[Cite as State v. Allah, 2015-Ohio-5060.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
STATE OF OHIO, : Case No. 14CA12
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT ENTRY BARSEEM K. ALLAH, :
Defendant-Appellant. : RELEASED: 12/3/2015
APPEARANCES:
Joseph D. Reed, Columbus, Ohio, for appellant.
Jeff Adkins, Gallia County Prosecuting Attorney, Gallipolis, Ohio, for appellee. Harsha, J. {¶1} A jury convicted Barseem K. Allah of possession of heroin, cocaine, and
crack cocaine as well as having a weapon under disability. After the court sentenced
him to prison, Allah asserts that the court erred in denying his motion for a directed
verdict on the charge of having a weapon under disability. Because the state did not
introduce an operability report or present the testimony of a witness who had test fired
the weapons, Allah claims there was no evidence that the firearms were operable.
However, the state introduced the firearms into evidence and an officer testified that one
of the firearms was loaded and on the floorboard of the driver’s side of the vehicle, and
the other firearm had ammunition with it. Thus, from the totality of the circumstances the
evidence is sufficient to prove that the firearms were operable.
{¶2} Next, Allah contends that he received ineffective assistance of counsel
because his trial attorney did not conduct effective voir dire of the jury and failed to
object to impermissible and irrelevant testimony. Allah’s contentions are meritless Gallia App. No. 14CA12 2
because most of his complaints deal with matters of trial strategy, which we do not
second guess. And his concern over counsel’s failure to object to admission of his prior
conviction is also meritless. That conviction was an element in one of the current
offenses, so it was clearly admissible. He cannot demonstrate that his trial counsel’s
performance during voir dire, his failure to object to certain testimony, or his cross-
examination of a state’s witness was deficient.
{¶3} Therefore, we affirm Allah’s conviction and sentence.
I. FACTS
{¶4} The Ohio State Highway Patrol stopped Allah for speeding. During the
stop a trooper smelled the odor of marijuana and brought in a K-9 unit, which gave a
positive indication on the vehicle. Troopers searched the vehicle and found a loaded 9
mm pistol on the driver’s side floorboard and a .38 revolver with ammunition and
marijuana in a suitcase in the back of the vehicle. Troopers also found a bag containing
cocaine, crack cocaine and heroin in the center console. The Gallia County Grand Jury
indicted Allah with one count of possession of cocaine, one count of possession of
heroin, and one count of possession of crack cocaine, all in violation of R.C.
2925.11(A). Because Allah had been previously convicted of a felony offense of
violence in 2008, the grand jury indicted him with one count of having a weapon under
disability in violation of R.C. 2923.13(A)(2). Allah retained counsel and entered a plea
of not guilty.
{¶5} At the trial the state presented the testimony of the two troopers involved
in the traffic stop and the testimony of the crime laboratory director for the Ohio State
Highway Patrol Crime Laboratory. The state introduced several exhibits including the Gallia App. No. 14CA12 3
two firearms and ammunition, the judgment entry from Allah’s previous domestic
violation conviction, and the crime lab report of analysis of the drugs found during the
traffic stop. The jury returned verdicts finding Allah guilty of all counts. The trial court
merged Allah’s first three convictions into his conviction for possession of cocaine and
sentenced him to a prison term of 10 years, plus an additional consecutive sentence of
30 months for having a weapon under disability. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶6} Allah assigns the following errors for our review:
1. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT WHEN IT OVERRULED HIS MOTION FOR DIRECTED VERDICT OF ACQUITTAL AS TO COUNT FOUR OF THE INDICTMENT WHEN THE STATE HAD FAILED TO INTRODUCE ANY EVIDENCE OF THE OPERABILITY OF THE FIREARMS INTRODUCED AS PLAINTIFF’S EXHIBITS ONE AND TWO.
2. DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL AS HIS COUNSEL FAILED TO PERFORM EFFECTIVE VOIR DIRE OF THE JURY, FAILED TO OBJECT TO SEVERAL INTRODUCTIONS OF IMPERMISSIBLE AND IRRELAVENT TESTIMONY.
III. LAW AND ANALYSIS
A. Operability of Firearm
{¶7} First Allah asserts that the trial court erred in overruling his motion for a
directed verdict of acquittal on the count of having a weapon under disability because
the state did not establish that either of the two weapons were operable. The state did
not submit testimony of a witness who had test fired the weapons, nor did the state
submit an operability report into evidence. There was no evidence that Allah had
wielded the weapons or made threatening statements about using them. The state’s
evidence concerning the weapons’ operability was limited to the actual weapons, the Gallia App. No. 14CA12 4
ammunition found loaded in or with the weapons, and the troopers’ testimony
concerning the type or model of the weapon and the weapons’ location in the vehicle.
The trooper stated that he had found the loaded Sign Sauer 9 mm on the floorboard
directly in front of the driver’s seat and the Smith & Wesson .38 revolver with
ammunition in a suitcase in the back of the vehicle.
{¶8} Crim.R. 29 motions for acquittal test the sufficiency of the evidence
presented at trial. State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996);
State v. Wireman, 4th Dist. Pike App. No. 01CA662, 2002-Ohio-1526, ¶ 8. Crim.R. 29
requires a court to enter a judgment of acquittal when the state's evidence is insufficient
to sustain a conviction. But the court may not grant a defendant's Crim.R. 29 motion “if
the evidence is such that reasonable minds can reach different conclusions as to
whether each material element of a crime has been proved beyond a reasonable
doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. In
making this determination the court must construe the evidence in the light most
favorable to the prosecution. Williams, 74 Ohio St.3d at 576. We undertake a de novo
review of the trial court's decision on a Crim.R. 29 motion and will not reverse the trial
court's judgment unless reasonable minds could only reach the conclusion that the
evidence failed to prove all the elements of the crime beyond a reasonable doubt. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. If
any rational trier of fact could have found the essential elements of an offense proven
beyond a reasonable doubt, we will not disturb the conviction. Williams, 74 Ohio St.3d
at 576, 660 N.E.2d 724; Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492. Gallia App. No. 14CA12 5
{¶9} Under R.C. 2923.13(A)(2), a person who has been convicted of a felony of
violence is prohibited from possessing a firearm. R.C. 2923.11(B) defines “firearm” as
“any deadly weapon capable of expelling or propelling one or more projectiles by the
action of an explosive or combustible propellant”:
(B)(1) “Firearm” means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. “Firearm” includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.
(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm.
{¶10} “[T]he state must prove beyond a reasonable doubt that the firearm was
operable or could readily have been rendered operable at the time of the offense.”
State v. Gaines, 46 Ohio St.3d 65, 68-69, 545 N.E.2d 68 (1989). Subsection (B)(2) of
the statute expressly allows the trier of fact to rely upon circumstantial evidence to
determine if the firearm was operable. State v. Thompkins, 78 Ohio St.3d 380, 1997-
Ohio-52, 678 N.E.2d 541 (1997), paragraph one of the syllabus. Empirical analysis of
the gun is not required to prove operability. State v. Murphy, 49 Ohio St.3d 206, 209,
551 N.E.2d 932 (1990).
{¶11} Recently in State v. Dickerson, 11th Dist. Ashtabula App. No. 2013-A-
0046, 2015-Ohio-938, a case with similar facts, the court held that “evidence that a gun
was loaded combined with the submission of that gun into evidence is sufficient to prove
operability.” Id. at ¶36, citing State v. Messer, 107 Ohio App.3d 51, 55, 667 N.E.2d 1022 Gallia App. No. 14CA12 6
(9th Dist. 1995), appeal not allowed 75 Ohio St.3d 1422, 662 N.E.2d 25 (1996). In
Dickerson a vehicle search after a traffic stop revealed a loaded handgun under the
driver’s seat. The state introduced evidence that the firearm was loaded when the
officer found it and the firearm was submitted into evidence. Dickerson argued that
there was insufficient evidence that the firearm was operable to sustain his conviction of
a firearm specification. The appellate court disagreed and held that because the firearm
was loaded when the officer found it and the firearm was introduced into evidence, “a
reasonable jury could conclude the firearm was operable.” Id.
{¶12} Similarly in Messer, supra, the court held that where the state produced
testimony of a veteran police officer who stated that the gun “appeared operable” and
was found hidden and loaded under a mattress, and the gun was admitted into
evidence, there was sufficient evidence to prove operability. Messer at 55. State v.
Miller, 12th Dist. Preble App. No. CA2002-02-004, 2002-Ohio-6109, ¶13-14 (evidence of
test-firing not required because, “the firearms themselves were admitted into evidence,
along with testimony that the pistol was loaded and ammunition for both firearms was
found nearby. Even without testimony regarding firing of the weapons, these facts alone
could be sufficient to establish operability.”); see also Sanders v. McMackin, 786
F.Supp. 672, 676 (N.D. Ohio 1992) (vacating sentence for firearm specification because
state failed to meet burden to prove operability, “If the purchaser had placed bullets in
the gun before giving it to Sander’s father, or had the witness testified that he saw
bullets in the gun, a rational jury could possibly make the inferential leap to find
operability.”). Gallia App. No. 14CA12 7
{¶13} Here the state offered the firearms into evidence. The troopers testified
that one of the firearms was a loaded 9 mm handgun found on the driver’s side
floorboard and the other firearm was a .38 revolver in a suitcase with ammunition. The
jury had the actual weapons and could logically infer from the loading of one gun and
the provision of ammunition for the other that both were capable of firing that
ammunition. Neither testimony of test-firing nor operability reports are required to prove
operability. Under the case law developed since Gaines, there was sufficient evidence
of operability to sustain Allah’s conviction for having a weapon under disability.
B. Ineffective Assistance of Counsel
{¶14} Next Allah asserts that he received ineffective assistance of counsel
because his trial attorney failed to perform effective voir dire, contending that “[o]ne
would think that given the unusual nature of the Defendant’s name, he would have
pursued whether that prejudiced the jurors.” Allah also claims that his trial counsel
failed to object to impermissible and irrelevant testimony. To prevail on a claim of
ineffective assistance of counsel, a criminal defendant must establish (1) deficient
performance by counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel's errors, the result of the proceeding would have been different. State v. Short,
129 Ohio St.3d 360, 2011–Ohio–3641, 952 N.E.2d 1121, ¶ 113; Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Knauff, 4th
Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 23. The defendant has the burden of
proof because in Ohio, a properly licensed attorney is presumed competent. State v.
Gondor, 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 62. Failure to satisfy Gallia App. No. 14CA12 8
either part of the test is fatal to the claim. Strickland at 697; State v. Bradley, 42 Ohio
St.3d 136, 143, 538 N.E.2d 373 (1989).
{¶15} In reviewing the claim of ineffective assistance of counsel we must indulge
in “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.
{¶16} Allah’s claim lacks merit for several reasons. First, “[c]ounsel's actions
during voir dire are presumed to be matters of trial strategy.” State v. Perez, 124 Ohio
St. 3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶206-208. Although Allah does not
specify what aspect of his name would arouse prejudicial sentiment, it is apparent he
implicitly refers to its Islamic character. Regardless, the actual decision to voir dire on
racial, ethnic or religious prejudice is a choice best left to a defendant's counsel. State v.
Smith, 89 Ohio St.3d 323, 327, 731 N.E.2d 645 (2000). “In these situations, we normally
defer to counsel's judgment.” Smith at 328, 731 N.E.2d 645 (finding no ineffective
assistance of counsel for not examining on racial or religious bias).
{¶17} In this case it was neither deficient nor prejudicial for counsel to forgo
asking racial, ethnic or religious bias questions. Defense counsel had to weigh the risks
inherent in interrogating prospective jurors on the sensitive question of racial and
religious prejudice. See Smith, 89 Ohio St.3d at 328. There was little reason for defense
counsel to run these risks, because racial, ethnic and religious issues were not at issue
in this case. Allah was stopped for exceeding the speed limit and was found to have
drugs and firearms in the vehicle he was driving. There were no other persons, Gallia App. No. 14CA12 9
passengers, or witnesses involved in the incident and no references to any race or
religion were made. Because racial and religious issues played no part in the trial of this
case, defense counsel could quite reasonably determine that the potential costs of
conducting voir dire on racial or religious prejudice outweighed any possible benefit
from such a course. See State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920
N.E.2d 104, ¶¶ 206-208.
{¶18} Allah also contends that his counsel conducted “a voir dire that was
practically non-existent.” We find no factual basis for this contention. The judge, the
state, and Allah’s counsel each asked a number of questions of the jury and defense
counsel exercised several preemptory challenges. The judge and the state each asked
their questions prior to defense counsel’s questioning. Even if his counsel's questioning
was brief it was not deficient, because counsel “need not repeat questions about topics
already covered by group voir dire, opposing counsel, or the judge.” State v. Davis, 116
Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 47.
{¶19} Accordingly, we find no deficient performance in defense counsel’s voir
dire and we reject this ineffective-assistance claim.
{¶20} Next Allah claims that his defense counsel failed to object to impermissible
and irrelevant testimony. He argues that his counsel should have objected to testimony
that he had been sent to prison for his prior felony and was on post release control at
the time of his arrest. However, evidence of Allah’s prior felony was an element of the
state’s case and necessary to prove he had a weapon under disability. The state
submitted the previous judgment of conviction, which contained both Allah’s conviction
and his sentence. Therefore, both the fact that he had been in prison and was on post Gallia App. No. 14CA12 10
release control at the time of the traffic stop was already placed into evidence through
the admission of the judgment of conviction. The state’s witness testified that the person
identified on the judgment of conviction, Knowledge White, was the same person as the
defendant, Barseem K. Allah, and that White had changed his name to Allah since the
prior felony conviction. The testimony concerning the prior conviction was limited and
did not contain any more facts or details than necessary to sufficiently identify Allah as
the same individual as Knowledge White and confirm that he had been convicted and
sentenced and was on post release control at the time of the traffic stop. All of those
facts were contained in the judgment of conviction. No testimony concerning the details
of the prior conviction was provided to the jury.
{¶21} The fact that Allah had a prior conviction was an element of the offense
and necessary to prove the state’s case. “The state must provide sufficient proof
necessary to convince a trier of fact beyond a reasonable doubt of the existence of
every element of an offense” and “[w]hen a previous conviction is an element of an
offense, the state must prove the prior offense beyond a reasonable doubt.” State v.
Smith, 68 Ohio App.3d 692, 695, 589 N.E.2d 454 (1990). “Neither the state nor the trial
court is required to accept a defendant's stipulation as to the existence of the
conviction.” Id. Therefore the testimony concerning his prior conviction and sentence
was neither impermissible nor irrelevant as Allah contends.
{¶22} Additionally, the trial court admonished the jury that they were given
evidence of the conviction because it was an element of the offense and they were not
to consider it to prove character of the defendant or that he acted in conformity or in Gallia App. No. 14CA12 11
accordance with that character. Thus, we find no deficiency in trial counsel’s
performance in this regard.
{¶23} Allah also contends that his counsel’s cross examination of Trooper
Johnson and his failure to object to Trooper Johnson’s testimony about how he
assesses suspicious activity prejudiced the jury against him. However, decisions
regarding cross-examination are within trial counsel's discretion and generally do not
form the basis for a claim of ineffective assistance of counsel. “The extent and scope of
cross-examination clearly fall within the ambit of trial strategy, and debatable trial tactics
do not establish ineffective assistance of counsel.” State v. Madden, 4th Dist. Adams
App. No. 09CA883, 2010-Ohio-176, ¶ 25, citing State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, at ¶ 146; State v. Campbell, 90 Ohio St.3d 320, 339,
2000-Ohio-183, 738 N.E.2d 1178; State v. Otte, 74 Ohio St.3d 555, 565, 1996-Ohio-
108, 660 N.E.2d 711. “ ‘[A]n appellate court reviewing an ineffective assistance of
counsel claim must not scrutinize trial counsel's strategic decision to engage, or not
engage, in a particular line of questioning on cross-examination.’” State v. Dorsey, 10th
Dist. No. 04AP–737, 2005–Ohio–2334, ¶ 22, quoting In re Brooks, 10th Dist. No.
04AP164, 2004–Ohio–3887, ¶ 40.
{¶24} After review we have no cause to second-guess defense counsel's cross-
examination strategy. The challenged cross-examination and recross testimony
attempted to cast doubt upon the credibility of the witness and to argue that what
Trooper Johnson characterized as suspicious behavior could also be characterized as
normal, everyday driving behavior. Again, we find no deficiency in trial counsel’s
performance in this regard. Gallia App. No. 14CA12 12
{¶25} Finally, Allah claims that his defense counsel did not raise the issue of his
right not to testify at trial or his lack of any burden of proof in a criminal trial. However,
Allah does not explain whether and how this failure prejudiced him. The trial court
addressed these issues in its instructions to the jury, informing the jury of the state’s
burden of proof, the defendant’s presumption of innocence, and the defendant’s right
not to testify. Allah has not demonstrated that his counsel’s assistance was deficient or
that it resulted in any prejudice.
{¶26} We overrule Allah’s second assignment of error.
IV. CONCLUSION
{¶27} The trial court did not err in denying Allah’s motion for a directed verdict on
the charge of having a weapon under disability because the state presented sufficient
evidence that the firearms were operable. Additionally, his ineffective assistance of
counsel claim fails because he did not establish both a deficient performance and
resulting prejudice. Having overruled Allah’s assignments of error, we affirm the
judgment of the trial court.
JUDGMENT AFFIRMED. Gallia App. No. 14CA12 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & McFarland, A.J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.