COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70035 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : CHANAN AQU-SIMMONS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 24, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-327075 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PATRICIA J. SMITH, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue EDWARD M. WALSH, ESQ. Cleveland, Ohio 44103 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, P.J.: Chanan Aqu-Simmons, aka Adeeb Wakil, defendant-appellant, appeals a decision by the trial court convicting him of aggravated murder, aggravated robbery, and aggravated burglary and sentencing him accordingly. Simmons assigns five errors for our review. I. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO IRRELEVANT AND UNFAIRLY PREJUDICIAL TESTI- MONY REGARDING VICTIM IMPACT. II. THE TRIAL COURT ERRED BY PROVIDING THE JURY WITH AN ERRONEOUS CAUSATION INSTRUCTION. III. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILT FOR ROBBERY. IV. THE TRIAL COURT ERRED BY ADMITTING NUMEROUS INSTANCES OF IRRELEVANT TESTIMONY FOR THE JURY'S CONSIDERATION. V. PROSECUTORIAL MISCONDUCT IN THE CLOSING ARGUMENT DENIED THE APPELLANT HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL. Having reviewed the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On August 2, 1995, at approximately 7:45 am, Nabil Zayed was found shot to death in his grocery store, Shaw Foods. The subsequent police investigation lead to the arrest of Chanan Aqu- Simmons, aka Adeeb Wakil, defendant-appellant. Simmons was charged with aggravated murder, aggravated robbery and aggravated burglary. Each count included a firearm specification. At trial, the state produced several witnesses including Ronald Sipp, a friend of Zayed's. Sipp testified that he and Zayed -3- had smoked marijuana at a friend's house during the early morning hours of August 2, 1995. Sipp testified that Zayed was carrying a loaded .380 gun and over $200.00 in cash. Sipp and Zayed left the house at approximately 3:00 am and walked to Shaw Foods to get some snack food. The two men went outside to sit in front of the store at approximately 4:00 am. They were joined by Chanan Aqu-Simmons, defendant-appellant. Simmons operated a small store across the street from Shaw Foods selling incense, oils, etc. Simmons asked if he could "get high" with Zayed and Sipp, but was refused. Sipp testified that he recognized Simmons from the neighborhood. After sitting for ten to fifteen minutes, Simmons went back to his store across the street. Sipp left the store at around 5:30 am. Vic Young, a local drug dealer, testified that he saw Zayed sleeping in Simmons' store at about 5:30 or 6:00 am. Young and another man, Vedo McClain aka "Shorty" both testified that Simmons asked them to accompany him to Zayed's store. Simmons asked Young to lock up his store while Simmons went with Zayed to open Shaw Foods but Young refused. McClain testified that Simmons asked for his help to rob Shaw Foods telling McClain that all his problems would be solved. McClain also refused. At about 6:15 or 6:30, Young saw Simmons and Zayed walking toward Shaw Foods. James Austin, who worked at a nearby restaurant, also saw Zayed and Simmons leaving Simmons' store. Robin Brown, who worked in the area, saw the exterior gate of Shaw Foods partially open at 7:00 am. She found it unusual because -4- the store normally opened between 9:30 am and 10:30 am. James Austin also noticed the gate partially open. At approximately 7:45 am, Gloria Hopkins was walking to a nearby Marathon station to buy a newspaper and some cigarettes. As she passed by Shaw Foods, she noticed the exterior gate of Zayed's store partially open. Hopkins, a frequent customer of the store, entered through the unlocked front door and called out to Zayed. Hearing no response, she continued into the store and noticed a potato chip rack had been overturned. She then saw tennis shoes in the doorway to the store's storage room. Hopkins then left the store and called police. Police arrived and found Zayed laying face down in a pool of blood on the storage room floor. He had been shot three times in the head and neck. The storage room door, with a bullet hole in it, was laying atop his legs. Police talked to owners of nearby shops and got the name "Adeeb" as a possible suspect. They were told he could be found at a nearby mosque. Police went to the mosque and arrested Simmons aka Adeeb Wakil. At trial, the victim's brother, Ziad Zayed testified that he knew Simmons as a regular customer in the store. He often gave Simmons merchandise from the store on credit out of respect for him as a fellow Muslim, but Simmons never paid his bill. According to Ziad Zayed, Simmons was in the store the day before the murder. Simmons took some items from the shelves, showed them to Ziad Zayed and began to walk slowly out of the store. On the way out, Zayed confronted Simmons and told him he couldn't have any more credit. -5- An argument ensued and Simmons yelled, "The wrath of Allah is going to come down on you." Ziad Zayed took the words as a threat. Isa Yasuf testified that Simmons asked him about buying a gun on August 1. They discussed prices for a 9mm, a .380, and a Tech- 9. They also discussed a silencer. When told that he could not afford one, Simmons replied that he was going to get the money and should have it anytime. Yasuf also testified that Simmons often spoke of robbing the Zayed brothers and said they needed to be killed. The state dismissed count one of the indictment -- aggravated murder with two felony murder specifications and a firearm specification. Simmons was convicted of aggravated murder while committing aggravated robbery or aggravated burglary with two felony murder specifications, aggravated robbery, and aggravated burglary. He was also found guilty of an accompanying firearm specification on each count. For the aggravated murder count, he was sentenced to life with parole eligibility after 30 years plus three years actual incarceration for the firearm specification. He was also given consecutive sentences of ten to twenty-five years for the aggravated robbery and ten to twenty-five years for aggravated burglary. This appeal followed. In his first assignment of error, Simmons argues his trial counsel's failure to object to testimony from Ziad Zayed, that the victim, Nabil Zayed, was planning to be married on August 15th, two weeks after he was killed, and that Nabil Zayed had already made plane reservations. -6- In order to prevail on an ineffective assistance of counsel claim, the defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668,693. The defendant must show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 698. Although testimony about Zayed's upcoming marriage may be viewed as irrelevant to the issue of whether Simmons killed him, it is not prejudicial requiring a reversal unless the outcome of the trial would have been different if defense counsel had objected. In other words, we must decide whether the admission of the testimony constituted reversible error. We conclude it was not. The testimony about Zayed's upcoming marriage was "brief and isolated." See State v. Geneva (June 19, 1996), Tuscarawas App. No. 95AP030011. In light of all the evidence presented over the course of the trial, we conclude the admission of the testimony did not constitute reversible error. Id. In his second assignment of error, Simmons argues the trial court erred by instructing the jury on causation. In its instructions, the court stated that a defendant is "responsible for the natural, logical and foreseeable results that follow, in the ordinary course of events, from an unlawful act or failure to act." The court went on to state "[t]he test for foreseeability is not whether the defendant should have foreseen the injury in its precise form or as to a specific person. The test is whether a -7- reasonably prudent person, in light of all the circumstances, should have anticipated that death was likely to result to anyone from the performance of the unlawful act or failure to act." Simmons argues the court's instructions altered the require- ment that the state prove specific intent to kill and allowed the jury to convict on a lesser standard. We disagree. This issue was determined by the Ohio Supreme Court in State v. Frazier (1995), 73 Ohio St.3d 323, 331. In Frazier, the court concluded that a foreseeability instruction is not prejudicial where the instruc- tions include a thorough explanation of causation and make clear that, in order to convict the defendant, the jury must find that he acted with the intent to kill. In this case, the trial court defined causation as follows: Cause is an act or failure to act which in the natural and continuous sequence directly produces the death and without which it would not have occurred. (Tr. 1999.) The trial court also clearly instructed the jury that a finding of specific intent to kill was required before they could convict Simmons of aggravated murder. It must be established in this case that, at the time in question, there was present in the mind of the defendant, Chanan Ray Aqu-Simmons, aka Adeeb Wakil, a specific intention to cause the death of Nabil Zayed. (Tr. 1997-1998.) No person may be convicted of aggravated murder unless he is specifically found to have intended to cause the death of another. -8- (Tr. 1998.) ***[T]he jury must find that the killing must have been done purposely and with specific intent, and that the defendant specifically intended to produce the death of Nabil Zayed. (Tr. 1999.) We find the trial court's instructions, taken as a whole, properly defined the elements of causation and specific intent to kill. In addition, the record contains no evidence that Simmons objected to the challenged instruction. Simmons' second assignment of error is overruled. In his third assignment of error, Simmons argues the evidence presented at trial was insufficient to support his conviction for robbery. When evaluating the sufficiency of evidence presented at trial, the court must determine whether the evidence, if believed, would convince the average mind that the defendant was guilty beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 172. R.C. 2911.01 defines Aggravated Robbery as having a deadly weapon or dangerous ordnance on or about one's person or under one's control or inflicting or attempting to inflict serious physical harm on another in attempting or committing a theft offense or in fleeing immediately after such attempt or offense. Simmons argues there was insufficient evidence to support a finding that Simmons stole anything from Zayed. The Aggravated Robbery statute includes the attempt to commit a theft offense. Whether or not Simmons was successful in taking -9- anything from the store is not determinative. The state presented evidence that, shortly before the murder, Simmons told McClain that he was going to rob the store. The jury could reasonably infer that Simmons was attempting or committing a theft offense at the time Zayed was killed. "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." State v. Benge (1996), 75 Ohio St.3d 136, 142. Simmons' third assignment of error is overruled. In his fourth assignment of error, Simmons argues the trial court erroneously admitted irrelevant testimony about his use of marijuana, testimony that he "was acting like he was ready to do something out of the ordinary," that he was apprehended by a group of Muslims based on their opinion of his guilt, and the opinions of individual witnesses as to his guilt. The testimony about Simmons' marijuana use (Tr. 1414.) does not include a statement that he was "not a good Muslim." The testimony that Simmons was acting "as if he was ready to do something out of the ordinary" (Tr. 1422) was relevant evidence of Simmons' demeanor shortly before the crime. Officer Farid Allah Alim testified that, when he arrived at the mosque on E. 99th street, Simmons was up against the wall and surrounded by five Muslims. (Tr. 1465.) However, he did not describe them as "vigilantes." Alim did attempt to present hearsay testimony that the men said Simmons killed a Muslim (Tr. 1463-1464) but a defense objection to that testimony was sustained and the jury was -10- instructed to disregard the testimony. Although Vedo McClain did say "Adeeb did it; bottom line," the trial court instructed the jury to disregard the statement and not to consider it during their deliberations. (Tr. 1585.) Though Simmons argues "the damage was done," a jury is presumed to have followed the trial court's cautionary instructions and Simmons has presented no evidence to overcome that presumption. Simmons' fourth assignment of error is overruled. In his fifth assignment of error, Simmons argues he was denied a fair trial due to prosecutorial misconduct. Specifically, he argues it was improper for the prosecution to argue that the jury should "let their verdict ring out in this community." To determine whether this statement constituted prosecutorial misconduct, we must determine if the prosecutor's remarks were improper and, if so, whether the comments prejudicially affected the defendant's substantive rights. State v. Phillips (1995), 74 Ohio St.3d 72, 90. We agree that it is improper for a prosecutor to invite the jury to judge a case on standards or grounds other than the evidence presented in the case and the applicable law. State v. Draughn (1992), 76 Ohio App.3d 664, 671. However, there is no showing that the outcome of the case was affected by the prosecutor's comments. "A conviction will be reversed only where it is clear beyond reasonable doubt that, absent the prosecutor's comments, the jury would not have found appellant guilty." State v. Benge (1996), 75 Ohio St.3d 136, 141. The state presented -11- extensive evidence of Simmons' guilt. Furthermore, the jury was clearly instructed that the closing arguments were not evidence. Under the circumstances, we conclude Simmons has failed to show any prejudice that would necessitate a reversal of his conviction. Simmons' fifth assignment of error is overruled. Judgment affirmed. -12- It is ordered that Appellee recover of Appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .