State v. Barrie

[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.