State v. Barrie , 2016 Ohio 5640 ( 2016 )

[Cite as State v. Barrie, 2016-Ohio-5640.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-848
v. : (C.P.C. No. 14CR-2289)
Alimu Barrie, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 1, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
Swanson, for appellee.
On brief: Thompson Steward Flecha, LLC, and Lisa F.
Thompson, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Defendant-appellant, Alimu Barrie, appeals the judgment of the Franklin
County Court of Common Pleas convicting him and imposing sentence following a jury
trial. For the following reasons, we affirm the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} On November 7, 2013, A.R. was working as a housekeeper at the
Renaissance Hotel in Columbus. The hotel assigned two housekeepers to each floor, who
worked independently to clean rooms in different parts of the floor. Furthermore, it was
customary for the hotel to assign a person, whom A.R. described as a "houseman," to
remove the used linens before a housekeeper arrived to clean the room and make the bed.
(Tr. Vol. III at 46.)
{¶ 3} According to A.R., on November 7, 2013, at approximately 10:00 a.m., she
entered room 927 and found that a houseman had not removed the linens from the bed.
No. 15AP-848 2
As she prepared to clean the room, appellant, who was working as a houseman at the
hotel, entered the room. A.R. asked appellant to strip the bed, but instead he began to
inappropriately touch her.
{¶ 4} Specifically, A.R. stated that appellant approached her from behind while
she was at the bed and grabbed her buttocks with both hands. A.R. stated that appellant's
actions made her feel "uncomfortable" because she "didn't know what he was going to do.
I didn't know if he was going to rape me or pull my pants down or anything like that." (Tr.
Vol. III at 49.) A.R. pushed appellant away, but he continued to force himself on her.
A.R. stated that appellant rubbed his genitals against her buttocks, grabbed her neck with
his right arm, and then grabbed her breasts with both hands. Additionally, appellant told
A.R. to "[s]uck his dick" and that "he wanted to fuck [her]." (Tr. Vol. III at 48.)
{¶ 5} After appellant touched her breasts, A.R. turned around, pushed appellant
away, and told him to leave her alone. Appellant then left the room. A.R. stated that she
did not scream for help because she was afraid that "[i]f I yelled * * * he was going to do
something." (Tr. Vol. III at 52.) A.R. clarified that she was afraid appellant would rape
her. Once appellant exited the room, A.R. stated she did not report the incident because
she was "still scared"; instead, she resumed cleaning the room. (Tr. Vol. III at 53.) A.R.
stated that she resumed cleaning because she "wanted to try to get my mind off of it and
try to go on in my day." (Tr. Vol. III at 55.)
{¶ 6} Approximately 10 to 15 minutes later, appellant re-entered the room and
resumed inappropriately touching A.R. According to A.R., this second incident lasted
between 5 to 10 minutes. A.R. explained that the incident lasted for that period of time
because appellant "kept on touching me and wouldn't leave me alone. And I had to keep
on pushing him away and he kept on forcing his self on me." (Tr. Vol. III at 67.) A.R.
agreed that appellant's attempts to touch her were "persistent" and "went on and on for a
while." (Tr. Vol. III at 67.) Appellant attempted to touch her "front private part" with his
hands and stated that he "wanted to fuck [her] pussy," but she pushed him away and told
him to leave her alone. (Tr. Vol. III at 55, 56.) Appellant then exited the room.
{¶ 7} Once appellant left the room for the second time, A.R. told the other
housekeeper on the floor what had happened. A.R. then told her immediate supervisor,
who reported the incident to Teri Fornshell, a manager of the laundry and housekeeping
operations. After she reported the incident to her supervisors, A.R. resumed working for
the remainder of her shift. When asked why she did not leave for the day, A.R. stated that
No. 15AP-848 3
she "wanted to finish my work [in order to] [t]ry to get my mind off of things on what had
happened. I didn't want to give up." (Tr. Vol. III at 59.)
{¶ 8} On November 7, 2013, Fornshell was in a meeting when she received a call
from a housekeeping supervisor indicating that there was an emergency requiring her
attention. Fornshell exited the meeting and went to the housekeeping offices where she
found A.R., who was visibly upset. A.R. told Fornshell that appellant had inappropriately
touched her buttocks and "showed her his male parts through his pants." (Tr. Vol. III at
80.) Fornshell later met with appellant, who was cooperative and denied that the incident
occurred. After talking to A.R., Fornshell reported the incident to the hotel's human
resources department.
{¶ 9} On May 1, 2014, a Franklin County Grand Jury filed an indictment charging
appellant with two counts of gross sexual imposition, in violation of R.C. 2907.05, both
felonies of the fourth degree.
{¶ 10} On July 13, 2015, the case proceeded to trial. On the same date, the trial
court filed an entry appointing Fatim Dabo as foreign language interpreter in the
proceedings; the court also filed a second document signed by Dabo reflecting the oath
she swore regarding her duties before the court. On July 14, 2015, the jury returned a
verdict of guilty on both counts of the indictment.
{¶ 11} On September 3, 2015, the trial court held a sentencing hearing. On the
same date, the trial court filed an entry appointing Fatmata Berete as foreign language
interpreter in the proceedings; the court also filed a second document signed by Berete
reflecting the oath that was sworn regarding the interpreter's duties before the court. At
the sentencing hearing, the trial court imposed a sentence of 16 months on each count of
gross sexual imposition, to be served concurrently. The trial court also imposed a 5-year
period of postrelease control and classified appellant as a Tier I sexual offender. On
October 6, 2015, the trial court filed a judgment entry reflecting appellant's conviction and
sentence.
II. Assignments of Error
{¶ 12} Appellant appeals and assigns the following four assignments of error for
our review:
[I.] The trial court violated Alimu Barrie's rights to due
process and a fair trial when it entered a judgment of guilt
against him, when that finding was not supported by
sufficient evidence. Fifth and Fourteenth Amendments to the
No. 15AP-848 4
United States Constitution and Section 16, Article I of the
Ohio Constitution.
[II.] The trial court violated Alimu Barrie's rights to due
process and a fair trial when it entered a judgment of guilt
against him, when that finding was against the manifest
weight of the evidence. Fifth and Fourteenth Amendments to
the United States Constitution and Section 16, Article I of the
Ohio Constitution.
[III.] The trial court violated Alimu Barrie's rights to due
process, confrontation of witnesses, and a fair trial when it
permitted uncertified and unqualified interpreter to
interpret for Mr. Barrie during the legal proceedings against
him. Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution; Sections 10 and 16, Article I of the Ohio
Constitution; Evid.R. 604 and 702.
[IV.] Alimu Barrie's attorney provided him with the
ineffective assistance of counsel and violated his rights to
due process and a fair trial where defense counsel failed to
object to the court's appointment of uncertified and
unqualified interpreters. Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution and Sections
10 and 16, Article I of the Ohio Constitution.
As appellant's first and second assignments of error are interrelated, we address them
together.
III. Discussion
A. First and Second Assignments of Error—Manifest Weight and Sufficiency
{¶ 13} In his first and second assignments of error, appellant asserts that his
conviction was not supported by sufficient evidence and was against the manifest weight
of the evidence.
{¶ 14} Sufficiency of evidence is a "legal standard that tests whether the evidence
introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.
08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). When judging the sufficiency of the evidence to support a criminal conviction, an
appellate court must decide if, "after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. Where the evidence, "if believed, would convince the average mind of
No. 15AP-848 5
the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction.
Id.{¶ 15} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25.
See also Thompkins at 387 ("Although a court of appeals may determine that a judgment
of a trial court is sustained by sufficient evidence, that court may nevertheless conclude
that the judgment is against the weight of the evidence."). An appellate court must review
the entire record, weighing the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Id., citing State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983). This authority " 'should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.' " Id.,quoting Martin at 175. Thus, although an appellate court acts as a "thirteenth juror" in
considering the weight of the evidence, it must give great deference to the factfinder's
determination of witness credibility. State v. Spires, 10th Dist. No. 10AP-861, 2011-Ohio-
3312, ¶ 18, citing State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037, ¶ 22.
{¶ 16} We first consider whether appellant's convictions were supported by
sufficient evidence. R.C. 2907.05 provides in pertinent part that "[n]o person shall have
sexual contact with another, not the spouse of the offender * * * when any of the following
applies: (1) The offender purposely compels the other person * * * to submit by force or
threat of force." "Sexual contact" is defined as "any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic region, or, if the
person is a female, a breast, for the purpose of sexually arousing or gratifying either
person." R.C. 2907.01(B). R.C. 2901.22(A) defines the mens rea of purpose: "A person
acts purposely when it is the person's specific intention to cause a certain result, or, when
the gist of the offense is a prohibition against conduct of a certain nature, regardless of
what the offender intends to accomplish thereby, it is the offender's specific intention to
engage in conduct of that nature."
{¶ 17} Appellant contends that plaintiff-appellee, State of Ohio, failed to establish
an essential element of the crimes of which he was convicted. Specifically, appellant
No. 15AP-848 6
contends that "the evidence presented was inadequate to prove that Appellant touched
[A.R.'s] erogenous zones for the purpose of sexually arousing or gratifying either person."
(Appellant's Brief at 8.)
{¶ 18} "[P]roof of sexual gratification generally must be accomplished by inference
rather than by direct evidence." State v. West, 10th Dist. No. 06AP-111, 2006-Ohio-6259,
¶ 17. See also State v. Kring, 10th Dist. No. 07AP-610, 2008-Ohio-3290, ¶ 37 ("While
there must be some evidence of sexual gratification as the purpose for touching a
described area, there is no requirement that there be direct testimony as to sexual arousal
or gratification."). The trier of fact may infer a purpose of sexual arousal or gratification
from the type, nature, and circumstances of the contact, among other relevant factors.
State v. Crosky, 10th Dist. No. 06AP-655, 2008-Ohio-145, ¶ 47, citing West at ¶ 17; Kring
at ¶ 35.
{¶ 19} Here, A.R. testified that appellant touched her buttocks and breasts, both of
which are included in the list of erogenous zones under R.C. 2907.01, thereby supporting
the two counts of gross sexual imposition as charged. Both the manner in which appellant
touched A.R. and his comments to her demonstrate that appellant touched A.R. for the
purpose of sexual arousal or gratification. Crosky at ¶ 47; West at ¶ 17; Kring at ¶ 37.
Therefore, viewing the evidence in a light most favorable to the state, we find that a
rational trier of fact could have found the essential elements of appellant's crimes proven
beyond a reasonable doubt.
{¶ 20} We next examine appellant's contentions with regard to the manifest weight
of the evidence. Specifically, appellant contends that A.R. was not credible or that her
account was inconsistent because: (1) the other housekeeper on the floor did not testify
and Fornshell did not witness the incidents in question; (2) A.R. resumed cleaning the
room after the first incident in which appellant touched her; (3) A.R. did not tell the other
housekeeper on the floor after the first incident; and (4) it was implausible that the
second incident lasted five to ten minutes, as A.R. stated, because that "is an extremely
long time to fight off an attacker in a hotel room with an open door." (Appellant's Brief at
12-13.)
{¶ 21} First, it is immaterial that A.R. was the only witness to the incidents in
question. "The testimony of a single witness, if believed by the finder of fact, is sufficient
to support a criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-
5118, ¶ 18, citing State v. Elqatto, 10th Dist. No. 11AP-914, 2012-Ohio-4303, ¶ 20.
No. 15AP-848 7
{¶ 22} Next, we disagree that A.R.'s testimony was inherently incredible or
otherwise unworthy of belief. However, even if we found that portions of A.R.'s testimony
were inconsistent, " '[a] defendant is not entitled to a reversal on manifest weight grounds
merely because inconsistent evidence was presented at trial.' " State v. Jackson, 10th
Dist. No. 14AP-670, 2015-Ohio-3322, ¶ 17, quoting State v. Chandler, 10th Dist. No.
05AP-415, 2006-Ohio-2070, ¶ 9, citing State v. Raver, 10th Dist. No. 02AP-604, 2003-
Ohio-958, ¶ 21. See also State v. Taylor, 10th Dist. No. 14AP-254, 2015-Ohio-2490, ¶ 34,
citing State v. Rankin, 10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. A jury may take
into consideration a witness's conflicting testimony in determining his or her credibility
and the persuasiveness of his or her account by either discounting or resolving the
discrepancies. Jackson at ¶ 17, citing Taylor at ¶ 34. "A jury, as finder of fact, may believe
all, part, or none of a witness's testimony." Taylor at ¶ 34. See also Booker at ¶ 18, citing
State v. Sullivan, 10th Dist. No. 11AP-414, 2012-Ohio-2737, ¶ 37. Furthermore, not all
inconsistent testimony raises serious questions about credibility. Jackson at ¶ 17, citing
Taylor at ¶ 34.
{¶ 23} Here, nothing in A.R.'s account raises serious questions regarding her
credibility. Appellant, through his trial counsel, had the opportunity to cross-examine
A.R. regarding her account of the incidents. A.R. addressed why she resumed cleaning
and did not immediately report the first incident to the other housekeeper or her
supervisor; she also explained how the second incident could have lasted for the amount
of time she claimed. It was within the province of the jury, as trier of fact, to determine
whether or not to believe A.R.'s testimony. Therefore, weighing the evidence and all
reasonable inferences, and considering the credibility of the witnesses, we cannot find
that the jury, in resolving conflicts in the evidence, clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.
{¶ 24} Accordingly, we overrule appellant's first and second assignments of error.
B. Third Assignment of Error—Interpreter
{¶ 25} In his third assignment of error, appellant asserts the trial court erred by
appointing unqualified interpreters both at trial and sentencing.
1. Applicable Law and Rules
{¶ 26} R.C. 2311.14(A) provides that "[w]henever because of a hearing, speech, or
other impairment a party to or witness in a legal proceeding cannot readily understand or
No. 15AP-848 8
communicate, the court shall appoint a qualified interpreter to assist such person." R.C.
2311.14(B) provides in pertinent part that "[b]efore entering upon official duties, the
interpreter shall take an oath that the interpreter will make a true interpretation of the
proceedings to the party or witness, and that the interpreter will truly repeat the
statements made by such party or witness to the court, to the best of the interpreter's
ability."
{¶ 27} Evid.R. 604, pertaining to interpreters, states that "[a]n interpreter is
subject to the provisions of these rules relating to qualification as an expert and the
administration of an oath or affirmation to make a true translation." With respect to the
oath or affirmation, Evid.R. 603 provides that "[b]efore testifying, every witness shall be
required to declare that the witness will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness' conscience and impress the
witness' mind with the duty to do so." Evid.R. 702, relating to the qualification of experts,
provides in relevant part as follows:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond
the knowledge or experience possessed by lay persons or
dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding
the subject matter of the testimony[.]
{¶ 28} The Supreme Court of Ohio Rules of Superintendence contain provisions
related to the appointment of a foreign language interpreter. Sup.R. 88(A) provides:
A court shall appoint a foreign language interpreter in a case
or court function in either of the following situations:
(1) A party or witness who is limited English proficient or
non-English speaking requests a foreign language interpreter
and the court determines the services of the interpreter are
necessary for the meaningful participation of the party or
witness;
(2) Absent a request from a party or witness for a foreign
language interpreter, the court concludes the party or witness
is limited English proficient or non-English speaking and
determines the services of the interpreter are necessary for the
meaningful participation of the party or witness.
No. 15AP-848 9
{¶ 29} When appointing an interpreter as required by Sup.R. 88(A), a court is
required to appoint an interpreter in accordance with the requirements of Sup.R. 88(D).
Sup.R. 88(D) provides in declining order of requirements a list of the types of interpreters
that a court shall appoint. First, Sup.R. 88(D)(1) provides that "a court shall appoint a
Supreme Court certified foreign language interpreter to participate in-person at the case
or court function" subject to the exceptions in Sup.R. 88(D)(2) through (4). (Emphasis
added.) Second, if a certified foreign language interpreter "does not exist or is not
reasonably available to participate in-person at the case or court function and after
considering the gravity of the proceedings and whether the matter could be rescheduled
to obtain a Supreme Court certified foreign language interpreter * * *, a court may appoint
a provisionally qualified foreign language interpreter." (Emphasis added.) Sup.R.
88(D)(2). Third, if a certified or provisionally qualified foreign language interpreter does
not exist or is not reasonably available to participate in-person, "after considering the
gravity of the proceedings and whether the matter could be rescheduled to obtain" a
certified or provisionally qualified foreign language interpreter, "a court may appoint a
foreign language interpreter who demonstrates to the court proficiency in the target
language and sufficient preparation to properly interpret the proceedings." Sup.R.
88(D)(3). An interpreter appointed by the court under Sup.R. 88(D)(3) "shall be styled a
'language-skilled foreign language interpreter.' " (Emphasis added.) Sup.R. 88(D)(3).
Finally, if a certified, provisionally qualified, or language-skilled foreign language
interpreter does not exist or is not reasonably available to participate in-person, a court
may appoint an interpreter to participate in the case through telephonic interpretation.
Sup.R. 88(D)(4).
{¶ 30} This court has previously provided guidance regarding interpretation in a
court proceeding. State v. Newcomb, 10th Dist. No. 03AP-404, 2004-Ohio-4099, ¶ 29.
First, we have stated that "[i]n addition to the execution of a written oath by the
interpreter, which should occur prior to the hearing, and subsequent filing with the trial
court, the administration of the oath by the trial court to the interpreter should be
reflected in the transcript prior to the commencement of the hearing." Id. Second, a "trial
court should confirm the interpreter's qualifications and, if necessary, qualify the
interpreter as an expert witness." Id. Finally, "the transcript should reflect when the
interpreter is interpreting to the defendant and when the defendant is conversing with the
interpreter. The record should reflect [that] all statements made during the hearing were
No. 15AP-848 10
properly conveyed to the defendant by the interpreter and that the defendant's responses
to the interpreter were conveyed to the court." Id.
2. Standard of Review
{¶ 31} Both at trial and the sentencing hearing, no objection was raised as to the
qualifications of the interpreter, the usage of a language-skilled interpreter instead of a
certified or provisionally qualified interpreter, or to the ability of the interpreter to
effectively interact with appellant. Accordingly, we apply a plain error standard of review.
State v. Noor, 10th Dist. No. 13AP-165, 2014-Ohio-3397, ¶ 72, citing State v. McDowall,
10th Dist. No. 09AP-443, 2009-Ohio-6902, ¶ 26.
{¶ 32} Plain error under Crim.R. 52(B) consists of an obvious error or defect in the
trial proceedings that affects a substantial right. State v. Lindsey, 87 Ohio St.3d 479, 482
(2000). In order to demonstrate plain error, the defendant must show: (1) an error that is
plain on the record, i.e., a deviation from a legal rule that constitutes an obvious defect in
the trial proceedings; and (2) that such error affected substantial rights, i.e., there was a
reasonable probability that the error affected the outcome of the trial. State v. J.M., 10th
Dist. No. 14AP-621, 2015-Ohio-5574, ¶ 27, citing State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, ¶ 22. However, even if a defendant meets the requirements for
demonstrating plain error, "an appellate court is not required to correct it," because
courts are to "notice plain error with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice." (Emphasis omitted; internal
quotation marks omitted.) Rogers at ¶ 23. See also State v. Barnes, 94 Ohio St.3d 21, 27
(2002).
3. Foreign Language Interpretation at Trial
{¶ 33} We first examine appellant's contentions with regard to the interpreter at
trial. It is undisputed that, at trial, the trial court did not appoint a certified or
provisionally qualified interpreter, but, rather, appointed a language-skilled interpreter.
Pursuant to Sup.R. 88(D)(3), when appointing a language-skilled interpreter, the court is
required to "summarize on the record" its efforts to obtain a certified or provisionally
qualified foreign language interpreter, in addition to "the reasons for using a language-
skilled foreign language interpreter." Furthermore, "[t]he language-skilled foreign
language interpreter's experience, knowledge, and training should be stated on the
record" and "[e]ach language-skilled foreign language interpreter shall take an oath or
affirmation under which the interpreter affirms to know, understand, and act according to
No. 15AP-848 11
the 'Code of Professional Conduct for Court Interpreters and Translators' as set forth in
Appendix H to [the Rules of Superintendence]." Sup.R. 88(D)(3).
{¶ 34} On July 13, 2015, the first day of trial, the trial court addressed the
interpreter's qualifications and detailed the process utilized to obtain the interpreter:
Interpreter, Fatima Dabo, having been heretofore duly sworn,
translated the proceedings on behalf of the Court.
***
[Appellant's Counsel]: Your Honor, I would like to have the
translator explain to my client that she took the oath, which
means to accurately interpret.
[The Court]: Ms. Dabo, it's important that you repeat
everything that's being said in the courtroom.
***
[The Court]: All right. Ms. Dabo, okay, it's extremely
important, okay, that everything that's being said in the
courtroom, whether it's by me, whether it's by the attorneys
and ultimately when we get to the jurors talking, okay, that
you repeat everything that's being said in the mic so that
[appellant] can hear. Because there were periods of time that I
was talking and I didn't hear you.
If you're having difficulty hearing me in any way or if I'm
saying something that you don't understand, please, get my
attention.
[Ms. Dabo]: Okay.
[The Court]: I'll stop, I'll repeat it, I'll rephrase it. If anyone
else in the courtroom is talking and you're having difficulty
hearing them, it's important that you let me know as well,
and, again, I'll ask that person to talk up so that you can hear.
But the only way that you can interpret accurately is
interpreting at the time that someone is talking. Because if
you're waiting until that person gets finished and then you try
to, what you're going to end up doing is summarizing what
was being said as opposed to interpreting directly what's
being said at the time that it's being said.
Okay. If you have any questions, please, just stop me and let
me know. If there's any confusion it's important that you let
me know as well. Okay. But everything that's being said in the
courtroom must be interpreted.
No. 15AP-848 12
So I want you to ask, [appellant], sir, if you have any difficulty
understanding what's going on, okay, please get the attention
of your attorney * * *.
Do you understand, sir?
[Ms. Dabo]: Yes, he does.
[The Court]: Now, it's important that everything I say, it's
important that everything that I say is repeated to [appellant].
Even that. Okay?
[Ms. Dabo]: Okay. Yes.
[The Court]: We are scheduled for trial today. The Court
became aware of the need for an interpreter, I believe, it was
November -- October, November, 2014.
At that time, the Court worked through the administrative
assistant to the court administrator, Sheila Brown, in an effort
to obtain an interpreter. First, we had attempted to get an
interpreter through, I believe, it was Language Line. Language
Line had indicated to the Court that they were not servicing
Krio at this time. And there's an email from * * * Language
Line on December 10, 2014.
Not being able to obtain an interpreter through Language
Line, Sheila Brown contacted Bruno Romero at the Supreme
Court. Mr. Romero was able to get us in contact with someone
that we could use through a phone conference. And as counsel
recalls, we had used an interpreter by the name of John Abeh
Fontengwan * * * and we used him for a phone conference. He
was with an agency called Cross Thread Solutions. It's either
out of Solon, Ohio; but their main office may have been in
Baltimore, Maryland. But we used his services for one of the
hearings.
Realizing that using the interpreter through a phone
conference, while adequate for court hearing, would not be
adequate either for a plea hearing or a trial.
So I again got into contact with Sheila Brown who then got
into contact with Bruno Romero with the Supreme Court. Mr.
Romero checked once again to see if there were any
interpreters for Krio, and he checked his sources.
So January 21st, he had provided us names of interpreters,
[an interpreter] out of Maryland; [an interpreter] out of
Colorado Springs, Colorado; [an interpreter] out of New York;
No. 15AP-848 13
[an interpreter] out of St. Paul, Minnesota; and [an
interpreter] out of New York, New York.
So the Court was trying to figure out at that time what cost
potentially would be involved in having to bring someone out
for trial.
Bruno Romero with the Supreme Court then got back in
contact with the Court indicating that he had made contact
with a company out of Cincinnati and the owner was Mr.
Ibrahim Amidou.
Mr. Amidou was one of their certification candidates through
the Supreme Court. Mr. Amidou provided the interpreters
that we have been using.
Now, the interpreters, Ms. Dabo is not a certified interpreter.
The Court has had an opportunity to talk with her this
morning, had her review the training video from the Supreme
Court on expectations for interpreting and we discussed
matters such as the confidential nature of conversations
between the attorney and client, discussed the importance of
her not interjecting her opinion, talked about the importance
of not summarizing, and not providing advice; that her role is
simply to repeat everything that's being said in court.
The Court does have some concerns, obviously with Ms.
Dabo's lack of experience with the legal aspects of
interpreting. But based upon the efforts that the Court has
made trying to obtain an interpreter that's available to be here
for trial, the Court is, at least at this point, willing to move
forward with trial using the services of Ms. Dabo.
But the Court will be vigilant and ask that counsel, likewise, if
they have any issues or concerns to stop the proceedings so
that we can address those concerns.
***
[Prosecutor]: Thank you, Judge. Are you saying that there is
not a reasonably available certified foreign language
interpreter nor a reasonably available provisionally qualified
foreign language interpreter; but that Ms. Dabo is a language
skilled foreign language interpreter?
[The Court]: Correct.
***
[Prosecutor]: Judge, do we need to qualify this interpreter?
No. 15AP-848 14
The state's willing to stipulate that she is qualified. I don't
know what [appellant's counsel's] thoughts are. I think that's a
formality that we have to address.
[The Court]: All right. Ms. Dabo, I mean, we did talk briefly in
the back. And is it correct this is your first time doing legal
interpretation?
[Ms. Dabo]: Yes.
[The Court]: What is your native language?
[Ms. Dabo]: I was born in Sierra Leone. Krio is the native
language everybody speaks growing up.
***
[The Court]: Okay. And so that's where you learned to speak
Krio then?
[Ms. Dabo]: Yes.
[The Court]: Then how did you learn English?
[Ms. Dabo]: It's an English school and when outside of school
you can either speak English or Krio. My native background,
educational background is in English.
[The Court]: Okay. So what is your educational background?
[Ms. Dabo]: My educational background, I've been to a few
colleges. I haven't graduated yet. I want to do business
administration and I did some computer networking and
human resources classes.
[The Court]: In what settings have you interpreted in the
past?
[Ms. Dabo]: In business settings, like in purchasing something
from the school.
[The Court]: Okay. Now, are you related in any way with any
of the participants in this case?
[Ms. Dabo]: No.
[The Court]: Do you know [appellant] at all?
[Ms. Dabo]: No. Today is the first day I saw him.
No. 15AP-848 15
[The Court]: Okay. And at least based upon what you know,
not familiar with any of his relatives or anything like that?
[Ms. Dabo]: No.
***
[The Court]: All right. As we are moving through the trial and
if it appears that you are familiar with any of the participants,
please, let me know.
Now, do you understand that you are to be a neutral party
here to facilitate communication?
[Ms. Dabo]: Yes.
[The Court]: And that you should not offer advice or interject
your opinion into these proceedings?
[Ms. Dabo]: Yes.
[The Court]: You understand that?
[Ms. Dabo]: Yeah.
[The Court]: What training have you done, if any, with regard
to interpreting in the past?
[Ms. Dabo]: Nothing.
[The Court]: How have you worked with Mr. Amidou?
[Ms. Dabo]: I just came to introduce myself that I would be
taking over for the person and then I came in and talked.
[The Court]: You're familiar with Mr. Amidou's company or
was it just --
[Ms. Dabo]: Yeah. I am familiar with the company Language
International as far as what they do.
[The Court]: Okay. All right. I'm going to qualify you as an
interpreter. I mean, we understand, again, some of the
limitations that we have in these proceedings. But I think it's
very important that you stop us if there's something that you
do not understand; that you'd be willing to ask us questions if
you need something restated or repeated; and then, again, just
making sure that you're interpreting everything that's being
said without interjecting your opinion without summarizing
or without providing advice.
No. 15AP-848 16
[Ms. Dabo]: Correct.
[The Court]: Okay. So on behalf of the State then?
[Prosecutor]: Does [appellant's counsel] have any objections
to this interpreter being qualified?
[Appellant's counsel]: No, Your Honor.
What I'd like to do, just briefly, since we are on the record is
ask my client, are you able to understand the translator, the
interpreter?
[Ms. Dabo]: Yes.
[Appellant's Counsel]: Do you have any difficulties today?
[The Court]: You have to say yes or no.
[Ms. Dabo]: You can say yes or no.
[Appellant]: Yes. Yes.
[Ms. Dabo]: Do you have any difficulty right now?
[Appellant]: No. No.
[The Court]: It's my understand, at least having a
conversation this morning, is that there is some, I guess, part
of Krio that is English as well.
[Ms. Dabo]: Yes. It's like a broken English.
[The Court]: Okay. All right. So with regard to the interpreter,
anything else that we need to place on the record on behalf of
either party?
[Prosecutor]: No.
[Appellant's counsel]: No.
(July 13, 2015 Tr. at 3-16.)
{¶ 35} On July 13, 2015, the trial court filed a document titled "Oath" which was
signed by the interpreter and stated: "I do solemnly swear that I will make a true
interpretation of the proceedings to the party or witness, and that I will truly repeat the
statements made by such party or witness to the Court, to the best of my ability."
Additionally, the transcript reflects that the interpreter was sworn before the court. Here,
both the signed statement by the interpreter and the transcript of proceedings before the
No. 15AP-848 17
court reflect that Dabo was sworn as an interpreter. Additionally, appellant's counsel
asked the court to instruct the interpreter to explain to appellant that "she took the oath,
which means to accurately interpret." (July 13, 2015 Tr. at 3.)
{¶ 36} Appellant first contends that the trial court erred in appointing Dabo as his
interpreter because the trial court did not qualify her as an expert witness in
contravention of this court's holding in Newcomb. However, in Newcomb, we stated that
"[t]he failure to object in the trial court results in a waiver of the requirements to
administer an oath to the interpreter and to qualify the interpreter as an expert witness."
Id. at ¶ 22. Furthermore, we stated that "the alleged failure to qualify the interpreter as an
expert witness does not constitute plain error" because "[t]here is no evidence which
indicates the interpreter was not qualified to interpret." Id. at ¶ 25. Therefore, we
concluded that "the fact the interpreter was not qualified as an expert witness does not
undermine or call into question the fairness, integrity, or public reputation of appellant's
plea." Id.
{¶ 37} Here, as in Newcomb, there is no evidence that the interpreter was not
qualified to interpret. Although appellant notes the trial court "had to instruct [the
interpreter] several times before the trial began to interpret literally and not to
summarize," appellant fails to demonstrate with reference to the record that the
interpreter was not qualified to interpret or was inaccurately interpreting. (Appellant's
Brief at 18.) Furthermore, the trial court conducted a lengthy colloquy with the
interpreter on the record, inquiring into subjects including the interpreter's educational
background, familiarity with the subject language, and experience interpreting, among
others. Thereafter, the trial court qualified Dabo as an interpreter. The trial court
cautioned the interpreter that "it's very important that you stop us if there's something
that you do not understand; that you'd be willing to ask us questions if you need
something restated or repeated; and then, again, just making sure that you're interpreting
everything that's being said without interjecting your opinion without summarizing or
without providing advice." (July 13, 2015 Tr. at 14.)
{¶ 38} The trial court specifically asked appellant's counsel whether there was any
objection to the qualification of the interpreter. Appellant's counsel did not object at that
time or at any other time during the proceedings. We do not find any error. However,
assuming, arguendo, there was error, appellant cannot show that any alleged error related
No. 15AP-848 18
to the trial court's qualification of the interpreter affected the outcome of the trial.
Appellant fails to demonstrate plain error.
{¶ 39} Next, appellant contends that the trial court should have delayed appellant's
trial "until a certified translator could be found." (Appellant's Brief at 22.) However,
neither R.C. 2311.14 nor the Rules of Superintendence require that a court continue a trial
until a certified interpreter can be appointed. Indeed, as we have previously stated, the
Rules of Superintendence specifically allow for the appointment of a language skilled
interpreter when the trial court ascertains that a certified or provisionally qualified
foreign language interpreter is "not reasonably available to participate in person." Sup.R.
88(D)(3). Here, the trial court detailed its efforts to obtain a certified interpreter,
including seeking the assistance of the Supreme Court. Appellant has failed to
demonstrate plain error resulting from the trial court's usage of a language-skilled
interpreter.
{¶ 40} Accordingly, we find that the trial court did not err in appointing Dabo as a
language-skilled foreign language interpreter at appellant's trial.
4. Foreign Language Interpretation at Sentencing Hearing
{¶ 41} Finally, we consider appellant's contentions with regard to the foreign
language interpreter at the sentencing hearing on September 3, 2015. The record reflects
that on the day of the hearing, the trial court filed an entry stating: "Pursuant to section
2311.14, Ohio Revised Code, Fatmata Berete is hereby appointed interpreter in this
action." Additionally, the trial court filed a document titled "Oath" which was signed by
the interpreter and stated: "I do solemnly swear that I will make a true interpretation of
the proceedings to the party or witness, and that I will truly repeat the statements made
by such party or witness to the Court, to the best of my ability." However, the record does
not reflect whether the interpreter was a certified, provisionally qualified, or language
skilled interpreter. The record also does not reflect that the trial court inquired as to the
qualifications of the interpreter.
{¶ 42} Here, we find that appellant has failed to demonstrate plain error for several
reasons. First, in a plain error analysis, the sentencing hearing is procedurally distinct
from the trial phase of the proceedings since concerns related to the adversarial process
are not present at sentencing. See State v. Dunbar, 3d Dist. No. 1-92-12 (Nov. 5, 1992).
Additionally, there is no indication, and appellant does not contend, that a more qualified
interpreter was reasonably available at the time of sentencing, especially considering the
No. 15AP-848 19
lack of a reasonably available certified or provisionally qualified interpreter at trial.
Therefore, under these circumstances, appellant is unable to establish that the outcome of
the proceedings would have been different absent the alleged error.
{¶ 43} Notwithstanding the foregoing analysis, we find that better practices could
be employed at the sentencing hearing, as in other phases of the proceedings. Although
not outcome determinative, the sentencing proceeding entails the communication of
important obligations and responsibilities for the convicted defendant. See generally
State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Here, the trial court informed the
defendant of community control notification and registration obligations imposed as a
result of his classification as a Tier I sexual offender. In light of these considerations, it is
important for a trial court to comply with Sup.R. 88 at the sentencing hearing, as in other
phases of the proceedings. Thus, where, as here, if an interpreter at sentencing is
different from the interpreter who was qualified at trial, the trial court should inquire on
the record of sentencing as to the qualifications of the interpreter.
{¶ 44} In conclusion, we find appellant has failed to demonstrate plain error with
regard to the trial court's appointment of interpreters at trial and the sentencing hearing.
{¶ 45} Accordingly, we overrule appellant's third assignment of error.
C. Fourth Assignment of Error—Effective Assistance of Counsel
{¶ 46} In his fourth assignment of error, appellant asserts he received ineffective
assistance of counsel because his trial counsel failed to object to the interpreters provided
during the trial and sentencing proceedings.
{¶ 47} A convicted defendant alleging ineffective assistance of counsel must
demonstrate that: (1) defense counsel's performance was so deficient that he or she was
not functioning as the counsel guaranteed under the Sixth Amendment to the United
States Constitution; and (2) defense counsel's errors prejudiced defendant, depriving him
or her of a trial whose result is reliable. State v. Campbell, 10th Dist. No. 03AP-147,
2003-Ohio-6305, ¶ 24, citing Strickland v. Washington, 466 U.S. 668 (1984); State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus.
{¶ 48} "Judicial scrutiny of counsel's performance must be highly deferential * * *
[and a] court must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Strickland at 689; Bradley at 141. In
Ohio, a properly licensed attorney is presumed competent. State v. Davis, 10th Dist. No.
13AP-98, 2014-Ohio-90, ¶ 20, citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 301 (1965).
No. 15AP-848 20
Trial counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
" 'To show that a defendant has been prejudiced by counsel's deficient performance, the
defendant must prove that there exists a reasonable probability that, were it not for
counsel's errors, the result of the trial would have been different.' " State v. Griffin, 10th
Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 42, quoting Bradley at paragraph three of the
syllabus.
{¶ 49} Here, appellant recasts his fourth assignment of error as an ineffective
assistance of counsel claim. State v. Carse, 10th Dist. No. 09AP-932, 2010-Ohio-4513,
¶ 78, citing State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 233. However, appellant
fails to demonstrate that there exists a reasonable probability that, but for trial counsel's
failure to object, the result of the trial would have been different. Hale at ¶ 233, quoting
State v. Holloway, 33 Ohio St.3d 239, 244 (1988) (finding that " '[t]he failure to object to
error, alone, is not enough to sustain a claim of ineffective assistance of counsel' ").
Appellant fails to point to evidence in the record demonstrating that he was unable to
understand his interpreters. Furthermore, appellant's trial counsel specifically asked
appellant whether he was able to understand the interpreter at trial, and appellant agreed
that he had no difficulties understanding the interpreter. Therefore, based on our review
of the record, we cannot find that appellant's trial counsel's failure to object rendered his
performance so deficient that he was not functioning as the counsel guaranteed under the
Sixth Amendment to the United States Constitution or that such performance prejudiced
appellant.
{¶ 50} Accordingly, we overrule appellant's fourth assignment of error.
IV. Conclusion
{¶ 51} Having overruled appellant's four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and SADLER, JJ., concur.