[Cite as State v. Mohamed, 2019-Ohio-3785.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


State of Ohio,                                :

                Plaintiff-Appellee,           :             No. 17AP-920
                                                      (C.P.C. No. 16CR-4257)
v.                                            :
                                                    (REGULAR CALENDAR)
Muhuba Mohamed,                               :

                Defendant-Appellant.          :




                                        D E C I S I O N

                                 Rendered on September 19, 2019


                On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                Taylor, for appellee.

                On brief: Sanjay K. Bhatt, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} This is an appeal by defendant-appellant, Muhuba Mohamed, from a
judgment of conviction and sentence entered by the Franklin County Court of Common
Pleas following a bench trial in which the trial court found appellant guilty of aggravated
vehicular homicide, a felony of the third degree.
        {¶ 2} On August 5, 2016, appellant was indicted on one count of aggravated
vehicular homicide, in violation of R.C. 2903.06, a felony of the second degree. The
indictment, which arose out of the death of a seven-month-old child, alleged the offense
occurred on June 2, 2016. Appellant waived her right to a jury trial, and the trial court
conducted a bench trial beginning October 2, 2017. Two court interpreters translated on
behalf of appellant, a Somali native.
No. 17AP-920                                                                                  2

       {¶ 3} Prior to trial, plaintiff-appellee, State of Ohio, provided notice of its intent to
introduce other acts evidence with respect to a driving citation issued by a highway patrol
officer to appellant four days prior to the events at issue in the instant case. Specifically,
State Highway Patrol Trooper Tiffany Kohls testified that, on May 29, 2016 (part of the
Memorial Day weekend), she responded to a one-vehicle accident on Interstate 71 in
Delaware County. The vehicle, driven by appellant, had "crashed into the median cable
barrier which rendered it undriveable." (Oct. 2, 2017 Tr. at 18.) The trooper determined
appellant was driving alone at the time of the incident. Appellant provided the trooper
with an operator's license that was "not just a standard operator's license." (Oct. 2, 2017
Tr. at 20.) Due to a busy workload during the Memorial Day weekend, the trooper
"basically just assumed that it was a valid operator's license." (Oct. 2, 2017 Tr. at 20.)
Had Trooper Kohls been aware at the time that appellant only possessed a temporary
license, and "without a valid licensed driver in the vehicle," the trooper "would have cited
her for driving without a valid operator's license." (Oct. 2, 2017 Tr. at 21.)
       {¶ 4} Appellant "had a bunch of warrants out for her arrest." (Oct. 2, 2017 Tr. at
19.) However, because of the busy holiday weekend, the trooper only issued her a citation
for failure to control and permitted her to leave the scene with "friends or family" who had
arrived shortly after the incident. (Oct. 2, 2017 Tr. at 19.) Following the trooper's
testimony, the trial court determined the evidence was admissible under Evid.R. 404(B).
       {¶ 5} Steve New, age 35, resides on Westerville Road. At trial, New identified
several pictures depicting a Toyota Rav4 that "ran into my house" on June 2, 2016.
(Oct. 2, 2017 Tr. at 26.) On that date, New was outside watering flowers when he heard a
sound near his mailbox. New observed "a young fellow * * * flying over the top of the car."
(Oct. 2, 2017 Tr. at 27-28.) New was unaware at the time that a baby was also involved.
       {¶ 6} The driver hit a mailbox, and then "she went right straight through the yard
and ran into my house." (Oct. 2, 2017 Tr. at 29-30.) New was "standing there going, stop,
stop, stop, stop." (Oct. 2, 2017 Tr. at 30.) New did not observe any effort on the part of
the driver to apply brakes to the vehicle, nor did he observe anyone else inside the vehicle.
New ran out to the front of his house and told his wife to dial 911.
       {¶ 7} The driver, a female, exited the car and "ran back to where the accident
scene was, screaming and hollering." (Oct. 2, 2017 Tr. at 28.) New first made contact
No. 17AP-920                                                                                  3

with the driver when she returned to her vehicle to retrieve something. New asked the
driver if she knew what happened and if she was okay, but the driver did not respond. At
one point after the incident, New observed the driver speaking on her phone. New had
also observed the phone in the driver's right hand "when she was coming through the
yard." (Oct. 2, 2017 Tr. at 36.)
       {¶ 8} A van subsequently approached the area; the "side door was open" and
individuals inside the van were talking to the driver. (Oct. 2, 2017 Tr. at 37.) New "was
telling her that she can't leave." (Oct. 2, 2017 Tr. at 37.) A police officer soon arrived, as
well as an emergency vehicle. New, who has a security camera installed at his residence,
identified state's Exhibit B as video of the incident captured from his surveillance system.
The state played the recording during the bench trial.
       {¶ 9} On June 2, 2016, Kenneth Ray Stepp, age 46, was riding a motorcycle
southbound on Westerville Road at approximately 3:30 p.m. As he was approaching a
corner, he observed "the guy coming off the top of the car." (Oct. 2, 2017 Tr. at 54.) Stepp
pulled his motorcycle up to where the accident occurred, and he observed "a baby laying
there on the ground." (Oct. 2, 2017 Tr. at 54.) At trial, Stepp identified a photograph
depicting his motorcycle and a baby stroller at the scene. When Stepp arrived at the
scene, the baby was approximately five to seven feet from the stroller.
       {¶ 10} Stepp, as well as a female motorist who had stopped at the scene, performed
CPR on the baby. He noticed "immediate swelling * * * of the baby's head." (Oct. 2, 2017
Tr. at 59.) Stepp testified that he "literally saw the baby take its last breath." (Oct. 2, 2017
Tr. at 59.) Paramedics soon arrived at the scene.
       {¶ 11} Stepp observed only "the lady in the car. There was nobody else in the car
with her." (Oct. 2, 2017 Tr. at 60.) At trial, Stepp identified appellant as the driver of the
vehicle. Following the incident, the father of the baby "wanted to go after the lady, but I
was holding him back from doing that." (Oct. 2, 2017 Tr. at 61.) Another female at the
scene "went * * * after her. But the police officer was able to grab her and tackle her
down, to keep her from getting hold of her." (Oct. 2, 2017 Tr. at 61.) Stepp observed
"many people there, trying to pray for the baby." (Oct. 2, 2017 Tr. at 61.)
       {¶ 12} Nafiso Jamale is employed as a unit coordinator at Nationwide Children's
Hospital. On June 2, 2016, Jamale was driving southbound on Westerville Road when
No. 17AP-920                                                                              4

she observed a car had driven through a yard. Jamale also observed a man along the side
of the road with a baby. Jamale exited her vehicle, and the man was "saying, My baby.
My baby." (Oct. 2, 2017 Tr. at 65.) Jamale and another man at the scene performed CPR
on the baby.
       {¶ 13} Jamale, who speaks Somali, began talking to appellant at the scene. Jamale
helped appellant write out a statement to police. Jamale wrote down what appellant was
saying. Appellant stated that she was driving and she "didn't know where the man and
the baby came from." (Oct. 2, 2017 Tr. at 70.) Further, "she doesn't know how she lost
control." (Oct. 2, 2017 Tr. at 72.) Jamale asked appellant whether anyone was with her
and she said no, but then said yes.
       {¶ 14} Franklin County Sheriff's Deputy John Kirby is assigned to the department's
accident and investigation unit. Deputy Kirby determined that appellant was the driver of
the at-fault vehicle on June 2, 2016. Deputy Kirby stated there was no evidence anyone
else was in the vehicle with appellant at the time of the accident. The deputy identified
the adult male struck by appellant's vehicle as Kenan Ferebee. Appellant had a temporary
driver's permit, requiring the permit holder to be accompanied by a licensed driver.
Appellant underwent blood tests, and no alcohol or drugs were detected.
       {¶ 15} Deputy Kirby obtained appellant's cell phone records as part of the
investigation. The records indicated appellant was not making or actively receiving a
phone call at the time of the accident. The records would not indicate activity with respect
to multimedia messages, text messages sent as multimedia messages, or internet usage.
       {¶ 16} Kenan Ferebee, age 24, is the father of M.F., age seven months. On the
afternoon of June 2, 2016, Ferebee walked to a nearby drive-thru, located approximately
ten minutes walking distance from his residence. Ferebee was pushing his son in a
stroller. On his return from the store, Ferebee was walking northbound on the shoulder
of Westerville Road. One of the stroller wheels became stuck, and he "stopped to fix it.
The next thing I know I was in the air." (Oct. 3, 2017 Tr. at 107.) The car struck Ferebee
in the back. As soon as he got up, he observed his baby "laying on the ground." (Oct. 3,
2017 Tr. at 107.) Ferebee "ran over there and took the stroller off of him." (Oct. 3, 2017
Tr. at 107.) Ferebee picked up his son and then motioned to passing motorists for help. A
No. 17AP-920                                                                                          5

sheriff later took Ferebee to a hospital; approximately 15 minutes after arrival, a doctor
informed Ferebee that his son had died.
        {¶ 17} At trial, the parties entered into certain stipulations. If called to testify,
Adam Balle, the owner of Balle Auto Sales, would have testified that on June 2, 2016, he
was working at Balle Auto Sales, located on 3444 Westerville Road. On that date, he
agreed to sell a Toyota Rav4 "with the VIN number that matches to" appellant. (Oct. 3,
2017 Tr. at 112.) Shortly before 4:50 p.m., appellant left Balle Auto Sales "as the sole
occupant and driver of the Toyota Rav4 with the appropriate VIN number." (Oct. 3, 2017
Tr. at 112.)
        {¶ 18} It was further stipulated that, if called to testify, Dr. Kent Harshbarger, a
forensic pathologist with the Franklin County Coroner's Office, would testify he
performed an autopsy of M.F. on June 4, 2016. Dr. Harshbarger "would testify that
[M.F.] suffered multiple blunt force injuries to the head and torso, including a fractured
skull, a fractured clavicle, a fractured femur and multiple internal injuries." (Oct. 3, 2017
Tr. at 113.) Dr. Harshbarger would further state that "the cause of death * * * was blunt
force injury of the head." (Oct. 3, 2017 Tr. at 113.)
        {¶ 19} Following the presentation of evidence, the trial court found appellant guilty
of the lesser-included offense of aggravated vehicular homicide, a felony of the third
degree.1 By judgment entry filed November 29, 2017, the trial court imposed a 36-month
sentence, as well as a lifetime driver's license suspension.
        {¶ 20} On appeal, appellant sets forth the following three assignments of error for
this court's review:
                [I.] The evidence was legally insufficient to support
                Appellant's conviction for Aggravated Vehicular Homicide.

                [II.] The trial court prejudicially erred when it permitted the
                State to present, over objection, testimony and evidence
                concerning Appellant's driving and involvement in a one-
                vehicle accident on May 29, 2016.

                [III.] Appellant's conviction was against the manifest weight
                of the evidence.

1 The trial court reduced the offense from a second-degree felony to a third-degree felony based on the

court's determination that the state failed to prove appellant was operating the vehicle without a valid
license.
No. 17AP-920                                                                               6


       {¶ 21} For purposes of review, we will consider appellant's first and second
assignments of error in inverse order. Under the second assignment of error, appellant
contends the trial court erred in permitting the state, over objection, to present evidence
concerning her driving and involvement in a one-vehicle accident on May 29, 2016, four
days prior to the events at issue in this case. Appellant, asserting that the record does not
indicate the reason for the one-vehicle accident on Interstate 71, maintains the evidence
was not admissible under Evid.R. 404(B) as it served only to offer a description of
character and tendency to act in conformity therewith.
       {¶ 22} In response, the state argues that evidence related to the single-car crash
just four days earlier was relevant for the non-propensity purpose of showing appellant's
level of knowledge and recklessness at the time of her driving on June 2, 2016. The state
further argues appellant provided no evidence to suggest the crash may have occurred due
to other reasons; rather, the state maintains, the evidence at trial excluded adverse
weather conditions, and the crash report indicated the sole contributing circumstance to
the crash was appellant's failure to control the vehicle in veering to the left and crashing
into the median cable.
       {¶ 23} Evid.R. 404(B) provides:
              Other crimes, wrongs or acts. Evidence of other crimes,
              wrongs, or acts is not admissible to prove the character of a
              person in order to show action in conformity therewith. It
              may, however, be admissible for other purposes, such as proof
              of motive, opportunity, intent, preparation, plan, knowledge,
              identity, or absence of mistake or accident.

       {¶ 24} The Supreme Court of Ohio has set forth a "three-step analysis" for trial
courts in considering whether to admit other acts evidence. State v. Williams, 134 Ohio
St.3d 521, 2012-Ohio-5695, ¶ 19. Specifically, a trial court is to (1) "consider whether the
other acts evidence is relevant to making any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence"
under Evid.R. 401, (2) "consider whether evidence of the other crimes, wrongs or acts is
presented to prove the character of the accused in order to show activity in conformity
therewith or whether the other acts evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B)," and (3) "consider whether the probative value of the
No. 17AP-920                                                                               7

other acts evidence is substantially outweighed by the danger of unfair prejudice." Id. at
¶ 20.
        {¶ 25} An appellate court's "review of a trial court's decision regarding the
admissibility of other crimes, wrongs, or acts under Evid.R. 404(B) is conducted under an
abuse-of-discretion standard." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 1.
        {¶ 26} On review, we find the trial court did not abuse its discretion in admitting
evidence of appellant's single-car crash four days prior to the events at issue in this case.
Evid.R. 404(B) allows the admission of other acts evidence if offered for a permissible
purpose, including knowledge. For purposes of R.C. 2903.06, the culpable mental state
for the offense of aggravated vehicular homicide is recklessness. State v. Shutes, 8th Dist.
No. 105694, 2018-Ohio-2188, ¶ 42. Under Ohio law, "proof of knowledge is also proof of
recklessness." State v. Chambers, 4th Dist. No. 10CA902, 2011-Ohio-4352, ¶ 34. See also
State v. Villa-Garcia, 10th Dist. No. 03AP-384, 2004-Ohio-1409, ¶ 28, citing R.C.
2901.22(E) ("When recklessness is an element of an offense, knowledge or purpose is also
sufficient culpability to establish this element.").
        {¶ 27} Here, we agree with the state that the evidence was presented for a proper
purpose to prove appellant's knowledge that, without the presence of a licensed driver in
the vehicle, she had been unable to control the vehicle she was driving, i.e., the fact
appellant was involved in a one-vehicle accident only four days prior to the offense of
June 2, 2016, in which she was cited for failure to control, went to her knowledge of the
risk she posed to others in choosing to drive unaccompanied by a licensed driver. We also
agree with the state that the evidence meets the low threshold of relevancy in showing
that appellant was on notice of her inexperience and lack of control when unaccompanied
by a licensed driver. Further, evidence of knowledge was probative as to the issue of
recklessness, and the potential of unfair prejudice was reduced as this was a bench trial.
See, e.g., State v. Johnson, 8th Dist. No. 87776, 2006-Ohio-6593, ¶ 14 (finding admission
of Evid.R. 404(B) evidence proper and noting "[i]n a bench trial, it is presumed that the
court considers only relevant, material, and competent evidence in reaching its decision").
        {¶ 28} Finding no abuse of discretion by the trial court in admitting evidence as to
the prior accident, appellant's second assignment of error is not well-taken and is
overruled.
No. 17AP-920                                                                                8

       {¶ 29} Appellant's first and third assignments of error are interrelated and will be
considered together. Under these assignments of error, appellant challenges her
conviction for aggravated vehicular homicide as not supported by sufficient evidence and
as against the manifest weight of the evidence.
       {¶ 30} With respect to her sufficiency argument, appellant contends there was no
evidence she was reckless in her conduct on June 2, 2016. Appellant maintains she was
driving on Westerville Road at 4:50 p.m. and lost control of her vehicle. In that brief
moment, Ferebee and his son had stopped on a narrow shoulder of the road; the stroller's
wheel was struck, and Ferebee stopped to fix it. Appellant argues she was not impaired at
the time, and was not using her phone when she lost control of the vehicle. Appellant
further argues the evidence did not indicate she was an inexperienced driver.
       {¶ 31} In considering a challenge to the sufficiency of the evidence, "the test is
whether after viewing the probative evidence and inferences reasonably drawn therefrom
in the light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt." State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 32} By contrast, in addressing a manifest weight challenge, an appellate court
"must review the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and 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." State v. Munoz, 10th Dist. No.
11AP-475, 2011-Ohio-6672, ¶ 8. Under Ohio law, "[t]he power to reverse on manifest-
weight grounds should only be used in exceptional circumstances when 'the evidence
weighs heavily against the conviction.' " State v. Phillips, 10th Dist. No. 14AP-79, 2014-
Ohio-5162, ¶ 125, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
       {¶ 33} R.C. 2903.06 sets forth the offense of aggravated vehicular homicide, and
R.C. 2903.06(A)(2)(a) states in part: "No person, while operating or participating in the
operation of a motor vehicle * * * shall cause the death of another * * * [i]n one of the
following ways: * * * [r]ecklessly."      Pursuant to R.C. 2901.22(C), "[a] person acts
recklessly when, with heedless indifference to the consequences, the person disregards a
substantial and unjustifiable risk that the person's conduct is likely to cause a certain
No. 17AP-920                                                                                                9

result or is likely to be of a certain nature." Further, "[a] person is reckless with respect to
circumstances when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that such circumstances are likely to exist."
Id.2
        {¶ 34} As noted, appellant contends the evidence fails to support a finding of
recklessness. At the close of the bench trial, the trial court made the following findings on
the issue of recklessness. The trial court initially deemed it "notable" that appellant,
several days prior to the incident at issue, "had just been cited for failure to control on the
freeway in a one-car accident where she went off the side of the [roadway] striking the
barrier." (Oct. 3, 2017 Tr. at 137.)
        {¶ 35} As to the events of June 2, 2016, the court noted appellant was driving in a
"residential neighborhood during the busy time of day where people were getting off of
work, kids were getting out of school," and "there was heavy traffic." (Oct. 3, 2017 Tr. at
137.) The trial court found appellant "was an inexperienced driver with no one in the car
with her," that she "veered to the right" and "hit a mailbox, continued through two or
three yards, and then hit a house. But even before the mailbox that she hit, there was a
bright orange fire hydrant, and for some reason that did not stop her." (Oct. 3, 2017 Tr. at
137-38.)
        {¶ 36} In reviewing the surveillance video of the events, the trial court noted the
fact that, after appellant "hit the victim and his father, she still did not hit the brakes. The
only thing that stopped her was the house. She kept going at a speed, and she did not hit
her brakes. She did not even turn the steering wheel." (Oct. 3, 2017 Tr. at 138.) Citing
evidence that "[i]t was daytime," there was "ample lighting," the father was wearing "a
white tank top and he was pushing a brightly-colored stroller," the court found "there was
no reason to think that [appellant] did not see them." (Oct. 3, 2017 Tr. at 138.) Further,
"[t]here was nothing obstructing her view," and "[s]he hit the victims hard enough to
injure the father and kill the baby." (Oct. 3, 2017 Tr. at 138.) The court also found
appellant "knowingly violated the restriction on her license a week after being in a car


2 Pursuant to R.C. 2901.01(A)(7), "[r]isk" is defined to mean "a significant possibility, as contrasted with a
remote possibility, that a certain result may occur or that certain circumstances may exist." R.C.
2901.01(A)(8) defines "[s]ubstantial risk" to mean "a strong possibility, as contrasted with a remote or
significant possibility, that a certain result may occur or that certain circumstances may exist."
No. 17AP-920                                                                               10

accident." (Oct. 3, 2017 Tr. at 138.) Based on the "totality of the circumstances," the trial
court concluded appellant's conduct "does amount to reckless conduct," and the court
therefore found her guilty of "aggravated vehicular homicide, a felony of the third degree."
(Oct. 3, 2017 Tr. at 138.)
       {¶ 37} On review, we find sufficient evidence supports the trial court's
determination. Here, the evidence indicates appellant had a temporary driver's permit
during the relevant time period, requiring her to be accompanied by a licensed driver.
Four days prior to the events at issue, appellant was cited for failure to control after the
car she was driving, unaccompanied by a licensed driver, "went off the left side of the
roadway striking the median cable barrier." (May 29, 2016 Traffic Crash Report.)
       {¶ 38} On June 2, 2016, appellant was again driving without the presence of a
licensed driver, having just purchased a vehicle from a dealership on Westerville Road;
appellant's vehicle traveled only a short distance from the car dealership before striking
Ferebee and his infant son. The state's evidence included surveillance video of the events
supporting the trial court's finding there was nothing to obstruct appellant's view of
Ferebee walking on the shoulder of the road, i.e., it was daytime, Ferebee was wearing a
white shirt and pushing a brightly-colored stroller.       The evidence also supported a
reasonable inference as to appellant's inexperience and/or lack of driving skill and
inability to control her vehicle. Specifically, the surveillance video indicates that, even
after the vehicle veered toward the shoulder of the road and hit Ferebee and his infant
son, appellant made no attempt to apply brakes or to correct the course of the vehicle as it
traveled through the yard; rather, the vehicle only came to a stop as a result of striking the
house. Testimony by the homeowner indicated appellant was holding her cellphone in
her right hand as she traveled through the yard, and appellant subsequently indicated she
"didn't know where the man and baby came from," strongly suggesting that her focus was
elsewhere at the time of the events.
       {¶ 39} At trial, the state argued the incident four days earlier, in which appellant,
driving alone, veered off the road and crashed into a median cable, "would place her on a
heightened sense of awareness that perhaps she is not a good driver and needs someone
else with her," and that such factor "goes to her knowledge about disregarding a
substantial and unjustifiable risk." (Oct. 3, 2017 Tr. at 120-21.) We agree. The evidence
No. 17AP-920                                                                              11

presented gave rise to a reasonable inference that appellant, who was required to have a
licensed driver with her at all times, had knowledge of the danger she posed driving alone
based on her failure to control the vehicle she was operating just four days before the
tragic events at issue. Despite that knowledge, she again chose to drive unaccompanied
by a licensed driver. Here, the trier of fact could have reasonably concluded that the
evidence, in its totality, supported a finding that appellant, with heedless indifference to
the consequences, disregarded a substantial and unjustifiable risk in operating a vehicle
on the date of the events. Construing the evidence most strongly in favor of the state, we
find there was sufficient evidence as to the element of recklessness and, therefore, the
conviction for aggravated vehicular homicide was supported by legally sufficient evidence.
       {¶ 40} As indicated, appellant also challenges her conviction as against the
manifest weight of the evidence. We note that, in a bench trial, "the trial court assumes
the fact-finding function of the jury." Cleveland v. Welms, 169 Ohio App.3d 600, 2006-
Ohio-6441, ¶ 16 (8th Dist.). Further, under Ohio law, "the weight to be given evidence
and credibility to be afforded testimony are issues for the trier of fact." State v. Simmons,
4th Dist. No. 13CA4, 2013-Ohio-2890, ¶ 11.
       {¶ 41} Appellant's manifest weight argument is similar to her sufficiency challenge,
i.e., she contends the record does not support a finding that her conduct was reckless. We
find, however, the record contains evidence upon which a rational trier of fact could find
recklessness, and we conclude the trial court did not lose its way or create a manifest
miscarriage of justice in finding appellant guilty of aggravated vehicular homicide.
       {¶ 42} Appellant's first and third assignments of error are not well-taken and are
overruled.
       {¶ 43} Based on the foregoing, appellant's three assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.

                          SADLER and BRUNNER, JJ., concur.

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