State v. Sekic , 2011 Ohio 4809 ( 2011 )

[Cite as State v. Sekic, 2011-Ohio-4809.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95679
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ASIM SEKIC
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-531300
BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 22, 2011
2
ATTORNEY FOR APPELLANT
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
3
reasons, we affirm in part, reverse in part, and remand for proceedings
consistent with this opinion.
{¶ 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
4
confrontation by lingering in the store, but as he exited, Steve had pulled his
vehicle directly behind his, blocking Andreas from leaving the store.
Andreas stated that he got into the vehicle and, after Steve pulled away, he
left Drug Mart.
{¶ 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.
5
{¶ 7} The Sekics arrived at the Fords’ apartment and Andreas and
Asim walked to a depressed patio with Vanessa following behind. Andreas
testified that this was the normal point of entry to the residence. Andreas
knocked on the sliding patio door and Kris answered. Almost immediately,
according to Andreas, Steve appeared in the doorway and began using
profane language, asking who Asim was and ordering both men off of the
property. Andreas stated that he and his father never got the chance to talk
about their problems with the Fords because Kris and Steve were
immediately aggressive. More specifically, Kris and Steve, and later,
Kenneth, began approaching Andreas and forcing him to back up on the
patio. Andreas testified that Kris attempted to strike him with his elbow
and Andreas leaned back to avoid getting hit. As he leaned back, Andreas
grabbed a nearby planter and threw it. Andreas admitted that the planter
hit Kris in the head but that Kris stayed on his feet and the two began
exchanging punches. Andreas stated that he and Kris eventually separated
and that he, Asim, and Vanessa left the Fords’ property. Andreas stated
that his father never hit anyone while they were at the residence and that he
never meant to hurt anyone.
{¶ 8} Vanessa’s testimony was consistent with that of Andreas’s and
she further testified that Kris bumped Andreas with his chest. Moreover,
6
medical records support Andreas’s testimony that Kris never lost
consciousness after being struck with the flower pot.
{¶ 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
7
said that he wanted to “settle this right now.” Kris then claimed that Asim
grabbed Andreas and said “hand me the gun.” Kris turned to see where the
rest of his family was and when he turned back, Andreas threw a flower pot
at his head. Kris was knocked unconscious and when he came to, Andreas
and Asim were kicking him while he was on the ground. Kris further
claimed that Andreas also hit him with a chair from the patio. Kris stated
that Andreas and Asim continued to beat him until their sister Vanessa said
that she had the gun and that the police had been called.
{¶ 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
8
Kris. However, Kenneth stated that when Asim entered the apartment, he
growled at everyone like a bear. Additionally, Kenneth stated that someone
from outside the apartment threw a flower pot filled with rocks, which struck
him in the face.
{¶ 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
9
$14,000 in restitution.1
{¶ 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
1
On February 10, 2011, the trial court granted Asim’s request for judicial
release and placed him on three years of community controlled sanctions. Further,
on March 14, 2011, the court held a restitution hearing and, after Kris Ford failed
to appear and thus failed to present any evidence of loss, vacated the order of
restitution.
10
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 R.C. 2923.03(A)(2) and
11
2903.11(A)(1), related to the victim, Kris Ford.
{¶ 25} Felonious assault is defined by R.C. 2903.11(A)(1) as follows:
“(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, R.C. 2923.03(A), provides, in pertinent
part:
“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
12
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 lying on the ground.
Barbara and Steve also testified that Asim kicked Kris while he was lying 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
13
fact, this is the evidence that most supports the state’s case. Accordingly,
viewing the evidence in the light most favorable to the prosecution, we
conclude that the state presented sufficient evidence that Asim supported,
assisted, and cooperated with Andreas in the felonious assault of Kris.
{¶ 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
14
jury on self-defense and defense of a family member. Because these
assignments of error involve the same legal standard, we shall address them
contemporaneously.
{¶ 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
15
the charge. Accordingly, we further find that there was sufficient evidence
from which the trial court could correctly charge the jury with aiding and
abetting.
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
16
evidence does not support the claim. Id. at 22.
{¶ 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
17
uncontroverted that Andreas had an incident with Steve, Kenneth, and Kris
Ford at Drug Mart parking lot and later, with Steve at a local convenient
store parking lot. Andreas testified that because of these two encounters, he
was angry and scared and called his father for help. Andreas suggested
that he and Asim go over to the Ford’s residence to sort out their issues.
Asim agreed. It is equally uncontroverted that at this point, the Ford family
members had removed themselves from the scenes where these two incidents
had occurred. It was Asim and his son who chose to further stoke the fires
and arrive at the Ford residence that evening.
{¶ 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
18
(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 R.C. 2929.18(A)(1), a
court may order restitution to compensate victims of crimes under certain
conditions. If the court chooses to impose restitution at sentencing, it must
do so in open court at that time, and also hold a hearing on restitution if the
offender disputes the amount. Id.{¶ 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
19
future cost of $6,800 to fix a scar on his forehead related to this incident.
Asim disputed this amount of restitution at sentencing. However, rather
than hold a hearing as required by R.C. 2929.18(A)(1), the trial court
imposed the finite sum of $14,0002 in restitution and stated that it would
allow Asim and Andreas to file opposing briefs.
{¶ 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 R.C. 2929.18(A)(1)
to ascertain the amount of loss suffered by the victim. We therefore reverse
the order of restitution in the sentencing entry and remand for further
2
While the transcript of the sentencing hearing reflects a restitution order of
$14,500, Asim’s journal entry at sentencing lists the order of restitution at $14,000.
It is a fundamental principle of appellate review that the court speaks only
through its journal. Kaine v. Marion Prison Warden, 88 Ohio St.3d 454,
2000-Ohio-381, 727 N.E.2d 907; State v. Ahmed, Cuyahoga App. No. 88315,
2007-Ohio-2639. Accordingly, we shall refer to the amount as reflected in the
court’s docket.
20
proceedings consistent with this opinion.3
{¶ 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
3
As noted in footnote one, the trial court did hold a hearing on restitution
after the initiation of this appeal and did vacate the award of restitution ordered.
Nonetheless, as held above, this court was without jurisdiction to do so. Brewer.
21
Appendix
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.”