State v. Habeeb-Ullah

2022 Ohio 3979

• Court: Ohio Court of Appeals
• Decided: November 7, 2022
• Docket: 2021-P-0102
• Status: Published

Opinion

[Cite as State v. Habeeb-Ullah, 2022-Ohio-3979.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO, CASE NO. 2021-P-0102

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

NAIM A. HABEEB-ULLAH, Trial Court No. 2018 CR 00374 Defendant-Appellant.

OPINION

Decided: November 7, 2022 Judgment: Affirmed

Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Naim A. Habeeb-Ullah, pro se, PID#: A760-153, North Central Correctional Complex, 670 Marion-Williamsport Road, P.O. Box 1812, Marion, OH 43302 (Defendant- Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Naim Habeeb-Ullah, appeals, pro se, the judgment of the

Portage County Court of Common Pleas convicting him of one count Gross Sexual

Imposition and sentencing him to five years imprisonment. For the reasons set forth

herein, the judgment is affirmed.

{¶2} Appellant and K.H. were married in August 2005. At the time of the

marriage, K.H. already had a son, D.D., and a daughter, C.M. During the marriage,

appellant and K.H. had one son, E.H., who was born in 2008. In January 2008, appellant and the family moved from Akron, Ohio to Kent, Ohio. They later returned to Summit

County in March 2012. And, in July 2015, the couple separated, although they did not

formally divorce.

{¶3} In early 2018, C.M. disclosed to K.H. two events which occurred between

her and appellant. In the first, which occurred in 2010, she awoke one night to find

appellant watching her sleep; he left when she asked him to. The second incident

occurred later in 2010. She disclosed that appellant had inappropriately touched her.

{¶4} As a result of the allegations, appellant was ultimately indicted on five

counts: Gross Sexual Imposition, Attempted Rape, Attempted Sexual Battery, Abduction,

and Kidnapping. Following a trial by jury, appellant was found guilty of Count One, Gross

Sexual Imposition, a felony of the third degree, in violation of R.C. 2907.05; Count Two,

Attempted Rape, a felony of the second degree, in violation of R.C. 2923.02 and R.C.

2907.02(A)(1)(b); and Count Three, Attempted Sexual Battery, a felony of the third

degree, in violation of R.C. 2923.02 and R.C. 2907.03(A)(5). Though the parties agreed

that all the counts merged for purposes of sentencing, the court nevertheless sentenced

appellant to five years in prison on Counts One and Three, and an indefinite term of five

to 25 years in prison on Count Two, all to run concurrently.

{¶5} Appellant appealed in 2019, and in State v. Habeeb-Ullah, 11th Dist.

Portage No. 2019-P-0006, 2019-Ohio-4517 this court affirmed in part, reversed in part,

and remanded the matter to the lower court. In his first appeal, appellant challenged, in

relevant part, the sufficiency of the evidence and the manifest weight of the evidence of

his convictions. This court determined that the counts should have merged for purposes

of sentencing and that the state intended to sentence on the count of Attempted Rape,

Case No. 2021-P-0102 even though the lower court erroneously sentenced him on all three counts. Accordingly,

this court only analyzed the sufficiency of the evidence as it related to Attempted Rape.

Ultimately, this court found that there was insufficient evidence to convict appellant of

Attempted Rape, vacated the conviction, and remanded the matter to the trial court.

{¶6} On remand, the lower court found that the state elected to proceed with

sentencing on Count One: Gross Sexual Imposition. In its revised judgment entry, the

court sentenced appellant to five years in prison, and informed him of his post-release

control and sex offender registration requirements.

{¶7} Appellant filed the instant appeal after the 30-day period provided by App.R.

4. However, this court granted his motion for delayed appeal, finding appellant stated

satisfactory reasons pursuant to App.R. 5(A), including delays due to COVID-19. The

state filed an untimely reply brief with a motion to reply instanter, which this court granted.

Appellant assigns one error, which states:

{¶8} The state failed to prove, beyond a reasonable doubt, the offense of Gross Sexual Imposition, and such is insufficient, as a matter of law.

{¶9} Under his sole assignment of error, appellant challenges the sufficiency of

the evidence the state presented at trial to support his conviction of Gross Sexual

Imposition. “A ‘sufficiency’ argument raises a question of law as to whether the

prosecution offered some evidence concerning each element of the charged offense.”

Habeeb-Ullah, supra, at ¶34, citing State v. Windle, 11th Dist. Lake No. 2010-L-0033,

2011-Ohio-4171, ¶25. “‘[T]he standard of review for a sufficiency of the evidence claim

is “whether after viewing the probative evidence and the inference[s] drawn therefrom in

the light most favorable to the prosecution, any rational trier of fact could have found all

the elements of the offense beyond a reasonable doubt. The claim of insufficient evidence 3

Case No. 2021-P-0102 invokes an inquiry about due process. It raises a question of law, the resolution of which

does not allow the court to weigh the evidence.” * * * “In essence, sufficiency is a test of

adequacy[;] [w]hether the evidence is legally sufficient to sustain a verdict * * *.”’ (Citations

omitted.)” State v. Rice, 11th Dist. Lake No. 2018-L-065, 2019-Ohio-1415, ¶65, quoting

State v. McFeely, 11th Dist. Ashtabula No. 2008-A-0067, 2009-Ohio-1436, ¶23.

{¶10} R.C. 2907.05, Gross Sexual Imposition, of which appellant was convicted,

states in pertinent part:

{¶11} (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

{¶12} * * *

{¶13} (4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.

{¶14} “Sexual contact,” as used in R.C. 2907.05, is defined as “any touching of an

erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic

region, or, if the person is a female, a breast, for the purpose of sexually arousing or

gratifying either person.” R.C. 2907.01(B).

{¶15} Appellant challenges the sufficiency of the evidence in three ways. First,

that C.M. testified that appellant touched her through her underwear, not her skin directly.

Second, he argues that C.M. “had no intention of disclosing” the incident but said it only

because she was angry. Third, he argues that the social worker, Julia Mothersbaugh,

testified that at the conclusion of her investigation, she found the allegation to be

“unsubstantiated.”

Case No. 2021-P-0102 {¶16} Our analysis necessarily begins with a discussion of the testimony and

evidence presented at trial. C.M. testified at trial regarding both incidents. The first

incident occurred in 2010, when she was 10-years-old. C.M. stated she awoke from sleep

to notice appellant sitting at the end of her bed. The child asked appellant what he was

doing. He responded he looked into her room, noticed what she was wearing (pajama

shorts and a tank top), and could not help but enter the room to look at her. C.M. was

concerned about the encounter and asked appellant to leave the room, which he did.

Nothing further happened.

{¶17} Then, later in 2010, C.M. had been playing outside and came in to take a

shower. Prior to doing so, she went downstairs to the laundry room wearing a shirt and

underwear. Unbeknownst to her, appellant was sitting in the living room in the dark.

Appellant pulled her into the living room and repeatedly stated “let me show you

something,” in a “low, eerie, * * * kind of seductive” voice. Appellant proceeded to place

C.M. on the couch, positioning her ankles on his shoulders and started “prying at [her]

vagina, like poking at it and touching around it” over her underwear for approximately a

minute. C.M. was able to “scoot” away, tell appellant “that wasn't okay,” and to stop.

Appellant stopped and begged C.M. not to tell anyone. There were no other allegations

of abuse.

{¶18} C.M. was asked why she waited over eight years to disclose the incidents,

she stated: “I watched my older brother grow up angry because he didn't have a father in

his life. And I didn't want [the incidents] to be the reason why my younger brother didn't

have a father in his life. That's why. I didn't want that for him. So I made the sacrifice and

just kept it to myself.” She also testified that although she did not disclose the incidents

Case No. 2021-P-0102 for years, during a conversation with her mother, K.H. implied that her bother’s poor

behavior was because he had a rough life, it angered her “a little bit” and she told her that

she had “been through things, too. Things nobody even knows about.”

{¶19} K.H. testified that C.M. disclosed the incident to her in January 2018. In

response, she, C.M.’s biological father, C.M.’s older brother, and C.M. all confronted

appellant, resulting in a physical altercation. She testified that after she was released

from jail following the confrontation, she took C.M. to the police to report the incident.

{¶20} Officer Burton testified that she took a written statement of the allegation

from C.M. in January of 2018 and referred the matter to Detective Travis. Detective Travis

testified that when she called appellant, he was cooperative. He spoke with her on the

phone twice. Detective Travis testified that in the first conversation with appellant he

denied anything had happened between him and C.M. but that he was at work at the time

of the call and could not discuss further. They made arrangements for a future phone

call. A partial recording of the second phone call was played at trial. In that call, appellant

admitted that there was an incident when C.M. was 11 years old and said that C.M. was

lying about the details. Appellant said one night, late at night, she came to him in her

underwear, disclosed a sexual encounter with a boy, asked him about sex, and started

touching herself in front of him. He stated that he told her to sit up, and she asked him

not to tell her mother because she was afraid of getting in trouble. He agreed not to tell

anyone.

{¶21} Ms. Peterson, a Pediatric Sexual Assault Nurse Examiner, testified that K.H.

brought C.M. in for an evaluation, during which C.M. disclosed the incident to her. C.M.

Case No. 2021-P-0102 declined a physical examination because she had recently been examined at another

medical facility. Ms. Peterson recommended C.M. attend counseling.

{¶22} Appellant, through counsel, presented testimony of a psychology expert

who testified that when a disclosure is delayed, the memory can become less clear. She

also admitted on cross-examination, however, that in this case, since both parties

remember the same event but disagree as to culpability, it is more likely that memory is

not the issue in this case, but the veracity of one of the versions of the incident.

{¶23} Appellant’s mother testified on his behalf that appellant, K.H., C.M., and

C.M.’s brothers lived with her between Thanksgiving 2011 and the end of the year. She

testified that during that time, she observed C.M. and appellant interact and that C.M.

embraced appellant like her biological father. Appellant’s sister testified appellant and

C.M. had a very loving relationship. Both appellant’s mother and sister testified that they

did not observe C.M. avoiding interaction with appellant.

{¶24} We turn now to appellant’s arguments, first addressing the argument that

the state failed to present sufficient evidence because C.M. testified that appellant

touched her over her clothes. However, contrary to appellant’s argument, “sexual

contact” does not require skin-on-skin contact, but any touching of an erogenous zone of

another even if through clothing. See State v. Mugrage, 11th Dist. Portage No. 2020-P-

0066, 2021-Ohio-4136, ¶124 (“[S]exual contact does not require that the offender have

skin-to-skin contact with an erogenous zone of the victim or, conversely, the victim with

the erogenous zone of the offender.”) and State v. Jones, 2nd Dist. Clark No. 2012-CA-

95, 2013-Ohio-3760, ¶21 (“Sexual contact does not require that the offender have skin-

Case No. 2021-P-0102 to-skin contact with an erogenous zone of the victim; a touching of an erogenous zone

covered by the victim’s clothing is sufficient.”)

{¶25} Thus, appellant’s first argument under his sole assignment of error is

without merit.

{¶26} Second, he argues that C.M. testified she had no intention of telling anyone

and that she was angry when she disclosed the incident to her mom. Appellant argues

that this shows C.M.’s statements were unreliable. This argument is not one of sufficient

evidence, but of the weight of the evidence, which appellant has not appealed. However,

even if we were to consider the weight of this evidence, we do not find it militates against

the jury’s finding of guilty.

{¶27} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather the other.’”

State v. Thompkins, 78 Ohio St.3d 380, 387, quoting Black’s Law Dictionary 1594 (6th

Ed.1990) (emphasis omitted). “An appellate court must review the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of the witnesses

determine whether, in resolving conflicts in the evidence, the [trier of fact] clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” (Citations omitted.) State v. Fiederer, 11th Dist. Lake

No. 2019-L-142, 2020-Ohio-4953, ¶12.

{¶28} “‘“Within a manifest weight of the judgment review, an appellate court

considers the credibility of the witnesses. Courts should only reverse based upon

manifest weight grounds in “the exceptional case in which the evidence weighs heavily

against the conviction.”’” Id., quoting Tompkins, supra, quoting State v. Martin, 20 Ohio

Case No. 2021-P-0102 App.3d 172, 175 (1st Dist.1983). “Moreover, ‘it is inappropriate for a reviewing court to

interfere with factual findings of the trier of fact (* * *) unless the reviewing court finds that

a reasonable juror could not find the testimony of the witness to be credible.’” Fiederer,

supra, quoting State v. Redman, 10th Dist. Franklin No. 10AP-654, 2011-Ohio-1894, ¶7.

{¶29} “Further, ‘[t]he trier of fact is free to believe or disbelieve all or any of the

testimony. * * * The trier of fact is in the best position to take into account inconsistencies,

along with the witnesses’ manner and demeanor, and determine whether the witnesses’

testimony is credible. * * * Consequently, although an appellate court must act as a

“thirteenth juror” when considering whether the manifest weight of the evidence requires

reversal, it must also give great deference to the fact finder’s determination of the

witnesses’ credibility. * * * ‘” State v. Elliott, 11th Dist. Portage No. 2008-P-0026, 2009-

Ohio-918, ¶37, quoting State v. Sevilla, 10th Dist. Frankin No. 06AP-954, 2007-Ohio-

2789, ¶13.

{¶30} We do not find this is the case in which the evidence weighs heavily against

the conviction. Certainly, C.M.’s state of mind when she disclosed the incident is relevant

to weighing the veracity of her statements. However, the jury, which was in the best

position to determine the witness’ credibility, was presented with this information and

determined C.M. to be truthful. Moreover, just because a statement is said in anger does

not necessarily make it untruthful. C.M.’s motive in telling her mother about the incident

could have been just to prove to her, as she stated, that she’s “been through things, too.”

We find a reasonable juror could find that C.M.’s testimony to be credible despite her

anger.

Case No. 2021-P-0102 {¶31} Third, appellant asserts that Julie Mothersbaugh, a social worker with

Summit County Children’s Services, testified that she found the allegation to be

unsubstantiated. However, the court did not permit Julie Mothersbaugh to testify to the

jury; her testimony was proffered. “Proffer testimony is not evidence.” In re Thomas, 5th

Dist. Tuscarawas Nos. 94AP060039 and 94PA060041, 1994 WL 728303, *1 (Dec. 27,

1994). As this testimony was not presented to the jury, it cannot be considered when

determining whether the jury lost its way in resolving conflicts in the evidence. Moreover,

any challenge to the court’s decision to exclude the testimony of Julie Mothersbaugh

could have been raised in appellant’s first appeal. As such, the doctrine of res judicata

prevents appellant from raising the matter now.

{¶32} Moreover, even if Julie Mothersbaugh’s testimony had been presented at

trial, we do not find it supports appellant’s argument. In her proffered testimony, Julie

Mothersbaugh found that C.M. had been removed from the abusive situation, had no

further contact with the perpetrator (appellant), that her mother was “getting her linked up

with Community Resources for counseling.” She also looked into concerns that there

was another young child, E.H., who was in the custody of the perpetrator. Ms.

Mothersbaugh determined that K.H. had stopped contact between appellant and E.H.,

which she apparently found satisfactory. She expressly stated, “the decision was since

the children were being protected by their mother, she was reaching out to resources,

she had community links to make those connections, the children were safe, we closed

the referral as unsubstantiated.” It appears from her proffered testimony that this

disposition was made not because she found the allegations against appellant to be

unsubstantiated, but because she determined that C.M. was safe in the care of her

Case No. 2021-P-0102 mother. Accordingly, even if Ms. Mothersbaugh’s testimony had been admitted at trial, it

does not support appellant’s argument in the appeal at bar.

{¶33} After careful review of the record, we find there was sufficient evidence to

convict appellant of Gross Sexual Imposition and that such conviction was not against the

manifest weight of the evidence. C.M. testified that appellant had touched her vaginal

area and that afterward, appellant had asked her to keep it secret. From these actions

and attempts at secrecy, the jury could have reasonably concluded that appellant had

touched C.M.’s erogenous zones for the purpose of his own sexual gratification. The

conviction for gross sexual imposition was, therefore, based upon sufficient evidence and

was not against the manifest weight of the evidence.

{¶34} Appellant’s sole assigned error is without merit.

{¶35} In light of the foregoing, the judgment of the Portage County Court of

Common Pleas is affirmed.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

Case No. 2021-P-0102