[Cite as State v. Sekic,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95679

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ASIM SEKIC DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-531300

BEFORE: E. Gallagher, J., Boyle, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: September 22, 2011 2

ATTORNEY FOR APPELLANT

Richard Agopian The Hilliard Building 1415-1419 West Ninth Street Second Floor Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Brian S. Deckert Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} Asim Sekic appeals from his conviction and sentence rendered in

the Cuyahoga County Common Pleas Court. Asim argues that (1) the trial

court erred in instructing the jury and in ordering restitution; and (2) the

state of Ohio failed to support his conviction with sufficient evidence, and the

jury lost its way in convicting him of felonious assault. For the following 3

reasons, we affirm in part, reverse in part, and remand for proceedings

consistent with this opinion.

{¶ 2} This case involves two families who are joined by marriage: the

Fords and the Sekics. Andreas Sekic, who is Asim’s son, is married to Lisa

Sekic (nee Ford). Lisa’s mother, Barbara Ford, is married to Lisa’s

stepfather, Steve “Brance” Ford. Barbara and Steve had one biological child

together, Kristopher Ford (“Kris”), who is Lisa’s stepbrother. At the

beginning of Lisa and Andreas’s marriage, the two families got along well.

However, relations deteriorated after Kris, an admitted drug abuser, stole

Christmas gifts from Lisa and Andreas’s children. The families were

further estranged after Andreas accused Lisa’s mother, Barbara, of stealing

clothes while she babysat the children.

{¶ 3} These two incidents led to tense relations between the two

families, which culminated in the events of November 17, 2009. Both the

Fords and the Sekics have widely disparate versions of the events of that

night.

{¶ 4} According to Andreas Sekic, on that date, he stopped by Drug

Mart on his way home from work. As he walked into the store, he observed

Kris and Kenneth Ford, Steve’s brother, sitting in a car in the parking lot.

Andreas later saw Steve inside Drug Mart. Andreas attempted to avoid a 4

confrontation by lingering in the store, but as he exited, Steve had pulled his

vehicle directly behind his, blocking Andreas from leaving the store.

Andreas stated that he got into the vehicle and, after Steve pulled away, he

left Drug Mart.

{¶ 5} Realizing that he forgot to pick up cigarettes, Andreas stopped at

a convenient store, which happened to be located within a two to three

minute drive from the Fords’ residence. However, Andreas did not exit his

vehicle because Steve arrived at that same convenient store, by himself, a

short time later. Neither of the men said anything to each other and Steve

eventually left the parking lot.

{¶ 6} Andreas testified that he was nervous about seeing the Fords

and about their behavior that night, so he called his father Asim. Andreas

asked Asim to come and meet him at the convenient store parking lot. Asim

obliged and brought his daughter, Vanessa, Andreas’s sister, with him.

Andreas and Asim spoke about what had occurred that night and Andreas

suggested that they go over to the Fords’ residence to try and work out their

differences. Asim had never met any member of the Ford family, other than

Lisa, and Andreas wanted him there as a type of mediator. Vanessa had

not met any of the Fords either and she thought they would be able to

discuss the upcoming Thanksgiving holiday. 5

{¶ 7} The Sekics arrived at the Fords’ apartment and Andreas and

Asim walked to a depressed patio with Vanessa following behind. Andreas

testified that this was the normal point of entry to the residence. Andreas

knocked on the sliding patio door and Kris answered. Almost immediately,

according to Andreas, Steve appeared in the doorway and began using

profane language, asking who Asim was and ordering both men off of the

property. Andreas stated that he and his father never got the chance to talk

about their problems with the Fords because Kris and Steve were

immediately aggressive. More specifically, Kris and Steve, and later,

Kenneth, began approaching Andreas and forcing him to back up on the

patio. Andreas testified that Kris attempted to strike him with his elbow

and Andreas leaned back to avoid getting hit. As he leaned back, Andreas

grabbed a nearby planter and threw it. Andreas admitted that the planter

hit Kris in the head but that Kris stayed on his feet and the two began

exchanging punches. Andreas stated that he and Kris eventually separated

and that he, Asim, and Vanessa left the Fords’ property. Andreas stated

that his father never hit anyone while they were at the residence and that he

never meant to hurt anyone.

{¶ 8} Vanessa’s testimony was consistent with that of Andreas’s and

she further testified that Kris bumped Andreas with his chest. Moreover, 6

medical records support Andreas’s testimony that Kris never lost

consciousness after being struck with the flower pot.

{¶ 9} In contravention to the facts enunciated above, Kris, Steve,

Kenneth, and Barbara Ford testified as follows:

{¶ 10} Kris testified that he, Steve, and Kenneth were leaving the Drug

Mart parking lot when they observed Lisa’s vehicle, which unbeknownst to

the three males, was being driven by Andreas that day. Steve wanted to

wait and see if Lisa had any of the children with her so he pulled near the

vehicle. However, Andreas appeared and when he observed the Fords,

Andreas began jumping and gesticulating wildly and screaming at the Fords

inside their vehicle. Steve stated that he waved at Andreas and then pulled

out of the parking lot.

{¶ 11} Both Kris and Steve testified that Andreas followed their vehicle

as they drove home. Steve reported that he dropped off Kris and Kenneth

at the apartment and then drove to a nearby convenient store, where he

again saw Andreas. Kris and Steve believed that Andreas was following

them and that was why he was at the convenient store. Steve testified they

did not go inside the store and simply returned home.

{¶ 12} A short time later, Kris, Kenneth, and Steve heard loud banging

on the sliding glass door. Kris testified that as he opened the door, Andreas 7

said that he wanted to “settle this right now.” Kris then claimed that Asim

grabbed Andreas and said “hand me the gun.” Kris turned to see where the

rest of his family was and when he turned back, Andreas threw a flower pot

at his head. Kris was knocked unconscious and when he came to, Andreas

and Asim were kicking him while he was on the ground. Kris further

claimed that Andreas also hit him with a chair from the patio. Kris stated

that Andreas and Asim continued to beat him until their sister Vanessa said

that she had the gun and that the police had been called.

{¶ 13} Barbara testified to similar facts as Kris, although she claimed

that after the attack, her hair hurt, but that she could not remember being

hit or grabbed. Barbara also stated that she called the Olmsted Falls Police

Department.

{¶ 14} Steve testified that after Andreas hit Kris with the flower pot,

both Andreas and Asim came into the apartment, grabbed Kris, and pulled

him outside. Steve testified that Andreas and Asim kicked and beat Kris

while he lay on the ground and that he observed Asim with a chrome plated

gun right before Asim hit him in the face with the gun. Steve further

testified that Asim had grabbed Barbara by the hair and threw her inside of

the home.

{¶ 15} Kenneth testified in a similar manner as Steve, Barbara, and 8

Kris. However, Kenneth stated that when Asim entered the apartment, he

growled at everyone like a bear. Additionally, Kenneth stated that someone

from outside the apartment threw a flower pot filled with rocks, which struck

him in the face.

{¶ 16} Olmsted police sergeant, Kimberly Flood, and

firefighter/paramedic,Chad Gluss, arrived at the scene. Chad Gluss stated

that Kris had lost a lot of blood and that his ear had been ripped away from

his head. Based on the statements from the Ford family, Sergeant Kimberly

Flood arrested both Andreas and Asim later that night.

{¶ 17} On November 19, 2009, a Cuyahoga County Grand Jury indicted

both Andreas and Asim with two counts of felonious assault, one count of

aggravated burglary, and two counts of assault. Both Andreas and Asim

elected to proceed to trial and their cases were tried jointly. The State

presented the following witnesses: Chad Gluss, Kris Ford, Barbara Ford,

Steve Ford, Kenneth Ford, and Sgt. Kimberly Flood. In response, Asim

presented the following witnesses: Vanessa Sekic, Lisa Sekic, and Andreas

Sekic. At the close of the evidence, the jury found Asim guilty of count one,

felonious assault, and not guilty of all remaining counts. On July 30, 2010,

the court sentenced Asim to two years in prison and ordered him to pay 9

$14,000 in restitution.1

{¶ 18} Asim appeals, raising the five assignments of error contained in

the appendix to this opinion.

{¶ 19} In his first assignment of error, Asim argues that the State failed

to present sufficient evidence that he aided and abetted Andreas in the

commission of felonious assault. In his fourth assignment of error, Asim

argues that his conviction is against the manifest weight of the evidence.

Although these arguments involve different standards of review, we will

consider them together.

{¶ 20} The standard of review with regard to the sufficiency of the

evidence is set forth in State v. Bridgeman (1978),

,

.

{¶ 21} Bridgeman must be interpreted in light of the sufficiency test

outlined in State v. Jenks (1991),

,

,

paragraph two of the syllabus, in which the Ohio Supreme Court held:

“An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a 1 On February 10, 2011, the trial court granted Asim’s request for judicial release and placed him on three years of community controlled sanctions. Further, on March 14, 2011, the court held a restitution hearing and, after Kris Ford failed to appear and thus failed to present any evidence of loss, vacated the order of restitution. 10

reasonable doubt. The relevant inquiry is whether, 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.” (Citation omitted.)

{¶ 22} In evaluating a challenge based on manifest weight of the

evidence, a court sits as the thirteenth juror, and intrudes its judgment into

proceedings that it finds to be fatally flawed through misrepresentation or

misapplication of the evidence by a jury that has “lost its way.” State v.

Thompkins,

,

,

.

{¶ 23} This court is mindful that weight of the evidence and the

credibility of witnesses are primarily for the trier of fact and a reviewing

court must not reverse a verdict where the trier of fact could reasonably

conclude from substantial evidence that the State has proven the offense

beyond a reasonable doubt. State v. DeHass (1967),

,

, at paragraphs one and two of the syllabus. The goal of the

reviewing court is to determine whether the new trial is mandated. A

reviewing court should only grant a new trial in the “exceptional case in

which the evidence weighs heavily against a conviction.” State v. Lindsey,

,

,

. (Internal citation

omitted.)

{¶ 24} Based on the trial court’s instructions, the jury convicted Asim of

complicity to commit felonious assault in violation of R.C. 2923.03(A)(2) and 11

2903.11(A)(1), related to the victim, Kris Ford.

{¶ 25} Felonious assault is defined by R.C. 2903.11(A)(1) as follows:

“(A) No person shall knowingly do either of the following:

“(1) Cause serious physical harm to another or to another’s unborn.”

{¶ 26} Ohio’s complicity statute, R.C. 2923.03(A), provides, in pertinent

part:

“No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

“(2) Aid or abet another in committing the offense; * * *.”

{¶ 27} As stated by this court in State v. Langford, Cuyahoga App. No.

83301,

:

“In order to constitute aiding and abetting, the accused must have taken some role in causing the commission of the offense. State v. Sims (1983),

,

. ‘The mere presence of an accused at the scene of the crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor.’ State v. Widner (1982),

,

. Additionally, even if the accused has knowledge of the commission of the crime, his presence at the scene is not enough to convict him of aiding and abetting. State v. Cummings (Apr. 21, 1992), Franklin App. No. 90AP-1144, citing United States v. Head (C.A.6, 1991),

; State v. Woods (1988),

,

. A person aids or abets another when he supports, assists, encourages, cooperates with, advises, or incites the principal in the commission of the crime and shares the criminal intent of the principal. State v. Johnson,

,

,

. ‘Such intent may be inferred from the circumstances surrounding the crime.’

,

.

“Aiding and abetting may be shown by both direct and circumstantial 12

evidence, and participation may be inferred from presence, companionship, and conduct before and after the offense is committed. State v. Cartellone (1981),

,

, citing State v. Pruett (1971),

,

. Aiding and abetting may also be established by overt acts of assistance such as driving a getaway car or serving as a lookout.

,

. See State v. Trocodaro (1973),

,

.”

{¶ 28} As stated above, the description of the events that occurred on

November 17, 2009 were disparate, depending on whether a State’s witness

or a defense witness provided the description. Nonetheless, viewing the

evidence in the light most favorable to the prosecution, as we are required to

do, we have no choice but to conclude that the state presented sufficient

evidence that Asim aided and abetted in the commission of felonious assault

against Kris.

{¶ 29} Specifically, Kris testified that Asim and Andreas appeared at

his door that evening and that Andreas hit him with a flower pot, rendering

him unconscious. Kris stated that after he regained consciousness, he

observed Asim and Andreas kicking him while he was lying on the ground.

Barbara and Steve also testified that Asim kicked Kris while he was lying on

the ground. More importantly, Kris, Barbara, Steve, and Kenneth all

testified that Asim and Andreas acted aggressively and in concert in their

attack on Kris.

{¶ 30} While this evidence is not the only version before the finder of 13

fact, this is the evidence that most supports the state’s case. Accordingly,

viewing the evidence in the light most favorable to the prosecution, we

conclude that the state presented sufficient evidence that Asim supported,

assisted, and cooperated with Andreas in the felonious assault of Kris.

{¶ 31} Moreover, we further find that the trier of fact did not lose its

way in convicting Asim of felonious assault. Though Asim argues that his

version of events should have been relied upon by the jury, the trier of fact is

in the best position to weigh the evidence and the credibility of witnesses.

As the reviewing court, we find that the trier of fact could reasonably

conclude from the substantial evidence presented by the state, that the state

has proven the offenses beyond a reasonable doubt. Accordingly, we cannot

state that the trier of fact lost its way and created such a manifest

miscarriage of justice that the convictions must be reversed and a new trial

ordered.

{¶ 32} Asim’s first and fourth assignments of error are overruled.

{¶ 33} In his second and third assignments of error, Asim argues the

trial court erred in its instruction to the jury. Specifically, in his second

assignment of error, Asim argues the trial court erred in providing the jury

with an instruction of aiding and abetting felonious assault. In his third

assignment of error, he argues the trial court erred in failing to instruct the 14

jury on self-defense and defense of a family member. Because these

assignments of error involve the same legal standard, we shall address them

contemporaneously.

{¶ 34} A trial court has the discretion to determine whether the

evidence adduced at trial was sufficient to require a corresponding jury

instruction. State v. Fulmer,

,

,

. Such a decision will not be disturbed absent a finding that the

trial court abused its discretion. The term “abuse of discretion” connotes

more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),

,

. Thus, an appellate court may not

substitute its judgment for that of the trial court. Id. at 219. It is with this

standard of review in mind that we address Asim’s two assignments of error.

Aiding and Abetting

{¶ 35} In this assigned error, Asim argues that because there was no

evidence that he aided and abetted Andreas in committing the felonious

assault against Kris, the trial court erred in instructing the jury as such.

However, in our analysis of Asim’s first assignment of error we found that

the State presented sufficient evidence to allow the trier of fact to deliberate 15

the charge. Accordingly, we further find that there was sufficient evidence

from which the trial court could correctly charge the jury with aiding and

abetting.

Self-Defense and Defense of a Family Member

{¶ 36} In this portion of his appeal, Asim argues the court should have

instructed the jury on self-defense and defense of a family member. We

disagree.

{¶ 37} A trial court does not need to instruct the jury on self-defense

unless the defendant has successfully raised the affirmative defense by

introducing “sufficient evidence, which, if believed, would raise a question in

the minds of reasonable [triers of fact] concerning the existence of such

issue.” State v. Melchior (1978),

,

,

paragraph one of the syllabus. Evidence is sufficient where there is

reasonable doubt of guilt based upon a claim of self-defense.

. “If

the evidence generates only a mere speculation or possible doubt, such

evidence is insufficient to raise the affirmative defense, and submission of

the issue to the jury will be unwarranted.”

Accordingly, if the evidence

submitted at trial is believed by the trier of fact, the question is whether that

evidence will create reasonable doubt of the defendant’s guilt. A trial court

does not err in refusing to include a self-defense jury instruction when the 16

evidence does not support the claim.

.

{¶ 38} To establish self-defense at trial, the accused must show by a

preponderance of the evidence that (1) he was not at fault in creating the

situation giving rise to the disturbance; (2) he had a bona fide belief that he

was in imminent danger of death or great bodily harm; (3) that his only

means of escape from such danger was in the use of such force; and (4) he

must not have violated any duty to retreat or avoid the danger.

.

{¶ 39} In the present case, we agree with the trial court that Asim

failed to raise a valid claim of self-defense, although, based on a different

standard. The trial court considered the evidence in the light most

favorable to the defendant and found that Asim failed to meet, by a

preponderance of the evidence, the requirements for a self-defense

instruction. However, the standard is not preponderance of the evidence, as

used by the trial court, but whether there is sufficient evidence if the

evidence is believed. State v. Belanger,

,

,

; State v. Robbins (1979),

,

.

{¶ 40} In this case, we cannot ignore the fact that Asim was at fault in

creating the situation that gave rise to the altercation with Kris. It is 17

uncontroverted that Andreas had an incident with Steve, Kenneth, and Kris

Ford at Drug Mart parking lot and later, with Steve at a local convenient

store parking lot. Andreas testified that because of these two encounters, he

was angry and scared and called his father for help. Andreas suggested

that he and Asim go over to the Ford’s residence to sort out their issues.

Asim agreed. It is equally uncontroverted that at this point, the Ford family

members had removed themselves from the scenes where these two incidents

had occurred. It was Asim and his son who chose to further stoke the fires

and arrive at the Ford residence that evening.

{¶ 41} Even if we were to believe that Asim’s motives for approaching

the Ford family were pure and that Kris was the main aggressor toward

Andreas out on the patio, we cannot ignore that Asim caused the situation

resulting in Kris’s injuries. The evidence revealed that Kris Ford and his

family removed themselves from the hostile environment while Asim and his

son chose to further confront the family at their home. Thus, Asim’s own

actions caused the altercation.

{¶ 42} Given these facts, a self-defense claim is inappropriate. See

State v. Nichols, Scioto App. No. 01CA2775,

. “Ohio courts

have long recognized that a person cannot provoke assault or voluntarily

enter an encounter and then claim a right of self-defense.

State v. Vines 18

(May 29, 1975), Cuyahoga App. No. 33871; State v. Sanchez (Apr. 24, 1986),

Cuyahoga App. No. 50566. We therefore agree with the trial court’s

conclusion that the evidence adduced below did not support a self-defense

jury instruction.

{¶ 43} Asim’s second and third assignments of error are overruled.

{¶ 44} In his fifth and final assignment of error, Asim argues the trial

court erred in ordering him to pay $14,000 in restitution. This assigned

error has merit.

{¶ 45} In this portion of Asim’s appeal, our standard of review of the

trial court’s decision is abuse of discretion. State v. Marbury (1995),

,

; State v. Berman, Cuyahoga App. No.

79542,

. In determining restitution, a trial court abuses its

discretion if evidence of the actual loss does not support the amount of

restitution awarded. Marbury, Berman. Pursuant to R.C. 2929.18(A)(1), a

court may order restitution to compensate victims of crimes under certain

conditions. If the court chooses to impose restitution at sentencing, it must

do so in open court at that time, and also hold a hearing on restitution if the

offender disputes the amount.

{¶ 46} In the present case, the state represented to the court that Kris

owed medical bills of $7,740 to the hospital as well as an approximated 19

future cost of $6,800 to fix a scar on his forehead related to this incident.

Asim disputed this amount of restitution at sentencing. However, rather

than hold a hearing as required by R.C. 2929.18(A)(1), the trial court

imposed the finite sum of $14,0002 in restitution and stated that it would

allow Asim and Andreas to file opposing briefs.

{¶ 47} Asim filed the instant delayed appeal on September 9, 2010.

The court’s July 30, 2010 final sentencing order contained all the required

elements to constitute a final appealable order. More importantly, the order

contained a finite sum of restitution. See State v. Brewer, Cuyahoga App.

No. 94144,

. Further, there is no statutory authority

allowing a trial court to exercise continuing jurisdiction to modify the

amount of restitution after sentencing.

{¶ 48} Accordingly, we find that the trial court erred by imposing

restitution without first holding a hearing as required by R.C. 2929.18(A)(1)

to ascertain the amount of loss suffered by the victim. We therefore reverse

the order of restitution in the sentencing entry and remand for further

2 While the transcript of the sentencing hearing reflects a restitution order of $14,500, Asim’s journal entry at sentencing lists the order of restitution at $14,000. It is a fundamental principle of appellate review that the court speaks only through its journal. Kaine v. Marion Prison Warden,

,

,

; State v. Ahmed, Cuyahoga App. No. 88315,

. Accordingly, we shall refer to the amount as reflected in the court’s docket. 20

proceedings consistent with this opinion.3

{¶ 49} Asim’s fifth assignment of error is sustained.

Judgment affirmed in part, reversed in part, and remanded to the

lower court for proceedings consistent with this opinion.

It is ordered that appellee and appellant share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR

3 As noted in footnote one, the trial court did hold a hearing on restitution after the initiation of this appeal and did vacate the award of restitution ordered. Nonetheless, as held above, this court was without jurisdiction to do so. Brewer. 21

Appendix

Assignments of Error:

“I. The appellant’s conviction for felonious assault was not supported by sufficient evidence.”

“II. The trial court erred by instructing on a charge of aiding and abetting felonious assault.”

“III. The trial court erred in failing to instruct on self defense and defense of a family member (other).”

“IV. Defendant’s conviction for felonious assault was against the manifest weight of the evidence.”

“V. It was error to order restitution.”