State v. Habeeb-Ullah , 2022 Ohio 3979 ( 2022 )

[Cite as State v. Habeeb-Ullah, 2022-Ohio-3979.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0102
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
NAIM A. HABEEB-ULLAH,
Trial Court No. 2018 CR 00374
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Naim A. Habeeb-Ullah, pro se, PID#: A760-153, North Central Correctional Complex,
670 Marion-Williamsport Road, P.O. Box 1812, Marion, OH 43302 (Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Naim Habeeb-Ullah, appeals, pro se, the judgment of the
Portage County Court of Common Pleas convicting him of one count Gross Sexual
Imposition and sentencing him to five years imprisonment. For the reasons set forth
herein, the judgment is affirmed.
{¶2} Appellant and K.H. were married in August 2005. At the time of the
marriage, K.H. already had a son, D.D., and a daughter, C.M. During the marriage,
appellant and K.H. had one son, E.H., who was born in 2008. In January 2008, appellant
and the family moved from Akron, Ohio to Kent, Ohio. They later returned to Summit
County in March 2012. And, in July 2015, the couple separated, although they did not
formally divorce.
{¶3} In early 2018, C.M. disclosed to K.H. two events which occurred between
her and appellant. In the first, which occurred in 2010, she awoke one night to find
appellant watching her sleep; he left when she asked him to. The second incident
occurred later in 2010. She disclosed that appellant had inappropriately touched her.
{¶4} As a result of the allegations, appellant was ultimately indicted on five
counts: Gross Sexual Imposition, Attempted Rape, Attempted Sexual Battery, Abduction,
and Kidnapping. Following a trial by jury, appellant was found guilty of Count One, Gross
Sexual Imposition, a felony of the third degree, in violation of R.C. 2907.05; Count Two,
Attempted Rape, a felony of the second degree, in violation of R.C. 2923.02 and R.C.
2907.02(A)(1)(b); and Count Three, Attempted Sexual Battery, a felony of the third
degree, in violation of R.C. 2923.02 and R.C. 2907.03(A)(5). Though the parties agreed
that all the counts merged for purposes of sentencing, the court nevertheless sentenced
appellant to five years in prison on Counts One and Three, and an indefinite term of five
to 25 years in prison on Count Two, all to run concurrently.
{¶5} Appellant appealed in 2019, and in State v. Habeeb-Ullah, 11th Dist.
Portage No. 2019-P-0006, 2019-Ohio-4517 this court affirmed in part, reversed in part,
and remanded the matter to the lower court. In his first appeal, appellant challenged, in
relevant part, the sufficiency of the evidence and the manifest weight of the evidence of
his convictions. This court determined that the counts should have merged for purposes
of sentencing and that the state intended to sentence on the count of Attempted Rape,
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even though the lower court erroneously sentenced him on all three counts. Accordingly,
this court only analyzed the sufficiency of the evidence as it related to Attempted Rape.
Ultimately, this court found that there was insufficient evidence to convict appellant of
Attempted Rape, vacated the conviction, and remanded the matter to the trial court.
{¶6} On remand, the lower court found that the state elected to proceed with
sentencing on Count One: Gross Sexual Imposition. In its revised judgment entry, the
court sentenced appellant to five years in prison, and informed him of his post-release
control and sex offender registration requirements.
{¶7} Appellant filed the instant appeal after the 30-day period provided by App.R.
4. However, this court granted his motion for delayed appeal, finding appellant stated
satisfactory reasons pursuant to App.R. 5(A), including delays due to COVID-19. The
state filed an untimely reply brief with a motion to reply instanter, which this court granted.
Appellant assigns one error, which states:
{¶8} The state failed to prove, beyond a reasonable doubt, the offense of
Gross Sexual Imposition, and such is insufficient, as a matter of law.
{¶9} Under his sole assignment of error, appellant challenges the sufficiency of
the evidence the state presented at trial to support his conviction of Gross Sexual
Imposition. “A ‘sufficiency’ argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged offense.”
Habeeb-Ullah, supra, at ¶34, citing State v. Windle, 11th Dist. Lake No. 2010-L-0033,
2011-Ohio-4171, ¶25. “‘[T]he standard of review for a sufficiency of the evidence claim
is “whether after viewing the probative evidence and the inference[s] drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact could have found all
the elements of the offense beyond a reasonable doubt. The claim of insufficient evidence
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invokes an inquiry about due process. It raises a question of law, the resolution of which
does not allow the court to weigh the evidence.” * * * “In essence, sufficiency is a test of
adequacy[;] [w]hether the evidence is legally sufficient to sustain a verdict * * *.”’ (Citations
omitted.)” State v. Rice, 11th Dist. Lake No. 2018-L-065, 2019-Ohio-1415, ¶65, quoting
State v. McFeely, 11th Dist. Ashtabula No. 2008-A-0067, 2009-Ohio-1436, ¶23.
{¶10} R.C. 2907.05, Gross Sexual Imposition, of which appellant was convicted,
states in pertinent part:
{¶11} (A) No person shall have sexual contact with another, not the spouse
of the offender; cause another, not the spouse of the offender, to
have sexual contact with the offender; or cause two or more other
persons to have sexual contact when any of the following applies:
{¶12} * * *
{¶13} (4) The other person, or one of the other persons, is less than thirteen
years of age, whether or not the offender knows the age of that
person.
{¶14} “Sexual contact,” as used in R.C. 2907.05, is defined as “any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic
region, or, if the person is a female, a breast, for the purpose of sexually arousing or
gratifying either person.” R.C. 2907.01(B).
{¶15} Appellant challenges the sufficiency of the evidence in three ways. First,
that C.M. testified that appellant touched her through her underwear, not her skin directly.
Second, he argues that C.M. “had no intention of disclosing” the incident but said it only
because she was angry. Third, he argues that the social worker, Julia Mothersbaugh,
testified that at the conclusion of her investigation, she found the allegation to be
“unsubstantiated.”
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{¶16} Our analysis necessarily begins with a discussion of the testimony and
evidence presented at trial. C.M. testified at trial regarding both incidents. The first
incident occurred in 2010, when she was 10-years-old. C.M. stated she awoke from sleep
to notice appellant sitting at the end of her bed. The child asked appellant what he was
doing. He responded he looked into her room, noticed what she was wearing (pajama
shorts and a tank top), and could not help but enter the room to look at her. C.M. was
concerned about the encounter and asked appellant to leave the room, which he did.
Nothing further happened.
{¶17} Then, later in 2010, C.M. had been playing outside and came in to take a
shower. Prior to doing so, she went downstairs to the laundry room wearing a shirt and
underwear. Unbeknownst to her, appellant was sitting in the living room in the dark.
Appellant pulled her into the living room and repeatedly stated “let me show you
something,” in a “low, eerie, * * * kind of seductive” voice. Appellant proceeded to place
C.M. on the couch, positioning her ankles on his shoulders and started “prying at [her]
vagina, like poking at it and touching around it” over her underwear for approximately a
minute. C.M. was able to “scoot” away, tell appellant “that wasn't okay,” and to stop.
Appellant stopped and begged C.M. not to tell anyone. There were no other allegations
of abuse.
{¶18} C.M. was asked why she waited over eight years to disclose the incidents,
she stated: “I watched my older brother grow up angry because he didn't have a father in
his life. And I didn't want [the incidents] to be the reason why my younger brother didn't
have a father in his life. That's why. I didn't want that for him. So I made the sacrifice and
just kept it to myself.” She also testified that although she did not disclose the incidents
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for years, during a conversation with her mother, K.H. implied that her bother’s poor
behavior was because he had a rough life, it angered her “a little bit” and she told her that
she had “been through things, too. Things nobody even knows about.”
{¶19} K.H. testified that C.M. disclosed the incident to her in January 2018. In
response, she, C.M.’s biological father, C.M.’s older brother, and C.M. all confronted
appellant, resulting in a physical altercation. She testified that after she was released
from jail following the confrontation, she took C.M. to the police to report the incident.
{¶20} Officer Burton testified that she took a written statement of the allegation
from C.M. in January of 2018 and referred the matter to Detective Travis. Detective Travis
testified that when she called appellant, he was cooperative. He spoke with her on the
phone twice. Detective Travis testified that in the first conversation with appellant he
denied anything had happened between him and C.M. but that he was at work at the time
of the call and could not discuss further. They made arrangements for a future phone
call. A partial recording of the second phone call was played at trial. In that call, appellant
admitted that there was an incident when C.M. was 11 years old and said that C.M. was
lying about the details. Appellant said one night, late at night, she came to him in her
underwear, disclosed a sexual encounter with a boy, asked him about sex, and started
touching herself in front of him. He stated that he told her to sit up, and she asked him
not to tell her mother because she was afraid of getting in trouble. He agreed not to tell
anyone.
{¶21} Ms. Peterson, a Pediatric Sexual Assault Nurse Examiner, testified that K.H.
brought C.M. in for an evaluation, during which C.M. disclosed the incident to her. C.M.
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declined a physical examination because she had recently been examined at another
medical facility. Ms. Peterson recommended C.M. attend counseling.
{¶22} Appellant, through counsel, presented testimony of a psychology expert
who testified that when a disclosure is delayed, the memory can become less clear. She
also admitted on cross-examination, however, that in this case, since both parties
remember the same event but disagree as to culpability, it is more likely that memory is
not the issue in this case, but the veracity of one of the versions of the incident.
{¶23} Appellant’s mother testified on his behalf that appellant, K.H., C.M., and
C.M.’s brothers lived with her between Thanksgiving 2011 and the end of the year. She
testified that during that time, she observed C.M. and appellant interact and that C.M.
embraced appellant like her biological father. Appellant’s sister testified appellant and
C.M. had a very loving relationship. Both appellant’s mother and sister testified that they
did not observe C.M. avoiding interaction with appellant.
{¶24} We turn now to appellant’s arguments, first addressing the argument that
the state failed to present sufficient evidence because C.M. testified that appellant
touched her over her clothes. However, contrary to appellant’s argument, “sexual
contact” does not require skin-on-skin contact, but any touching of an erogenous zone of
another even if through clothing. See State v. Mugrage, 11th Dist. Portage No. 2020-P-
0066, 2021-Ohio-4136, ¶124 (“[S]exual contact does not require that the offender have
skin-to-skin contact with an erogenous zone of the victim or, conversely, the victim with
the erogenous zone of the offender.”) and State v. Jones, 2nd Dist. Clark No. 2012-CA-
95, 2013-Ohio-3760, ¶21 (“Sexual contact does not require that the offender have skin-
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to-skin contact with an erogenous zone of the victim; a touching of an erogenous zone
covered by the victim’s clothing is sufficient.”)
{¶25} Thus, appellant’s first argument under his sole assignment of error is
without merit.
{¶26} Second, he argues that C.M. testified she had no intention of telling anyone
and that she was angry when she disclosed the incident to her mom. Appellant argues
that this shows C.M.’s statements were unreliable. This argument is not one of sufficient
evidence, but of the weight of the evidence, which appellant has not appealed. However,
even if we were to consider the weight of this evidence, we do not find it militates against
the jury’s finding of guilty.
{¶27} “Weight of the evidence concerns ‘the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather the other.’”
State v. Thompkins, 78 Ohio St.3d 380, 387, quoting Black’s Law Dictionary 1594 (6th
Ed.1990) (emphasis omitted). “An appellate court must review the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of the witnesses
determine whether, in resolving conflicts in the evidence, the [trier of fact] clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” (Citations omitted.) State v. Fiederer, 11th Dist. Lake
No. 2019-L-142, 2020-Ohio-4953, ¶12.
{¶28} “‘“Within a manifest weight of the judgment review, an appellate court
considers the credibility of the witnesses. Courts should only reverse based upon
manifest weight grounds in “the exceptional case in which the evidence weighs heavily
against the conviction.”’” Id., quoting Tompkins, supra, quoting State v. Martin, 20 Ohio
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App.3d 172, 175 (1st Dist.1983). “Moreover, ‘it is inappropriate for a reviewing court to
interfere with factual findings of the trier of fact (* * *) unless the reviewing court finds that
a reasonable juror could not find the testimony of the witness to be credible.’” Fiederer,
supra, quoting State v. Redman, 10th Dist. Franklin No. 10AP-654, 2011-Ohio-1894, ¶7.
{¶29} “Further, ‘[t]he trier of fact is free to believe or disbelieve all or any of the
testimony. * * * The trier of fact is in the best position to take into account inconsistencies,
along with the witnesses’ manner and demeanor, and determine whether the witnesses’
testimony is credible. * * * Consequently, although an appellate court must act as a
“thirteenth juror” when considering whether the manifest weight of the evidence requires
reversal, it must also give great deference to the fact finder’s determination of the
witnesses’ credibility. * * * ‘” State v. Elliott, 11th Dist. Portage No. 2008-P-0026, 2009-
Ohio-918, ¶37, quoting State v. Sevilla, 10th Dist. Frankin No. 06AP-954, 2007-Ohio-
2789, ¶13.
{¶30} We do not find this is the case in which the evidence weighs heavily against
the conviction. Certainly, C.M.’s state of mind when she disclosed the incident is relevant
to weighing the veracity of her statements. However, the jury, which was in the best
position to determine the witness’ credibility, was presented with this information and
determined C.M. to be truthful. Moreover, just because a statement is said in anger does
not necessarily make it untruthful. C.M.’s motive in telling her mother about the incident
could have been just to prove to her, as she stated, that she’s “been through things, too.”
We find a reasonable juror could find that C.M.’s testimony to be credible despite her
anger.
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{¶31} Third, appellant asserts that Julie Mothersbaugh, a social worker with
Summit County Children’s Services, testified that she found the allegation to be
unsubstantiated. However, the court did not permit Julie Mothersbaugh to testify to the
jury; her testimony was proffered. “Proffer testimony is not evidence.” In re Thomas, 5th
Dist. Tuscarawas Nos. 94AP060039 and 94PA060041, 1994 WL 728303, *1 (Dec. 27,
1994). As this testimony was not presented to the jury, it cannot be considered when
determining whether the jury lost its way in resolving conflicts in the evidence. Moreover,
any challenge to the court’s decision to exclude the testimony of Julie Mothersbaugh
could have been raised in appellant’s first appeal. As such, the doctrine of res judicata
prevents appellant from raising the matter now.
{¶32} Moreover, even if Julie Mothersbaugh’s testimony had been presented at
trial, we do not find it supports appellant’s argument. In her proffered testimony, Julie
Mothersbaugh found that C.M. had been removed from the abusive situation, had no
further contact with the perpetrator (appellant), that her mother was “getting her linked up
with Community Resources for counseling.” She also looked into concerns that there
was another young child, E.H., who was in the custody of the perpetrator. Ms.
Mothersbaugh determined that K.H. had stopped contact between appellant and E.H.,
which she apparently found satisfactory. She expressly stated, “the decision was since
the children were being protected by their mother, she was reaching out to resources,
she had community links to make those connections, the children were safe, we closed
the referral as unsubstantiated.” It appears from her proffered testimony that this
disposition was made not because she found the allegations against appellant to be
unsubstantiated, but because she determined that C.M. was safe in the care of her
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mother. Accordingly, even if Ms. Mothersbaugh’s testimony had been admitted at trial, it
does not support appellant’s argument in the appeal at bar.
{¶33} After careful review of the record, we find there was sufficient evidence to
convict appellant of Gross Sexual Imposition and that such conviction was not against the
manifest weight of the evidence. C.M. testified that appellant had touched her vaginal
area and that afterward, appellant had asked her to keep it secret. From these actions
and attempts at secrecy, the jury could have reasonably concluded that appellant had
touched C.M.’s erogenous zones for the purpose of his own sexual gratification. The
conviction for gross sexual imposition was, therefore, based upon sufficient evidence and
was not against the manifest weight of the evidence.
{¶34} Appellant’s sole assigned error is without merit.
{¶35} In light of the foregoing, the judgment of the Portage County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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