[Cite as State v. Adbuleh,
2021-Ohio-4495.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-473
(C.P.C. No. 18CR-6113)
v. :
(REGULAR CALENDAR)
Abdullahi M. Abduleh, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 21, 2021
On brief: G. Gary Tyack, Prosecuting Attorney, and
Taylor M. Mick, for appellee. Argued: Taylor M. Mick.
On brief: Yeura Venters, Public Defender, and George M.
Schumann, for appellant. Argued: George M. Schumann.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Defendant-appellant, Abdullahi M. Abduleh, appeals from a judgment of the
Franklin County Court of Common Pleas retaining jurisdiction over him and ordering his
commitment to Twin Valley Behavioral Healthcare ("Twin Valley"). For the reasons which
follow, we affirm.
{¶ 2} By indictment filed December 14, 2018, plaintiff-appellee, State of Ohio,
charged appellant with one count of aggravated burglary, in violation of R.C. 2911.11, a
felony of the first degree; one count of aggravated robbery, in violation of R.C. 2911.01, a
felony of the first degree; one count of felonious assault, in violation of R.C. 2903.11, a felony
of the second degree; and two counts of robbery, in violation of R.C. 2911.02, felonies of the
No. 20AP-473 2
second and third degrees. The charges arose from an incident which occurred on
November 21, 2018 involving appellant and his uncle.
{¶ 3} As the matter proceeded, the issue of appellant's competency to stand trial
arose. On January 17, 2019, the court ordered a competency evaluation of appellant in
accordance with R.C. 2945.371. Following a July 16, 2020 hearing, the court found
appellant incompetent to stand trial. The court ordered appellant undergo treatment for a
period of one year to restore his competency.
{¶ 4} On September 18, 2020, the court held a hearing to determine whether to
retain jurisdiction over appellant pursuant to R.C. 2945.39(A)(2). Dwayne Timothy Coon,
Ph.D., a psychologist who examined appellant, testified at the hearing. Dr. Coon explained
that appellant suffered from a "severe mental illness," indicated by "significant difficulties
with mood, thought, behavior, insight, judgment and deficits in cognitive functioning."
(Sept. 18, 2020 Tr. at 14.) Dr. Coon concluded that appellant was not fully capable of
understanding the nature and objectives of the proceedings against him or of assisting in
his defense. Dr. Coon further concluded that appellant "continued to be an appropriate
subject for involuntary treatment," as appellant's mental illness led "to behavior which
create[d] a substantial risk of physical harm to others." (Sept. 18, 2020 Tr. at 15.)
{¶ 5} Appellant's uncle, Abdurahman A. Mohamed, also testified at the
September 18, 2020 hearing. When the prosecutor asked Mohamed if he remembered
what happened on November 21, 2018, Mohamed stated "[i]t's been a long time. I don’t
remember." (Sept. 18, 2020 Tr. at 29.) When the prosecutor asked Mohamed if he had a
fight with appellant on November 21, 2018, Mohamed stated that he "remember[ed] having
an argument with [appellant] that day, but [he did not] exactly specifically know what
happened and how it happened because its been a while." (Sept. 18, 2020 Tr. at 30.)
Mohamed reiterated several times that he did not recall the events from November 21,
2018. Mohamed did, however, admit that he had an argument with appellant on
November 21, 2018, and that Mohamed had "called the police that day and [he]
remember[ed] police taking [him] to the hospital." Mohamed identified State's Exhibits 3
and 4 as pictures of himself. The pictures depict Mohamed with various bruises, cuts, and
a missing tooth. Mohamed testified that the "injuries" depicted in State's Exhibits 3 and 4
No. 20AP-473 3
"wasn't there before the date of the argument" with appellant. Mohamed affirmed he lost
a tooth during the argument with appellant. (Sept. 18, 2020 Tr. at 36.)
{¶ 6} Mohamed further affirmed that, immediately prior to the September 18,
2020 hearing, he watched a videotaped recording of an interview he had with police a few
days after the November 21, 2018 incident. Mohamed stated that "the video was me - - the
picture of the video was me, the audio was mine, but I don't remember how it happened
and what happened because its been passed for a long time." (Sept. 18, 2020 Tr. at 31.)
Mohamed indicated that his memory of the incident was not refreshed after watching the
video.
{¶ 7} The state then moved to play the video of Mohamed's police interview, and
defense counsel objected. The trial court overruled the objection, concluding the video
satisfied the Evid.R. 803(5) exception to hearsay. The court noted that Mohamed had
"identif[ied] himself as the person that was in [the video]. He did identify his voice," and
that Mohamed still did not "remember what happened." (Sept. 18, 2020 Tr. at 32.) The
state played the video during the hearing, but the court did not admit the video into
evidence.1 Mohamed's statements in the recorded police interview support the offenses
charged in the indictment. (State's Ex. 2.)
{¶ 8} At the conclusion of the September 18, 2020 hearing, the court stated that
Mohamed's recorded police interview, which was "made at or near the time of the offense,
as well as … the pictures in Exhibits 3 and 4," constituted clear and convincing evidence
that appellant had committed the offenses charged in the indictment. (Sept. 18, 2020 Tr.
at 45.) The court further found clear and convincing evidence that appellant was a mentally
ill person subject to court-ordered institutionalization.
{¶ 9} On September 25, 2020, the trial court issued an entry reflecting its findings
from the September 18, 2020 hearing. The court retained jurisdiction over appellant and
ordered appellant committed to Twin Valley pursuant to R.C. 2945.39(D)(1).
{¶ 10} Appellant appeals, assigning the following single assignment of error for our
review:
The trial court erred in admitting the prior recorded statement
of the state's witness as a recorded recollection exception
(Evid.R. 803(5)) to the rule against hearsay (Evid.R. 802), and
1 The court preserved a copy of the video for the record.
No. 20AP-473 4
the trial court's reliance on the erroneously admitted evidence
violated the defendant-appellant's due process rights under the
Fourteenth Amendment to the United States Constitution and
Art. I, Section 16 of the Ohio Constitution, as the trial court's
judgment to retain jurisdiction over the defendant-appellant
under R.C. 2945.39(A)(2) was not supported by clear and
convincing evidence.
{¶ 11} Appellant's sole assignment of error asserts the trial court erred by admitting
the video of Mohamed's police interview at the September 18, 2020 hearing. Appellant
contends that the trial court's reliance on the video to retain jurisdiction over him affected
his substantial rights.
{¶ 12} When certain statutory criteria are satisfied, R.C. 2945.39 authorizes a trial
court to retain jurisdiction over an incompetent defendant and commit the defendant to
the care of a treatment facility. State v. Williams, 126 Ohio St.3d 65,
2010-Ohio-2453, ¶ 1;
State v. Weaver, 9th Dist. No. 17CA0092-M,
2018-Ohio-2998, ¶ 9. As the state charged
appellant with first and second-degree felony offenses of violence, the court found appellant
incompetent to stand trial, and the maximum time permitted under R.C. 2945.38(C) for
treatment to restore competency had expired, R.C. 2945.39 applied to appellant. R.C.
2945.39(A);
Williams at ¶ 1.
{¶ 13} R.C. 2945.39 provides, in relevant part, as follows:
(A) … (2) On the motion of the prosecutor or on its own
motion, the court may retain jurisdiction over the defendant if,
at a hearing, the court finds both of the following by clear and
convincing evidence:
(a) The defendant committed the offense with which the
defendant is charged.
(b) The defendant is a mentally ill person subject to court order
or a person with an intellectual disability subject to
institutionalization by court order.
(B) In making its determination under division (A)(2) of this
section as to whether to retain jurisdiction over the defendant,
the court may consider all relevant evidence ….
{¶ 14} The trial court found the R.C. 2945.39(A)(2)(a) and (b) factors established by
clear and convincing evidence. Appellant asserts the court's finding under R.C.
No. 20AP-473 5
2945.39(A)(2)(a) was not supported by clear and convincing evidence, as the video of
Mohamed's police interview was inadmissible hearsay. Appellant contends that, absent the
recorded interview, the remaining evidence from the hearing failed to demonstrate that
appellant committed the offenses charged in the indictment. See State v. Coffman, 9th
Dist. No. 29720, 2020-Ohio-6855, ¶ 14 (finding the trial court erred by retaining
jurisdiction over the defendant pursuant to R.C. 2945.39, as there was "no evidence
presented at the [R.C. 2945.39(A)(2)] hearing" to demonstrate that the defendant
"committed the charged offense"); State v. Wright, 8th Dist. No. 108343,
2020-Ohio-1271,
¶ 20. Appellant does not take issue with the court's finding under R.C. 2945.39(A)(2)(b).
{¶ 15} Clear and convincing evidence is evidence that will produce in the mind of
the trier of facts a firm belief or conviction as to the facts sought to be established. Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. Clear and convincing
evidence "is more than a mere preponderance of the evidence, but does not require proof
beyond a reasonable doubt." State v. Middleton, 10th Dist. No. 20AP-196, 2021-Ohio-
3498, ¶ 31.
{¶ 16} For the reasons stated below, we find that, even assuming the rules of
evidence applied at the September 18, 2020 hearing, the trial court properly admitted the
video as a recorded recollection under Evid.R. 803(5). See State v. Bateman, 10th Dist.
No. 10AP-763, 2011-Ohio-3028, ¶ 9 (concluding that, even if the rules of evidence applied
at the R.C. 2945.39(A)(2) commitment hearing, the statement at issue was admissible);
Weaver at ¶ 13. In general, the admission or exclusion of evidence is governed by the rules
of evidence. See, e.g., State v. McGovern, 6th Dist. No. E-08-066,
2010-Ohio-1361, ¶ 33.
In this respect, a reviewing court must simply determine whether the trial court's ruling on
an evidentiary issue was correct or not based upon application of the rule and, in this sense,
presents a question of law. See State v. Depew,
136 Ohio App.3d 129, 132 (4th Dist.1999)
("when a party challenges the trial court's construction of an evidentiary rule, he presents
a question of law that we review de novo"). Thus, although this court sometimes speaks in
terms of a trial court's discretion in addressing the interpretation of a rule, it is not
discretionary in most instances. Stated otherwise, in interpreting the rules of evidence, "no
court has the authority, within its discretion, to commit an error of law." State v. Chandler,
10th Dist. No. 13AP-452, 2013-Ohio-4671, ¶ 8.
No. 20AP-473 6
{¶ 17} "Hearsay" is defined as "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Evid.R. 801(C). Mohamed's previously recorded police interview, offered to
prove the truth of what occurred on November 21, 2018, constituted hearsay. Evid.R. 802
prohibits the admission of hearsay except as otherwise provided by, inter alia, the rules of
evidence. See State v. Young, 5 Ohio St.3d 221, 223 (1983) (stating that "[h]earsay is
inadmissible because it is unreliable").
{¶ 18} Evid.R. 803 provides as follows:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
…
(5) Recorded recollection.
A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient
recollection to enable him to testify fully and accurately, shown
by the testimony of the witness to have been made or adopted
when the matter was fresh in his memory and to reflect that
knowledge correctly. If admitted, the memorandum or record
may be read into evidence but may not itself be received as an
exhibit unless offered by an adverse party.
{¶ 19} Thus, in order to read a statement into evidence, pursuant to Evid.R. 803(5),
the proponent of the evidence must establish that: (1) the witness has a lack of present
recollection of the recorded matter, (2) the recorded recollection was made at a time when
the matter was fresh in the witness's memory, (3) the recorded recollection was made or
adopted by the witness, and (4) the recorded recollection correctly reflects the prior
knowledge of the witness. State v. Green, 10th Dist. No. 98AP-633 (Mar. 18, 1999), citing
Dayton v. Combs, 94 Ohio App.3d 291, 300 (2d Dist.1993). Appellant presents no
argument regarding the first three requirements for admission under Evid.R. 803(5). As
Mohamed testified that he could not remember what happened during the argument with
appellant on November 21, 2018, Mohamed's recorded police interview occurred just a few
days after the November 21, 2018 incident, and Mohamed affirmed that he was the
individual speaking on the video, we find the first three requirements for admission
satisfied in the present case.
No. 20AP-473 7
{¶ 20} Appellant contends that the fourth requirement for admission under Evid.R.
803(5) was not satisfied, as Mohamed did not testify that his recorded interview reflected
his prior knowledge correctly. Appellant notes that Mohamed was "never asked if his
recorded statements were accurate, [and] the state did not even ask Mr. Mohamed if he told
the truth when he made the statements." (Appellant's Brief at 27.)
{¶ 21} Evid.R. 803(5) "makes explicit the requirement that the foundation for the
introduction of the statement under this exception must be made by testimony of the
witness himself." Staff Notes Evid.R. 803(5). Thus, to admit a statement as a recorded
recollection, the "proponent of the statement must produce affirmative proof through the
testimony of the witness, that the statement correctly reflects the witness's prior
knowledge." State v. Proffitt, 12th Dist. No. CA2016-07-134, 2017-Ohio-1236, ¶ 23. Accord
State v. Ross, 6th Dist. No. H-11-022,
2013-Ohio-1595, ¶ 17. See
Combs at 301 (finding a
declarant's trial testimony provided "sufficient indicia of the statement's trustworthiness to
meet the fourth requirement for admission pursuant to Evid.R. 803(5)," where the
declarant testified that his prior statement "could be right" and that the declarant had
answered the questions in his prior statement "to the best of his ability").
{¶ 22} Thus, if there is no testimony from the declarant regarding the accuracy of
their prior statement, the recorded recollection is inadmissible. State v. Perry, 147 Ohio
App.3d 164, 171 (6th Dist.2002) (finding evidence inadmissible under Evid.R. 803(5), as
"the child did not testify that the video tape correctly reflected the knowledge she had of the
events in question at the time the video tape was made"); Green. If the declarant testifies
that their recorded statement does not accurately reflect their prior knowledge, the fourth
requirement for admission under Evid.R. 803(5) will not be satisfied. Proffitt at ¶ 4, 6, 26
(holding that, even though the witness's recorded statement was in her handwriting and
contained her signature, because the witness testified at trial that she was " 'not sure' " if
her prior written statement was true and "twice testified that she did not believe the [prior]
statement reflected what happened," the witness's trial testimony failed to demonstrate
that her prior written statement "accurately reflected her prior knowledge of the
incidents"). If the declarant indicates through their testimony that their prior recorded
statement was coerced, such testimony fails to establish the accuracy of the prior statement
for purposes of Evid.R. 803(5).
Combs at 301 (concluding that, as the declarant testified
No. 20AP-473 8
"not only he could not remember signing the statements, but also that he would have signed
anything to get out of the [gambling] Club" on the night of the police raid, such testimony
failed to "establish the accuracy of his statements").
{¶ 23} However, where the declarant provides affirmative testimony acknowledging
they made the prior statement, and provides no indication that the prior statement was
inaccurate or untruthful, courts have found the fourth requirement under Evid.R. 803(5)
satisfied. See United States v. Riley, 657 F.2d 1377, 1386 (8th Cir.1981) (finding the
recorded recollection admissible pursuant to Fed.R.Evid. 803(5), as the witness "stated that
she remembered talking to the law enforcement officers, taping the interview, talking with
the FBI agent," and the witness "did not repudiate either statement"); United States v.
Williams,
571 F.2d 344, 350 (6th Cir.1978) (finding the witness's prior recorded statement
admissible pursuant to Fed.Evid.R 803(5), as it "contained the indicia of trustworthiness
required by Rule 803(5) and was never categorically disowned or contradicted by the
witness").
{¶ 24} In State v. Wolfe, 4th Dist. No. 95CA04 (June 17, 1996), the court admitted a
statement, pursuant to Evid.R. 803(5), which the declarant gave to police shortly after the
shooting at issue in the case. Although the defendant argued the declarant failed to
establish the accuracy of her prior statement, the reviewing court concluded that the
declarant's testimony established her prior statement "correctly reflected her recollection
at the time it was given." Id. The court noted the declarant had "expressly testified that the
statement she read below was the one she gave to an 'Officer Bowen' on October 5, 1994,"
thereby establishing "that she remember[ed] making the statement."
Id. The court further
found "no indication from the witness that the statement was inaccurate," and noted to the
contrary the declarant's testimony that "she was 'not denying that [the defendant] said
[what was in the statement]' " and that "she was 'not denying that that was said in the
statement.' "
Id.
{¶ 25} Regarding the requirement that the recording correctly reflect the declarant's
prior knowledge, we note the following exchange between the prosecutor and Mohamed at
the September 18, 2020 hearing:
Q. Okay. This morning did you watch a video recording of
yourself talking to the police?
No. 20AP-473 9
A. Yes, I saw the video.
Q. And you told the police about what happened during that
argument you had with your nephew on November 21, correct?
A. Yeah ….
(Sept. 18, 2020 Tr. at 31.)
{¶ 26} Thus, Mohamed affirmed through his testimony that he told police what
happened during the November 21, 2018 incident with appellant in the recorded police
interview. Mohamed never indicated that the statements he made to police were
inaccurate, untruthful, or coerced. Mohamed also never contradicted his statements from
the recorded police interview, he simply stated at the September 18, 2020 hearing that he
could not recall what occurred during the incident with appellant. However, Mohamed
admitted at the hearing that he had an argument with appellant, called police, and had
police take him to the hospital on November 21, 2018. Mohamed corroborated some of his
statements from the recorded interview, as he affirmed at the September 18, 2020 hearing
that he lost a tooth during the argument with appellant, and stated in the recorded
interview that he lost a tooth during the fight he had with appellant on November 21, 2018.
{¶ 27} Accordingly, on the facts presented in the present case, the trial court could
reasonably conclude that the recorded police interview reflected Mohamed's prior
knowledge of the incident correctly. Mohamed affirmed through his testimony that in the
recorded interview he told police what happened during the November 21, 2018 incident
with appellant, and Mohamed provided no indication that he had fabricated his statements
to police. The remainder of Mohamed's testimony at the hearing bolstered the reliability of
his prior recorded statement. Accordingly, we find Mohamed's testimony satisfied the
fourth requirement for admission under Evid.R. 803(5).
{¶ 28} Furthermore, evidence presented at the September 18, 2020 hearing
demonstrated that Mohamed had executed a drop charges statement on May 10, 2019. The
drop charges statement indicated that Mohamed did not wish to pursue further prosecution
against appellant. Mohamed explained at the September 18, 2020 hearing that he executed
the drop charges statement because he "forg[a]ve [appellant] - - totally forg[a]ve him," not
because the underlying events had not occurred. (Sept. 18, 2020 Tr. at 38.) After
Mohamed's testimony, the court concluded that "whether Mr. Mohamed wanted to simply
No. 20AP-473 10
drop the charges or didn't remember the incident, the State has shown that the offense did
occur by clear and convincing evidence." (Sept. 18, 2020 Tr. at 45.)
{¶ 29} Thus, even if the rules of evidence applied at the R.C. 2945.39(A)(2) hearing,
the trial court did not err by admitting Mohamed's recorded police interview pursuant to
Evid.R. 803(5). Mohamed's statements in the recorded interview, as well as the testimony
and remaining exhibits admitted at the September 18, 2020 hearing, provided the trial
court with clear and convincing evidence that appellant had committed the offenses
charged in the indictment. As clear and convincing evidence supported the trial court's
findings under R.C. 2945.39(A)(2)(a) and (b), the trial court properly retained jurisdiction
over appellant pursuant to R.C. 2945.39(A)(2).
{¶ 30} Appellant's sole assignment of error is overruled. Having overruled
appellant's sole assignment of error, the judgment of the Franklin County Court of Common
Pleas is affirmed.
Judgment affirmed.
SADLER and MENTEL, JJ., concur.
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