State v. Abdus-Salaam
This text of 2024 Ohio 2773 (State v. Abdus-Salaam) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as State v. Abdus-Salaam, 2024-Ohio-2773.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2024 CAA 020012 NASEEM ABDUS-SALAAM : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Apeal from the Delaware County Court of Common Pleas, Case No. 23-CRI-10- 0601
JUDGMENT: Reversed in part; and remanded
DATE OF JUDGMENT ENTRY: July 22, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL CHRISTOPHER BAZELEY Delaware County Prosecutor 9200 Montgomery Road, Ste. 8A BY: KATHERYN L. MUNGER Cincinnati, OH 45242 Assistant Prosecutor 145 North Union Street, 3rd Floor Delaware, OH 43015 Delaware County, Case No. 24 CAA 02 0012 2
Gwin, J.
{¶1} Defendant-appellant Naseem Abdus-Salaam [“Abdus-Salaam”] was
convicted after a jury trial at which he represented himself of Inducing Panic, Menacing
by Stalking, Intimidation of an Attorney, Victim or Witness in a Criminal Case, and sixteen
counts of violating a Protection Order.
{¶2} On appeal, Abdus-Salaam argues that the trial judge admitted evidence
of his prior bad acts in violation of Evid.R. 404(B); he has been prejudiced by the trial
judge’s failure to merge his convictions for Menacing by Stalking and Violating a
Protection Order; and, the trial judge failed to properly advise him of the R.C.
2929.19(B)(2)(c) non-life felony sentencing factors as required by the Reagan Tokes
statute.
{¶3} Because we do not find plain error in the admission of Abdus-Salaam’s
past conduct or in the trial judge’s sentencing him for Menacing by Stalking and
Violating a Protection Order, we affirm the judgment of the Delaware County Court of
Common Pleas. However, because we also find that the trial judge failed to properly
advise him of all of the R.C. 2929.19(B)(2)(c) non-life felony sentencing factors as
required by the Reagan Tokes statute, we remand this matter solely for purposes of
providing the proper R.C. 2929.19(B)(2)(c) notifications.
Facts and Procedural History
Case Number 22CR-I- 05-0282
{¶4} On June 30, 2022, in Delaware County Court of Common Pleas, Case
Number 22CR-I- 05-0282, Abdus-Salaam was Indicted on one count of Inducing Panic in
violation of R.C. 2917.31(A)(1) / 2917.31(C)(5), a felony of the second degree. Delaware County, Case No. 24 CAA 02 0012 3
{¶5} On July 14, 2022, the state filed a Notice of Intent to Introduce Evidence
pursuant to Evid. R. 404(B) seeking to introduce evidence of a second bomb threat on
May 5, 2022 and April 2022 telephone harassment of E.R. [Docket Entry No. 32].
{¶6} On July 18, 2022, Abdus-Salaam, through appointed counsel, filed a written
Not Guilty by Reason of Insanity plea (“NGRI”) and a Motion for a Competency
Evaluation. [Docket Entry No. 34; 36]. The trial judge granted the motion for a competency
evaluation by Judgment Entry filed July 23, 2022. [Docket Entry No. 41]. By Judgment
Entry filed September 6, 2022, Abdus-Salaam was found competent to stand trial. [Docket
Entry No. 46]. On October 3, 2022, Abdus-Salaam filed a motion to withdraw his NGRI
plea, which was granted by Judgment Entry filed October 18, 2022. [Docket Entry No.
64].
{¶7} On December 21, 2022, the state filed a Notice of Intent to Introduce
Certified Domestic Records of a Regularly Conducted Activity Pursuant to Evid.R.
902(11) seeking to introduce records from AT&T and TextMe Inc. [Docket Entry No. 72].
{¶8} On January 30, 2023, the state filed a Motion to Revoke Bond, alleging that
Abdus-Salaam failed to engage in drug and alcohol assessment and had repeated GPS
monitoring violations. [Docket Entry No. 85]. Bond was revoked by Judgment Entry filed
January 31, 2023. [Docket Entry No. 88].
{¶9} On February 7, 2023 the trial judge filed a Judgment Entry that Abdus-
Salaam failed to appear for his February 7, 2023 jury trial. A show-cause hearing was
scheduled and a warrant for Abdus-Salaam’s arrest was issued. [Docket Entry Nos. 91,
92]. Delaware County, Case No. 24 CAA 02 0012 4
{¶10} On motion of the state, the trial court dismissed Case No. 22CR-I-05-0282
without prejudice by Judgment Entry filed February 24, 2023. [Docket Entry No. 99].
Case Number 23CR-I-02-0089
{¶11} On February 16, 2023, in Delaware County Court of Common Pleas, Case
Number 23CR-I-02-0089, Abdus-Salaam was indicted for:
Count One: Inducing Panic in violation of R.C. 2917.31(A)(1)/
2917.31(C)(5), a felony of the second degree;
Count Two: Menacing by Stalking in violation of R.C.
2903.211(A)(2)(a) / 2903.211(B)(2)(b), a felony of the fourth degree;
Count Three: Intimidation of an Attorney, Victim or Crime Witness in
a Criminal Case, in violation of R.C. 2921.04(B)(2) / 2921.04(D), a felony of
the third degree;
Count Four: Violating a Protection Order, (Nov. 22, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Five: Violating a Protection Order, (Dec. 26, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Six: Violating a Protection Order, (Dec. 29, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Seven: Violating a Protection Order, (Dec. 31, 2022) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Eight: Violating a Protection Order, (Jan. 6, 2023) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree; Delaware County, Case No. 24 CAA 02 0012 5
Count Nine: Violating a Protection Order, (Jan. 8, 2023) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Ten: Failure to Appear as Required by Recognizance (Feb. 7,
2022), in violation of R.C. 2937.99(A) / 2937.99(B) a felony of the fourth
degree.
{¶12} By Judgment Entry filed February 24, 2023, the trial judge ordered all
discovery and court filings in Case Number 22CR-I-05-0282 to be transferred to Case
Number 23CR-I-02-0089. [Docket Entry No. 8].
{¶13} On August 7, 2023, the trial judge granted appointed counsel’s motion to
withdraw as counsel for Abdus-Salaam, and appointed new counsel. [Docket Entry No.
47].
{¶14} On August 9, 2023, the state filed a motion to restrict Abdus-Salaam’s jail
telephone privileges alleging that he was attempting to contact the victim, E.R., through
various means. [Docket Entry No. 50]. Abdus-Salaam, through counsel filed a
Memorandum in Opposition to the state’s motion on August 23, 2023. [Docket Entry No.
52]. Abdus-Salaam argued that there have been no allegations that he has attempted to
contact the victim since he was incarcerated; therefore, he argued, such a restriction
would amount to cruel and unusual punishment. The trial judge denied the state’s motion
without prejudice by Judgment Entry filed August 25, 2023. [Docket Entry No. 53].
{¶15} By Judgment Entry filed November 7, 2023, the trial judge granted the
state’s motion to dismiss the case without prejudice. [Docket Entry No. 66).
Case Number 23CR-I-10-0601 Delaware County, Case No. 24 CAA 02 0012 6
{¶16} On October 12, 2023, in Delaware County Court of Common Pleas, Case
Number 23CR-I-10-0601, Abdus-Salaam was indicted for:
Count One: Inducing Panic in violation of R.C.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Abdus-Salaam, 2024-Ohio-2773.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2024 CAA 020012 NASEEM ABDUS-SALAAM : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Apeal from the Delaware County Court of Common Pleas, Case No. 23-CRI-10- 0601
JUDGMENT: Reversed in part; and remanded
DATE OF JUDGMENT ENTRY: July 22, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL CHRISTOPHER BAZELEY Delaware County Prosecutor 9200 Montgomery Road, Ste. 8A BY: KATHERYN L. MUNGER Cincinnati, OH 45242 Assistant Prosecutor 145 North Union Street, 3rd Floor Delaware, OH 43015 Delaware County, Case No. 24 CAA 02 0012 2
Gwin, J.
{¶1} Defendant-appellant Naseem Abdus-Salaam [“Abdus-Salaam”] was
convicted after a jury trial at which he represented himself of Inducing Panic, Menacing
by Stalking, Intimidation of an Attorney, Victim or Witness in a Criminal Case, and sixteen
counts of violating a Protection Order.
{¶2} On appeal, Abdus-Salaam argues that the trial judge admitted evidence
of his prior bad acts in violation of Evid.R. 404(B); he has been prejudiced by the trial
judge’s failure to merge his convictions for Menacing by Stalking and Violating a
Protection Order; and, the trial judge failed to properly advise him of the R.C.
2929.19(B)(2)(c) non-life felony sentencing factors as required by the Reagan Tokes
statute.
{¶3} Because we do not find plain error in the admission of Abdus-Salaam’s
past conduct or in the trial judge’s sentencing him for Menacing by Stalking and
Violating a Protection Order, we affirm the judgment of the Delaware County Court of
Common Pleas. However, because we also find that the trial judge failed to properly
advise him of all of the R.C. 2929.19(B)(2)(c) non-life felony sentencing factors as
required by the Reagan Tokes statute, we remand this matter solely for purposes of
providing the proper R.C. 2929.19(B)(2)(c) notifications.
Facts and Procedural History
Case Number 22CR-I- 05-0282
{¶4} On June 30, 2022, in Delaware County Court of Common Pleas, Case
Number 22CR-I- 05-0282, Abdus-Salaam was Indicted on one count of Inducing Panic in
violation of R.C. 2917.31(A)(1) / 2917.31(C)(5), a felony of the second degree. Delaware County, Case No. 24 CAA 02 0012 3
{¶5} On July 14, 2022, the state filed a Notice of Intent to Introduce Evidence
pursuant to Evid. R. 404(B) seeking to introduce evidence of a second bomb threat on
May 5, 2022 and April 2022 telephone harassment of E.R. [Docket Entry No. 32].
{¶6} On July 18, 2022, Abdus-Salaam, through appointed counsel, filed a written
Not Guilty by Reason of Insanity plea (“NGRI”) and a Motion for a Competency
Evaluation. [Docket Entry No. 34; 36]. The trial judge granted the motion for a competency
evaluation by Judgment Entry filed July 23, 2022. [Docket Entry No. 41]. By Judgment
Entry filed September 6, 2022, Abdus-Salaam was found competent to stand trial. [Docket
Entry No. 46]. On October 3, 2022, Abdus-Salaam filed a motion to withdraw his NGRI
plea, which was granted by Judgment Entry filed October 18, 2022. [Docket Entry No.
64].
{¶7} On December 21, 2022, the state filed a Notice of Intent to Introduce
Certified Domestic Records of a Regularly Conducted Activity Pursuant to Evid.R.
902(11) seeking to introduce records from AT&T and TextMe Inc. [Docket Entry No. 72].
{¶8} On January 30, 2023, the state filed a Motion to Revoke Bond, alleging that
Abdus-Salaam failed to engage in drug and alcohol assessment and had repeated GPS
monitoring violations. [Docket Entry No. 85]. Bond was revoked by Judgment Entry filed
January 31, 2023. [Docket Entry No. 88].
{¶9} On February 7, 2023 the trial judge filed a Judgment Entry that Abdus-
Salaam failed to appear for his February 7, 2023 jury trial. A show-cause hearing was
scheduled and a warrant for Abdus-Salaam’s arrest was issued. [Docket Entry Nos. 91,
92]. Delaware County, Case No. 24 CAA 02 0012 4
{¶10} On motion of the state, the trial court dismissed Case No. 22CR-I-05-0282
without prejudice by Judgment Entry filed February 24, 2023. [Docket Entry No. 99].
Case Number 23CR-I-02-0089
{¶11} On February 16, 2023, in Delaware County Court of Common Pleas, Case
Number 23CR-I-02-0089, Abdus-Salaam was indicted for:
Count One: Inducing Panic in violation of R.C. 2917.31(A)(1)/
2917.31(C)(5), a felony of the second degree;
Count Two: Menacing by Stalking in violation of R.C.
2903.211(A)(2)(a) / 2903.211(B)(2)(b), a felony of the fourth degree;
Count Three: Intimidation of an Attorney, Victim or Crime Witness in
a Criminal Case, in violation of R.C. 2921.04(B)(2) / 2921.04(D), a felony of
the third degree;
Count Four: Violating a Protection Order, (Nov. 22, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Five: Violating a Protection Order, (Dec. 26, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Six: Violating a Protection Order, (Dec. 29, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Seven: Violating a Protection Order, (Dec. 31, 2022) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Eight: Violating a Protection Order, (Jan. 6, 2023) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree; Delaware County, Case No. 24 CAA 02 0012 5
Count Nine: Violating a Protection Order, (Jan. 8, 2023) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Ten: Failure to Appear as Required by Recognizance (Feb. 7,
2022), in violation of R.C. 2937.99(A) / 2937.99(B) a felony of the fourth
degree.
{¶12} By Judgment Entry filed February 24, 2023, the trial judge ordered all
discovery and court filings in Case Number 22CR-I-05-0282 to be transferred to Case
Number 23CR-I-02-0089. [Docket Entry No. 8].
{¶13} On August 7, 2023, the trial judge granted appointed counsel’s motion to
withdraw as counsel for Abdus-Salaam, and appointed new counsel. [Docket Entry No.
47].
{¶14} On August 9, 2023, the state filed a motion to restrict Abdus-Salaam’s jail
telephone privileges alleging that he was attempting to contact the victim, E.R., through
various means. [Docket Entry No. 50]. Abdus-Salaam, through counsel filed a
Memorandum in Opposition to the state’s motion on August 23, 2023. [Docket Entry No.
52]. Abdus-Salaam argued that there have been no allegations that he has attempted to
contact the victim since he was incarcerated; therefore, he argued, such a restriction
would amount to cruel and unusual punishment. The trial judge denied the state’s motion
without prejudice by Judgment Entry filed August 25, 2023. [Docket Entry No. 53].
{¶15} By Judgment Entry filed November 7, 2023, the trial judge granted the
state’s motion to dismiss the case without prejudice. [Docket Entry No. 66).
Case Number 23CR-I-10-0601 Delaware County, Case No. 24 CAA 02 0012 6
{¶16} On October 12, 2023, in Delaware County Court of Common Pleas, Case
Number 23CR-I-10-0601, Abdus-Salaam was indicted for:
Count One: Inducing Panic in violation of R.C. 2917.31(A)(1) /
Count Two: Menacing by Stalking (May 4, 2022 through August 1,
2023) in violation of R.C. 2903.211(A)(1) / 2903.211(B)(2)(b), a felony of the
fourth degree;
Count Three: Menacing by Stalking (May 4, 2022 through August 1,
2023) in violation of R.C. 2903.211(A)(1) / 2903.211(B)(2)(e), a felony of the
Count Four: Intimidation of an Attorney, Victim or Crime Witness in a
Criminal Case (May 4, 2022 through August 1, 2023), in violation of R.C.
2921.04(B)(2) / 2921.04(D), a felony of the third degree;
Count Five: Intimidation of an Attorney, Victim or Crime Witness in a
Criminal Case (May 4, 2022 through August 1, 20221), in violation of R.C.
2921.04(B)(1) / 2921.04(D), a felony of the third degree;
Count Six: Violating a Protection Order, (Nov. 22, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Seven: Violating a Protection Order, (Nov. 22, 2022) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(3)(a), a felony of the third
degree;
1 By Judgment Entry filed January 9, 2024 the trial judge granted the state’s motion to amend the
date range on Count Five to May 4, 2022 through August 1, 2023 and Count Nineteen to July 10, 2023. Delaware County, Case No. 24 CAA 02 0012 7
Count Eight: Violating a Protection Order, (Dec. 26, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Nine: Violating a Protection Order, (Dec. 26, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(3)(a), a felony of the third degree;
Count Ten: Violating a Protection Order, (Dec. 29, 2022) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Eleven: Violating a Protection Order, (Dec. 29, 2022) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(3)(a), a felony of the third
Count Twelve: Violating a Protection Order, (Dec. 31, 2022) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Thirteen: Violating a Protection Order, (Dec. 31, 2022) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(3)(a), a felony of the third
Count Fourteen: Violating a Protection Order, (Jan. 6, 2023) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Fifteen: Violating a Protection Order, (Jan. 6, 2023) in violation
of R.C. 2919.27(A)(1) / 2919.27(B)(3)(a), a felony of the third degree;
Count Sixteen: Violating a Protection Order, (Jan. 8, 2023) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Seventeen: Violating a Protection Order, (Jan. 8, 2023) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(3)(a), a felony of the third
degree; Delaware County, Case No. 24 CAA 02 0012 8
Count Eighteen: Violating a Protection Order, (July 10, 2023) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Nineteen: Violating a Protection Order, (July 10, 20222) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(3)(a), a felony of the third
Count Twenty: Violating a Protection Order, (July 20, 2023) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(4), a felony of the third degree;
Count Twenty-one: Violating a Protection Order, (July 20, 2023) in
violation of R.C. 2919.27(A)(1) / 2919.27(B)(3)(a), a felony of the third
Count Twenty-two: Failure to Appear as Required by Recognizance
(Feb. 7, 2022), in violation of R.C. 2937.99(A) / 2937.99(B), a felony of the
fourth degree.
{¶17} By Judgment Entry filed October 31, 2023, the trial judge ordered all
discovery and court filings in Case Number 23CR-I-02-0089 to be transferred to Case
Number 23CR-I-10-0601. [Docket Entry No. 36].
{¶18} On October 31, 2023, the state filed a Notice of Intent to Introduce Evidence
pursuant to Evid.R. 404(B) seeking to introduce evidence of Abdus-Salaam’s past
conduct with the victim. [Docket Entry No. 33].
{¶19} On November 3, 2023, the state filed an Amended Notice of Intent to
Introduce Certified Domestic Records of a Regularly Conducted Activity Pursuant to
Evid.R. 902(11) seeking to introduce records from AT&T and TextMe Inc.
2 See note 1. Delaware County, Case No. 24 CAA 02 0012 9
{¶20} On November 3, 2023, appointed counsel for Abdus-Salaam filed a trial
brief.
{¶21} On November 6, 2023, the trial judge held a hearing to address Abdus-
Salaam’s request to represent himself. The trial judge engaged in a lengthy colloquy
about the dangers of self-representation. Abdus-Salaam then knowingly waived his right
to counsel and represented himself at trial, with standby counsel assigned. T., Nov. 6,
2023 at 8-14. A written waiver of counsel signed by Abdus-Salaam was filed on Nov. 7,
2023. [Docket Entry No. 43].
{¶22} By Judgment Entry filed November 9, 2023, the trial judge granted Abdus-
Salaam’s motion and continued the trial to January 2, 2024. [Docket Entry No. 45].
{¶23} On December 13, 2023, Abdus-Salaam filed a handwritten, pro se motion
to continue the trial date. [Docket Entry No. 70]. The state opposed the motion by
Memorandum filed December 15, 2023. [Docket Entry No. 71]. By Judgment Entry filed
December 20, 2023, the trial judge denied the motion. [Docket Entry No. 72]. However,
by Judgment Entry filed December 29, 2023, the trial judge continued the trial date to
January 9, 2023 because stand-by counsel for Abdus-Salaam was unavailable on
January 2, 2023. [Docket Entry No. 74].
{¶24} By Judgment Entry filed January 9, 2024, the trial judge granted the state’s
motion to amend the date range on Count Five of the Indictment to May 4, 2022 through
August 1, 2023 and Count Nineteen of the Indictment to July 10, 2023.
{¶25} A jury trial commenced on January 9, 2024. The evidence presented during
the jury trial is as follows.
Hayes High School Receives Bomb Threats Delaware County, Case No. 24 CAA 02 0012 10
{¶26} On May 4, 2022, the Delaware City Schools, Hayes High School
administrative secretary answered the main phone line and heard a male demand “$2,000
(sic.) taken to Walmart by 9:00” or a bomb would go off inside the school building. 1T. at
121; 122.3 Minutes later, the same male called the same main phone line and said "2
million. 2 million.” Id. at 123; State’s Exhibit 1. The second call was recorded by the police.
The school was evacuated. 1T. at 124; 129. Caller ID displayed the phone number of the
threatening phone calls. Id. at 122; 130. Over the course of the next several hours, the
phone number was linked to a TextMe account; however, no information identifying the
user was obtained.
{¶27} The next morning on May 5, 2022, the same phone number with the same
male voice called again to the main line twice and made additional bomb threats. 2T. at
282. The police again requested user and subscriber information from TextMe 4. Id. at
282. TextMe, LLC returned more detailed basic user information that included text and
call history from the application. 2T. at 285. The text and call history showed that the
same phone number sent multiple texts and made multiple phone calls to another
specified phone number on March 31, 2022. Id. 286. Law enforcement learned that phone
number was associated with a Delaware Police Department police report taken on April
11, 2022 which involved an aggravated menacing allegation. Id. 286; State’s Exhibit 23.
The owner of that phone number, E.R., was the alleged victim of ongoing threats from
her ex-boyfriend, Abdus-Salaam. Id. at 286-287.
3 For clarity, the transcript of Abdus-Salaam’s jury trial will be referred to as “__T.__” signifying the
volume and page number. 4 TextMe is a downloadable application that phone users can use to make calls or send text
messages. 2T. at 283. The user can request a phone number, and one will be generated for the user to use when utilizing the application. Id. Delaware County, Case No. 24 CAA 02 0012 11
{¶28} The High School was placed on a heighten security state during E.R.’s
graduation because of a post by Abdus-Salaam on social media saying that he was
“Gonna be at graduation with either an air horn or a bull horn.” 1T. at 133. And, then a
separate photograph of Abdus-Salaam holding a rifle. 1T. at 11; 2T. at 238 -239; State’s
Exhibit 32.
Detectives Discover the Bomb Threats Are Related to Another Case
Involving Abdus-Salaam
{¶29} Detective Michael Bolen of the Delaware Police Department met with E.R.
in January 2023 and learned that Abdus-Salaam was continuing to send threatening and
harassing communications to her. 2T. at 289. During the forensic examination of E.R.’s
phone, law enforcement found “thousands and thousands of lines of communication from
[Abdus-Salaam] to [E.R.] and located approximately 55 different phone numbers that he
used to communicate with her.” Id. at 289; 291; 292. The same phone number used to
make the bomb threat was used to communicate with E.R. from March through May 2022.
Id. at 294-295. That phone number had been assigned to Abdus-Salaam on March 30,
2022. Id. at 295.
{¶30} Sometime in May or June, 2022, Detective Bolen interviewed Abdus-
Salaam at the hospital after he had been shot in an unrelated incident. Id. 293; 245-247;
State’s Exhibit 305. Abdus-Salaam repeatedly denied making the bomb threats. State’s
Exhibit 30. He further denied that he even had a cell phone during that time. Id.
{¶31} Detective Bolen testified that Abdus-Salaam was served with a protection
order involving E.R. on June 21, 2022. 2T. at 295. However, Abdus-Salaam continued to
5 No date is contained in or on State’s Exhibit 30 establishing the specific date when the meeting
between Abdus-Salaam and Detective Bolen took place. Delaware County, Case No. 24 CAA 02 0012 12
contact E.R. Id. As a result, Detective Bolen testified that Abdus-Salaam was charged
with three counts of Violation of a Protection Order. 2T. at 296; State’s Exhibit 25. Abdus-
Salaam was convicted and ordered to abide by the Civil Protection Order. Id.
{¶32} Through his contact with Abdus-Salaam, Detective Bolen was able to
identify his voice as the caller of the bomb threats. 2T. at 291-292.
E.R. Testifies to Abdus-Salaam’s Harassment
{¶33} E.R. is nineteen years old. She and Abdus-Salaam had a three to four-year
dating relationship. 2T. at 197; 199. She was a sophomore or junior and Abdus-Salaam
was eighteen or nineteen years old at the time. Id. at 201. The couple would spend most
of their days together. Id. at 202. However, after approximately six months, the
relationship began to sour. Id. E.R. felt Abdus-Salaam was too controlling and the couple
began to fight. Id. at 202-203. E.R. testified that Abdus-Salaam began threatening her,
her family and her friends. Id. at 203-205. She further testified that Abdus-Salaam would
injure himself if she threatened to end the relationship. 2T. at 215-216; State’s Exhibit 18.
{¶34} E.R. eventually obtained a Civil Protection Order in Delaware County Court
of Common Pleas, Case Number 22 DV H 04 0232. 2T. at 223. However, Abdus-Salaam
continued to threaten E.R. using various means. 2T. at 227. E.R. would speak to Abdus-
Salaam during this time, and admitted that she would also contact him during this time.
Id. at 227-228; 249; 265. E.R. identified voicemails left by Abdus-Salaam from the jail on
July 20, 2023 and July 23, 2023. Id. at 228-229; State’s Exhibit 5 and 6. Abdus-Salaam
also sent letters to E.R. while he was in jail. Id. at 229-232. In a letter dated March 27,
2023, Abdus-Salaam asked E.R. not to talk to the prosecution and to not tell the truth. Id.
at 232; State’s Exhibit 7-A. Abdus-Salaam’s text messages from December 26, 2022 Delaware County, Case No. 24 CAA 02 0012 13
threatens E.R. that he will choke her, beat her face in with a tire iron, beat her whole
family’s face in, and shoot her brains out. 2T. at 315-319; State’s Exhibit 26-D, 26-E. He
further texted E.R., “On your kids, I’m going to murder you next to your kids and make
them watch.” 2T. at 319; State’s Exhibit 26-E. On December 31, 2022, Abdus-Salaam
sent a text to E.R. about beating her face in and putting a Glock in her mouth. Id. at 323-
324; State’s Exhibit 26-G. On January 5, 2023, Abdus-Salaam chastised E.R. for hanging
up on him telling her, “Today is the day I break your fucking jaw.” 2T. at 325-326; State’s
Exhibit 26-H. On January 8, 2023, Abdus-Salaam texted E.R. “it gonna get worse for your
fucking family.” 2T. at 327; State’s Exhibit 26-I.
{¶35} E.R. testified that it was Abdus-Salaam’s voice calling the high school and
making the bomb threats. 2T. at 226. E.R. admitted that she told Abdus-Salaam that she
might ask to have the Protection Order dropped. 2T. at 248. She further admitted that she
was with Abdus-Salaam around the time that he turned himself into the police. Id. at 255-
256.
{¶36} State’s Exhibit 4-B is a telephone call Abdus-Salaam made to E.R. from the
jail on February 19, 2023 in which he tells her to say that she and Abdus-Salaam got
married and their religion does not believe in protection orders. He further told E.R. to say
she was pressured to obtain the protection order and also pressured to say that he called
in the bomb threat to the high school.
Abdus-Salaam Testifies at Trial
{¶37} Abdus-Salaam took the stand in his own defense. He told the jury, Delaware County, Case No. 24 CAA 02 0012 14
First thing I want to say is that I am totally guilty of Violation of
Protection Orders, so I’m going to stay off that topic and go to - - and go to
– the first thing I want to talk about is Inducing Panic.
3T. at 363. Abdus-Salaam argued that the state did not prove the call to the high school
came from him or his phone. Id. at 363-364.
{¶38} Abdus-Salaam attempted to paint a picture for the jury that E.R. was not
distressed and did not feel threatened by him because she continued to accept his phone
calls, exchanged text messages with him, and even came to visit him at his parent’s house
and when he was in the hospital. Id. at 368. Abdus-Salaam told the jury that E.R. had
taken out a protection order in the past, but had dropped it. Id. at 366 -367. He believed
that she would do the same in this case, so that is why he continued to have contact with
her. Id. Abdus-Salaam further testified that he never told E.R. not to testify or that he
would harm her if she did. Id. at 369. He stated that he was not the only aggressor in the
relationship. Id.
The Jury Finds Abdus-Salaam Guilty
{¶39} On January 11, 2024, the state dismissed Count Twenty-two of the
Indictment (Failure to Appear). The jury convicted Abdus-Salaam of the remaining
charges. Sentencing was deferred and counsel was appointed to represent Abdus-
Salaam during the sentencing hearing. 3T. at 489-490.
Abdus-Salaam is Sentenced
{¶40} Sentencing took place on January 29, 2024. The trial judge merged Count
Two [Menacing by Stalking] and Count Three [Menacing by Stalking]. Sent. T., Jan. 29,
2024 at 6. The state elected to proceed on Count Three. Id. The trial judge also merged Delaware County, Case No. 24 CAA 02 0012 15
Count Four [Intimidation] and Count Five [Intimidation]. Id. at 5-6. The state elected to
proceed on Count Five. Id. at 7. The trial judge further merged Count Six [Violating a
Protection Order] with Count Seven [Violating a Protection Order], Count Eight [Violating
a Protection Order] with Count Nine [Violating a Protection Order], Count Ten [Violating
a Protection Order] with Count Eleven [Violating a Protection Order], Count Twelve
[Violating a Protection Order] with Count Thirteen [Violating a Protection Order], Count
Fourteen [Violating a Protection Order] with Count Fifteen [Violating a Protection Order],
Count Sixteen [Violating a Protection Order] with Count Seventeen [Violating a Protection
Order], Count Eighteen [Violating a Protection Order] with Count Nineteen [Violating a
Protection Order], and Count Twenty [Violating a Protection Order] with Count Twenty-
one [Violating a Protection Order]. Id at 7. The state chose to proceed on the even
numbered counts. Id.
{¶41} During the hearing, the state introduced telephone calls made January 12,
2024 from the jail by Abdus-Salaam to a family member to show a lack of remorse. Sent.
T. at 13-14;15. The calls were played for the trial judge. Id.
{¶42} The trial judge imposed the following sentence,
Count One – 4 years consecutive
Count Three – 18 months consecutive
Count Five – 18 months consecutive
Count Six, Eight, Ten, Twelve, Fourteen, Sixteen, Eighteen and
Twenty – thirty-six months concurrent to each other but consecutive to the
terms imposed in Count One, Three and Five. The stated prison term is an
indefinite term of ten to twelve years. Delaware County, Case No. 24 CAA 02 0012 16
Judgment Entry of Prison Sentence, filed Jan. 30, 2024 at 6.
Assignments of Error
{¶43} Abdus-Salaam raises three Assignments of Error:
{¶44} “I. THE TRIAL COURT PLAINLY ERRED WHEN IT ALLOWED [E.R.] TO
TESTIFY ABOUT ABDUS-SALAAM'S UNRELATED PRIOR BAD ACTS.
{¶45} “II. THE TRIAL COURT FAILED TO MERGE ABDUS-SALAAM'S
CONVICTIONS FOR MENACING BY STALKING AND VIOLATION OF A PROTECTION
ORDER.
{¶46} “III. THE TRIAL COURT FAILED TO PROPERLY ADVISE ABDUS-
SALAAM OF HIS RIGHTS UNDER THE REAGAN TOKES STATUTE.”
I.
{¶47} In his First Assignment of Error, Abdus-Salaam contends that the trial judge
committed plain error by allowing the state to introduce his prior violent acts toward E.R.,
himself and others that occurred before the dates of the conduct alleged in the Indictment.
Standard of Review
{¶48} “To establish plain error, [Abdus-Salaam] must show that an error occurred,
that the error was obvious, and that there is ‘a reasonable probability that the error
resulted in prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis
omitted.) State v. McAlpin, 2022-Ohio-1567, ¶ 66, quoting State v. Rogers, 2015-Ohio-
2459, ¶ 22. Accord State v. Bailey, 2022-Ohio-4407, ¶ 8. These elements are
“conjunctive,” meaning “all three must apply to justify an appellate court’s intervention.”
Bailey at ¶ 9, citing State v. Barnes, 94 Ohio St.3d 21, 27(2002). Intervention by an
appellate court for plain error “is warranted only under exceptional circumstances to Delaware County, Case No. 24 CAA 02 0012 17
prevent injustice.” Id. at ¶ 8, citing State v. Long, 53 Ohio St.2d 91(1978), paragraph three
of the syllabus.
{¶49} The main distinction between plain-error review, which is the standard
employed when a defendant failed to object at trial, and harmless-error review, which is
employed when a defendant did object, is the party that bears the burden. See State v.
Jones, 2020-Ohio-3051, ¶ 17-18. Under plain-error review, the defendant bears the
burden to demonstrate the requirements for review whereas under harmless-error review,
the state bears the burden to demonstrate that the error did not affect the defendant’s
substantial rights. Id. at ¶ 17-18. See, State v. Bond, 2022-Ohio-4150, ¶7.
{¶50} In order to show that an error affected substantial rights, the defendant must
demonstrate “a reasonable probability that the error resulted in prejudice—the same
deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis
deleted.) State v. Rogers, 2015-Ohio-2459, ¶ 22, citing United States v. Dominguez
Benitez, 542 U.S. 74, 81-83, (2004) (construing Fed.R.Crim.P. 52(b), the federal analog
to Crim.R. 52(B)). Bond at ¶ 22.
Evid.R. 404 – Other Acts Evidence
{¶51} Evidence of a person’s character is generally not admissible to prove that
the person acted in conformity therewith on a particular occasion. Evid.R. 404(A).
Likewise, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” Evid.R. 404(B)
does allow “evidence of the defendant’s other crimes, wrongs, or acts to be admitted for
other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. The key is that the evidence must prove Delaware County, Case No. 24 CAA 02 0012 18
something other than the defendant’s disposition to commit certain acts.” State v.
Hartman, 2020-Ohio-4440, ¶ 22; State v. Knuff, 2024-Ohio-902, ¶115.
{¶52} When evidence is challenged as inadmissible other-acts evidence, a trial
court must perform a three-step analysis:
The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the accused
in order to show activity in conformity therewith or whether the other acts
evidence is presented for a legitimate purpose, such as those stated in
Evid.R. 404(B). The third step is to consider whether the probative value of
the other acts evidence is substantially outweighed by the danger of unfair
prejudice. See Evid.R. 403.
State v. Williams, 2012-Ohio-5695, ¶ 19-20; see also Hartman at ¶ 24-33; Knuff at ¶ 116.
Issue for Appellate Review: Whether but for the admission of his past violent
acts against the victim, himself or others, the jury would have acquitted Abdul-Salaam.
Abdus-Salaam cannot demonstrate error with respect to the testimony about his
prior acts
{¶53} Abdus-Salaam complains that the jury heard evidence that he was violent
toward E.R. from about six months after the couple began dating. He further contends the
jury heard evidence that he was physically violent toward her and that he inflicted injury
upon himself when she would threaten to end the relationship. Evidence was also Delaware County, Case No. 24 CAA 02 0012 19
presented that he fought other individuals, and that he threatened her friends and family.
Abdus-Salaam argues he was not charged with any physical violent conduct in the
Indictment, making such evidence irrelevant and prejudicial.
{¶54} Abdus-Salaam was charge with Menacing by Stalking under R.C.
2903.11(B)(2)(b) [Count Two] and R.C. 2903.11(B)(2)(e) [Count Three]. R.C. 2903.11
provides in relevant part,
(A)(1) No person by engaging in a pattern of conduct shall knowingly
cause another person to believe that the offender will cause physical harm
to the other person or a family or household member of the other person or
cause mental distress to the other person or a family or household member
of the other person…
(B) Whoever violates this section is guilty of menacing by stalking.
…
(2) Menacing by stalking is a felony of the fourth degree if any of the
following applies:
(b) In committing the offense under division (A)(1), (2), or (3) of this
section, the offender made a threat of physical harm to or against the victim,
or as a result of an offense committed under division (A)(2) or (3) of this
section, a third person induced by the offender’s posted message made a
threat of physical harm to or against the victim.
… Delaware County, Case No. 24 CAA 02 0012 20
(e) The offender has a history of violence toward the victim or any
other person or a history of other violent acts toward the victim or any other
person.
{¶55} The legislature has made the offender’s history of violence and violent acts
against the victim, a family or household member, or “any other person” expressly
relevant to the charge by the inclusion of the chosen language in the statute. 6 State v.
Barnes, 2019-Ohio-2634,¶ 35 (3rd Dist.); State v. Braun, 2018-Ohio-3628, ¶27 (11th Dist.);
State v. Granakis, 2017-Ohio-8428, ¶27 (11th Dist.); State v. Teal, 2017-Ohio-7202, ¶24
(6th Dist.). The trial judge will determine if the alleged acts are to remote in time or so
highly prejudicial to the charge that the evidence should be excluded at trial. See, State
v. Kroenberg, 2018-Ohio-1962, ¶31 (8th Dist.) (“whether incidents should be deemed
‘closely related in time’ should be resolved by the trier of fact ‘considering the evidence in
the context of all the circumstances of the case.’ Middletown v. Jones, 167 Ohio App.3d
679, 2006–Ohio–3465, 856 N.E.2d 1003 (12th Dist.), ¶ 10, quoting State v. Honeycutt,
2nd Dist. Montgomery No. 19004, 2002–Ohio–3490, ¶ 26, citing State v. Dario, 106 Ohio
App.3d 232, 238, 665 N.E.2d 759 (1st Dist. 1995)”).
{¶56} In light of the language of the statute, we find that Abdus-Salaam has failed
to demonstrate an obvious error in the admission of the evidence concerning his past
violence toward E.R., her family, her friends or himself.
Abdus-Salaam has not shown the requisite prejudice to demonstrate plain error.
6 United States v. Apprendi held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 446, 490 (2000). See also, Ring v. Arizona, 536 U.S. 584, 609 (2002) (Aggravating circumstance in a capital case are “‘the functional equivalent of an element of a greater offense’ that must be submitted to a jury. quoting Apprendi at 494, 120 S.Ct. 2348, fn. 19.). Delaware County, Case No. 24 CAA 02 0012 21
{¶57} In the case at bar, considerable evidence was introduced concerning
Abdus-Salaam’s violent threats and conduct toward E.R., her family and her friends that
were made during the times set forth in the Indictment. See, State’s Exhibits 26(A) - (I);
2T. at 307; 315; 316; 318-319; 320-321; 324; 326-329.
{¶58} Abdus-Salaam does not explain how the testimony that he now complains
of prejudiced him at trial in light of the other voluminous admissible evidence against him.
Abdus-Salaam has thus failed to demonstrate a reasonable probability that the error
resulted in prejudice, meaning that the error affected the outcome of the trial.
Conclusion
{¶59} We find that Abdus-Salaam has not demonstrated that any obvious error
occurred in the admission of the evidence, or that there is a reasonable probability that
the error resulted in prejudice, meaning that the error affected the outcome of the trial.
We decline to find a manifest injustice warranting the extraordinary step of finding plain
error in the admission of Abdul-Salaam’s past conduct.
{¶60} Abdus-Salaam’s First Assignment of Error is overruled.
II.
{¶61} In his Second Assignment of Error, Abdus-Salaam contends the trial judge
erred by failing to merge the Menacing by Stalking convictions with the convictions for
Violating a Protection order because the charges are allied offenses of similar import.
{¶62} We review de novo whether certain offenses should be merged as allied
offenses under R.C. 2941.25. State v. Williams, 2012-Ohio-5699, ¶ 1; State v. Bailey,
2022-Ohio-4407, ¶6. Delaware County, Case No. 24 CAA 02 0012 22
{¶63} Because Abdus-Salaam failed to preserve the issue of merger at trial, we
review the issue for plain error. See State v. Rogers, 2015-Ohio-2459, ¶ 28 (“the failure
to raise the allied offense issue at the time of sentencing forfeits all but plain error”);
Bailey, 2022-Ohio-4407, ¶ 7.
Allied-offenses of similar import – R.C. 2941.25
{¶64} In Ohio, the legislative statement on multiple punishments is found in R.C.
2941.25, which provides:
(A) Where the same conduct by [a] 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.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶65} This test requires a court to ask three questions: “(1) Were the offenses
dissimilar in import or significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation? An affirmative answer to any of
[these questions] will permit separate convictions. The conduct, the animus, and the
import must all be considered.” State v. Ruff, 2015-Ohio-995, ¶ 31. An allied-offenses
analysis must be driven by the facts of each case. “[T]he analysis must focus on the
defendant’s conduct to determine whether one or more convictions may result, because Delaware County, Case No. 24 CAA 02 0012 23
an offense may be committed in a variety of ways and the offenses committed may have
different import.” Id.
{¶66} There are two circumstances in which offenses will be deemed dissimilar in
import, making sentences for multiple counts permissible. The first circumstance is
“[w]hen a defendant’s conduct victimizes more than one person [because] the harm for
each person is separate and distinct.” Id. at ¶ 26. The second circumstance is when a
defendant’s conduct against a single victim constitutes two or more offenses and “the
harm that results from each offense is separate and identifiable from the harm of the other
offense.” Id. Therefore, the Ohio Supreme Court has held that “two or more offenses of
dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s
conduct constitutes offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.” Ruff at ¶ 26. Whether the offenses have similar
import will be revealed by “[t]he evidence at trial or during a plea or sentencing hearing.”
Id.
{¶67} In State v. Whitfield, the Ohio Supreme Court cautioned trial courts as
follows,
Because R.C. 2941.25(A) protects a defendant only from being
punished for allied offenses, the determination of the defendant’s guilt for
committing allied offenses remains intact, both before and after the merger
of allied offenses for sentencing. Thus, the trial court should not vacate or
dismiss the guilt determination.
2010-Ohio-2, ¶26. Emphasis added. Delaware County, Case No. 24 CAA 02 0012 24
Issue for Appellate Review: Whether R.C. 2941.25 allows multiple sentences
for menacing by stalking and violating a protection order in Abdus-Salaam’s case
{¶68} Abdus-Salaam was convicted of Menacing by Stalking under R.C.
2903.11(B)(2)(b) [Count Two] and R.C. 2903.11(B)(2)(e) [Count Three]. R.C. 2903.11
(A)(1) No person by engaging in a pattern of conduct shall knowingly
cause another person to believe that the offender will cause physical harm
to the other person or a family or household member of the other person or
cause mental distress to the other person or a family or household member
of the other person
(B) Whoever violates this section is guilty of menacing by stalking.
(2) Menacing by stalking is a felony of the fourth degree if any of the
(b) In committing the offense under division (A)(1), (2), or (3) of this
section, the offender made a threat of physical harm to or against the victim,
or as a result of an offense committed under division (A)(2) or (3) of this
section, a third person induced by the offender’s posted message made a
threat of physical harm to or against the victim…
(e) The offender has a history of violence toward the victim or any
other person or a history of other violent acts toward the victim or any other
person. Delaware County, Case No. 24 CAA 02 0012 25
{¶69} In addition, Abdus-Salaam was convicted of sixteen counts of Violating a
Protection Order eight counts under R.C. 2919.27(B)(4) and eight counts under R.C.
2919.27(B)(3)(a):
(A) No person shall recklessly violate the terms of any of the
following:
(1) A protection order issued or consent agreement approved
pursuant to section 2919.26 or 3113.31 of the Revised Code;
(B)(1) Whoever violates this section is guilty of violating a protection
(3) Violating a protection order is a felony of the fifth degree if the
offender previously has been convicted of, pleaded guilty to, or been
adjudicated a delinquent child for any of the following:
(a) A violation of a protection order issued or consent agreement
approved pursuant to section 2151.34, 2903.213, 2903.214, 2919.26, or
3113.31 of the Revised Code;
(4) If the offender violates a protection order or consent agreement
while committing a felony offense, violating a protection order is a felony of
the third degree. Delaware County, Case No. 24 CAA 02 0012 26
{¶70} Under the plain error standard of review, we must first find that there be an
error—i.e., “‘a deviation from a legal rule’ that constitutes ‘an “obvious” defect in the trial
proceedings.’ Rogers, 2015-Ohio-2459, ¶ 22, quoting Barnes, 94 Ohio St.3d at 27.
{¶71} In the case at bar, Abdus-Salaam admitted that he continued to text, call
and send letters to E.R. after the issuance of a civil protection order. Not all of that contact
was of a threatening tone. E.R. admitted to visiting Abdus-Salaam in the hospital. 2T. at
247. She further told Abdus-Salaam that she may asked to drop the civil protection order.
Id. at 247-248. She admitted that she drove two hours to see Abdus-Salaam after the civil
protection order was issued. Id. at 249. E.R. was with Abdus-Salaam around the time he
turned himself in on the charges. Id. at 255-256. See also, 2T. at 231-235; State’s Exhibit
4-B; 7-A; 7-B; 26-B.
{¶72} Violating a Protection Order does not require what the Menacing by Stalking
charge does, i.e. evidence that Abdus-Salaam knowingly engaged in a pattern of conduct
to cause E.R. to believe that he would cause physical harm to her or a family or household
member or cause mental distress to E.R. or a family or household member of E.R. Abdus-
Salaam violated the protection order by contacting E.R. He violated the Menacing by
Stalking statute by, in addition to contacting her, causing E.R. to believe that he would
cause physical harm to her or a family or household member. Thus, the charges, although
similar, were committed with a separate animus or motivation.
{¶73} The plain-error test requires the error to be “obvious.” Even if we were to
assume that the trial court erred by not merging the menacing by stalking counts with the
violating a protection order counts, the facts of the case indicate that such an error was
not obvious. “Here, it is clear to us that in an area of law so driven by factual distinctions, Delaware County, Case No. 24 CAA 02 0012 27
any asserted error was not obvious.” Bailey, 2022-Ohio-4407, ¶29. Therefore, the facts
here do not support a finding of an obvious defect in the trial proceedings that would
constitute plain error.
{¶74} Because Abdus-Salaam failed to preserve the issue of merger of allied
offenses by raising an objection in the trial court, he forfeited all but plain error. The law
requires Abdus-Salaam to demonstrate a reasonable probability that his convictions
constituted allied offenses of similar import, and he has failed to carry that burden. We
decline to find a manifest injustice warranting the extraordinary step of finding plain error
in the trial judge’s sentencing of Abdus-Salaam on the menacing by stalking counts and
violating the protection order counts.
{¶75} Abdus-Salaam’s Second Assignment of Error is overruled.
III.
{¶76} In his Third Assignment of Error, Abdus-Salaam argues that his prison
sentence is contrary to law because the trial judge failed at his sentencing hearing to
provide him with all of the notifications required by R.C. 2929.19(B)(2)(c).
Standard of Appellate Review
{¶77} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 2016-Ohio-1002, ¶22; State v. Howell, 2015-Ohio-4049, ¶31
(5th Dist.). R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or vacate
a sentence and remand for resentencing where we clearly and convincingly find that
either the record does not support the sentencing court’s findings under R.C. 2929.13(B) Delaware County, Case No. 24 CAA 02 0012 28
or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to
law. See, also, State v. Bonnell, 2014-Ohio-3177, ¶28.
{¶78} “‘Otherwise contrary to law’ means “‘in violation of statute or legal
regulations at a given time.’”” Jones at ¶ 34 quoting Black’s Law Dictionary (6th Ed. 1990).
Accordingly, when a trial court imposes a sentence based on factors or considerations
that are extraneous to those that are permitted by R.C. 2929.11 and 2929.12, that
sentence is contrary to law. Claims that raise these types of issues are therefore
reviewable. State v. Bryant, 2022-Ohio-1878, ¶22.
Issue for Appellate Review: Whether the trial judge gave Abdus-Salaam all five
notifications set forth in R.C. 2929.19(B)(2)(c) at the sentencing hearing
Reagan Tokes - R.C. 2929.19(B)
{¶79} R.C. 2929.19(B)(2)(c) provides that “if the sentencing court determines at
the sentencing hearing that a prison term is necessary or required, the court shall do all
of the following:
(c) If the prison term is a non-life felony indefinite prison term, notify
the offender of all of the following:
(i) That it is rebuttably presumed that the offender will be released
from service of the sentence on the expiration of the minimum prison term
imposed as part of the sentence or on the offender’s presumptive earned
early release date, as defined in section 2967.271 of the Revised Code,
whichever is earlier;
(ii) That the department of rehabilitation and correction may rebut the
presumption described in division (B)(2)(c)(i) of this section if, at a hearing Delaware County, Case No. 24 CAA 02 0012 29
held under section 2967.271 of the Revised Code, the department makes
specified determinations regarding the offender’s conduct while confined,
the offender’s rehabilitation, the offender’s threat to society, the offender’s
restrictive housing, if any, while confined, and the offender’s security
classification;
(iii) That if, as described in division (B)(2)(c)(ii) of this section, the
department at the hearing makes the specified determinations and rebuts
the presumption, the department may maintain the offender’s incarceration
after the expiration of that minimum term or after that presumptive earned
early release date for the length of time the department determines to be
reasonable, subject to the limitation specified in section 2967.271 of the
Revised Code;
(iv) That the department may make the specified determinations and
maintain the offender’s incarceration under the provisions described in
divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to
the limitation specified in section 2967.271 of the Revised Code;
(v) That if the offender has not been released prior to the expiration
of the offender’s maximum prison term imposed as part of the sentence, the
offender must be released upon the expiration of that term.
{¶80} By indicating that the sentencing court “shall do all of the following” and
“notify the offender of all of the following,” the legislature clearly placed a mandatory duty
upon the trial court rather than granting it discretion. Thus, when sentencing an offender
to a non-life felony indefinite prison term under the Reagan Tokes Law, a trial court must Delaware County, Case No. 24 CAA 02 0012 30
advise the offender of all five notifications set forth in R.C. 2929.19(B)(2)(c) at the
sentencing hearing to fulfill the requirements of the statute. State v. Wolfe, 2020-Ohio-
5501, ¶ 36 (5th Dist.); State v. Hodgins, 2021-Ohio-1353, ¶12 (12th Dist.). While the trial
court is not required to recite the statutory language verbatim in providing the notifications
to the defendant at sentencing, the record must nonetheless reflect that each of the
necessary notifications were provided. State v. Brown, 2021-Ohio-2291, ¶17 (12th Dist.).
State v. Miles, 2020-Ohio-6921, ¶ 20, 27-31 (11th Dist.); State v. Long 2021-Ohio-2672,
¶ 27-29 (4th Dist.); State v. Whitehead, 2021-Ohio-847, ¶ 43, 45-46 (8th Dist.); State v.
Hodgkin, 2021-Ohio-1353, ¶ 24-25 (12th Dist.).
{¶81} In the case at bar, the trial judge advised Abdus-Salaam as follows,
In terms of the Tokes' sentence, Count 1 is a Senate Bill 201
sentence with a minimum prison term by virtue of the 4-year minimum
prison term. The maximum prison term on Count 1 would be 6 years.
There's a rebuttable presumption that he'll be released when he
serves the minimum term here and that that presumption can be rebutted
by ODRC, and Mr. Salaam can be maintained for reasonable periods up to
the maximum term if ODRC makes the appropriate determinations.
He is eligible for earned credit. This is not a mandatory prison term
at all in any sense. So, he is eligible for up to 15 percent off of his sentence
for exceptional conduct while incarcerated. He's also eligible for earned
credit of up to 8 percent off of the minimum sentence for participating in
constructive programming.
Sent. T. Jan. 29, 2024 at 23-24. Delaware County, Case No. 24 CAA 02 0012 31
{¶82} We find that the trial judge failed to advise Abdus-Salaam of all of the
required notifications set forth in R.C. 2929.19(B)(2)(c). Specifically, the trial judge failed
to advise Abdus-Salaam that: (1) the ODRC must hold a hearing to rebut the presumption
that appellant would be released after serving his mandatory minimum sentence; (2) the
ODRC could maintain appellant’s incarceration more than one time; and (3) the ODRC
may make specified determinations regarding his conduct while confined, his
rehabilitation, his threat to society, his restrictive housing, if any, while confined, and his
security classification in rebutting the presumption.
{¶83} In State v. Brown Suber, 2021-Ohio-2291(12th Dist.), the trial court provided
some of the required notifications but failed to notify the defendant that:
(1) the DRC must hold a hearing to rebut the presumption that
appellant would be released after serving his mandatory minimum sentence
of 10 years; (2) the DRC could maintain his incarceration after the expiration
of the minimum term for the length the DRC determines is reasonable,
subject to his maximum penalty of 15 years; and (3) the DRC could maintain
appellant’s incarceration more than one time.
Id. at ¶ 17. The Court reversed and remanded for the trial court to provide the required
notifications. Id. at ¶ 18. The Court noted that “[t]he failure to advise the defendant of any
of the five notifications constitutes error and a remand for the limited purpose of permitting
the sentencing court to provide the mandatory notifications required by R.C.
2929.19(B)(2)(c) is necessary.” (Emphasis added.) [Brown Suber, 2021-Ohio-2291, ¶16],
citing State v. Paul, 12th Dist. Clinton No. CA2020-08-010, 2021-Ohio-1628, ¶ 22-23.” Delaware County, Case No. 24 CAA 02 0012 32
See also, State v. Pope, 2022-Ohio-426, ¶18 (12th Dist.); State v. Massie, 2021-Ohio-
3376, ¶29 (2nd Dist.).
{¶84} As such, Abdus-Salaam’s Third Assignment of Error is sustained and this
matter is remanded for the sole purpose of providing him with the required notifications
as set forth in R.C. 2929.19(B)(2)(c).
{¶85} However, we emphasize that our reversal and remand are only for the
purpose of complying with the foregoing statute and in no way affect the validity of the
underlying conviction or any other aspect of the sentence imposed by the trial judge. In
other words, Abdus-Salaam is not entitled to be sentenced anew and the matter is
remanded to the trial judge for the sole and limited purpose of providing the mandatory
notifications of R.C. 2929.19(B)(2)(c). See, State v. Pope, 2022-Ohio-426, ¶23 (12th
Dist.); State v. Greene, 2022-Ohio-4536, ¶10 (1st Dist.); State v. Tupps, 2023-Ohio-2097,
¶38 (3rd Dist.); State v. Wolfe, 2020-Ohio-5501, ¶37 (5th Dist.); State v. Gates, 2022-Ohio-
1666, ¶27 (8th Dist.).
{¶86} Abdus-Salaam’s First and Second Assignments of Error are overruled.
Abdus-Salaam’s Third Assignment of Error is sustained and we remand this matter solely
for purposes of providing the proper R.C. 2929.19(B)(2)(c) notifications.
{¶87} This decision in no way affects the guilty verdicts and sentences issued by
the jury on any count of the indictment. It only affects the sentence with the sole purpose
of providing Abdus-Salaam with the required notifications as set forth in R.C.
2929.19(B)(2)(c). Delaware County, Case No. 24 CAA 02 0012 33
{¶88} The decision of the Delaware County Court of Common Pleas is affirmed in
all other respects.
By Gwin, J.,
Delaney, P.J., and
Wise, J., concur.
Related
Cite This Page — Counsel Stack
2024 Ohio 2773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abdus-salaam-ohioctapp-2024.