[Cite as State v. Abdi, 2011-Ohio-3550.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

State of Ohio, : 

 : 

 Plaintiff-Appellee, : Case No: 09CA35 

 : 

 v. : 

 : DECISION AND

Abdifatah Abdi, : JUDGMENT ENTRY.

 : 

 Defendant-Appellant. : File-stamped date: 7-11-11 

APPEARANCES:

Russell S. Bensing, Cleveland, Ohio, for Appellant. 

C. David Warren, Athens County Prosecutor, and Keller J. Blackburn, Athens County 

Assistant Prosecutor, Athens, Ohio, for Appellee. 

Kline, J.: 

{¶1} Abdifatah Abdi (hereinafter “Abdi”)1 appeals his convictions for two counts of 

aggravated robbery, each with a firearm specification, and one count of murder, which 

also carried a firearm specification. Abdi first contends that aggravated robbery and 

felony murder are allied offenses of similar import. Because aggravated robbery and 

felony murder are allied offenses of similar import, we agree. Therefore, we remand the 

case to the trial court to consider (1) whether Abdi committed felony murder and 

 

1

 Initially, we note that several individuals have faced criminal charges related to the events at issue in 

this case. Several witnesses testified in each of the cases. In some instances, a name of a particular 

witness may be spelled differently in other cases than the spelling in this case. We have elected to spell 

witnesses’ names consistent with the spelling in the official trial transcript of this case. 
Athens App. No. 09CA35 2 

aggravated robbery separately or (2) whether he committed the crimes with a separate 

animus. 

{¶2} Abdi next contends that the trial court erred when it denied Abdi’s motion for a 

change of venue. Because Abdi failed to show that any jurors were actually biased, we 

disagree. 

{¶3} Abdi next contends that the trial court erred when it failed to suppress 

statements Abdi gave to the police. Because Abdi waived his Miranda rights voluntarily, 

knowingly, and intelligently, we disagree. 

{¶4} Abdi next contends that the trial court erred by permitting the State to 

introduce “other acts” evidence in violation of Evid.R. 404(B) when the trial court 

allowed testimony that Abdi and his co-conspirators planned on committing a separate 

robbery. Because the evidence was admissible under Evid.R. 404(B) to show Abdi’s 

and his co-conspirators’ intent, we disagree. Additionally, any error by the trial court 

was harmless considering the substantial evidence of Abdi’s guilt. 

{¶5} Abdi next contends that there was insufficient evidence to convict Abdi of 

murder, or, alternatively, that Abdi’s conviction was against the manifest weight of the 

evidence. Because Abdi engaged in aggravated robbery where gunfire and injury or 

death to bystanders was foreseeable, and because the jury could convict Abdi for the 

murder regardless of who fired the fatal shot, we disagree. 

{¶6} Abdi next contends that the trial court erred in permitting the State to call coconspirators as witnesses. Abdi argues that he was prejudiced because the State knew 

that the witnesses would invoke their Fifth Amendment right against self-incrimination in 

front of the jury. Because the State is permitted to call a witness who will invoke his or 
Athens App. No. 09CA35 3 

her Fifth Amendment right against self-incrimination, so long as the State does not 

persist in repeated questioning, we disagree. 

{¶7} Abdi next contends that the trial court erred in denying Abdi’s motion to 

compel disclosure of grand jury testimony. Because Abdi failed to show a particularized 

need for the grand jury testimony that outweighed the need for secrecy of the grand jury 

proceedings, we disagree. 

{¶8} Abdi next contends that the trial court erred by failing to impose a sentence 

consistent with the principles and purposes of sentencing and by failing to properly 

consider the seriousness and recidivism factors under R.C. 2929.12. Because the 

record reflects that the trial court considered the relevant factors under R.C. 2929.11, 

2929.12, and 2929.13, we disagree. 

{¶9} Finally, Abdi contends that the trial court erred by sentencing Abdi to 

consecutive terms of imprisonment without making findings of fact. Because the trial 

court was not required to make findings of fact before sentencing Abdi to consecutive 

terms of imprisonment, we disagree. 

{¶10} Accordingly, we reverse in part and affirm in part the judgment of the trial 

court. 

I. 

{¶11} The events at issue in this case concern a shooting late in the evening on 

February 14, 2009, which resulted in the death of Donnie Putnam (hereinafter 

“Putnam”). The evidence introduced at trial was comprehensive and begins with events 

that occurred well before the actual shooting. In December, 2008, Michael White 

(hereinafter “White”) broke into Charles Calendine’s (hereinafter “Calendine”) residence 
Athens App. No. 09CA35 4 

in Athens, Ohio. After doing so, White proceeded to steal a large number of firearms 

from the residence. 

{¶12} Among the firearms stolen was a .22 Marlin semi-automatic rifle with an 

optical scope. According to White, he estimated he had stolen 30 or 40 guns. White 

then sold those guns to Phillip Boler (hereinafter “Boler”). At trial, Calendine confirmed 

the theft and identified the .22 Marlin semi-automatic rifle recovered in this case as 

being the one stolen from him. 

{¶13} The shooting that resulted in Putnam’s death occurred at a trailer owned by 

Billy J. Osborne, Jr. (hereinafter “Osborne”). According to testimony at trial, Osborne 

made money dealing marijuana and crack cocaine, but Osborne denied this on the 

stand. The State’s theory was that Abdi and his co-conspirators armed themselves and 

drove to Osborne’s trailer intent on committing a robbery. 

{¶14} In the early evening hours of February 14, 2009, Abdi, Mahat Osman 

(hereinafter “Osman”), and Hamda Jama, also known as Honey, walked into the trailer 

of Chelsea Deal (hereinafter “Deal”) without knocking. At the time, Deal was living with 

her boyfriend, Luke (the record does not indicate Luke’s last name). Osman and Honey 

were asking Luke about the whereabouts of a man named William Evans (hereinafter 

“Evans”), who was an acquaintance of Luke and Deal. Deal overheard Osman state 

that he wanted to “rob” Evans, and Abdi was standing nearby when Osman stated his 

intentions. Tr. Day 4 at 29. Deal and Luke rebuffed repeated requests by Honey, 

Osman, and Abdi to allow them to use Deal and Luke’s vehicle. Deal and Luke 

eventually agreed to give Honey, Osman, and Abdi a ride to Nelsonville. Honey, 

however, did not get in the car with the others, so Deal and Luke drove off with Osman 
Athens App. No. 09CA35 5 

and Abdi. Instead of taking Osman and Abdi to Nelsonville, Deal testified that Osman 

and Abdi demanded to be taken to a trailer occupied by Boler and a man known as 

Halfman. (The record indicates that both Boler and Halfman occupied the trailer. We 

will refer to the trailer as “Halfman’s trailer” for brevity.) 

{¶15} Earlier on February 14th, Honey purchased a red Mitsubishi Eclipse from 

Ricky Phillips (hereinafter “Phillips”), a neighbor of Deal’s. The car had a manual 

transmission, and Honey had no experience driving a manual transmission car. Jeremy 

Graber (hereinafter “Graber”), a neighbor of Phillips (and Deal), agreed to give Honey a 

driving lesson. (Honey apparently did not get in the car with Deal, Luke, Osman, and 

Abdi because she was waiting on Graber.) Graber testified that, after driving around the 

trailer park briefly, Honey drove onto the highway and drove to Halfman’s trailer. 

{¶16} Graber testified that there were quite a few people present at the trailer, and 

he expressly identified Boler, Honey, Osman, and Abdi. Graber also observed both a 

Marlin .22 rifle and a .40 caliber Smith and Wesson pistol at the trailer. Graber left and 

eventually made his way home. 

{¶17} (Graber had also encountered Abdi the night before, i.e., February 13, 2009, 

when Graber went to Halfman’s trailer. Shortly after entering the trailer, Graber testified 

that Abdi slammed Graber against a wall, and Abdi and Boler demanded to know the 

whereabouts of a man named “Johnny Perry.” Tr. Day 3 at 142. According to Graber, 

Halfman yelled something to Abdi and Boler, so they backed off.) 

{¶18} Later in the evening of February 14th, Eric Fussner (hereinafter “Fussner”) 

drove to Halfman’s trailer to purchase crack cocaine. Fussner completed this 

transaction and was getting ready to leave when Boler and the other occupants of the 
Athens App. No. 09CA35 6 

trailer asked Fussner for a ride. Fussner agreed and waited for them. When the 

occupants took too long to get ready, Fussner attempted to leave without giving them a 

ride. As he did so, Halfman drew a pistol and ordered him to stay. 

{¶19} Eventually, Boler, Osman, Abdi, Honey, and Fussner were ready to leave. 

There were two cars, Fussner’s car and the red Mitsubishi Eclipse that Honey had 

purchased from Phillips. As they got ready to leave, Abdi started to pull Fussner out of 

his car, but Boler told Abdi to leave Fussner alone. Boler and Fussner drove the two 

cars to Osborne’s trailer. Fussner was in his car along with Osman and Abdi. Boler 

was in the red Mitsubishi Eclipse with Honey. 

{¶20} When they arrived at the destination, Boler, Osman, and Abdi exited the 

vehicles. Boler carried the .22 Marlin and stated to Osman that he would have “his” 

head in his sights the whole time. Osman and Abdi then walked up to Osborne’s trailer. 

{¶21} That evening, Shane Benson (hereinafter “Benson”) and his friend John Perry 

Jr. (hereinafter “Perry”) were in the dining room of Osborne’s trailer smoking crack 

cocaine. Someone (the record is not precisely clear on who) noticed the cars 

approaching the trailer. Because of information he had received previously, Osborne 

was concerned that the individuals in the cars wanted to rob him. Earlier that day, 

Osborne had retrieved several guns and had placed them in readily accessible locations 

in the trailer. He placed a 9 millimeter semi-automatic pistol on top of the television. He 

placed an SKS semi-automatic rifle next to the front door. And finally, he leaned a 

shotgun up against a countertop. 

{¶22} Osman and Abdi knocked on Osborne’s front door. Osborne partially opened 

it and asked what they wanted. Osman and Abdi demanded to speak with “Johnny.” 
Athens App. No. 09CA35 7 

Osborne said that Johnny was not there and that he (i.e., Osborne) had children in the 

trailer. Abdi drew a .40 caliber semi-automatic Smith and Wesson pistol and pressed it 

against Osborne’s gut. Osborne grabbed the pistol and pushed it aside. As the two 

men struggled over the pistol, Abdi fired the gun twice. Eventually, Osborne 

manipulated the pistol so that it pointed towards Abdi’s head. At this point, Abdi turned 

and ran letting go of the pistol. 

{¶23} The front door of Osborne’s trailer opened to the outside. After Osborne 

wrested the pistol away from Abdi, Osborne stood slightly outside his trailer. Osman 

then slammed against the front door knocking Osborne against the wall. Osborne 

shoved the door back open and knocked Osman backwards. Osman then ran from the 

porch. 

{¶24} At this point, multiple individuals began firing weapons. Osborne fired the gun 

he wrested from Abdi until he ran out of bullets. Osborne then retrieved his SKS 

semiautomatic rifle and fired several rounds until it jammed. Osman fired some rounds 

as he retreated from the trailer with Abdi. Perry fired four rounds from a 9mm pistol, 

and Boler fired at least three rounds from the .22 Marlin rifle. Finally, Benson fired at 

least one shell from a shotgun. 

{¶25} During the struggle, Putnam, who was a friend of Osborne, arrived on the 

scene with his girlfriend Missy Swart. Putnam saw Osborne struggling with two men on 

his front porch. Putnam got out of his car and started to move towards the porch. A 

9mm round struck Putnam during the exchange of gunfire. The bullet punctured 

Putnam’s right lung. Mortally wounded, Putnam fell to the ground and was later 

pronounced dead at a hospital. 
Athens App. No. 09CA35 8 

{¶26} When the gunfire started, Fussner kept his head down, backed his car out of 

the driveway, and drove off. As a result, Osman, Abdi, Honey, and Boler all piled into 

the red Mitsubishi. Due to the speed of the escape, however, the car crashed shortly 

after leaving Osborne’s trailer. Boler remained in the area of the wreck, but Osman, 

Abdi, and Honey fled on foot. 

{¶27} Paramedics were called to the scene of the shooting. One of the dispatched 

squads instead encountered the overturned red Mitsubishi. The paramedics found 

Boler who appeared dazed and confused after the accident. While one of the 

paramedics was treating Boler, several Athens County Sheriff’s officers arrived and 

arrested Boler. Officers of the Ohio State Highway Patrol eventually apprehended 

Boler’s co-conspirators, and Abdi was among those arrested. 

{¶28} Lieutenant Bryan Cooper (hereinafter “Lt. Cooper”) of the Athens County 

Sheriff’s department interviewed Abdi multiple times, two of which are relevant to Abdi’s 

appeal. Lt. Cooper first interviewed Abdi beginning at 4:39 a.m. on February 15, and he 

interviewed Abdi again beginning at 11:26 a.m. on the same day. At the beginning of 

the first interview, Abdi indicated that his birthday was 1/1/1992;2

 he was in the tenth 

grade; he could read and write English; he was not taking prescription medication; and 

he was not under the influence of drugs or alcohol. Lt. Cooper then read Abdi each of 

Abdi’s Miranda rights, and Abdi waived those rights verbally and in writing. Abdi then 

informed Lt. Cooper that Abdi would like to talk about the incident. 

{¶29} At the beginning of the second interview, Lt. Cooper advised Abdi that he was 

still under the Miranda warnings. Abdi then reiterated that he wished to talk to Lt. 

 

2

 Although Abdi indicated to Lt. Cooper that his birthday was 1/1/1992, his actual birthday is December 

26, 1992. 
Athens App. No. 09CA35 9 

Cooper about the incident. The second interview was eventually played to the jury at 

trial, and during that interview, Abdi confessed that he and his co-conspirators took 

weapons to Osborne’s house to commit a robbery. 

{¶30} The case was tried to a jury. The jury returned a verdict finding Abdi guilty of 

aggravated robbery, in violation of R.C. 2911.01(A)(1); aggravated robbery, in violation 

of R.C. 2911.01(A)(3); and murder, in violation of R.C. 2903.02(B). In addition, the jury 

found Abdi guilty of a firearm specification pursuant to R.C. 2941.145 for each count of 

aggravated robbery and the murder. The trial court sentenced Abdi to ten years for 

each aggravated robbery conviction, three years for each firearm specification, and 

fifteen years to life for the murder conviction. The trial court merged the sentences for 

the aggravated robbery convictions. The trial court also merged the sentences for the 

firearm specifications. The trial court ordered all other sentences to be served 

consecutively for an aggregate sentence of 28 years to life. 

{¶31} Abdi appeals and assigns the following errors for our review: I. “The Trial 

Court erred to the prejudice of Defendant, in violation of the Defendant’s rights under 

the 5th and 14th Amendments to the United States Constitution, in failing to merge the 

conviction for felony murder under Ohio R.C. §2903.02(B) with the convictions for 

aggravated robbery under Ohio R.C. §2911.01, since the offenses are allied offenses of 

similar import under Ohio R.C. § 2941.25, and aggravated robbery which results in the 

death of a person is a lesser included offense of felony murder.” II. “The Trial Court 

erred to the prejudice of Defendant, and in violation of his rights under the 6th and 14th 

Amendment to the Constitution of the United States, in denying the Defendant’s Motion 

for Change of Venue.” III. “The Trial Court erred to the prejudice of Defendant, and in 
Athens App. No. 09CA35 10 

violation of his rights under the 5th, 6th, and 14th Amendment to the Constitution of the 

United States, in denying his Motion to Suppress the statements made by the 

Defendant to the police.” IV. “The Trial Court erred to the prejudice of Defendant, and in 

violation of his rights under the 14th Amendment to the Constitution of the United 

States, in permitting the State to introduce ‘other acts,’ in contravention to Ohio Evid.R. 

404(B).” V. “The Trial Court erred to the prejudice of Defendant, and in violation of his 

rights under the 14th Amendment to the Constitution of the United States, by entering 

judgment against the Defendant on the charge of murder, as the evidence was 

insufficient to sustain the conviction, or, in the alternative, the conviction was against the 

manifest weight of the evidence.” VI. “The Trial Court erred to the prejudice of 

Defendant, and in violation of his rights under the 14th Amendment to the Constitution 

of the United States, in permitting the prosecutor to call two-codefendants as witnesses 

for the sole purpose of having such witnesses invoke their 5th Amendment right against 

self-incrimination before the jury.” VII. “The Trial Court erred to the prejudice of 

Defendant, and in violation of his rights under the 6th and 14th Amendment to the 

Constitution of the United States, in denying Defendant’s Motion to Compel Disclosure 

of Grand Jury Testimony.” VIII. “The Trial Court erred to the prejudice of Defendant in 

failing to impose a sentence consistent with the principles and purposes of sentencing 

under Ohio R.C. §2929.11, and proper consideration of the seriousness and recidivism 

factors under Ohio R.C. §2929.12.” And, IX. “The Trial Court erred to the prejudice of 

Defendant, and in violation of his rights under the 14th Amendment to the Constitution 

of the United States, in sentencing Defendant to consecutive terms of imprisonment 

with [sic] making findings of fact under Ohio R.C. §2929.14(E)(4).” 
Athens App. No. 09CA35 11 

II. 

{¶32} In his first assignment of error, Abdi contends that the trial court erred by 

failing to merge his convictions for felony murder and aggravated robbery because they 

are allied offenses of similar import. This issue presents a legal question, which we 

review de novo. See, e.g., State v. Cox, Adams App. No. 02CA751, 2003-Ohio-1935, 

at ¶5. 

{¶33} Under Ohio law, “[w]here the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the indictment or information 

may contain counts for all such offenses, but the defendant may be convicted of only 

one.” R.C. 2941.25(A). But “[w]here the defendant’s conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in two or more offenses of the 

same or similar kind committed separately or with a separate animus as to each, the 

indictment or information may contain counts for all such offenses, and the defendant 

may be convicted of all of them.” R.C. 2941.25(B). 

{¶34} This statute “codified the judicial doctrine of merger” and “prohibited the 

‘cumulative punishment of a defendant for the same criminal act where his conduct can 

be construed to constitute two statutory offenses, when, in substance and effect, only 

one offense has been committed.’” State v. Ware (1980), 63 Ohio St.2d 84, 86, quoting 

State v. Roberts (1980), 62 Ohio St.2d 170, 172-73. 

{¶35} The Supreme Court of Ohio has recently overruled its prior judgments in this 

area of the law, and it articulated the proper analysis for determining whether merger is 

appropriate. See State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, at ¶44. “In 

determining whether offenses are allied offenses of similar import under R.C. 
Athens App. No. 09CA35 12 

2941.25(A), the question is whether it is possible to commit one offense and commit the 

other with the same conduct, not whether it is possible to commit one without

committing the other. [State v.] Blankenship, 38 Ohio St.3d [116,] 119[,] (Whiteside, J., 

concurring) (‘It is not necessary that both crimes are always committed by the same 

conduct but, rather, it is sufficient if both offenses can be committed by the same 

conduct. It is a matter of possibility, rather than certainty, that the same conduct will 

constitute commission of both offenses.’ [Emphasis sic]). * * * 

{¶36} “If the multiple offenses can be committed by the same conduct, then the 

court must determine whether the offenses were committed by the same conduct, i.e., 

‘a single act, committed with a single state of mind.’ [State v.] Brown, 119 Ohio St.3d 

447, 2008-Ohio-4569[,] at ¶50 (Lanzinger, J., dissenting). 

{¶37} “If the answer to both questions is yes, then the offenses are allied offenses 

of similar import and will be merged. 

{¶38} “Conversely, if the court determines that the commission of one offense will 

never result in the commission of the other, or if the offenses are committed separately, 

or if the defendant has separate animus for each offense, then, according to R.C. 

2941.25(B), the offenses will not merge.” Johnson at ¶48-51 (emphasis sic). 

{¶39} Clearly an offender could, with the same conduct, commit aggravated robbery 

and felony murder. Therefore, aggravated robbery and felony murder are allied 

offenses of similar import. 

{¶40} Here, Abdi’s counsel failed to raise any objection on this basis at the 

sentencing hearing. And pursuant to Crim.R. 52(B), we review any error for plain error. 

The Supreme Court of Ohio has “previously held that the imposition of multiple 
Athens App. No. 09CA35 13 

sentences for allied offenses of similar import is plain error.” State v Underwood, 124 

Ohio St.3d 365, 2010-Ohio-1, at ¶31, citing State v. Yarbrough, 104 Ohio St.3d 1, 2004-

Ohio-6087, at ¶96-102. 

{¶41} Even though felony murder and the predicate felony (here, aggravated 

robbery) are allied offenses of similar import, Abdi may still be sentenced for both 

crimes. In order to sentence Abdi for both crimes, the State must show that Abdi 

committed the crimes “separately or with a separate animus.” See R.C. 2941.25(B). 

{¶42} Because aggravated robbery and felony murder are allied offenses of similar 

import, we remand the present case for resentencing. On remand, the trial court should 

consider whether Abdi committed felony murder separately or with a separate animus 

from his aggravated robbery conviction and sentence Abdi accordingly. 

{¶43} Accordingly, we sustain Abdi’s first assignment of error. 

III. 

{¶44} In his second assignment of error, Abdi contends that the trial court erred by 

failing to grant his motion for a change of venue. 

{¶45} “Upon the motion of any party or upon its own motion the court may transfer 

an action to any court having jurisdiction of the subject matter outside the county in 

which trial would otherwise be held, when it appears that a fair and impartial trial cannot 

be held in the court in which the action is pending.” Crim.R. 18(B). 

{¶46} “A change of venue rests largely in the discretion of the trial court, and * * * 

appellate courts should not disturb the trial court’s ruling on a motion for change of 

venue in a criminal case unless it is clearly shown that the trial court has abused its 

discretion.” State v. Fairbanks (1972), 32 Ohio St.2d 34, 37 (citations omitted); see, 
Athens App. No. 09CA35 14 

also, State v. Berecz, Washington App. No. 08CA48, 2010-Ohio-285, at ¶30. “An 

abuse of discretion connotes more than an error of law or judgment; it implies that the 

trial court acted unreasonably, arbitrarily, or unconscionably.” Id. at ¶30, citing 

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. 

{¶47} Abdi contends that the trial court should have granted his motion for a change 

of venue due to the pre-trial publicity surrounding his and his co-conspirators’ cases. In 

addition to the criminal rule cited above, the United States Supreme Court has held that 

“[d]ue process requires that the accused receive a trial by an impartial jury free from 

outside influences[, and] * * * where there is a reasonable likelihood that prejudicial 

news prior to trial will prevent a fair trial, the judge should continue the case until the 

threat abates, or transfer it to another county not so permeated with publicity.” 

Sheppard v. Maxwell (1966), 384 U.S. 333, 362-63; see, also, State ex rel. Toledo 

Blade Co. v. Henry Cty. Court of Common Pleas, 125 Ohio St.3d 149, 2010-Ohio-1533, 

at ¶23 (“[T]he Sixth Amendment to the United States Constitution and Section 10, 

Article I of the Ohio Constitution secure the criminal defendant’s right to a fair trial. * * * 

Pervasive, unfair, and prejudicial media coverage of a criminal trial can sometimes 

deprive a criminal defendant of this constitutional right.”). 

{¶48} “However, ‘pretrial publicity[,] even pervasive, adverse publicity[,] does not 

inevitably lead to an unfair trial.’” State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio2961, at ¶58, quoting Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554 

(alterations sic). “A defendant claiming that pretrial publicity has denied him a fair trial 

must show that one or more jurors were actually biased.” State v. Treesh, 90 Ohio 

St.3d 460, 464, 2001-Ohio-4, citing Mayola v. Alabama (C.A.5, 1980), 623 F.2d 992, 
Athens App. No. 09CA35 15 

996. “Only in rare cases may prejudice be presumed.” Treesh at 464, citing Mayola at 

997; see, also State v. Lundgren, 73 Ohio St.3d 474, 479, 1995-Ohio-227. The fact that 

extensive, pre-trial publicity indicated that a co-defendant had recently been convicted is 

insufficient to establish prejudice. See State v. Hill (March 22, 1995), Belmont App. No. 

90-B-5; State v. Deavors (Sep. 13, 1979), Montgomery App. No. CA 6095. 

{¶49} Abdi argues that he has satisfied his burden by filing materials with the trial 

court demonstrating the extensive publicity of his and his co-conspirators’ cases. Abdi 

argues that, because of the pre-trial publicity, the prospective jurors were familiar with 

Abdi’s and his co-conspirators’ cases. According to Abdi, the pre-trial publicity indicated 

that two of his co-conspirators were convicted. 

{¶50} The trial court did not err in denying Abdi’s motion for a change of venue. 

The trial court conducted an extensive voir dire of all prospective jurors, which lasted 

two days. The defense had ample opportunity to discover evidence of juror bias. Abdi 

failed to show that any jurors were actually biased based on pre-trial publicity (or based 

on any other reason). 

{¶51} Abdi has also failed to show that the entire jury pool was aware of his coconspirators’ cases such that Abdi did not receive a fair trial. On appeal, Abdi selects 

quotes from four prospective jurors indicating that those jurors were aware that Abdi’s 

co-conspirators had been found guilty. Only one of these jurors was seated on the final 

panel, and Abdi cannot point to actual bias on the part of this juror. Additionally, Abdi’s 

trial counsel passed on using a peremptory challenge that would have excused this 

juror. (Abdi’s counsel subsequently used the peremptory challenge on a juror who was 

seated later in the jury selection process). The other three prospective jurors did not sit 
Athens App. No. 09CA35 16 

on the final panel. In fact, the State successfully moved to dismiss one of these jurors 

for cause (based on the juror having a pending court case), and Abdi’s trial counsel 

objected to her dismissal. 

{¶52} Absent evidence of actual bias, Abdi’s attempt to demonstrate prejudice, 

based on extensive pre-trial publicity of Abdi’s and his co-conspirators’ cases, is 

insufficient to show that Abdi did not receive a fair trial. Therefore, the trial court did not 

abuse its discretion by denying Abdi’s motion for a change of venue. 

{¶53} Accordingly, we overrule Abdi’s second assignment of error. 

IV. 

{¶54} In his third assignment of error, Abdi contends that the trial court erred when it 

failed to grant his motion to suppress. “‘[A]ppellate review of a trial court’s decision 

regarding a motion to suppress evidence involves mixed questions of law and fact.’” 

State v. Featherstone, 150 Ohio App.3d 24, 2002-Ohio-6028, at ¶10, quoting State v. 

Vest, Ross App. No. 00CA2576, 2001-Ohio-2394 (alteration sic). “At a suppression 

hearing, the evaluation of evidence and the credibility of witnesses are issues for the 

trier of fact.” State v. Mills (1992), 62 Ohio St.3d 357, 366 (citation omitted). 

Consequently, in its review, an appellate court must accept the trial court’s findings of 

fact if they are supported by competent, credible evidence. State v. Guysinger (1993), 

86 Ohio App.3d 592, 594. However, an appellate court determines as a matter of law, 

without deferring to the trial court’s conclusions, whether these facts meet the applicable 

legal standard. State v. Klein (1991), 73 Ohio App.3d 486, 488. 

{¶55} A waiver of the Fifth Amendment right not to incriminate oneself must be 

made “voluntarily, knowingly and intelligently.” Miranda v. Arizona (1966), 384 U.S. 
Athens App. No. 09CA35 17 

436, 444. Absent evidence that coercive police conduct overcame a defendant’s will 

and critically impaired his capacity for self-determination, we presume that a 

defendant’s decision to waive his Fifth Amendment privilege was voluntary. State v. 

Dailey (1990), 53 Ohio St.3d 88, 91-92. To determine whether a waiver was voluntary, 

the court must consider “the totality of the circumstances” and look specifically at the 

defendant’s “age, mentality, and prior criminal experience * * *; the length, intensity, and 

frequency of interrogation; the existence of physical deprivation or mistreatment; and 

the existence of threat or inducement.” State v. Edwards (1976), 49 Ohio St.2d 31, at 

paragraph two of the syllabus, overruled on other grounds by Edwards v. Ohio (1978), 

438 U.S. 911. Evidence that the defendant signed a written waiver of his rights is 

strong proof that the waiver is valid. State v. Dennis, 79 Ohio St.3d 421, 425, 1997-

Ohio-372. 

{¶56} Abdi contends that the waiver of Miranda rights obtained by Lt. Cooper was 

an involuntary waiver. And thus, Abdi argues the trial court erred by failing to suppress 

the resulting confession. Abdi contends that the following facts support a finding that 

his waiver was involuntary under the Edwards factors: he was only sixteen years old at 

the time of the interview;3

 he had only one prior experience with law enforcement; his 

parents were not present; and the length and nature of his detention before the 

interrogation began. 

{¶57} Here, we find that the trial court did not err in denying Abdi’s motion to 

suppress. The police interviewed Abdi multiple times, but only two interviews are 

relevant for purposes of Abdi’s appeal. Lt. Cooper first interviewed Abdi on February 

 

3

 We note that Abdi indicated to Lt. Cooper that his birthday was “1/1/1992,” which would have made him 

seventeen at the time of the interview. As stated above, however, his actual birthday is December 26, 

1992. Thus, Abdi was sixteen years old at the time of the interview. 
Athens App. No. 09CA35 18 

15, 2009, at 4:39 a.m. This interview lasted about an hour. Lt. Cooper then interviewed 

Abdi a second time at 11:26 a.m. on the same day. Abdi indicated that he could read 

and write the English Language. Abdi also indicated that he was not taking prescribed 

medication and that he was not under the influence of alcohol or drugs. At the 

beginning of the first interview, Lt. Cooper explained Adbi’s Miranda rights, and Abdi 

waived them verbally and in writing. Additionally, Abdi repeatedly stated to Lt. Cooper 

that he wanted to talk about the incident at the beginning of the first interview and again 

at the beginning of the second interview. 

{¶58} The Edwards factors Abdi cites do not support Abdi’s argument that his 

waiver of Miranda rights was involuntary. There is no evidence that Abdi’s age 

prevented him from understanding the rights he was waiving. Also, Abdi’s inexperience 

with law enforcement does not demonstrate that his waiver was involuntary. Abdi 

stated that he had been to “juvie” for carrying a concealed weapon, so he had some 

experience in the justice system. Finally, Abdi did not have the right to have his parents 

present before waiving his Miranda rights. See State v. Bobo (1989), 65 Ohio App.3d 

685, 690 (“Though the greatest care must be taken to assure a juvenile’s admissions 

are voluntary, parental presence is not constitutionally mandated.”). 

{¶59} Abdi argues that the prolonged nature of his detention and interrogation and 

the fact that he had just been in an automobile accident demonstrate that his confession 

was involuntary. The record, however, does not support Abdi’s claim. There is no 

evidence that the Athens County Sherriff’s department deprived Abdi of sleep (or 

otherwise mistreated him) while he was in custody. Additionally, Abdi stated that he 
Athens App. No. 09CA35 19 

was “fine” when Lt. Cooper asked how he was feeling. And as stated above, Abdi 

repeatedly indicated that he wanted to speak with Lt. Cooper about the incident. 

{¶60} Thus, Abdi waived his Miranda rights voluntarily, knowingly, and intelligently, 

and the trial court correctly denied his motion to suppress. Accordingly, we overrule 

Abdi’s third assignment of error. 

V. 

{¶61} In his fourth assignment of error, Abdi contends that the trial court erred by 

allowing the State to introduce other acts evidence in violation of Evid.R. 404(B). 

{¶62} “The admission or exclusion of relevant evidence rests within the sound 

discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, at paragraph two 

of the syllabus. 

{¶63} “Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It may, however, 

be admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R. 

404(B). For proper admissibility, the trial court must determine that: (1) the other act is 

relevant to the crime in question, and (2) evidence of the other act is relevant to an 

issue placed in question at trial. State v. McCornell (1993), 91 Ohio App.3d 141, 146, 

citing State v. Howard (1978), 57 Ohio App.2d 1, 6; State v. Strong (1963), 119 Ohio 

App. 31. 

{¶64} If a trial court inappropriately admits evidence in violation of Evid.R. 404(B), 

we apply a non-constitutional harmless-error analysis. State v. Murphy, Scioto App. No. 
Athens App. No. 09CA35 20 

09CA3311, 2010-Ohio-5031, at ¶80. “A non-constitutional error is harmless when there 

is substantial other evidence to support the guilty verdict.” Id. 

{¶65} At trial, Deal testified that she overheard Osman stating that he wanted to rob 

William Evans. Deal also testified that Abdi was standing near Osman when Osman 

stated this. Abdi contends that “[t]he only real impact of [the witness’s] testimony was to 

portray [Abdi] as somebody intent on robbing someone.” 

{¶66} The trial court properly instructed the jury that “[a]ny evidence that the 

defendant committed wrongs or acts other than the offenses for which he is presently 

on trial was received only for a limited purpose. Such evidence is not admissible to 

prove the character of the defendant in order to show action in conforming with that 

character. * * * However, you may consider such evidence as proof of motive, intent, 

preparation, plan and knowledge.” Trial Transcript, Day 4, 33-34. 

{¶67} As the trial court instructed, this evidence was admissible to show that the 

speaker (here, Osman) intended to commit a robbery that evening. The evidence 

demonstrated Osman’s intentions. And Abdi was clearly one of Osman’s coconspirators. The testimony is not impermissible propensity evidence just because 

Osman’s plans changed, and Osman, Abdi, Honey, and Boler decided to rob someone 

other than Evans. The evidence does not show that Osman or Abdi committed a 

robbery in the past, and, therefore, one or both of them must have committed the 

Osborne robbery. Instead, the evidence shows Osman’s intent on the evening in 

question. Considering that Osman and Abdi went to Osborne’s house and confronted 

Osborne with a pistol, Osman’s statement regarding Evans was relevant to whether 

Osman, Abdi, Boler, and Honey intended to commit a robbery at Osborne’s trailer. 
Athens App. No. 09CA35 21 

{¶68} Even if we accept Abdi’s argument that this was impermissible propensity 

evidence, we find any error harmless. The evidence against Abdi is substantial. Abdi 

confessed that he and his co-conspirators went to Osborne’s trailer intent on committing 

a robbery. And multiple witnesses testified to Abdi’s involvement in the robbery. 

Additionally, the trial court properly instructed the jury not to consider the evidence as 

propensity evidence. 

{¶69} Accordingly, we overrule Abdi’s fourth assignment of error. 

VI. 

{¶70} In his fifth assignment of error, Abdi contends that the evidence supporting his 

conviction is insufficient, and Abdi also contends that his conviction is against the 

manifest weight of the evidence. Because these arguments rely on distinct standards of 

review, we consider them separately. 

A. 

{¶71} Abdi first contends that his conviction for felony murder is not supported by 

sufficient evidence. When reviewing a case to determine whether the record contains 

sufficient evidence to support a criminal conviction, our function “is to examine the 

evidence admitted at trial to determine whether such evidence, if believed, would 

convince the average mind of the defendant’s guilt beyond a 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.” State v. Jenks (1991), 61 Ohio St.3d 259, at 

paragraph two of the syllabus. See, also, Jackson v. Virginia (1979), 443 U.S. 307, 

319. 
Athens App. No. 09CA35 22 

{¶72} This test raises a question of law and does not allow the court to weigh the 

evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175. Rather, this test “gives full 

play to the responsibility of the trier of fact * * * to resolve conflicts in the testimony, to 

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate 

facts.” Jackson at 319. Accordingly, the weight given to the evidence and the credibility 

of witnesses are issues for the trier of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 

79-80; State v. DeHass (1967), 10 Ohio St.2d 230, at paragraph one of the syllabus. 

{¶73} Abdi specifically points to the requirement that the State prove that Putnam’s 

death was proximately caused by Abdi’s actions. Ohio’s felony murder statute provides: 

“No person shall cause the death of another as a proximate result of the offender’s 

committing or attempting to commit an offense of violence that is a felony of the first or 

second degree[.]” R.C. 2903.02(B). The jury found Abdi guilty of aggravated robbery in 

violation of both R.C. 2911.01(A)(1) and R.C. 2911.01(A)(3), which are felonies of the 

first degree. R.C. 2911.01(C). 

{¶74} Under Ohio law, “it is irrelevant whether the killer is the defendant, an 

accomplice, or a third party.” State v. Ford, Franklin App. No. 07AP-803, 2008-Ohio4373, at ¶32, citing State v. Franklin, Mahoning App. No. 06-MA-79, 2008-Ohio-2264, at 

¶111. “‘[A d]efendant can be held criminally responsible for the killing regardless of the 

identity of the person killed or the identity of the person whose act directly caused the 

death, so long as the death is the ‘proximate result’ of [the d]efendant’s conduct in 

committing the underlying felony offense; that is, a direct, natural, reasonably 

foreseeable consequence, as opposed to an extraordinary or surprising consequence, 

when viewed in the light of ordinary experience.’” State v. Ervin, Cuyahoga App. No. 
Athens App. No. 09CA35 23 

87333, 2006-Ohio-4498, at ¶25, quoting State v. Dixon, Montgomery App. No. 18582, 

2002-Ohio-541 (other citations omitted). See, also, State v. Chambers (1977), 53 Ohio 

App.2d 266, 268-69 (applying proximate cause standard to a similar involuntary 

manslaughter statute). “‘It is not necessary that the accused [be] in a position to 

foresee the precise consequence of his conduct; only that the consequence be 

foreseeable in the sense that what actually transpired was natural and logical in that it 

was within the scope of the risk created by his conduct.’” State v. Lovelace (1999), 137 

Ohio App.3d 206, 219-20, quoting State v. Losey (1985), 23 Ohio App.3d 93, 96 

(alteration sic). 

{¶75} Abdi asserts that there were two intervening criminal acts. Therefore, Abdi 

argues that he should not be held criminally liable for proximately causing Putnam’s 

death. First, Abdi asserts that Perry actually fired the fatal bullet and that Abdi and 

Osman were in full flight from the trailer when Perry fired. According to Abdi, Perry no 

longer had any right to use deadly force in self defense, so Perry was committing a 

crime when he fired the 9mm pistol. Second, Abdi argues that Putnam went to 

Osborne’s trailer to commit a crime (i.e., to buy drugs). 

{¶76} Neither of Abdi’s arguments is persuasive. “Only a reasonably unforeseeable 

intervening cause will absolve one of criminal liability in this context.” State v. Dykas, 

185 Ohio App.3d 763, 2010-Ohio-359, at ¶25, citing Lovelace at 215. Even intervening 

criminal conduct does not prevent an offender’s actions from being the proximate cause 

so long as that intervening conduct was foreseeable. See Lovelace at 219 (holding that 

police officer’s criminal conduct during a high-speed chase, which directly caused a 
Athens App. No. 09CA35 24 

motorist’s death, was foreseeable, and, therefore, defendant could be held criminally 

liable for proximately causing the motorist’s death). 

{¶77} Thus, even if we accept Abdi’s premise that Perry fired the fatal round 

illegally, Abdi’s argument still fails. The prosecution introduced considerable evidence 

that allowed the jury to conclude that Abdi and Osman approached Osborne’s trailer 

intent on robbing Osborne at gunpoint. This confrontation could foreseeably lead to a 

fight involving firearms. Whether an individual in the gunfight was justified in acting in 

self-defense or the defense of another is irrelevant to the issue of Abdi’s guilt. The 

death of a bystander, such as Putnam, was foreseeable. 

{¶78} Furthermore, we do not need to accept the premise that Perry was not 

justified in firing the 9mm pistol. Fussner testified that Osman and Abdi fired at Osborne 

as they retreated from the trailer. Given the timeline, the jury could have relied on this 

evidence to determine that Perry was still justified in firing his weapon. 

{¶79} As to Putnam’s intent to purchase drugs, the defense several times elicited 

testimony that tended to show Osborne was known as someone who sold drugs. The 

presence of a drug user seeking to purchase drugs from a drug dealer is a foreseeable 

circumstance. Even if Putnam intended to buy drugs from Osborne, Putnam was still an 

innocent bystander with respect to the armed robbery that led to the fatal gunfire. 

{¶80} Accordingly, we find that Abdi’s conviction for felony murder is supported by 

sufficient evidence. Specifically, we find that 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 of murder proven beyond a reasonable doubt. 

B. 
Athens App. No. 09CA35 25 

{¶81} Abdi next contends that his conviction for felony murder is against the 

manifest weight of the evidence. When determining whether a criminal conviction is 

against the manifest weight of the evidence, we “will not reverse a conviction where 

there is substantial evidence upon which the [trier of fact] could reasonably conclude 

that all the elements of an offense have been proven beyond a reasonable doubt.” 

State v. Eskridge (1988), 38 Ohio St.3d 56, at paragraph two of the syllabus. See, also, 

State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502, at ¶41. We “must review the 

entire record, weigh the evidence and all reasonable inferences, consider the credibility 

of the 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 granted.” Smith, 2007-Ohio-502, at ¶41, 

citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-71; Martin at 175. “The 

discretionary power to grant a new trial should be exercised only in the exceptional case 

in which the evidence weighs heavily against the conviction.” Martin at 175 (citations 

omitted). 

{¶82} “Even in our role as thirteenth juror we are constrained by the rule that the 

weight to be given evidence and the credibility to be afforded testimony are normally 

issues to be determined by the trier of fact. * * * The fact finder is best able to view the 

witnesses and observe their demeanor, gestures and voice inflections, and use these 

observations in weighing the credibility of the proffered testimony. * * * Thus, we will 

only interfere if the fact finder clearly lost its way and created a manifest miscarriage of 

justice.” State v. Davis, Washington App. No. 09CA28, 2010-Ohio-555, at ¶13 (citations 

omitted). 
Athens App. No. 09CA35 26 

{¶83} Here, Abdi confessed that he and his co-conspirators went to Osborne’s 

trailer with firearms to commit a robbery. The evidence was also clear that Abdi pushed 

a pistol into Osborne’s gut when Abdi and Osman confronted Osborne. The jury did not 

clearly lose its way when it concluded that Abdi committed aggravated robbery and that 

the death of a bystander was a foreseeable result of the aggravated robbery. Thus, we 

do not find that Abdi’s conviction is a manifest miscarriage of justice. Substantial 

evidence supports his conviction for felony murder. 

{¶84} Accordingly, we overrule Abdi’s fifth assignment of error. 

VII. 

{¶85} In his sixth assignment of error, Abdi contends that the trial court erred when 

it allowed the State to call two of Abdi’s co-conspirators to testify. Abdi argues that he 

was prejudiced because the witnesses took the stand solely to invoke their Fifth 

Amendment privilege against self-incrimination. 

{¶86} As stated above, “[t]he admission or exclusion of relevant evidence rests 

within the sound discretion of the trial court.” Sage at paragraph two of the syllabus. 

{¶87} The Supreme Court of Ohio has held that “[a] witness, even though he has 

previously indicated that he will refuse to testify on the ground that to do so would 

incriminate him, may be called as a witness.” State v. Dinsio (1964), 176 Ohio St. 460, 

466. “The court [does] not commit prejudicial error in allowing the prosecutor for the 

state to call the witness and to pursue his inquiry sufficiently to determine whether the 

witness intended to claim the privilege of immunity. Once it [is] established that the 

witness intend[s] to claim his privilege of immunity, the court commit[s] error prejudicial 

to the defendant in permitting the prosecutor to continue his line of questioning, which 
Athens App. No. 09CA35 27 

place[s] before the jury innuendo evidence or inferences of evidence which the state 

could not get before the jury by direct testimony from the witness.” Id. at 468. 

{¶88} As we have previously held, “Dinsio is not violated when questioning is brief 

and the prosecutor stops asking questions once it becomes clear that the witness will 

not answer.” State v. Bowers, Hocking App. No. 06CA7, 2007-Ohio-3986, at ¶9. 

{¶89} Here, the State’s questioning ceased after Boler and Osman invoked their 

right against self-incrimination. Therefore, the trial court did not violate Dinsio. 

{¶90} The State sought to use the assertions of privilege by Boler and Osman to 

establish that Boler and Osman were “unavailable” to testify. The State was required to 

show Boler’s and Osman’s unavailability in order to admit certain statements against 

interest under Evid.R. 804(B)(3). Specifically, the State wanted to introduce Fussner’s 

testimony that Boler stated to Osman that Boler would have “his” head in the sights of 

Boler’s rifle; Deal’s testimony that Osman stated that he intended to rob William Evans; 

and an undetermined statement by Boler where the trial court sustained an objection in 

mid-answer. 

{¶91} “‘Unavailability as a witness’ includes any of the following situations in which 

the declarant: (1) is exempted by ruling of the court on the ground of privilege from 

testifying concerning the subject matter of the declarant’s statement[.]” Evid.R. 

804(A)(1). “A showing of unavailability under Evid.R. 804 must be based on testimony 

of witnesses rather than hearsay not under oath unless unavailability is conceded by the 

party against whom the statement is being offered.” State v. Keairns (1984), 9 Ohio 

St.3d 228, at paragraph three of the syllabus. Thus, under Keairns, the State was 

obliged to demonstrate the unavailability of Boler and Osman through testimony. 
Athens App. No. 09CA35 28 

{¶92} Abdi contends that any finding of unavailability should have been done out of 

the hearing of the jury pursuant to Evid.R. 104(C). Abdi, however, made no such 

argument before the trial court. The jury was properly instructed to draw no conclusion 

from an individual’s assertion of Fifth Amendment privilege. And “‘[a] presumption 

always exists that the jury has followed the instructions given to it by the trial court.’” 

Murphy at ¶81, quoting Pang v. Minch (1990), 53 Ohio St.3d 186, at paragraph four of 

the syllabus. Thus, the trial court did not abuse its discretion in allowing the State to call 

Boler and Osman to the stand to assert their Fifth Amendment right against selfincrimination. 

{¶93} Accordingly we overrule Abdi’s sixth assignment of error. 

VIII. 

{¶94} In his seventh assignment of error, Abdi contends that the trial court erred 

when it denied his motion to compel disclosure of grand jury testimony. 

{¶95} “Disclosure of grand jury testimony, other than that of the defendant and codefendant, is controlled by Crim.R. 6(E)[,] * * * and the release of any such testimony for 

use prior to or during trial is within the discretion of the trial court.” State v. Greer

(1981), 66 Ohio St.2d 139, at paragraph one of the syllabus. 

{¶96} Crim.R. 6(E) provides: “A grand juror, prosecuting attorney, interpreter, 

stenographer, operator of a recording device, or typist who transcribes recorded 

testimony, may disclose matters occurring before the grand jury * * * but may disclose 

such matters only * * * when permitted by the court at the request of the defendant upon 

a showing that grounds may exist for a motion to dismiss the indictment because of 

matters occurring before the grand jury.” 
Athens App. No. 09CA35 29 

{¶97} “‘Grand jury proceedings are secret, and an accused is not entitled to inspect 

grand jury transcripts either before or during trial unless the ends of justice require it and 

there is a showing by the defense that a particularized need for disclosure exists which 

outweighs the need for secrecy.’” State v. Greer (1981), 66 Ohio St.2d 139, 148, 

quoting State v. Patterson (1971), 28 Ohio St.2d 181, at paragraph three of the 

syllabus. 

{¶98} “‘[W]hen a defendant speculates that the grand jury testimony might have 

contained material evidence or might have aided his cross-examination by revealing 

contradictions, the trial court does not abuse its discretion by finding the defendant had 

not shown a particularized need.’” State v. Shadoan, Adams App. No. 03CA764, 2004-

Ohio-1756, at ¶28, quoting State v. Mack, 73 Ohio St.3d 502, 508, 1995-Ohio-273 

(other quotation omitted). “The claim that a witness’s grand jury testimony may differ 

from trial testimony is insufficient to show a particularized need.” State v. Horger, 170 

Ohio App.3d 383, 2007-Ohio-665, at ¶10, citing State v. Henness (1997), 79 Ohio St.3d 

53, 62, 1997-Ohio-405. 

{¶99} Here, Abdi speculated before the trial court, and again on appeal, that 

Osborne may have given contradictory testimony before the grand jury. Abdi contends 

that Osborne gave other contradictory statements suggesting that Osman, rather than 

Abdi, had pointed the pistol in Osborne’s gut at the doorway confrontation. 

{¶100} We find that the trial court did not abuse its discretion. Speculation that 

Osborne’s grand jury testimony may have revealed contradictions is insufficient to justify 

disclosure of grand jury testimony. Moreover, Osborne’s inconsistent statement 

indicating Osman (and not Abdi) had threatened Osborne with a gun was admitted into 
Athens App. No. 09CA35 30 

evidence. Thus, the jury was aware that Osborne’s account of events had changed at 

one point. Therefore, Abdi suffered no prejudice when the trial court denied his motion 

to compel disclosure of the grand jury testimony. Accordingly, Abdi did not show a 

particularized need for disclosure of the grand jury testimony, and the trial court 

correctly denied Abdi’s motion. 

{¶101} Therefore, we overrule Abdi’s seventh assignment of error. 

IX. 

{¶102} In his eighth assignment of error, Abdi contends that the trial court erred when 

it failed to grant appropriate weight to his lack of criminal history and youth during 

sentencing. 

{¶103} “Appellate courts ‘apply a two-step approach [to review a sentence]. First, 

[we] must examine the sentencing court’s compliance with all applicable rules and 

statutes in imposing the sentence to determine whether the sentence is clearly and 

convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall 

be reviewed under an abuse-of-discretion standard.’” State v. Smith, Pickaway App. 

No. 08CA6, 2009-Ohio-716, at ¶8, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, at ¶4 (alterations sic). See, also, State v. Voycik, Washington App. Nos. 

08CA33 & 08CA34, 2009-Ohio-3669, at ¶8. 

{¶104} In analyzing whether Abdi’s sentences are contrary to law, “[t]he only specific 

guideline is that the sentence[s] must be within the statutory range[.]” State v. Welch, 

Washington App. No. 08CA29, 2009-Ohio-2655, at ¶7, quoting State v. Ross, Adams 

App. No. 08CA872, 2009-Ohio-877, at ¶10. See, also, Voycik at ¶9. In this case, Abdi 

raises no argument for the proposition that the trial court sentenced him to a term of 
Athens App. No. 09CA35 31 

imprisonment outside of the statutory range. Rather, Abdi contends that the trial court 

failed to consider his lack of criminal history and youth as compared to his coconspirators Osman and Boler. 

{¶105} However, we find that the trial court was fully aware of Abdi’s youth and lack 

of criminal history prior to sentencing. The trial court was entitled to give greater weight 

to contrary arguments advanced by the State. At sentencing, Abdi’s counsel urged the 

court to consider that Abdi was sixteen years old at the time of the incident and that 

Abdi did not have a lengthy juvenile criminal record. The trial court had discretion to 

find the nature and characteristics of the offense more persuasive than the mitigating 

factors of youth and lack of criminal history. The trial court was not required to explicitly 

state that it considered Abdi’s youth and lack of criminal history when deciding on a 

proper sentence. See State v. Koclan, Ottawa App. No. OT-07-018, 2008-Ohio-74, at 

¶10 (“[I]n exercising its discretion, sentencing courts must consider the provisions listed 

in R.C. 2929.11 and 2929.12 as statutory factors to determine an appropriate felony 

sentence. * * * [N]onetheless, a trial court is not required to state any findings on the 

record in considering these factors.”) (citations omitted). 

{¶106} In its judgment entry, the trial court stated: “The court has considered the 

record, oral statements, any victim impact statements, as well as the principles and 

purposes of sentencing under R.C. 2929.11, and has balanced the seriousness and 

recidivism factors under R.C. 2929.12. The Court has considered the factors under 

R.C. 2929.13.” September 23, 2009 Judgment Entry at 2. 
Athens App. No. 09CA35 32 

{¶107} Thus, the record demonstrates that the trial court considered all relevant 

factors when it sentenced Abdi. Accordingly, we overrule Abdi’s eighth assignment of 

error. 

X. 

{¶108} For his ninth assignment of error, Abdi contends that the trial court erred by 

sentencing him to consecutive sentences without making the required judicial findings of 

fact under R.C. 2929.14(E)(4). The Supreme Court of Ohio held that those required 

findings were unconstitutional. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at 

paragraph three of the syllabus, citing Apprendi v. New Jersey (2000), 530 U.S. 466 

and Blakely v. Washington (2004), 542 U.S. 296. 

{¶109} Abdi contends that this ruling is in conflict with a recent ruling from the 

Supreme Court of the United States. Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 

711. Abdi is correct that, under Ice, the Supreme Court of Ohio had no need to strike 

down R.C. 2929.14(E)(4). Id. at 714-15. Also, Abdi is correct that the Supreme Court 

of the United States is final arbiter of the United States Constitution. See Minnesota v. 

National Tea Co. (1940), 309 U.S. 551, 557; State v. Storch (1993), 66 Ohio St.3d 280, 

291. 

{¶110} However, the Supreme Court of Ohio has rejected Abdi’s argument. “The 

United States Supreme Court’s decision in Oregon v. Ice (2009), 555 U.S. 160[,] does 

not revive Ohio’s former consecutive-sentencing statutory provisions, R.C. 

2929.14(E)(4) and 2929.41(A), which were held unconstitutional in [Foster.]” State v. 

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, at paragraph two of the syllabus. 

{¶111} Accordingly, we overrule Abdi’s ninth assignment of error. 
Athens App. No. 09CA35 33 

XI 

{¶112} In conclusion, we sustain Abdi’s first assignment of error and overrule all 

others. The judgment of the trial court is reversed in part and affirmed in part. We 

remand this cause to the trial court to consider (1) whether Abdi committed felony 

murder and aggravated robbery separately or (2) whether he committed the crimes with 

a separate animus. 

 JUDGMENT REVERSED, IN PART, 

 AND AFFIRMED, IN PART, 

 AND CAUSE REMANDED. 
Athens App. No. 09CA35 34 

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED, IN PART, AFFIRMED, IN 

PART, AND THIS CAUSE BE REMANDED to the trial court for further proceedings 

consistent with the opinion. Appellant and Appellee shall pay equally 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 Athens 

County Court of Common Pleas 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. Exceptions. 

 McFarland, J.: Concurs in Judgment and Opinion. 

 Harsha, P.J.: Concurs in Judgment and Opinion as to Assignments of Error II, 

 III, V – IX; Concurs in Judgment Only as to Assignments of Error 

 I and IV. 

 

For the Court 

BY: 

 Roger L. Kline, 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.
Athens App. No. 09CA35 35