State v. Omawalli ( 2011 )


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  • [Cite as State v. Omawalli, 
    2011-Ohio-2032
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 95020
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    ABDUL OMAWALLI
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-528482
    BEFORE:        Sweeney, J., Boyle, P.J., and Celebrezze, J.
    RELEASED AND JOURNALIZED:                  April 28, 2011
    ATTORNEY FOR APPELLANT
    Thomas A. Rein, Esq.
    Leader Building, Suite 940
    526 Superior Avenue
    Cleveland, Ohio 44114
    ATTORNEYS FOR APPELLEE
    William D. Mason, Esq.
    Cuyahoga County Prosecutor
    By: Robert Botnick, Esq.
    Assistant County Prosecutor
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    JAMES J. SWEENEY, J.:
    {¶ 1} Defendant-appellant Abdul Omawalli (a.k.a. Jerry Jolly), appeals
    his convictions for felonious assault and kidnapping. For the reasons that
    follow, we affirm.
    {¶ 2} At trial, the state presented the testimony of the victim David
    Sandifer (“Sandifer”), the victim’s nephew Timothy Hawkins, and two
    officers. Defendant offered the testimony of some neighbors, his sister, and
    himself.
    {¶ 3} According to the record, Sandifer rented a house on Lawndale in
    the city of Cleveland from Judy Jolly who is defendant’s sister. Ms. Jolly
    lived out of town but her mother, along with defendant, lived next door to
    Sandifer. In July of 2009, Ms. Jolly obtained an order from the court to evict
    Sandifer. Sandifer testified that he had decided to move out of the Lawndale
    property notwithstanding the eviction proceedings.
    {¶ 4} On July 22, 2009, Sandifer returned to the Lawndale property
    where his belongings had been placed on the driveway by parties acting
    pursuant to the court order. Sandifer said he was retrieving his belongings
    when he was attacked and brutally beaten by defendant and another man
    named Rodney Glenn. He specifically recalled defendant sitting on top of
    him and hitting him. At one point, defendant became tired and asked to
    catch his breath. Sandifer recalled dragging himself to his car and driving
    away. Sandifer then encountered his nephew Timothy Hawkins, who took
    him to the hospital. Sandifer was hospitalized for several days with broken
    ribs and head injuries.
    {¶ 5} Hawkins testified that he saw his uncle driving and saw
    Sandifer’s injuries.   Hawkins insisted on taking Sandifer to the hospital.
    Sandifer told Hawkins that defendant had attacked him.
    {¶ 6} An officer responded to the hospital and made a report. Sandifer
    also provided a written statement to a police detective.     Police presented
    Sandifer with photo arrays from which he identified defendant and Rodney
    Glenn as the assailants.    The detective also interviewed defendant who
    maintained that he attacked Sandifer in self-defense.     Defendant told the
    detective that Glenn had assisted him in restraining Sandifer.
    {¶ 7} Ms. Jolly testified that she instructed defendant to keep Sandifer
    off of her Lawndale property. She did not witness the July 22nd incident.
    {¶ 8} Defendant testified that he saw Sandifer at the Lawndale
    property on July 22, 2009 and        told Sandifer to leave the premises.
    Defendant, along with several other defense witnesses, testified that Sandifer
    appeared to be reaching for a weapon.        Defendant admitted to hitting
    Sandifer but claimed he was defending himself. The men fell to the ground
    where defendant said he proceeded to search Sandifer for a weapon. Once
    defendant was satisfied that Sandifer was unarmed he went back to his
    mother’s house.
    {¶ 9} Contrary to his pretrial statement, defendant maintained at trial
    that he was not present when Glenn attacked Sandifer. Another witness
    stated that Glenn attacked Sandifer and took a gun from Sandifer’s car.
    Defendant said he went back outside and left a towel beside Sandifer who
    was bleeding. Defendant said he did not call police because he did not feel
    sorry for Sandifer. None of the other alleged eyewitnesses called the police
    either.
    {¶ 10} The trial court charged the jury with instructions that included
    complicity and self-defense instructions as well as charges on the lesser
    included offense of misdemeanor assault. Following the verdict, the court
    merged the convictions and imposed a three year prison term.
    {¶ 11} “Assignment of Error I: The Trial Court Erred in Denying
    Appellant’s Motion for Acquittal as to the Charges When the State Failed to
    Present Sufficient Evidence Against Appellant.”
    {¶ 12} An appellate court’s function when reviewing the sufficiency of
    the evidence to support a criminal conviction is to examine the evidence
    admitted at trial to determine whether such evidence, if believed, would
    convince the average mind of the defendant's guilt beyond a reasonable doubt.
    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. State v.
    Thompkins, 
    78 Ohio St.3d 380
    , 386, 
    1997-Ohio-52
    , 
    678 N.E.2d 541
    .
    {¶ 13} Defendant bases this assignment of error on his belief that there
    is insufficient evidence to conclude that he acted in complicity with Rodney
    Glenn.
    {¶ 14} Construing the evidence in a light most favorable to the state, as
    we must, there was sufficient evidence to deny defendant’s motions for
    acquittal.   Sandifer testified that defendant assaulted him along with
    Rodney Glenn. Sandifer denied provoking the incident and maintained that
    he did not have a weapon.        Although defendant and others testified that
    Sandifer appeared to be reaching for a weapon, the evidence is unrefuted that
    Sandifer did not have a weapon on his person. Defendant admitted to the
    police that he hit Sandifer but claimed it was in self-defense. Defendant also
    told the detective that Glenn helped him restrain Sandifer. However, at trial
    defendant claimed that he was not there when Glenn attacked Sandifer.
    There was sufficient evidence presented from which reasonable minds could
    conclude that Glenn and defendant acted with complicity in attacking
    Sandifer.
    {¶ 15} At trial, defendant again admitted that he hit Sandifer and
    restrained him and continued to maintain that he did so in self-defense. 1
    Sandifer testified that he did not provoke the attack, he did not have a
    weapon and defendant and Glenn attacked him at the same time. Based on
    the evidence that was presented, the trial court did not err by denying
    defendant’s motions for acquittal in this case. This assignment of error is
    overruled.
    1
    To the extent defendant claimed self-defense, this was an affirmative
    defense, the determination of which is within the province of the jury, and is
    generally not relevant to an examination of the sufficiency of the evidence. State v.
    Goff, 
    128 Ohio St.3d 169
    , 
    2010-Ohio-6317
    , ¶36, 
    942 N.E.2d 1075
    .
    {¶ 16} “Assignment of Error II: Appellant’s convictions are against the
    manifest weight of the evidence.”
    {¶ 17} “Assignment of Error III: The trial court denied Appellant of his
    rights under the Sixth and Fourteenth Amendments to the U.S. Constitution
    and the Ohio Constitution when it did not permit proper and necessary
    cross-examination of a witness after the witness opened the door by lying
    under oath.”
    {¶ 18} Because we find defendant’s arguments under these assignments
    of error interdependent, we address them together.
    {¶ 19} To warrant reversal of a verdict under a manifest weight of the
    evidence claim, this court must review the entire record, weigh the evidence
    and all reasonable inferences, consider the credibility of witnesses, and
    determine whether, in resolving conflicts in evidence, the jury clearly lost its
    way and created such a manifest miscarriage of justice that the judgment
    must be reversed and a new trial ordered. Thompkins, supra.
    {¶ 20} Defendant contends the jury lost its way by convicting him.
    Defendant argues that the jury would not have convicted him if they were
    allowed to hear about Sandifer’s prior conviction for carrying a concealed
    weapon.       Defendant further contends that Sandifer lied about this
    conviction.
    {¶ 21} During direct examination, Sandifer testified that he sometimes
    carried a gun for work and did not carry one for any other purpose. On
    cross-examination, the defense, without prior notice to the state, attempted to
    elicit testimony from Sandifer regarding a 24-year-old conviction for carrying
    a concealed weapon. The state objected and the trial court held an extensive
    hearing on the matter, which included a voir dire examination of Sandifer.
    The defense maintained the conviction was admissible because Sandifer had
    lied about it by saying he had only carried a weapon for purposes of work.
    Sandifer stated that he had been driving passengers after work when he was
    stopped by police. Sandifer maintained that a passenger had placed the gun
    in his car. Sandifer stated he was charged with the offense because the gun
    was found in his car and further stated that he pled guilty to the offense upon
    the advice of his counsel. After the hearing, the trial court found Sandifer
    had not lied and excluded the evidence.
    {¶ 22} On appeal, defendant refers to Evid.R. 609, Evid.R. 613(C) and
    relies on State v. Billings (1995), 
    103 Ohio App.3d 343
    , 
    659 N.E.2d 799
    , and
    State v. Pickett, Cuyahoga App. No. 88265, 
    2007-Ohio-3899
    .
    {¶ 23} Evid.R. 609(A) and (B) provide:
    {¶ 24} “(A) General rule
    {¶ 25} “For the purpose of attacking the credibility of a witness:
    {¶ 26} “(1) Subject to Evid.R. 403, evidence that a witness other than the
    accused has been convicted of a crime is admissible if the crime was
    punishable by death or imprisonment in excess of one year pursuant to the
    law under which the witness was convicted.
    {¶ 27} “(2) Notwithstanding Evid.R. 403(A), but subject to Evid.R.
    403(B), evidence that the accused has been convicted of a crime is admissible
    if the crime was punishable by death or imprisonment in excess of one year
    pursuant to the law under which the accused was convicted and if the court
    determines that the probative value of the evidence outweighs the danger of
    unfair prejudice, of confusion of the issues, or of misleading the jury.
    {¶ 28} “(3) Notwithstanding Evid.R. 403(A), but subject to Evid.R.
    403(B), evidence that any witness, including an accused, has been convicted
    of a crime is admissible if the crime involved dishonesty or false statement,
    regardless of the punishment and whether based upon state or federal statute
    or local ordinance.
    {¶ 29} “(B) Time limit
    {¶ 30} “Evidence of a conviction under this rule is not admissible if a
    period of more than ten years has elapsed since the date of the conviction or
    of the release of the witness from the confinement, or the termination of
    community control sanctions, post-release control, or probation, shock
    probation, parole, or shock parole imposed for that conviction, whichever is
    the later date, unless the court determines, in the interests of justice, that the
    probative   value     of   the   conviction   supported   by   specific   facts   and
    circumstances substantially outweighs its prejudicial effect. However,
    evidence of a conviction more than ten years old as calculated herein, is not
    admissible unless the proponent gives to the adverse party sufficient advance
    written notice of intent to use such evidence to provide the adverse party with
    a fair opportunity to contest the use of such evidence.”
    {¶ 31} In this case, the trial court determined that Sandifer had not lied
    or opened the door to the admission of the otherwise inadmissible 24-year-old
    conviction. 2   A trial court is afforded broad discretion in determining the
    extent to which such evidence may be admitted under Evid.R. 609. State v.
    Wright (1990), 
    48 Ohio St.3d 5
    , 
    548 N.E.2d 923
    , syllabus, (“Evid.R. 609 must
    be considered in conjunction with Evid.R. 403. The trial judge therefore has
    broad discretion in determining the extent to which testimony will be
    admitted under Evid.R. 609. When exercising this discretion, all relevant
    factors must be weighed.”); see, also, State v. Fluellen (1993), 
    88 Ohio App.3d 18
    , 22, 
    623 N.E.2d 98
     (in order to admit conviction over ten years old
    pursuant to Evid.R. 609(B) court must determine “that the probative value of
    2
    Sandifer was asked during voir dire as to whether “there ever was a time in
    [his] life when he carried a gun not for his job?” and he said, “No. No. * * *.” He
    was also asked this question in relation to “when [he] got convicted 24 years ago,”
    and he said, “That was a situation where I didn’t even know the pistol was in the
    car. That is what I am saying. I didn’t even know where it was found at. When
    that was introduced to me, I was overwhelmed. I didn’t even know.” Finally,
    Sandifer was asked, “So you believe that to be the truth, you don’t carry a gun
    unless you were at work?” He testified, “I believe that to be the truth. I know it’s
    the truth.”
    the conviction supported by specific facts and circumstances substantially
    outweighs its prejudicial effect.”). The trial court did not abuse its discretion
    by excluding testimony concerning Sandifer’s 24-year-old conviction for
    carrying a concealed weapon pursuant to Evid.R. 609 and Evid.R. 403.
    {¶ 32} Billings and Pickett are distinguishable from this case.         In
    Billings, this court affirmed admission of a misdemeanor conviction,
    reasoning that it was admitted “not to impeach the defendant’s credibility by
    showing conviction of a misdemeanor, but rather to demonstrate the
    defendant was not truthful about a specific incident involving the domestic
    violence issue.” Billings, 103 Ohio App.3d at 346. In this case, the defense
    maintained that Sandifer’s conviction was admissible to impeach his
    credibility, i.e. to prove that he was lying when he said he only carried a gun
    for work purposes.
    {¶ 33} In Pickett, this court examined the extent to which the defense
    can inquire of a sexual assault victim pursuant to Evid.R. 608(B) as to his/her
    prior false allegations of sexual abuse.     This court observed that “‘[t]he
    decision to admit evidence of earlier misconduct of a witness for impeachment
    under Evid.R. 608(B) is within the sound discretion of the trial court.’”
    Pickett, 
    2007-Ohio-3899
    , ¶11, quoting, State v. Drummond, 
    111 Ohio St.3d 14
    ,
    
    2006-Ohio-5084
    , 
    854 N.E.2d 1038
    , at ¶100, quoting State v. Boggs (1992), 
    63 Ohio St.3d 418
    , 424, 
    588 N.E.2d 813
    . Evid.R. 608(B) provides:
    {¶ 34} “Specific instances of the conduct of a witness, for the purpose of
    attacking or supporting the witness’s character for truthfulness, other than
    conviction of a crime as provided in Evid.R. 609, may not be proved by
    extrinsic evidence. They may, however, in the discretion of the court, if clearly
    probative   of   truthfulness   or   untruthfulness,   be   inquired   into   on
    cross-examination of the witness (1) concerning the witness’s character for
    truthfulness or untruthfulness, or (2) concerning the character for
    truthfulness or untruthfulness of another witness as to which character the
    witness being cross-examined has testified * * *.”
    {¶ 35} The trial court determined that Sandifer had not lied and that his
    24-year-old conviction, therefore, would not be probative of his truthfulness.
    Accordingly, the trial court did not abuse its discretion by excluding this
    evidence pursuant to Evid.R. 608(B).
    {¶ 36} Finally, defendant asserts that the evidence was admissible
    pursuant to Evid.R. 613(B) and (C) to the extent the 24-year-old conviction
    could be construed as a prior inconsistent statement or conduct by Sandifer.
    The court concluded that Sandifer’s trial testimony was not inconsistent with
    his prior conviction for carrying a concealed weapon. The court’s ruling is
    supported by the voir dire examination of Sandifer that occurred outside the
    presence of the jury.    The exclusion of the 24-year-old conviction did not
    violate Evid.R. 613(B) or (C). The third assignment of error is overruled.
    {¶ 37} There was ample testimony that supported the jury’s verdict that
    found defendant guilty of felonious assault and kidnapping.          The jury’s
    verdict was not against the manifest weight of the evidence.        The second
    assignment of error is overruled.
    Judgment affirmed.
    It is ordered that appellee recover from appellant 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. The defendant's
    conviction having been affirmed, any bail pending appeal is terminated.
    Case remanded to the trial court for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    JAMES J. SWEENEY, JUDGE
    MARY J. BOYLE, P.J., and
    FRANK D. CELEBREZZE, JR., J., CONCUR
    

Document Info

Docket Number: 95020

Judges: Sweeney

Filed Date: 4/28/2011

Precedential Status: Precedential

Modified Date: 10/30/2014