[Cite as State v. Allah,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY

STATE OF OHIO, : Case No. 14CA12

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY BARSEEM K. ALLAH, :

Defendant-Appellant. : RELEASED: 12/3/2015

APPEARANCES:

Joseph D. Reed, Columbus, Ohio, for appellant.

Jeff Adkins, Gallia County Prosecuting Attorney, Gallipolis, Ohio, for appellee. Harsha, J. {¶1} A jury convicted Barseem K. Allah of possession of heroin, cocaine, and

crack cocaine as well as having a weapon under disability. After the court sentenced

him to prison, Allah asserts that the court erred in denying his motion for a directed

verdict on the charge of having a weapon under disability. Because the state did not

introduce an operability report or present the testimony of a witness who had test fired

the weapons, Allah claims there was no evidence that the firearms were operable.

However, the state introduced the firearms into evidence and an officer testified that one

of the firearms was loaded and on the floorboard of the driver’s side of the vehicle, and

the other firearm had ammunition with it. Thus, from the totality of the circumstances the

evidence is sufficient to prove that the firearms were operable.

{¶2} Next, Allah contends that he received ineffective assistance of counsel

because his trial attorney did not conduct effective voir dire of the jury and failed to

object to impermissible and irrelevant testimony. Allah’s contentions are meritless Gallia App. No. 14CA12 2

because most of his complaints deal with matters of trial strategy, which we do not

second guess. And his concern over counsel’s failure to object to admission of his prior

conviction is also meritless. That conviction was an element in one of the current

offenses, so it was clearly admissible. He cannot demonstrate that his trial counsel’s

performance during voir dire, his failure to object to certain testimony, or his cross-

examination of a state’s witness was deficient.

{¶3} Therefore, we affirm Allah’s conviction and sentence.

I. FACTS

{¶4} The Ohio State Highway Patrol stopped Allah for speeding. During the

stop a trooper smelled the odor of marijuana and brought in a K-9 unit, which gave a

positive indication on the vehicle. Troopers searched the vehicle and found a loaded 9

mm pistol on the driver’s side floorboard and a .38 revolver with ammunition and

marijuana in a suitcase in the back of the vehicle. Troopers also found a bag containing

cocaine, crack cocaine and heroin in the center console. The Gallia County Grand Jury

indicted Allah with one count of possession of cocaine, one count of possession of

heroin, and one count of possession of crack cocaine, all in violation of R.C.

2925.11(A). Because Allah had been previously convicted of a felony offense of

violence in 2008, the grand jury indicted him with one count of having a weapon under

disability in violation of R.C. 2923.13(A)(2). Allah retained counsel and entered a plea

of not guilty.

{¶5} At the trial the state presented the testimony of the two troopers involved

in the traffic stop and the testimony of the crime laboratory director for the Ohio State

Highway Patrol Crime Laboratory. The state introduced several exhibits including the Gallia App. No. 14CA12 3

two firearms and ammunition, the judgment entry from Allah’s previous domestic

violation conviction, and the crime lab report of analysis of the drugs found during the

traffic stop. The jury returned verdicts finding Allah guilty of all counts. The trial court

merged Allah’s first three convictions into his conviction for possession of cocaine and

sentenced him to a prison term of 10 years, plus an additional consecutive sentence of

30 months for having a weapon under disability. This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶6} Allah assigns the following errors for our review:

1. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT WHEN IT OVERRULED HIS MOTION FOR DIRECTED VERDICT OF ACQUITTAL AS TO COUNT FOUR OF THE INDICTMENT WHEN THE STATE HAD FAILED TO INTRODUCE ANY EVIDENCE OF THE OPERABILITY OF THE FIREARMS INTRODUCED AS PLAINTIFF’S EXHIBITS ONE AND TWO.

2. DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL AS HIS COUNSEL FAILED TO PERFORM EFFECTIVE VOIR DIRE OF THE JURY, FAILED TO OBJECT TO SEVERAL INTRODUCTIONS OF IMPERMISSIBLE AND IRRELAVENT TESTIMONY.

III. LAW AND ANALYSIS

A. Operability of Firearm

{¶7} First Allah asserts that the trial court erred in overruling his motion for a

directed verdict of acquittal on the count of having a weapon under disability because

the state did not establish that either of the two weapons were operable. The state did

not submit testimony of a witness who had test fired the weapons, nor did the state

submit an operability report into evidence. There was no evidence that Allah had

wielded the weapons or made threatening statements about using them. The state’s

evidence concerning the weapons’ operability was limited to the actual weapons, the Gallia App. No. 14CA12 4

ammunition found loaded in or with the weapons, and the troopers’ testimony

concerning the type or model of the weapon and the weapons’ location in the vehicle.

The trooper stated that he had found the loaded Sign Sauer 9 mm on the floorboard

directly in front of the driver’s seat and the Smith & Wesson .38 revolver with

ammunition in a suitcase in the back of the vehicle.

{¶8} Crim.R. 29 motions for acquittal test the sufficiency of the evidence

presented at trial. State v. Williams,

,

(1996);

State v. Wireman, 4th Dist. Pike App. No. 01CA662,

, ¶ 8. Crim.R. 29

requires a court to enter a judgment of acquittal when the state's evidence is insufficient

to sustain a conviction. But the court may not grant a defendant's Crim.R. 29 motion “if

the evidence is such that reasonable minds can reach different conclusions as to

whether each material element of a crime has been proved beyond a reasonable

doubt.” State v. Bridgeman,

,

(1978), syllabus. In

making this determination the court must construe the evidence in the light most

favorable to the prosecution. Williams,

. We undertake a de novo

review of the trial court's decision on a Crim.R. 29 motion and will not reverse the trial

court's judgment unless reasonable minds could only reach the conclusion that the

evidence failed to prove all the elements of the crime beyond a reasonable doubt. State

v. Jenks,

,

(1991), paragraph two of the syllabus. If

any rational trier of fact could have found the essential elements of an offense proven

beyond a reasonable doubt, we will not disturb the conviction. Williams,

,

; Jenks,

,

. Gallia App. No. 14CA12 5

{¶9} Under R.C. 2923.13(A)(2), a person who has been convicted of a felony of

violence is prohibited from possessing a firearm. R.C. 2923.11(B) defines “firearm” as

“any deadly weapon capable of expelling or propelling one or more projectiles by the

action of an explosive or combustible propellant”:

(B)(1) “Firearm” means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. “Firearm” includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.

(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm.

{¶10} “[T]he state must prove beyond a reasonable doubt that the firearm was

operable or could readily have been rendered operable at the time of the offense.”

State v. Gaines,

,

(1989). Subsection (B)(2) of

the statute expressly allows the trier of fact to rely upon circumstantial evidence to

determine if the firearm was operable. State v. Thompkins,

, 1997-

Ohio-52,

(1997), paragraph one of the syllabus. Empirical analysis of

the gun is not required to prove operability. State v. Murphy,

,

(1990).

{¶11} Recently in State v. Dickerson, 11th Dist. Ashtabula App. No. 2013-A-

0046,

, a case with similar facts, the court held that “evidence that a gun

was loaded combined with the submission of that gun into evidence is sufficient to prove

operability.” Id. at ¶36, citing State v. Messer,

,

Gallia App. No. 14CA12 6

(9th Dist. 1995), appeal not allowed

,

(1996). In

Dickerson a vehicle search after a traffic stop revealed a loaded handgun under the

driver’s seat. The state introduced evidence that the firearm was loaded when the

officer found it and the firearm was submitted into evidence. Dickerson argued that

there was insufficient evidence that the firearm was operable to sustain his conviction of

a firearm specification. The appellate court disagreed and held that because the firearm

was loaded when the officer found it and the firearm was introduced into evidence, “a

reasonable jury could conclude the firearm was operable.”

{¶12} Similarly in

the court held that where the state produced

testimony of a veteran police officer who stated that the gun “appeared operable” and

was found hidden and loaded under a mattress, and the gun was admitted into

evidence, there was sufficient evidence to prove operability.

. State v.

Miller, 12th Dist. Preble App. No. CA2002-02-004,

, ¶13-14 (evidence of

test-firing not required because, “the firearms themselves were admitted into evidence,

along with testimony that the pistol was loaded and ammunition for both firearms was

found nearby. Even without testimony regarding firing of the weapons, these facts alone

could be sufficient to establish operability.”); see also Sanders v. McMackin,

(N.D. Ohio 1992) (vacating sentence for firearm specification because

state failed to meet burden to prove operability, “If the purchaser had placed bullets in

the gun before giving it to Sander’s father, or had the witness testified that he saw

bullets in the gun, a rational jury could possibly make the inferential leap to find

operability.”). Gallia App. No. 14CA12 7

{¶13} Here the state offered the firearms into evidence. The troopers testified

that one of the firearms was a loaded 9 mm handgun found on the driver’s side

floorboard and the other firearm was a .38 revolver in a suitcase with ammunition. The

jury had the actual weapons and could logically infer from the loading of one gun and

the provision of ammunition for the other that both were capable of firing that

ammunition. Neither testimony of test-firing nor operability reports are required to prove

operability. Under the case law developed since Gaines, there was sufficient evidence

of operability to sustain Allah’s conviction for having a weapon under disability.

B. Ineffective Assistance of Counsel

{¶14} Next Allah asserts that he received ineffective assistance of counsel

because his trial attorney failed to perform effective voir dire, contending that “[o]ne

would think that given the unusual nature of the Defendant’s name, he would have

pursued whether that prejudiced the jurors.” Allah also claims that his trial counsel

failed to object to impermissible and irrelevant testimony. To prevail on a claim of

ineffective assistance of counsel, a criminal defendant must establish (1) deficient

performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for

counsel's errors, the result of the proceeding would have been different. State v. Short,

, 2011–Ohio–3641,

; Strickland v.

Washington,

,

,

; State v. Knauff, 4th

Dist. Adams No. 13CA976, 2014–Ohio–308, ¶ 23. The defendant has the burden of

proof because in Ohio, a properly licensed attorney is presumed competent. State v.

Gondor,

, 2006–Ohio–6679,

. Failure to satisfy Gallia App. No. 14CA12 8

either part of the test is fatal to the claim.

; State v. Bradley,

,

(1989).

{¶15} In reviewing the claim of ineffective assistance of counsel we must indulge

in “a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action ‘might be considered sound trial

strategy.’”

.

{¶16} Allah’s claim lacks merit for several reasons. First, “[c]ounsel's actions

during voir dire are presumed to be matters of trial strategy.” State v. Perez,

,

,

. Although Allah does not

specify what aspect of his name would arouse prejudicial sentiment, it is apparent he

implicitly refers to its Islamic character. Regardless, the actual decision to voir dire on

racial, ethnic or religious prejudice is a choice best left to a defendant's counsel. State v.

Smith,

,

(2000). “In these situations, we normally

defer to counsel's judgment.”

(finding no ineffective

assistance of counsel for not examining on racial or religious bias).

{¶17} In this case it was neither deficient nor prejudicial for counsel to forgo

asking racial, ethnic or religious bias questions. Defense counsel had to weigh the risks

inherent in interrogating prospective jurors on the sensitive question of racial and

religious prejudice. See Smith,

. There was little reason for defense

counsel to run these risks, because racial, ethnic and religious issues were not at issue

in this case. Allah was stopped for exceeding the speed limit and was found to have

drugs and firearms in the vehicle he was driving. There were no other persons, Gallia App. No. 14CA12 9

passengers, or witnesses involved in the incident and no references to any race or

religion were made. Because racial and religious issues played no part in the trial of this

case, defense counsel could quite reasonably determine that the potential costs of

conducting voir dire on racial or religious prejudice outweighed any possible benefit

from such a course. See State v. Perez,

,

,

.

{¶18} Allah also contends that his counsel conducted “a voir dire that was

practically non-existent.” We find no factual basis for this contention. The judge, the

state, and Allah’s counsel each asked a number of questions of the jury and defense

counsel exercised several preemptory challenges. The judge and the state each asked

their questions prior to defense counsel’s questioning. Even if his counsel's questioning

was brief it was not deficient, because counsel “need not repeat questions about topics

already covered by group voir dire, opposing counsel, or the judge.” State v. Davis,

,

,

, ¶ 47.

{¶19} Accordingly, we find no deficient performance in defense counsel’s voir

dire and we reject this ineffective-assistance claim.

{¶20} Next Allah claims that his defense counsel failed to object to impermissible

and irrelevant testimony. He argues that his counsel should have objected to testimony

that he had been sent to prison for his prior felony and was on post release control at

the time of his arrest. However, evidence of Allah’s prior felony was an element of the

state’s case and necessary to prove he had a weapon under disability. The state

submitted the previous judgment of conviction, which contained both Allah’s conviction

and his sentence. Therefore, both the fact that he had been in prison and was on post Gallia App. No. 14CA12 10

release control at the time of the traffic stop was already placed into evidence through

the admission of the judgment of conviction. The state’s witness testified that the person

identified on the judgment of conviction, Knowledge White, was the same person as the

defendant, Barseem K. Allah, and that White had changed his name to Allah since the

prior felony conviction. The testimony concerning the prior conviction was limited and

did not contain any more facts or details than necessary to sufficiently identify Allah as

the same individual as Knowledge White and confirm that he had been convicted and

sentenced and was on post release control at the time of the traffic stop. All of those

facts were contained in the judgment of conviction. No testimony concerning the details

of the prior conviction was provided to the jury.

{¶21} The fact that Allah had a prior conviction was an element of the offense

and necessary to prove the state’s case. “The state must provide sufficient proof

necessary to convince a trier of fact beyond a reasonable doubt of the existence of

every element of an offense” and “[w]hen a previous conviction is an element of an

offense, the state must prove the prior offense beyond a reasonable doubt.” State v.

Smith,

,

(1990). “Neither the state nor the trial

court is required to accept a defendant's stipulation as to the existence of the

conviction.”

Therefore the testimony concerning his prior conviction and sentence

was neither impermissible nor irrelevant as Allah contends.

{¶22} Additionally, the trial court admonished the jury that they were given

evidence of the conviction because it was an element of the offense and they were not

to consider it to prove character of the defendant or that he acted in conformity or in Gallia App. No. 14CA12 11

accordance with that character. Thus, we find no deficiency in trial counsel’s

performance in this regard.

{¶23} Allah also contends that his counsel’s cross examination of Trooper

Johnson and his failure to object to Trooper Johnson’s testimony about how he

assesses suspicious activity prejudiced the jury against him. However, decisions

regarding cross-examination are within trial counsel's discretion and generally do not

form the basis for a claim of ineffective assistance of counsel. “The extent and scope of

cross-examination clearly fall within the ambit of trial strategy, and debatable trial tactics

do not establish ineffective assistance of counsel.” State v. Madden, 4th Dist. Adams

App. No. 09CA883,

, ¶ 25, citing State v. Leonard,

,

,

, at ¶ 146; State v. Campbell,

,

,

; State v. Otte,

, 1996-Ohio-

108,

. “ ‘[A]n appellate court reviewing an ineffective assistance of

counsel claim must not scrutinize trial counsel's strategic decision to engage, or not

engage, in a particular line of questioning on cross-examination.’” State v. Dorsey, 10th

Dist. No. 04AP–737, 2005–Ohio–2334, ¶ 22, quoting In re Brooks, 10th Dist. No.

04AP164, 2004–Ohio–3887, ¶ 40.

{¶24} After review we have no cause to second-guess defense counsel's cross-

examination strategy. The challenged cross-examination and recross testimony

attempted to cast doubt upon the credibility of the witness and to argue that what

Trooper Johnson characterized as suspicious behavior could also be characterized as

normal, everyday driving behavior. Again, we find no deficiency in trial counsel’s

performance in this regard. Gallia App. No. 14CA12 12

{¶25} Finally, Allah claims that his defense counsel did not raise the issue of his

right not to testify at trial or his lack of any burden of proof in a criminal trial. However,

Allah does not explain whether and how this failure prejudiced him. The trial court

addressed these issues in its instructions to the jury, informing the jury of the state’s

burden of proof, the defendant’s presumption of innocence, and the defendant’s right

not to testify. Allah has not demonstrated that his counsel’s assistance was deficient or

that it resulted in any prejudice.

{¶26} We overrule Allah’s second assignment of error.

IV. CONCLUSION

{¶27} The trial court did not err in denying Allah’s motion for a directed verdict on

the charge of having a weapon under disability because the state presented sufficient

evidence that the firearms were operable. Additionally, his ineffective assistance of

counsel claim fails because he did not establish both a deficient performance and

resulting prejudice. Having overruled Allah’s assignments of error, we affirm the

judgment of the trial court.

JUDGMENT AFFIRMED. Gallia App. No. 14CA12 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Gallia County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & McFarland, A.J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.