State v. Habo , 2013 Ohio 2142 ( 2013 )

[Cite as State v. Habo, 2013-Ohio-2142.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-P-0056
- vs - :
KHALID A. HABO, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Ravenna and Kent
Divisions, Case No. R11 CRB 2650.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder and Kristina
Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For
Plaintiff-Appellee).
James E. MacDonald, 212 Casterton Avenue, Akron, OH 44303 (For Defendant-
Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Khalid A. Habo, appeals the judgment of the Portage County
Municipal Court, Ravenna Division, convicting him on one count of domestic violence
following a jury trial. Appellant argues his conviction must be overturned because the
trial court made multiple, improper evidentiary rulings which resulted in an unfair trial.
He also argues the evidence is insufficient to support a conviction; the conviction is
against the manifest weight of the evidence; and his trial counsel was ineffective.
Appellant additionally appeals the entry of sentence from the Portage County Municipal
Court, Kent Division, arguing the trial court lost jurisdiction to sentence him due to an
impermissible delay between conviction and sentence. For the reasons that follow, the
judgment is affirmed.
{¶2} On October 4, 2011, two complaints were filed charging appellant with
domestic violence; one charge alleged violence against his wife, Rehab Khattab, and
one charge alleged violence against his daughter, age 7, known throughout the
proceedings as “Juvenile A.” Both charges were first-degree misdemeanors in violation
of R.C. 2919.25(A). The record indicates the complaints were filed to replace case No.
2010 CRB 3230, which was dismissed by the state.
{¶3} Appellant pled not guilty, and the matter proceeded to a jury trial. During
trial, testimony revealed the strenuous relationship between appellant and his wife. The
undisputed evidence indicates the pair, who lived together in a house in Streetsboro,
Ohio, with their three kids, became estranged and the relationship strained. After
divorce proceedings initiated on October 22, 2010, the tranquility of the household
further deteriorated. Exchanges between the pair were so charged and contentious that
Ms. Khattab commenced the practice of secretly carrying around a concealed tape
recorder. Testimony also indicated Ms. Khattab locked herself in her bedroom with the
children on a daily basis. On November 19, 2010, one day after a hearing concerning
temporary parental rights and responsibilities, appellant, exercising his parenting time,
prepared to take his children to school for the first time since the divorce complaint was
filed.
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{¶4} There are two versions of events from this point forward. Ms. Khattab
testified that the children did not want to go with appellant to school. Ms. Khattab
explained that appellant previously threatened to take the children away from their
mother, and as a result, the children were crying hysterically and generally resistant to
appellant’s efforts. Ms. Khattab explained appellant, visibly infuriated, violently grabbed
the children from their waistband and threw them into his automobile. Ms. Khattab
stated she was kicked for attempting to intervene and her daughter, Juvenile A, was
smacked across the face for “talking back” and disobeying appellant’s orders. Ms.
Khattab audio recorded the incident in secret, the tape of which was played for the jury.
The tape reveals loud crying and screaming. An audible smack can be heard with Ms.
Khattab yelling out “don’t hit my children.”
{¶5} Appellant’s testimony illustrated a different atmosphere on the day in
question. Appellant testified he prepared the children’s breakfast and packed their
lunch in anticipation for the upcoming school day. Appellant explained his children
entered his automobile without incident and he buckled them into their seats. He stated
Ms. Khattab came charging out of the house in a disheveled and hysterical state.
Appellant testified Ms. Khattab attempted to remove the children from the automobile
while creating noise and confusion. Appellant explained Ms. Khattab staged the
commotion for the tape recording by slapping her thigh while repeating “don’t hit my
children.” Appellant denied ever hitting his wife or daughter.
{¶6} Officer Jason Fogleman responded to the disturbance call and testified at
trial. Officer Fogleman noted that, as he approached the scene, he witnessed yelling,
crying, screaming, and two adults engaged in a struggle in an open garage. Officer
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Fogleman testified he interviewed Juvenile A, who explained she had been grabbed and
slapped by appellant.
{¶7} On October 12, 2011, the jury acquitted appellant on the charge alleging
domestic violence against his wife, but convicted him on the domestic violence charge
against his daughter.
{¶8} Curiously, the record indicates appellant filed a motion, captioned “motion
in limine,” also on October 12, 2011, seeking to permit additional testimony from
another witness, a court-appointed guardian ad litem for the children, which allegedly
would affect the credibility of Ms. Khattab’s version of events. The trial court denied the
motion.
{¶9} On May 15, 2012, the trial court sentenced appellant to serve 180 days in
jail and pay a $1,000 fine. The trial court stayed the prison term and $900 of the fine,
contingent upon various conditions including successful completion of community work
service and no violation of law for two years. The trial court also stayed execution of the
sentence pending appeal.
{¶10} Appellant now appeals and asserts six assignments of error. Appellant’s
first assignment of error states:
{¶11} “The conviction of domestic violence was based upon insufficient evidence
and the trial court erred as a matter of law in overruling appellant’s Rule 29 motion at
the close of the state’s case-in-chief.”
{¶12} Appellant first argues his conviction is based upon insufficient evidence.
The state contends appellant has waived this argument on appeal because he did not
renew his Crim.R. 29 motion at the completion of his case. In its entry of conviction, the
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trial court noted that appellant’s Crim.R. 29 motion was renewed at the close of all
evidence. In fact, the record indicates appellant presented his Crim.R. 29 motion at the
close of the state’s case. When the trial court overruled the motion, appellant presented
a defense; however, at the close of his case and the presentation of evidence, the
record does not reflect that appellant renewed his Crim.R. 29 motion.
{¶13} We recognize there is a conflict among the appellate districts throughout
Ohio as to whether the failure to renew a Crim.R. 29 motion at the close of all evidence
in a jury trial results in waiver, on appeal, of the claim that the evidence was not
supported by sufficient evidence. See State v. Blake, 12th Dist. No. CA2011-07-130,
2012-Ohio-3124, ¶45-50 (detailing the competing positions of the appellate split). We
need not address this issue, however, because there is sufficient evidence in the record
whereby a rational trier of fact could prove all elements of the charged offense beyond a
reasonable doubt. See State v. Griffin, 6th Dist. No. L-11-1283, 2013-Ohio-411, ¶21
(recognizing the appellate split but finding no need to resolve it given the sufficient
evidence in the record).
{¶14} Crim.R. 29(A) requires the trial court to grant a motion for acquittal if the
evidence is insufficient to sustain a conviction on the charged offenses. The test for
determining the issue of sufficiency 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, 61
Ohio St.3d 259 (1991), paragraph two of the syllabus, citing Jackson v. Virginia, 443
U.S. 307 (1979). Thus, the claim of insufficient evidence invokes a question of due
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process, the resolution of which does not allow for a weighing of the evidence. State v.
Lee, 11th Dist. No. 2010-L-084, 2011-Ohio-4697, ¶9.
{¶15} Appellant was convicted under R.C. 2919.25(A), which states: “No person
shall knowingly cause or attempt to cause physical harm to a family or household
member.” Physical harm includes “any injury, * * * regardless of its gravity or duration.”
R.C. 2901.01(A)(3); see also State v. McKinney, 12th Dist. No. CA2011-08-162, 2012-
Ohio-4521, ¶38. Appellant does not dispute his daughter is a “family or household
member.” Instead, he contends the state failed to present sufficient evidence that
proved he knowingly caused or attempted to cause physical harm to Juvenile A. At trial,
appellant’s theory of the case was that he had no contact with the victim and would
never harm a child, let alone his own child.
{¶16} In support, appellant highlights State v. Adaranijo, 153 Ohio App.3d 266,
2003-Ohio-3822 (1st Dist.), which reversed a domestic violence conviction following a
bench trial on the grounds of insufficient evidence. Testimony elicited two versions of
events in Adaranijo: one version that the defendant smacked his child, age 13, across
the face, and one version that he did not. The First District explained, in either case, the
defendant did not commit domestic violence under R.C. 2919.25(A). Id. at ¶10. The
First District concluded that “without observable injury, or without risk of serious physical
harm, there can be no domestic-violence conviction for a parent as a result of striking a
child.” Id. at. ¶13. Appellant argues there was no observable injury or serious physical
harm in this case, and thus, the conviction is not supported by sufficient evidence.
However, this decision appears to be in conflict with First District precedent explaining
that “R.C. 2919.25(A) does not require any finding of injury, only an attempt to cause
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harm.” State v. Whitfield, 1st Dist. No. C-020241, 2002-Ohio-5984, ¶13. Indeed, by its
express language, the domestic violence statute does not require either observable
injury or a risk of “serious physical harm”; it requires the perpetrator to either knowingly
cause or attempt to cause physical harm to a family or household member.
{¶17} In City of Warren v. Culver, 11th Dist. No. 2003-T-0023, 2004-Ohio-333,
this court examined the language of Warren Ordinance 537.14(a), which is identical to
the language of the domestic violence statute here, R.C. 2919.25(A). We concluded
that “the existence of an injury is not an essential element of the crime of domestic
violence,” and “[a]s long as there was competent, credible evidence before the jury that
Culver attempted to cause Mrs. Culver physical harm, there was evidence sufficient to
sustain the conviction.” (Emphasis added.) Id. at ¶12. In City of Niles v. Cadwallader,
11th Dist. No. 2003-T-0137, 2004-Ohio-6336, we cited Culver with approval while
examining Niles City Ordinance 537.14(A), which also mirrors the subject domestic
violence statute. We again established that the “prosecution was not required to
establish the existence of actual physical injury.” Id. at ¶17. We affirmed the conviction
after concluding there was sufficient evidence presented establishing the appellant’s
attempt to cause physical harm to a family member. Id. at ¶19.
{¶18} Here, there is sufficient evidence to support a finding that appellant
knowingly caused or attempted to cause physical harm to sustain a conviction of
domestic violence against Juvenile A, to wit: Ms. Khattab testified she observed
appellant smack their daughter across the face; a tape recording of the incident
revealed an audible smack, children frantically crying, and Ms. Khattab hysterically
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yelling “don’t hit my children”; Officer Fogleman testified to Juvenile A’s statement that
her father smacked her across the face.
{¶19} Appellant argues in the alternative that, assuming he did contact the
victim, he did not exceed his rights of parental discipline. The Ohio Supreme Court, in
State v. Suchomski, 58 Ohio St.3d 74, 75 (1991), recognized the right of parents to
control and raise their own children by imposing reasonable physical discipline to punish
the child’s misconduct. The Court recognized “injury” to be the invasion of any legally-
protected interest, and a child does not have a legally-protected interest that is invaded
by proper and reasonable parental discipline. This stems from a parent’s right to
manage the rearing of his or her child, a fundamental liberty interest. State v. Hause,
2d Dist. No. 17614, 1999 Ohio App. LEXIS 3627 (Aug. 6, 1999), *6, citing Santosky v.
Kramer, 455 U.S. 745 (1982). Accordingly, the domestic violence statute does not
prohibit a parent from properly disciplining his or her child, and “[a] parent may use
physical punishment as a method of discipline without violating the domestic violence
statutes as long as the discipline is proper and reasonable under the circumstances.”
State v. Vandergriff, 11th Dist. No. 99-A-0075, 2001 Ohio App. LEXIS 4285 (Sept. 21,
2001), *10.
{¶20} However, the accused bears the burden of establishing parental discipline
as an affirmative defense. State v. Phillips, 10th Dist. No. 12AP-57, 2012-Ohio-6023,
¶18, citing State v. Zielinski, 12th Dist. No. CA2010-12-121, 2011-Ohio-6535, ¶27; see
also Vandergriff, supra, at *10, and Cadwallader, 2004-Ohio-6336, ¶23 (“in domestic
violence cases where the victim is a child, appellate courts have recognized the
affirmative defense of ‘proper and reasonable parental discipline’ of the child”). Indeed,
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“[a]s the defense presents a question of fact, it is only capable of resolution by trial on
the general issue.” Vandergriff, supra, at *11.
{¶21} At trial, appellant did not pursue this theory of the case; instead, he
maintained he had no contact with the victim. He therefore did not raise this affirmative
defense during trial nor did he elicit any testimony that would support it. Appellant
points again to Adaranijo, where the First District concluded that, even though the
defendant did not assert it, the evidence manifestly raised and proved the parental
discipline affirmative defense on his behalf. Id. at ¶13. Regardless of the propriety of
an appellate court raising and accepting on an appellant’s behalf an affirmative defense
not previously raised at the trial level, we cannot ignore that the burden of proof rested
on appellant to make a prima facie case of parental discipline as an affirmative defense.
It was therefore incumbent upon him to meet the burden of production by producing or
coming forward with sufficient evidence to establish the affirmative defense. See
Vandergriff, supra, at *11. It was additionally incumbent upon appellant to meet the
burden of persuasion by arguing that the evidence successfully established the
defense. Id. Further, “[a]n essential part of raising the defense is getting a jury
instruction that permits a finding [that reasonable parental discipline] has been met.” Id.
at *11.
{¶22} Rather than pursue this defense, appellant argued he had no contact with
the victim whatsoever. In fact, appellant used propensity logic to suggest it was not in
his character to ever hit a child, given his duty as a pediatrician. Appellant testified that,
in his profession, he regularly advises parents about the dangers of smacking or
spanking a child, explaining such abuse “would never be productive.” Presenting the
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parental discipline defense for the first time on appeal undermines appellant’s principle
theory of the case and was never before the jury for consideration in this case. It will
not be considered for the first time now.
{¶23} Even if the affirmative defense had been raised, we note “[a] review for
sufficiency of the evidence does not apply to affirmative defenses, because the review
does not consider the strength of the defense evidence.” State v. Phillips, 10th Dist. No.
12AP-57, 2012-Ohio-6023, ¶13, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-
160, ¶37. In Phillips, the defendant argued his conduct was insufficient to constitute
domestic violence against his minor child because he used proper and reasonable
parental discipline. Id. The defendant in Phillips raised the affirmative defense at trial.
Id. However, the Tenth Appellate District explained that the defendant could not
challenge the jury’s rejection of his claim of reasonable parental discipline on the basis
of sufficiency because a claim of insufficient evidence challenges the sufficiency of the
state’s evidence. Id.{¶24} Appellant’s first assignment of error is without merit.
{¶25} Appellant’s second assignment of error states:
{¶26} “The conviction is against the manifest weight of the evidence.”
{¶27} To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact “lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997). In weighing the evidence submitted at a criminal trial, an
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appellate court must defer to the factual findings of the trier of fact regarding the weight
to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus. Further, “[n]o conviction resulting from
a trial by jury shall be reversed on the weight of the evidence except by the concurrence
of all three judges hearing the appeal.” Webber v. Kelly, 120 Ohio St.3d 440, 2008-
Ohio-6695, ¶6.
{¶28} Appellant’s principle contention under his second assignment of error is
that the conviction is against the manifest weight of the evidence because it is “based
upon uncorroborated and contradictory hearsay[.]” The jury in this case was indeed
presented with two versions of events. It must be emphasized that the trier of fact is in
the best position to evaluate testimony and resolve inconsistencies, if any, by observing
the witness’s manner and demeanor on the witness stand—attributes impossible to
glean through a printed record. See generally State v. Sevilla, 10th Dist. No. 06AP-954,
2007-Ohio-2789, ¶14. We therefore afford the jury verdict deference. In addition to the
conflicting version of events offered by Ms. Khattab and appellant, either of which the
jury could have believed, the evidence included the statement made by Juvenile A to
the police that her father had hit her. This supported Ms. Khattab’s version of events.
After a detailed review of the record, we find the jury verdict is not against the manifest
weight of the evidence.
{¶29} Appellant’s second assignment of error is without merit.
{¶30} Appellant’s third assignment of error states:
{¶31} “The trial court erred as a matter of law and committed plain and
cumulative error in: (1) the admission of testimonial statements to the police; (2) the
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failure to have an interpreter to interpret the Arabic on the tape played to the jury; and
(3) allowing Ms. Khattab to testify to highly prejudicial and discriminatory ethnicity-based
statements.”
{¶32} A court’s evidentiary rulings are reviewed under an abuse of discretion
standard. State v. Poling, 11th Dist. No. 2008-A-0071, 2010-Ohio-1155, ¶19, citing
State v. Sweeney, 11th Dist. No. 2006-L-252, 2007-Ohio-5223, ¶22. Even where a
court abuses its discretion in the admission of evidence, we must review whether the
defendant suffered material prejudice due to the ruling. Id.{¶33} Appellant argues that, under the doctrine of cumulative error, three
separate evidentiary rulings allegedly made in error compound into prejudicial error.
“The cumulative error doctrine provides that while certain errors, individually, may not
be prejudicial, when those errors are combined the aggregate effect denies the
defendant a fair trial.” State v. Jackson, 11th Dist. No. 2008-T-0024, 2010-Ohio-1270,
¶43, citing State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus.
{¶34} The record indicates appellant did not object to any of the three purported
evidentiary errors. Accordingly, appellant has waived all but plain error. Crim.R. 52(B)
provides: “[p]lain error or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” “Plain error is present only if the
error is obvious and, but for the error, the outcome of the trial clearly would have been
different.” State v. Turner, 11th Dist. No. 2010-A-0060, 2011-Ohio-5098, ¶34, citing
State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶108. This court will
recognize plain error, “‘with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.’” State v. Landrum, 53 Ohio St.3d
12107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the
syllabus. It is appellant’s burden to demonstrate plain error. Id.{¶35} Appellant first contends the trial court erred in admitting Juvenile A’s
“testimonial” statements to the police. Appellant contends his Sixth Amendment
Confrontation Clause rights were violated when Officer Fogleman testified to what
Juvenile A told him during the on-scene interview. Officer Fogleman testified during the
state’s case-in-chief that the victim, Juvenile A, explained “[appellant] had grabbed her
by the neck and at one point had slapped her.” Conversely, the state contends that,
even if the Confrontation Clause was implicated, any error in this case is harmless error.
As set forth above, however, we are to employ a plain error analysis. As noted by the
Tenth Appellate District: “Where preserved by objection, review of Confrontation
Clause claims is for harmless error. Confrontation Clause claims not preserved by
objection are reviewed for plain error * * *.” State v. Scott, 10th Dist. No. 05AP-1144,
2006-Ohio-4981, ¶11, fn. 4.
{¶36} “It is a well established principle that Confrontation Clause rights, like
other constitutional rights, can be waived.” State v. Pasqualone, 121 Ohio St.3d 186,
2009-Ohio-315, ¶14. Not only can a defendant waive this right, but “a defendant’s
counsel generally is capable of waiving Confrontation Clause rights without the specific
approval of the defendant.” Id. at ¶22. This is because “a lawyer must have ‘full
authority to manage the conduct of the trial. The adversary process could not function
effectively if every tactical decision required client approval.’” Id. at ¶24, quoting Taylor
v. Illinois, 484 U.S. 400, 418 (1988). “‘[D]ecisions by counsel are generally given effect
as to what arguments to pursue, * * * what evidentiary objections to raise, * * * and what
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agreements to conclude regarding the admission of evidence * * *. Absent a
demonstration of ineffectiveness, counsel’s word on such matters is the last.’” Id.,quoting New York v. Hill, 528 U.S. 110, 115 (2000).
{¶37} Given the unique facts of this case, we recognize that the failure to object
at the trial level on the grounds the statement was testimonial and implicated the
Confrontation Clause may have been a tactical decision and thus an intentional
relinquishment of the right. Indeed, Officer Fogleman’s recounting of the events in lieu
of having Juvenile A take the stand to offer emotionally-charged testimony could have
been beneficial to appellant. Nothing in the record indicates Juvenile A was found
incompetent to testify. Additionally, the failure or decision not to object clearly affected
the manner in which the state presented its case-in-chief. As appellant did not object,
and as the statement became evidence for the jury’s consideration, the state had no
need to call Juvenile A to testify or otherwise attempt to introduce the statement. That
evidence is therefore naturally not before this court in the record. It is simply not clear
whether this failure was deliberate. Accordingly, appellant has not met the burden of
establishing plain error. Further, under appellant’s line of reasoning, the trial court, to
avoid the alleged error in this case, would have been required to raise an objection on
behalf of appellant.
{¶38} Appellant did not call his daughter to testify. This could be for a multitude
of reasons. One could be that he believed her testimony would be harmful to his cause.
It may have been much less damaging to allow the officer to testify on a limited basis to
what Juvenile A told him. In fact, if that was the case, and there is a retrial, new counsel
might come to the exact same conclusion as the original trial counsel. The reality is this
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type of claimed ineffective assistance can typically only be vetted in a postconviction
petition hearing. That setting is needed to clarify what occurred and why, and be
preserved for the record. Otherwise, we might erroneously speculate that a potentially
ineffective decision at trial was, in reality, a prudent one.
{¶39} As appellant relies on cumulative error, we need not address the other
points under this assignment of error. Nonetheless, the failure to have an interpreter to
interpret the Arabic on the tape played to the jury and allowing “discriminatory ethnicity-
based” statements do not rise to the level of plain error, especially when appellant could
offer his own interpretation of the Arabic on the tape. Appellant testified in this case. If
there were erroneous interpretations made, he had every opportunity to offer testimony
to that effect, but chose not to. Because he offered no contradictory interpretation of
what was on the tape, it was not error for the trial court to fail to hire a third party to
interpret the statements. Further, Ms. Khattab’s translations detailed how appellant
called her a dog and accused her of being unreligious; the comments were not material
to the issue of domestic violence.
{¶40} Appellant’s third assignment of error is without merit.
{¶41} Appellant’s fourth assignment of error states:
{¶42} “The trial court abused its discretion in overruling appellant’s motion in
limine thereby foreclosing the possibility to impeach the statements of Juvenile A or to
impeach the state’s witness. Further, the cumulative effect of the errors in the third and
fourth assignments of error resulted in an unfair trial.”
{¶43} “A ‘motion in limine’ is defined as a ‘pretrial request that certain
inadmissible evidence not be referred to or offered at trial.’” State v. Freeze, 12th Dist.
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No. CA2011-11-209, 2012-Ohio-5840, ¶43, quoting Black’s Law Dictionary (9th
Ed.2009). The record before this court indicates appellant filed a motion after trial,
seeking to include additional testimony from new witnesses. It therefore appears the
motion was erroneously captioned “motion in limine.”
{¶44} Moreover, in order to preserve any error for this appeal, appellant should
have made the record by calling these witnesses at trial and, if the anticipated testimony
was indeed met with successful objection, proffer the testimony or make the substance
of the testimony known to the court outside the presence of the jury, pursuant to Evid.R.
103(A)(2) and (A)(2)(C). Appellant neither introduced the witnesses nor proffered the
subject testimony or the substance of the testimony in any capacity at (or before) trial
and has therefore not preserved any error for this appeal.
{¶45} Appellant’s fourth assignment of error is without merit.
{¶46} Appellant’s fifth assignment of error states:
{¶47} “The defendant was denied a fair trial based upon the ineffective
assistance of trial counsel.”
{¶48} In order to prevail on an ineffective assistance of counsel claim, appellant
must demonstrate that trial counsel’s performance fell below an objective standard of
reasonable representation, and there is a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different. State v. Bradley, 42 Ohio
St.3d 136 (1989), paragraph two of the syllabus, adopting the test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). If a claim can be disposed of by showing a lack of
sufficient prejudice, there is no need to consider the first prong, i.e., whether trial
counsel’s performance was deficient. Id. at 142, citing Strickland at 695-696. There is
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a general presumption that trial counsel’s conduct is within the broad range of
professional assistance. Id. at 142-143.
{¶49} Appellant argues his trial counsel provided ineffective assistance for
numerous reasons. We note appellant has not included as one of these reasons trial
counsel’s failure to object to Officer Fogleman’s testimony regarding Juvenile A’s
statement on either hearsay or Confrontation Clause grounds. Therefore, this particular
failure to object will not be considered in our analysis. See App.R. 16(A).
{¶50} First, appellant contends trial counsel was ineffective for failing to make
any arguments to support the Crim.R. 29(A) motion. However, as set forth above, the
conviction is supported by sufficient evidence, and thus, it cannot be concluded that any
failure to argue more specific points in the Crim.R. 29 motion before the trial court
prejudiced appellant in any way.
{¶51} Next, appellant contends his counsel should have objected to alleged
“prior bad acts” testimony wherein Ms. Khattab detailed “years of abuse and fighting”
and suggested that physical violence against one’s wife was permissible in Egyptian
culture. We note “failure to object is within the realm of trial tactics and, therefore, does
not definitively establish deficient performance by counsel.” State v. Gray, 2d Dist. No.
20980, 2007-Ohio-4549, ¶20. In this matter, it simply cannot be concluded that
appellant was prejudiced by these passing comments, especially when appellant was
acquitted on the domestic violence charge as against his wife.
{¶52} Appellant additionally argues his trial counsel should have objected to Ms.
Khattab’s “de facto interpretation” of portions of Arabic heard on the tape of the incident.
We cannot conclude trial counsel’s performance fell below an objective standard of
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reasonable representation because appellant, who also spoke Arabic and took the
witness stand, could have rebuked any improper or incorrect interpretation. There is
nothing in the record to suggest her interpretations were, in fact, incorrect.
{¶53} Appellant also argues his trial counsel failed to file a motion to dismiss on
speedy trial grounds. We note that appellant, after the state of Ohio filed its brief on
appeal, asked this court to supplement the record on appeal with the docket and filings
contained in a previously-filed case. This request was denied by this court. In his merit
brief, appellant concedes there is a notation on a pretrial report from the prior case that
he waived speedy trial; however, he argues there is nothing signed by him that
illustrates he knowingly and voluntarily waived his speedy-trial right. This notation
illustrates the need to have this type of claim resolved in a postconviction petition
proceeding. Whether the statutory or constitutional speedy trial time limits were
exhausted is not a matter that can be resolved in the record before this court, nor could
it be resolved merely by supplementing the record with the prior case record. A
postconviction relief proceeding would allow both parties to introduce evidence and/or
testimony that would allow the issue to fully be addressed.
{¶54} Finally, appellant asserts that the failure to raise the affirmative defense of
proper and reasonable parental discipline, when the facts prove it, is ineffective
assistance of counsel. However, it is well established that strategic and tactical
decisions of trial counsel fall within the scope of objectionably reasonable judgment.
Strickland v. Washington, 466 U.S. 668, 699 (1984). The decision to assert the defense
that appellant had no contact with the victim was within the realm of trial tactics.
{¶55} Appellant’s fifth assignment of error is without merit.
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{¶56} Appellant’s final assignment of error states:
{¶57} “The trial court erred as a matter of law and lost jurisdiction to sentence
appellant due to an impermissible delay between conviction and sentence.”
{¶58} Appellant argues the approximately seven-month time span in between
the verdict and sentence was unreasonable, unnecessary, and impermissible.
{¶59} We are mindful of the authority cited by appellant: that Crim.R. 32
provides a “[s]entence shall be imposed without unnecessary delay” and that Sup.R.
39(B)(4) provides “the court shall impose sentence or hold a sentencing hearing with all
parties present within fifteen days of the verdict or finding of guilt or receipt of a
completed presentence investigation report.” It must be recognized, however, that the
“rules of superintendence are merely guidelines for judges and are not the equivalent of
rules of procedure and practice.” State v. Beam, 77 Ohio App.3d 200 (11th Dist.1991).
{¶60} This court has previously found delays between conviction and sentencing
to be unreasonable and unnecessary, though it has been in circumstances where there
was no reason for the delay. See City of Warren v. Ross, 116 Ohio App.3d 275 (11th
Dist.1996) (more than four years passed between conviction and sentence and the
record failed “to provide any reason whatsoever for this delay”); Willoughby v. Lukehart,
39 Ohio App.3d 74 (11th Dist.1987) (more than one year passed between conviction
and sentence for no apparent reason). Here, however, the record indicates reasons
justifying the delay of approximately seven months: appellant filed post-verdict motions,
including a motion for new trial, which required consideration and disposition; a pre-
sentence investigation report was ordered; and the court transferred the cause from the
Ravenna Division to the Kent Division.
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{¶61} Appellant’s sixth assignment of error is without merit.
{¶62} Accordingly, the judgment of the Portage County Municipal Court,
Ravenna and Kent Divisions, is affirmed.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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