State v. Asaba

2025 Ohio 4468

• Court: Ohio Court of Appeals
• Decided: September 25, 2025
• Docket: 114739
• Status: Published

Opinion

[Cite as State v. Asaba, 2025-Ohio-4468.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114739 v. :

MUSA ASABA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 25, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-688705-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kenan Mack, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Thomas Lampman, Assistant Public Defender, for appellant.

KATHLEEN ANN KEOUGH, J.:

Musa Asaba (“Asaba”) appeals an evidentiary ruling that the trial

court made during his trial. After a review of the record and law, we find no error

and affirm. I. Procedural History

In January 2024, Asaba was charged in a five-count indictment with

burglary in violation of R.C. 2911.12(A)(1) (Count 1), violating a protection order in

violation of R.C. 2919.27(A)(3) with a furthermore specification that the violation

was a felony (Count 2), violating a protection order in violation of R.C. 2919.27(A)(1)

with a furthermore specification that the offense was a felony (Count 3), menacing

by stalking in violation of R.C. 2903.211(A)(1) with a furthermore specification

alleging that Asaba threatened physical harm (Count 4), and intimidation of an

attorney, victim, or witness in a criminal case in violation of R.C. 2921.04(A) (Count

5).

In May 2024, Asaba filed a “notice of alibi,” indicating that he was

“outside the [S]tate of Ohio when the alleged victim stated that the burglary and

violation of the protection order were supposed to be occurring.” The matter was

tried before a jury on August 26, 2024. The jury found Asaba guilty of Counts 3

through 5. Sentencing was continued until his other pending case, Cuyahoga C.P.

No. CR-24-691076-A was resolved. At sentencing, he was sentenced to “two years

of community control on each count.”

This appeal followed; Asaba assigns a single error for our review:

The trial court erred by excluding Asaba’s testimony about [the victim’s] emotional state.[1]

1 The facts section of Asaba’s brief references another incident where Asaba’s

counsel “did not notice or correct” the State’s questioning while establishing the timeline of Asaba’s work trip. Since the issue was raised in the facts section, the discussion is II. Factual History

The charges in this matter stem from a contentious divorce and

separation between Asaba and the victim. The first two counts pertained to a

specific incident on July 14, 2022, while the remaining counts derived from separate

instances of Asaba’s alleged misconduct.

The victim testified that she was born in the Democratic Republic of

the Congo (“DRC”) and eventually went to Uganda as a refugee, which is where she

met Asaba. She estimated that she had been romantically involved with Asaba on-

and-off beginning in 2008; they married in Uganda in 2015 and came to the United

States that same year. After immigrating to the United States, the pair lived together

and had five children. Sometime thereafter, the victim filed for divorce.

A. July 14, 2022

Counts 1 and 2 pertained to an event occurring on July 14, 2022. On

July 12, two days before the alleged incident, Asaba and the victim attended a

hearing where the victim requested a protection order against Asaba. While the

court took the matter under advisement, it issued an emergency temporary

protection order. On July 15, 2022, the court denied the victim’s request for a

protection order and terminated the emergency protection order that had been in

place while the court considered the matter.

limited and was not made a separate assignment of error. Accordingly, we will not address these alleged errors. App.R. 12; App.R. 16. The victim testified that at some point at night on July 12th, she was

in the basement doing laundry when she received a text message from one of her

children stating that Asaba was in the home. On cross-examination, she admitted

that the incident did not happen on July 12th, but rather on July 14th. The victim

stayed in the basement, turned off the lights, and called the police. She stayed on

the phone with the 911 dispatcher until the police arrived at her home, but Asaba

had left by the time they arrived. Since Asaba drove off and could come back, the

police advised the victim to take her children to another location for the evening.

Cleveland police officer Brittan Jackson (“Ofc. Jackson”) testified that

on July 14th into the morning hours of July 15th, he was patrolling with a partner

when they received a radio assignment around midnight to respond to a domestic-

violence incident. The officers arrived at the victim’s home and learned that the

person who had allegedly violated the protection order had left the scene in his silver

Toyota Highlander. The victim came outside, appearing “visibly shaken.” (Tr. 231.)

The victim informed the officers that Asaba, whom she had a protection order

against, had entered the home. Ofc. Jackson confirmed that he advised the victim

to take the children to another location for the evening.

S.O., age 15, testified that on July 14, 2022, she was at home with her

mother and four siblings. Her father, Asaba, used to live there, but was not living

there on the date of the incident. According to S.O.’s testimony, she was in her

bedroom on the main floor of the home when her father walked in and asked about

her mother’s whereabouts in a “panicked” voice. (Tr. 253.) S.O. responded that she did not know where her mother was, because she was “told to” and also because she

“knew that he wasn’t supposed to be at the house[.]” (Tr. 253.) She also noted that

something “felt off” about the situation, so she texted her mother after he left the

room. (Tr. 254.) According to S.O., her father searched throughout the house and

asked all of her siblings where mother was; none revealed where mother was located,

and Asaba left the home.

H.O., age 13, testified he was at the family home on the date of the

incident and agreed that at the time of the incident, Asaba had not been living in the

home. H.O. was upstairs playing video games when he heard his father, Asaba, come

upstairs. He testified that his father was “angry, rushing . . . like he was trying to do

something, look for something.” (Tr. 270.) Father also asked H.O. where his mother

was, and he told his father that he did not know because he “felt the need to protect

her” since mother and father argue frequently and because he knew that his father

was not supposed to be at the home. (Tr. 270.) His father retreated downstairs, and

H.O. also texted his mother, asking why Asaba was in the home. H.O. testified that

his mother took him and his siblings to his cousin’s home where they stayed for the

night.

Detective Orville Taylor (“Det. Taylor”) testified that he was assigned

this case sometime after the July 14 incident. When asked if there was an active

protection order at the time of the July 14 incident, Det. Taylor responded

affirmatively and testified that he was able to verify this via a journal entry that

granted an emergency protection order following the July 12 court hearing. B. Counts 3 Through 5

In addition to the incident occurring on July 14, the victim also

testified about an incident in February 2023, where she made a police report

because of Asaba’s activities, and at this time, she did have a valid protection order.

She reported that Asaba had been repeatedly calling her and asking her to drop the

charges against him. She also testified that Asaba had sent other people to her home,

and specifically named one of these individuals as Obedi Aruna (“Obedi”). She

testified that Obedi, whom she did not immediately recognize, came to her home

and reminded her that they met at a Muslim community meeting and advised her to

drop the charges and leave the home because her life was at risk.

Cleveland police officer Rico Levert (“Ofc. Levert”) testified that he

took a report in February 2023, when the victim came into the police station. He

recalled that she “stated she wanted to report that her ex-husband was in violation

of a protection order. He had friends, I believe, contacting her for him trying to get

her to meet him somewhere.” (Tr. 310-311.) Ofc. Levert testified that after they

began talking, he realized he had taken a report from the victim about a year prior

that also pertained to Asaba.

Det. Taylor also testified that as he further investigated this matter,

the victim provided him with text messages from Asaba that were written in another

language that Det. Taylor translated himself with Google Translate. Det. Taylor

described the gist of the text messages as “trying to get her to drop the charges, not continue with the case, she’s costing him a lot of money. I believe one of them was

about they should get back together and live as husband and wife.” (Tr. 408.)

Nzitunga Gilbert Semivumbi (“Semivumbi”) testified that he is the

victim’s brother and that they were both born to the same family in the DRC and

then became refugees in Uganda.2 Semivumbi testified that he came to the United

States in 2013, and his sister and Asaba, who met and married in Uganda, moved to

the United States sometime after he did. According to Semivumbi, he had testified

in court on behalf of the victim pertaining to an earlier matter. Afterwards, Asaba

“called [him] and . . . told [him] to stop from coming [sic] to these cases.” (Tr. 293.)

He elaborated, “[Asaba] call[ed] several times and asked me not to get involved in

his cases until I had to block his number from my phone. And when I blocked him

he did the same through other people, at least two people, and they were telling me

to stop from getting involved in his own business.” (Tr. 293.)

Obedi testified that he arrived in the United States in 2018 from

Zimbabwe, where he was a refugee.3 Like Asaba, the victim, and Semivumbi, Obedi

was born in the DRC. He testified that he met Asaba and the victim in 2021, and

that “[n]either one of them is my close friend. We’re just in the Muslim community

2Interpreters relayed Semivumbi’s questioning and testimony.

Semivumbi elaborated that the victim is not his biological sister, but that their fathers are brothers. “In Africa I consider that relationship as my sister. And when we are here, we have to be closer and consider each other as brother and sister.” (Tr. 304.) 3 Interpreters relayed Obedi’s questioning and testimony. and that’s how we got to know all of them.” (Tr. 321.) Obedi testified that he was

only familiar with the victim because of a meeting where the topic of conversation

was Asaba and the victim’s relationship. (Tr. 323.) He testified that in the Congolese

community, it is typical for other members of the community to be involved in

“intimate matters” like this. (Tr. 324.)

According to Obedi, Asaba contacted him sometime in 2022 and gave

him the victim’s telephone number and address and asked Obedi to contact her and

“ask her to drop the case against him.” (Tr. 322.) Similar to Semivumbi, Obedi

testified that Asaba, upon finding out that he had testified for the victim in another

matter, “told me I should find a way to excuse myself, or to be unavailable so that I

don’t take part in the hearings.” (Tr. 326.) According to Obedi’s testimony, Asaba

threated to sell the marital home and deny the victim access to their children unless

the case was dropped. Obedi’s testimony expressed that there was significant

tension between Asaba and the victim and that he “became scared” for the victim

because Asaba indicated to him that “if things didn’t go [Asaba’s] way, he may seek

revenge on [the victim.]” (Tr. 327.)

C. Asaba’s Defense

Asha Omari (“Omari”), Asaba’s younger sister, testified in Asaba’s

defense.4 Omari testified that she received a phone call from the victim who

sounded extremely angry. She described the victim’s commentary as “shocking.”

4 Interpreters relayed Omari’s questioning and testimony. (Tr. 470.) As a result of the phone calls, she warned Asaba that the victim was saying

threatening things, including wishing death upon him. On cross-examination,

Omari admitted that the victim had been angry and impassioned because Asaba had

drained her primary bank account that she used to provide for the children.

Asaba testified in his own defense.5 He testified that after the hearing

on July 12, he immediately drove to Aliquippa, Pennsylvania and then Buffalo, New

York and then Burgaw, North Carolina as part of his work as a truck driver, and

because of the time that these drives took, could not have been at the victim’s home

on July 14, 2022. He maintained that by the time he went to the home, it was July

16, 2022, and the pending protection order had been denied and the emergency

protection order was lifted.

Asaba admitted that after the July 14 protection order was denied, the

victim did obtain a valid protection order in October 2022. He testified that while

this protection order was in place, he did not visit the home, send emails, send text

messages, or ask anyone to contact her on his behalf. He also denied intimidating

anyone and testified that he gave his phone to the police to search and they could

not find any indication that he contacted the victim.

Asaba generally testified that the victim was bringing these charges

maliciously and that she made their children testify in her favor because she wanted

to keep the marital home and custody of the children. He also insinuated that the

5 Asaba’s questioning and testimony were relayed via an interpreter. victim was having extramarital affairs and a sexual relationship with the men who

testified in her case-in-chief.

III. The Appeal

During trial, Omari testified about a phone call that she had with the

victim during which the victim made threatening statements towards Asaba.

Asaba’s sole assignment of error challenges the court’s evidentiary rulings that

ultimately precluded Omari from discussing the contents of her phone call with the

victim.

Asaba contends that the trial court’s ruling that Omari’s testimony

constituted inadmissible hearsay was in error. He argues that the trial court

precluded Omari from testifying as to the contents of the phone call because this

evidence was being offered for the truth of the matter being asserted. The State’s

brief addresses the admission of the actual audio recording of the phone call, which

Asaba’s brief does not address.

Hearsay is inadmissible if it is offered “to prove the truth of the matter

asserted.” Evid.R. 801(C). Here, the issue is whether Omari’s testimony as to the

contents of the phone call was offered “to prove the truth of the matter asserted,” as

the trial court held, or for another reason. Trial courts have broad discretion in the

admission or exclusion of evidence “unless it has clearly abused its discretion and

the defendant has been materially prejudiced[.]” State v. Hymore, 9 Ohio St.2d 122,

128 (1967). “Testimony which explains the actions of a witness to whom a

statement was directed . . . is not hearsay.” State v. Maurer, 15 Ohio St.3d 239, 262

(1984). A statement is also nonhearsay if it is offered to prove “a statement was

made and not for its truth” as well as to show a state of mind or explain an action.

(Citations omitted.) Id.

Asaba argues that Omari’s testimony was offered “to explain her

belief that [the victim] was going to ‘try and prevent [Asaba] . . . from having a

successful life here in the United States.’” (Tr. 464.) We agree. The testimony

regarding the contents of the phone call was not offered to prove that the victim

maliciously harmed Asaba. Rather, it was offered to demonstrate three distinct

things, all of which are nonhearsay: (1) why Omari felt that she needed to warn

Asaba that he was in danger, (2) that the victim’s state of mind towards Asaba was

angry, impulsive, and threatening, and (3) that the victim could be fabricating these

claims of domestic violence and violation of a protection order because she wanted

to complicate Asaba’s life. Thus, the court erroneously ruled that this testimony

should be excluded as inadmissible hearsay.

Nonetheless, “an error in the admission of evidence is harmless if

there is no reasonable possibility that the evidence may have contributed to the

accused’s conviction, and that in such cases there must be overwhelming evidence

of the accused’s guilt or some other indicia that the error did not contribute to the

conviction.” State v. DeMarco, 31 Ohio St.3d 191, 195 (1987), citing State v. Bayless,

48 Ohio St.2d 73 (1978). Asaba’s argument that this error was prejudicial deduces that this

testimonial evidence was pivotal in demonstrating the victim’s credibility. After a

thorough examination of the record, however, we disagree. Comparing this single

erroneous hearsay ruling to the totality of the evidence presented at trial, we cannot

say that there is a strong probability that Omari’s statements as to the contents of

the phone call would have resulted in Asaba’s acquittal on the remaining counts.

This was not the only evidence offered to impeach the victim’s credibility.

Indeed, the jurors heard Asaba’s testimony that (1) the victim was

lying to punish him and take the family home, (2) the victim had coached her

children into testifying in her favor, and (3) the victim allegedly had a romantic or

sexual relationship with one or both of the men who testified on her behalf. The jury

also had the benefit of hearing the victim’s direct testimony, cross-examination, and

even Omari’s cross-examination, during which Omari indicated that the victim

called her because Asaba drained the bank accounts and she was upset. All of this

evidence enabled the jury to determine the victim’s credibility and indeed, the jury

presumably did not find the victim credible as to the events that occurred on July

14, 2022, because Asaba was acquitted of all charges arising from that incident.

Accordingly, while it was error for the trial court to exclude Omari’s testimony about

the phone call, we cannot find that this error was prejudicial to Asaba. Accordingly,

we overrule Asaba’s assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

EMANUELLA D. GROVES, P.J., and MARY J. BOYLE, J., CONCUR