State v. Abraham

2025 Ohio 1446

• Court: Ohio Court of Appeals
• Decided: April 18, 2025
• Docket: 113782
• Status: Published

Opinion

[Cite as State v. Abraham, 2025-Ohio-1446.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 113782 v. :

RALIEGH ABRAHAM, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: April 18, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-674860-A Application for Reopening Motion No. 582268

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Owen W. Knapp, Assistant Prosecuting Attorney, for appellee.

Raliegh Abraham, pro se.

EILEEN A. GALLAGHER, A.J.:

{¶ 1} On February 25, 2025 the applicant, Raliegh Abraham, applied,

pursuant to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60 (1992), to

reopen this court’s judgment in State v. Abraham, 2024-Ohio-5600 (8th Dist.), in which this court affirmed his convictions for two counts of substantial impairment

rape under R.C. 2907.02(A)(1)(c). Abraham now argues that his appellate counsel

was ineffective for not arguing that the State suppressed exculpatory evidence and

for improperly arguing that the verdict was against the manifest weight of the

evidence. Additionally, Abraham recites complaints about his trial, such as agreeing

to try the case to the judge and not a jury; not testifying on his own behalf; his lawyer

not arguing that the complaining witness’s alcohol consumption and medication

caused confusion and hallucinations; that he and the complaining witness did not

engage in sex; that the complaining witness was not impaired; that his trial counsel

reminded the judge that rape renders the defendant a Tier III sex offender and the

complaining witness’s lack of credibility. The State of Ohio filed its brief in

opposition on March 27, 2025. For the following reasons, this court denies the

application to reopen.

FACTUAL AND PROCEDURAL BACKGOUND

{¶ 2} Abraham and M.H. had known each other through a family connection.

{¶ 3} On November 22, 2021 Abraham contacted M.H. M.H. agreed to meet

with Abraham to get reacquainted. After work, she went home, changed her clothes

and drove to his house, which was nearby. M.H. testified that she did not intend to

have sex because she was suffering from genital herpes and was taking Valtrex.

(Tr. 31 and 61.) After she arrived, Abraham drove M.H. to a bar where she drank

two “cherry bombs” (cherry vodka and Red Bull). They danced and talked with

another couple there. {¶ 4} M.H. became ill and vomited in the bathroom. Because the bar was

closing and M.H. was unsteady on her feet, Abraham helped her to his car. M.H.

told him she wanted to go home, and she fell asleep in the vehicle. Abraham drove

them to his house. He helped her out of the car, up the steps and into his bedroom.

The next thing M.H. remembered was that she was lying on the bed with her legs

draped over the side, her pants and underwear had been pulled down and Abraham

was performing oral sex on her. She tried to push him off but lost consciousness

again. When she awoke again, Abraham was engaged in vaginal sex with her. She

told him to get off. He pulled off of her and asked, “What’s wrong?” She pulled up

her underwear and pants, grabbed her purse and left the house. She drove back to

her home.

{¶ 5} Around 4:00 a.m., M.H. and Abraham exchanged text messages.

Abraham asked what he did wrong, said that he was sorry and that he hoped that

they could be friends. M.H. replied that she said “no” many times and that she said

she wanted to go home. Abraham replied that is not what she said and that “You

were the one who wanted to LOL I mean we both did but you did too I’m very sorry.”

M.H. replied that she said no and she told him to leave her alone.

{¶ 6} Around 9:00 p.m. on November 23, 2021, M.H. went to a Brunswick

medical facility and was examined by a SANE nurse, who noticed several bruises on

M.H. DNA swabs revealed Abraham’s DNA on M.H.’s thigh.

{¶ 7} Abraham was indicted for two counts of rape and two counts of

substantially impaired rape. After a bench trial, the court found him guilty of two counts of substantially impaired raped and not guilty of the other two counts. The

trial court sentenced Abraham to three to four-and-a-half years on one count and

three years on the other, to be served concurrently, and he was designated a Tier III

sex offender.

{¶ 8} Appellate counsel argued that the verdict was against the manifest

weight of the evidence. He aimed his attack on the element of substantial

impairment: whether the two drinks truly impaired M.H and whether it was proven

that Abraham knew M.H. was substantially impaired. The argument was that his

reactions immediately after the incident and in the text messages asking “What’s

wrong?” established that he did not consider M.H. to be impaired. Appellate counsel

noted the investigating detective’s testimony that M.H. did not have much memory

of the incident, that he could not confirm the bar and that a “dump” of Abraham’s

phone found nothing relevant.

LEGAL ANALYSIS

{¶ 9} In order to establish a claim of ineffective assistance of appellate

counsel, a petitioner must demonstrate that counsel’s performance was deficient

and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989); and

State v. Reed, 74 Ohio St.3d 534 (1996).

{¶ 10} In Strickland, the United States Supreme Court ruled that judicial

scrutiny of an attorney’s work must be highly deferential. The court noted that it is

all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight,

to conclude that a particular act or omission was deficient. Therefore, “a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Strickland at 689.

{¶ 11} Specifically, in regard to claims of ineffective assistance of appellate

counsel, the United States Supreme Court has upheld the appellate advocate’s

prerogative to decide strategy and tactics by selecting what he thinks are the most

promising arguments out of all possible contentions. The Court noted:

“Experienced advocates since time beyond memory have emphasized the

importance of winnowing out weaker arguments on appeal and focusing on one

central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S.

745 and 751-752 (1983). Indeed, including weaker arguments might lessen the

impact of the stronger ones. Accordingly, the Court ruled that judges should not

second-guess reasonable professional judgments and impose on appellate counsel

the duty to raise every “colorable” issue. Such rules would disserve the goal of

vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these

principles in State v. Allen, 77 Ohio St.3d 172 (1996).

{¶ 12} Even if a petitioner establishes that an error by his lawyer was

professionally unreasonable under all the circumstances of the case, the petitioner

must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome. Strickland at 694. A court need not determine whether counsel’s

performance was deficient before examining prejudice suffered by the defendant as

a result of alleged deficiencies. Bradley, 42 Ohio St.3d at 143.

{¶ 13} Appellate review is strictly limited to the record. The Warder,

Bushnell & Glessner Co. v. Jacobs, 58 Ohio St. 77 (1898). Thus, “a reviewing court

cannot add matter to the record that was not part of the trial court’s proceedings and

then decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio

St.2d 402 (1978), paragraph one of the syllabus. “Nor can the effectiveness of

appellate counsel be judged by adding new matter to the record and then arguing

that counsel should have raised these new issues revealed by the newly added

material.” State v. Moore, 93 Ohio St.3d 649, 650 (2001). “Clearly, declining to

raise claims without record support cannot constitute ineffective assistance of

appellate counsel.” State v. Burke, 2002-Ohio-5310, ¶ 10.

{¶ 14} Abraham’s first argument is that the State suppressed exculpatory

evidence by not disclosing the Facebook and text messages between him and M.H.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court of the United States

held that the State violates the Fourteenth Amendment when it withholds evidence

favorable to the defendant and material to the defendant’s guilt or punishment. The

evidence must be favorable to the defendant because it is exculpatory or because it

is impeaching; the State must have suppressed the evidence either willfully or inadvertently and prejudice must have ensued. State v. Bethel, 2022-Ohio-783, and

State v. Logan, 2024-Ohio-2360, ¶ 39 (8th Dist.) However, Brady does not apply

to materials that are not wholly within the control of the prosecution. Logan at ¶ 40.

{¶ 15} Abraham’s argument is unpersuasive because the Facebook and text

messages between himself and M.H. would not be wholly within the control of the

State. Those messages would have been available through Abraham’s own sources.

Moreover, Abraham does not explicitly state what those messages are except to

imply that M.H. had indicated that she would be open to sex. Without the specific

evidence in the record, appellate counsel could not have made an authentic

argument.

{¶ 16} Abraham’s second assignment of error, that the verdict was against

the manifest weight of the evidence, also fails. Appellate counsel argued this in the

brief. He noted through the testimony of the investigating detective that M.H. did

not have much memory of the encounter and that she could not remember the bar.

The SANE nurse testified that M.H. told her that she believed they had kissed at the

bar. Further, Abraham suggests that the text messages exchanged after the incident

were inconsistent with Abraham knowing that M.H. was impaired.

{¶ 17} The last two pages of Abraham’s application under his “Second

Assignment of Error,” consists of the legal principles for manifest weight. Abraham

does not synthesize the facts of his case with these legal principles to make an

argument that the verdict was against the manifest weight of the evidence. In

examining appellate counsel’s argument, this court concluded as follows: “After examining the entire record and weighing all the evidence presented, we cannot say

that this is the exceptional case where the factfinder lost its way in convicting

Abraham of two counts of substantial impairment rape. In other words, his

convictions are supported by the manifest weight of the evidence in the record.”

Abraham, 2024-Ohio-5600, at ¶ 58. Abraham does not establish prejudice.

{¶ 18} At the beginning of his application, Abraham lists complaints he has

with the trial, such as that he did not testify, that he had a bench trial, that the

combination of alcohol and medication caused M.H. to hallucinate that she had sex,

other messages between M.H. and Abraham would have shown she was lying and

his insistence he did not have sex with M.H. This laundry list of complaints does

not fulfill the requisites of App.R. 26(B). “Merely reciting assignments of error,

without demonstrating prejudice and presenting legal argument and analysis is not

sufficient to support an App.R. 26(B) application for reopening.” State v. Townsend,

2022-Ohio-4398, ¶ 7 (8th Dist.), and State v. Harris, 2025-Ohio-927 (8th Dist.).

{¶ 19} To the extent that his complaints do not have record support, such as

the missing messages between M.H. and Abraham and medical evidence of the

effects of Valtrex and alcohol, appellate counsel would have been precluded from

making such arguments. Similarly, basing arguments on matters of trial strategy

and tactics, such as whether to have a bench or jury trial and whether to testify,

generally come within the Supreme Court’s admonition to give deference to

counsel’s strategy and tactics. Appellate counsel in the exercise of professional judgment declined to raise such issues. State v. Smith, 2023-Ohio-1533, ¶ 21 (11th

Dist.).

{¶ 20} Accordingly, this court denies the application to reopen.

______________________________________ EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and ANITA LASTER MAYS, J., CONCUR