[Cite as State v. Jali , 2020-Ohio-208.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. ABDALLA S. JALI Defendant-Appellant : : : : : : : : : : Appellate Case No. 28294

Trial Court Case No. 2018-CRB-3885 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 24th day of January, 2020.

. . . . . . . . . . . AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant Prosecuting Att orney, City of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, O hio 45402 Attorney for Plaintiff-Appellee ADAM JAMES STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue , Suite 109, Dayton, Ohio 45429 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Defendant/Appellant, Abdalla S. Jali, appeals from his convicti on on one count of solicitation following a jury trial in Dayton Municipa l Court. Jali contends that his conviction was based on insufficient evidence because the polic e entrapped him into committing the offense. He also argues that the conviction was against the manifest weight of the evidence. Finally, Jali contends that the trial court erred in failing to allow

him to introduce Defendant's Exhibit A into evidence. {¶ 2} For the reasons that following, Jali’s assignments of error are without merit and are overruled. Accordingly, the judgment of the trial cour t will be affirmed.

I. Facts and Course of Proceedings {¶ 3} On June 29, 2018, a complaint was filed in Dayton Municipal Cou rt, charging Abdalla Jali with solicitation in violation of R.C. 2907.24(A)( 1), and loitering in violation of R.C. 2907.241(A)(2). Both crimes were third degree misdemeanor s. The charges against Jali arose from a June 28, 2018 prostitution sting oper ation that was conducted in the 900 block of North Main Street in Dayton, Ohio. The are a in question is commercial and residential and is known as a high prostitution area. Previously, citizens and area businesses had made several complaints to the police a bout heavy prostitution. {¶ 4} On June 28, 2018, Dayton Police Officer Alaina Hammond was work ing undercover as a decoy in the street crimes unit. Hammond had r eceived training from other police officers on how to act as a prostitute and had als o observed prostitutes. Essentially, Hammond was to make eye contact with drivers or wi th people who walked by. She was also to walk back and forth in a specific area and speak with others if they spoke to her.-3- {¶ 5} Hammond arrived at the scene at about 10:00 a.m. Also present was Dayton Police Detective Mistan Bailey who was acting as an inte rviewing detective for this operation. Bailey was located about a block away and moni tored interactions between Hammond and potential subjects, for safety purposes. A fter each interaction, Bailey contacted the subjects and interviewed them about what h ad happened. The

interactions themselves were not recorded. {¶ 6} At around 3:30 p.m., Hammond encountered Jali at Vista Place on North Main Street, at the intersection of Warder Street. When Hammon d first noticed Jali, he was walking toward her on foot. Jali called out a greeting to Hammond, and she greeted him back, saying, “Hi, how are you?” At this point, Hammond wa s maintaining her typical activity of walking back and forth and also looking at vehicles . Hammond was standing on the northwest corner of North Main and Warder Street, and Ja li continued to walk toward her. Jali then sat down on a bench at a nearby bus stop

. {¶ 7} According to Hammond, Jali sat back on the bench in an inviting manner, leaning back, with a smile on his face. Jali had his arm up an d he patted the bench next to him, saying, “Come here - I can't hear you.” At that point, Hammond crossed Warder

Street and sat down next to Jali. Jali asked Hammond what her name was, and she

introduced herself and asked for his name. Hammond believed Ja li had introduced himself as Dali, but he corrected her and said, “No, Jali.” Tr anscript of Proceedings (“Tr.), p. 58. {¶ 8} Jali asked Hammond what she was doing, and she said, “I was jus t hanging

out.” Id . When Jali asked her what she did, she repeated that she was just chilling. At that point, Jali asked if she had a boyfriend. According to Ha mmond, people often ask if-4- she has a boyfriend when she is being solicited. When Hammond said that she did not have a boyfriend, Jali asked if she wanted to go with him. Bec ause that phrase could have several meanings, Hammond asked Jali what he meant. Jali then sort of smiled and said, “You know what I want.” Id . at p. 60. {¶ 9} At that point, Hammond asked Jali directly what he wanted, and he very clearly replied, “Sex I was thinking.” Id . Hammond then said, “OK, how does twenty

dollars sound?” Id . In response, Jali said, “Not too much.” Id . As Jali said this, he was kind of looking away, so Hammond asked Jali if he had said that was too much. Jali then said, “No that's not too much.” Id

. {¶ 10} Because Jali had provided Hammond with what she needed for an a rrest, she told him that she was going to gather her things and come b ack. Jali said “OK,” and Hammond then gave the predetermined signal to her team to arres t Jali. When an arrest is made, the arrestee is moved to another area and the police c ontinue with operations. {¶ 11} After the signal was given, marked units stopped Jali and he wa s moved to a separate location so that Detective Bailey could speak with h im. When Bailey attempted to give Jali Miranda warnings, he told her that he needed an interpreter. One was not available, but Jali was able to provide Bailey with som e basic information like his name, date of birth, and address. {¶ 12} Jali was a refugee from Sudan and had lived in the United State s for five years. He testified at trial and had an interpreter. Jali said that he did not speak English when he arrived in the United States, but did speak some Englis h by the time of trial. However, he usually spoke Arabic. {¶ 13} According to Jali, he left his home on the day of the arrest an d was on the-5- way to a garage where his car was being fixed. To get there, h e needed to take the bus. He met a woman (Hammond) near the bus stop, who made eye contac t when he was sitting on a bench at the bus stop. Hammond came closer and wa s smiling at him and batting her eyelashes. After he said hi, and she responded, sh e came and sat next to him, flirting and touching her hair. Jali claimed that Hammond was talking too much and he could not understand what she was saying. {¶ 14} According to Jali, Hammond asked if he had a girlfriend and he said no. He then asked if she had a boyfriend. Jali stated that he did not even know what a prostitute was and had never encountered prostitutes before. H owever, he admitted that he did ask Hammond if she would be interested or willing to hav e sex. {¶ 15} Jali denied talking about money or trying to pay Hammond. He t estified that Hammond mentioned 20 pounds 1 , and said he did not know what she meant. Jali also stated that Hammond touched her cheek, and he did not know if she meant that he

should kiss her cheek. Additionally, Jali testified that he told Hammond that “twen ty” was too much, as he thought she meant 20 kisses. Jali further said that he never tried to give Hammond any money. He stated that he was hoping “she w ould just have sex with [him], as people do.” Tr. at p. 96. {¶ 16} Hammond then said she was going to get something, and Jali thou ght if the bus showed up, he would just leave. Around two minutes later, the police came and

arrested him. {¶ 17} As noted, after his arrest, Jali was charged with one count of solicitation and one count of loitering. The trial court subsequently granted J ali's motion to preclude the

1 Jali referenced pounds, rather than dollars, during his testimo ny.-6- jury from hearing a statement another officer made at the scene about Jali having had a prior incident of picking up a prostitute. The court also gran ted the State's motion to present evidence of prior police reports and a 911 call by Jali . Specifically, the court held that evidence about these incidents could be presented if Jali raised his language proficiency as a defense or when examining a State witness. {¶ 18} The jury trial was delayed a number of times, but was eventuall y held on January 10, 2019, with interpreters present. At trial, the Sta te presented testimony from Bailey and Hammond, and a rebuttal witness. Jali testified on his own behalf. The jury then found Jali guilty of solicit ing but not guilty of loiterin g. Ultimately, the trial court sentenced Jali to 60 days in jail, with 60 days suspended, one- year of probation, with the first six months being supervised and the remaining six months being non-reporting, 30 hours of community service, HIV testing, and costs and fines to taling $1,115. {¶ 19} Jali now appeals from his conviction.

II. Sufficiency and Manifest Weight of the Evidence {¶ 20} Jali's First Assignment o f Error states that:

The Conviction for Solicitation Was Without Sufficient Evidence Because the Officer Entrapped Mr. Jali into the Solicitation Ch arge. {¶ 21} Under this assignment of error, Jali contends that his convicti on was based on insufficient evidence and was against the manifest weight of the evidence because he

was induced to solicit the undercover officer. {¶ 22} “A person is not guilty of a criminal offense unless (1) the pe rson engaged in conduct that a section of the Revised Code prohibits and (2) acts with the requisite-7- degree of culpability for each el ement as to which a culpable m ental state is specified by the section defining the offense.” State v. West , 2d Dist. Montgomery No. 22966, 2009- Ohio-6270, ¶ 17, citing R.C. 2901.21(A). “The burden of proof for all elements of the offense, beyond a reasonable doubt, is on the prosecution.” Id ., citing R.C. 2901.05(A). {¶ 23} “A sufficiency of the evidence argument disputes whether the St ate has presented adequate evidence on each element of the offense to a llow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). In this situation, we apply the test from State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), which states that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence adm itted 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 li ght most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doub t. (Citation omitted). Id . at paragraph two of the syllabus. {¶ 24} Contrastingly, “[a] weight of the evidence argument challenges the believability of the evidence and asks which of the competing i nferences suggested by the evidence is more believable or persuasive.” (Citation omit ted.) Wilson at ¶ 12. In this situation, a court reviews “ ‘the entire record, weighs th e evidence and all reasonable inferences, considers the credibility of witnesses and determin es whether in resolving-8- conflicts in the evidence, the jury clearly lost its way and cr eated such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised on ly in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

Accord State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. “The fact that the evidence is subject to different interpretat ions does not render the conviction against the manifest weight of the evidence.” State v. Adams , 2d Dist. Greene Nos. 2013-CA-61 and 2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14. {¶ 25} “Although sufficiency and manifest weight are different legal c oncepts, manifest weight may subsume sufficiency in conducting the analy sis; that is, a finding that a conviction is supported by the manifest weight of the evidenc e necessarily includes a finding of sufficiency.” (Citations omitted.) State v. McCrary , 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush , 2017-Ohio-696, 85 N.E.3d 501, ¶ 58 (2d Dist.). As a result, “a determination that a con viction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.) State v. Braxton , 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15. {¶ 26} Jali was convicted of soliciting under R.C. 2907.24(A)(1), whic h provides that “No person shall solicit another who is eighteen years of age or older to engage with such other person in sexual activity for hire.” “ ‘Sexual acti vity for hire’ means an implicit or explicit agreement to provide sexual activity in exchange fo r anything of value paid to the person engaging in such sexual activity, to any person traf ficking that person, or to any person associated with either such person.” R.C. 2907.24(E )(2). “ ‘Solicit’ is-9- defined as ‘to entice, urge, lure or ask.’ ” State v. Swann , 142 Ohio App.3d 88, 89, 753 N.E.2d 984 (1st Dist.2001), quoting 4 Ohio Jury Instructions Se ction 507.24 (1997). {¶ 27} “To establish a violation of R.C. 2907.24(A)(1), the State must prove (1) the accused's solicitation of another, (2) to engage in sexual acti vity, (3) for hire.” State v.

Short , 2d Dist. Montgomery No. 27192, 2017-Ohio-7200, ¶ 28, citing West , 2d Dist. Montgomery No. 22966, 2009-Ohio-6270, at ¶ 18. {¶ 28} In support of his argument, Jali has relied on Swann and State v. Howard , 7 Ohio Misc.2d 45, 455 N.E.2d 29 (M.C.1983). In Howard , the court noted that “entrapment occurs when the whole criminal idea and purpose ori ginates with the police,

not the defendant.” Id . at 45. The court also stated that “in a soliciting case, the crime

is

in the asking.” (Emphasis sic.) Id

. Accord Swann at 90. {¶ 29} In West , we disagreed with Swann's reasoning that “to prove a violation of R.C. 2907.24 the State has the burden to demonstrate that a per son accused of soliciting prostitution not only offered to engage in sexual activity for hire, but initiated an offer that was complete in those terms.” West at ¶ 21. We commented that: The conduct that R.C. 2907.24 prohibits is the offer. Whether it is done in the form of an initial offer, a counter offer, or in re sponse to an open inquiry, is immaterial. Furthermore, whether the criminal idea or purpose instead originated with the other person implicates the affirma tive defense of entrapment and the related issue of the accused's predisposi tion, which are evidentiary issues to be resolved after proof of solicitati on is offered. [The defendant's] request to be paid $20 demonstrates that her offer to engage in sexual activity was to do so “for hire.”-10- Id. at ¶ 22. {¶ 30} In the case before us, construing the evidence in favor of the State, Jali

made the initial contact with Hammond. Jali also asked Hammond to come sit on the bench, and asked her if she had a boyfriend, which is a common approach in solicitation. When Hammond said no, Jali asked if she wanted to “go with him. ” After Hammond asked what he meant, Jali smiled and said, “You know what I wan t.” He then clarified that he wanted sex. When Hammond asked if 20 dollars was ok, J ali twice confirmed that 20 was not too much. Although Hammond “named the specific cost” for sex, it is clear that Jali was aware that “monetary payment was expected ( for hire).” Short , 2d Dist. Montgomery No. 27192, 2017-Ohio-7200, at ¶ 36. According ly, there was sufficient

evidence to sustain a conviction. {¶ 31} With respect to the manifest weight argument, we note that Jali presented a story at trial different from that of Officer Hammond. Jali testified and claimed he was not fluent in English and did not understand what Hammond meant when she mentioned “twenty.” He did admit that he asked for sex. Notably, the ju ry was entitled to reject Jali’s testimony. {¶ 32} We have said on many occasions that “ ‘[b]ecause the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exe rcise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to wh at extent, to credit the testimony of particular witnesses is within the peculiar compet ence of the factfinder, who

has seen and heard the witness.’ ” Winbush , 2017-Ohio-696, 85 N.E.3d 501, at ¶ 59,-11- quoting State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). {¶ 33} Here, the jury chose not to believe Jali, and we defer to the j ury, which had the best opportunity to observe the witnesses. We also note th at the State presented testimony from a police officer who came to Jali's home in mid- July 2018 (which was shortly after the prostitution complaint was filed). Jali had contacted the police about neighborhood kids throwing sauce and tomatoes all over his vehi cle. When the officer spoke with Jali, Jali did not ask for an interpreter and spoke with the officer in English. The officer testified that while Jali had an accent and his Eng lish was a little bit broken, Jali also could understand what the officer was conveying and r esponded appropriately to the questions he was asked. {¶ 34} In light of the above discussion, the conviction was not agains t the manifest weight of the evidence. As noted, it was also supported by suf ficient evidence. The First Assignment of Error, therefore, is overruled.

III. Alleged Error in Failing to Admit Evidence {¶ 35} Jali's Second Assignment of Error states as follows: The Trial Court Erred in Not Allowing Defendant's Exhibit A int o Evidence. {¶ 36} Under this assignment of error, Jali contends that the trial co urt erred in failing to admit Defendant's Exhibit A, which is a piece of not ebook paper on which Jali wrote down words in Arabic and English. {¶ 37} Jali testified that when he calls the police, sometimes he writ es words out-12- in Arabic and translates what he is going to say into English. In this vein, Jali indicated that he once had to report that his papers were stolen. He ide ntified Exhibit A as a piece of paper showing that when he lost his papers, he wrote down ex actly what he wanted to say and translated it into English. {¶ 38} After testimony had ended, Jali's counsel asked to admit Exhibi t A, but the trial court rejected the request. During discussion of this ex hibit, the State argued that the document was self-serving hearsay, while the defense conten ded that it was relevant to show Jali's actual language abilities and that he was not ly ing about his English skills. Tr. at p. 114. The trial court concluded that there was no nee d for the exhibit, because Jali had testified about his process. Id . at p. 116. {¶ 39} “The admission or exclusion of relevant evidence rests within t he sound

discretion of the trial court.” State v. Sage , 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). We therefore review the trial court's decision for abu se of discretion. An abuse

of discretion indicates a trial court attitude that is arbitrar y, unconscionable, or

unreasonable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). We have often stressed that “[m]ost abuses of discreti on ‘will result in decisions that are simply unreasonable, rather than decisions that are un conscionable or arbitrary.’ ” Kossoudji v. Stamps , 2016-Ohio-7693, 65 N.E.3d 815, ¶ 22, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if the re is no sound reasoning process that would support that decision. It is not enough tha t the reviewing court, were it deciding the issue de novo, would not have found that reason ing process to be persuasive, perhaps in view of countervailing reasoning process es that would support a-13- contrary result.” AAAA Ents. at 161. {¶ 40} Evid.R. 402 provides that “[a]ll relevant evidence is admissibl e,” and

irrelevant evidence is not admissible. Evid.R. 401 defines rel evant evidence as “evidence having any tendency to mak e the existence of any fact that is of consequence to the determination of the action more probable or less probab le than it would be without the evidence.” Under this definition, Exhibit A, which we have reviewed, is only marginally relevant, as it is simply an undated sheet of paper on which Jali wrote a few phrases in English and Arabic, relating to a call he made to th e police about losing his papers. According to Jali, this call was made a few weeks afte r he was arrested for solicitation. It did not relate to the solicitation, nor did i t relate to the incident that a police officer testified about during rebuttal; that incident involved neighborhood children throwing tomatoes and tomato sauce on Jali's car. {¶ 41} Even if we felt the exhibit were of more than marginal relevanc e, Evid.R. 403(B) gives trial courts discretion to exclude relevant eviden ce, “if its probative value is substantially outweighed by considerations of undue delay, or n eedless presentation of

cumulative evidence.” “ ‘Cumulative evidence’ is additional ev idence of the same kind to the same point.” Kroger v. Ryan , 83 Ohio St. 299, 94 N.E. 428 (1911), syllabus. {¶ 42} Here, Jali had already testified about the fact that he wrote d own English and Arabic words when he called the police about losing his pap ers. An undated exhibit showing that he wrote words on a piece of paper was additional evidence about the same point and added nothing to his testimony. Accordingly, the tri al court's decision was not arbitrary or irrational, nor was it based on unsound reasoning. {¶ 43} Accordingly, the Second Assignment of Error is overruled.-14-

III. Conclusion {¶ 44} All of Jali's assignments of error having been overruled, the j udgment of the

trial court is affirmed.

. . . . . . . . . . . . . HALL, J., concurs. DONOVAN, J., dissents: {¶ 45} I dissent. In my view, Howard , 7 Ohio Misc.2d 45, 455 N.E.2d 29, and

Swann , 142 Ohio App.3d 88, 753 N.E.2d 984, dictate a reversal of Jali’s conviction. Jali did not solicit sex for hire. The decoy officer introduced the subject of monetary compensation for sex into the conversation. Jali did not offer money in return for sexual performance. The crime of which Jali was convicted does not pr ohibit acceptance, only entreaty, of sex for hire, as noted in Swann

. Swann at 986. The majority cites Short , 2d Dist. Montgomery No. 27192, 2017-Ohio-7200, but it is distin guishable as it relied in part on a Backpage ad which identified “sex for hire”. I would reverse and vacate the

conviction.

Copies sent to: Amy B. Musto Adam James Stout Hon. Carl Sims Henderson