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State v. Shilbaya

Court of Appeals of Ohio, Fifth District, Stark

May 21, 2018

STATE OF OHIO Plaintiff-Appellee
v.
MUSHSEN A. SHILBAYA Defendant-Appellant

          Criminal Appeal from the Court of Common Pleas, Case No. 2016 CR 02079

          For Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY RONALD MARK CALDWELL ASSISTANT PROSECUTOR

          For Defendant-Appellant DONOVAN HILL

          Hon. John W. Wise, P. J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.SHILBAYA

          OPINION

          Wise, P. J.

         {¶1} Appellant Mushsen A. Shilbaya appeals his conviction on one count of kidnapping and one count of gross sexual imposition following a jury trial in the Stark County Court of Common Pleas.

         {¶2} Appellee is the State of Ohio.

         STATEMENT OF THE FACTS

         {¶3} On November 15, 2016, the Stark County Grand Jury indicted Appellant, Mushsen A. Shilbaya, on one count of kidnapping, a violation of R.C. §2905.01(A)(4), a second-degree felony, and one count of gross sexual imposition, a violation of R.C. §2907.05(A)(1), a fourth degree felony.

         {¶4} Appellant's charges arose from an incident where Appellant, who was working as an Uber driver on the night in question, picked up a fare, CD., who reported that he drove her to a place against her will and forced her to masturbate him.

         {¶5} On June 19, 2017, a jury trial commenced in this matter.

         {¶6} At trial, the jury heard testimony from the victim CD., Detective Aaron Williams and Appellant.

         {¶7} CD. testified that on July 10, 2016, she went to downtown Canton with a group of people to "catch Pokemon." Her husband was not with her because he had to work. The Pokemon plan fell through, and the group instead went to George's Bar where she had a burger and a drink. Next, CD. took a cab to another Canton bar, Mike's, where she was joined by her son and her sister. When Mike's closed for the evening, CD. walked to the nearby White Crown, another Canton bar. She recalled that she had one drink there. She stated that she tried to call an Uber to take her home, but that she had trouble getting through because it was peak time for Uber rides. (T. at 151-167).

         {¶8} CD. testified that she did not receive a notification text from Uber when her driver arrived. She said that instead, her driver, Appellant, came into the bar to get her. CD. stated that she had used Uber many times over the past year and felt safe with the service. She said that she followed Appellant to his car and got into the backseat. She testified that she told Appellant where her home was, but that Appellant just drove around, missing turns and not following her directions. She claims that she initially thought Appellant was running up the tab during the peak time by driving around in this manner. She said that Appellant eventually completed a loop and returned to the White Crown. She testified that she got out of the car and went back into the bar to see if any of her friends were still there who could give her a ride home. She said that because her friends had left, she returned to ...


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