah might be using sign language, so she told him that she did not know what he was saying. However, she did not believe he heard her. M.P. then made a gesture, and Shah walked over immediately. He kneeled down, with his face
{¶ 9} M.P. was very scared, immediately said no thank you, and went over to her brother. After she told him what Shah had said, their group moved to another part of the parking lot. M.P.’s sister-in-law arrived a few minutes later to pick them up, and they left. M.P. never went to the police about the incident, nor did she file any chargеs.
{¶ 10} On the same day, the victim, A.P., and two other women, Y.M. and S.P., were volunteering at the Ale Fest. All three women were employed as servers or hostesses at a local bar/restaurant, and they had volunteered to serve drinks for that bar/restaurant at the festival. They were dressed in the uniforms they normally wore to work, which consisted of tank tops, middle-length plaid skirts, and knee-high plaid socks or tights. A.P.’s boyfriend, L., was at the festival as a patron.
{¶ 11} The festival lasted from 2:00 p.m. until 5:00 p.m. After finishing work and talking with some friends, A.P., L., Y.M., and S.P. left the festival at around 5:30 p.m. On the way to the parking lot, they decided to stop at a large tree and take pictures. Y.M. stood on a stump about a foot and a half off the ground, on the left side. A.P. and S.P. were standing in a V-shaped area of the tree, about two to three feet off the ground. A.P. was in the middle, between Y.M. and S.P., and L. was taking pictures of them.
{¶ 12} While the pictures were being taken, S.P. felt a breeze by her skirt and realized that someone behind her had lifted up her skirt. She was in shock, and asked the person why he was doing that. She looked around and saw Shah. She asked Shah not to do that again. Shah
{¶ 13} A.P. stated that she felt Shah go up her skirt and touch her vagina. She could feel his fingers or his hand, and felt movement of his hand. She was in shock and felt really violated. Both S.P. and Y.M. told Shah to get away immediately. Shah did not have any reaction to what the women said. He stood there, without an expression or a responsе, and then walked away.
{¶ 14} After Shah walked away, A.P., L., S.P., and Y.M. walked to their car. However, they saw children in the area where Shah was walking, and decided to tell the authorities what had happened. They found Dayton Police Officer, Johnny Watts, who was working at the festival, and told him that Shah had touched them inappropriately. They pointed out Shah, and Watts then went to speak with Shah. Watts indicated that Shah said very little about the incident. Shah had been drinking and seemed somewhat confused. Shah refused or was unable to give the police his address, and gave thеm a post office box number instead. After speaking with a supervisor, the police transported Shah to Wright Patterson Air Force Base (WPAFB), and released him to the military police.
{¶ 15} The Sexual Imposition charge was filed against Shah a few weeks later, on September 13, 2012. After some delays, the case was scheduled for trial on June 6, 2013. In the meantime, M.P. (the woman from the parking lot) accidentally encountered Shah at WPAFB, where they both worked. M.P. was a civilian worker at WPAFB. A few days after the Ale Fest,
{¶ 16} During the afternoon, M.P. saw Shah walk by, and recognized him as the man who had accosted her at the festival. They did not speak, and Shah walked into a door close to where M.P. was standing. Shah was in uniform. Later that afternoon, Shah walked out and saw M.P. standing there. Shah came up to her and asked if she needed help. This was not an unusual occurrence at WPAFB, as military members are supposed to question why peoрle in civilian dress are standing around. The encounter felt very normal, and had M.P. not had a previous encounter with Shah, there would have been no issue.
{¶ 17} M.P. looked at Shah’s name tag, and then looked Shah up on the global address directory. She discovered that Shah was a colonel. She told a co-worker about the situation and kept Shah’s name for future reference in case there were any issues at work.
{¶ 18} Apparently, the media only became aware of Shah’s case shortly before the trial that was scheduled for June 6, 2013. M.P. learned of the case through an article in the Dayton Daily News, and contacted the authorities. On June 4, 2013, the Dayton City prosecutor learned that M.P. was a potential witness, and notified Shah’s counsel that afternoon. The prosecutor and Shah’s counsel then interviewed M.P. together on June 5, 2013. At the urging of Shah’s counsel, the court held a hearing the same day to address a motion in limine seeking to preclude M.P.’s testimony. At the hearing, the parties outlined the situation, and Shah objected to M.P.’s testimony on two grounds: (1) that the late disclosure of the witness hampered thе defense’s ability to prepare for trial; and (2) that the testimony should be excluded under Evid.R. 404.
{¶ 20} After hearing the evidence, the jury found Shah guilty, as charged. The court then sentenced Shah to 60 days in jail, with 60 days suspended, 180 days of electronic home detention, with release for work, three years of intensive supervised probatiоn, and other community control sanctions. The court also required Shah to register as a Tier I sex offender. Shah now appeals from his conviction and sentence.
II. Did the Trial Court Err in Denying Shah’s Motion in Limine?
{¶ 21} Shah’s First Assignment of Error states that:
The Trial Court Erred in Denying Appellant’s Motion in Limine, Permitting Other Acts Evidence at Trial that Was Inadmissible.
{¶ 22} Under this assignment of error, Shah contends that the trial court erred in overruling the motion in limine and allowing M.P.’s testimony at trial. Shah first argues that the late disclosure did not provide adequate time to investigate M.P. as a witness. In this regard, Shah stresses the fact that, according to M.P., оther witnesses were present when M.P. and Shah
{¶ 23} The purpose of Crim.R. 16 is “to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large.” Crim.R. 16(A). Under this rule, parties are required to disclose various information to each other, including witness lists. See, e.g., Crim.R. 16(I). If the court finds that a party has failed to comply with Crim.R. 16, “the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances.” Crim.R. 16(L)(1).
{¶ 24} “Appellate courts review allegations of noncompliance with criminal discovery rules under the abuse of discretion standard.” State v. Adams, 7th Dist. Mahoning No. 00 CA 211, 2006-Ohio-1761, ¶ 40, citing State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983). Recently, the Supreme Court of Ohio noted that:
In Parson, 6 Ohio St.3d 442, 453 N.E.2d 689, we established three factors that should govern a trial court‘s exercise of discretion in imposing a sanction for a discovery violation committed by the prosecution. The three Parson factors a judge should consider are (1) whether the failure to disclose was a willful violation of Crim.R. 16, (2) whether foreknowledge of the undisclosed material would have benefited the accused in the preparation of a defense, and (3) whether the accused was prejudiced. State v. Darmond, 135 Ohio St.3d 343,
2013-Ohio-966, 986 N.E.2d 971, ¶ 35, citing Parson at syllabus.
{¶ 25} After reviewing the record, we find that the trial court did not abuse its discretion. First, there was no willful violation, and no violation at аll, really. As the trial court noted, the prosecution was not at fault for the late disclosure. The prosecution disclosed M.P. to the defense the same day that it learned of her identity, and both parties interviewed the witness at the same time. Further, with regard to the two remaining factors, M.P. testified that her brother and friend were watching for their ride and were not with her when the incident occurred. Thus, they would have had nothing to contribute, other than to possibly verify her reaction after the fact. M.P. also indicated that she had never met Shah before, and only accidently met him at work after the incident. Thus, the record offers no indication that there was anything pertinent to discover.
{¶ 26} However, even if these facts were otherwise, Shah has failed to establish prejudice, because he elected not to ask for a continuance. The trial court offered this option twice as a possibility, but Shah elected to continue with the trial as scheduled. Accordingly, Shah cannot now complain about any potential prejudice caused by the late disclosure.
{¶ 27} Shah’s second argument is that the motion in limine should have been granted because M.P.’s testimony was not admissible under Evid.R. 404(B). According to Shah, his interaction with M.P. was unrelated to the victim’s allegation, and the evidence of the interaction was unduly prejudicial. In contrast, the State contends that the evidence was properly admitted as proof of intent or motive.
{¶ 28} Evid. R. 404(B) provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proоf of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
{¶ 29} “Trial court decisions regarding the admissibility of other-acts evidence under Evid.R. 404(B) are evidentiary determinations that rest within the sоund discretion of the trial court. Appeals of such decisions are considered by an appellate court under an abuse-of-discretion standard of review.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, syllabus. “ ‘Abuse of discretion’ has been described as including a ruling that lacks a ‘sound reasoning process.’ ” Id. at ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 30} In arguing that the “other acts” evidence was improperly admitted, Shah relies on State v. Shaw, 2d Dist. Montgomery No. 21880, 2008-Ohio-1317. In Shaw, we held that the trial court abused its discretion by admitting an “extensive amount of ‘other acts’ evidence, particularly since the court gаve no limiting instruction regarding that evidence.” Id. at ¶ 9. Shaw is distinguishable, however, due to the extensive and repeated testimony allowed in that case about years of abuse that was alleged to have occurred multiple times each week regarding each of the defendant’s three daughters, when the defendant was only charged with fifteen counts of Rape and ten counts of Sexual Battery. Id. at ¶ 11-12 and 21. In addition, we relied on the
{¶ 31} In the case before us, the State presented a minimal amount of evidence about an incident that occurred very shortly before the alleged crime. This was appropriate, because of the State’s burden of proof, and because Shah placed his state of mind, or purpose, at issue.
{¶ 32} Shah was charged with having violated
No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact whеn any of the following applies:
(1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.
{¶ 33} “Sexual contact” is defined in
{¶ 34} At trial, the defense theory was that Shah was too intoxicated to form the purpose of sexual gratification. June 6, 2013 Trial Transcript, Volume III, pp. 275-279. Bеcause Shah placed his ability to form a purpose of sexual gratification in question, the State was entitled to present evidence indicating that a very short time before the crime, Shah had approached another woman for the purpose of sexual gratification. Furthermore, the State was
{¶ 35} In State v. Burson, 38 Ohio St.2d 157, 311 N.E.2d 526 (1974), the Supreme Court of Ohio noted that “[t]he other acts of the defendant must have such a temporal, modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question. The evidence is then admissible to the extent it may be relevant in showing the defendant acted in the absence of mistake or accident.” Id. at 159.
{¶ 36} In a situation similar to the present, we found no error in the admission of evidence relating to the defendant’s implied sexual activity with another female near the time of an alleged crime, when the charged crime required the State to prove that the defendant “acted with a ‘sexual motivation.’ ” State v. Johnson, 2d Dist. Montgomery No. 23508, 2011-Ohio-1133, ¶ 45. In this regard, we commented that:
The fact that, two hours after he had asked D.W., a twelve-year old girl, to “come here, little girl,” while standing on the porch of his house, Defendant was found inside the house with another young female and in a state of sexual arousal, is probative of the allegation that Defendant acted with a sexual motivation in his encounter with D.W. Any dissimilarities in the two episodes goes to the weight of the other act evidence admitted, not its admissibility. Id. at ¶ 56.
{¶ 37} Accordingly, the trial court did not abuse its discretion in overruling the motion in limine and in allowing M.P.’s tеstimony.
{¶ 38} Shah’s final argument is that the trial court committed reversible error in failing to instruct the jury that M.P.’s testimony was for a limited purpose. In this regard, Shah relies on
{¶ 39} As a preliminary matter, we note that Shah failed to request a limiting instruction at trial, and has, therefore, waived all but plain error. State v. Moore, 2d Dist. Greene No. 2010 CA 13, 2011-Ohio-636, ¶ 23. We stated in Moore that:
Plain error may be noticed if a manifest injustice is demonstrated. Crim.R. 52(B); State v. Herrera, Ottawa App. No. OT–05–039, 2006-Ohio-3053. In order to find a manifest miscarriage of justice, it must appear from the record as a whole that but for the error, the outcome of the trial clearly would have been otherwise. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804. The Supreme Court of Ohio has held that, when the defense fails to request a limiting instruction on other acts evidence, the trial court‘s failure to give such an instruction is not plain error if “[n]othing suggests that the jury used ‘other acts’ evidence to convict [the defendant] because [he] was a bad person.” State v. Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009-Ohio-6179, ¶ 136, citing State v. Diar, 120 Ohio St.3d 460, 900 N.E.2d 565, 2008-Ohio-6266, ¶ 91, citing State v. Grant (1993), 67 Ohio St.3d 465, 472, 620 N.E.2d 50. The record of this case in no way suggests that the jury relied on the other acts evidence to convict Moore. Thus, we conclude that the trial court‘s failure to give a limiting instruction related to the prior bad acts was not plain error. Moore at ¶ 24.
{¶ 40} Likewise, in the case before us, there is no indication that the jury used the other acts evidence to convict Shah because he was a bad person, and the record does not suggest that the jury relied on the other acts evidence to convict Shah. The State presented evidence that
{¶ 41} Aсcordingly, Shah’s First Assignment of Error is overruled.
III. Did the State Present Sufficient Evidence to Support a Conviction?
{¶ 42} Shah’s Second Assignment of Error states as follows:
There Was Insufficient Evidence Presented at Trial to Support a Conviction.
{¶ 43} Under this assignment of error, Shah contends that the trial court erred in failing to grant his Crim.R. 29 motion for acquittal, because there was no evidence of sexual gratification, and there was insufficient corroboration to convict him of the crime. Shah also includes what appears to be a manifest weight challenge, even though he did not specifically state this in his assignment of error.
{¶ 44} “A sufficiency-of-the-evidence argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law.” State v. Cherry, 171 Ohio App.3d 375, 2007-Ohio-2133, 870 N.E.2d 808, ¶ 9 (2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “The proper test to apply to the inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492: ‘An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal
{¶ 45} In contrast, “[w]hen a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, 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. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting Thompkins at 387. “A judgment should be reversed as being against the manifest weight of the evidence ‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 46} “Although sufficiency and manifest weight are different legal concepts, mаnifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.” (Citation omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. As a result, “a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 47} After reviewing the entirety of the record, we find that the conviction is not
{¶ 48} In arguing that the evidence was insufficient, Shah also contends that the State failed to present corroborating evidence, as required by
{¶ 49}
{¶ 50} In State v. Rossi, 2d Dist. Montgomery No. 22803, 2009-Ohio-1963, the only two parties present at the time of the alleged sеxual imposition were the defendant and the victim. Id. at ¶ 18-27. However, we rejected the defendant’s claim of lack of sufficient corroboration, noting that:
In State v. Economo, the only evidence corroborating any element of the offense was that the alleged victim promptly reported the incident to the
authorities, appeared to be upset, and did not want to be alone with the alleged perpetrator of the offense. These circumstances were deemed to constitute sufficient corroboration. In the case before us, M.G. reрorted the alleged offense within three hours of its occurrence to appropriate authorities, and appeared to be upset. Both of these circumstances are similar to the circumstances deemed to constitute sufficient corroboration in State v. Economo, supra. Rossi at ¶ 38.
{¶ 51} In the present case, there was far more corroboration than in either Rossi or Economo. S.P. testified that she saw Shah’s hand go up A.P.’s skirt. A.P., the victim, stated that she was in shock after the incident, felt really violated, and was pretty quiet. One of the other witnesses, Y.M., corroborated the fact that A.P. wаs really quiet when they got to the car. Y.M. also said that A.P. appeared to be stunned. Accordingly, there was more than adequate corroboration of A.P.’s testimony.
{¶ 52} Shah’s final argument is that there was evidence showing that he lacked the physical ability to touch A.P. for sexual gratification, or to know that the touching would be offensive to her, because he was highly impaired due to alcohol. We disagree.
{¶ 53}
Voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a сriminal offense. Voluntary intoxication does not relieve a person of a duty to act if failure to act constitutes a criminal offense. [E]vidence that a person was voluntarily intoxicated may be admissible to show whether or not the person was physically capable of performing the act with which the person is charged.
{¶ 55} Shah also recalled being transported to WPAFB by a femalе police officer, and then being transported to his home by a first sergeant in his military organization. In addition, although Shah appeared intoxicated and had a moderate odor of alcohol, he was able to speak with the police officers after the incident. Finally, none of the witnesses indicated that Shah had difficultly walking or keeping his balance.
{¶ 56} Accordingly, the judgment was supported by sufficient evidence, and it was not against the manifest weight of the evidence. Shah’s Second Assignment of Error, therefore, is overruled.
IV. Conclusion
{¶ 57} All of Shah’s assignments of error having been overruled, the judgment of the trial court is affirmed.
Copies mailed to:
Shauna Hill
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Christopher D. Roberts