State v. Koch

• Decision Date: 04 October 2019
• Docket Number: No. 28000,28000
• Citation: 2019 Ohio 4099,146 N.E.3d 1238
• Parties: STATE of Ohio, Plaintiff-Appellee v. Izmir KOCH, Defendant-Appellant
• Court: Ohio Court of Appeals

146 N.E.3d 1238

2019 Ohio 4099

STATE of Ohio, Plaintiff-Appellee

v.Izmir KOCH, Defendant-Appellant

No. 28000

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on the October 4, 2019

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.

ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 East Fifth Street, Dayton, Ohio 45402, Attorney for Defendant-Appellant.

OPINION

DONOVAN, J.

{¶ 1} Defendant-appellant Izmir Koch (hereinafter "Izmir") appeals from his conviction for one count of felonious assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony of the second degree; and one count of felonious assault (serious physical harm), in violation of R.C. 2903.11(A)(1), also a felony of the second degree. Izmir filed a timely notice of appeal with this Court on May 18, 2018.

{¶ 2} The record establishes that the victim, Aydin Akhmdov, emigrated from Russia to the United States in 2006, eventually settling in Dayton, Ohio. Aydin was initially self-employed as a truck driver. During this time, Aydin stored his truck and had it serviced at Ameripro Logistics, a local trucking company owned and managed by Mustafa Shakhmanov, Izmir's cousin. At some point thereafter, Mustafa hired Aydin as a driver for Ameripro. Aydin testified that, in 2015, he broke his leg and was unable to maintain his employment with Ameripro. Aydin testified that when he stopped working for Ameripro, he was still owed approximately $1,800 in back pay.

{¶ 3} Aydin testified that for several months, he contacted Mustafa many times in an effort to recover his back pay. Thereafter, on June 7, 2016, Aydin made multiple attempts to contact Mustafa regarding his back pay, but his calls went unanswered. Eventually, Aydin called Ameripro's truck dispatcher, Sevil Shakhmanov, Mustafa's brother. Aydin testified that Sevil told him to come to the Ameripro office and speak directly to Mustafa in order to get his back pay. Aydin testified that he traveled to Ameripro later that day, but the doors were locked and he was unable to locate anyone. Aydin testified that it was only after he left Ameripro that he noticed that Sevil had called him several times. Aydin called Sevil back and was told to return to Ameripro if he wanted to be paid.

{¶ 4} Surveillance cameras located outside the Ameripro office recorded the encounter between Aydin, Sevil, and members of Sevil's family. In the video, Aydin can be seen arriving at Ameripro and parking his motor vehicle on the street across from the business. Aydin testified that, as he sat in his parked car, he observed Sevil remove a tire iron from his car and hide it in his pants. The video depicts Sevil being joined by Mustafa, and the two men can be seen attempting to call Aydin across the street. Aydin testified that when he refused to come across the street, Sevil, Mustafa, and their brother, Sobir Shakhmanov, walked across the street to where Aydin was standing.

{¶ 5} As depicted in the video, while the three men were talking to Aydin, Izmir and his brother, Murad Koch pulled up in a white BMW sedan behind where all of the men were talking. At that point, the men surrounded Aydin. As Aydin attempted to walk away from the men, Murad ran toward him and repeatedly hit him with a collapsible metal baton. As Aydin ran between some vehicles parked nearby, all five men followed him and began beating him. Aydin testified that, during the assault, Sevil struck him in the head with a tire iron. Eventually, Aydin was able to return to his vehicle and leave the scene of the assault. However, as Aydin was driving away, the video depicts Mustafa picking up a rock and throwing it at Aydin's vehicle.

{¶ 6} Shortly thereafter, Aydin returned to Ameripro, parking his vehicle across the street from the business. Aydin testified that he shouted at Sevil from across the street regarding the back pay he was owed. The video depicts Sevil responding by making a profane gesture directed at Aydin. In the video, the Shakhmanov brothers can also be seen in the Ameripro lobby placing metal poles and rebar just inside the door of the business.

{¶ 7} Aydin testified that Murad, armed with the metal baton, began yelling at him from across the street. At that point, Murad, Izmir, and Sevil walked across the street to where Aydin was standing. Aydin testified that they were yelling at him as they approached him, stating that they were going to "tear him to pieces." Tr. 794. When Murad approached him with the metal baton, Aydin pulled out a pocketknife and stabbed him in the arm. Thereafter, Aydin attempted to run away but tripped and fell down in the parking lot, at which point Mustafa began striking him with a metal pole and Izmir can be seen kicking him in the head and upper body. Aydin testified that Sevil was about to hit him with a metal pole. Aydin, however, was able to retrieve a set of brass knuckles from his pocket and strike Sevil, knocking him to the ground. Aydin then ran across the street towards the Ameripro office in an effort to escape from his attackers.

{¶ 8} Upon reaching the parking lot in front of Ameripro, however, Aydin was struck in the head from behind with a metal pole by Murad. When Aydin fell to the ground, Murad, Mustafa, and Kamil Abbasov began hitting him with metal poles. Izmir, who did not have a weapon, can be seen in the video kicking Aydin in the head. Thereafter, Sobir Shakhmanov pulled his brothers and cousins away from Aydin, who was clearly injured. Eventually, Aydin was able to stand up and walk back across the street toward his vehicle.

{¶ 9} Izmir followed Aydin across the street and continued assaulting him. Izmir's brother, Baris Koch, joined in the assault, kicking Aydin in the head and knocking him to the ground. Mustafa, Murad, and Kamil also ran across the street to continue attacking Aydin. The video depicts the men chasing Aydin behind a wooden fence where the assault continued, according to Aydin. Eventually, Aydin walked out from behind the fence without his shirt and wearing only one shoe. Aydin walked to his vehicle and got inside, but when he tried to leave, Izmir walked over to the vehicle, reached into the front passenger side window and took the key out of the ignition. Thereafter, Aydin simply remained seated in his vehicle and waited for the police to arrive.

{¶ 10} During the initial assault, Aydin suffered a cut to his head when Sevil struck him with a tire iron. Aydin required stitches and staples to close wounds

on his head. Furthermore, as a result of the assaults, Aydin was diagnosed with post-concussive syndrome, anxiety, and post-traumatic stress disorder. Aydin testified that as a result of the assault, he continues to suffer from headaches, knee pain, and back pain.

{¶ 11} On July 5, 2016, Izmir and five co-defendants were indicted for one count of felonious assault (deadly weapon), and one count of felonious assault (serious physical harm).¹ On August 10, 2016, Izmir filed a motion to suppress his statements to the police. On December 2, 2016, Izmir filed an amended motion to suppress in which he argued that Mustafa, the manager of Ameripro, did not give valid consent for the police to seize the surveillance video without a search warrant. On February 14, 2018, the trial court overruled Izmir's motion to suppress on the following grounds: Izmir lacked standing to challenge the video's seizure because he failed to adduce evidence establishing that he had a reasonable expectation of privacy in Ameripro's business property and/or the particular office where the surveillance video was maintained; and 2) even if Izmir had standing, the record established that Mustafa voluntarily provided the police with both oral and written consent to seize the surveillance video.

{¶ 12} The trial court initially intended to give each co-defendant a separate trial. On November 8, 2017, Izmir filed a motion requesting that he and his brother, Murad, be tried together, which the trial court granted. Eventually, co-defendants Sevil and Kamil were also joined. On March 19, 2018, Izmir, Murad, Sevil, and Kamil's jury trial commenced. After hearing testimony and seeing evidence adduced by the State and the defendants, the jury found Izmir and his co-defendants guilty of one count of felonious assault (deadly weapon) and one count of felonious assault (serious physical harm). The trial court sentenced Izmir to a term of community control sanctions not to exceed five years.

{¶ 13} It is from this judgment that Izmir now appeals.

{¶ 14} Izmir's first assignment of error is as follows:

THE TRIAL COURT ERRED BY HOLDING THAT APPELLANT COULD NOT MOVE TO SUPPRESS EVIDENCE IN THIS MATTER BECAUSE HE DID NOT HAVE A PERSONAL EXPECTATION OF PRIVACY AT THE BUSINESS FROM

WHICH THE SURVEILLANCE VIDEO WAS OBTAINED, IN VIOLATION OF HIS RIGHTS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION 14 OF THE CONSTITUTION OF OHIO.

{¶ 15} In his first assignment of error, Izmir contends that the trial court erred when it overruled his motion to suppress the surveillance video seized by police from Mustafa's office at Ameripro. Specifically, Izmir argues that the trial court erred when it found that he lacked standing to challenge the video's seizure because he failed to establish that he had a reasonable expectation of privacy in Ameripro's business property and/or the particular office where the surveillance video was maintained.

{¶ 16} In ruling on a motion to suppress, the trial court "assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses." State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994) ; State v. Knisley , 2d Dist. Montgomery No. 22897, ...