[Cite as State v. Abouelhana , 2021-Ohio-91.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO Appellee

v. HASSAN ABOUELHANA Appellant C.A. No. 19CA011509

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 17CR096480
DECISION AND JOURNAL ENTRY Dated: January 19, 2021

PER CURIAM. {¶1} Defendant-Appellant H assan Abouelhana appeals from the judgment of the Lorain County Court of Common Pleas. Thi s Court reverses and remands the matter for proceedings consistent with this decision.
I. {¶2} In July 2017, Abouelhana was indicted on two counts of possessi on of drugs, one count of obstructing official business, and one count of posses sion of drug paraphernalia. The matter proceeded to a jury trial, at which the jury found Aboue lhana guilty of all counts. {¶3} Abouelhana then filed a motion for a new trial pursuant to Crim .R. 33(A)(1). In the motion, Abouelhana argued that he was prevented from having a fair trial because English is not his primary language. Abouelh ana asserted that he required an Arabic interpreter in order to fully understand and participate in the proceedings. In so doi ng, Abouelhana cited to Sup.R. 88(A). The motion was supplemented by the report of an English-Arabic translator-interpreter. The State2 opposed the motion. A hearing was held on the motion at which the interpreter and an acquaintance of Abouel hana’s testified. {¶4} The trial court denied the mo tion, noting that neither Abouelha na nor his attorney requested an interpreter and that at no time during the proceed ings did the trial court conclude that Abouelhana was limited in his communication. The trial court d id not reference the testimony of the witnesses at the hearing in its judgment entry. The trial court then sente nced Abouelhana. {¶5} Abouelhana has appealed, raising two assignments of error for o ur review.
II. ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN DENYING APPELLANT A NEW TRIAL BASED UPON THE FACT THAT APPELLANT WAS DENIED A FAIR TRIAL SINCE THE COURT FAILED TO INQUIRE OF APPELLANT REGARDING HIS NEED OF THE SERVICES OF AN INTERPRETER. {¶6} Abouelhana argues in his first assignment of error that the tri al court erred in denying his motion for a new trial. He argues that in order to have a fair trial he required an Arabic interpreter to fully understand a nd participate in the proceedi ngs. Abouelhana points out that he presented two witnesses at the hearing on the motion for new tr ial who offered evidence demonstrating that Abouelhana required an interpreter. {¶7} “A trial court’s order ruling on a motion for new trial is revi ewed for an abuse of discretion.” State v. Little , 9th Dist. Lorain No. 17CA011210, 2018-Ohio-5267, ¶ 7. Pursua nt to Crim.R. 33(A), “[a] new trial may be granted on motion of the d efendant for any of [several] causes affecting materially his substantial rights[.]” This includes an “[i]rregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from havi ng a fair trial[.]” Crim.R. 3 3(A)(1). {¶8} Sup.R. 88(A) provides that:3 A court shall appoint a foreign language interpreter in a case or court function in either of the follo wing situations: (1) A party or witness who is limited English proficient or non -English speaking requests a foreign language interpreter and the court determine s the services of the interpreter are necessary for t he meaningful participation of t he party or witness; (2) Absent a request from a party or witness for a foreign lang uage interpreter, the court concludes the party or witness is limited English profici ent or non-English speaking and determines the services of the interpreter are nec essary for the meaningful participation of the party or witness. In addition, R.C. 2311.14(A)(1) states that, “[w]henever becaus e of a hearing, speech, or other impairment a party to or witness in a legal proceeding cannot r eadily understand or communicate, the court shall appoi nt a qualified interpr eter to assist such person.” {¶9} At the time of trial, Abouelhana was 62 years old and had resid ed in Elyria for 40 years and owned a used car dealership for 35 years. In his mot ion for a new trial, Abouelhana asserted that he moved from Egypt to the United States when he was 21 years old. While Abouelhana speaks English, it is not his primary language, whic h is Arabic. {¶10} During his trial testimony, even from the transcript, it is evi dent that Abouelhana was often difficult to understand and that he frequently spoke in what could be characterized as broken English. Abouelhana also had difficulty understanding s everal questions. Abouelhana’s counsel, as well at the prosecuto r, sometimes had to reword or re-ask questions in order for Abouelhana to give an answer that was responsive to the questio n. Abouelhana’s counsel described Abouelhana’s accent as being “different” and as being “very, very thick[.]” {¶11} At the hearing on the motion for a new trial, the certified Eng lish-Arabic interpreter who prepared the report accompanying Abouelhana’s motion for a new trial testified. The interpreter met with Abouelhana for two hours and reviewed the transcript of Abouelhana’s testimony. The interpreter indicated that it was his opinion t hat Abouelhana’s understanding of the English language was not enough to fully comprehend or resp ond to the questions by the judge4 and the prosecutor. He maintaine d that such would lead to majo r misunderstandings and major changes to the outcome of the case. The interpreter averred th at Abouelhana would have benefited from the services of an interpreter during trial and that he be lieved that Abouelhana misunderstood some of the questions by both his own counsel and the prosecuti on. The interpreter went on to conclude that Abouelhana was in n eed of an interpreter during b oth the trial and the pretrial process. The interpreter mainta ined that Abouelhana did not ap preciate the difference between a misdemeanor and a felony. The i nterpreter indicated that, base d on Abouelhana’s level of understanding of English, he mig ht have given the opposite resp onse to a question than that which he intended. He asserted that such an occurrence could have ch anged the outcome of the case for Abouelhana. {¶12} In addition, Abouelhana’s longtime acquaintance testified on Ab ouelhana’s behalf. The acquaintance was retired from the Ohio State Parole Authori ty and asserted that he had known Abouelhana for 40 years. Despite knowing Abouelhana for decade s, the acquaintance maintained that he only understood about 60% of what Abouelhana said. The acquaintance averred that Abouelhana does not communicate w ith customers at the car deale rship because of his language barrier. Most of the time, his girlfriend would help the custo mers. When Abouelhana would go to auctions to buy cars, he would always have someone go with h im. The acquaintance testified that he has never known Abouelhana to be alone if he was transa cting business. {¶13} On appeal, the State maintain s that Abouelhana’s misunderstandi ng of the questions posed to him was remedi ed by simple rephrasing, there by evidencing that the services of an interpreter were not necessary. However, the State fails to acknowledge that it used Abouelhana’s comprehension difficulties against him during clos ing argument; in its closing argument, the State maintained t hat Abouelhana was not answerin g questions and being evasive.5 However, when the testimony is considered in context, it is equ ally plausible that, instead, Abouelhana had difficulty understanding and responding to the q uestions. {¶14} In the trial court’s entry ruling on the motion, the trial cou rt correctly pointed out that neither Abouelhana nor his c ounsel requested an interprete r at any point prior to the filing of the motion for a new trial. The trial court further noted that at no point did the trial court conclude that Abouelhana was limited in his communication. However, the re is also nothing in the record which evidences that the trial court inquired about Abouelhana’ s English proficiency, which would be important in determining wh ether Abouelhana required an inte rpreter. In other words, the trial court failed to make a sufficient open-ended inquiry to even as sess whether an interpreter was needed. Moreover, the evidence before the trial court at the h earing on the motion for a new trial demonstrated that Abouelhana did require an interpreter during the earlier proceedings. Both witnesses provided te stimony that would support that Abouelhana ’s comprehension of English was inadequate. The trial court failed to mention this testimo ny in its entry. Thus, it is not clear if the trial court even gave it any consideration. Accordingly , we can only conclude that the trial court abused its discretion in denying Abouelhana’s motion for a new trial as Abouelhana demonstrated he was de nied a fair trial. {¶15} Abouelhana’s first assignme nt of error is sustained.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL[.] {¶16} Abouelhana argues in his second assignment of error that he was denied the effective assistance of trial c ounsel. However, in light of th is Court’s resolution of Abouelhana’s first assignment of error, this assignment of error has been re ndered moot and we decline to address it. See App.R. 12(A)(1)(c).6

III. {¶17} Abouelhana’s first assignment of error is sustained and his sec ond assignment of error has been rendered moot. The judgment of the Lorain Count y Court of Common Pleas is reversed, and this matter is rem anded for proceedings consisten t with this decision. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

CARR, P. J. HENSAL, J. CONCUR.7

SCHAFER, J. DISSENTING. {¶18} Because I do not agree that the trial court abused its discreti on by denying Abouelhana’s motion for a new tria l, I respectfully dissent. {¶19} In his merit brief, Abouelhana arg ues he was prevented from hav ing a fair trial because English is not his primary language. Abouelhana conten ds he should have been provided an Arabic language translator to assist him in understanding th e proceedings, questions, and testimony. In concluding that Abouelhana is entitled to a new trial, the majority states that there is “nothing in the record which e vidences that the trial court inquired about Abouelhana’s English proficiency, which would be important in determining whether Ab ouelhana required an interpreter.” “In other words,” the majority states, “the tria l court failed to make a sufficient openended inquiry to even assess whet her an interpreter was needed. ” Thus, the majority erroneously implies that the trial court was obligated to make such an inqu iry to assess whether Abouelhana— a then-62-year-old man who had resided in Ohio for 40 years and owned and operated a car dealership for the past 35 years—needed an interpreter despite no indication from Abouelhana or his retained counsel until after trial to suggest that he had any need for an interpreter for m eaningful participation in t he proceedings. {¶20} As authority in support of his argument, Abouelhana cites to Ru le 88 of the Rules of Superintendence for the Cour ts of Ohio. Pursuant to Sup.R. 88(A), a court shall appoint a foreign language interpreter in either of two situations: (1) upon request of a limited-Englishproficient or non-English-speakin g party or witness and a deter mination by the court that the services of an interpreter are necessary for meaningful partici pation; or (2) when the court independently determines the services of a foreign language int erpreter are necessary for the8 meaningful participation of a party or witness. Thus, in the a bsence of a request by a party or witness, or a conclusion by the c ourt that a party or witness h as limited English proficiency or speaking ability, Sup.R. 88(A) doe s not require the appointment of an interpreter. See State v. Marquez , 11th Dist. Ashtabula No. 2007-A-0085, 2008-Ohio-5324, ¶ 36 (“ Absent a positive request [by a party] for an interpreter or, alternatively, some clear indicia that [an] alleged language barrier impaired [a party’s] ability to adequately understand o r communicate in English, we are unable to conclude the court erred in failing to appoint an int erpreter.”). {¶21} In his brief on appeal, Abouelhana does not suggest that the tr ial court erred when it concluded that neither of these two scenarios applied in his case. As stated above, the rule applies to situations where a defendant requests an interpreter , or the court determines the need for one. A review of the record reflects that the subject of an in terpreter was not raised prior to the filing of the motion for a new trial. The trial court interact ed with Abouelhana throughout the pretrial proceedings and the three-day trial but did not observ e any issue with Abouelhana’s ability to communicate in English. Nor did Abouelhana or his trial cou nsel raise any issue regarding his ability to understand or express himself in English. In his mo tion for a new trial, Abouelhana conceded that he “did not addres s the issue of needing an inter preter[,]” and stated that he did not do so because “he was embarrassed [and] he believed if he made the request he would be perceived as not educated or stupid.” Alt hough he was free to raise any language and communication issues at any point in the proceedings, Abouelhana failed to do so unt il after the jury returned a verdict that was not in his favor. {¶22} Abouelhana’s reliance on Sup.R. 88 is misplaced, and the majori ty fails to recognize that Sup.R. 88(A) does not require the appointment of a foreign language interpreter where, as here, the party does not request an interpreter, and the trial court does not perceive the9 party as being limited in English proficiency or the ability to communicate in English. The trial court did not have the occasion to issue an order or make a rul ing concerning the need for an interpreter because the issue of an interpreter was not raised until after trial concluded and the jury returned a verdict finding Abouelhana guilty on all four counts . Consequently, I would conclude that Abouelhana did not show the t rial court “abuse[d its] disc retion” nor has Abouelhana pointed to “any order or ruling of the court” which prevented him from having a fair trial. Crim.R. 33(A)(1). {¶23} Still, the majority concludes that “the evidence before the tri al court at the hearing on the motion for a new trial de monstrated that Abouelhana did require an interpreter during the earlier proceedings.” I disagree with this assessment of the e vidence presented in support of Abouelhana’s motion for a new trial. First, I do not believe t he evidence supports the majority’s criticism of the State for “fail[ ing] to acknowledge that it us ed Abouelhana’s comprehension difficulties against him during closing argument [when,] in its closing argument, the State maintained that Abouelhana was not answering questions and bein g evasive.” Second, the evidence does not support a finding that any “[i]rregularity in the proceedings” prevented Abouelhana from having a fai r trial. Crim.R. 33(A)(1). {¶24} The record does not support Abouelhana’s contention that his a lleged “lack of complete understanding of Englis h” meant that he “was not able to completely understand the nature of the charges against him, plea offers, and the meaning of the criminal proceedings.” Abouelhana acknowledges on appeal that he gave no indication to the trial court that he was experiencing any difficulty communicating in English but assert s that “it is obvious that his English communications skills are troubling” and that “the [c]o urt should have offered him the services of an interpreter.” Nonetheless, the record reflects that Abouelhana, who moved to the10 United States from Egypt as a young man, communicates in Englis h. Although Arabic is Abouelhana’s primary language, he speaks English, albeit with a “thick accent.” During his testimony at trial, Abouelhana stated that he was 62 years old and had resided in Elyria, Ohio for 40 years. He testified that he has owned and operated a busine ss—a car dealership—for the past 35 years. {¶25} In support of his arguments on appeal, Abouelhana references th e opinion of Mr. Koussa, the certified English-Ar abic interpreter, as expressed in his report attached to the motion for a new trial and his testimony at the hearing. Abouelhana a sserts that, after the trial, he met with Mr. Koussa for two hours and that Mr. Koussa reviewed a tr anscript of Abouelhana’s testimony during trial. On this basis, he contends, Mr. Koussa determined Abouelhana’s “understanding of the English lang uage * * * is not enough to r eally comprehend or respond to answers by the judge or prosecu tor” and he “would have benefitt ed from the services of an interpreter during his trial.” Abouelhana also asserts that Mr . Koussa determined that he needed the assistance of an interpreter during the pretrial process as well. {¶26} Additionally, Abouelhana cites to the testimony of his longtime acquaintance, Mr. McCallister, during the hearing on his motion for a new trial. Abouelhana notes that Mr. McCallister testif ied he has known Abouelhana 40 years and indi cated that Abouelhana “has a language barrier and that 60 percent of the time he cannot unde rstand [him].” Further, Mr. McCallister testified that he ha s “never known [Abouelhana] to conduct a business transaction without someone to assist him.” {¶27} I recognize that, “‘[i]n a criminal case the defendant is entit led to hear the proceedings in a language he can understand.’” State v. Razo , 9th Dist. Lorain No. 03CA008263, 2004-Ohio-3405, ¶ 4, quoting State v. Pina , 49 Ohio App.2d 394, 399 (2d Dist.1975). Pursuant to11 R.C. 2311.14(A)(1), “[w]henever because of a hearing, speech, o r other impairment a party to or witness in a legal proceeding cannot readily understand or comm unicate, the court shall appoint a qualified interpreter to assist such person.” Additionally, th e purpose underlying Sup.R. 88 is to ensure that an interpreter be a ppointed so that a defendant may be afforded the opportunity to meaningfully participate in the proceedings. “Nevertheless, th e trial court has the discretion to determine whether the defendant r equires an interpreter for ass istance.” Razo at ¶ 4, citing State
v. Saah , 67 Ohio App.3d 86, 95 (8th Dist.1990). {¶28} In support of his argument, Abouelhana makes reference to porti ons of the trial transcript which, he believes, s how a “lack of complete underst anding of English” and difficulty understanding many of the questions from the prosecutor. Yet, “[a] trial court properly exercises its discretion in refusing to a ppoint an interpreter where the defendant has a ‘functional mastery of the English language’ and where misunderstandings during testim ony may be remedied by a ‘simple rephrasing of the question.’” State v. Abdugheneima , 6th Dist. Lucas No. L-17-1013, 2017-Ohio-8423, ¶ 18, quoting Saah at 95. Per my review of the record, and as the State has argued in its brief, any instan ce where Abouelhana did not init ially understand a question was quickly remedied by a simple rephrasing of the question. Even “[a]n imperfect grasp of the English language may be sufficient as long as the defendant has the abi lity to understand and communicate in English.’” State v. Flores , 10th Dist. Franklin No. 19AP-405, 2020-Ohio-593, ¶ 11, quotin g State v. G.C ., 10th Dist. Franklin No. 15A P-536, 2016-Ohio-717, ¶ 17. {¶29} There is no indication that Aboue lhana was unable to understand or to express himself in English during the proceedings. Beyond speculating that he might have had some difficulty understanding or being understood during the proceed ings, Abouelhana has not shown that he was precluded from meani ngful participation in the proc eedings in the absence of an12 interpreter. See State v. Mendoza , 11th Dist. Ashtabula No. 89-A-1425, 1989 WL 142790, *2-3 (Nov. 24, 1989) (“[If] [t]here is no showing that appellant was unable to effectively comprehend or communicate in English[,]” he “fail[s] to show that he, in f act, needed an interp reter or that the trial court abused its discretion.”); see also Abdugheneima , 2017-Ohio-8423 at ¶ 21 (holding that a defendant’s “ability to communicate in English was sufficient to allow him to meaningfully participate at trial, such that appointment of a t ranslator was not required.”). {¶30} Abouelhana’s contention that the trial court erred in failing t o perceive a need for an interpreter to assist him is directly at odds with the trial court’s finding that, at no time during the pretrial events or the trial , did it find that Abouelhana w as limited in his communication. To the extent that Abouelhana now r elies on Mr. Koussa’s opinion t hat Abouelhana might have benefitted from an interpreter t hroughout the proceedings, the relevant standard i s not whether, in hindsight, it appears that the assistance of an interpreter may have been beneficial. Abouelhana has not shown that the trial court abused its discretion in ove rruling his motion for new trial on the grounds that the trial court s hould have perceived a need for a n interpreter. {¶31} The majority also faults the trial court for failing to mention in its entry the testimony of the two witnesses at the hearing on the motion for a new trial. The majority states “it is not clear if the trial court even gave it any consideration. ” Regardless of whether the trial court, in its journal entry, failed to engage in a thorough discussion on the court’s view of evidence presented at the hearing on the motion for a new trial, I would conclude that Abouelhana has failed to demonstrate any “[i]rregulari ty in the proceedings, or in an y order or ruling of the court,” or an abuse of the court’s discretion th at prevented him from having a fair trial. Crim.R. 33(A)(1). Abouelhana has not demonstrated t hat the trial court’s denial o f the motion for a new trial was in any way unreasonable, arbitrary, or unconscionable. Therefore, I would conclude that the trial13

court acted within its discretion when it denied Abouelhana’s m otion for a new trial and overrule the first assignment of error. {¶32} Regarding Abouelhana’s second assignment of error, I would conc lude that he failed to show that tr ial counsel’s performance was deficient i n his failure to reque st an interpreter. Accordingly, I would also overrule Abouelhana’s second assignme nt of error and affirm the decision of the trial court deny ing his motion for a new trial.

APPEARANCES: JACK W. BRADLEY, Attorney at Law, for Appellant. J. D. TOMLINSON, Prosecuting Atto rney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.