State v. Abdi , 2011 Ohio 3550 ( 2011 )

[Cite as State v. Abdi, 2011-Ohio-3550.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
State of Ohio, :
:
Plaintiff-Appellee, : Case No: 09CA35
:
v. :
: DECISION AND
Abdifatah Abdi, : JUDGMENT ENTRY.
:
Defendant-Appellant. : File-stamped date: 7-11-11
APPEARANCES:
Russell S. Bensing, Cleveland, Ohio, for Appellant.
C. David Warren, Athens County Prosecutor, and Keller J. Blackburn, Athens County
Assistant Prosecutor, Athens, Ohio, for Appellee.
Kline, J.:
{¶1} Abdifatah Abdi (hereinafter “Abdi”)1 appeals his convictions for two counts of
aggravated robbery, each with a firearm specification, and one count of murder, which
also carried a firearm specification. Abdi first contends that aggravated robbery and
felony murder are allied offenses of similar import. Because aggravated robbery and
felony murder are allied offenses of similar import, we agree. Therefore, we remand the
case to the trial court to consider (1) whether Abdi committed felony murder and
1
Initially, we note that several individuals have faced criminal charges related to the events at issue in
this case. Several witnesses testified in each of the cases. In some instances, a name of a particular
witness may be spelled differently in other cases than the spelling in this case. We have elected to spell
witnesses’ names consistent with the spelling in the official trial transcript of this case.
Athens App. No. 09CA35 2
aggravated robbery separately or (2) whether he committed the crimes with a separate
animus.
{¶2} Abdi next contends that the trial court erred when it denied Abdi’s motion for a
change of venue. Because Abdi failed to show that any jurors were actually biased, we
disagree.
{¶3} Abdi next contends that the trial court erred when it failed to suppress
statements Abdi gave to the police. Because Abdi waived his Miranda rights voluntarily,
knowingly, and intelligently, we disagree.
{¶4} Abdi next contends that the trial court erred by permitting the State to
introduce “other acts” evidence in violation of Evid.R. 404(B) when the trial court
allowed testimony that Abdi and his co-conspirators planned on committing a separate
robbery. Because the evidence was admissible under Evid.R. 404(B) to show Abdi’s
and his co-conspirators’ intent, we disagree. Additionally, any error by the trial court
was harmless considering the substantial evidence of Abdi’s guilt.
{¶5} Abdi next contends that there was insufficient evidence to convict Abdi of
murder, or, alternatively, that Abdi’s conviction was against the manifest weight of the
evidence. Because Abdi engaged in aggravated robbery where gunfire and injury or
death to bystanders was foreseeable, and because the jury could convict Abdi for the
murder regardless of who fired the fatal shot, we disagree.
{¶6} Abdi next contends that the trial court erred in permitting the State to call co-
conspirators as witnesses. Abdi argues that he was prejudiced because the State knew
that the witnesses would invoke their Fifth Amendment right against self-incrimination in
front of the jury. Because the State is permitted to call a witness who will invoke his or
Athens App. No. 09CA35 3
her Fifth Amendment right against self-incrimination, so long as the State does not
persist in repeated questioning, we disagree.
{¶7} Abdi next contends that the trial court erred in denying Abdi’s motion to
compel disclosure of grand jury testimony. Because Abdi failed to show a particularized
need for the grand jury testimony that outweighed the need for secrecy of the grand jury
proceedings, we disagree.
{¶8} Abdi next contends that the trial court erred by failing to impose a sentence
consistent with the principles and purposes of sentencing and by failing to properly
consider the seriousness and recidivism factors under R.C. 2929.12. Because the
record reflects that the trial court considered the relevant factors under R.C. 2929.11,
2929.12, and 2929.13, we disagree.
{¶9} Finally, Abdi contends that the trial court erred by sentencing Abdi to
consecutive terms of imprisonment without making findings of fact. Because the trial
court was not required to make findings of fact before sentencing Abdi to consecutive
terms of imprisonment, we disagree.
{¶10} Accordingly, we reverse in part and affirm in part the judgment of the trial
court.
I.
{¶11} The events at issue in this case concern a shooting late in the evening on
February 14, 2009, which resulted in the death of Donnie Putnam (hereinafter
“Putnam”). The evidence introduced at trial was comprehensive and begins with events
that occurred well before the actual shooting. In December, 2008, Michael White
(hereinafter “White”) broke into Charles Calendine’s (hereinafter “Calendine”) residence
Athens App. No. 09CA35 4
in Athens, Ohio. After doing so, White proceeded to steal a large number of firearms
from the residence.
{¶12} Among the firearms stolen was a .22 Marlin semi-automatic rifle with an
optical scope. According to White, he estimated he had stolen 30 or 40 guns. White
then sold those guns to Phillip Boler (hereinafter “Boler”). At trial, Calendine confirmed
the theft and identified the .22 Marlin semi-automatic rifle recovered in this case as
being the one stolen from him.
{¶13} The shooting that resulted in Putnam’s death occurred at a trailer owned by
Billy J. Osborne, Jr. (hereinafter “Osborne”). According to testimony at trial, Osborne
made money dealing marijuana and crack cocaine, but Osborne denied this on the
stand. The State’s theory was that Abdi and his co-conspirators armed themselves and
drove to Osborne’s trailer intent on committing a robbery.
{¶14} In the early evening hours of February 14, 2009, Abdi, Mahat Osman
(hereinafter “Osman”), and Hamda Jama, also known as Honey, walked into the trailer
of Chelsea Deal (hereinafter “Deal”) without knocking. At the time, Deal was living with
her boyfriend, Luke (the record does not indicate Luke’s last name). Osman and Honey
were asking Luke about the whereabouts of a man named William Evans (hereinafter
“Evans”), who was an acquaintance of Luke and Deal. Deal overheard Osman state
that he wanted to “rob” Evans, and Abdi was standing nearby when Osman stated his
intentions. Tr. Day 4 at 29. Deal and Luke rebuffed repeated requests by Honey,
Osman, and Abdi to allow them to use Deal and Luke’s vehicle. Deal and Luke
eventually agreed to give Honey, Osman, and Abdi a ride to Nelsonville. Honey,
however, did not get in the car with the others, so Deal and Luke drove off with Osman
Athens App. No. 09CA35 5
and Abdi. Instead of taking Osman and Abdi to Nelsonville, Deal testified that Osman
and Abdi demanded to be taken to a trailer occupied by Boler and a man known as
Halfman. (The record indicates that both Boler and Halfman occupied the trailer. We
will refer to the trailer as “Halfman’s trailer” for brevity.)
{¶15} Earlier on February 14th, Honey purchased a red Mitsubishi Eclipse from
Ricky Phillips (hereinafter “Phillips”), a neighbor of Deal’s. The car had a manual
transmission, and Honey had no experience driving a manual transmission car. Jeremy
Graber (hereinafter “Graber”), a neighbor of Phillips (and Deal), agreed to give Honey a
driving lesson. (Honey apparently did not get in the car with Deal, Luke, Osman, and
Abdi because she was waiting on Graber.) Graber testified that, after driving around the
trailer park briefly, Honey drove onto the highway and drove to Halfman’s trailer.
{¶16} Graber testified that there were quite a few people present at the trailer, and
he expressly identified Boler, Honey, Osman, and Abdi. Graber also observed both a
Marlin .22 rifle and a .40 caliber Smith and Wesson pistol at the trailer. Graber left and
eventually made his way home.
{¶17} (Graber had also encountered Abdi the night before, i.e., February 13, 2009,
when Graber went to Halfman’s trailer. Shortly after entering the trailer, Graber testified
that Abdi slammed Graber against a wall, and Abdi and Boler demanded to know the
whereabouts of a man named “Johnny Perry.” Tr. Day 3 at 142. According to Graber,
Halfman yelled something to Abdi and Boler, so they backed off.)
{¶18} Later in the evening of February 14th, Eric Fussner (hereinafter “Fussner”)
drove to Halfman’s trailer to purchase crack cocaine. Fussner completed this
transaction and was getting ready to leave when Boler and the other occupants of the
Athens App. No. 09CA35 6
trailer asked Fussner for a ride. Fussner agreed and waited for them. When the
occupants took too long to get ready, Fussner attempted to leave without giving them a
ride. As he did so, Halfman drew a pistol and ordered him to stay.
{¶19} Eventually, Boler, Osman, Abdi, Honey, and Fussner were ready to leave.
There were two cars, Fussner’s car and the red Mitsubishi Eclipse that Honey had
purchased from Phillips. As they got ready to leave, Abdi started to pull Fussner out of
his car, but Boler told Abdi to leave Fussner alone. Boler and Fussner drove the two
cars to Osborne’s trailer. Fussner was in his car along with Osman and Abdi. Boler
was in the red Mitsubishi Eclipse with Honey.
{¶20} When they arrived at the destination, Boler, Osman, and Abdi exited the
vehicles. Boler carried the .22 Marlin and stated to Osman that he would have “his”
head in his sights the whole time. Osman and Abdi then walked up to Osborne’s trailer.
{¶21} That evening, Shane Benson (hereinafter “Benson”) and his friend John Perry
Jr. (hereinafter “Perry”) were in the dining room of Osborne’s trailer smoking crack
cocaine. Someone (the record is not precisely clear on who) noticed the cars
approaching the trailer. Because of information he had received previously, Osborne
was concerned that the individuals in the cars wanted to rob him. Earlier that day,
Osborne had retrieved several guns and had placed them in readily accessible locations
in the trailer. He placed a 9 millimeter semi-automatic pistol on top of the television. He
placed an SKS semi-automatic rifle next to the front door. And finally, he leaned a
shotgun up against a countertop.
{¶22} Osman and Abdi knocked on Osborne’s front door. Osborne partially opened
it and asked what they wanted. Osman and Abdi demanded to speak with “Johnny.”
Athens App. No. 09CA35 7
Osborne said that Johnny was not there and that he (i.e., Osborne) had children in the
trailer. Abdi drew a .40 caliber semi-automatic Smith and Wesson pistol and pressed it
against Osborne’s gut. Osborne grabbed the pistol and pushed it aside. As the two
men struggled over the pistol, Abdi fired the gun twice. Eventually, Osborne
manipulated the pistol so that it pointed towards Abdi’s head. At this point, Abdi turned
and ran letting go of the pistol.
{¶23} The front door of Osborne’s trailer opened to the outside. After Osborne
wrested the pistol away from Abdi, Osborne stood slightly outside his trailer. Osman
then slammed against the front door knocking Osborne against the wall. Osborne
shoved the door back open and knocked Osman backwards. Osman then ran from the
porch.
{¶24} At this point, multiple individuals began firing weapons. Osborne fired the gun
he wrested from Abdi until he ran out of bullets. Osborne then retrieved his SKS
semiautomatic rifle and fired several rounds until it jammed. Osman fired some rounds
as he retreated from the trailer with Abdi. Perry fired four rounds from a 9mm pistol,
and Boler fired at least three rounds from the .22 Marlin rifle. Finally, Benson fired at
least one shell from a shotgun.
{¶25} During the struggle, Putnam, who was a friend of Osborne, arrived on the
scene with his girlfriend Missy Swart. Putnam saw Osborne struggling with two men on
his front porch. Putnam got out of his car and started to move towards the porch. A
9mm round struck Putnam during the exchange of gunfire. The bullet punctured
Putnam’s right lung. Mortally wounded, Putnam fell to the ground and was later
pronounced dead at a hospital.
Athens App. No. 09CA35 8
{¶26} When the gunfire started, Fussner kept his head down, backed his car out of
the driveway, and drove off. As a result, Osman, Abdi, Honey, and Boler all piled into
the red Mitsubishi. Due to the speed of the escape, however, the car crashed shortly
after leaving Osborne’s trailer. Boler remained in the area of the wreck, but Osman,
Abdi, and Honey fled on foot.
{¶27} Paramedics were called to the scene of the shooting. One of the dispatched
squads instead encountered the overturned red Mitsubishi. The paramedics found
Boler who appeared dazed and confused after the accident. While one of the
paramedics was treating Boler, several Athens County Sheriff’s officers arrived and
arrested Boler. Officers of the Ohio State Highway Patrol eventually apprehended
Boler’s co-conspirators, and Abdi was among those arrested.
{¶28} Lieutenant Bryan Cooper (hereinafter “Lt. Cooper”) of the Athens County
Sheriff’s department interviewed Abdi multiple times, two of which are relevant to Abdi’s
appeal. Lt. Cooper first interviewed Abdi beginning at 4:39 a.m. on February 15, and he
interviewed Abdi again beginning at 11:26 a.m. on the same day. At the beginning of
the first interview, Abdi indicated that his birthday was 1/1/1992;2 he was in the tenth
grade; he could read and write English; he was not taking prescription medication; and
he was not under the influence of drugs or alcohol. Lt. Cooper then read Abdi each of
Abdi’s Miranda rights, and Abdi waived those rights verbally and in writing. Abdi then
informed Lt. Cooper that Abdi would like to talk about the incident.
{¶29} At the beginning of the second interview, Lt. Cooper advised Abdi that he was
still under the Miranda warnings. Abdi then reiterated that he wished to talk to Lt.
2
Although Abdi indicated to Lt. Cooper that his birthday was 1/1/1992, his actual birthday is December
26, 1992.
Athens App. No. 09CA35 9
Cooper about the incident. The second interview was eventually played to the jury at
trial, and during that interview, Abdi confessed that he and his co-conspirators took
weapons to Osborne’s house to commit a robbery.
{¶30} The case was tried to a jury. The jury returned a verdict finding Abdi guilty of
aggravated robbery, in violation of R.C. 2911.01(A)(1); aggravated robbery, in violation
of R.C. 2911.01(A)(3); and murder, in violation of R.C. 2903.02(B). In addition, the jury
found Abdi guilty of a firearm specification pursuant to R.C. 2941.145 for each count of
aggravated robbery and the murder. The trial court sentenced Abdi to ten years for
each aggravated robbery conviction, three years for each firearm specification, and
fifteen years to life for the murder conviction. The trial court merged the sentences for
the aggravated robbery convictions. The trial court also merged the sentences for the
firearm specifications. The trial court ordered all other sentences to be served
consecutively for an aggregate sentence of 28 years to life.
{¶31} Abdi appeals and assigns the following errors for our review: I. “The Trial
Court erred to the prejudice of Defendant, in violation of the Defendant’s rights under
the 5th and 14th Amendments to the United States Constitution, in failing to merge the
conviction for felony murder under Ohio R.C. §2903.02(B) with the convictions for
aggravated robbery under Ohio R.C. §2911.01, since the offenses are allied offenses of
similar import under Ohio R.C. § 2941.25, and aggravated robbery which results in the
death of a person is a lesser included offense of felony murder.” II. “The Trial Court
erred to the prejudice of Defendant, and in violation of his rights under the 6th and 14th
Amendment to the Constitution of the United States, in denying the Defendant’s Motion
for Change of Venue.” III. “The Trial Court erred to the prejudice of Defendant, and in
Athens App. No. 09CA35 10
violation of his rights under the 5th, 6th, and 14th Amendment to the Constitution of the
United States, in denying his Motion to Suppress the statements made by the
Defendant to the police.” IV. “The Trial Court erred to the prejudice of Defendant, and in
violation of his rights under the 14th Amendment to the Constitution of the United
States, in permitting the State to introduce ‘other acts,’ in contravention to Ohio Evid.R.
404(B).” V. “The Trial Court erred to the prejudice of Defendant, and in violation of his
rights under the 14th Amendment to the Constitution of the United States, by entering
judgment against the Defendant on the charge of murder, as the evidence was
insufficient to sustain the conviction, or, in the alternative, the conviction was against the
manifest weight of the evidence.” VI. “The Trial Court erred to the prejudice of
Defendant, and in violation of his rights under the 14th Amendment to the Constitution
of the United States, in permitting the prosecutor to call two-codefendants as witnesses
for the sole purpose of having such witnesses invoke their 5th Amendment right against
self-incrimination before the jury.” VII. “The Trial Court erred to the prejudice of
Defendant, and in violation of his rights under the 6th and 14th Amendment to the
Constitution of the United States, in denying Defendant’s Motion to Compel Disclosure
of Grand Jury Testimony.” VIII. “The Trial Court erred to the prejudice of Defendant in
failing to impose a sentence consistent with the principles and purposes of sentencing
under Ohio R.C. §2929.11, and proper consideration of the seriousness and recidivism
factors under Ohio R.C. §2929.12.” And, IX. “The Trial Court erred to the prejudice of
Defendant, and in violation of his rights under the 14th Amendment to the Constitution
of the United States, in sentencing Defendant to consecutive terms of imprisonment
with [sic] making findings of fact under Ohio R.C. §2929.14(E)(4).”
Athens App. No. 09CA35 11
II.
{¶32} In his first assignment of error, Abdi contends that the trial court erred by
failing to merge his convictions for felony murder and aggravated robbery because they
are allied offenses of similar import. This issue presents a legal question, which we
review de novo. See, e.g., State v. Cox, Adams App. No. 02CA751, 2003-Ohio-1935,
at ¶5.
{¶33} Under Ohio law, “[w]here the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be convicted of only
one.” R.C. 2941.25(A). But “[w]here the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or more offenses of the
same or similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the defendant
may be convicted of all of them.” R.C. 2941.25(B).
{¶34} This statute “codified the judicial doctrine of merger” and “prohibited the
‘cumulative punishment of a defendant for the same criminal act where his conduct can
be construed to constitute two statutory offenses, when, in substance and effect, only
one offense has been committed.’” State v. Ware (1980), 63 Ohio St. 2d 84, 86, quoting
State v. Roberts (1980), 62 Ohio St. 2d 170, 172-73.
{¶35} The Supreme Court of Ohio has recently overruled its prior judgments in this
area of the law, and it articulated the proper analysis for determining whether merger is
appropriate. See State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, at ¶44. “In
determining whether offenses are allied offenses of similar import under R.C.
Athens App. No. 09CA35 12
2941.25(A), the question is whether it is possible to commit one offense and commit the
other with the same conduct, not whether it is possible to commit one without
committing the other. [State v.] Blankenship, 38 Ohio St.3d [116,] 119[,] (Whiteside, J.,
concurring) (‘It is not necessary that both crimes are always committed by the same
conduct but, rather, it is sufficient if both offenses can be committed by the same
conduct. It is a matter of possibility, rather than certainty, that the same conduct will
constitute commission of both offenses.’ [Emphasis sic]). * * *
{¶36} “If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct, i.e.,
‘a single act, committed with a single state of mind.’ [State v.] Brown, 119 Ohio St. 3d
447, 2008-Ohio-4569[,] at ¶50 (Lanzinger, J., dissenting).
{¶37} “If the answer to both questions is yes, then the offenses are allied offenses
of similar import and will be merged.
{¶38} “Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed separately,
or if the defendant has separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.” Johnson at ¶48-51 (emphasis sic).
{¶39} Clearly an offender could, with the same conduct, commit aggravated robbery
and felony murder. Therefore, aggravated robbery and felony murder are allied
offenses of similar import.
{¶40} Here, Abdi’s counsel failed to raise any objection on this basis at the
sentencing hearing. And pursuant to Crim.R. 52(B), we review any error for plain error.
The Supreme Court of Ohio has “previously held that the imposition of multiple
Athens App. No. 09CA35 13
sentences for allied offenses of similar import is plain error.” State v Underwood, 124
Ohio St. 3d 365, 2010-Ohio-1, at ¶31, citing State v. Yarbrough, 104 Ohio St. 3d 1, 2004-
Ohio-6087, at ¶96-102.
{¶41} Even though felony murder and the predicate felony (here, aggravated
robbery) are allied offenses of similar import, Abdi may still be sentenced for both
crimes. In order to sentence Abdi for both crimes, the State must show that Abdi
committed the crimes “separately or with a separate animus.” See R.C. 2941.25(B).
{¶42} Because aggravated robbery and felony murder are allied offenses of similar
import, we remand the present case for resentencing. On remand, the trial court should
consider whether Abdi committed felony murder separately or with a separate animus
from his aggravated robbery conviction and sentence Abdi accordingly.
{¶43} Accordingly, we sustain Abdi’s first assignment of error.
III.
{¶44} In his second assignment of error, Abdi contends that the trial court erred by
failing to grant his motion for a change of venue.
{¶45} “Upon the motion of any party or upon its own motion the court may transfer
an action to any court having jurisdiction of the subject matter outside the county in
which trial would otherwise be held, when it appears that a fair and impartial trial cannot
be held in the court in which the action is pending.” Crim.R. 18(B).
{¶46} “A change of venue rests largely in the discretion of the trial court, and * * *
appellate courts should not disturb the trial court’s ruling on a motion for change of
venue in a criminal case unless it is clearly shown that the trial court has abused its
discretion.” State v. Fairbanks (1972), 32 Ohio St. 2d 34, 37 (citations omitted); see,
Athens App. No. 09CA35 14
also, State v. Berecz, Washington App. No. 08CA48, 2010-Ohio-285, at ¶30. “An
abuse of discretion connotes more than an error of law or judgment; it implies that the
trial court acted unreasonably, arbitrarily, or unconscionably.” Id. at ¶30, citing
Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219.
{¶47} Abdi contends that the trial court should have granted his motion for a change
of venue due to the pre-trial publicity surrounding his and his co-conspirators’ cases. In
addition to the criminal rule cited above, the United States Supreme Court has held that
“[d]ue process requires that the accused receive a trial by an impartial jury free from
outside influences[, and] * * * where there is a reasonable likelihood that prejudicial
news prior to trial will prevent a fair trial, the judge should continue the case until the
threat abates, or transfer it to another county not so permeated with publicity.”
Sheppard v. Maxwell (1966), 384 U.S. 333, 362-63; see, also, State ex rel. Toledo
Blade Co. v. Henry Cty. Court of Common Pleas, 125 Ohio St. 3d 149, 2010-Ohio-1533,
at ¶23 (“[T]he Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution secure the criminal defendant’s right to a fair trial. * * *
Pervasive, unfair, and prejudicial media coverage of a criminal trial can sometimes
deprive a criminal defendant of this constitutional right.”).
{¶48} “However, ‘pretrial publicity[,] even pervasive, adverse publicity[,] does not
inevitably lead to an unfair trial.’” State v. Trimble, 122 Ohio St. 3d 297, 2009-Ohio-
2961, at ¶58, quoting Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554
(alterations sic). “A defendant claiming that pretrial publicity has denied him a fair trial
must show that one or more jurors were actually biased.” State v. Treesh, 90 Ohio
St.3d 460, 464, 2001-Ohio-4, citing Mayola v. Alabama (C.A.5, 1980), 623 F.2d 992,
Athens App. No. 09CA35 15
996. “Only in rare cases may prejudice be presumed.” Treesh at 464, citing Mayola at
997; see, also State v. Lundgren, 73 Ohio St. 3d 474, 479, 1995-Ohio-227. The fact that
extensive, pre-trial publicity indicated that a co-defendant had recently been convicted is
insufficient to establish prejudice. See State v. Hill (March 22, 1995), Belmont App. No.
90-B-5; State v. Deavors (Sep. 13, 1979), Montgomery App. No. CA 6095.
{¶49} Abdi argues that he has satisfied his burden by filing materials with the trial
court demonstrating the extensive publicity of his and his co-conspirators’ cases. Abdi
argues that, because of the pre-trial publicity, the prospective jurors were familiar with
Abdi’s and his co-conspirators’ cases. According to Abdi, the pre-trial publicity indicated
that two of his co-conspirators were convicted.
{¶50} The trial court did not err in denying Abdi’s motion for a change of venue.
The trial court conducted an extensive voir dire of all prospective jurors, which lasted
two days. The defense had ample opportunity to discover evidence of juror bias. Abdi
failed to show that any jurors were actually biased based on pre-trial publicity (or based
on any other reason).
{¶51} Abdi has also failed to show that the entire jury pool was aware of his co-
conspirators’ cases such that Abdi did not receive a fair trial. On appeal, Abdi selects
quotes from four prospective jurors indicating that those jurors were aware that Abdi’s
co-conspirators had been found guilty. Only one of these jurors was seated on the final
panel, and Abdi cannot point to actual bias on the part of this juror. Additionally, Abdi’s
trial counsel passed on using a peremptory challenge that would have excused this
juror. (Abdi’s counsel subsequently used the peremptory challenge on a juror who was
seated later in the jury selection process). The other three prospective jurors did not sit
Athens App. No. 09CA35 16
on the final panel. In fact, the State successfully moved to dismiss one of these jurors
for cause (based on the juror having a pending court case), and Abdi’s trial counsel
objected to her dismissal.
{¶52} Absent evidence of actual bias, Abdi’s attempt to demonstrate prejudice,
based on extensive pre-trial publicity of Abdi’s and his co-conspirators’ cases, is
insufficient to show that Abdi did not receive a fair trial. Therefore, the trial court did not
abuse its discretion by denying Abdi’s motion for a change of venue.
{¶53} Accordingly, we overrule Abdi’s second assignment of error.
IV.
{¶54} In his third assignment of error, Abdi contends that the trial court erred when it
failed to grant his motion to suppress. “‘[A]ppellate review of a trial court’s decision
regarding a motion to suppress evidence involves mixed questions of law and fact.’”
State v. Featherstone, 150 Ohio App. 3d 24, 2002-Ohio-6028, at ¶10, quoting State v.
Vest, Ross App. No. 00CA2576, 2001-Ohio-2394 (alteration sic). “At a suppression
hearing, the evaluation of evidence and the credibility of witnesses are issues for the
trier of fact.” State v. Mills (1992), 62 Ohio St. 3d 357, 366 (citation omitted).
Consequently, in its review, an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. State v. Guysinger (1993),
86 Ohio App. 3d 592, 594. However, an appellate court determines as a matter of law,
without deferring to the trial court’s conclusions, whether these facts meet the applicable
legal standard. State v. Klein (1991), 73 Ohio App. 3d 486, 488.
{¶55} A waiver of the Fifth Amendment right not to incriminate oneself must be
made “voluntarily, knowingly and intelligently.” Miranda v. Arizona (1966), 384 U.S.
Athens App. No. 09CA35 17
436, 444. Absent evidence that coercive police conduct overcame a defendant’s will
and critically impaired his capacity for self-determination, we presume that a
defendant’s decision to waive his Fifth Amendment privilege was voluntary. State v.
Dailey (1990), 53 Ohio St. 3d 88, 91-92. To determine whether a waiver was voluntary,
the court must consider “the totality of the circumstances” and look specifically at the
defendant’s “age, mentality, and prior criminal experience * * *; the length, intensity, and
frequency of interrogation; the existence of physical deprivation or mistreatment; and
the existence of threat or inducement.” State v. Edwards (1976), 49 Ohio St. 2d 31, at
paragraph two of the syllabus, overruled on other grounds by Edwards v. Ohio (1978),
438 U.S. 911. Evidence that the defendant signed a written waiver of his rights is
strong proof that the waiver is valid. State v. Dennis, 79 Ohio St. 3d 421, 425, 1997-
Ohio-372.
{¶56} Abdi contends that the waiver of Miranda rights obtained by Lt. Cooper was
an involuntary waiver. And thus, Abdi argues the trial court erred by failing to suppress
the resulting confession. Abdi contends that the following facts support a finding that
his waiver was involuntary under the Edwards factors: he was only sixteen years old at
the time of the interview;3 he had only one prior experience with law enforcement; his
parents were not present; and the length and nature of his detention before the
interrogation began.
{¶57} Here, we find that the trial court did not err in denying Abdi’s motion to
suppress. The police interviewed Abdi multiple times, but only two interviews are
relevant for purposes of Abdi’s appeal. Lt. Cooper first interviewed Abdi on February
3
We note that Abdi indicated to Lt. Cooper that his birthday was “1/1/1992,” which would have made him
seventeen at the time of the interview. As stated above, however, his actual birthday is December 26,
1992. Thus, Abdi was sixteen years old at the time of the interview.
Athens App. No. 09CA35 18
15, 2009, at 4:39 a.m. This interview lasted about an hour. Lt. Cooper then interviewed
Abdi a second time at 11:26 a.m. on the same day. Abdi indicated that he could read
and write the English Language. Abdi also indicated that he was not taking prescribed
medication and that he was not under the influence of alcohol or drugs. At the
beginning of the first interview, Lt. Cooper explained Adbi’s Miranda rights, and Abdi
waived them verbally and in writing. Additionally, Abdi repeatedly stated to Lt. Cooper
that he wanted to talk about the incident at the beginning of the first interview and again
at the beginning of the second interview.
{¶58} The Edwards factors Abdi cites do not support Abdi’s argument that his
waiver of Miranda rights was involuntary. There is no evidence that Abdi’s age
prevented him from understanding the rights he was waiving. Also, Abdi’s inexperience
with law enforcement does not demonstrate that his waiver was involuntary. Abdi
stated that he had been to “juvie” for carrying a concealed weapon, so he had some
experience in the justice system. Finally, Abdi did not have the right to have his parents
present before waiving his Miranda rights. See State v. Bobo (1989), 65 Ohio App. 3d
685, 690 (“Though the greatest care must be taken to assure a juvenile’s admissions
are voluntary, parental presence is not constitutionally mandated.”).
{¶59} Abdi argues that the prolonged nature of his detention and interrogation and
the fact that he had just been in an automobile accident demonstrate that his confession
was involuntary. The record, however, does not support Abdi’s claim. There is no
evidence that the Athens County Sherriff’s department deprived Abdi of sleep (or
otherwise mistreated him) while he was in custody. Additionally, Abdi stated that he
Athens App. No. 09CA35 19
was “fine” when Lt. Cooper asked how he was feeling. And as stated above, Abdi
repeatedly indicated that he wanted to speak with Lt. Cooper about the incident.
{¶60} Thus, Abdi waived his Miranda rights voluntarily, knowingly, and intelligently,
and the trial court correctly denied his motion to suppress. Accordingly, we overrule
Abdi’s third assignment of error.
V.
{¶61} In his fourth assignment of error, Abdi contends that the trial court erred by
allowing the State to introduce other acts evidence in violation of Evid.R. 404(B).
{¶62} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Sage (1987), 31 Ohio St. 3d 173, at paragraph two
of the syllabus.
{¶63} “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 proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R.
404(B). For proper admissibility, the trial court must determine that: (1) the other act is
relevant to the crime in question, and (2) evidence of the other act is relevant to an
issue placed in question at trial. State v. McCornell (1993), 91 Ohio App. 3d 141, 146,
citing State v. Howard (1978), 57 Ohio App. 2d 1, 6; State v. Strong (1963), 119 Ohio
App. 31.
{¶64} If a trial court inappropriately admits evidence in violation of Evid.R. 404(B),
we apply a non-constitutional harmless-error analysis. State v. Murphy, Scioto App. No.
Athens App. No. 09CA35 20
09CA3311, 2010-Ohio-5031, at ¶80. “A non-constitutional error is harmless when there
is substantial other evidence to support the guilty verdict.” Id.
{¶65} At trial, Deal testified that she overheard Osman stating that he wanted to rob
William Evans. Deal also testified that Abdi was standing near Osman when Osman
stated this. Abdi contends that “[t]he only real impact of [the witness’s] testimony was to
portray [Abdi] as somebody intent on robbing someone.”
{¶66} The trial court properly instructed the jury that “[a]ny evidence that the
defendant committed wrongs or acts other than the offenses for which he is presently
on trial was received only for a limited purpose. Such evidence is not admissible to
prove the character of the defendant in order to show action in conforming with that
character. * * * However, you may consider such evidence as proof of motive, intent,
preparation, plan and knowledge.” Trial Transcript, Day 4, 33-34.
{¶67} As the trial court instructed, this evidence was admissible to show that the
speaker (here, Osman) intended to commit a robbery that evening. The evidence
demonstrated Osman’s intentions. And Abdi was clearly one of Osman’s co-
conspirators. The testimony is not impermissible propensity evidence just because
Osman’s plans changed, and Osman, Abdi, Honey, and Boler decided to rob someone
other than Evans. The evidence does not show that Osman or Abdi committed a
robbery in the past, and, therefore, one or both of them must have committed the
Osborne robbery. Instead, the evidence shows Osman’s intent on the evening in
question. Considering that Osman and Abdi went to Osborne’s house and confronted
Osborne with a pistol, Osman’s statement regarding Evans was relevant to whether
Osman, Abdi, Boler, and Honey intended to commit a robbery at Osborne’s trailer.
Athens App. No. 09CA35 21
{¶68} Even if we accept Abdi’s argument that this was impermissible propensity
evidence, we find any error harmless. The evidence against Abdi is substantial. Abdi
confessed that he and his co-conspirators went to Osborne’s trailer intent on committing
a robbery. And multiple witnesses testified to Abdi’s involvement in the robbery.
Additionally, the trial court properly instructed the jury not to consider the evidence as
propensity evidence.
{¶69} Accordingly, we overrule Abdi’s fourth assignment of error.
VI.
{¶70} In his fifth assignment of error, Abdi contends that the evidence supporting his
conviction is insufficient, and Abdi also contends that his conviction is against the
manifest weight of the evidence. Because these arguments rely on distinct standards of
review, we consider them separately.
A.
{¶71} Abdi first contends that his conviction for felony murder is not supported by
sufficient evidence. When reviewing a case to determine whether the record contains
sufficient evidence to support a criminal conviction, our function “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. Jenks (1991), 61 Ohio St. 3d 259, at
paragraph two of the syllabus. See, also, Jackson v. Virginia (1979), 443 U.S. 307,
319.
Athens App. No. 09CA35 22
{¶72} This test raises a question of law and does not allow the court to weigh the
evidence. State v. Martin (1983), 20 Ohio App. 3d 172, 175. Rather, this test “gives full
play to the responsibility of the trier of fact * * * to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson at 319. Accordingly, the weight given to the evidence and the credibility
of witnesses are issues for the trier of fact. State v. Thomas (1982), 70 Ohio St. 2d 79,
79-80; State v. DeHass (1967), 10 Ohio St. 2d 230, at paragraph one of the syllabus.
{¶73} Abdi specifically points to the requirement that the State prove that Putnam’s
death was proximately caused by Abdi’s actions. Ohio’s felony murder statute provides:
“No person shall cause the death of another as a proximate result of the offender’s
committing or attempting to commit an offense of violence that is a felony of the first or
second degree[.]” R.C. 2903.02(B). The jury found Abdi guilty of aggravated robbery in
violation of both R.C. 2911.01(A)(1) and R.C. 2911.01(A)(3), which are felonies of the
first degree. R.C. 2911.01(C).
{¶74} Under Ohio law, “it is irrelevant whether the killer is the defendant, an
accomplice, or a third party.” State v. Ford, Franklin App. No. 07AP-803, 2008-Ohio-
4373, at ¶32, citing State v. Franklin, Mahoning App. No. 06-MA-79, 2008-Ohio-2264, at
¶111. “‘[A d]efendant can be held criminally responsible for the killing regardless of the
identity of the person killed or the identity of the person whose act directly caused the
death, so long as the death is the ‘proximate result’ of [the d]efendant’s conduct in
committing the underlying felony offense; that is, a direct, natural, reasonably
foreseeable consequence, as opposed to an extraordinary or surprising consequence,
when viewed in the light of ordinary experience.’” State v. Ervin, Cuyahoga App. No.
Athens App. No. 09CA35 23
87333, 2006-Ohio-4498, at ¶25, quoting State v. Dixon, Montgomery App. No. 18582,
2002-Ohio-541 (other citations omitted). See, also, State v. Chambers (1977), 53 Ohio
App.2d 266, 268-69 (applying proximate cause standard to a similar involuntary
manslaughter statute). “‘It is not necessary that the accused [be] in a position to
foresee the precise consequence of his conduct; only that the consequence be
foreseeable in the sense that what actually transpired was natural and logical in that it
was within the scope of the risk created by his conduct.’” State v. Lovelace (1999), 137
Ohio App. 3d 206, 219-20, quoting State v. Losey (1985), 23 Ohio App. 3d 93, 96
(alteration sic).
{¶75} Abdi asserts that there were two intervening criminal acts. Therefore, Abdi
argues that he should not be held criminally liable for proximately causing Putnam’s
death. First, Abdi asserts that Perry actually fired the fatal bullet and that Abdi and
Osman were in full flight from the trailer when Perry fired. According to Abdi, Perry no
longer had any right to use deadly force in self defense, so Perry was committing a
crime when he fired the 9mm pistol. Second, Abdi argues that Putnam went to
Osborne’s trailer to commit a crime (i.e., to buy drugs).
{¶76} Neither of Abdi’s arguments is persuasive. “Only a reasonably unforeseeable
intervening cause will absolve one of criminal liability in this context.” State v. Dykas,
185 Ohio App. 3d 763, 2010-Ohio-359, at ¶25, citing Lovelace at 215. Even intervening
criminal conduct does not prevent an offender’s actions from being the proximate cause
so long as that intervening conduct was foreseeable. See Lovelace at 219 (holding that
police officer’s criminal conduct during a high-speed chase, which directly caused a
Athens App. No. 09CA35 24
motorist’s death, was foreseeable, and, therefore, defendant could be held criminally
liable for proximately causing the motorist’s death).
{¶77} Thus, even if we accept Abdi’s premise that Perry fired the fatal round
illegally, Abdi’s argument still fails. The prosecution introduced considerable evidence
that allowed the jury to conclude that Abdi and Osman approached Osborne’s trailer
intent on robbing Osborne at gunpoint. This confrontation could foreseeably lead to a
fight involving firearms. Whether an individual in the gunfight was justified in acting in
self-defense or the defense of another is irrelevant to the issue of Abdi’s guilt. The
death of a bystander, such as Putnam, was foreseeable.
{¶78} Furthermore, we do not need to accept the premise that Perry was not
justified in firing the 9mm pistol. Fussner testified that Osman and Abdi fired at Osborne
as they retreated from the trailer. Given the timeline, the jury could have relied on this
evidence to determine that Perry was still justified in firing his weapon.
{¶79} As to Putnam’s intent to purchase drugs, the defense several times elicited
testimony that tended to show Osborne was known as someone who sold drugs. The
presence of a drug user seeking to purchase drugs from a drug dealer is a foreseeable
circumstance. Even if Putnam intended to buy drugs from Osborne, Putnam was still an
innocent bystander with respect to the armed robbery that led to the fatal gunfire.
{¶80} Accordingly, we find that Abdi’s conviction for felony murder is supported by
sufficient evidence. Specifically, we find that 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 of murder proven beyond a reasonable doubt.
B.
Athens App. No. 09CA35 25
{¶81} Abdi next contends that his conviction for felony murder is against the
manifest weight of the evidence. When determining whether a criminal conviction is
against the manifest weight of the evidence, we “will not reverse a conviction where
there is substantial evidence upon which the [trier of fact] could reasonably conclude
that all the elements of an offense have been proven beyond a reasonable doubt.”
State v. Eskridge (1988), 38 Ohio St. 3d 56, at paragraph two of the syllabus. See, also,
State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶41. We “must review the
entire record, weigh the evidence and all reasonable inferences, consider the credibility
of the witnesses, 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 granted.” Smith, 2007-Ohio-502, at ¶41,
citing State v. Garrow (1995), 103 Ohio App. 3d 368, 370-71; Martin at 175. “The
discretionary power to grant a new trial should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction.” Martin at 175 (citations
omitted).
{¶82} “Even in our role as thirteenth juror we are constrained by the rule that the
weight to be given evidence and the credibility to be afforded testimony are normally
issues to be determined by the trier of fact. * * * The fact finder is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony. * * * Thus, we will
only interfere if the fact finder clearly lost its way and created a manifest miscarriage of
justice.” State v. Davis, Washington App. No. 09CA28, 2010-Ohio-555, at ¶13 (citations
omitted).
Athens App. No. 09CA35 26
{¶83} Here, Abdi confessed that he and his co-conspirators went to Osborne’s
trailer with firearms to commit a robbery. The evidence was also clear that Abdi pushed
a pistol into Osborne’s gut when Abdi and Osman confronted Osborne. The jury did not
clearly lose its way when it concluded that Abdi committed aggravated robbery and that
the death of a bystander was a foreseeable result of the aggravated robbery. Thus, we
do not find that Abdi’s conviction is a manifest miscarriage of justice. Substantial
evidence supports his conviction for felony murder.
{¶84} Accordingly, we overrule Abdi’s fifth assignment of error.
VII.
{¶85} In his sixth assignment of error, Abdi contends that the trial court erred when
it allowed the State to call two of Abdi’s co-conspirators to testify. Abdi argues that he
was prejudiced because the witnesses took the stand solely to invoke their Fifth
Amendment privilege against self-incrimination.
{¶86} As stated above, “[t]he admission or exclusion of relevant evidence rests
within the sound discretion of the trial court.” Sage at paragraph two of the syllabus.
{¶87} The Supreme Court of Ohio has held that “[a] witness, even though he has
previously indicated that he will refuse to testify on the ground that to do so would
incriminate him, may be called as a witness.” State v. Dinsio (1964), 176 Ohio St. 460,
466. “The court [does] not commit prejudicial error in allowing the prosecutor for the
state to call the witness and to pursue his inquiry sufficiently to determine whether the
witness intended to claim the privilege of immunity. Once it [is] established that the
witness intend[s] to claim his privilege of immunity, the court commit[s] error prejudicial
to the defendant in permitting the prosecutor to continue his line of questioning, which
Athens App. No. 09CA35 27
place[s] before the jury innuendo evidence or inferences of evidence which the state
could not get before the jury by direct testimony from the witness.” Id. at 468.
{¶88} As we have previously held, “Dinsio is not violated when questioning is brief
and the prosecutor stops asking questions once it becomes clear that the witness will
not answer.” State v. Bowers, Hocking App. No. 06CA7, 2007-Ohio-3986, at ¶9.
{¶89} Here, the State’s questioning ceased after Boler and Osman invoked their
right against self-incrimination. Therefore, the trial court did not violate Dinsio.
{¶90} The State sought to use the assertions of privilege by Boler and Osman to
establish that Boler and Osman were “unavailable” to testify. The State was required to
show Boler’s and Osman’s unavailability in order to admit certain statements against
interest under Evid.R. 804(B)(3). Specifically, the State wanted to introduce Fussner’s
testimony that Boler stated to Osman that Boler would have “his” head in the sights of
Boler’s rifle; Deal’s testimony that Osman stated that he intended to rob William Evans;
and an undetermined statement by Boler where the trial court sustained an objection in
mid-answer.
{¶91} “‘Unavailability as a witness’ includes any of the following situations in which
the declarant: (1) is exempted by ruling of the court on the ground of privilege from
testifying concerning the subject matter of the declarant’s statement[.]” Evid.R.
804(A)(1). “A showing of unavailability under Evid.R. 804 must be based on testimony
of witnesses rather than hearsay not under oath unless unavailability is conceded by the
party against whom the statement is being offered.” State v. Keairns (1984), 9 Ohio
St.3d 228, at paragraph three of the syllabus. Thus, under Keairns, the State was
obliged to demonstrate the unavailability of Boler and Osman through testimony.
Athens App. No. 09CA35 28
{¶92} Abdi contends that any finding of unavailability should have been done out of
the hearing of the jury pursuant to Evid.R. 104(C). Abdi, however, made no such
argument before the trial court. The jury was properly instructed to draw no conclusion
from an individual’s assertion of Fifth Amendment privilege. And “‘[a] presumption
always exists that the jury has followed the instructions given to it by the trial court.’”
Murphy at ¶81, quoting Pang v. Minch (1990), 53 Ohio St. 3d 186, at paragraph four of
the syllabus. Thus, the trial court did not abuse its discretion in allowing the State to call
Boler and Osman to the stand to assert their Fifth Amendment right against self-
incrimination.
{¶93} Accordingly we overrule Abdi’s sixth assignment of error.
VIII.
{¶94} In his seventh assignment of error, Abdi contends that the trial court erred
when it denied his motion to compel disclosure of grand jury testimony.
{¶95} “Disclosure of grand jury testimony, other than that of the defendant and co-
defendant, is controlled by Crim.R. 6(E)[,] * * * and the release of any such testimony for
use prior to or during trial is within the discretion of the trial court.” State v. Greer
(1981), 66 Ohio St. 2d 139, at paragraph one of the syllabus.
{¶96} Crim.R. 6(E) provides: “A grand juror, prosecuting attorney, interpreter,
stenographer, operator of a recording device, or typist who transcribes recorded
testimony, may disclose matters occurring before the grand jury * * * but may disclose
such matters only * * * when permitted by the court at the request of the defendant upon
a showing that grounds may exist for a motion to dismiss the indictment because of
matters occurring before the grand jury.”
Athens App. No. 09CA35 29
{¶97} “‘Grand jury proceedings are secret, and an accused is not entitled to inspect
grand jury transcripts either before or during trial unless the ends of justice require it and
there is a showing by the defense that a particularized need for disclosure exists which
outweighs the need for secrecy.’” State v. Greer (1981), 66 Ohio St. 2d 139, 148,
quoting State v. Patterson (1971), 28 Ohio St. 2d 181, at paragraph three of the
syllabus.
{¶98} “‘[W]hen a defendant speculates that the grand jury testimony might have
contained material evidence or might have aided his cross-examination by revealing
contradictions, the trial court does not abuse its discretion by finding the defendant had
not shown a particularized need.’” State v. Shadoan, Adams App. No. 03CA764, 2004-
Ohio-1756, at ¶28, quoting State v. Mack, 73 Ohio St. 3d 502, 508, 1995-Ohio-273
(other quotation omitted). “The claim that a witness’s grand jury testimony may differ
from trial testimony is insufficient to show a particularized need.” State v. Horger, 170
Ohio App. 3d 383, 2007-Ohio-665, at ¶10, citing State v. Henness (1997), 79 Ohio St. 3d
53, 62, 1997-Ohio-405.
{¶99} Here, Abdi speculated before the trial court, and again on appeal, that
Osborne may have given contradictory testimony before the grand jury. Abdi contends
that Osborne gave other contradictory statements suggesting that Osman, rather than
Abdi, had pointed the pistol in Osborne’s gut at the doorway confrontation.
{¶100} We find that the trial court did not abuse its discretion. Speculation that
Osborne’s grand jury testimony may have revealed contradictions is insufficient to justify
disclosure of grand jury testimony. Moreover, Osborne’s inconsistent statement
indicating Osman (and not Abdi) had threatened Osborne with a gun was admitted into
Athens App. No. 09CA35 30
evidence. Thus, the jury was aware that Osborne’s account of events had changed at
one point. Therefore, Abdi suffered no prejudice when the trial court denied his motion
to compel disclosure of the grand jury testimony. Accordingly, Abdi did not show a
particularized need for disclosure of the grand jury testimony, and the trial court
correctly denied Abdi’s motion.
{¶101} Therefore, we overrule Abdi’s seventh assignment of error.
IX.
{¶102} In his eighth assignment of error, Abdi contends that the trial court erred when
it failed to grant appropriate weight to his lack of criminal history and youth during
sentencing.
{¶103} “Appellate courts ‘apply a two-step approach [to review a sentence]. First,
[we] must examine the sentencing court’s compliance with all applicable rules and
statutes in imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall
be reviewed under an abuse-of-discretion standard.’” State v. Smith, Pickaway App.
No. 08CA6, 2009-Ohio-716, at ¶8, quoting State v. Kalish, 120 Ohio St. 3d 23, 2008-
Ohio-4912, at ¶4 (alterations sic). See, also, State v. Voycik, Washington App. Nos.
08CA33 & 08CA34, 2009-Ohio-3669, at ¶8.
{¶104} In analyzing whether Abdi’s sentences are contrary to law, “[t]he only specific
guideline is that the sentence[s] must be within the statutory range[.]” State v. Welch,
Washington App. No. 08CA29, 2009-Ohio-2655, at ¶7, quoting State v. Ross, Adams
App. No. 08CA872, 2009-Ohio-877, at ¶10. See, also, Voycik at ¶9. In this case, Abdi
raises no argument for the proposition that the trial court sentenced him to a term of
Athens App. No. 09CA35 31
imprisonment outside of the statutory range. Rather, Abdi contends that the trial court
failed to consider his lack of criminal history and youth as compared to his co-
conspirators Osman and Boler.
{¶105} However, we find that the trial court was fully aware of Abdi’s youth and lack
of criminal history prior to sentencing. The trial court was entitled to give greater weight
to contrary arguments advanced by the State. At sentencing, Abdi’s counsel urged the
court to consider that Abdi was sixteen years old at the time of the incident and that
Abdi did not have a lengthy juvenile criminal record. The trial court had discretion to
find the nature and characteristics of the offense more persuasive than the mitigating
factors of youth and lack of criminal history. The trial court was not required to explicitly
state that it considered Abdi’s youth and lack of criminal history when deciding on a
proper sentence. See State v. Koclan, Ottawa App. No. OT-07-018, 2008-Ohio-74, at
¶10 (“[I]n exercising its discretion, sentencing courts must consider the provisions listed
in R.C. 2929.11 and 2929.12 as statutory factors to determine an appropriate felony
sentence. * * * [N]onetheless, a trial court is not required to state any findings on the
record in considering these factors.”) (citations omitted).
{¶106} In its judgment entry, the trial court stated: “The court has considered the
record, oral statements, any victim impact statements, as well as the principles and
purposes of sentencing under R.C. 2929.11, and has balanced the seriousness and
recidivism factors under R.C. 2929.12. The Court has considered the factors under
R.C. 2929.13.” September 23, 2009 Judgment Entry at 2.
Athens App. No. 09CA35 32
{¶107} Thus, the record demonstrates that the trial court considered all relevant
factors when it sentenced Abdi. Accordingly, we overrule Abdi’s eighth assignment of
error.
X.
{¶108} For his ninth assignment of error, Abdi contends that the trial court erred by
sentencing him to consecutive sentences without making the required judicial findings of
fact under R.C. 2929.14(E)(4). The Supreme Court of Ohio held that those required
findings were unconstitutional. State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, at
paragraph three of the syllabus, citing Apprendi v. New Jersey (2000), 530 U.S. 466
and Blakely v. Washington (2004), 542 U.S. 296.
{¶109} Abdi contends that this ruling is in conflict with a recent ruling from the
Supreme Court of the United States. Oregon v. Ice (2009), 555 U.S. 160, 129 S. Ct.
711. Abdi is correct that, under Ice, the Supreme Court of Ohio had no need to strike
down R.C. 2929.14(E)(4). Id. at 714-15. Also, Abdi is correct that the Supreme Court
of the United States is final arbiter of the United States Constitution. See Minnesota v.
National Tea Co. (1940), 309 U.S. 551, 557; State v. Storch (1993), 66 Ohio St. 3d 280,
291.
{¶110} However, the Supreme Court of Ohio has rejected Abdi’s argument. “The
United States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160[,] does
not revive Ohio’s former consecutive-sentencing statutory provisions, R.C.
2929.14(E)(4) and 2929.41(A), which were held unconstitutional in [Foster.]” State v.
Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, at paragraph two of the syllabus.
{¶111} Accordingly, we overrule Abdi’s ninth assignment of error.
Athens App. No. 09CA35 33
XI
{¶112} In conclusion, we sustain Abdi’s first assignment of error and overrule all
others. The judgment of the trial court is reversed in part and affirmed in part. We
remand this cause to the trial court to consider (1) whether Abdi committed felony
murder and aggravated robbery separately or (2) whether he committed the crimes with
a separate animus.
JUDGMENT REVERSED, IN PART,
AND AFFIRMED, IN PART,
AND CAUSE REMANDED.
Athens App. No. 09CA35 34
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED, IN PART, AFFIRMED, IN
PART, AND THIS CAUSE BE REMANDED to the trial court for further proceedings
consistent with the opinion. Appellant and Appellee shall pay equally 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 Athens
County Court of Common Pleas 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. Exceptions.
McFarland, J.: Concurs in Judgment and Opinion.
Harsha, P.J.: Concurs in Judgment and Opinion as to Assignments of Error II,
III, V – IX; Concurs in Judgment Only as to Assignments of Error
I and IV.
For the Court
BY:
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
Athens App. No. 09CA35 35