State v. Nicholson ( 2022 )

[Cite as State v. Nicholson, 2022-Ohio-374.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110522
v. :
NASIM NICHOLSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-644528-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and John Hirschauer, Assistant Prosecuting
Attorney, for appellee.
Maxwell Martin, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Nasim Nicholson (“Nasim”), appeals from the
trial court’s judgment finding him guilty of participating in a criminal gang and
sentencing him to an indefinite term of 9 to 12 years’ incarceration. Finding no merit
to the appeal, we affirm.
I. Background
In October 2019, Nasim was charged in a 25-count indictment. Count
1, participating in a criminal gang, stemmed from Nasim’s conduct from August 1,
2018, to June 19, 2019. The other counts — 4 counts of attempted murder, 13 counts
of felonious assault, 3 counts of discharge of a firearm at or near prohibited
premises, 2 counts of improperly handling firearms in a motor vehicle, and 2 counts
of improperly discharging firearm at or into habitation — arose out of three separate
shooting incidents that occurred on December 4, 2018, January 27, 2019, and
January 29, 2019. Nasim was charged with two codefendants — his brother Onaje
Nicholson and his nephew Jesse Sanders.
Prior to trial, codefendant Sanders entered into a plea agreement with
the state whereby he agreed to plead guilty to three counts of felonious assault
related to the three shootings and testify against Nasim and Onaje at trial. After he
testified, the remaining firearm specifications and charges against him were nolled,
and the trial court sentenced him to four years’ probation.
Sanders testified that he has known Nasim, known as Nas, and Onaje
his entire life, and Malik Booker, known as ManMan, and James Booker, known as
Mister, for at least ten years. Sanders testified that on December 4, 2018, he, Nasim,
Onaje, and Mister were riding in Sanders’s car. According to Sanders, Onaje was
driving, Sanders was in the front passenger seat, Nasim was in the rear passenger
seat behind him, and Mister was in the rear passenger seat behind Onaje. Sanders
said that as their car travelled on Forest Avenue near East 116th Street, a gray Ford
passed them going the opposite direction. Sanders testified that as the Ford went
by, Onaje said, “there go Ty,” referring to Tykis Banks, whom Onaje believed was
involved in the murder of an individual named Muddy. Sanders said that upon
seeing the Ford, Onaje rolled his window down, blew the car’s horn, and then put
two fingers out the window and made the peace sign. Onaje then turned the car
around and sped up next to Ty’s car. Sanders said that when they saw the rear
passenger window of the Ford go down, Nasim leaned out of the rear window of
their car and fired three to five shots at the Ford with a Glock handgun before Onaje
sped away.
The next shooting incident occurred six to seven weeks later. Sanders
testified that on January 27, 2019, he was again riding with Nasim and Onaje in his
car. This time Sanders was driving, Onaje was in the front passenger seat, and
Nasim was in the rear. Sanders said that as they drove up Svec Avenue toward East
140th Street, Onaje identified a brownish-gold Chevy Impala parked on the street as
belonging to an individual named Pablo and then leaned out the window and shot
at the car as they drove by. Sanders testified that he kept driving, turned the corner,
drove around the block, and passed by the Impala again. Sanders said that this time,
Nasim got out of the car and fired more shots at an individual who was trying to
duck for cover.
The third shooting occurred two days later. Sanders testified that he
knows Delvonte Philpotts, known as Yelly, from Instagram. He said that at
approximately 4 a.m. on January 29, 2019, he, Onaje, and Nasim left the Nicholsons’
house in South Euclid and drove to Cato Avenue in Maple Heights. Onaje drove,
Sanders sat in the front passenger seat, and Nasim sat in the rear. Sanders said that
Onaje identified a home on Cato Avenue as Yelly’s house. Sanders testified that he
parked the car around the corner on Arch Street, and Onaje and Nasim got out of
the car and ran toward Yelly’s house. Sanders said that he heard at least ten
gunshots, after which Onaje and Nasim ran back to the car. Sanders testified that
later the same day, he received a call from Darren Allen, known as Puff, who said
that Yelly’s sister was posting about the shooting on Facebook and blaming it on
Puff, Onaje, and Nasim. Sanders said he texted Onaje and told him, “one of y’all
grazed a baby,” and Onaje responded, “how you know?” Sanders said that when he
texted Onaje that “Puff called and said they posted it on Facebook,” Onaje
responded, “bet,” which means “okay.”1
Although Sanders denied being a member, he testified that Nasim,
Onaje, and Puff identified themselves as members of a “group” called the Real
Shooters, which he said they abbreviated as “RS.” Sanders identified Puff’s
Instagram account from state’s exhibit No. 405 as “rs_puffdiditagain,” Nasim’s
Instagram account as “rs_nas4rmtha6,” and Onaje’s account as “rs_ojayy116.”
Sanders identified Nasim and Onaje from their Instagram pictures on state’s exhibit
No. 405, and confirmed that Onaje was wearing a hoodie with the words “President
1 No one was injured in any of the shootings. Ashley Brooks, who lived in the house
on Cato Avenue with her brother Yelly and her three children, testified at trial that she
posted on Facebook about the shots hitting a baby to scare the shooters and let them know
that “things like that can happen when you shoot into a house with children.”
RS” in his Instagram picture. Sanders said that Onaje and Nasim carried guns
“every day” in 2o18 and 2019 and different guns would be passed around the group.
Sanders also identified state’s exhibit No. 407 as a picture of Nasim holding a Glock
with a laser light attachment.
Sergeant Alfred Johnson, supervisor of the Cleveland Police
Department Gang Impact Unit, testified that he became aware of the Real Shooters
gang before Nasim was implicated in the three shootings for which he was charged
after an incident near 117th Street and Kinsman Avenue where an arrest was made
and several firearms were recovered. Later, after the December 2018 shooting
incident in this case, Sgt. Johnson spoke with the mother of one of the intended
victims and, in light of what she told him, he began investigating the social media
accounts of Nasim, Onaje, Puff, and Malik Booker, as well as the accounts of the
people who followed them or commented on their posts. Sgt. Johnson testified that
the posted pictures were generally of males holding guns, which he said is how gangs
boast to each other on social media. He testified that gangs typically use illegally
obtained firearms and frequently trade the guns among the gang members,
especially if a gun has been used by a member in a shooting.
He testified that the social media posts viewed by the detectives in the
gang unit established that the Real Shooters gang operated near the area of East
116th Street in the city of Cleveland, between Kinsman and Buckeye Roads.
Detective Michael Harrigan, who took over the investigation from Sgt. Johnson in
January 2019, and was qualified at trial as a gang expert, testified that as a result of
his investigation, he concluded there were six members of the Real Shooters gang,
including Puff, brothers Nasim and Onaje, and codefendant Jesse Sanders.
Both Sgt. Johnson and Det. Harrigan testified that although the Real
Shooters was a criminal gang in and of itself, the RS gang associated itself with the
Heartless Felons gang. Both Sgt. Johnson and Det. Harrigan identified social media
posts and pictures that established consistent hand signs used by the gang members,
which for the Real Shooters was either pointing a real gun or a finger gun at the
person’s own head, and for the Heartless Felons, a hand sign with two middle fingers
folded down into the palm and the other fingers extended. The social media posts
viewed by the detectives also included other text or graphic symbols representing
gang membership, such as the trademark broken heart symbol of the Heartless
Felons, and identifying apparel (a tee-shirt with the letters RS and broken hearts
and a hoodie stating “President RS”).
With respect to Nasim’s association with the Real Shooters, Sgt.
Johnson and Det. Harrigan identified state’s exhibit Nos. 717-721, 729-732, and 779
as pictures from social media of Nasim, often with the other codefendants or known
associates of the gang, either holding up gang signs for the Real Shooters or
Heartless Felons, a gun, or both.
Sgt. Johnson testified that Nasim used several Instagram accounts,
one of which was “rs_nas4rmtha6.” Sgt. Johnson testified that other suspected
members of the Real Shooters had the similar prefatory “rs” on their Instagram
account names. Det. Harrigan testified that there was also a graphic small “r” and
money sign on the “rs_nas4rmtha6” profile page, used to show membership in the
Real Shooters, as well as a broken heart for the Heartless Felons, and the numbers
1, 1, and 6, indicating the Real Shooter’s geographic territory on East 116th Street.
Sgt. Johnson testified that Nasim’s other Instagram accounts — “naso4rm116” and
“nas_heartless” — likewise established connections with the Real Shooters and
Heartless Felons.
In addition to the social media posts establishing his membership in
the Real Shooters from August 1, 2018, to June 19, 2019, the evidence produced at
trial implicated Nasim in the December 14, 2018, January 27, 2019, and January 29,
2019 shootings. As set forth above, codefendant Sanders testified that Nasim was
involved in each shooting. Additionally, Det. Harrigan testified that in his post-
arrest interview, Nasim admitted to carrying a Glock — which according to Kristen
Koeth, the forensic scientist who examined recovered shell casings, was the gun used
in two of the shootings — although Nasim later recanted this statement.
Nasim also admitted at one point in his interview with Det. Harrigan
to his involvement in the January 27, 2019 shooting, stating that “they started
shooting and we shot back,” a statement Det. Harrigan testified he knew to be untrue
but that established Nasim’s presence at the scene. Nasim also told Det. Harrigan
that he knew about the “beef” with Pablo that prompted the shooting. Similarly,
with respect to the January 29, 2019 shooting in Maple Heights, Nasim told Det.
Harrigan he was aware there was an ongoing argument on Instagram involving Yelly
and two other males.
Nevertheless, there was conflicting evidence regarding Nasim’s
involvement in the three shootings. Sgt. Johnson testified that the victims of the
December 4, 2018 shooting identified the shooters in their written statements to
police as Puff and Onaje and made no mention of Nasim. Moreover, a still
photograph from a surveillance camera from a home on Forest Avenue showed an
individual leaning out of the driver’s side rear passenger window of Sanders’s car
with his arm extended as if he were shooting, calling into question Sanders’s
testimony that Nasim, who according to Sanders was sitting in the rear passenger
seat behind the front passenger, was the shooter. Likewise, Sanders testified that
Nasim used a 1911 silver gun in the second shooting, but no casings consistent with
a 1911 firearm were found at the scene. With regard to the third shooting incident,
Ashley Brooks, who lived in the house on Cato Avenue with her brother Yelly and
her three children, told the Maple Heights patrolman who responded to the scene
after the shooting that she thought Puff and Onaje were the perpetrators because
they had been threatening her on Instagram prior to the shooting. She made no
mention of Nasim’s involvement in the Instagram threats.
The jury found Nasim guilty of Count 1, participating in a criminal
gang, as well as the one- and three-year firearm specifications, and not guilty of the
remaining charges. The trial court sentenced him to 3 years on the firearm
specification, consecutive to an indefinite sentence of 6 to 9 years on the underlying
offense, for a total sentence of 9 to 12 years. This appeal followed.
II. Law and Analysis
A. Sufficiency of the Evidence
In his first assignment of error, Nasim contends that the evidence was
insufficient to support his conviction for participating in a criminal gang.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Hill, 8th Dist. Cuyahoga
No. 98366, 2013-Ohio-578, ¶ 13. An appellate court’s function when reviewing the
sufficiency of evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince
the average mind of the defendant’s guilt beyond a reasonable doubt. Id., citing
State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). 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. Id.Nasim was convicted of participating in a criminal gang from August 1,
2018, to June 19, 2019, in violation of R.C. 2923.42(A), which states:
No person who actively participates in a criminal gang, with knowledge
that the criminal gang engages in or has engaged in a pattern of
criminal gang activity, shall purposely promote, further, or assist any
criminal conduct, as defined in division (C) of section 2923.41 of the
Revised Code, or shall purposely commit or engage in any act that
constitutes criminal conduct, as defined in division (C) of section
2923.41 of the Revised Code.
Under this statutory section, the state is required to prove four
elements:
(1) the existence of a criminal gang, (2) appellant’s active participation
in the gang, (3) appellant’s knowledge that the gang engages in or has
engaged in a pattern of criminal gang activity, and (4) appellant’s
purposeful promotion, furtherance, or assistance of, or commission of
or engagement in, any criminal conduct.
State v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, ¶ 72. We address
each element in turn.
1. Existence of a criminal gang
Under R.C. 2923.41(A), a criminal gang is defined as an ongoing
organization, association, or group, consisting of three or more persons who engage
in or have engaged in a pattern of criminal gang activity, which has as one of its
primary activities the commission of one or more felonies, has a common name or
common identifying signs, symbols, or colors, and the persons in the organization,
association, or group individually or collectively engage in or have engaged in a
pattern of criminal activity.
Nasim does not dispute that the Real Shooters was a criminal gang.
Nevertheless, we find that the state introduced sufficient testimony at trial to
establish that fact. Det. Harrigan testified that there were six members of the Real
Shooters gang. Sgt. Johnson testified that the Real Shooters operated in the area of
East 116th Street in the city of Cleveland between Kinsman Road and Buckeye Road.
He testified further that Real Shooters’ members could be identified by their
repeated and deliberate use of hand signs, including either pointing a real gun or a
finger gun at the person’s own head. Gang association was also established by the
members’ pervasive use of social media showing both gang hand signs and
suspected illegal possession of firearms traded among members, which Sgt. Johnson
testified is common among gang members; the identifying mark of “rs” in gang
member social media user names; apparel with Real Shooters insignia on it; and text
and graphic symbols, such as broken hearts or a small “r” and money sign,
representing gang membership. The state also produced evidence that Real
Shooters’ members had engaged in three separate shooting incidents within a short
time of each other. This evidence, considered in a light most favorable to the state,
is sufficient to prove the first element of participating in a criminal gang under R.C.
2923.42(A).
2. Active participation
“[T]he active participation element of the criminal gang statute
requires the state [to] demonstrate that appellant actually — not just nominally —
took part in the criminal gang.” State v. Smith, 6th Dist. Lucas No. L-15-1027, 2017-
Ohio-776, ¶ 38. “Actual participation requires that the appellant perform ‘some role
to benefit the gang.’” State v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017 Ohio-
4339, at ¶ 76, quoting Smith at ¶ 39.
The state presented sufficient direct and circumstantial evidence that
Nasim was an active member of the Real Shooters gang. Nasim maintained multiple
Instagram accounts — “rs_nas4rmtha6,” “naso4rm116,” and “nas_heartless” — that
established his affiliation with both the Real Shooters and the Heartless Felons.
Several of the photographs introduced by the state, which were screenshots of both
Nasim’s and other Real Shooters members’ social media accounts, were posted by
Nasim’s own Instagram account; the others were posted by individuals that Nasim
was known to associate with. The photographs depicted Nasim and other gang
members flashing gang signs, wearing clothing with gang insignia, and brandishing
firearms traded among the members and used in the shootings for which Nasim was
charged.
The state also produced evidence that would lead a reasonable
factfinder to believe that Nasim actually took part in the gang and performed a role
to benefit the gang. Specifically, the state produced evidence that Nasim was an
active participant in the three shootings for which he was indicted. Although there
was conflicting evidence regarding Nasim’s participation, the state produced
sufficient evidence that, if believed, demonstrated that he was involved in all three
shootings. Indeed, codefendant Sanders gave detailed testimony regarding Nasim’s
active participation in each incident. Furthermore, Nasim’s postarrest interview
with Det. Harrigan established that Nasim knew about the “beefs” with Pablo and
Yelly that led to the two shootings in January 2019. Nasim also initially admitted in
this interview to owning a Glock, the gun used in two of the shootings. He also
admitted before recanting that he was involved in the January 27, 2019 shooting.
This evidence, if believed, established that Nasim did more than simply flash the
hand sign of the Real Shooters on social media; he actively engaged in conduct that
furthered some interest of the gang. Accordingly, we find that the state produced
sufficient evidence of the second element of R.C. 2923.42(A).
3. Knowledge of the gang’s pattern of criminal activity
Having found the state’s evidence sufficient to prove the first two
elements of R.C. 2923.42(A), we now consider the third element — Nasim’s
knowledge that the Real Shooters gang engages in or engaged in a pattern of
criminal activity.
A pattern of criminal gang activity occurs when “persons in the
criminal gang have committed, attempted to commit, conspired to commit, been
complicitors in the commission of, or solicited, coerced, or intimidated another to
commit, or be in complicity in the commission of two or more” specified offenses.
R.C. 2923.41(B)(1). The specified offenses include offenses committed by a juvenile
that would be felonies if committed by an adult. R.C. 2923.41(B)(1)(a).2
There is a “pattern” of criminal activity regarding the specified
offenses when at least one of the two or more specified offenses is a felony, at least
one of the offenses occurred on or after January 1, 1999, the most recent of the
offenses occurred within five years of another of the specified offenses, and the
specified offenses are committed on separate occasions by two or more persons.
R.C. 2923.41(B)(2).
The state produced evidence that two or more Real Shooters members
were involved in shootings on December 4, 2018, January 27, 2019, and January 29,
2019, which establishes a pattern of criminal gang activity. The state also produced
2Nasim was 17 years old when the felony offenses for which he was charged were
committed.
evidence that the shootings occurred while Nasim was a member of the Real
Shooters, and in fact, that he was an active participant in the shootings. In light of
this evidence, the trier of fact could reasonably infer that Nasim had knowledge of
the gang’s pattern of criminal activity. Accordingly, we conclude that the state
produced sufficient evidence to prove the third element of R.C. 2923.42(A).
4. Purposeful promotion, furtherance, or assistance of, or
commission of or engagement in any criminal conduct
Finally, we must consider whether the state produced sufficient
evidence to establish the fourth element of R.C. 2923.42(A); i.e., that Nasim
purposely promoted, furthered, assisted, or engaged in any criminal conduct.
Sgt. Johnson testified that gangs boast to each other on social media
by displaying guns and that Nasim appeared in numerous social media posts either
flashing gang symbols, holding firearms, or both. Thus, the jury could reasonably
interpret Nasim’s social media posts and appearances as purposeful promotion,
furtherance, and assistance of the Real Shooters gang.
Furthermore, codefendant Sanders testified that Nasim was one of the
shooters in each of the shooting incidents. If believed, this evidence would certainly
permit the trier of fact to conclude that Nasim committed criminal conduct.
Additionally, the jury viewed Nasim’s postarrest interview with Det. Harrigan in
which Nasim admitted before recanting both to owning a Glock, the gun used in two
of the shootings, and to participating in the second shooting.
Upon consideration, we find the state’s evidence, if believed, sufficient
to prove Nasim’s purposeful promotion, furtherance, assistance of, or commission
of criminal conduct. Having also found the state’s evidence sufficient as to the other
three elements of participating in a criminal gang under R.C. 2923.42(A), we find
no merit to Nasim’s sufficiency argument on appeal. The first assignment of error
is therefore overruled.
B. Jury Instructions
Nasim was charged in Count 1 with participating in a criminal gang as
follows:
[Nasim] did actively participate in a criminal gang, with knowledge that
the criminal gang engages in or had engaged in a pattern of criminal
gang activity, and did purposely promote, further, or assist any
criminal conduct, as defined in division (C) of section 2923.41 of the
Revised Code, or did purposely commit or engage in any act that
constituted criminal conduct, as defined in division (C) of section
2923.41 of the Revised Code, to wit: Attempted Murder, R.C.
2923.02/R.C. 2903.02 and/or Aggravated Robbery, R.C. 2911.01
and/or Robbery, R.C. 2911.02 and/or Felonious Assault, R.C. 2903.11
and/or Improper Discharge into a Habitation, R.C. 2923.161 and/or
Discharge Over a Roadway, R.C. 2923.162 and/or Improperly
Handling of a Firearm, R.C. 2923.16.
In his second assignment of error, Nasim contends that the jury was
not instructed on the elements of aggravated robbery, robbery, or discharge over a
roadway with respect to the fourth element of participating in a criminal gang, i.e.,
purposely promoting, furthering, or assisting any criminal conduct, or purposely
committing or engaging in criminal conduct. Thus, he contends that the trial court
committed plain error by not instructing the jury on the essential elements of all the
offenses upon which the state relied to support a conviction in Count 1.
Nasim concedes that he did not object to the charge,3 but maintains
that the error was a plain error affecting his substantial rights.4
Plain error is an obvious error or defect in the trial court proceedings
that affects a substantial right. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 22. An alleged error is plain error only if the error is obvious
and it affected the outcome of the trial. Id. We take notice of plain error with the
“utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. The burden of demonstrating plain error is on the
party asserting the error. Rogers at id.; State v. McFeeture, 2015-Ohio-1814, 36
N.E.3d 689, ¶ 84 (8th Dist.).
Nasim contends the faulty instructions resulted in plain error because
“the jury may have mistakenly convicted [him] of participating in a criminal gang
due to a belief that he committed aggravated robbery, robbery, or discharge over a
roadway, even though they were never instructed on the elements of these offenses.”
“As a general rule, a defendant is entitled to have the jury instructed
on all elements that must be proved to establish the crime with which he is charged.”
3 Crim.R. 30(A) states, in pertinent part, that “[o]n appeal, a party may not assign
as error the giving or the failure to give any instructions unless the party objects before
the jury retires to consider its verdict, stating specifically the matter objected to and the
grounds of the objection.”
4Crim.R. 52(B) states that “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.”
State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 17.
However, “the failure to instruct on each element is not necessarily reversible as
plain error.” Id. “Rather, an appellate court must review the instructions as a whole
and the entire record to determine whether a manifest miscarriage of justice has
occurred as a result of the error in the instructions.” Id.We find no plain error. First, there was no evidence of aggravated
robbery or robbery produced at trial and, therefore, no error in the trial court’s
failure to instruct on the elements of these offenses. Indeed, any instruction on the
offenses would have been improper. See State v. Sims, 11th Dist. Lake No. 2001-L-
081, 2003-Ohio-324, ¶ 60 (“The trial court may not instruct a jury where there is no
evidence to support a particular issue.”).
Moreover, under R.C. 2923.42(A), to prove the fourth element of
participation in a criminal gang, the state must prove that the defendant purposely
promoted, furthered, or assisted any criminal conduct or purposely committed or
engaged in criminal conduct. Thus, the jury could have found this element of the
participating-in-a-criminal-gang offense satisfied if it concluded that Nasim
promoted, furthered, and assisted in criminal conduct by the Real Shooters, without
any finding that he committed or engaged in aggravated robbery, robbery, or
discharge over a roadway. Significantly, the jury found Nasim not guilty of Counts
8, 12, and 23, which charged him with discharging a firearm on or near prohibited
premises, strongly indicating that the jury did not consider the discharge-over-a-
roadway offense in reaching its verdict on Count 1.
Because Nasim cannot demonstrate that the trial court’s failure to
instruct on the elements of aggravated robbery, robbery, or discharge over a
roadway affected the jury’s verdict in any way, he has not met his burden of proving
plain error. The second assignment of error is overruled.
C. Manifest Weight of the Evidence
In his third assignment of error, Nasim contends that his conviction
for participating in a criminal gang was against the manifest weight of the evidence.
In contrast to a sufficiency argument, a manifest weight challenge
questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. A reviewing court “weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d
541. A conviction should be reversed as against the manifest weight of the evidence
only in the most “exceptional case in which the evidence weighs heavily against the
conviction.” Id.Nasim contends that his conviction was against the manifest weight
of the evidence because Sanders’s testimony was not credible, as reflected in the
jury’s verdict finding him not guilty of all charges relating to his involvement in the
three shootings. He further contends that Sgt. Johnson’s and Det. Harrigan’s
testimony that he was a gang member was “unsupported by evidence” and that the
only evidence he was a gang member came from photographs of him holding guns
and flashing what the detectives considered to be “gang signs.” Last, he asserts that
the jury verdict was inconsistent because he was found not guilty of the charges
regarding the shootings and, therefore, his conviction on Count 1 was against the
manifest weight of the evidence.
Based on the record before this court, we cannot say that in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
With respect to Sanders’s credibility, although we review credibility
when considering the manifest weight of the evidence, we are cognizant that
determinations regarding the credibility of witnesses and the weight of the
testimony are primarily for the trier of fact. State v. Bradley, 8th Dist Cuyahoga No.
97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967). The trier of fact 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.” State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any
inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a
witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
The jury heard Sanders’s testimony and was free to determine his
credibility. The jury apparently did not believe his testimony about Nasim’s
involvement in the shootings, but did believe his testimony that RS stood for Real
Shooters and that Nasim was a member of the “group.” They were free to do so.
Likewise, the jury was free to believe or disbelieve the testimony of Sgt. Johnson and
Det. Harrigan, who both testified that based on their extensive experience
investigating gang units, the numerous social media postings they examined and
testified to demonstrated that the Real Shooters was a criminal gang that operated
near the area of East 116th Street between Kinsman and Buckeye Roads and that
Nasim was an active member of the gang.
Finally, contrary to Nasim’s assertion, the fact that the jury found him
guilty of participating in the Real Shooters criminal gang, while not guilty of
participating in the three shooting incidents for which he was also charged, does not
undermine confidence in the jury’s resolution of the case. As this court has
explained:
Juries can reach inconsistent verdicts for any number of reasons,
including mistake, compromise, and leniency. * * * [I]t would be
incongruous for a defendant to accept the benefits of an inconsistent
verdict without also being required to accept the burden of such
verdicts.
State v. Wells, 8th Dist. Cuyahoga No. 109787, 2021-Ohio-2585, ¶ 40, quoting State
v. Taylor, 8th Dist. Cuyahoga No. 89629, 2008-Ohio-1626, ¶10. Thus, “courts have
consistently rejected the argument that inconsistent verdicts would render a
defendant’s conviction against the manifest weight of the evidence.” Wells at id.,citing State v. Jones, 8th Dist. Cuyahoga No. 108050, 2019-Ohio-5237, ¶ 33, citing
State v. Norman, 10th Dist. Franklin No. 10AP-680, 2011-Ohio-2870, ¶ 14.
Furthermore, we find no inconsistency in the verdict. The jury was
free to believe Sgt. Johnson’s and Det. Harrigan’s testimony that Nasim was a
member of and participated in the Real Shooters criminal gang, while
simultaneously finding he did not participate in the three shooting incidents. This
is not the case where the evidence weighs heavily against the conviction, and,
accordingly, we find that Nasim’s conviction was not against the manifest weight of
the evidence. The third assignment of error is overruled.
D. Improper and Irrelevant Evidence
In his fourth assignment of error, Nasim contends that he was
prejudiced by the introduction of improper and irrelevant evidence at trial.
Specifically, he contends that comments about a separate murder case with which
he was charged were shown to the jury when the state played a video of his post-
arrest interview with the police. The comments related to Nasim “feeling bad” about
something and wishing he could “talk to the family.”
Our review of the record demonstrates that prior to trial, the
prosecutor conferred with Nasim’s counsel about the interview, giving defense
counsel an opportunity to request that additional portions of the interview be
redacted beyond those already noted for redaction by the state. Text messages
exchanged between counsel (court’s exhibit No. 1) demonstrate that defense counsel
did not request that the state redact the portion of the interview to which Nasim now
objects.
The record reflects that immediately after defense counsel objected to
the statement, the trial court asked the state and defense counsel to “come up with
an agreeable curative instruction” regarding that part of the interview.
Defense counsel told the trial judge:
I think that we should give a general curative instruction at the time
that you give the jury charge, not now, that generally would say —
comment again on the fact that there’s silent parts for evidentiary
reasons that have nothing to do with this case, and again say you’ve
heard things that may be said about other events. You’re directed to
disregard anything that doesn’t have to do with the charges of this case.
That would be something — and then it doesn’t overemphasize and it’s
taken at the same time when they’re giving instructions. I don’t think
the state has an objection to that.
(Tr. 1270-1271.)
Shortly thereafter, defense counsel again told the judge that she
wanted the curative instruction to be given at the conclusion of trial during the
general jury charge, rather than immediately:
[T]o draw attention to a specific thing is like a highlight and it would
only affect primarily my client and so I would ask not to do that at this
time. If you want to make it more specific at the time we give the
curative instruction, I’m okay with that, I just don’t want to do it at this
point when they resume the video today.
(Tr. 1275.) The prosecutor then informed the judge that the state was “fine” with
whatever curative instruction the court determined to be best for the jury.
Ultimately, the trial court accepted a version of the curative
instruction drawn up by counsel for Onaje. Nasim’s counsel suggested a few changes
to the instruction and then endorsed it. The curative instruction was read to the jury
at the conclusion of the jury charge and stated, “Any reference to feeling badly and
desiring to speak to someone’s family has nothing to do with any of the parties in
this case or any of the matters before you.”
Despite Nasim’s assertion that he was unfairly prejudiced by the
admission of improper evidence and the “damaging curative instruction,” we find
no error. As demonstrated by court’s exhibit No. 1, although given the opportunity,
defense counsel did not ask the state to redact that portion of Nasim’s statement to
which he now objects. “The defense cannot invite error and later complain about its
prejudicial effect on appeal.” State v. Spirko, 59 Ohio St.3d 1, 8, 570 N.E.2d 229(1991).
Moreover, the remedy requested by defense counsel — a curative
instruction regarding Nasim’s statement given during the general jury charge — was
adopted in full by the trial court. And defense counsel specifically approved the
wording of the curative instruction.
Finally, the record reflects that the jury was not aware of the separate
homicide with which Nasim was charged, no mention was made of it at trial, and
Nasim’s statement at issue did not identify any specific facts or names. Thus, in light
of the jury’s verdict finding Nasim not guilty of the majority of the charges against
him and the overwhelming evidence of his participation in a criminal gang, the 1 out
of 25 counts on which he was found guilty, we cannot find that Nasim was prejudiced
by the admission of the brief snippet of his postarrest interview that was not
redacted. The fourth assignment of error is overruled.
E. Sentencing
In his fifth assignment of error, Nasim contends that the trial court
erred in sentencing him under the Reagan Tokes Law, which became effective
March 22, 2019. Under the law, qualifying first- and second-degree felonies
committed on or after March 22, 2019, are subject to the imposition of indefinite
sentences. The law specifies that these terms will consist of a minimum term
selected by the sentencing judge from a range of terms set forth in R.C. 2929.14(A)
and a maximum term determined by formulas set forth in R.C. 2929.144.
Nasim contends that the Reagan Tokes Law is unconstitutional
because it violates his constitutional rights to trial by a jury, separation of powers,
and due process. We decline to address Nasim’s constitutional challenge to the law.
“[T]he question of the constitutionality of a statute must generally be
raised at the first opportunity and, in a criminal prosecution, this means in the trial
court.” State v. Awan, 22 Ohio St.3d 120, 122, 478 N.E.2d 277 (1986). The record
reflects that Nasim did not raise any constitutional challenge to the Reagan Tokes
Law in the trial court. His failure to do so forfeits the argument.
Nasim also contends that the Reagan Tokes Law should not be applied
to him because the dates of the three shootings for which he was charged and which
he contends “the state relied upon as foundational for the gang charge,” all preceded
March 22, 2019, the effective date of the law. Defense counsel raised this argument
in the trial court, and therefore, we will address it.
We find it has no merit, however. The date range for the conduct in
Count 1, participating in a criminal gang, for which Nasim was found guilty, was
between August 21, 2018, and June 19, 2019, which obviously includes a time period
after the Reagan Tokes Law became effective. As discussed above with respect to
Nasim’s argument regarding the manifest weight of the evidence, the fact that Nasim
was not guilty of the three shooting incidents is not determinative of his guilt on
Count 1. Because Nasim was found guilty of conduct encompassed by the Reagan
Tokes Law, the trial court did not err in sentencing him under the law. The fifth
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR