[Cite as State v. Habeeb-Ullah, 2019-Ohio-4517.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                     :    OPINION

                 Plaintiff-Appellee,               :
                                                        CASE NO. 2019-P-0006
        - vs -                                     :

NAIM A. HABEEB-ULLAH,                              :

                 Defendant-Appellant.              :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR
00374.

Judgment: Affirmed in part, reversed in part, and remanded.


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

Wesley A. Johnston, P.O. Box 6041, Youngstown, OH               44501 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Naim A. Habeeb-Ullah, appeals from the judgment of conviction

entered by the Portage County Court of Common Pleas. We affirm in part, reverse in

part, and remand the matter for further proceedings.

        {¶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.

      {¶3}   On January 4, 2018, C.M. and her mother were having a discussion

regarding some troubling behavior D.D. had been exhibiting. K.H. indicated that D.D.

had a rough life and this could explain his behavior. This angered C.M. causing her to

tell her mother she had been through rough things as well, she simply never discussed

them with anyone. C.M. subsequently related two events which occurred between her

and appellant. The first, 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.

      {¶4}   Then, later in 2010, C.M. had been playing outside and prepared 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.




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

incidences, 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 incidences] 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.” After the disclosure, K.H. reported

C.M.’s statements to the Kent police department.       During an interview with police,

appellant admitted he recalled the circumstances of the event described by C.M. but

disputed he touched the child. Instead, he stated C.M. touched herself as he watched

and, afterwards, C.M. begged him not to tell anyone.

      {¶6}   In April 2018, appellant was indicted on one count of gross sexual

imposition (“GSI”), in violation of R.C. 2907.05, a felony of the third degree; attempted

rape, in violation of R.C. 2923.02 and R.C. 2907.02(A)(1)(b), a felony of the second

degree; attempted sexual battery, in violation of R.C. 2923.02 and R.C. 2907.03(A)(5), a

felony of the third degree; abduction, in violation of R.C. 2905.02, a felony of the third

degree; and kidnapping, in violation of R.C. 2905.01, a felony of the first degree. Two

additional counts were dismissed prior to commencement of trial.

      {¶7}   After a trial by jury, appellant was found guilty of GSI, attempted rape, and

attempted sexual battery, all as alleged in the indictment. After the sentencing hearing,

the parties agreed that all counts merged for purposes of sentencing. The trial court

nevertheless ordered appellant to serve five years for GSI; an indefinite term of five to

25 years for attempted rape; and five years for attempted sexual battery.           Each

sentence was ordered to run concurrently. Appellant was also labeled a Tier III sex




                                            3
offender and was notified of his registration obligations. Appellant now appeals and

asserts four errors for this court’s consideration. We shall address them out of order.

       {¶8}   We first point out, appellant’s second, third, and fourth assigned errors

relate to instances where the trial court excluded evidence. Only evidence which is

relevant is admissible. Evid.R. 402. “The admission or exclusion of relevant evidence

rests within the sound discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173

(1987), paragraph two of the syllabus. The phrase “abuse of discretion” is one of art,

“connoting judgment exercised by a court which neither comports with reason, nor

the record.” State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶30.

       {¶9}   Appellant’s second assignment of error asserts:

       {¶10} “The trial court committed prejudicial error by not allowing appellant’s

witness to state character for truthfulness or untruthfulness of another.”

       {¶11} Under his second assignment of error, appellant contends the trial court

erred by not permitting his counsel to question his mother, N.A., regarding C.M.’s

character for truthfulness or untruthfulness. Appellant maintains, pursuant to Evid.R.

608(A)(1), he should have been permitted to inquire into C.M.’s character for

truthfulness or untruthfulness.

       {¶12} Evid.R. 608(A)(1) provides:

       {¶13} The credibility of a witness may be attacked or supported by
             evidence in the form of opinion or reputation, but subject to these
             limitations: (1) the evidence may refer only to character for
             truthfulness or untruthfulness, and (2) evidence of truthful character
             is admissible only after the character of the witness for truthfulness
             has been attacked by opinion or reputation evidence or otherwise.

       {¶14} Evid.R. 608(A)(1) permits a party to attack the credibility of a witness via

opinion testimony if it refers to his or her character for untruthfulness. N.A. testified that



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in late 2011 through early 2012, appellant’s family, including C.M., lived with her. She

stated she assisted C.M. with cooking, bathing, homework, and other daily activities

during this time. Nevertheless, N.A. only had significant day-to-day ties with C.M. for

some three months approximately six years prior to C.M.’s disclosure. Because

appellant failed to establish a closer temporal connection between N.A.’s significant

contact with C.M. and the January 2018 allegation, there was no foundation for her

opinion as to C.M.’s character for truthfulness.      A child’s personality and character

evolves over time and, to be certain, the six-year period between the ages of 12 and 18

represent a significant evolution in a person’s perspective and character. Without a

foundation, we conclude the testimony at issue was not relevant.

       {¶15} Moreover, as appellant points out, there was evidence presented, in the

form of expert testimony, that a person may be motivated by illegitimate ends to

fabricate a story, whether to garner favor with another or to satisfy a personal agenda.

The jury, therefore, was aware of the possibility of an individual to invent or modify a

memory, whether inadvertently or intentionally. Given these points, we find no error in

the court’s exclusion.

       {¶16} Appellant’s second assignment of error is without merit.

       {¶17} Appellant’s third assignment of error provides:

       {¶18} “The trial court erred when it denied Children Service Board social worker

from testifying regarding the agency’s classification of the investigation.”

       {¶19} Under this assignment of error, appellant contends the trial court erred by

excluding the testimony of a social worker from the Summit County Children’s Services

Board (“SCCSB”).




                                             5
       {¶20} At trial, appellant proffered the testimony of SCCSB social worker, Julie

Mothersbaugh.      Pursuant to the proffer, appellant asserts Ms. Mothersbaugh would

have testified that the Portage County Child Advocacy Center (“CAC”), with whom

SCCSB had contact at the time C.M.’s allegations were disclosed, indicated no sexual

abuse occurred; that C.M.’s mother, K.H., was uncooperative with SCCSB’s attempts to

interview her and her children regarding the allegations; and SCCSB closed C.M.’s case

after 60 days, concluding the allegations were unsubstantiated. He maintains these

points were relevant to his defense and would have served to provide the jury with a

broader view of the investigative process. Thus, he concludes, the trial court abused its

discretion in excluding Ms. Mothersbaugh’s proposed testimony. We do not agree.

       {¶21} First of all, two of the state’s witnesses, Nurse Rachel Patterson, who

works with CAC and interviewed C.M. vis-à-vis the allegations, and Dr. Paul

McPherson, a pediatrician specializing in child abuse cases, touched on appellant’s

initial point.   Nurse Patterson testified she interviewed C.M. and offered the girl a

physical exam, but C.M. declined. And, Dr. McPherson testified he reviewed the CAC

report and agreed that there was no indication or diagnosis of sexual abuse or sexual

assault.    Hence, any additional testimony relating to the CAC report would be

cumulative.

       {¶22} Next, while Ms. Mothersbaugh emphasized K.H. was uncooperative and

evasive each time SCCSB attempted to reach her, SCCSB was also aware that K.H

and C.M. were already involved with CAC. K.H.’s reluctance to engage SCCSB to its

satisfaction could be reasonably seen, in light of her cooperation with CAC, as means

protecting her daughter’s privacy and avoiding redundant interview processes.        Ms.




                                            6
Mothersbaugh also stated, at one point, K.H. agreed to cooperate with SCCSB if it

could assist her in filing charges against appellant.      Ms. Mothersbaugh noted she

communicated with Portage County police officers. It is unclear, however, how SCCSB

could facilitate the filing of charges in a county not within its jurisdiction. Ultimately,

K.H.’s lack of cooperation with SCCSB is of no relevance to appellant’s charges.

       {¶23} Finally, Ms. Mothersbaugh stated SCCSB ultimately closed the case file,

concluding the allegations were unsubstantiated. Facially, this conclusion would appear

germane to appellant’s defense. Ms. Mothersbaugh, however, pointed out that when

SCCSB was making this decision, it recognized “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, [and therefore,] we closed the referral as

unsubstantiated.”      Although the term “unsubstantiated” suggests there was no

meaningful substance to the allegation, in this context, it indicates the pursuit of its

investigation would be unnecessary due to other factors. This point, therefore, when

viewed in the full context of SCCSB’s involvement, would have had little relevance to

appellant’s defense.

       {¶24} Appellant’s third assignment of error lacks merit.

       {¶25} Appellant’s fourth assignment of error provides:

       {¶26} “The trial court erred when it denied counsel from asking existence of

other individuals that may have access to the victim.” (sic.)

       {¶27} Under this assignment of error, appellant contends the trial court erred

when it prohibited his counsel from inquiring into the existence of other unknown




                                             7
individuals that may have had access to C.M. subsequent to the incident. Appellant

asserts the trial court’s reliance upon rape-shield law as a basis was erroneous.

       {¶28} During a pretrial hearing, appellant’s counsel requested the trial court to

review records from SCCSB to determine whether C.M. had been placed with anyone

during its involvement and whether alleged redactions in the records contained

information relating to potential placements.        Counsel stated that such information

would show other individuals had access to the child. In counsel’s view, if others had

access to C.M., such access could have an impact on her delayed disclosure and thus

would assist the defense in cross-examining the state’s experts. The state argued that

seeking such information would imply C.M. engaged in sexual activity with another

individual, which would be protected by rape-shield law. After reviewing the records,

the court found the records were not redacted in a way that would suggest C.M. had

been placed outside her mother’s care. And, the court determined that information

regarding any placements were not relevant to the facts which led to the underlying

charges. There was no indication of other placements. And, even if there were, counsel

failed to establish, beyond speculation, how such placements would somehow affect the

nature and timing of C.M.’s disclosure; after all, SCCSB became involved with C.M. in

January 2018, over seven years after the incident. We accordingly hold the trial court

did not err in finding the records irrelevant.

       {¶29} Next, appellant asserts the trial court erred in excluding evidence

regarding other potential individuals’ alleged access to C.M. when she lived with her

biological father. The state objected on relevance grounds. And, during a side bar, the

court sustained the objection, additionally citing the rape-shield statute.




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       {¶30} Appellant contends the trial court inappropriately applied Ohio’s rape-

shield statute.   Regardless of whether the trial court sustained the objection on its

citation to the rape-shield statute, appellant did not (and does not in his brief) argue or

establish the relevancy of who, if anyone other than her biological father, had access to

C.M.    C.M. commenced residing with her biological father in 2016, well after the

incident. We therefore discern no error in the trial court’s ruling.

       {¶31} Appellant’s fourth assignment of error lacks merit.

       {¶32} His first assignment of error alleges:

       {¶33} “Appellant’s conviction was based on insufficient evidence as a matter of

law and was against the manifest weight of the evidence.”

       {¶34} A “sufficiency” argument raises a question of law as to whether the

prosecution offered some evidence concerning each element of the charged

offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he

proper inquiry is, after viewing the evidence most favorably to the prosecution, whether

the jury could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9

(11th Dist.).

       {¶35} Alternatively, “a court reviewing the manifest weight observes the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

the witnesses and determines whether, in resolving conflicts in the evidence, the jury

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. Velazquez, 11th Dist. Ashtabula

No. 2018-A-0027, 2018-Ohio-5068, ¶15 citing State v. Schlee, 11th Dist. Lake No. 93-L-




                                              9
082, 1994 WL 738452, *4-5 (Dec. 23, 1994). “[T]he weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of facts.” State v. DeHass,

10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

       {¶36} Appellant was found guilty of attempted rape, GSI, and attempted sexual

battery.   Defense counsel moved the court to merge the offenses for purposes of

sentencing. And the court agreed that the charges stemmed from a single event. The

prosecutor agreed the charges merged for sentencing; he equivocated, however, on the

legal effect of merger which, it appears, led the trial court to improperly sentence

appellant on each count. “When the trial court determines multiple counts merge, the

defendant can be convicted of only one of the merged counts. At that point, the state

must make an election on which count it would like the court to proceed with

sentencing.” State v. Jameson, 11th Dist. Ashtabula No. 2014-A-0069, 2015-Ohio-4634,

¶20.

       {¶37} Here, although the trial court agreed that the counts should merge, the

trial judge stated her “belief” that the state did not need to elect on any one count. The

trial court’s belief is erroneous. As just indicated, where counts merged, there can be

only one conviction and the state must elect to proceed to sentencing on that count.

Here, the prosecutor emphasized that the charge of attempted rape was the count he

wished to proceed upon, stating “we’re asking the Court to sentence [appellant] to, an

indefinite prison term of five years minimum, twenty-five maximum and his out date will

be up to the Parole Board pursuant to statue, somewhere in-between five to twenty-five

years.” This indefinite sentence only applied to the attempted rape count. In light of this

statement, we conclude the prosecutor elected to proceed to sentencing on the



                                            10
attempted-rape charge, to which the trial court sentenced appellant to the indefinite term

recommended by the state. We shall proceed to consider the evidence advanced by

the state in support of this conviction.

       {¶38} The attempt statute provides: “No person, purposely or knowingly, when

purpose or knowledge is sufficient culpability for the commission of an offense, shall

engage in conduct that, if successful, would constitute or result in the offense.” R.C.

2923.02(A). A person commits an attempt when he or she takes a substantial step in a

course of conduct planned to culminate in the crime. State v. Woods, 48 Ohio St.2d

127 (1976).    R.C. 2907.02(A)(1)(b), which governs the crime of rape in this case,

provides:   “No person shall engage in sexual conduct with another who is not the

spouse of the offender * * *, when * * * [t]he other person is less than thirteen years of

age, whether or not the offender knows the age of the other person.” Sexual conduct is

defined as “vaginal intercourse between a male and female; anal intercourse, fellatio,

and cunnilingus between persons regardless of sex; and, without privilege to do so, the

insertion, however slight, of any part of the body or any instrument, apparatus, or other

object into the vaginal or anal opening of another. Penetration, however slight, is

sufficient to complete vaginal or anal intercourse.” R.C. 2907.01(A)(1).

       {¶39} Appellant argues there was insufficient evidence to support the attempted

rape conviction because C.M. testified he touched her over the underwear and that his

fingers did not enter her vagina. In response, the state asserts there was sufficient

evidence to support the conviction because C.M. testified appellant was “prying” and

“poking” at her vagina. As he did so, he repeatedly stated he wanted to “show [her]

something” in a low, seductive voice. The state maintains that such actions constitute a




                                           11
substantial step towards rape and the only reason appellant stopped was because the

child scooted back, pulled her legs down, and told him to stop.

      {¶40} “Attempted rape requires that the actor (1) intend to compel submission

to sexual conduct by force or threat, and (2) commit some act that “‘“convincingly

demonstrate[s]”’” such intent.” (Emphasis added.) State v. Davis, 76 Ohio St.3d 107,

114 (1996), citing State v. Heinish, 50 Ohio St.3d 231, 238-239 (1990). In Davis, the

victim was seen pushing the defendant while located inside the defendant’s vehicle

shortly prior to being shot; shortly thereafter, the victim was found nude on the side of

the road and the forensic evidence showed there were possible finger marks on her

thigh. Concluding there was insufficient evidence to support a conviction for attempted

rape, the Court observed:

      {¶41} While removing the victim’s clothing can amount to a “substantial
            step” toward the commission of rape, * * * a defendant cannot be
            convicted of attempted rape solely on evidence that he removed
            the victim’s clothing. There must be evidence indicating purpose to
            commit rape instead of some other sex offense, such as gross
            sexual     imposition, R.C.   2907.05,     which    requires   only
            sexual contact.” (Citations omitted). Davis, supra.

      {¶42} The court went on to emphasize that “there was no testimony that imprints

suggestive of finger marks left on [the victim’s] thigh were indicative of an attempt to

compel sexual conduct as opposed to sexual contact.” Id. And witness’ testimony that

the victim was observed trying to push the defendant away shortly before she was shot

“is not strongly corroborative of Davis’s intent to accomplish sexual conduct.” Id.

      {¶43} Here, similar to Davis, while “poking” and/or “prying” C.M.’s vaginal area

outsider her underwear could amount to a substantial step toward the commission of

rape, appellant could not be convicted of the offense solely on this evidence: The state



                                           12
needed to demonstrate appellant’s purpose was to commit rape, which requires

evidence of some attempt to also commit sexual conduct, not simply the fact of sexual

contact. C.M. specifically denied appellant went under her clothing and was, at all times

outside her vaginal canal. She reiterated the latter point by stating appellant was “going

around” her vagina, “[j]ust the shape of it.” Moreover, the “low,” “seductive” nature of his

voice tone does not provide any evidence of appellant’s purpose to commit sexual

conduct. To the contrary, sexual contact 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). C.M.’s testimony relating to appellant’s actions and

voice tone would support the conclusion that he was engaging in sexual contact during

the incident; they do not, however, demonstrate a substantial step towards committing

sexual conduct.

       {¶44} Moreover, the state’s claim that the only reason appellant stopped short of

raping the child is because C.M. took positive steps to stop him is speculative. While it

may be true appellant stopped due to C.M.’s affirmative acts, this is not affirmative

evidence he took substantial steps toward the commission of rape; rather, it simply

implies appellant may have persisted engaging in sexual contact with C.M. had she not

been proactive in stopping him. Because there was no evidence adduced that appellant

took a substantial step to commit sexual conduct, i.e., some evidence that his specific

intent was to insert some body part or object into the vaginal canal or anal opening of

C.M., there was insufficient evidence to support the conviction for attempted rape. That




                                             13
conviction is therefore vacated. In light of this conclusion, appellant’s manifest weight

argument is moot.

       {¶45} The foregoing conclusion does not end the analysis. Appellant was found

guilty on one count of GSI and one count of attempted sexual battery. As indicated

above, the state acknowledged at the sentencing hearing that the counts should be

merged. Notwithstanding the court’s agreement, it nevertheless sentenced appellant on

both, imposed a five-year term of imprisonment for the gross sexual imposition, a five-

year term on the attempted sexual battery, and ordered the counts to be served

concurrently with the attempted rape count. This was error. Accordingly, the case must

be reversed and remanded for the trial court to permit the state to elect what count on

which it wishes to proceed and conduct a resentencing on only that count. See State v.

Payne, 11th Dist. Ashtabula No. 2014-A-0001, 2014-Ohio-4304, ¶26 (While merger

prevents a defendant from being punished for allied offenses of similar import, it does

not eliminate other determinations of guilt).

       {¶46} Appellant’s first assignment of error has merit.

       {¶47} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is affirmed in part, reversed in part, and remanded.



TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.




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