Submitted May 3, 2017
from the Court of Appeals for Cuyahoga County, Nos. 102398
and 103602, 2016-Ohio-1116.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda and Kelly N. Mason,
Assistant Prosecuting Attorneys, for appellant.
L. Tobik, Cuyahoga County Public Defender, and Erika B.
Cunliffe, Assistant Public Defender, for appellee.
1} Ohio's kidnapping statute reduces the level
of the offense from a first-degree felony to a second-degree
felony if the victim is released in a "safe place
unharmed." R.C. 2905.01. This case presents the question
whether "harm, " for purposes of the statute,
encompasses not only physical harm but also psychological
harm. We conclude that it does.
2} In the proceeding below, the court of appeals
reversed a first-degree kidnapping conviction based upon its
determination that trial counsel had been ineffective in
failing to request a safe-place-unharmed instruction and that
the trial judge had committed plain error by not sua sponte
providing the instruction. The court of appeals reasoned that
there was no physical harm to the victim and that
"harm, " for purposes of R.C. 2905.01, could not
include psychological harm. We see it differently. We apply
the plain meaning of "harm" to include both
physical and psychological harm. And with "harm"
properly defined, we conclude that on the record before us,
counsel was not ineffective in failing to request such an
instruction; rather, his not requesting the instruction fell
within the gamut of trial strategy. Further, we find no plain
error in the judge's failure to give the instruction.
Thus, we reverse the judgment of the court of appeals and
reinstate the judgment of the trial court.
3} A jury found taxicab driver Shuaib Haji Mohamed
guilty of several felonies based upon Mohamed's sexual
assault of one of his fares. The victim, J.K., had spent the
evening drinking at several establishments in downtown
Cleveland with her best friend Stephanie. After the bars
closed, the pair were unable to locate their car and ended up
hailing Mohamed's cab. J.K. got in the front passenger
seat of the minivan taxi and her friend got in the back. In
the cab, the women started arguing about the lost car and
wound up slapping and hitting each other. During the scuffle,
J.K.'s purse was dumped on the floor, and she lost her
cell phone. Mohamed eventually stopped the cab near their
destination, pulled the girls apart, and the women set off in
4} At trial, J.K provided this account of what
happened next. As she was walking away, Mohamed caught up
with her and told her that the credit card she had used to
pay the fare had been declined and that if she did not pay,
he was going to call the cops. J.K. promised Mohamed that if
he would drive her to her apartment, she had a new debit card
that she could activate and use to withdraw cash from a
5} On the way to the apartment, Mohamed remarked
that in breaking up the fight, he had noticed that J.K.'s
" 'skin was so soft.' " Made uncomfortable
by the comment, J.K. put on sweatpants and grabbed a large
hooded sweatshirt while she was in the apartment retrieving
her debit card. After the stop at the apartment, Mohamed
drove J.K. to a nearby gas station that had an ATM. She
withdrew $110 in cash and paid for the cab ride. The night,
however, was still not over.
6} As they were leaving the gas station, J.K.
realized she had locked her keys in her apartment and would
not be able to get back inside, so she asked Mohamed to take
her to her ex-boyfriend Rodney's house. Soon after they
pulled out of the gas station, Mohamed began to touch her
thighs. She told him to stop, but he persisted. While on
Interstate 71, Mohamed stopped the cab on the side of the
road, pulled out his penis, and shoved J.K.'s head down
in an apparent attempt to force her to perform oral sex. He
also grabbed her breasts. J.K. fought him off, and Mohamed
resumed the trip to Rodney's house. At some point during
the ride, J.K. borrowed Mohamed's phone and tried to call
Rodney. She dialed the number over 50 times, but he did not
7} The taxicab eventually made it to its
destination. J.K. immediately got out of the cab, went to the
house, and began to bang on the windows. Mohamed waited in
the cab. When Rodney came to the door, J.K. told him that
Mohamed had just tried to rape her. At trial, Rodney
described J.K. as "panicky, distraught, [and]
scared." He yelled at the cabdriver from the door, but
Mohamed sped away.
8} According to Mohamed's counsel, J.K.'s
story was one big lie. Throughout trial, he sought to
undermine her credibility. He asserted that J.K. was highly
intoxicated that night and that she and her friend had taken
a cab because she was too drunk to remember where she had
parked her car. He brought out in cross-examination that
Mohamed had allowed J.K. to use his cell phone to call her
ex-boyfriend. He argued that J.K. had multiple opportunities
to leave the cab during the evening, but had not done so. And
he pointed out that J.K. had not sought treatment following
the incident-behavior that counsel claimed was inconsistent
with someone who had been sexually assaulted.
9} The jury believed J.K. and found Mohamed guilty
of the five felony counts on which he had been charged-one
count of gross sexual imposition, one count of attempted
gross sexual imposition, two counts of kidnapping, and one
count of attempted rape.
10} On appeal, the Eighth District Court of Appeals
reversed one of the kidnapping convictions. The court noted
that kidnapping is ordinarily a felony of the first degree
but is a felony of the second degree if the offender
"releases the victim in a safe place unharmed."
2016-Ohio-1116, ¶ 35, citing R.C. 2905.01(C)(1). The
court concluded that Mohamed had released J.K. in a safe
place unharmed, relying on its determination that
"psychological harm 'is not considered' for
purposes of the statutory analysis." Id. at
¶ 36-37, quoting State v. Wright,
2013-Ohio-1424, 990 N.E.2d 615, ¶ 21 (7th Dist), citing
State v. Henderson, 10th Dist. Franklin No.
85AP-830, 1986 WL 4366 (Apr. 8, 1986). "Arguably all
victims of crime are harmed in some fashion, " the court
explained, "but to apply the statute from that
perspective renders the statute meaningless."
Id. Having determined that psychological harm was
not to be considered, the court found no evidence that
Mohamed had harmed J.K. Id. at ¶ 37. The court
concluded that defense counsel had been ineffective in not
requesting the safe-place-unharmed instruction and that the
trial court had committed plain error in failing to provide
the instruction. A dissenting judge opined that the
majority's conclusion was at odds with the plain and
ordinary meaning of the word "unharmed"
Id. at ¶ 49-51 (Gallagher, J, concurring in
part and dissenting in part).
11} The court remanded the cause for a new trial
solely on one of the kidnapping counts. In light of its
disposition, the court concluded that one of Mohamed's
assignments of error, which related to a purported error in
the imposition of consecutive sentences, was moot and
declined to rule on the issue. Id. at ¶ 46.
12} We granted the state's discretionary appeal.
146 Ohio St.3d 1489, 2016-Ohio-5585, 57 N.E.3d 1169.