[Cite as State v. Salaam, 2015-Ohio-4552.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150092 C-150099 Plaintiff-Appellee, : TRIAL NO. 15CRB-1429
vs. : O P I N I O N.
ISMAIL SALAAM, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 4, 2015
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Melanie J. Reising, Senior Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} Defendant-appellant Ismail Salaam has appealed from the trial
court’s entry convicting him of domestic violence. Salaam challenges the trial court’s
admission of testimony about recorded jail telephone calls that he had made and the
sufficiency and the weight of the evidence supporting his conviction. We hold that
the trial court erred in admitting testimony regarding the recorded jail telephone
calls. But because the error was harmless, and because Salaam’s conviction was
supported by both the sufficiency and the weight of the evidence, we affirm the trial
court’s judgment.
Facts and Procedure
{¶2} The victim of Salaam’s offense was his live-in girlfriend, Maliyah
Housworth. On January 19, 2015, Housworth and Salaam got into an argument after
Salaam informed Housworth that he was leaving her. This upset Housworth, who
did not want Salaam to leave without paying their home’s electric bill. According to
Housworth, she and Salaam bumped into each other in the hallway after he told her
that he was leaving. Although the bump had been accidental, Salaam followed it by
purposely kicking Housworth on her behind, causing her pain. Housworth then
admittedly “went crazy,” because Salaam had kicked her. The two started “tussling
on the couch.” Housworth suffered a bruise on her behind, a scratch to her face, a
bruise on her arm, and an injury to her eye. Both Housworth and Salaam agreed
that, during this latter incident, Salaam was predominately attempting to restrain
Housworth while she swung at him.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Salaam was arrested and charged with domestic violence, in violation
of R.C. 2919.25(A), and his case proceeded to a bench trial. During trial, the state
offered rebuttal testimony from Cincinnati Police Officer Daniel Kowalski. Officer
Kowalski testified that he had monitored telephone calls to Housworth that Salaam
had made while incarcerated. Officer Kowalski had not been responsible for
recording the conversations; rather, the telephone calls had been recorded by a
Global Tel Network that automatically records all jail telephone conversations. After
accessing and reviewing Salaam’s telephone calls, Officer Kowalski requested and
received several discs containing recordings of these calls. The discs had been
generated by an employee of the Hamilton County Sheriff’s Department.
{¶4} Over Salaam’s objection, Officer Kowalski testified about the content
of the calls. During the calls, Salaam had stated that he had smacked Housworth
because she had “burned” him; that he would harm Housworth if she came to testify
in court; and that he would kill Housworth if he were sentenced to jail time.
Although the trial court allowed Officer Kowalski to testify about the content of these
telephone conversations, it sustained Salaam’s objection and did not allow the state
to admit the discs containing the recorded calls into evidence. The court determined
that the discs were a business record that had not been appropriately authenticated
by the person who maintained the record.
{¶5} At the close of evidence, the trial court found Salaam guilty as charged
and sentenced him to 180 days’ incarceration.
Evid.R. 1002
{¶6} In his first assignment of error, Salaam argues that the trial court
admitted Officer Kowalski’s testimony about the recorded jail telephone calls in
3 OHIO FIRST DISTRICT COURT OF APPEALS
violation of Evid.R. 1002. He contends that the original recorded conversations
should have been introduced to prove the content of the conversations. We review a
trial court’s decision to admit or exclude evidence for an abuse of discretion. See
State v. Woods, 1st Dist. Hamilton Nos. C-130413 and C-130414, 2014-Ohio-3892, ¶
39, citing State v. Buell, 22 Ohio St.3d 124, 133, 489 N.E.2d 795 (1986). An abuse of
discretion “connotes more than an error of law or of judgment; it implies an
unreasonable, arbitrary or unconscionable attitude on the part of the court.”
Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982).
{¶7} Evid.R. 1002 provides that “[t]o prove the content of a writing,
recording, or photograph, the original writing, recording, or photograph is required,
except as otherwise provided in these rules or by statute enacted by the General
Assembly * * *.” Evid.R. 1004 contains exceptions to this rule of law requiring the
original to be introduced into evidence. It provides that an original is not necessary
to prove the content of a writing, recording, or photograph if the original has been
lost or destroyed, the original cannot be obtained, the original is in the possession of
an opponent who will not produce it, or if the original concerns collateral matters
and is not closely related to a controlling issue. See Evid.R. 1004.
{¶8} Through Officer Kowalski’s testimony, the state introduced the content
of Salaam’s recorded jail telephone calls. So, absent one of the exceptions
enumerated in Evid.R. 1004, the admission of Officer Kowalski’s testimony was in
violation of Evid.R. 1002, which required that an original recording of the telephone
calls be introduced into evidence to prove the content of the calls. None of the
exceptions in Evid.R. 1004 were present in this case. The state had several discs
containing the original recordings of Salaam’s telephone calls in its possession and
4 OHIO FIRST DISTRICT COURT OF APPEALS
attempted to admit the recordings into evidence. But the trial court would not admit
the recordings, because they had not been properly authenticated by the employee of
the Hamilton County Sheriff’s Department who had generated them. The original
recordings of the telephone calls were not unavailable, and could have been
introduced into evidence if the state had taken the appropriate means to authenticate
them.
{¶9} Because the original recordings were necessary to prove the content of
the calls pursuant to Evid.R. 1002, the trial court erred in allowing Officer Kowalski
to testify about the content of Salaam’s jail telephone calls. See State v. Holland,
10th Dist. Franklin No. 73AP-290, 1974 Ohio App. LEXIS 3804, *3 (Mar. 12, 1974).
We must now determine whether the admission of this improper evidence requires
that Salaam be granted a new trial, or whether it constituted harmless error.
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[Cite as State v. Salaam, 2015-Ohio-4552.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150092 C-150099 Plaintiff-Appellee, : TRIAL NO. 15CRB-1429
vs. : O P I N I O N.
ISMAIL SALAAM, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 4, 2015
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Melanie J. Reising, Senior Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Presiding Judge.
{¶1} Defendant-appellant Ismail Salaam has appealed from the trial
court’s entry convicting him of domestic violence. Salaam challenges the trial court’s
admission of testimony about recorded jail telephone calls that he had made and the
sufficiency and the weight of the evidence supporting his conviction. We hold that
the trial court erred in admitting testimony regarding the recorded jail telephone
calls. But because the error was harmless, and because Salaam’s conviction was
supported by both the sufficiency and the weight of the evidence, we affirm the trial
court’s judgment.
Facts and Procedure
{¶2} The victim of Salaam’s offense was his live-in girlfriend, Maliyah
Housworth. On January 19, 2015, Housworth and Salaam got into an argument after
Salaam informed Housworth that he was leaving her. This upset Housworth, who
did not want Salaam to leave without paying their home’s electric bill. According to
Housworth, she and Salaam bumped into each other in the hallway after he told her
that he was leaving. Although the bump had been accidental, Salaam followed it by
purposely kicking Housworth on her behind, causing her pain. Housworth then
admittedly “went crazy,” because Salaam had kicked her. The two started “tussling
on the couch.” Housworth suffered a bruise on her behind, a scratch to her face, a
bruise on her arm, and an injury to her eye. Both Housworth and Salaam agreed
that, during this latter incident, Salaam was predominately attempting to restrain
Housworth while she swung at him.
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Salaam was arrested and charged with domestic violence, in violation
of R.C. 2919.25(A), and his case proceeded to a bench trial. During trial, the state
offered rebuttal testimony from Cincinnati Police Officer Daniel Kowalski. Officer
Kowalski testified that he had monitored telephone calls to Housworth that Salaam
had made while incarcerated. Officer Kowalski had not been responsible for
recording the conversations; rather, the telephone calls had been recorded by a
Global Tel Network that automatically records all jail telephone conversations. After
accessing and reviewing Salaam’s telephone calls, Officer Kowalski requested and
received several discs containing recordings of these calls. The discs had been
generated by an employee of the Hamilton County Sheriff’s Department.
{¶4} Over Salaam’s objection, Officer Kowalski testified about the content
of the calls. During the calls, Salaam had stated that he had smacked Housworth
because she had “burned” him; that he would harm Housworth if she came to testify
in court; and that he would kill Housworth if he were sentenced to jail time.
Although the trial court allowed Officer Kowalski to testify about the content of these
telephone conversations, it sustained Salaam’s objection and did not allow the state
to admit the discs containing the recorded calls into evidence. The court determined
that the discs were a business record that had not been appropriately authenticated
by the person who maintained the record.
{¶5} At the close of evidence, the trial court found Salaam guilty as charged
and sentenced him to 180 days’ incarceration.
Evid.R. 1002
{¶6} In his first assignment of error, Salaam argues that the trial court
admitted Officer Kowalski’s testimony about the recorded jail telephone calls in
3 OHIO FIRST DISTRICT COURT OF APPEALS
violation of Evid.R. 1002. He contends that the original recorded conversations
should have been introduced to prove the content of the conversations. We review a
trial court’s decision to admit or exclude evidence for an abuse of discretion. See
State v. Woods, 1st Dist. Hamilton Nos. C-130413 and C-130414, 2014-Ohio-3892, ¶
39, citing State v. Buell, 22 Ohio St.3d 124, 133, 489 N.E.2d 795 (1986). An abuse of
discretion “connotes more than an error of law or of judgment; it implies an
unreasonable, arbitrary or unconscionable attitude on the part of the court.”
Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982).
{¶7} Evid.R. 1002 provides that “[t]o prove the content of a writing,
recording, or photograph, the original writing, recording, or photograph is required,
except as otherwise provided in these rules or by statute enacted by the General
Assembly * * *.” Evid.R. 1004 contains exceptions to this rule of law requiring the
original to be introduced into evidence. It provides that an original is not necessary
to prove the content of a writing, recording, or photograph if the original has been
lost or destroyed, the original cannot be obtained, the original is in the possession of
an opponent who will not produce it, or if the original concerns collateral matters
and is not closely related to a controlling issue. See Evid.R. 1004.
{¶8} Through Officer Kowalski’s testimony, the state introduced the content
of Salaam’s recorded jail telephone calls. So, absent one of the exceptions
enumerated in Evid.R. 1004, the admission of Officer Kowalski’s testimony was in
violation of Evid.R. 1002, which required that an original recording of the telephone
calls be introduced into evidence to prove the content of the calls. None of the
exceptions in Evid.R. 1004 were present in this case. The state had several discs
containing the original recordings of Salaam’s telephone calls in its possession and
4 OHIO FIRST DISTRICT COURT OF APPEALS
attempted to admit the recordings into evidence. But the trial court would not admit
the recordings, because they had not been properly authenticated by the employee of
the Hamilton County Sheriff’s Department who had generated them. The original
recordings of the telephone calls were not unavailable, and could have been
introduced into evidence if the state had taken the appropriate means to authenticate
them.
{¶9} Because the original recordings were necessary to prove the content of
the calls pursuant to Evid.R. 1002, the trial court erred in allowing Officer Kowalski
to testify about the content of Salaam’s jail telephone calls. See State v. Holland,
10th Dist. Franklin No. 73AP-290, 1974 Ohio App. LEXIS 3804, *3 (Mar. 12, 1974).
We must now determine whether the admission of this improper evidence requires
that Salaam be granted a new trial, or whether it constituted harmless error.
Harmless error is that which is not prejudicial and does not affect the defendant’s
substantial rights. See Crim.R. 52(A); State v. Morris, 141 Ohio St.3d 399, 2014-
Ohio-5052, 24 N.E.3d 1153, ¶ 23.
{¶10} Officer Kowalski’s testimony revealed that Salaam had threatened
Housworth to prevent her from testifying against him, and that he had admitted to
slapping Housworth because she had “burned” him. After this testimony was
introduced, the state presented additional rebuttal testimony from Housworth.
Housworth explained that to “burn” someone was a slang term for infecting someone
with a sexually transmitted disease. She further testified that Salaam had not
slapped or smacked her during the January 19 incident, and that his reference to
slapping her because she had burned him concerned an entirely separate episode.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Salaam was found guilty of domestic violence under R.C. 2919.25(A),
which provides that “[n]o person shall knowingly cause or attempt to cause physical
harm to a family or household member.” Housworth testified that Salaam had
kicked her behind, and that this kick had caused her pain and left a bruise. This
testimony was sufficient to establish that Salaam had committed domestic violence.
Officer Kowalski’s testimony about the content of Salaam’s jail telephone calls did
not discuss, negate, or contradict this portion of Housworth’s testimony. And
because Housworth’s testimony provided ample evidence to sustain a conviction for
domestic violence, we find that the outcome of the proceedings would not have been
different had the offending evidence offered by Officer Kowalski been excised from
the record. The evidence did not impact the verdict or prejudice Salaam.
{¶12} Because the admission of testimony concerning the jail telephone calls
made by Salaam was harmless error, we overrule the first assignment of error.
Sufficiency and Weight
{¶13} In his second and third assignments of error, Salaam contends that his
conviction for domestic violence was not supported by sufficient evidence and was
against the manifest weight of the evidence. We consider these assignments
together.
{¶14} Following our review of the record, we find that when viewing the
evidence presented in the light most favorable to the prosecution, the trial court
could reasonably have found the elements of domestic violence proven beyond a
reasonable doubt. See State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). Nor was this the rare case in which the trier of fact lost its way and
committed such a manifest miscarriage of justice in convicting Salaam that his
6 OHIO FIRST DISTRICT COURT OF APPEALS
conviction must be reversed. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997). The trial court was in the best position to judge the credibility of
the witnesses. It was free to reject the testimony offered by Salaam and to find more
credible the testimony offered by Housworth.
{¶15} Salaam further contends that the trial court erred in failing to find that
he had acted in self-defense. A defendant asserting self-defense in a nondeadly-force
case must prove by a preponderance of the evidence “(1) that he was not at fault in
creating the situation; (2) that he reasonably believed that he needed to use some
force to defend himself against the imminent use of unlawful force; and (3) that the
force used was not likely to cause death or great bodily harm.” State v. Browner, 1st
Dist. Hamilton No. C-100247, 2010 Ohio App. LEXIS 5260, ¶ 8 (Dec. 15, 2010).
Here, our analysis ends at the first inquiry. The evidence clearly establishes that
Salaam was at fault in creating the violent situation. He instigated the entire
altercation when he kicked Housworth in the behind. The trial court did not err in
rejecting Salaam’s self-defense argument.
{¶16} Salaam last argues that the trial court should have found him guilty of
the lesser-included offense of minor-misdemeanor disorderly conduct. This court
may modify a defendant’s conviction when we find that the evidence establishes that
the defendant was not guilty of the crime for which he was convicted, but was guilty
of a lesser-included offense. See State v. Davis, 1st Dist. Hamilton No. C-040411,
2006-Ohio-4599, ¶ 13. But because we have determined that Salaam’s conviction for
domestic violence was supported by sufficient evidence, this argument is without
merit.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Salaam’s conviction was supported by both the sufficiency and the
weight of the evidence. The second and third assignments of error are overruled, and
the judgment of the trial court is affirmed.
Judgment affirmed.
CUNNINGHAM and MOCK, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.