[Cite as State v. Abdullahi, 2024-Ohio-418.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 21AP-350
(C.P.C. No. 19CR-350)
v. :
(REGULAR CALENDAR)
Faizal M. Abdullahi, :
Defendant-Appellant. :
D E C I S I O N
Rendered on February 6, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee. Argued: Kimberly M. Bond.
On brief: The Law Office of Thomas F. Hayes, LLC, and
Thomas F. Hayes, for appellant. Argued: Thomas F. Hayes.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Faizal M. Abdullahi, appeals from a judgment entry of
the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of
kidnapping, attempted rape, and felonious assault. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed October 17, 2019, plaintiff-appellee, State of Ohio,
charged Abdullahi with one count of aggravated burglary, in violation of R.C. 2911.11, a first-
degree felony; one count of kidnapping, in violation of R.C. 2905.01, a first-degree felony;
one count of rape, in violation of R.C. 2907.02, a first-degree felony; and one count of
felonious assault, in violation of R.C. 2903.11, a second-degree felony. The charges related
to an incident involving A.T. on or about October 7, 2019. Abdullahi entered a plea of not
guilty.
No. 21AP-350 2
{¶ 3} At the trial beginning April 26, 2021, the trial court appointed interpreters
for both Abdullahi and A.T. A.T., who is originally from Somalia but has lived in Columbus
since 1999, testified that on October 7, 2019 she had been living at her third-floor apartment
for about a month and one-half. A.T. testified she had been out at a family wedding until
late at night and that when she returned home, she saw a man outside the entrance of her
apartment. A.T. said she did not know the man but had seen him outside of her building
before. When she approached the apartment complex, A.T. said the man initially blocked
the entrance. She asked him to move but he refused, so A.T. said she stood outside and
continued to ask him to move until she was able to get inside her apartment.
{¶ 4} Once she was inside her apartment, A.T. said she was relaxing and watching
YouTube when she fell asleep in her living room. She woke up to a knock at her door and,
without opening the door, asked who was there. The person on the other side said he
wanted water and asked A.T. to open the door. A.T. said she could smell alcohol through
the door. A.T. also said she did not open the door but ignored the man and went back to
the living room. When she returned to the living room, A.T. said she fell asleep again.
Approximately an hour and one-half later, A.T. said she heard more loud banging at the
door. The man at the door kept saying he wanted water, and A.T. testified the man spoke
to her in Somali and referred to her as his sister, asking her to help him. A.T. said she told
the man to leave or she would call the police.
{¶ 5} After a period of silence, A.T. testified she thought the man left and she
decided to check her door to be sure it was locked. A.T. said she opened the door slightly
and when she did that, the man put his arms through the doorway and grabbed her wrists.
According to A.T.’s testimony, the man then forced his way into the apartment, shut and
locked the door, pulled her hair, and threw her on the ground. While she was on the ground,
A.T. said the man grabbed her throat with both of his hands and squeezed, causing her to
feel like her “head was going to pop” and making it “painful to breathe.” (Tr. Vol. I at 91-
92.) A.T. said the man released the pressure briefly and then choked her a second time, this
time applying more pressure that caused her vision to slowly fade to black. She compared
the sensation to feeling like she was drowning.
{¶ 6} A.T. further testified that while the man had her pinned to the ground, he
removed all of his clothes and flipped her over so that her stomach was on the ground. A.T.
No. 21AP-350 3
said the man tried to rip her dress off but could not get it to come off so he pulled it all the
way up to her shoulders. At that point, A.T. said the man got on top of her and his penis
was touching her butt with skin-to-skin contact. A.T. testified the man was moving back
and forth and that his penis was going up and down on her buttocks. The prosecutor asked
A.T. detailed questions about this portion of the incident, and the following exchange
occurred:
Q. Was his penis ever between your butt cheeks?
A. It was in the outer part, yes.
Q. Did you ever feel his penis inserted into your anus?
A. No.
Q. Did you feel his penis in between your butt cheeks?
A. I would say the outer but not - - because I was clenching my
butt. I was closing my legs as tight as I can because I didn’t
want that happening to me.
Q. Just to clarify, [A.T.], why were you clenching your butt?
A. Because I didn’t want his penis to go inside.
Q. Did you remain on your stomach during this incident?
A. Shortly.
Q. What happened after he tried to insert his penis into your
anus?
A. He flipped me. Now I was in my back position and he tried
to - - it was a struggle. It was a struggle because I was closing
both my legs tight. He wanted to put his penis, put his penis in
my vagina.
Q. Did he?
A. No.
Q. How come?
No. 21AP-350 4
A. Because I was fighting him. And he was a lot stronger than
me.
Q. Throughout this struggle, am I correct in understanding you,
when you said you were trying very hard to keep your legs and
your buttocks closed, and during that was he still on top of you?
A. Yes, he was.
(Tr. Vol. I at 97-99.) When asked again about where she specifically felt the man’s penis,
A.T. testified she felt the man’s penis inside her butt cheeks but not inside her anus. A.T.
said the man then strangled her a third time, and she again felt like she could not breathe,
could not speak, and her vision turned blurry with black checkers. She felt like she was
close to passing out but did not lose consciousness. While he was attacking her, A.T. said
the man told her his name was Faizal.
{¶ 7} A.T. testified she was eventually able to break free from the man’s grasp by
pleading to use the restroom and that when she broke free from his hands, she ran into her
kitchen and started smashing dishes on the floor in the hopes a neighbor would hear the
commotion. When the man ran toward her in the kitchen, A.T. said she grabbed a knife
but the man told her “[g]o ahead and kill me.” (Tr. Vol. I at 102.) A.T. said the man then
grabbed a kitchen pot and threw it toward her, just missing her head and landing on the
kitchen counter. A.T. then started screaming hoping someone would hear her. According
to her testimony, the man then slowly started to get dressed while she continued to yell and
scream even though using her voice was painful after being choked, and he eventually left
her apartment. She described the man as being dark skinned, approximately five feet eight
inches tall, with a scar on his cheek and missing several teeth. A.T. made an in-court
identification of Abdullahi as the man who attacked her.
{¶ 8} After the man left her apartment, A.T. said she called 911. The state played a
recording of the 911 call for the jury. When police arrived, A.T. said she asked for medical
attention and was taken to the hospital for examination. Once at the hospital, A.T. said she
was evaluated by a forensic nurse but that she refused to consent to a physical exam because
she was scared. A.T. also testified she was not sure if she had been raped because she was
engaged in a struggle with the man the whole time he was on top of her. When asked to
explain what she meant, A.T. said she was closing her legs tightly the whole time but that
No. 21AP-350 5
“when he flipped me, when I was [on] my stomach facing down on the floor I did feel his
penis. He was going up and down but not to the point where it went fully inside.” (Tr. Vol.
I at 119.) A.T. said she gave the forensic nurse the dress she had been wearing during the
attack.
{¶ 9} A.T. testified the exam took most of the day and that she did not return to her
apartment until close to 11:00 p.m. When she returned to her apartment with her parents
and her brother, who had driven from Cleveland to be with her, A.T. said she saw the man
who attacked her outside her apartment complex again. A.T. told her family that was the
man who had attacked her, and then she called police.
{¶ 10} Mary Hogue, a patrol officer with the Columbus Division of Police who
responded to the dispatch of a reported sexual assault, described A.T. as being in distress,
crying, and having difficulty speaking. Officer Hogue said A.T. told her that a man had been
in the apartment hallway who appeared to be intoxicated and had asked A.T. for water but
A.T. did not give him anything and went inside her apartment. A.T. told Officer Hogue she
had seen the man loitering around the apartment complex before but that she did not have
a personal relationship with him. Officer Hogue did not notice any visible injuries on A.T.,
but testified that A.T. was grasping her neck and indicating to Officer Hogue that her
attacker choked her three times and she was in pain. Medics arrived on the scene and
Officer Hogue rode with A.T. to Saint Ann’s hospital for evaluation. Officer Hogue was
wearing a body camera during her interaction with A.T. and the state played the body
camera footage for the jury.
{¶ 11} Molly Downs, a sexual assault nurse examiner (“SANE”), testified she
examined A.T. at the hospital on October 7, 2019 and documented her injuries. In her
report from the SANE exam, Downs described A.T. as withdrawn, tired, and having
difficulty making basic decisions. Downs testified that A.T. reported that a man named
Faizal had forced his way into her home, physically assaulted her, and attempted to sexually
assault her, though she said A.T. had difficulty remembering the details of the events,
something Downs described as a common experience for someone who has experienced
trauma. Downs testified she observed a bite injury to the corner of A.T.’s mouth, a bruised
and swollen area on her forehead, and an area on her neck that A.T. had reported as having
experienced strangulation. Additionally, Downs noticed that A.T. had difficulty projecting
No. 21AP-350 6
her voice, and A.T. reported she had a sore throat and it was difficult for her to swallow.
When asked if any vaginal or anal penetration occurred, A.T. responded that she was
unsure. Downs said A.T. declined to undergo a genital exam.
{¶ 12} Law enforcement officers collected DNA samples from A.T.’s neck and from
a pot handle at A.T.’s residence. Subsequent laboratory testing identified Abdullahi as the
contributor of those DNA samples.
{¶ 13} At the close of the state’s evidence, defense counsel made a Crim.R. 29 motion
for acquittal relative to the rape count. Defense counsel argued that because A.T. testified
there was no anal or vaginal penetration, the state failed to put forth evidence on all the
elements of rape. The trial court responded it did not recall A.T.’s testimony with respect
to penetration being so definitive and that her testimony could be interpreted in different
ways, noting that the definition of intercourse within the meaning of sexual conduct for
purposes of a charge of rape includes penetration no matter how slight. The trial court
further noted that A.T.’s description of the struggle seemed to leave her unsure of whether
or to what extent penetration occurred, and, for that reason, determined that the question
of whether vaginal or anal penetration occurred is a question for the trier of fact to
determine. Thus, the trial court denied the Crim.R. 29 motion.
{¶ 14} After the state rested, defense counsel called two witnesses: Abdullahi and
one of his friends. Sadi Ismali Gurhan, a friend of Abdullahi, testified that he had seen
Abdullahi interact with A.T. before and that A.T. and Abdullahi were not strangers to each
other. Gurhan described seeing Abdullahi help A.T. carry groceries to her apartment on a
previous occasion. He also testified that he was with Abdullahi on a separate occasion when
A.T. came outside and invited Abdullahi to come to her apartment for a meal. Gurhan also
described a third meeting he saw between Abdullahi and A.T., testifying that he once waited
30 minutes for Abdullahi to return from A.T.’s apartment while Abdullahi and A.T. had tea.
{¶ 15} Abdullahi also testified. Abdullahi was born in Somalia in 1983, spent 18
years in Kenya as a refugee, and then moved to the United States in 2009 with his wife and
children. Abdullahi testified he is now separated from his wife, and acknowledged he had
prior convictions, also occurring in 2019, for domestic violence and trespass into a
habitation.
No. 21AP-350 7
{¶ 16} In his testimony, Abdullahi stated A.T. was not being truthful when she told
law enforcement and the jury that she did not know Abdullahi prior to October 7, 2019.
Abdullahi said he spent a month and one-half talking to A.T. and developed a relationship
with her. He said A.T. was lying when she said he had never been inside her apartment
prior to October 7, 2019 and that she had invited him over previously for lunch and for tea.
{¶ 17} With respect to the events of October 7, 2019, Abdullahi said he was sitting
outside the apartment complex with his friend when A.T. returned to the apartment
complex around 2:00 a.m. and invited him to come to her apartment. Abdullahi testified
that A.T. let him into the apartment and he sat down on her mattress to talk to her.
According to his testimony, Abdullahi had never told A.T. that he was married or that he
had children, and he said that on October 7, 2019, A.T. confronted him about having a
family. He said A.T. became upset and accused him of deceiving her, and he said she then
started throwing plates on the floor. Abdullahi said he tried to leave the apartment but
that A.T. quickly came up behind him with a cooking pot and hit him in the face, so he said
he then tried to grab her wrists and put his hand on her neck to try to push A.T. away from
him. Abdullahi said he scratched A.T.’s neck while trying to push her away from him but
that he was not trying to hurt her. Additionally, Abdullahi said he was never undressed
while in A.T.’s apartment except for taking off his sweatshirt. He also denied rubbing his
penis on A.T.’s backside and in between her butt cheeks.
{¶ 18} Following closing arguments, the trial court instructed the jury on both rape
and the lesser-included offense of attempted rape. Following deliberations, the jury found
Abdullahi not guilty of aggravated burglary and rape but guilty of kidnapping, attempted
rape, and felonious assault. The trial court conducted a sentencing hearing on June 8, 2021
and determined the attempted rape conviction and the kidnapping conviction would merge
for purposes of sentencing. Finding the date of the offenses rendered the Reagan Tokes
Law applicable to sentencing, the trial court then sentenced Abdullahi to an indefinite
sentence with a minimum of 12 years and a maximum of 15 years and informed him of his
classification as a Tier III sex offender with lifelong reporting requirements. The trial court
journalized Abdullahi’s convictions and sentence in a June 24, 2021 judgment entry.
{¶ 19} Abdullahi timely appealed. In a November 11, 2022 journal entry, this court
sua sponte stayed the appeal pending the Supreme Court of Ohio’s determination of State
No. 21AP-350 8
v. Hacker, __ Ohio St.3d __, 2023-Ohio-2535. On July 26, 2023, the Supreme Court
issued its decision in Hacker overruling facial constitutional challenges to the Reagan
Tokes Law. Id. This court subsequently reactivated the appeal on August 24, 2023.
II. Assignments of Error
{¶ 20} Abdullahi assigns the following four assignments of error for our review:
[I.] The trial court erred by denying the Defendant’s Rule 29
Motion and failing to dismiss Count 3 (Rape) because there
was no evidence of “sexual conduct” or penetration presented
at trial.
[II.] Mr. Abdullahi was deprived of a fair trial due to
prosecutorial misconduct through misstatements of
testimony and law in closing arguments.
[III.] Mr. Abdullahi was deprived effective assistance of
counsel.
3a. Failure to renew Defendant’s Rule 29 Motion at the
defense’s case.
3b. Failure to object to the prosecutor’s misstatements
of fact and law in closings.
3c. Failure to object to the Attempted Rape jury
instruction.
3d. The totality of trial counsel’s performance.
[IV.] The trial court committed plain error in imposing an
indefinite sentence under R.C. 2967.271, the Reagan Tokes
Law, because it violates the United States and Ohio
Constitution.
III. First Assignment of Error – Crim.R. 29 Motion for Acquittal
{¶ 21} In his first assignment of error, Abdullahi argues the trial court erred in
denying his Crim.R. 29 motion for acquittal related to the rape charge.
{¶ 22} Crim.R. 29(A) provides that the court, “on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a conviction
of such offense or offenses.” Review of the denial of a Crim.R. 29 motion and the sufficiency
No. 21AP-350 9
of the evidence apply the same standard. State v. Fugate, 10th Dist. No. 12AP-194, 2013-
Ohio-79, ¶ 5, citing State v. Turner, 10th Dist. No. 04AP-364, 2004-Ohio-6609, ¶ 8.
Whether there is legally sufficient evidence to sustain a verdict is a question of law. State
v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy. Id. The
relevant inquiry for an appellate court is whether the evidence presented, when viewed in
a light most favorable to the prosecution, would allow any rational trier of fact to find the
essential elements of the crime proven beyond a reasonable doubt. State v. Mahone, 10th
Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio St.3d 255, 2006-
Ohio-2417, ¶ 37.
{¶ 23} Abdullahi asserts the state failed to present sufficient evidence to convict him
of rape and that the trial court erred in denying his Crim.R. 29 motion for acquittal at the
close of the state’s evidence during the trial. The state charged Abdullahi with one count of
forcible rape through anal intercourse. To convict a defendant of rape under R.C.
2907.02(A)(2), the state is required to prove the defendant engaged in sexual conduct with
the victim by purposely compelling the victim to submit by force or threat of force. As
defined in R.C. 2907.01(A), “sexual conduct” includes “vaginal intercourse between a male
and female; anal intercourse * * *; 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.” Further, “[p]enetration, however slight, is sufficient to
complete vaginal or anal intercourse.” Id.
{¶ 24} Here, Abdullahi argues the state failed to present any evidence of penetration
and, accordingly, the trial court should have granted the Crim.R. 29 motion for acquittal on
the rape charge. Abdullahi points to A.T.’s testimony that, although she felt Abdullahi’s
penis in between her butt cheeks, she did not feel his penis inside her anus. The state
responds that A.T. also testified that the reason she did not consent to a physical
examination at the hospital was because she “didn’t think [she] got raped,” meaning “[she]
did feel his penis. He was going up and down but not the point where it went fully inside.”
(Emphasis added.) (Tr. Vol. I at 119.) The state notes that the statutory definition of sexual
conduct requires penetration “however slight,” and that, viewing A.T.’s testimony in a light
most favorable to the state, there was sufficient evidence that penetration, however slight,
occurred and, thus, sexual conduct occurred. R.C. 2907.01(A).
No. 21AP-350 10
{¶ 25} Having reviewed the record, we agree with the trial court that the state
presented sufficient evidence of sexual conduct related to the rape charge to overcome
Abdullahi’s Crim.R. 29 motion for acquittal. Although A.T. testified at various times she
felt Abdullahi’s penis on the outer part of her buttocks and in between her butt cheeks but
not inside her anus, she also testified that the reason she did not believe she was raped was
because she did not feel full penetration of Abdullahi’s penis. A.T. described an extensive
struggle and her repeated efforts to fight Abdullahi off of her, and she testified that he
continued to move his penis up and down while holding her down. Additionally, on the
medical form the SANE nurse completed during A.T.’s time at the hospital, A.T. answered
she was “[u]nsure” whether vaginal or anal penetration had occurred, and the SANE nurse
testified she had explained to A.T. that for purposes of the form, “penetration meant full
insertion of the penis into the vagina or anal cavity,” which is different from “penetration,
however slight” required for the statutory definition of sexual conduct. (Tr. Vol. II at 255.)
{¶ 26} From all of this testimony, we agree with the trial court that the question of
whether penetration, however slight, had occurred was a question for the trier of fact. The
testimony related to A.T.’s understanding of what constituted penetration undercuts
Abdullahi’s assertion that A.T. was unequivocal that no penetration occurred. Accordingly,
the trial court did not err in denying Abdullahi’s Crim.R. 29 motion for acquittal. We
overrule Abdullahi’s first assignment of error.
IV. Second Assignment of Error – Prosecutorial Misconduct
{¶ 27} In his second assignment of error, Abdullahi argues he was deprived of a fair
trial because of prosecutorial misconduct. Through this assignment of error, Abdullahi
asserts the prosecutor made misstatements of fact and law during closing arguments that
were so prejudicial as to deny him a fair trial.
{¶ 28} Courts afford prosecutors wide latitude in closing arguments, and
prosecutors may draw reasonable inferences from the evidence at trial, commenting on
those inferences during closing arguments. State v. Hunt, 10th Dist. No. 12AP-1037, 2013-
Ohio-5326, ¶ 18. The test for prosecutorial misconduct in closing arguments “is whether
the remarks were improper and, if so, whether they prejudicially affected substantial rights
of the defendant.” State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing United States v. Dorr,
636 F.2d 117 (5th Cir.1981). “ ‘[T]he touchstone of due process analysis in cases of alleged
No. 21AP-350 11
prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ ”
State v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416, ¶ 38, quoting Smith v.
Phillips, 455 U.S. 209, 219 (1982). Thus, prosecutorial misconduct is not grounds for
reversal unless the defendant has been denied a fair trial. State v. Maurer, 15 Ohio St.3d
239, 266 (1984).
{¶ 29} Here, Abdullahi concedes he did not object to the prosecutor’s statements at
trial and thus has waived all but plain error. “A court recognizes plain error with the utmost
caution, under exceptional circumstances, and only to prevent a miscarriage of justice.”
State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v.
Saleh, 10th Dist. No. 07AP-431, 2009-Ohio-1542, ¶ 68. For an error to be “plain error”
under Crim.R. 52(B), it must satisfy three prongs: (1) there must be an error, meaning a
deviation from a legal rule; (2) the error must be “plain,” meaning an “obvious” defect in
the trial proceedings; and (3) the error must have affected “substantial rights,” meaning the
error must have affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27
(2002). Specific to allegations of prosecutorial misconduct, “[u]nder a plain error standard,
a reviewing court asks whether a defendant ‘ “would not have been convicted in the absence
of the improper conduct.” ’ ” State v. Lipkins, 10th Dist. No. 16AP-616, 2017-Ohio-4085,
¶ 23, quoting State v. Elson, 10th Dist. No. 13AP-554, 2014-Ohio-2498, ¶ 43, quoting Saleh
at ¶ 68.
{¶ 30} Abdullahi points to several instances of alleged prosecutorial misconduct
during closing arguments. First, Abdullahi notes the prosecutor repeatedly stated the
evidence demonstrated that Abdullahi vaginally raped A.T. when neither the indictment
nor the testimony at trial supported these statements. In the indictment, the state charged
Abdullahi with one count of forcible rape through anal intercourse. Despite the charge in
the indictment, Abdullahi argues the prosecutor improperly asked A.T. numerous
questions about vaginal rape and that A.T. repeatedly denied that any vaginal penetration
occurred. Nonetheless, the prosecutor made the following statements during closing
arguments:
So the sexual conduct is the vaginal and anal intercourse that
you heard [A.T.] testify to.
***
No. 21AP-350 12
He knew what he was doing when he stripped off his clothes
and inserted his penis into her anus and vagina.
***
He grabbed her by the wrists, pushed her to the ground, ripped
off his own clothes and anally and vaginally raped this woman
after strangling her multiple times.
(Tr. Vol IV at 470-76.)
{¶ 31} Abdullahi further argues the prosecutor used these erroneous factual
statements to make improper legal misrepresentations deriving therefrom. Specifically, in
explaining the definition of sexual conduct, the prosecutor stated, “[w]e don’t need to prove
this charge with testimony that his penis, his whole penis, was inserted into her anus or her
vagina. We don’t need that. It is penetration, no matter how slight.” (Tr. Vol. IV at 497-
98.) Abdullahi argues the recurring reference to vaginal penetration was prejudicial
because he was not charged with vaginal rape. He also asserts the prosecutor advocated for
an erroneous definition of sexual conduct by stating “the victim used the language, his penis
touched my butt. His penis went up and down on my butt. This is insertion, no matter how
slight.” (Tr. Vol. IV at 470.)
{¶ 32} The state conceded during oral arguments before this court that the
prosecutor made misstatements during closing arguments at trial. However, all of these
misstatements related to the rape charge. The jury did not convict Abdullahi of rape,
instead finding him guilty only of the lesser-included offense of attempted rape. Abdullahi
does not assert the evidence was not sufficient to convict him of attempted rape or that the
prosecutor made any misstatements relative to attempted rape. In making this argument,
Abdullahi refers to the “indicted charges” and does not articulate any prejudice that
occurred from the prosecutor’s misstatements specifically to the lesser-included offense of
attempted rape.
{¶ 33} To the extent Abdullahi argues the misstatements about the rape charge
affected the overall fairness of his trial on the other charges, we are mindful that the plain
error standard requires Abdullahi to demonstrate that, but for the prosecutor’s improper
conduct, Abdullahi would not have been convicted. Lipkins at ¶ 23. Abdullahi does not
No. 21AP-350 13
explain how the prosecutor’s references to vaginal rape had any bearing on the fairness of
his trial on the remaining charges or the jury’s consideration of those charges. Thus, even
agreeing with Abdullahi that the prosecutor’s statements about vaginal rape were improper,
Abdullahi is unable to demonstrate the type of prejudice necessary to require reversal based
on plain error from prosecutorial misconduct. See State v. Guade, 10th Dist. No. 11AP-718,
2012-Ohio-1423, ¶ 20.
{¶ 34} Abdullahi next argues the prosecutor made improper comments on the
credibility of his own testimony and of A.T.’s testimony. When recounting Abdullahi’s
version of events, the prosecutor stated “I think it’s safe to say he was not so forthcoming
in a lot of his answers. And from my recollection, it was quite difficult to get him to answer
the questions.” (Tr. Vol. IV at 502.) Then, when remarking on A.T.’s version of events, the
prosecutor stated “[i]t’s not credible to think that a woman as conservative and timid as her
would do anything but tell the truth.” (Tr. Vol. IV at 503.) On appeal, Abdullahi argues the
prosecutor, through these statements, improperly imparted personal beliefs onto the jury.
{¶ 35} As a general rule “[i]t is improper for an attorney to express his or her own
personal belief or opinion as to the credibility of a witness.” State v. Williams, 79 Ohio
St.3d 1, 12 (1997). A prosecutor may, however, comment on the testimony and suggest what
conclusions the jury should draw from it and, “[i]n doing so, the prosecutor may express
his or her personal opinion if he bases that opinion on the evidence presented in court.”
State v. Young, 10th Dist. No. 18AP-630, 2020-Ohio-462, ¶ 46, citing State v. Crossty, 12th
Dist. No. CA2008-03-070, 2009-Ohio-2800, ¶ 45, and State v. Shine-Johnson, 10th Dist.
No. 17AP-194, 2018-Ohio-3347, ¶ 88. A prosecutor improperly vouches for the credibility
of a witness “ ‘when the prosecutor implies knowledge of facts outside the record or places
his or her personal credibility in issue.’ ” State v. Thompson, 141 Ohio St.3d 254, 2014-
Ohio-4751, ¶ 200, quoting State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 232.
{¶ 36} Here, the credibility of both A.T. and Abdullahi was the main crux of
Abdullahi’s argument, with Abdullahi’s defense counsel suggesting in the defense’s own
closing arguments that A.T. was not to be believed and that Abdullahi’s version of events
was more credible. Given the context of the prosecutor’s statements about Abdullahi’s and
A.T.’s relative credibility, we do not agree with Abdullahi that the prosecutor acted
improperly in suggesting the inferences to be drawn from both A.T.’s testimony and
No. 21AP-350 14
Abdullahi’s testimony. See Young at ¶ 50 (finding no plain error from prosecutor’s
comments that the witness “didn’t lie” and “[was] believable” because the defense argued,
at least in part, that the case hinged on the witness’s credibility). We also note that even if
these statements did amount to the prosecutor improperly expressing a personal opinion
on the truthfulness of the witnesses, Abdullahi does not articulate any specific prejudice
flowing from these statements. Young at ¶ 48 (“reversible error does not automatically
result where the trial was nonetheless fair or where plain error is not demonstrated by the
appellant”). Additionally, the trial court instructed the jury that the prosecutor’s closing
arguments are not evidence, and it is presumed the jury follows the trial court’s
instructions. State v. Nichols, 10th Dist. No. 19AP-113, 2020-Ohio-4362, ¶ 28 (where the
trial court instructs the jury that closing arguments are not evidence, a reviewing court
presumes the jury followed that instruction and that the verdict is not based on the content
of the closing arguments), citing State v. Fudge, 10th Dist. No. 16AP-821, 2018-Ohio-601,
¶ 52.
{¶ 37} Lastly under this assignment of error, Abdullahi argues the prosecutor acted
improperly by telling the jury not to “get wrapped up in beyond a reasonable doubt.” (Tr.
Vol. IV at 504.) Again, Abdullahi does not articulate any specific prejudice as a result of
these remarks. Moreover, in addition to instructing the jury that closing arguments are not
evidence, the trial court also instructed the jury on the legal concept of proof beyond a
reasonable doubt. Again, a jury is presumed to follow the instructions of the trial court.
State v. Hicks, 10th Dist. No. 18AP-883, 2020-Ohio-548, ¶ 23, citing State v. Shipley, 10th
Dist. No. 12AP-948, 2013-Ohio-4055, ¶ 62. Here, because the trial court properly
instructed the jury on the law and the applicable burden of proof, Abdullahi does not
demonstrate the prosecutor’s remarks prejudicially affected his substantial rights, even if
we assume, arguendo, that the statement was improper. Columbus v. Aleshire, 187 Ohio
App.3d 660, 2010-Ohio-2773, ¶ 47 (10th Dist.), citing State v. Fox, 133 Ohio St. 154, 160
(1938), and Pang v. Minch, 53 Ohio St.3d 186, 195 (1990).
{¶ 38} Because Abdullahi is not able to demonstrate plain error arising from the
prosecutor’s alleged misconduct, we overrule Abdullahi’s second assignment of error.
No. 21AP-350 15
V. Third Assignment of Error – Ineffective Assistance of Counsel
{¶ 39} In his third assignment of error, Abdullahi argues he received ineffective
assistance of counsel.
{¶ 40} In order to prevail on a claim of ineffective assistance of counsel, Abdullahi
must satisfy a two-prong test. First, he must demonstrate that his counsel’s performance
was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong
requires Abdullahi to show that his counsel committed errors which were “so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. If Abdullahi can so demonstrate, he must then establish that he was
prejudiced by the deficient performance. Id. To show prejudice, Abdullahi must establish
there is a reasonable probability that, but for his counsel’s errors, the results of the trial
would have been different. A “reasonable probability” is one sufficient to undermine
confidence in the outcome of the trial. Id. at 694.
{¶ 41} In considering claims of ineffective assistance of counsel, courts review these
claims with a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,
¶ 101. Abdullahi contends his trial counsel was ineffective in: (1) failing to renew the
Crim.R. 29 motion at the close of trial; (2) failing to object to the attempted rape
instruction; (3) failing to object to the prosecutor’s improper statements during closing
arguments; and (4) the totality of counsel’s performance. We address each of the alleged
instances of ineffective assistance of counsel in turn.
A. Failure to Renew Crim.R. 29 Motion
{¶ 42} Abdullahi’s first alleged instance of ineffective assistance of counsel is his trial
counsel’s failure to renew the Crim.R. 29 motion at the close of the defense’s evidence.
Abdullahi argues that if his trial counsel had renewed the Crim.R. 29 motion, there is a
reasonable probability counsel could have more effectively argued why the motion should
be granted and, had the trial court granted the renewed motion, the state would not have
had the opportunity to request the instruction on attempted rape.
{¶ 43} As this court has previously held, “ ‘[d]efense counsel’s failure to make a
Crim.R. 29 motion for acquittal is not ineffective assistance of counsel where such a motion
would have been futile.’ ” State v. McCall, 10th Dist. No. 18AP-93, 2021-Ohio-1032, ¶ 18,
No. 21AP-350 16
quoting State v. Wallace, 10th Dist. No. 08AP-2, 2008-Ohio-5260, ¶ 63. As we explained
in our resolution of Abdullahi’s first assignment of error, the trial court did not err in
denying Abdullahi’s Crim.R. 29 motion made at the close of the state’s evidence as the state
had presented sufficient evidence for the jury to decide whether sexual conduct had
occurred within the meaning of the rape charge. Though Abdullahi argues his trial counsel
may have been able to argue more effectively had he renewed the Crim.R. 29 motion at the
close of the defense’s case, Abdullahi does not point to any additional evidence presented
during the defense’s case that would require the court to grant the Crim.R. 29 motion that
it had previously denied. Because we find that renewing the Crim.R. 29 motion for acquittal
at the close of the defense’s case would have been futile, we do not find Abdullahi’s trial
counsel was deficient in failing to renew the motion.
B. Failure to Object to Attempted Rape Instruction
{¶ 44} Abdullahi’s second allegation of ineffective assistance of counsel is his trial
counsel’s failure to object to the trial court instructing the jury on the lesser-included
offense of attempted rape. To succeed on a claim of ineffective assistance of counsel based
on counsel’s failure to file an objection, an appellant must demonstrate that the objection
had a reasonable probability of success. State v. Jones, 10th Dist. No. 18AP-33, 2019-Ohio-
2134, ¶ 52, citing State v. Johns, 10th Dist. No. 11AP-203, 2011-Ohio-6823, ¶ 25. If the
objection would not have been successful, the appellant cannot prevail on a claim of
ineffective assistance of counsel. Id., citing Johns at ¶ 25.
{¶ 45} A trial court “must give an instruction on a lesser included offense if under
any reasonable view of the evidence it is possible for the trier of fact to find the defendant
not guilty of the greater offense and guilty of the lesser offense.” State v. Wine, 140 Ohio
St.3d 409, 2014-Ohio-3948, ¶ 34; State v. Rutledge, 10th Dist. No. 17AP-590, 2019-Ohio-
3460, ¶ 24 (“an instruction on a lesser-included offense is required only when the evidence
presented at trial would reasonably support both an acquittal on the crime charged and a
conviction on the lesser-included offense”). Here, Abdullahi does not argue the evidence
did not support an attempted rape instruction, and a review of the record indicates the
evidence at trial warranted the instruction. Despite the evidentiary support for the
instruction, Abdullahi again argues the trial court should have granted his Crim.R. 29
motion on the rape charge which would have prevented the state from seeking an
No. 21AP-350 17
instruction on a lesser-included offense. Having already determined the trial court did not
err in denying the Crim.R. 29 motion on the rape charge, and because the evidence
presented at trial warranted the attempted rape instruction, Abdullahi cannot show a
reasonable probability of success if his trial counsel had objected to the attempted rape
instruction. Thus, trial counsel’s failure to object to the attempted rape instruction does
not constitute deficient performance within the meaning of the Strickland test.
C. Failure to Object to Prosecutor’s Closing Arguments
{¶ 46} Abdullahi’s third alleged instance of ineffective assistance of counsel is his
trial counsel’s failure to object to the prosecutor’s many allegedly improper statements
during closing arguments. As noted above, to succeed on a claim of ineffective assistance
of counsel based on counsel’s failure to file an objection, an appellant must demonstrate
that the objection had a reasonable probability of success. Jones at ¶ 52. Additionally,
“ ‘ “where the failure to object does not constitute plain error, the issue cannot be reversed
by claiming ineffective assistance of counsel.” ’ ” Young, 2020-Ohio-462, at ¶ 103, quoting
State v. Roy, 10th Dist. No. 14AP-223, 2014-Ohio-4587, ¶ 20, quoting State v. Carson, 10th
Dist. No. 05AP-13, 2006-Ohio-2440, ¶ 51; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, ¶ 22 (plain error review employs “the same deferential standard for reviewing
ineffective assistance of counsel claims”).
{¶ 47} Here, Abdullahi makes the same argument he made under his second
assignment of error. As we noted in our resolution of Abdullahi’s second assignment of
error, because of Abdullahi’s failure to make an objection at trial, we reviewed Abdullahi’s
allegations of prosecutorial misconduct under a plain error standard. Having previously
held that Abdullahi did not demonstrate plain error regarding prosecutorial misconduct,
we find Abdullahi’s argument in this regard likewise fails to satisfy the second prong of the
Strickland test. Young at ¶ 104. Thus, Abdullahi’s claim of ineffective assistance of counsel
based on counsel’s failure to object to the various instances of alleged prosecutorial
misconduct lacks merit.
D. Totality of Counsel’s Performance
{¶ 48} Abdullahi’s final argument related to his allegation of ineffective assistance
of counsel is that his trial counsel’s overall performance violated his constitutional rights.
However, where none of an appellant’s individual claims of ineffective assistance of counsel
No. 21AP-350 18
has merit, the appellant cannot establish a right to relief by joining those claims together.
State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, ¶ 296, citing State v. Mammone, 139
Ohio St.3d 467, 2014-Ohio-1942, ¶ 173; State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562,
¶ 222 (where an appellant has not established individual claims of ineffective assistance of
counsel, “he cannot establish a right to relief by simply joining those claims together”).
Having already determined none of Abdullahi’s individual claims of ineffective assistance
of counsel have merit, Abdullahi cannot combine them together now.
{¶ 49} Additionally, even if we were to agree with Abdullahi that his counsel’s overall
performance was deficient under the first prong of Strickland, we are nonetheless
constrained by the second prong of Strickland which requires Abdullahi to demonstrate
that but for his counsel’s performance, the outcome of the proceeding would have been
different. Abdullahi does not demonstrate the requisite prejudice under the second prong
of Strickland, and, thus, the cumulative effect of the alleged errors did not deprive him of a
fair trial.
{¶ 50} Because Abdullahi does not demonstrate he received ineffective assistance of
counsel under the Strickland test, we overrule Abdullahi’s third assignment of error.
VI. Fourth Assignment of Error – Indefinite Sentence
{¶ 51} In his fourth and final assignment of error, Abdullahi argues the trial court
erred in imposing an indefinite sentence under the Reagan Tokes Law because the Reagan
Tokes Law is unconstitutional. Abdullahi did not object to the application or
constitutionality of the Reagan Tokes Law at trial and, thus, has waived all but plain error.
State v. Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, ¶ 7 (an appellate court has discretion
to consider a forfeited constitutional challenge to a statute and may review the trial court
decision for plain error).
{¶ 52} Effective March 2019, the Reagan Tokes Law provides that first- and second-
degree felonies not already carrying a life sentence are subject to an indefinite sentencing
scheme consisting of a minimum and maximum prison term. The Reagan Tokes Law
creates a presumption that the offender will be released from incarceration after serving
the minimum prison term but gives the Ohio Department of Rehabilitation and Correction
(“ODRC”) the opportunity to rebut that presumption, in which case the ODRC may
No. 21AP-350 19
maintain the offender’s incarceration up to the maximum prison term set by the trial court
at sentencing. R.C. 2967.271(B), (C), and (D)(1).
{¶ 53} During the sentencing hearing, the trial court determined the Reagan Tokes
Law applied to the offenses. As a result, the trial court sentenced Abdullahi to an indefinite
sentence of a minimum of 12 years and a maximum of 15 years in prison. Abdullahi now
argues on appeal the trial court erred in applying the indefinite sentencing structure of the
Reagan Tokes Law because the Reagan Tokes Law is unconstitutional. More specifically,
Abdullahi argues the presumptive release portion of R.C. 2967.271 violates both his
constitutional right to due process and the constitutional requirement of separation of
powers.
{¶ 54} While this appeal was pending, the Supreme Court issued a decision finding
the Reagan Tokes Law to be facially constitutional. Hacker, 2023-Ohio-2535, at ¶ 41
(holding the Regan Tokes Law does not violate the doctrine of separation of powers, is not
unconstitutionally vague, and does not unconstitutionally deprive offenders of their right
to due process). Following the Supreme Court’s decision in Hacker, we reject Abdullahi’s
constitutional challenge to the indefinite sentencing structure of the Reagan Tokes Law.
State v. Burks, 10th Dist. No. 21AP-657, 2024-Ohio-17, ¶ 55 (applying Hacker to state’s
appeal regarding trial court’s failure to impose the indefinite sentencing scheme required
by the Reagan Tokes Law). Accordingly, we overrule Abdullahi’s fourth and final
assignment of error.
VII. Disposition
{¶ 55} Based on the foregoing reasons, the trial court did not err in denying
Abdullahi’s Crim.R. 29 motion for acquittal, Abdullahi did not demonstrate the requisite
prejudice from his allegations of prosecutorial misconduct, Abdullahi did not receive
ineffective assistance of counsel, and the trial court did not err in imposing an indefinite
sentence under the Reagan Tokes Law. Having overruled Abdullahi’s four assignments of
error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and LELAND, JJ., concur.