State v. Noor

[Cite as State v. Noor, 2014-Ohio-3397.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-165
v. : (C.P.C. No. 12CR-01-510)
Mohamed M. Noor, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 5, 2014
Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellee.
Yeura R. Venters, Public Defender, and John W. Keeling, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Mohamed M. Noor ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas convicting him of multiple
crimes and sentencing him to prison for a total of 65 years. For the following reasons, we
affirm in part and reverse in part.
I. Facts
A. Conflicting Versions of Events
{¶ 2} Appellant's alleged crimes arose out of an incident that occurred at the
apartment home of Farheyo Abdulkar ("Abdulkar") on January 21, 2012, on Eakin Road
in Columbus, Ohio. All of the people present at the apartment, as well as appellant and
No. 13AP-165 2
his codefendant, Mohamed Abdi Ibrahim ("Ibrahim"), were immigrants to the United
States from their country of origin, Somalia.
{¶ 3} The state's theory of the case was that appellant and Ibrahim intruded into
Abdulkar's apartment where 11 people had gathered to watch a Somali television program
transmitted via the Internet. Appellant and Ibrahim, one of whom had a gun, demanded
money and property from the occupants. During the incident, which lasted approxi-
mately 20 to 40 minutes, one of the occupants of the apartment was shot while another
was injured as the result of being struck on the head with the gun. Ultimately, a fight
ensued, and appellant and Ibrahim were overcome by the individuals at the apartment.
Both appellant and Ibrahim were injured during the fight. Two of the occupants,
including the gunshot victim, escaped the scene and called 911 from a neighbor's
residence. Police arrived shortly thereafter and found appellant and Ibrahim inside the
apartment, injured and subdued. Both appellant and Ibrahim received hospital treatment
after the incident, as did the victim of the gunshot wound and the individual who had
been injured when struck with the gun.
{¶ 4} The defense argued that appellant and Ibrahim went to the apartment
because Ibrahim intended to purchase khat. Khat is a substance classified as an illegal
drug in Ohio but which is reputedly commonly used in the Somali community.1 Ibrahim
testified that a dispute broke out during the drug transaction which escalated into the
fight. The defense suggested that the 11 individuals in the apartment colluded to develop
the false robbery story in order to conceal their own illegal drug activities.
B. Indictment
{¶ 5} On January 31, 2012, the state formally commenced this criminal
prosecution by indicting appellant and charging him with 48 criminal counts based on the
January 21, 2012 events at the Eakin Road apartment (1 count of aggravated burglary with
a firearm specification, 2 counts of felonious assault with firearm specifications, 11 counts
of kidnapping with firearm specifications, 11 counts of aggravated robbery with firearm
1 See State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-1639, ¶ 12-13 (10th Dist.) (explaining that "khat" is
the popular name of the plant catha edulis and that it contains the psychoactive chemical cathinone, which is
listed as a Schedule I controlled substance under Ohio law, as well as the stimulant cathine, which is listed as
a Schedule IV controlled substance under Ohio law).
No. 13AP-165 3
specifications, 22 counts of robbery with firearm specifications, and 1 count of having a
weapon while under disability ("WUD")). The indictment charged Ibrahim with the same
crimes, with the exception of the WUD charge.
C. Trial
{¶ 6} The state began its presentation of its case by calling several Columbus
police officers, including Detective Arthur Hughes. Detective Hughes testified that he was
the lead detective on the case and responded to the crime scene shortly after midnight.
He photographed the apartment and collected evidence, including a gun which he found
outside the apartment door. He ordered that DNA testing be performed on the gun and
other evidence. He testified that blood was spattered throughout the apartment and that
he found a number of miscellaneous items, including cash, in the middle of the room, and
observed an overturned flat-screen television. He further testified that a ski mask, a
jacket, a blue bandanna, and a baseball bat were recovered from the scene. He did a
thorough search of the entire apartment and did not recall seeing anything indicating
drug usage. He stated that he saw Ibrahim at the hospital after the incident and that
Ibrahim was wearing a blue latex glove at that time. Detective Hughes also testified that
"nobody identified [Noor] as having a weapon." (Tr. 99.) He further testified that his
investigation found the that Ibrahim, identified by the victims as the "skinny guy," came
into the apartment, ordered people to the ground, and ordered them to give him their
wallets, phones, and money, and that appellant was collecting items from the center of the
room. (Tr. 102.) Detective Hughes was also called as a witness for appellant. He then
testified regarding one person he interviewed, Muktar Hersi, and reported that he had
been chewing a mild form of khat with Abdulkar's guests.
{¶ 7} Another police officer, Officer Randall Mayhew, testified that he arrived at
the Eakin Road apartment shortly after the police had been notified. He testified that he
observed a semi-automatic pistol outside the door. Upon entering the apartment, he saw
upturned furniture and multiple individuals, including two bloody and clearly injured
individuals, lying on the floor. One of the two individuals was wearing a blue latex glove.
Medics arrived shortly thereafter, attended to those two injured individuals, and
transported them to two separate hospitals.
No. 13AP-165 4
{¶ 8} Officer Jeffrey Kracht, Jr., testified that he transported various pieces of
property taken at the crime scene to the police property room. Among the property was a
black ski mask, a blue and white bandanna, a red baseball bat, and a black hooded jacket.
{¶ 9} The state then called a number of the individuals who had been present in
the apartment at the time of the incident. Hirsi Hirsi, the victim of the gunshot wound,
testified first without an interpreter. He testified that he was employed by the Ohio
Department of Job and Family Services and worked for Access Interpretive Services.
{¶ 10} Hirsi testified that two men came into the apartment and, speaking in
English, ordered the people inside to get down and give them their belongings, such as
wallets, cell phones, and a laptop computer. The intruders pushed a television to the
floor, breaking it. One of the intruders, the shorter and smaller one, had a hoodie with a
bandanna covering his face, had a gun, and was wearing a blue latex glove. Upon
observing appellant and Ibrahim, Hirsi agreed that appellant was the larger of the two
individuals. Hirsi testified that both intruders were yelling out orders, using profanity,
and kicking the people inside. The larger man took Hirsi's laptop and laptop charger.
{¶ 11} Hirsi also observed a gun being held to the head of the person next to him,
Abdi Aden. Hirsi testified that the gun went off, and the bullet struck Hirsi in the
stomach. Hirsi then observed the beginning of a struggle between the smaller man with
the gun and one of the other individuals in the apartment. Hirsi escaped with another
person through the bathroom window and called the police using a neighbor's cell phone.
The state played the 911 call to the police, and the jury heard Hirsi inform the dispatcher
that he had just been shot by two robbers, who were black males. Medics took Hirsi to the
hospital where he had surgery and remained hospitalized for over two weeks. Hirsi
further testified that he saw no khat in the apartment and that he did not believe anyone
there was either drinking or using khat that night.
{¶ 12} The state next called Mohamed Adan as a witness, who testified through an
interpreter. He stated that he also had been in the apartment at the time of the robbery.
His testimony was consistent with that of Hirsi in that the smaller of the two men had the
gun and the larger of the two men was collecting property from the victims. He further
testified that one of the victims, whose name was Ali, grabbed the hand of the smaller
man after the gun fired and secured the gun. Adan heard the larger of the two men say
No. 13AP-165 5
"[s]hoot all [the] motherfucking [sic] niggers." (Tr. 297.) Once the gun had been taken
from the smaller intruder, the other people in the apartment started fighting back, and at
least one individual used a baseball bat to beat the two robbers. At that point, Adan
retrieved his cell phone and wallet and assisted Hirsi in escaping through the bathroom
window. Adan testified that he did not see anyone chewing khat at the apartment.
{¶ 13} The state's next witness was Abu Faid Faqi, who also testified through the
interpreter. Faqi's story was consistent with that of the prior two witnesses. He testified
that 10 to 11 people were present in the apartment when the two men entered. At first, he
stated that he did not recall which of the two defendants had the gun, but that, once the
gun was taken from one of the men, the situation became "two against ten" and that the
people in the apartment kept the two robbers subdued until the police arrived. (Tr. 314.)
Faqi also testified that no one at the apartment was using khat that evening and that he
had been in the apartment previously and had never seen anyone use khat at the
apartment.
{¶ 14} The state called Abdifath Aden, who testified without an interpreter. He
stated that he was the person who had been struck in the head by the gun and that the gun
discharged at that time. He stated that the smaller guy was the one holding the gun. The
larger man, who did not have a gun, demanded he hand over his wallet and phone, which
Aden did. The remainder of Aden's testimony concerning the event was consistent with
that of the prior witnesses. He stated that he was transported to the hospital after the
police arrived, the wound from the blow was closed with several staples, and he was left
with a scar on the side of his head.
{¶ 15} The state's next witness was Hiss Ismail, who testified through the
interpreter. His testimony was consistent with that of the prior witnesses in that he
testified that two men came in with their faces covered, the skinnier man had the gun, the
men were using profanity in addressing the people in the apartment and were yelling and
demanding property, the robberies occurred over the course of approximately 30
minutes, and eventually one of the individuals grabbed the gun, prompting the others to
fight back. In addition, Ismail testified that he was kicked by the smaller robber and
struck with the back of the gun prior to it being taken away from the robber. He identified
Ibrahim in court as being the man who had the gun. He testified that the apartment was
No. 13AP-165 6
not known as a place where drug activities took place and that, to his knowledge, no one
was using drugs in the apartment on the night of the robbery.
{¶ 16} The state then called the person who resided at the apartment, Farheyo
Abdulkar. She testified, through the interpreter, that she was one of the first persons in
Columbus to be able to access Somali television programs via Apple TV and that, because
of that fact, people came to her house on the day of the robbery to watch Somali
programs. She stated that two men forced the door open and came in and that she did not
know them, nor had she invited them. Her description of the two men and their activities
was consistent with that of the prior witnesses. She testified that the smaller man had the
gun and had at one point pushed it to the back of her head. She stated that the larger man
kicked her twice. She further added that, after the group had taken control of the scene,
the two men attempted to escape, but the group stopped them and they were beaten,
including being beaten with a baseball bat. She stated that many of the occupants of the
apartment used the bat to hit the robbers. She acknowledged that it was common for
people to gather at her apartment and denied that anyone in her apartment that night was
in possession of drugs or was even discussing drugs on the night of the robbery.
{¶ 17} Hashim Abdulle was another victim of the robbers and testified without an
interpreter. Like the others, he testified that the two intruders, one smaller than the
other, demanded his property. He testified that the smaller guy had the gun. He also
testified that he was kicked while on the floor. After the intruders had been overtaken by
the occupants of the apartment, Abdulle placed a 911 call. He testified that the intruders
never left the apartment after having been subdued and were lying on the floor of the
apartment when the police arrived. He acknowledged that he was smoking a legal
tobacco-like product in a hookah at the apartment. But he testified that there was "no
way" that anyone in the apartment was using or selling any drugs. (Tr. 555.)
{¶ 18} Abdulkadir Aden testified, through the interpreter, that he was also in the
apartment at the time of the robbery. He testified that the men ordered him to the floor
and that the larger of the two men took property out of his pockets, including a cell phone
and approximately $30. He further testified that, after the robbers had been subdued, he
recognized the smaller of the two robbers as a relative of family friends. At trial, he
identified Ibrahim as one of the robbers. He testified that the larger robber appeared to
No. 13AP-165 7
be in charge and was giving orders to the smaller robber. Aden further testified that,
when he heard the gun was secure, he stood up and engaged in the fight. He stated that
the incident lasted approximately 30 to 40 minutes. He testified that no one in the
apartment was using drugs or khat that night.
{¶ 19} The state also called Ali Abdullahi, who testified without an interpreter and
stated that he also was robbed at the apartment by two individuals who were wearing
masks—one skinny, one chubby—and that the skinny one had a gun. He testified that
both used profanity in ordering them to the floor and ordering them to give them their
wallets, phones, and money. Abdullahi, however, had neither a wallet nor a phone, and
the robbers took only a dollar or two from him. He testified that he believed the chubby
guy was in charge and was giving orders to the man with the gun. He further testified
that it was he, Abdullahi, who grabbed the gun and that he then told the others, in Somali,
to "[g]et them, get them." (Tr. 609.) He further testified that he was frightened that the
intruders might get the gun back and, therefore, he took the gun out of the apartment and
put it down in the hallway, rather than putting it on the table in the apartment, as had
been suggested by the police during the 911 call that had been made by another victim.
He testified that no one used khat in the apartment that night.
{¶ 20} The state called Amoreena Pauley, a forensic scientist employed by the
Columbus police department, who conducted DNA testing. She testified that DNA taken
from the grip of the handgun retrieved at the scene matched the DNA obtained from an
oral swab taken from Ibrahim. Appellant could not be excluded as a contributor to DNA
taken from the black hooded jacket, but Ibrahim could. Appellant could be excluded as a
contributor to DNA samples found on a ski mask, but Ibrahim could not. DNA from a
blue bandanna taken from the scene matched that of appellant. Blood taken from the
baseball bat also matched the DNA of appellant.
{¶ 21} Appellant did not testify at trial; however, his counsel called Detective Todd
Cress as a witness. Detective Cress testified that, on the evening of the incident, he
assisted Detective Hughes by interviewing several of the victims, including Ali Abdullahi.
After reviewing his summary from the interviews, he testified that witness Ali Abdullahi
indicated to him that the skinny subject was giving the orders.
No. 13AP-165 8
{¶ 22} Ibrahim testified in his own defense without an interpreter. He testified
that he was 25 years old and had lived in the United States for over half of his life and was
an acquaintance with the occupant of the apartment, Abdulkar. He testified that his uncle
had at one time been married to her and had purchased khat from her in the past. He
testified that he had on prior occasions gone to Abdulkar's apartment to pick up khat for
his uncle, and that, on the night in question, he and appellant had walked to the
apartment to pick up khat for that uncle. He acknowledged that he had been wearing a
knit hat but said that he wore it because it was a cold night and denied that it was pulled
over his face when he entered the apartment. He stated that he knocked on the door and
was told to come in. He further testified that it was common for people to go to the
apartment to chew khat. According to Ibrahim, he got into an argument with one of the
individuals at the apartment while he was waiting for Abdulkar to get khat from a back
room. He testified that Abdulkar brought the drug to him, but he did not have enough
money to pay for it and an argument escalated into a fight.
{¶ 23} Ibrahim further testified that appellant had initially been waiting outside
the apartment but entered only after the gunshot. Ibrahim denied that the gun was his
and also denied knowing where the gun had come from. He further denied having worn a
blue latex glove and stated that the whole thing was a setup.
D. Conviction and Sentence
{¶ 24} The trial court found appellant guilty of the WUD charge. The state
dismissed the robbery counts stated in the indictment. The jury found appellant guilty of
all of the remaining charges and specifications alleged in the indictment.
{¶ 25} The trial court sentenced appellant to ten years on the aggravated burglary
count, five years on each of the two felonious assault counts, three years on each of the
eleven aggravated robbery counts, three years on each of the eleven kidnapping charges
(to run concurrently with the aggravated robbery charges), three years on the WUD, and
three years on each of the three firearm specifications. The aggregate prison sentence
totaled 65 years. In addition, the court notified appellant of a five-year period of post-
release control.
No. 13AP-165 9
II. Assignments of Error
{¶ 26} Appellant timely appealed from his conviction, raising five assignments of
error, as follows:
[1.] THE TRIAL COURT ERRED WHEN IT REFUSED TO
INSTRUCT THE JURY ON THE MENTAL ELEMENTS
REQUIRED TO CONVICT THE DEFENDANT AS AN
ACCOMPLICE THEREBY RELIEVING THE STATE OF ITS
OBLIGATION TO PROVE THE MENTAL ELEMENTS OF
THE CHARGED OFFENSES, THEREBY DEPRIVING THE
DEFENDANT OF HIS RIGHT TO TRIAL ON THE MENTAL
ELEMENTS OF THE ALLEGED CRIMES.
[2.] THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO
A FAIR TRIAL AND DUE PROCESS OF LAW WHEN
POLICE OFFICERS WERE ALLOWED TO TESTIFY THAT
CERTAIN WITNESSES FOR THE STATE WERE BEING
TRUTHFUL AND WERE ALLOWED TO PRESENT THEIR
OPINIONS THAT THE ROBBERIES HAD OCCURRED.
[3.] THE TRIAL COURT ERRED WHEN IT FAILED TO
APPOINT AN INTERPRETER QUALIFIED BY THE
SUPREME COURT AND BY FAILING TO RECORD THE
FOREIGN LANGUAGE TESTIMONY AS REQUIRED BY
LAW.
[4.] THE TRIAL COURT ERRED WHEN IT REFUSED THE
DEFENDANT'S REQUEST TO INSTRUCT ON TRESPASS
AS A LESSER INCLUDED OFFENSE OF AGGRAVATED
BURGLARY.
[5.] THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST THE DEFENDANT ON THE
ELEVEN KIDNAPPING COUNTS WHEN SUCH COUNTS
WERE ALLIED OFFENSES TO THE AGGRAVATED
ROBBERY CHARGES.
III. Analysis—Appeal
A. Alleged Defective Instructions
{¶ 27} We begin by analyzing appellant's first assignment of error. The state
contended that appellant was guilty of aggravated robbery in that he or his codefendant,
Ibrahim, had a deadly weapon on or about his person and displayed, brandished or used
it in the commission of a robbery, or that appellant aided and abetted Ibrahim in the
No. 13AP-165 10
aggravated robbery. See R.C. 2911.01(A)(1). In his first assignment of error, appellant
argues that the trial court should have instructed the jury on the mental culpability
required to support his conviction on a complicity theory; i.e., that he was an aider or
abettor.
{¶ 28} Appellant suggests that the state's entire case against him was predicated
upon the ability to establish guilt as an accomplice. He argues no witness testified that
appellant had a deadly weapon in his possession during the robbery but only that Ibrahim
did. Indeed, in closing arguments, the prosecutor acknowledged that, "[i]f you believe the
evidence, Mohamed Ibrahim [appellant's codefendant] had a gun." (Tr. 762.) Accordingly,
appellant asserts that he could only be found guilty of aggravated robbery, felonious
assault, and the firearm specifications on the theory that he was an aider and abettor of
Ibrahim. He argues as well that the kidnapping and aggravated burglary charges were
predicated upon the aggravated robbery, felonious assaults, and possession of a firearm
charge, and, therefore, he could only be convicted of those offenses as an aider or abettor
as well. Appellant argues that the instructions were infirm because they did not address
the requisite mental intent required for conviction as an aider or abettor.
{¶ 29} The record reflects that appellant's counsel orally requested the court to
instruct the jury that "an accomplice must share in the intent of the principal before
liability can attach to the accomplice for the acts of the principal." (Tr. 739.) Appellant
also submitted a written request for that jury instruction.
{¶ 30} Crim.R. 30(A) provides, in 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." Accordingly, where no objection to jury instructions has been
lodged, an appellate court undertakes a plain-error analysis of the instructions, and all but
plain error is deemed waived. State v. Graggs, 10th Dist. No. 09AP-339, 2009-Ohio-
5975, ¶ 30, citing State v. Long, 53 Ohio St.2d 91 (1978). The Supreme Court of Ohio has,
however, determined that "a party does not waive objections to the trial court's charge by
failing to formally object where: (1) the record affirmatively shows the trial court has been
fully apprised of the correct law governing a material issue in dispute; and (2) the
requesting party has been unsuccessful in obtaining the inclusion of that law in the charge
No. 13AP-165 11
to the jury." State v. Butler, 10th Dist. No. 98AP-55 (Oct. 22, 1998), citing State v.
Wolons, 44 Ohio St.3d 64 (1989), paragraph one of the syllabus.
{¶ 31} Here, the state did not argue that appellant's requested instruction was an
incorrect statement of law but, rather, argued that the instruction was not necessary.
Furthermore, appellant was unsuccessful in convincing the judge to include the requested
instruction. The following exchange occurred at the charging conference:
MR. SABOL [appellant's counsel]: * * * I'm asking for an
instruction that an accomplice must share the intent of the
principal before liability can attach to the accomplice for the
acts of the principal. * * *
MR. WODARCYK [for the state]: * * * The instructions taken
as a whole more than adequately let this jury know what
needs to be proven in this case. I don't believe this is
necessary, and I think its confusing. An accomplice must
share in the intent of the principal before liability can attach
to the accomplice for the acts of the principal. * * *
THE COURT: * * * I don't think we need that additional
instruction. But the record shows you offered it.
(Tr. 739-41.)
{¶ 32} We find that appellant met both prongs of the Butler test. Accordingly,
appellant is not required to demonstrate that the trial court committed plain error relative
to its instructions.
{¶ 33} We acknowledge that "[t]rial courts have the responsibility to give all jury
instructions that are relevant and necessary in order for the jury to properly weigh the
evidence and perform its duty as the fact-finder." Columbus v. Aleshire, 187 Ohio App.3d
660, 2010-Ohio-2773 (10th Dist.), ¶ 51. But, in reviewing a court's refusal to give a
requested instruction, "we must determine whether the trial court's decision constituted
an abuse of discretion under the facts and circumstances of the case." Aleshire at ¶ 52,
citing State v. Smith, 10th Dist. No. 01AP-848, 2002-Ohio-1479, citing Wolons at 68.
Moreover, an appellate court will not reverse a conviction in a criminal case due to jury
instructions unless it finds that the jury instructions amounted to prejudicial error. Id.{¶ 34} We use "a three-part test to determine when failing to give a requested
instruction constitutes reversible error: (1) the requested instruction must be a correct
No. 13AP-165 12
statement of the law; (2) the requested instruction must not be redundant of other
instructions; and (3) failure to give the requested instruction must have impaired the
requesting party's theory of the case." State v. Dodson, 10th Dist. No. 10AP-603, 2011-
Ohio-1092, ¶ 6, citing Gower v. Conrad, 146 Ohio App.3d 200, 203 (10th Dist.2001).
Accord State v. McDowell, 10th Dist. No. 10AP-509, 2011-Ohio-6815, ¶ 26. Moreover,
"[w]hen reviewing a specific challenged instruction on appeal, the instruction should not
be judged in isolation, but instead, within the context of the overall charge." Aleshire at ¶
52, citing State v. Price, 60 Ohio St.2d 136 (1979), paragraph four of the syllabus. That is
" '[a] jury charge must be considered as a whole and a reviewing court must determine
whether the jury charge probably misled the jury in a matter materially affecting the
complaining party's substantial rights.' " State v. Horton, 10th Dist. No. 03AP-665, 2005-
Ohio-458, ¶ 50, quoting Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208
(1990); see also Price at paragraph four of the syllabus; State v. Hardy, 28 Ohio St.2d 89,
92 (1971).
{¶ 35} We first consider whether the proposed instruction is a correct statement of
law. The complicity statute, R.C. 2923.03, provides in part that:
(A) No person, acting with the kind of culpability required
for the commission of an offense, shall do any of the
following:
***
(2) Aid or abet another in committing the offense[.]
(Emphasis added.)
{¶ 36} In interpreting the complicity statute, the Supreme Court of Ohio held in
State v. Johnson, 93 Ohio St.3d 240 (2001), that:
To support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), the evidence must show that
the defendant supported, assisted, encouraged, cooperated
with, advised, or incited the principal in the commission of
the crime, and that the defendant shared the criminal intent
of the principal. Such intent may be inferred from the
circumstances surrounding the crime.
(Emphasis added.) Id. at syllabus.
No. 13AP-165 13
{¶ 37} Furthermore, the Ohio Jury Instructions for aiding and abetting read as
follows:
The defendant is charged with complicity in the commission
of the offense of (specify offense). Before you can find the
defendant guilty, you must find beyond a reasonable doubt,
that on or about the _______day of __________,
______, and in _____________ (County) (other
jurisdiction), Ohio, the defendant (insert applicable culpable
mental state if one is required for the commission of the
principal offense) * * *
***
(A)(2) (aided or abetted) another in committing the offense
of (specify offense).
(Emphasis added.) Ohio Jury Instructions, CR Section 523.03(1)(A)(2) (Rev. Dec. 10,
2011).
{¶ 38} Appellant's proposed instruction, that an accomplice must share in the
intent of the principal before liability can attach to the accomplice for the acts of the
principal, is consistent with R.C. 2923.03(A)(2), as construed in Johnson and outlined in
the Ohio Jury Instructions. Therefore, it was a correct statement of law. Appellant has
therefore satisfied the first prong of the Dodson test.
{¶ 39} We next consider the second prong of the Dodson test—whether the
requested instruction was redundant of other instructions. The state argued that the
proposed instructions were repetitive and unnecessary. The trial court agreed. We,
however, disagree. Although the trial court may have repeated the definition of aider or
abettor and repeated the instruction that mere presence is not enough to convict appellant
of aiding or abetting, it did not refer to the mental culpability required in order to convict
him as an aider or abettor.
{¶ 40} It is important to note that the court did not instruct the jury as suggested
by the Ohio Jury Instructions. Rather, after instructing the jury on the elements of
aggravated burglary, the court instructed the jury that:
Either Defendant may be convicted of aggravated burglary in
Count One as an aider or abettor. An aider or abettor is one
who aids, assists, or encourages another to commit a crime
No. 13AP-165 14
and participates in the commission of the offense by some act,
word or gesture. Aid means to help, assist or strengthen.
Abet means to encourage, counsel, incite or assist. The mere
presence of either Defendant at the scene of the crime and
guilty knowledge of the crime are not enough to convict him
of aiding and abetting.
(Tr. 828.) After instructing the jury on the elements of each of the remaining offenses
(felonious assault, kidnapping, aggravated robbery), the court instructed that "[e]ither
Defendant may be convicted of [felonious assault/kidnapping/aggravated robbery] as an
aider or abettor. That term has already been defined for you. The mere presence of either
Defendant at the scene of the crime and guilty knowledge of the crime are not enough to
convict him of aiding and abetting." (Tr. 830-31, 834, 838-39.)
{¶ 41} As noted above, the Ohio Jury Instructions suggest that, when instructing
on the elements of aiding and abetting, courts "insert [the] applicable culpable mental
state if one is required for the commission of the principal offense." In this case, the court
did not give the instructions suggested in the Ohio Jury Instructions. Rather, in the
context of explaining the elements of each principal offense, it provided definitions for
culpable mental states as noted in the paragraphs below. The court did not, however,
charge the jury to apply a particular mental state to the aider or abettor analysis.
{¶ 42} The statute defining aggravated burglary provides, in relevant part, that no
person shall trespass in an occupied structure "with purpose to commit * * * any criminal
offense." R.C. 2911.11(A). Accordingly, the Supreme Court of Ohio has stated that the
culpable mental state for aggravated burglary is "purposeful." State v. Fry, 125 Ohio St.3d
163, 2010-Ohio-1017, ¶ 44. In this case, the underlying criminal offenses in question were
theft and/or aggravated robbery and/or kidnapping. In the context of explaining the
elements of aggravated burglary, the court instructed the jury on the meaning of
trespass—that a person knowingly enters or remains on the premises of another. The
court then provided a definition of the culpable mental state of "knowingly." Continuing
with its instructions on the principal offense of aggravated burglary, the court instructed
the jury on what it means to act "purposely." It also stated that the purpose to commit
either the offense of theft, and/or aggravated robbery and/or kidnapping was an essential
element of the offense of aggravated burglary. Following these instructions, the court
No. 13AP-165 15
gave the general instruction described above regarding aiding or abetting. The court did
not, however, instruct the jury that, in order to convict appellant of complicity in the
commission of aggravated burglary, it would have to find that appellant, with purpose to
commit theft and/or aggravated robbery and/or kidnapping, aided or abetted Ibrahim in
committing the same. Furthermore, if the jury were able to infer that it was required to
apply a culpable mental state to aiding or abetting, the court gave no indication which of
the two culpable mental states it previously explained, knowingly or purposely, applied.
{¶ 43} Next, we turn to the crime of felonious assault. The culpable mental state for
the principal offense of felonious assault is "knowingly." R.C. 2903.11. In the context of
explaining the elements of felonious assault, the court instructed the jury that
"knowingly" had already been defined for them. The court did not instruct the jury that,
in order to be convicted of complicity in the commission of felonious assault, it would
have to find that the appellant knowingly aided or abetted Ibrahim in committing the
same.
{¶ 44} The offense of kidnapping involves conduct of removing another person
from their location or restraining another person. In this case, the culpable mental state
is that the removal or restraint was "for any of the following purposes: [to facilitate the
commission of aggravated robbery and/or to terrorize the victim]." R.C. 2905.01(A)(2)
and (3). In this case, and in the context of explaining the elements of kidnapping, the
court instructed the jury that "purpose" had already been defined for them. The court
also instructed that "[t]he purpose to facilitate the commission of the offense of
aggravated robbery is an essential element of the offense of kidnapping" and that the
offense of aggravated robbery would be defined for the jury shortly thereafter. (Tr. 834.)
The court did not instruct the jury that, in order to be convicted of complicity in the
commission of kidnapping, it would have to find that appellant, with purpose to facilitate
the commission of aggravated robbery and/or to terrorize the victim, aided or abetted
Ibrahim in committing the same.
{¶ 45} With respect to the offense of aggravated robbery, the culpable mental state
for the theft element of the offense "incorporates the mens rea of the underlying theft
offense." State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, ¶ 29; R.C. 2911.01(A)(1).
R.C. 2913.02, the theft statute, provides that "[n]o person, with purpose to deprive the
No. 13AP-165 16
owner of property or services, shall knowingly obtain or exert control" over property or
services of another in certain identified ways, including threat and intimidation. The
mens rea for theft, therefore, is that a person acts "with purpose to deprive the owner of
property or services" and also acts "knowingly" in obtaining or exerting control over the
property. See State v. Allen, 4th Dist. No. 00CA24 (Feb. 27, 2002); see also State v.
Wilson, 10th Dist. No. 05AP-747, 2006-Ohio-3103, ¶ 14 (theft by deception). In the
context of explaining the elements of aggravated robbery, the court instructed the jury
that "the purpose to commit the offense of theft is an element of the offense of aggravated
robbery." (Tr. 837.) It then explained the elements of theft followed by the instruction
that "[p]urposely and knowingly have already been defined for you." (Tr. 837.) The court
did not instruct the jury that, in order to be convicted of complicity in the commission of
aggravated robbery, it would have to find that appellant, with purpose to deprive the
owner of property or services, knowingly aided or abetted Ibrahim in committing the
same. Furthermore, if the jury were able to infer that it was required to apply a culpable
mental state to aiding or abetting, the court did not indicate that both culpable mental
states applied.
{¶ 46} It is not enough that the jury could have speculated from the given
instructions that, in order to be convicted of aiding or abetting, appellant must have had
the mental culpability of the principal offense—it should have been so instructed.
Furthermore, many of the principal offenses in this case are predicated upon underlying
offenses; i.e., theft, aggravated robbery or kidnapping. (Felonious assault is the only
offense in this case which does not depend on an underlying offense.) In some cases, the
mental culpability of the principal offense and the underlying offense differ. With this in
mind, we find the trial court erred in not instructing the jury that, in order to be convicted
of aiding or abetting, appellant must have shared the culpable mental state for the
commission of the principal offense. Accord State v. Cummings, 10th Dist. No. 90AP-
1144 (Apr. 21, 1992) (trial court erred in not instructing the jury that a necessary element
for convicting a person of complicity is the same culpability required for the commission
of the offense); State v. Moody, 10th Dist. No. 98AP-1371 (Mar. 13, 2001) (prejudicial
error where court refused to give instruction that appellant had to share the same purpose
as the principal offender with respect to the underlying offense). Therefore, we find that
No. 13AP-165 17
the requested instruction was not redundant of other instructions given by the court and
that the second prong of the Dodson test is satisfied.
{¶ 47} Finally, we consider the third prong of the Dodson test and consider
whether the court's failure to give the requested instructions impaired appellant's theory
of the case. Appellant's counsel's opening statement included the following statement:
"Mr. Noor, when he went into an apartment, had no idea what was going on." (Emphasis
added.) (Tr. 31.) During closing argument, appellant's counsel argued:
Whatever happened between Mr. Ibrahim and the people in
that apartment, whatever happened to ignite the events that
led to the tragedy that led us here today, [had] nothing to do
with Mr. Noor 'cause Mr. Noor wasn't in the apartment when
those things occurred.
***
Most importantly, Ali Abdullahi, the State's big evidence that
Mr. Noor was in on it was what? The chubby guy was giving
the orders. The chubby guy was giving the orders. [Sic.] That's
what he said on the stand, and that's some pretty strong
evidence.
Aid and abet, to incite, to encourage. That's what he said up
there to you. Thank goodness we had Detective Cress here.
Now, Mr. Abdullahi spoke with Detective Cress when this
happened. The day of. The day of. [Sic.] And what did he say?
The skinny suspect was the one giving the orders. That's a big
difference.
That's the case—the State's case on the aiding and abetting.
That's the State trying to prove that Mr. Noor was working in
concert with Mr. Ibrahim. And he almost proved that by
saying the chubby guy was the one orchestrating it. The
chubby—chubby guy is the one giving the order. But we heard
from the detective today that no, that's not true. He said the
skinny guy was the one giving the orders.
***
The testimony was that he orchestrated it, and that's just not
true.
***
No. 13AP-165 18
You see two kids walking down the street. One of them pulls
out a baseball, throws it toward a window, and they both start
running. Call the cops. What do you say? They threw a
baseball through the window naturally. They threw a baseball
through the window. Does that mean the kid that didn't have
the ball was in on it? Not necessarily. And it certainly doesn't
mean that he's the one that actually committed the throwing.
That's the natural way to think.
***
In fact, when chubby guy was thrown in there, you found out
it's not true. When they said chubby guy was the one directing
them on what to do, not true. Not true. It was skinny guy. I
submit to you, it's just as likely that no matter what Mr.
Ibrahim may or may not have done -- and I have no idea what
to do about this. That's not my problem, because I don't
represent Mr. Ibrahim.
Whatever he may or may not have done, once Mr. Noor went
into that chaotic situation, everything's happening around
him, it's perfectly reasonable for people to say they were in on
it. They robbed us. They had a gun, without having the
hindsight to look back and say, you know what, he was just
coming in and may not have known what was going on.
(Tr. 781, 785, 787, 792, 796.)
{¶ 48} The state argues that appellant was tried as a principal offender and that,
under the theory of aiding or abetting, both appellant and Ibrahim were principal
offenders. R.C. 2923.03(F) states that any person who violates the complicity statute "is
guilty of complicity in the commission of an offense, and shall be prosecuted and
punished as if he were a principal offender." Appellant argues that his theory of the case
was that he "had no idea" and "may not have known" what was going on in the apartment.
In other words, (1) that appellant was not a principal offender, and (2) that appellant did
not aid or abet the principal offender. Appellant implies that, during its deliberations, if
the jury rejected the state's theory that appellant was a principal offender (which it may
have done since there was no evidence that appellant had the gun), the jury would have
then turned to the state's alternate theory that appellant aided or abetted Ibrahim.
No. 13AP-165 19
{¶ 49} If indeed these were the jury's only options, we would agree that proper
instructions on aiding and abetting would have been critical. "It is not sufficient that the
jury may speculate from the charge that, in addition to the elements defined in the charge,
an additional element is necessary for a conviction." Moody, quoting Cummings. The
instructions presented in this case, as outlined above, required the jury to infer not only
that the additional element of a culpable mental state was required but also to infer which
of several culpable mental states applied. Nevertheless, a careful reading of the jury
instructions reveals that the jury could have found appellant guilty–as the principal
offender–even if they had found that he did not possess the firearm.
{¶ 50} Neither the kidnapping nor the aggravated burglary charges required the
jury to find appellant possessed the firearm. With regard to kidnapping, the jury was
instructed that appellant could be found guilty of the same if they found that he, by force
or threat, restrained the victims of their liberty, with the purpose to facilitate the
commission of aggravated robbery "and/or terrorize" the victims. With regard to
aggravated burglary, the jury was instructed that appellant could be found guilty of the
same if they found that he, by force, trespassed an occupied structure of another who was
present therein, with purpose to commit aggravated robbery "and/or" kidnapping
"and/or" theft, and he had a deadly weapon "and/or" inflicted, attempted or threatened to
inflict physical harm upon another who was present therein. Several of the witnesses
testified that the larger intruder was either shouting demands, yelling obscenities, and
collecting money and items from the victims. One witness testified that appellant kicked
him twice. This evidence could have been the basis of a jury finding that appellant
terrorized the victims, committed theft, and inflicted, attempted or threatened to inflict
physical harm upon another. The jury was instructed on the mens rea required to make a
finding of guilty as a principal offender. Furthermore, there is no indication in the record
that appellant objected to the "and/or" instructions noted above. Therefore, we cannot
find that the lack of mens rea instructions for aider or abettor with regard to the
kidnapping and aggravated burglary impaired appellant's theory of the case.
{¶ 51} Next, we must consider the aggravated robbery, felonious assault, and the
firearm specifications. The principal offense of aggravated robbery, as instructed,
required the jury to find that appellant had a firearm "on or about his person or under his
No. 13AP-165 20
control" and that appellant "displayed and/or used the weapon." The firearm
specification, as instructed, required the jury to find that appellant "had a firearm on or
about his person or under his control while committing the [offense] and did display
and/or use the firearm to facilitate the [offense].2 Thus, with both the aggravated robbery
offense and the firearm specifications, it was necessary for the jury to find appellant had
the firearm. There being no evidence that he did, appellant would argue that the jury's
only option was to consider whether appellant was an aider or abettor. The principal
offense of felonious assault, as instructed, required the jury to find that appellant "caused
serious physical harm" to the victim "or" "caused physical harm [to the victim] by means
of a deadly weapon." There being no evidence that appellant had the firearm and no
evidence of serious physical harm, appellant would likewise argue the jury's only option
was to consider whether appellant was an aider or abettor.
{¶ 52} In light of our finding that the instructional errors did not impair appellant's
theory of the case with regard to aggravated burglary and kidnapping, we find they
likewise did not impair appellant's theory of the case with regard to aggravated robbery,
felonious assault, and the firearm specifications. While it is true that the lack of evidence
that appellant possessed the firearm would require the jury to only consider whether
appellant aided or abetted, we do not accept that appellant's theory of the case was that he
was not an accomplice to Ibrahim. It would be inconsistent for us to find otherwise.
Where appellant did not object to instructions requiring the jury to consider whether he
was a principal offender of aggravated burglary and kidnapping, he cannot now credibly
argue that he was not an aider or abettor as to the aggravated robbery, felonious assault or
firearm specifications. We, therefore, cannot say that the third prong of the Dodson test
has been satisfied.
2 A firearm specification is not a separate offense but, rather, a sentencing provision that enhances the
penalty for the associated predicate offense. See State v. Worth, 10th Dist. No. 10AP-1125, 2012-Ohio-666,
¶ 49; State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 38 ("The firearm specification is not a
separate offense but a sentencing provision."). Accordingly, appellate courts have held that a firearm
specification does not carry a mens rea separate from commission of the predicate offense. See State v.
Stevens, 2d Dist. No. 23817, 2010-Ohio-4766, ¶ 18 ("Because a firearm specification cannot stand alone,
without an underlying offense, 'a firearm specification does not require its own mens rea.' ") (citation
omitted); State v. Gilbert, 8th Dist. No. 90615, 2009-Ohio-463, ¶ 16; State v. Cook, 9th Dist. No. 24058,
2008-Ohio-4841, ¶ 8.
No. 13AP-165 21
{¶ 53} The third prong of the Dodson test in essence addresses the question of
whether an error is harmless. Crim.R. 52 states that "[a]ny error, defect, irregularity or
variance which does not affect substantial rights shall be disregarded." Regarding the
appropriateness of finding harmless error, the Supreme Court of Ohio has stated: "[T]he
cases where imposition of harmless error is appropriate must involve either
overwhelming evidence of guilt or some other indicia that the error did not contribute to
the conviction." State v. Ferguson, 5 Ohio St.3d 160, 166, fn. 5 (1983). Based on our
finding that the instructional errors did not impair appellant's theory of the case, we
conclude that the errors did not contribute to the conviction and, therefore, were
harmless. Accordingly, we overrule appellant's first assignment of error.
B. Alleged Error in Allowing Credibility Testimony
{¶ 54} In his second assignment of error, appellant argues that the trial court
improperly allowed police officers to testify as to the credibility of the state's witnesses
who were present in the apartment.
{¶ 55} In presenting appellant's case, defense counsel called and questioned
several police officers concerning statements made on the night of the robbery by one or
more of the robbery victims, presumably to illustrate conflicts between their statements
on that night and their testimony at trial. On cross-examination, the prosecutor asked
Detective Hughes whether there was "anything about the interview with Mr. Abdulkadir
Aden that suggested that this robbery did not take place?" (Tr. 719); whether "Muktar
[said] anything to you that indicated that the robbery did not take place?" (Tr. 721); and
whether there was "anything about your conversation with Mr. Hirsi that indicated to you
that the robbery did not occur?" (Tr. 715.) Moreover, another police officer, Detective
Todd Cress, was asked whether, at any time, witness Ali Abdullahi "[said] anything that
gave you reason to believe that the robbery did not occur?" (Tr. 732.)
{¶ 56} Appellant argues that these questions were improper and allowed the
officers to improperly express opinions that the state's witnesses were telling the truth on
the night of the robbery. But the record reflects that no contemporaneous objection was
made either to the prosecutor's questions or to the officers' answers. We must determine,
therefore, whether it was plain error to allow this testimony. State v. McDowall, 10th
Dist. No. 09AP-443, 2009-Ohio-6902, ¶ 26 ("Because there was no objection, all
No. 13AP-165 22
but plain error has been waived."). Moreover, " '[p]lain error consists of an obvious error
or defect in the trial proceedings that affects a substantial right [and] * * * reversal is
warranted only if the outcome of the trial clearly would have been different absent the
error.' " Id., quoting State v. Lindsey, 87 Ohio St.3d 479, 482 (2000). Appellate courts
notice plain error " 'with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.' " State v. Barnes, 94 Ohio St.3d 21, 27 (2002),
quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶ 57} The state contends, initially, that the questions asked did not solicit or
produce improper bolstering evidence. It characterizes the questions as inquiry into
police evidence-gathering procedures, rather than the solicitation of police opinion as to
the credibility of the state's witnesses. The state suggests that a prosecutor may properly
ask questions that explain the reason why the police have filed charges against criminal
suspects; i.e., that the police accepted the stories given by the victims of crimes at the time
of the alleged crimes. The state cites in support our decision in State v. Nicodemus, 10th
Dist. No. 96APA10-1359 (May 15, 1997).
{¶ 58} In Nicodemus, a defendant argued that an investigating detective was
wrongly permitted to vouch for the credibility of the victims of alleged sexual offenses.
We stated:
The testimony of the detective in question was more in the
nature of testimony about police procedures than an
expressed opinion about the truthfulness of the girls.
Certainly, the decision of a police detective to file charges in
a given situation involves some assessment of credibility by
the detective, so a detailed elaboration of a police protocol
will reveal information about a detective's assessment of
credibility. Still, to the extent that such credibility
assessment can be kept away from a trier of fact, especially
a jury, it should be kept away.
(Emphasis added.) Id. See also State v. Lee, 10th Dist. No. 02AP-1340, 2003-Ohio-
4059, ¶ 14 (citing Nicodemus).
{¶ 59} Appellant's argument objecting to the form of the questions asked by the
prosecutors and quoted above, accordingly, is not completely devoid of merit. But even
assuming, arguendo, that these questions were improper, they were not of a nature likely
No. 13AP-165 23
to influence the jury's verdict, as they did not constitute an obvious error or defect in the
trial proceedings affecting a substantial right and were not plain error. We do not believe
that the jury's evaluation of the credibility of the state's witnesses in comparison to that of
Ibrahim or the ultimate outcome of the trial clearly would have been different had the
questions and answers not been given. We, therefore, hold that the court's allowance of
the cross-examination at issue in appellant's second assignment of error was not plain
error.
{¶ 60} Accordingly, we overrule appellant's second assignment of error.
C. Error as to Interpreter
{¶ 61} In his third assignment of error, appellant challenges the interpreter who
interpreted the testimony of several witnesses whose primary language was Somali.
Appellant also asserts that the trial court erred in failing to record testimony given in
Somali through the use of video or audio recordings or a bilingual court reporter.
{¶ 62} Before the state called Mohamed Adan, the first witness who testified in
Somali, the record reflects the following:
[MR. WODARCYK]: And, Judge, we do have an interpreter
for our first witness [of the day].
THE COURT: Would you stand up, sir? Raise your right
hand
Thereupon the interpreter was duly sworn.
(Tr. 270-71.)
{¶ 63} No objection was raised at that time as to the qualifications of the
interpreter nor to the form of the oath.
{¶ 64} At the conclusion of Adan's testimony, the following exchange occurred out
of the presence of the jury:
MR. SABOL [counsel for appellant]: I don't speak Somali, so
I have no idea, but my client informs me that he believes
some of the translation was off. I spoke with Mr. Basnett
[counsel for Ibrahim]. I spoke with his client who believes
the same. I had spoken with the interpreter beforehand,
asked him if he was certified by the Ohio Supreme Court.
And I know they have some certifications. I do not know if
No. 13AP-165 24
they have certifications in Somali. I know we've had that
issue over in Municipal Court.
He indicated to me that he was beforehand, so I was
comfortable going ahead. But I don't think he was being
deceptive or anything at all. But he came up to me
afterwards and said he was not, in fact, certified by the
Supreme Court and does have some sort of papers that he's
been in this court before. What that means I don't know, but
I thought I would just bring it to the Court's attention just to
ensure that we're on all fours here.
THE COURT: Well, I'll just ask the interpreter, what is your
situation with regard to –
THE INTERPRETER: Exactly the way he put it is not
correct. He said are you certified to the court. I did not
really hear the Supreme Court. I was contemplating. I said,
yes, I'm certified. And they gave us letters that have been in
a lot of cases in this court, federal court and municipal and
general, all of them.
And actually this year what we've done as interpreter
company, they gave us letters and make sure everybody went
through all the training and everything. And they gave us
letters to show every judge that certifies, says that I am
certified, and that's what we go by.
If it's a specific Ohio State Supreme Court certification, and
then, no, I do not have that one, and that can be arranged by
the interpreter services. But I interpret all the cases, and I've
been there. And I haven't had a problem before. That's
where I'm at now, and I have my letter to show you.
THE COURT: Okay. Do we have your name on the record?
THE INTERPRETER: You should mention it, but let me get
you my name, my badge, and the letter that I got.
THE COURT: Okay. Fine.
MR. BASNETT [counsel for Ibrahim]: Your Honor, just for
the record, my client, after I was questioning the last witness,
when I sat down, he bent over and just said that he was
concerned because he didn't believe that every – that the
interpretations was going word for word. He thought that
No. 13AP-165 25
some of the things were being left out. We just ask for the
interpretation to go word for word. I don't have any
problems with the interpreter. I've worked with him before,
but my client's concern is everything being interpreted.
THE COURT: Yes, I would only state that the interpretation
should be word by word if possible. Probably not always
possible. If your client knows that something is being
misleading, then if he could point that out, we'll deal with it.
MR. BASNETT: Thank you, Your Honor.
***
THE COURT: Can we just make a copy of this? Be right
back.
THE INTERPRETER: Sure, sure.
(Discussion held off the record.)
THE COURT: We'll make a copy of his credentials and make
it a part of the record.
(Tr. 302-03.)
{¶ 65} Consistent with this exchange, the record includes a copy of an undated
letter printed on the stationery of a Columbus company, ASIST Translation Services. The
letter, signed by an individual whose position was "Manager Interpreting Services," reads
as follows:
Abdulkadir Hagi is a language-skilled interpreter3 and has
worked with ASIST Translation Services since 2006.
Abdulkadir has passed the third party proficiency exam and
has had medical, legal and social service trainings
throughout the course of his career. Abdulkadir continues to
further his knowledge through offered trainings in the
community.
3 Although the record does not reveal how the interpreter or his agency define the phrase "language-skilled
interpreter," Sup.R. 88(D)(3) states that an interpreter "who demonstrates to the court proficiency in the
target language and sufficient preparation to properly interpret the case proceedings * * * shall be styled a
'language-skilled foreign language interpreter.' "
No. 13AP-165 26
{¶ 66} Appellant notes that R.C. 2311.14(A)(1) provides that, "[w]henever because
of a hearing, speech, or other impairment a party to or witness in a legal proceeding
cannot readily understand or communicate, the court shall appoint a qualified interpreter
to assist such person." In addition, R.C. 2311.14(B) provides that, "[b]efore entering upon
official duties, the interpreter shall take an oath that the interpreter will make a true
interpretation of the proceedings to the the party or witness." Moreover, appellant
observes that Sup.R. 88(D) establishes certain procedures to assure that a foreign
language interpreter is qualified.
{¶ 67} Appellant contends that the trial court failed to comply with either R.C.
2311.14 or Sup.R. 88(D). He further argues that Crim.R. 22 requires that, "[i]n serious
offense cases all proceedings shall be recorded" and suggests that the court must employ
either a bilingual court reporter or use video or audio recordings to comply with the rule
where non-English speakers participate as witnesses or parties. In support, appellant
cites Columbus v. Lopez-Antonio, 153 Ohio Misc.2d 4, 2009-Ohio-4892.
{¶ 68} The state, in response, argues that this assignment of error fails absent a
finding of plain error. Indeed, our review of the record discloses that appellant did not
object to the court interpreter's qualifications, did not request that the proceedings be
electronically recorded, did not request that a bilingual court reporter be obtained, and
did not contemporaneously state an objection to any of the interpretations of the
testimony. The state further suggests that, while Lopez-Antonio provides guidance where
a trial court must determine whether an interpreter is qualified to provide interpretation
services, the decision does not address the issue of whether a trial court committed plain
error relative to the use of a foreign language interpreter.
{¶ 69} Sup.R. 88(A) provides that a court must appoint a foreign language
interpreter when: (1) a party or witness who is non-English speaking or has limited
English proficiency requests an interpreter and the court determines the services of an
interpreter are necessary for the meaningful participation of the party or witness; or (2)
absent a request from a party or witness, the court concludes that a party or witness is
non-English speaking or has limited English proficiency, and the court determines the
services of an interpreter are necessary for the meaningful participation of the party or
witness. When an interpreter is required, Sup.R 88(D)(1) requires courts to appoint "a
No. 13AP-165 27
Supreme Court certified foreign language interpreter." (Emphasis added.) If a Supreme
Court certified interpreter "does not exist or is not reasonably available and after
considering the gravity of the proceedings and whether the matter could be rescheduled
to obtain a Supreme Court certified foreign language interpreter, a court may appoint a
provisionally qualified foreign language interpreter." (Emphasis added.) Sup.R.
88(D)(2). Finally, if a Supreme Court certified foreign language interpreter or
provisionally qualified foreign language interpreter "does not exist or is not reasonably
available and after considering the gravity of the proceedings and whether the matter
could be rescheduled to obtain a Supreme Court certified foreign language interpreter or
provisionally qualified foreign language interpreter, a court may appoint a foreign
language interpreter who demonstrates to the court proficiency in the target language and
sufficient preparation to properly interpret the case proceedings. Such interpreter shall
be styled a 'language-skilled foreign language interpreter.' " (Emphasis added.) Sup.R.
88(D)(3).
{¶ 70} Here, it appears the court did not use a certified or a provisionally qualified
interpreter. The interpreter presented the court with a letter describing himself as a
"language skilled" interpreter. Sup.R. 88(D)(3) states that, when using a language skilled
interpreter, the court "shall summarize on the record its efforts to obtain a Supreme Court
certified foreign language interpreter or provisionally qualified foreign language
interpreter and the reasons for using a language-skilled foreign language interpreter."
Furthermore, "[t]he language-skilled foreign language interpreter's experience,
knowledge, and training should be stated on the record," and "[e]ach language-skilled
foreign language interpreter shall take an oath or affirmation under which the interpreter
affirms to know, understand, and act according to the code of professional conduct for
court interpreters * * * as set forth in Appendix H to [Sup.R. 88]."
{¶ 71} Although the interpreter's knowledge and training were stated on the record
in this case, it is unclear from the record whether the oath administered to the interpreter
required him to affirm that he knows, understands, and acts according to the code of
professional conduct for court interpreters. Furthermore, the record does not reveal a
summary of the court's efforts to obtain a Supreme Court certified or provisionally
No. 13AP-165 28
qualified Somali interpreter or the reasons for using a language-skilled Somali interpreter.
Therefore, it appears the trial court did not follow all the requirements of Sup.R. 88.
{¶ 72} Nevertheless, we note again that no objection was raised as to the
qualifications of the interpreter, to the form of the oath, or to the lack of summary of the
court's efforts to use a certified or provisionally qualified interpreter. Accordingly, we
apply a plain-error standard, which requires a determination that the outcome of the trial
clearly would have been different absent the error. See McDowall at ¶ 26. We do not find
the outcome of the trial would have been different.
{¶ 73} First, when appellant's counsel expressed concern that the interpretation
"was off" (Tr. 302) and that the interpreter was not certified by the Supreme Court, the
court asked the interpreter for his qualifications on the record and to clarify whether or
not he was certified by the Supreme Court. The court instructed the interpreter to
interpret the testimony word for word to the extent possible and advised appellant and
Ibrahim that they should bring to the attention of the court any additional concerns they
might have concerning the interpretation. The record does not reflect that appellant
thereafter raised any issues concerning the interpreter's qualifications or the
interpretation itself. Furthermore, appellant did not argue before the trial court or here
that a certified or provisionally qualified Somali interpreter existed and was reasonably
available.
{¶ 74} Second, the state called nine witnesses in this case. Of those witnesses, five
testified through the interpreter (Adan, Faqi, Ismail, Farheyo Abudlkar, and Abdulkadir
Aden). But four of the witnesses testified in English without an interpreter (Hirsi, Aden,
Abdulle, and Abdullahi), including the individual who suffered the gunshot wound
(Hirsi), and the individual who took the gun away from the smaller robber (Abdullahi).
The testimony of all nine of these witnesses, whether provided in English or through the
interpreter, was remarkably consistent—a circumstance that rebuts any inference that
appellant was prejudiced by a misleading or faulty interpretation of testimony given in
Somali. With all this in mind, we do not find the outcome of the trial would have been
different and, therefore, no plain error existed.
{¶ 75} Moreover, we have previously held that the law does not require that a
transcript include non-English versions of testimony. In State v. Vu, 10th Dist. No. 09AP-
No. 13AP-165 29
606, 2010-Ohio-4019, ¶ 27, where an appellant suggested that the transcripts were
inadequate because they only included the English version of the testimony, we observed:
Appellant also suggests the transcripts are inadequate
because they consist only of the English version of the
testimony. We, however, are not aware of any requirement
that the transcript include non-English, in this case
Vietnamese, versions of the testimony, particularly in light of
the fact that testimony is taken by a stenographer who may
or may not be conversant in non-English languages.
{¶ 76} Consistent with our statement in Vu, we are aware of no statute or rule
requiring that testimony or other trial proceedings occurring in a foreign language be
electronically recorded. Furthermore, appellant has not provided us, nor are we aware of,
any authority supporting the proposition that due process imposes such a requirement.
Accordingly, we find that plain error did not occur relative to the use of the interpreter in
this case.
{¶ 77} We therefore overrule appellant's third assignment of error.
D. Refusal to Instruct on Lesser-Included Offense of Trespass
{¶ 78} In his fourth assignment of error, appellant argues that the trial court erred
in refusing to instruct the jury on trespass as a lesser-included offense of aggravated
burglary. "An offense is a lesser-included offense of another where: (1) the offense carries
a lesser penalty; (2) the greater offense cannot, as statutorily defined, ever be committed
without the lesser offense, as statutorily defined, also being committed; and (3) some
element of the greater offense is not required to prove commission of the lesser offense."
State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 37, citing State v. Deem,
40 Ohio St.3d 205, 209 (1988).
{¶ 79} The crime of trespass is a lesser-included offense of aggravated burglary.
State v. Lawson, 2d Dist. No. 23456, 2010-Ohio-3114, ¶ 28; State v. Divincenzo, 9th Dist.
No. 05CA0105-M, 2006-Ohio-6330, ¶ 34; State v. Leavitt, 11th Dist. No. 92-L-197
(Mar. 25, 1994). See also State v. Johnson, 10th Dist. No. 86AP-868 (Feb. 18, 1988)
(affirming conviction of criminal trespass as a lesser-included offense of aggravated
burglary); State v. Mickens, 10th Dist. No. 08AP-743, 2009-Ohio-2554, ¶ 68 (recognizing
trespass as a lesser-included offense of burglary and citing State v. Wamsley, 117 Ohio
No. 13AP-165 30
St.3d 388, 2008-Ohio-1195, ¶ 14, for the proposition that trespass is an element of
aggravated burglary); State v. Shedwick, 10th Dist. No. 11AP-709, 2012-Ohio-2270, ¶ 11-
12 (observing that R.C. 2911.11(A) defines aggravated burglary to include as an element
the crime of trespass as defined in R.C. 2911.10).
{¶ 80} A court must give an instruction on a lesser-included offense when
" 'sufficient evidence is presented which would allow a jury to reasonably reject the
greater offense and find the defendant guilty on a lesser included * * * offense.' "
(Emphasis sic.) Hubbard at ¶ 37, quoting State v. Shane, 63 Ohio St.3d 630, 632 (1992).
That is, a court must instruct on a lesser-included offense only where the evidence
presented at trial would reasonably support both an acquittal on the crime charged and a
conviction on the lesser-included offense. Hubbard, citing State v. Freeman, 10th Dist.
No. 07AP-337, 2007-Ohio-6859, ¶ 14, citing State v. Carter, 89 Ohio St.3d 593 (2000).
In making this determination, " '[t]he court must view the evidence in the light most
favorable to the defendant.' " Id., quoting State v. Campbell, 69 Ohio St.3d 38, 47-48
(1994); State v. Wilkins, 64 Ohio St.2d 382, 388 (1980).
{¶ 81} As is the case when reviewing a trial court's jury instructions generally, the
proper standard of review for an appellate court in reviewing whether to give an
instruction as to a lesser-included offense is whether the trial court's refusal to give a
requested jury instruction constituted an abuse of discretion under the facts and
circumstances of the case. State v. Parnell, 10th Dist. No. 11AP-257, 2011-Ohio-6564,
¶ 21-27. The term "abuse of discretion" connotes more than an error of law or judgment;
it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v.
Clark, 71 Ohio St.3d 466, 470 (1994).
{¶ 82} In this case, the trial court stated that the evidence produced at trial was
such that "[i]t's either aggravated burglary or nothing," effectively determining that the
evidence did not reasonably support an acquittal on the crime of aggravated burglary but
a conviction of the crime of trespass. (Tr. 738.) It therefore refused to instruct the jury on
that lesser-included offense. The trial court's determination did not reflect an abuse of
discretion.
{¶ 83} Appellant correctly observes that Ibrahim testified that appellant did not
enter the apartment but, instead, waited in the hall for Ibrahim to come out and entered
No. 13AP-165 31
the apartment only after appellant heard the gunshot. Appellant argues that, if the jury
believed Ibrahim's testimony, appellant might well have been acquitted of aggravated
burglary but convicted of misdemeanor trespass for entering the apartment without
permission at a time subsequent to the aggravated burglary and other crimes committed
solely by Ibrahim.
{¶ 84} However, an "instruction on [a] lesser included offense is not warranted
* * * every time 'some evidence' is presented to support the lesser offense. Instead, a court
must find 'sufficient evidence' to 'allow a jury to reasonably reject the greater offense and
find the defendant guilty on a lesser included (or inferior degree) offense.' " (Emphasis
sic.; citation omitted.) State v. Benit, 10th Dist. No 11AP-490, 2011-Ohio-6832, ¶ 6,
quoting State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 192, quoting Shane at
632-33. The proper standard of review for an appellate court is whether the trial court's
refusal to give a requested jury instruction constituted "an abuse of discretion under the
facts and circumstances of the case." (Emphasis added.) Wolons, 44 Ohio St.3d 64, at 68.
For example, a defendant's own testimony that he did not intend to kill his victim does
not entitle him to a lesser-included offense instruction "if the evidence on whole does not
reasonably support an acquittal on the murder offense and a conviction on a lesser
offense." State v. Willis, 8th Dist. No. 99735, 2014-Ohio-114, ¶ 51, citing Campbell at 47.
{¶ 85} We agree with the state's contention that, in this case, there was not
sufficient evidence which would have permitted the jury to reasonably conclude that
appellant merely entered the apartment without permission after appellant heard the
gunshot. Accordingly, reviewing the evidence in a light most favorable to appellant, we
reject his argument that the jury could reasonably have found on the evidence presented
that appellant was not guilty of aggravated burglary, but guilty of criminal trespass. The
trial court did not abuse its discretion in refusing to instruct on criminal trespass.
{¶ 86} Accordingly, we overrule appellant's fourth assignment of error.
E. Allied Offenses—Aggravated Robbery and Kidnapping
{¶ 87} In his fifth assignment of error, appellant argues that the 11 kidnapping
counts of which appellant was convicted were allied offenses of the aggravated robbery
charges of which he was convicted. He argues that the conduct that constituted the
aggravated robberies in this case was the same conduct that resulted in the kidnapping
No. 13AP-165 32
offenses; i.e., ordering the robbery victims to lie down and stay still while the robbers
obtained their valuables. He contends that the convictions merge, pursuant to State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, even though the court ordered that the
sentences for the kidnapping and aggravated robbery charges run concurrently.
{¶ 88} R.C. 2941.25, Ohio's allied-offenses statute, provides that, "[w]here the
same conduct by defendant can be construed to constitute two or more allied offenses of
similar import, the indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one." R.C. 2941.25(A). We have recognized
that, pursuant to Johnson, " '[i]f the offenses correspond to such a degree that the conduct
of the defendant constituting commission of one offense constitutes commission of the
other, then the offenses are of similar import.' " State v. Broomfield, 10th Dist. No. 12AP-
469, 2013-Ohio-1676, ¶ 8, quoting Johnson at ¶ 51. Pursuant to the allied-offenses
statute, where it is determined that the defendant has been found guilty of allied offenses,
"the trial court must accept the state's choice among allied offenses, 'merge the
crimes into a single conviction for sentencing, and impose a sentence that is appropriate
for the merged offense.' " (Emphasis sic.) State v. Bayer, 10th Dist. No. 11AP-733, 2012-
Ohio-5469, ¶ 21, quoting State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 13. We
review de novo a trial court's ruling as to whether convictions merge under the allied-
offenses doctrine. State v. Corker, 10th Dist. No. 13AP-264, 2013-Ohio-5446, ¶ 28, citing
State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 47.
{¶ 89} A conviction for aggravated robbery, as defined in R.C. 2911.01(A)(1),
requires proof that a defendant brandished a deadly weapon in order to facilitate a theft
offense. Corker at ¶ 29. Pursuant to R.C. 2905.01, kidnapping requires proof that a
defendant restrained another of his liberty or removed him from the place where he was
found. Id.{¶ 90} The Supreme Court of Ohio has recognized that the commission of
aggravated robbery necessarily involves restraint of the victim. Corker, citing State v.
Jenkins, 15 Ohio St.3d 164, 198 (1984), fn. 29; see also Broomfield at ¶ 14. However,
aggravated robbery and kidnapping are not allied offenses of similar import where the
restraint is prolonged beyond the time required to commit the aggravated robbery. Corker
at ¶ 30, citing State v. Logan, 60 Ohio St.2d 126 (1979), syllabus.
No. 13AP-165 33
{¶ 91} In Broomfield, we surveyed recent cases from this court analyzing merger of
kidnapping and aggravated robbery offenses. In the earliest of those cases, State v.
Davis, 10th Dist. No. 09AP-869, 2011-Ohio-1023, we held that kidnapping did not merge
with aggravated robbery where the victims were held at gunpoint while the robbers
demanded money and then were bound and driven around for several hours while the
defendant continued to demand money.
{¶ 92} In the next case, State v. Sidbeh, 10th Dist. No. 10AP-331, 2011-Ohio-712,
the defendant restrained the liberty of the occupants of a home while others rummaged
through the house. We held that the kidnapping and aggravated robbery offenses
merged, as the restraint lasted no longer than necessary to complete the aggravated
robbery, and the movement of the victims was not substantial so as to indicate
significance independent of committing the aggravated robbery. Broomfield at ¶ 16,
citing Sidbeh at ¶ 5.
{¶ 93} In State v. Vance, 10th Dist. No. 11AP-755, 2012-Ohio-2594, we held that
kidnapping and aggravated robbery offenses did not merge where the defendant forced
the victim into her minivan, demanded money, drove her to an ATM where he withdrew
money from her account, drove her to a drug house where he ordered her to remain in the
van, and then returned and drove her to another location, where he exited the car and told
her to drive away. The incident lasted approximately one hour and fifteen minutes. In
finding that the aggravated robbery and kidnapping offenses did not merge, we noted that
the kidnapping was prolonged and involved transporting the victim over a considerable
distance. Broomfield at ¶ 18, citing Vance at ¶ 10-16.
{¶ 94} Finally, in Broomfield itself, we held that movement of victims during the
course of a robbery had "significance independent of the robbery" and that the offenses
did not merge. We noted that the kidnapping exposed the victim to an increased risk of
substantial harm and that one victim was moved to a separate bedroom location within
the house before the defendant sexually assaulted the victim. Id. at ¶ 19.
{¶ 95} In the case before us, the state's witnesses testified that the 11 victims were
threatened, assaulted, and restrained of their liberty for approximately 20 to 40 minutes,
at which time the robbery victims overcame the robbers, terminating the robbery. For
purposes of the allied-offense analysis, we find these facts to be similar to the facts in
No. 13AP-165 34
Sidbeh. We further consider our holding in Broomfield to be instructive. Accordingly, we
find the aggravated robbery offenses in this case merge with the kidnapping offenses.
{¶ 96} We therefore sustain appellant's fifth assignment of error.
IV. Conclusion
{¶ 97} For the foregoing reasons, we overrule appellant's first, second, third, and
fourth assignments of error and sustain appellant's fifth assignment of error. Therefore,
we affirm in part and reverse in part the judgment of the Franklin County Court of
Common Pleas and remand this cause to that court for further proceedings, consistent
with this decision, with regard to the aggravated robbery and kidnapping offenses.
Judgment affirmed in part, reversed in part,
and cause remanded with instructions.
O'GRADY and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under the authority of the Ohio
Constitution, Article IV, Section 6(C).
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