The Ohio Supreme Court ruled today in kidnapping cases, when considering whether the victim was released in a safe place unharmed—a factor that reduces the level of the offense—a jury can consider both physical and psychological harm to the victim. The opinion today affirmed a Cleveland taxi driver’s first-degree felony kidnapping conviction.

Ohio’s kidnapping law 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.” The Eighth District Court of Appeals ruled that only physical harm could be considered for purposes of the reduction, but the Supreme Court reversed that determination.

A Court majority reinstated Shuaib Haji Mohamed’s kidnapping conviction. He received a 10-year prison sentence in 2014 for first-degree kidnapping. The Eighth District Court of Appeals ordered a new trial for Mohamed based on his trial counsel’s failure to request a jury instruction that the level of the felony should be reduced if the victim was released in a safe place unharmed, and the trial court’s failure to provide such an instruction. In reaching this conclusion, the appellate court reasoned that harm for purposes of the reduction was limited to physical harm, and there was no evidence that the victim had been physically harmed.

Writing for the Supreme Court majority, Justice R. Patrick DeWine stated the statute should be read to consider both physical and psychological harm.

Once harm was properly defined, the high court concluded that Mohamed had failed to overcome the presumption that the failure to ask for a “safe place unharmed” jury instruction was a matter of trial strategy. The Court rejected Mohamed’s claim that he received ineffective counsel, and also the claim that the trial court’s failure to provide the instruction was plain error.

Justice Patrick F. Fischer concurred with a separate opinion. He joined the majority in finding that Mohamed’s lawyer was not ineffective, but disagreed with the majority regarding the need to define the term “unharmed.” Justice Fischer found that section of the majority opinion unnecessary to resolve the issue in this case.

In a dissenting opinion, Justice William M. O’Neill concluded that the lawyer and judge were wrong not to instruct the jury on the lesser charge because Mohamed and his passenger gave widely contradicting accounts of the events of the night. He added the Eighth District did not exclude the jury from considering psychological harm.

Driver Assaults Woman in Taxi
Mohamed picked up a woman identified in court records as “J.K.” and her friend who had been drinking at several establishments in downtown Cleveland. They hailed Mohamed’s cab after they were unable to locate their car. J.K. got in the front seat of the minivan taxi and her friend got in the back.

The two women began arguing about the lost car, and started slapping each other. J.K.’s purse was dumped on the floor and she lost her cell phone. Mohamed stopped the cab near their destination, pulled the women apart, and the two departed in separate directions. J.K. testified that as she was walking away, Mohamed caught up with her and said her credit card had been declined and, if she did not pay, he would call the police.

J.K promised to pay Mohamed if he drove her to her apartment where she had a new debit card that she could activate and withdraw cash. On the way to the apartment, J.K. said Mohamed made her uncomfortable with some of his comments so she put on sweatpants and a large sweatshirt when retrieving her debit card. Mohamed then drove J.K. to a nearby gas station where she withdrew $110 and paid for the cab ride. At the gas station, J.K. realized she locked her keys in her apartment, and asked Mohamed to drive her to her ex-boyfriend’s house.

As soon as they pulled out of the gas station, Mohamed began to touch J.K.’s thighs and persisted after she told him to stop. While driving to the ex-boyfriend’s on Interstate 71, Mohamed pulled to the side of the road, exposed his penis, and attempted to make J.K. perform oral sex. She also testified that Mohamed grabbed her breasts. She fought him off, and he drove her to the ex-boyfriend’s house. When J.K. told her ex-boyfriend what happened, he yelled at Mohamed, who sped away. J.K.’s ex-boyfriend called the police.

Mohamed Faced Multiple Charges
Mohamed was charged with two first-degree felony counts of kidnapping, and single counts of gross sexual imposition, attempted gross sexual imposition, and attempted rape.

At the trial, Mohamed’s lawyer attempted to discredit J.K.’s account, asserting that she and her friend were highly intoxicated to the point they were too drunk to locate their car. In addition, Mohamed’s lawyer pointed out that J.K. had multiple opportunities to leave the cab, but did not, and Mohamed also let J.K. use his cell phone to call her ex-boyfriend. The attorney also told the jury that J.K. did not seek treatment following the incident, which he said was inconsistent behavior for someone who had been sexually assaulted.

The jury found Mohamed guilty on all counts, and the trial court sentenced him to 15 years in prison, of which 10 years stemmed from the kidnapping charges. Mohamed appealed the decision to the Eighth District, claiming numerous errors were made at his trial, including the lack of an attempt by his attorney or by the judge to have the jury consider a conviction for second-degree kidnapping. He noted that R.C. 2905.01(C)(1) makes kidnapping a first-degree felony, but reduces it to second-degree if the offender “releases the victim in a safe place unharmed.”

In a 2-1 decision, the Eighth District found that when analyzing the kidnapping law, only “physical harm” is considered and that arguably “all victims of crime are harmed in some fashion,” which means if psychological harm was considered the law would be meaningless and the offense would never be reduced. The Eighth District concluded Mohamed’s lawyer was ineffective for not asking the jury to consider second-degree charge, and faulted the judge for not independently raising the option when the attorney did not.

The Eighth District ordered a new trial for Mohamed solely on the kidnapping count and the Cuyahoga County Prosecutor’s Office appealed the decision to the Supreme Court, which agreed to hear the case.

Defining Harm
Justice DeWine wrote that the first step in determining whether counsel was ineffective for failing to request a jury instruction on the safe-place-unharmed reduction was what the statute means by “harm.” Harm is not defined in R.C. 2905.01(C)(1)so the Court turned to the dictionary and the plain and ordinary meaning of “harm.”

“We use the term ‘harm’ to describe both physical injuries and emotional or psychological injuries,” the opinion stated. “We might say that someone was ‘mentally harmed’ or that they were ‘physically harmed,’ but in both cases, we say that they were ‘harmed.’”

The Court also noted the General Assembly has used the term “physical harm” when it wants to limit the type of harm considered, and found there are more than 150 Revised Code sections that specify “physical harm.” For purposes of Ohio’s kidnapping statute, both physical harm and psychological harm are considered.

No Errors at Trial
But defining harm for purposes of the kidnapping statute did not conclude this case. The majority was required to determine whether Mohamed’s counsel was ineffective and whether the trial court committed plain error. The Court found neither.

To successfully argue that his constitutional rights to effective counsel were violated, Mohamed had to prove that his attorney’s performance “fell below an objective standard of reasonable representation and that deficiency prejudiced him.”

Even “questionable trial strategies and tactics” do not make an attorney’s representation ineffective. Simply because “another and better strategy [is] available” does not mean that ineffective assistance was rendered, the opinion stated.

“In this case, Mohamed’s counsel’s trial strategy was simple: completely deny that any kidnapping or sexual assault occurred and attack the credibility of J.K.,” the Court wrote.

During the trial, Mohamed’s counsel attempted to poke holes throughout J.K.’s testimony:  she had opportunities to flee, Mohamed let her use his cell phone, and she had different versions of the same story. Raising the safe-place-unharmed issue might have undercut the attorney’s attempt to paint J.K. as a liar, the opinion noted. It also would have opened the door for testimony about the psychological harm that J.K. suffered.

“The theory that defense counsel presented to the jury was that the victim was telling one, big whopping lie. Counsel could not at the same time have credibly argued to the jury that even if Mohamed did kidnap her, he released her in a safe place unharmed,” the Court concluded.

In addition to rejecting Mohamed’s claim that his attorney was ineffective, the Court also concluded the judge did not commit “plain error” by not instructing the jury of the lesser charge. The opinion explained that Mohamed must prove the trial court committed an obvious error that affected the outcome of the trial.

Relying on two prior Ohio Supreme Court decisions, State v. Clayton (1980) and State v. Claytor (1991), the opinion stated that when an attorney’s trial strategy is not considered ineffective for not seeking a jury instruction, then it is not plain error by the judge for failing to provide the same unrequested instruction.

The Court reinstated the kidnapping conviction and remanded the case to the Eighth District for further proceedings.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Judith L. French joined Justice DeWine’s opinion. Justice Terrence O’Donnell concurred in judgment only without issuing a written opinion.

Dissent Maintained Jury Should Consider the Charge
In his dissent, Justice O’Neill wrote that contrary to the majority’s conclusion, the Eighth District did not find Mohamed released J.K. in a safe place unharmed. He wrote that he agreed with the majority that the law includes psychological harm, and determining if J.K. was left unharmed is a factual issue that should be decided by a jury and not the Court justices.

Justice O’Neill noted the law is structured in a way to save the lives of kidnapping victims.

“There can be no doubt that the statute is structured to punish the worst offenders more severely and to provide an incentive for perpetrators to release their victims unharmed,” he wrote.

However, the statute works only if properly applied, Justice O’Neill asserted. The law requires the trier of fact – in this case a jury – to decide the severity of the kidnapping charge. And it was plain error for the trial judge to fail to properly advise the jury on the law they were charged with applying.

“The record in this case contains little evidence indicating the extent of the harm, physical or psychological, to the victim. I am unpersuaded that it was reasonable trial strategy for defense counsel to fail to request the safe-place-unharmed instruction. Asserting that the victim was released in a safe place unharmed is entirely consistent with Mohamed’s defense strategy that this was not a kidnapping—that he took her where she wanted to go," he wrote. “Asserting that the victim was released unharmed is not an admission of guilt.”

2016-0672. State v. Mohamed, Slip Opinion No. 2017-Ohio-7468.

View oral argument video of this case.

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