State v. Mohamed, 102398
| Decision Date | 17 March 2016 |
| Docket Number | No. 103602,No. 102398,102398,103602 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. SHUAIB A. HAJI MOHAMED DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
ATTORNEYS FOR APPELLANT
Marcus S. Sidoti
Jordan & Sidoti, L.L.P.
50 Public Square, Suite 1900
Cleveland, OH 44113
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
Timothy J. McGinty
Cuyahoga County Prosecutor
Kelly N. Mason
Assistant County Prosecutor
1200 Ontario Street
Cleveland, OH 44113
{¶1} A jury found defendant-appellant Shuaib Haji Mohamed guilty of gross sexual imposition, attempted gross sexual imposition, two counts of kidnapping, and one count of attempted rape. The basis for the convictions was that Mohamed, a cab driver, sexually assaulted one of his fares. The eight assignments of error in this appeal fall under four categories: speedy trial, the admission of evidence, the sufficiency and weight of the evidence, and sentencing.
{¶2} Because it is potentially dispositive, we begin with Mohamed's seventh assignment of error in which he complains that he was denied both his statutory and constitutional speedy trial rights.
{¶3} R.C. 2945.71(C) states that a person accused of committing a felony shall be brought to trial within 270 days. If the accused is being held in jail in lieu of bail, the "triple-count" provisions of R.C. 2945.71(E) apply, meaning that the state only has 90 days in which to bring the person to trial. If the accused makes a prima facie showing that the speedy trial time has lapsed, the burden shifts to the state to show that the speedy trial time period was tolled or extended under R.C. 2945.72. Brecksville v. Cook, 75 Ohio St.3d 53, 55-56, 661 N.E.2d 706 (1996). Continuances granted at the defendant's request will toll the speedy trial. See R.C. 2945.72(H).
{¶4} As trial commenced, defense counsel told the court that Mohamed had been held in jail without bail "in excess of 120 days," but gave no specific calculation of time. The state informed the court that Mohamed had been jailed without bail on May 26, 2014, and trial did not commence until October 1, 2014. It then rebutted Mohamed's prima facie showing of a speedy trial violation by proving that a number of continuances tolling the speedy trial time were ordered upon Mohamed's request. It calculated that the continuances requested by Mohamed left 59 days on the speedy trial time.
{¶5} In response to the state's tolling argument, defense counsel said that a number of "requests" for continuances were incorrectly docketed as defense requests. When asked to specify which continuances were not granted at Mohamed's request, defense counsel replied, "[r]eally, anything past the second pretrial, I would suggest." When the court asked again which of the continuances were not requested by the defense, counsel replied, Although not convinced of Mohamed's argument, the court allowed him to file a brief in support of the speedy trial claim. When that brief was filed, it contained no more specificity than did defense counsel's argument in open court — it simply said that certain unidentified continuances were wrongly charged to the defendant and claimed that this was a common occurrence in the court of common pleas. The court denied the motion to dismiss.
{¶6} Mohamed's argument on appeal is no more detailed — it again states only that the court's journal incorrectly docketed the continuances as being made at his request. At no point has Mohamed offered anything to show that the continuances were wrongly attributed to him. What is more, the record shows that Mohamed did not respond to the state's July 2014 request for discovery (he claimed that he had no discovery to give to the state, so no response was necessary). That failure to respond tolled the speedy trial time from mid-August to the October 1, 2014 trial date. See State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 26. By itself, that single continuance would have tolled the trial time such that no statutory speedy trial violation occurred.
{¶7} Mohamed's argument that the court denied him his constitutional right to a speedy trial is likewise without merit.
{¶8} In addition to the statutory speedy trial right provided in R.C. 2945.71, the Sixth Amendment to the United States Constitution states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court found that the constitutional right to a speedy trial does not turn on defined time limitations, but on a balancing of factors like the length of the delay before trial, the reason for the delay, the vigor with which the defendant has asserted his speedy trial rights, and the degree of prejudice to the defendant. Id. at 530. {¶9} Mohamed fails the Barker test on all counts. A delay of one year in bringing an accused to trial is "unreasonable enough" to implicate the Sixth Amendment speedy trial right. Doggett v. United States, 505 U.S. 647, 651, 120 L.Ed.2d 520, 112 S.Ct. 2686 (1992), fn. 1. The delay in this case was only 39 days. There was ample reason for the delay in the form of continuances granted at Mohamed's request and his failure to respond to the state's motion for discovery. As for the vigor with which Mohamed asserted his speedy trial right, he waited until the day of trial to make a motion to dismiss and failed to support his motion with any facts. Finally, Mohamed has made no showing of any prejudice from the alleged delay in bringing him to trial. No constitutional speedy trial violation occurred.
{¶10} Mohamed's fifth and sixth assignments of error contest the sufficiency and weight of the evidence.
{¶11} The Due Process Clause of the Fourteenth Amendment to the United States Constitution "protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The relevant question when reviewing a claim that the state failed to present sufficient evidence of guilt "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. This is a highly deferential standard of review because "it is the responsibility of the [trier of fact] — not the court — to decide what conclusions should be drawn from evidence admitted at trial." Cavazos v. Smith, 565 U.S. ___, 132 S.Ct. 2, 3, 181 L.Ed.2d 311 (2011).
{¶12} The state's evidence showed that after a night out drinking, the victim and a girlfriend were picked up as fares in a taxi driven by Mohamed. As they were riding in the taxi, the two women began to argue, culminating in a backseat fistfight. During the fight, the contents of the victim's purse spilled on the floor of the taxi, causing her to lose her cell phone. When they reached their destination, the victim paid the fare with her credit card. She left the taxi, only to have Mohamed pull the taxi alongside her to say that her credit card had been denied. Having no cash, the victim told Mohamed that she had a debit card in her apartment that needed to be activated, but that she would need to go to a payphone to activate it because she could not find her phone. When the victim returned to the taxi, she had changed her clothing "because of some of the comments [Mohamed] had been making on the way."
{¶13} The victim rode in the passenger seat of the taxi. They went to a gas station where the victim was able to use a telephone, activate the new card, and make a cash withdrawal from an automatic teller machine. At this point, the victim discovered that she forgot to bring the keys to her apartment. Being locked out of her apartment, she used Mohamed's cell phone to call her former boyfriend. When there was no answer, Mohamed began driving her to the former boyfriend's house. En route, he began making comments of a sexual nature to the victim, then grabbed her breasts and thighs. At one point, he pulled the taxi over on the interstate highway, exposed his penis, and attempted to force the victim's head on it. All the time, the victim was surreptitiously trying to call the former boyfriend using Mohamed's cell phone. With his sexual advances denied, Mohamed drove the victim to the former boyfriend's house. The victim exited the car and memorized the taxi's license plate number before screaming for assistance. The former boyfriend heard the screams for help and came outside, yelling at Mohamed. Mohamed sped away.
{¶14} We can summarily reject Mohamed's assertion that the state failed to offer forensic evidence to corroborate the victim's accusations. Corroboration goes to the credibility of the victim's accusations, not their legal sufficiency. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997).
{¶15} Although Mohamed argues that the state failed to prove both the gross sexual imposition and attempted gross sexual imposition counts, his appellate brief addresses only the gross sexual imposition charge contained in Count 2 of the indictment. That count charged Mohamed with grabbing the victim's breasts and vaginal area. Mohamed argues that the state failed...
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