State v. Mohamed, 090717 OHSC, 2016-0672

Court:Supreme Court of Ohio
Attorney:Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda and Kelly N. Mason, Assistant Prosecuting Attorneys, for appellant. Robert L. Tobik, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellee.
Judge Panel:O'Connor, C.J., and Kennedy and French, JJ., concur. O'Donnell, J., concurs in judgment only. Fischer, J., concurs, with an opinion. O'Neill, J., dissents, with an opinion. FISCHER, J., CONCURRING. O'NEILL, J., DISSENTING.
Opinion Judge:DEWINE, J.
Party Name:The State of Ohio, Appellant, v. Mohamed, Appellee.
Case Date:September 07, 2017
Docket Nº:2016-0672
 
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2017-Ohio-7468

The State of Ohio, Appellant,

v.

Mohamed, Appellee.

No. 2016-0672

Supreme Court of Ohio

September 7, 2017

          Submitted May 3, 2017

         Appeal from the Court of Appeals for Cuyahoga County, Nos. 102398 and 103602, 2016-Ohio-1116.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda and Kelly N. Mason, Assistant Prosecuting Attorneys, for appellant.

          Robert L. Tobik, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellee.

          DEWINE, J.

         {¶ 1} Ohio's kidnapping statute reduces the level of the offense from a first-degree felony to a second-degree felony if the victim is released in a "safe place unharmed." R.C. 2905.01. This case presents the question whether "harm, " for purposes of the statute, encompasses not only physical harm but also psychological harm. We conclude that it does.

         {¶ 2} In the proceeding below, the court of appeals reversed a first-degree kidnapping conviction based upon its determination that trial counsel had been ineffective in failing to request a safe-place-unharmed instruction and that the trial judge had committed plain error by not sua sponte providing the instruction. The court of appeals reasoned that there was no physical harm to the victim and that "harm, " for purposes of R.C. 2905.01, could not include psychological harm. We see it differently. We apply the plain meaning of "harm" to include both physical and psychological harm. And with "harm" properly defined, we conclude that on the record before us, counsel was not ineffective in failing to request such an instruction; rather, his not requesting the instruction fell within the gamut of trial strategy. Further, we find no plain error in the judge's failure to give the instruction. Thus, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

         I. The Incident

         {¶ 3} A jury found taxicab driver Shuaib Haji Mohamed guilty of several felonies based upon Mohamed's sexual assault of one of his fares. The victim, J.K., had spent the evening drinking at several establishments in downtown Cleveland with her best friend Stephanie. After the bars closed, the pair were unable to locate their car and ended up hailing Mohamed's cab. J.K. got in the front passenger seat of the minivan taxi and her friend got in the back. In the cab, the women started arguing about the lost car and wound up slapping and hitting each other. During the scuffle, J.K.'s purse was dumped on the floor, and she lost her cell phone. Mohamed eventually stopped the cab near their destination, pulled the girls apart, and the women set off in separate directions.

         {¶ 4} At trial, J.K provided this account of what happened next. As she was walking away, Mohamed caught up with her and told her that the credit card she had used to pay the fare had been declined and that if she did not pay, he was going to call the cops. J.K. promised Mohamed that if he would drive her to her apartment, she had a new debit card that she could activate and use to withdraw cash from a nearby ATM.

         {¶ 5} On the way to the apartment, Mohamed remarked that in breaking up the fight, he had noticed that J.K.'s " 'skin was so soft.' " Made uncomfortable by the comment, J.K. put on sweatpants and grabbed a large hooded sweatshirt while she was in the apartment retrieving her debit card. After the stop at the apartment, Mohamed drove J.K. to a nearby gas station that had an ATM. She withdrew $110 in cash and paid for the cab ride. The night, however, was still not over.

         {¶ 6} As they were leaving the gas station, J.K. realized she had locked her keys in her apartment and would not be able to get back inside, so she asked Mohamed to take her to her ex-boyfriend Rodney's house. Soon after they pulled out of the gas station, Mohamed began to touch her thighs. She told him to stop, but he persisted. While on Interstate 71, Mohamed stopped the cab on the side of the road, pulled out his penis, and shoved J.K.'s head down in an apparent attempt to force her to perform oral sex. He also grabbed her breasts. J.K. fought him off, and Mohamed resumed the trip to Rodney's house. At some point during the ride, J.K. borrowed Mohamed's phone and tried to call Rodney. She dialed the number over 50 times, but he did not answer.

         {¶ 7} The taxicab eventually made it to its destination. J.K. immediately got out of the cab, went to the house, and began to bang on the windows. Mohamed waited in the cab. When Rodney came to the door, J.K. told him that Mohamed had just tried to rape her. At trial, Rodney described J.K. as "panicky, distraught, [and] scared." He yelled at the cabdriver from the door, but Mohamed sped away.

         {¶ 8} According to Mohamed's counsel, J.K.'s story was one big lie. Throughout trial, he sought to undermine her credibility. He asserted that J.K. was highly intoxicated that night and that she and her friend had taken a cab because she was too drunk to remember where she had parked her car. He brought out in cross-examination that Mohamed had allowed J.K. to use his cell phone to call her ex-boyfriend. He argued that J.K. had multiple opportunities to leave the cab during the evening, but had not done so. And he pointed out that J.K. had not sought treatment following the incident-behavior that counsel claimed was inconsistent with someone who had been sexually assaulted.

         {¶ 9} The jury believed J.K. and found Mohamed guilty of the five felony counts on which he had been charged-one count of gross sexual imposition, one count of attempted gross sexual imposition, two counts of kidnapping, and one count of attempted rape.

         {¶ 10} On appeal, the Eighth District Court of Appeals reversed one of the kidnapping convictions.[1] The court noted that kidnapping is ordinarily a felony of the first degree but is a felony of the second degree if the offender "releases the victim in a safe place unharmed." 2016-Ohio-1116, ¶ 35, citing R.C. 2905.01(C)(1). The court concluded that Mohamed had released J.K. in a safe place unharmed, relying on its determination that "psychological harm 'is not considered' for purposes of the statutory analysis." Id. at ¶ 36-37, quoting State v. Wright, 2013-Ohio-1424, 990 N.E.2d 615, ¶ 21 (7th Dist), citing State v. Henderson, 10th Dist. Franklin No. 85AP-830, 1986 WL 4366 (Apr. 8, 1986). "Arguably all victims of crime are harmed in some fashion, " the court explained, "but to apply the statute from that perspective renders the statute meaningless." Id. Having determined that psychological harm was not to be considered, the court found no evidence that Mohamed had harmed J.K. Id. at ¶ 37. The court concluded that defense counsel had been...

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