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Portage County attempted rape conviction vacated

Legal News Reporter

Published: December 5, 2019

A Portage County man’s attempted rape conviction was based on insufficient evidence and must be vacated.
Therefore, the trial court must resentence Naim A. Habeeb-Ullah on only of the remaining counts of gross sexual imposition or attempted sexual battery, the 11th District Court of Appeals recently ruled.
Habeeb-Ullah and K.H. were married in August 2005. At the time of the marriage, K.H. already had a son, D.D., and a daughter, C.M. During the marriage, appellant and K.H. had one son, E.H.
In January 2008, the family moved from Akron to Kent, and then back to Summit County in 2012. They separated in 2015.
Case summary indicates that on Jan. 4, 2018, C.M. and her mother were having a discussion regarding some troubling behavior D.D. had been exhibiting. K.H. indicated that D.D. had a rough life and this could explain his behavior. This angered C.M., causing her to tell her mother she had been through rough things as well; she simply never discussed them with anyone.
C.M. then proceeded to tell her mother about two events that occurred between her and Habeeb-Ullah.
The first, in 2010, was when she was 10-years-old. C.M. stated she woke up and Habeeb-Ullah was sitting at the end of her bed. The child asked appellant what he was doing. He responded he looked into her room, noticed what she was wearing (pajama shorts and a tank top), and could not help but enter the room to look at her. C.M. asked appellant to leave, which he did. Nothing further happened.
Then, later that year, C.M. said she had been playing outside and was about to take a shower. But first, she went downstairs to the laundry room wearing a shirt and underwear. She was unaware that Habeeb-Ullah was sitting in the living room in the dark. He then pulled her into the living room and repeatedly stated “let me show you something,” in a “low, eerie, * * * kind of seductive” voice, C.M. testified.
C.M. said she was placed on the couch, and he started “prying at [her] vagina, like poking at it and touching around it” over her underwear for approximately a minute. C.M. said she told him “that wasn’t okay,” and to stop. He stopped and begged C.M. not to tell anyone, and there were no other allegations of abuse.
C.M. said she waited more than eight years to disclose the incidences because she didn’t want her younger brother to grow up without a father. K.H. reported C.M.’s statements to the Kent police department. During an interview with officers, appellant admitted he recalled the circumstances of the event described by C.M. but disputed he touched the child. Instead, he stated C.M. touched herself as he watched and, afterwards, C.M. begged him not to tell anyone.
After a jury trial in 2018, Habeeb-Ullah was found guilty of GSI, attempted rape and attempted sexual battery. The parties agreed that all counts merged for purposes of sentencing. The trial court nevertheless ordered him to serve five years for GSI; an indefinite term of five to 25 years for attempted rape; and five years for attempted sexual battery. Each sentence was ordered to run concurrently. He was also labeled a Tier III sex offender.
On appeal, Habeeb-Ullah argued there was insufficient evidence to support the attempted rape conviction because C.M. testified he touched her over the underwear and that his fingers did not enter her vagina. The state alleged there was sufficient evidence to support the conviction because C.M. testified appellant was “prying” and “poking” at her vagina while speaking in a low-seductive voice. The state maintains that such actions constitute a substantial step towards rape.
Appellate Judge Cynthia Westcott Rice noted that “attempted rape requires that the actor (1) intend to compel submission to sexual conduct by force or threat, and (2) commit some act that “‘convincingly demonstrate[s]”’ such intent.”
In State v. Davis, (1996-Ohio- St.3d 107, 114), the victim was seen pushing the defendant while located inside the defendant’s vehicle shortly prior to being shot; shortly thereafter, the victim was found nude on the side of the road and the forensic evidence showed there were possible finger marks on her thigh. In Davis, the Supreme Court concluded there was insufficient evidence to support a conviction for attempted rape “based solely on evidence that he removed the victim’s clothing. There must be evidence indicating purpose to commit rape instead of some other sex offense, such as gross sexual imposition.”
Rice wrote that although “poking” and/or “prying” C.M.’s vaginal area outside her underwear could amount to a substantial step toward the commission of rape, appellant could not be convicted of the offense solely on this evidence.
“C.M.’s testimony relating to appellant’s actions and voice tone would support the conclusion that he was engaging in sexual contact during the incident; they do not, however, demonstrate a substantial step towards committing sexual conduct,” she added. “Moreover, the state’s claim that the only reason appellant stopped short of raping the child is because C.M. took positive steps to stop him is speculative. While it may be true appellant stopped due to C.M.’s affirmative acts, this is not affirmative evidence he took substantial steps toward the commission of rape; rather, it simply implies appellant may have persisted engaging in sexual contact with C.M. had she not been proactive in stopping him.
“Because there was no evidence adduced that appellant took a substantial step to commit sexual conduct, i.e., some evidence that his specific intent was to insert some body part or object into the vaginal canal or anal opening of C.M., there was insufficient evidence to support the conviction for attempted rape.”
Appellate judges Timothy P. Cannon and Mary Jane Trapp concurred. The case is cited State v. Habeeb-Ullah, 2019-Ohio-4517.