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State of Ohio v. Ali Abdul Hakim

October 28, 2011

STATE OF OHIO
APPELLEE
v.
ALI ABDUL HAKIM
APPELLANT



Trial Court No. CR0200803936

The opinion of the court was delivered by: Pietrykowski, J.

Cite as State v. Hakim,

DECISION AND JUDGMENT

{¶1} Defendant-appellant, Ali Abdul Hakim, appeals the May 4, 2010 judgment of the Lucas County Court of Common Pleas which, following a jury trial convicting appellant of three counts of aggravated robbery and one count of aggravated burglary all with gun specifications, sentenced him to a total of 16 years of imprisonment. For the reasons that follow, we affirm.

{¶2} On December 17, 2008, appellant was indicted on four first-degree felony counts with gun specifications. Specifically, appellant was indicted on one count of aggravated burglary, R.C. 2911.11(A)(2), and three counts of aggravated robbery, R.C. 2911.01(A)(1). The counts contained gun specifications. The charges stemmed from an incident on December 9, 2008, where three women in an apartment were robbed, at gunpoint, by two masked assailants. Appellant entered not guilty pleas to the counts.

{¶3} Although represented by counsel, on July 21, 2009, appellant filed a pro se motion to suppress the witnesses' identifications and the gun found at the scene. Trial counsel ultimately adopted the motion. On November 12 and 20, 2009, hearings were held on the motion to suppress. On February 3, 2010, the motion was denied.

{¶4} On April 12, 2010, the matter proceeded to a jury trial where appellant was found guilty. On May 4, 2010, appellant was sentenced to eight years in prison for aggravated burglary, five years in prison for each of the aggravated robbery counts, and a three year mandatory term for the firearm specifications. The robbery convictions were ordered to be served concurrently but consecutively to the burglary count for a total of 16 years. This appeal followed.

{¶5} Appellant raises three assignments of error for our review:

{¶6} "1) The trial court erred when it denied appellant's motion to suppress evidence.

{¶7} "2) Appellant's conviction falls against the manifest weight of the evidence.

{¶8} "3) The trial court erred by not merging allied offenses at sentencing."

{¶9} In appellant's first assignment of error, he first argues that the one-on-one identification of appellant should have been suppressed. "A trial court enjoys broad discretion in admitting evidence. [An appellate court] will not reject an exercise of this discretion unless it clearly has been abused and the criminal defendant thereby has suffered material prejudice." State v. Long (1978), 53 Ohio St.2d 91, 98. A trial court will not be found to have abused its discretion unless its decision can be characterized as unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion standard of review, an appellate court must not substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138.

{¶10} An appellate court's review of a motion to suppress presents mixed questions of law and fact; therefore, the court must accept the trial court's findings of fact where they are supported by competent, credible evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

{¶11} In Neil v. Biggers, the United States Supreme Court considered due process limitations on the use of evidence derived through suggestive identification procedures.

The court utilized a two-prong analysis stating that "[w]hen a witness has been confronted with a suspect before trial, due process requires a court to suppress her identification of the suspect if the confrontation was unnecessarily suggestive of the suspect's guilt and the identification was unreliable under all the circumstances." State v. Waddy (1992), 63 Ohio St.3d 424, 438, superseded by constitutional amendment on other grounds, citing Neil v. Biggers (1972), 409 U.S. 188; Manson v. Brathwaite (1977), 432 U.S. 98. The first question is whether the identification procedure was unnecessarily suggestive of the defendant's guilt. Id. The second, "is whether, under all the circumstances, the identification was reliable, i.e., whether suggestive procedures created 'a very substantial likelihood of irreparable misidentification.'" Id. at 439, quoting Simmons v. United States (1968), 390 U.S. 377, 384.

{¶12} At the November 12, 2009 suppression hearing the following evidence was presented. Selina Lipscomb testified that on December 9, 2008, around 6:00 p.m., she had just returned to her apartment complex from work. Lipscomb's apartment was on the second floor and, as she walked up the outside stairs, she heard footsteps running toward her. Two men with guns approached her; she tried to run away but tripped and fell. One of the men grabbed her and hit her in the head with his gun. Lipscomb described the men as the "aggressive guy" and the "quiet guy." She stated that the aggressive guy forced her to call to her neighbor, after the quiet guy knocked on the door, in order for them to gain entry into the apartment.

{ΒΆ13} Lipscomb described the men as both African American and that the silent guy was taller and lighter skinned than the aggressive guy. Lipscomb stated that the quiet guy had on a "half" face mask, a black Carhartt jumpsuit and black Carhartt jacket with the hood tied tightly around his face. The aggressive guy had a stockier build and round frame glasses. He had a scarf covering the lower part of his ...


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