[Cite as State v. Kamleh, 2012-Ohio-2061.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 97092

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

 ISSAM KAMLEH

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-544087 

BEFORE: Stewart, P.J., Keough, J., and Kilbane, J. 

RELEASED AND JOURNALIZED: May 10, 2012 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Cullen Sweeney 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Oscar E. Albores 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, P.J.: 

{¶1} A jury found defendant-appellant Issam Kamleh guilty of receiving stolen 

property and possession of criminal tools. The state charged that Kamleh engaged in a 

scheme with a retail store employee to exploit a loophole in the retailer’s cell phone 

return policy — the employee would buy a cell phone, use an employee code to 

immediately cancel the contract, but keep the cell phone and then sell it to Kamleh at a 

price substantially below retail value. Kamleh raises eight assignments of error that 

challenge the validity of his arrest, the validity of a warrant used to search his house, the 

sufficiency of the evidence supporting his conviction for receiving stolen property, the 

use of Evid.R. 404(B) evidence, the jury instruction, the effectiveness of trial counsel, 

and the length of his sentence. 

 I 

{¶2} Kamleh filed a two-part motion to suppress evidence: the first part challenged 

whether the police had probable cause to effect his warrantless arrest; the second part 

complained that the police improperly searched his car following the arrest. 

 A 

{¶3} There are three bases for conducting a warrantless arrest: (1) the arrestee has 

committed an offense in a police officer’s presence (Gerstein v. Pugh, 420 U.S. 103, 113, 
95 S.Ct. 854, 43 L.Ed.2d 54); (2) the officer has probable cause to believe that the 

arrestee has committed a felony and that arrest occurs in a public place (United States v. 

Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)); and (3) the officer can 

make a warrantless entry into a home upon probable cause for an arrest and the 

circumstances are “exigent” (Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 

L.Ed.2d 732 (1984)). 

{¶4} The state claimed that Kamleh was arrested on the second ground: that the 

arresting officers had probable cause to believe that Kamleh committed a felony and his 

arrest occurred in a public place. “Probable cause” to arrest exists when an officer is 

aware of facts that would lead a reasonable person to believe that the suspect has 

committed or is committing a crime, however minor. Beck v. Ohio, 379 U.S. 89, 91, 85 

S.Ct. 223, 13 L.Ed.2d 142 (1964). 

 B 

{¶5} During the suppression hearing, the court heard evidence that Wal-Mart 

employed a man named Jonathan Williams in the “connection center” of its electronics 

department to handle cell phone sales. Wal-Mart acted as an intermediary for cell phone 

carriers, meaning that its salespeople handled point of sale cell phone transactions in the 

store and facilitated contracts for those carriers. 

{¶6} Each Wal-Mart connection center received its own “dealer code” that enabled 

any employee of the connection center to cancel cell phone contracts directly with the 

carrier. Ordinarily, cell phone purchasers are given a brief period of time in which to 
cancel new contracts without paying an early termination fee. When a new contract is 

canceled with the carrier, the customer is expected to return the cell phone to Wal-Mart, 

which in turn would return it to the applicable carrier. 

{¶7} Wal-Mart learned that Williams was either purchasing cell phones and using 

his dealer code to cancel the contracts or opening a new cell phone line but not signing a 

contract. In either case, he did not return the cell phone but instead sold them to third 

parties. He escaped detection because Wal-Mart was unaware of the cancellation (that 

being a matter between the carrier and customer) and its inventory continued to show that 

the cell phone had been sold, so the fact that Williams kept the cell phones was consistent 

with its sales data. Had it not been for another employee who alerted Wal-Mart to 

Williams’s actions, Wal-Mart would not have learned of Williams’s scheme until the end 

of the year, when a carrier would issue Wal-Mart a chargeback for any unreturned cell 

phones. 

{¶8} When confronted by Wal-Mart, Williams immediately confessed and 

implicated Kamleh. Williams said that he was selling the unopened cell phones in their 

original packaging to Kamleh, who in turn was selling them overseas. Wal-Mart 

discovered that Williams had done this with at least 20 cell phones, some valued as much 

as $500 apiece. 

{¶9} Williams was charged with theft and agreed to cooperate with the police in 

exchange for a plea bargain. Because Williams’s arrest had caused him to be out of 

contact with Kamleh, the police asked Williams to call Kamleh and reestablish their prior 
relationship. In recorded telephone conversations, Kamleh asked Williams to provide 

him with new iPhones. They agreed to meet for a transaction in which Williams would 

be wired for sound and watched by the police. 

{¶10} Because of time constraints, the police were unable to borrow new iPhones, 

nor were they able to borrow cell phones of similar quality. Instead, a local retailer 

allowed them to borrow less desirable, prepaid models. To these cell phones a police 

detective added older cell phones that the police had confiscated in other cases. These 

were placed in a bag and given to Williams. 

{¶11} Williams and Kamleh met in the parking lot of a Wal-Mart store. When 

Kamleh saw the bag of cell phones that Williams presented to him, he was disappointed 

by their lack of quality, telling Williams “there is no market for them.” Williams told 

Kamleh that he was desperate for cash and would take any amount of money that Kamleh 

would offer him. They did not agree on a price, but Kamleh told Williams that “I’ll take 

care of you, you work it out.” Kamleh told Williams that they should go into the store, 

although it was unclear for what purpose. Kamleh and Williams exited the car and 

Kamleh put the bag of cell phones in the trunk. No money was exchanged. The police 

then moved in and arrested Kamleh. 

{¶12} The court rejected Kamleh’s argument that he did not purchase the cell 

phones that Williams offered in the buy/bust, so the predicate crime necessary for a valid 

warrantless arrest did not occur. It found that “price was discussed, although a definitive 
figure in the car was not given, I’ll get back to you, we’ll talk, we’ll take care of this stuff, 

so that’s the price.” 

 C 

{¶13} Kamleh argues that the court erred by denying the motion to suppress 

evidence uncovered following his warrantless arrest. He claims that he did not purchase 

the cell phones offered by Williams in the buy/bust, so he did not receive stolen property 

or commit any other crime that would permit his warrantless arrest. The state 

counterargues that Kamleh manifested an intent to purchase the cell phones by telling 

Williams that he would “take care” of him and took possession of the cell phones by 

placing them in the trunk of his car immediately before his arrest. 

 1 

{¶14} The issue for us to consider is whether the facts and circumstances within 

the arresting officer’s knowledge were sufficient to cause a prudent person to believe that 

 Kamleh had committed, or was committing, the offense of receiving stolen property, 

thus obviating the need for an arrest warrant. It must be conceded that, unlike their other 

transactions, no money changed hands between Kamleh and Williams, and they did not 

settle on a price. So the issue for the court was whether Kamleh’s statement that “I’ll 

take care of you, you work it out” and his act of putting the cell phones in the trunk of his 

car before walking into the store was sufficient to prove that Kamleh took possession of 

the cell phones. 
{¶15} R.C. 2913.51(A) states: “No person shall receive, retain, or dispose of 

property of another knowing or having reasonable cause to believe that the property has 

been obtained through commission of a theft offense.” The statute does not require the 

defendant to purchase the stolen property — taking receipt of the property or retaining it 

while having reasonable cause to believe that it has been stolen is enough to constitute a 

commission of the offense. 

 2 

{¶16} We will address the issue of whether the evidence showed that Kamleh 

believed the cell phones he received were stolen later in this opinion. For purposes of the 

motion to suppress evidence, the question is not what Kamleh believed, but what the 

police believed. Knowing that Williams admittedly obtained cell phones illegally and 

sold them to Kamleh, could a reasonable police officer believe that Kamleh took 

possession of cell phones that he believed to have been stolen, thus constituting the 

offense of receiving stolen property? 

{¶17} Williams told the police in detail about the scheme whereby he would take 

cell phones without paying for them and sell them to Kamleh for a fraction of their true 

worth and Kamleh would ship them overseas. The police also knew that Kamleh himself 

encouraged and participated in the scheme by providing Williams with names and social 

security numbers. The means used to perpetuate the scheme were sufficient to allow the 

police to conclude that Kamleh was receiving stolen property. 
{¶18} Some of the cell phones that Williams offered to Kamleh at the buy/bust 

were, contrary to their established practice, obviously used and in poor condition. If 

these had been the only cell phones that Williams offered to Kamleh, the police may not 

have had probable cause to arrest Kamleh for possession of stolen property because 

Kamleh may not have believed that the used cell phones were stolen. But some of the 

phones that Williams offered to Kamleh in the buy/bust were new and in their original 

packaging. So regardless of whether these new cell phones were not of the same quality 

that Kamleh was used to buying, they were still new and the police were justified in 

believing that Kamleh understood that Williams had obtained these less desirable cell 

phones in the same way that he obtained the more desirable cell phones. The court was 

thus entitled to find that Kamleh understood that the prepackaged cell phones offered by 

Williams were stolen. 

 3 

{¶19} The offense of receiving stolen property only requires the state to prove 

possession of stolen goods — it matters not how the defendant obtained those goods. 

Nevertheless, evidence that the defendant paid for the stolen goods is an excellent proof 

of possession. The testimony showed that Williams and Kamleh did discuss a purchase 

at the buy/bust. Although they did not agree on any price, the court thought that 

Kamleh’s statement that he would “take care” of Williams was enough to allow a 

reasonable police officer to believe Kamleh intended to take possession of the cell 

phones. It is difficult to quarrel with this conclusion. Williams essentially told Kamleh 
that he would sell the cell phones to Kamleh for any price that Kamleh deemed fair. In 

response to this offer, Kamleh told Williams that he would “take care” of him. By then 

placing the cell phones in the trunk of his car, the police could reasonably conclude that 

Kamleh manifested an intent to take possession of those cell phones. Put differently, 

Kamleh did not expressly state that he was refusing to take possession of the cell phones, 

so it was reasonable for the police to assume that he was retaining them. 

{¶20} Kamleh testified at the suppression hearing and when asked about placing 

the cell phones in the trunk of his car said, “[y]eah, but me and him were going to take a 

walk to Wal-Mart. They’re not even worth — if somebody would break into the car, for 

me to fix the windows it’s more expensive than these phones.” The monetary value the 

cell phones held for Kamleh is immaterial to the question of whether he took possession 

of them despite believing that they had been stolen. Williams testified that he had been 

out of contact with Kamleh for a few months after his arrest and that Kamleh appeared 

highly desirous of renewing their relationship. While Kamleh might have thought the 

cell phones that Williams offered him in the buy/bust were were not suitable for sale to 

his foreign buyers, he could well have agreed to buy those cell phones as a good faith 

gesture in an effort to reestablish their prior course of dealing. So for all apparent 

purposes, the police could reasonably conclude that Kamleh’s act of putting them in the 

trunk of his car was an act manifesting his possession of the cell phones. 

 4 
{¶21} It is true, as Kamleh argues, that the buy/bust arranged by the police did not 

give them any additional information from that which they obtained from Williams nearly 

four months earlier. This raises the question of why the police did not make an arrest 

immediately upon learning of Kamleh’s role in Williams’s scheme to steal cell phones. 

Once probable cause exists to arrest a suspect, that probable cause does not continue 

indefinitely. Indeed, if the police delay in making an arrest when probable cause does 

exist, “the passage of several weeks [makes] it virtually impossible to establish the 

impracticability of obtaining a warrant.” State v. Jones, 183 Ohio App.3d 839, 

2009-Ohio-4606, 919 N.E.2d (2d Dist.), ¶ 27. 

{¶22} It is unclear why the police did not try to obtain an arrest warrant upon 

learning of Williams’s confession and implication of Kamleh. But the delay explains 

why the police decided to engage in the buy/bust operation. Any new transaction 

between Williams and Kamleh constituted a separate act of receiving stolen property 

unrelated to any prior transactions between them. As explained above, that separate 

incident permitted a warrantless arrest for a felony that occurred in a public place. The 

delay in executing an arrest warrant was rendered immaterial by the transaction. 

 D 

{¶23} Kamleh next argues that the police improperly executed a warrantless search 

of his car following his arrest. In his motion to suppress, he argued that the search of the 

car was an improper inventory search. The state opposed the motion on grounds that it 

had probable cause to search Kamleh’s car based on a belief that it contained contraband. 
{¶24} As a general proposition, the police do not need a warrant to search an 

automobile when they have probable cause to believe it contains contraband or evidence 

of criminal activity. Carroll v. United States, 267 U.S. 132, 160-162, 45 S.Ct. 280, 69 

L.Ed. 543 (1925). The “[p]olice may search a vehicle incident to a recent occupant’s 

arrest only if the arrestee is within reaching distance of the passenger compartment at the 

time of the search or it is reasonable to believe the vehicle contains evidence of the 

offense of arrest.” Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 

(2009). The key question is whether the crime observed offers a reasonable basis to 

believe that the interior of the vehicle contains relevant evidence. Gant had been arrested 

for driving with a suspended license, so the search of his car would not reasonably 

provide evidence on that charge. The Supreme Court distinguished Gant from New York 

v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), where Belton had been 

arrested on drug charges stemming from a transaction that took place in his car, finding 

that the police could reasonably believe that the interior of the car held additional 

evidence. 

{¶25} Although Kamleh and Williams were not in the car at the time of their 

arrest, the police were justified in searching the car based on the reasonable belief that it 

might have contained other evidence relating to the cell phone scheme. The only 

purpose of their meeting was for Kamleh to buy stolen cell phones. The police knew 

from Williams that some of the cell phone sales he previously made to Kamleh occurred 

inside Kamleh’s car. Their belief that they might find additional evidence relevant to the 
crime inside the car was reasonable under the circumstances and justified the warrantless 

search. 

 E 

{¶26} Finally, Kamleh argues that a search warrant for his house, issued the day 

after his arrest in the buy/bust operation, was tainted by evidence that had been illegally 

seized during his arrest and the search of his car. These arguments rest solely on the 

premise that these searches were invalid, a premise we rejected and need not restate here. 

 II 

{¶27} For his second assignment of error, Kamleh complains that his conviction 

for possession of criminal tools was unsupported by sufficient evidence. The state 

charged that the tools in question, a safe and $11,172.53 in cash, were used by Kamleh to 

facilitate his receipt of stolen cell phones. Kamleh argued that the money was given to 

him by his infirm father, for medical care and expenses. 

 A 

{¶28} We determine whether the evidence is sufficient to sustain a verdict by 

examining the evidence in the light most favorable to the prosecution and determining 

whether any rational trier of fact could have found that the prosecution proved the 

essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio 

St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 78, quoting Jackson v. Virginia, 443 

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 

 B 
{¶29} As charged in this case, the offense of possession of criminal tools states: 

“No person shall possess or have under the person’s control any substance, device, 

instrument, or article, with purpose to use it criminally.” R.C. 2923.24(A). In many 

cases, the alleged criminal tool will have an obvious relationship to the charged offense; 

for example, a drug scale as it relates to a charge of drug trafficking. When the alleged 

tool is United States currency, the relationship of the cash to the offense may not be so 

obvious. In State v. Blackshaw, 8th Dist. No. 70829 (May 29, 1997), we quoted State v. 

Golston, 66 Ohio App.3d 423, 431, 584 N.E.2d 1336 (8th Dist.1990), for the proposition 

that: 

Mere possession of cash is not unlawful. To prove that money is 

contraband and therefore subject to forfeiture, “the state must demonstrate 

that is it [sic] more probable than not, from all these circumstances, that the 

defendant used [the money] in the commission of a criminal offense.” 

(Internal citations omitted.) 

{¶30} The evidence showed that Kamleh not only used Williams as a supplier of 

cell phones, but used other persons to purchase cell phones in their names and then turn 

them over to Kamleh in exchange for cash. One of the persons, Branda Flowers, said 

that Kamleh paid her $300, all in one hundred dollar bills, from a “wad” of one hundred 

dollar bills. Williams, too, testified that Kamleh always paid him in one hundred dollar 

bills. When the police arrested Kamleh, he carried $2,832 in cash, $2,000 of which was 

banded in fifty and one hundred dollar bills. During a search of the house, the police 

opened a safe and found another $6,700 in cash that was likewise wrapped in bank bands. 

 In addition to the cash, the safe contained 24, brand new, boxed iPhones. 
{¶31} Given the large denominations used by Kamleh to pay off those who 

obtained cell phones for him and the discovery of cash in large denominations found both 

on him and in his house, coupled with the presence of numerous cell phones, a rational 

trier of fact could conclude that Kamleh used the cash in furtherance of his scheme to 

obtain new cell phones. The jury could rationally have rejected Kamleh’s assertion that 

the money in the safe belonged to his father. The presence of so many boxed iPhones 

stored with the money suggested that the money and cell phones were related, a 

conclusion that was consistent with the evidence of Kamleh’s scheme. 

 III 

{¶32} The third assignment of error complains that the court erred by allowing the 

state to introduce evidence of other acts under Evid.R. 404(B). The evidence consisted 

of testimony from Branda Flowers, who said that in November 2010, just days before 

Kamleh’s arrest, she obtained about 15 cell phones under Kamleh’s direction, that 

Kamleh paid her $300 for all of those cell phones, that he failed to cancel those contracts 

as promised, and left her liable to pay off those contracts. Kamleh argues that this 

testimony was not evidence that Kamleh knew that the cell phones he previously 

purchased from Williams were stolen. He argues that the cell phones he purchased from 

Flowers were not obtained by a theft offense, so the facts that Flowers testified to did not 

prove that he knew that the cell phones he purchased from Williams were illegally 

obtained. 
{¶33} Prior crimes committed by a defendant, other than those charged in the 

indictment, are presumptively irrelevant for purposes of showing that the defendant 

committed the acts charged in the indictment. This is because of the danger that the jury 

will convict the defendant solely because it assumes that the defendant has a propensity to 

commit criminal acts, or deserves punishment regardless of whether he or she committed 

the crimes charged in the indictment. State v. Cotton, 113 Ohio App.3d 125, 131, 680 

N.E.2d 657 (1st Dist.1996). Evid.R. 404(B) creates an exception, however, for certain 

acts if they prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.” In United States v. Cadet, 664 F.3d 27, 32-33 (2d 

Cir.2011), the court stated: 

When “other act” evidence is offered to show knowledge or intent in 

particular, as opposed to other non-propensity purposes such as proof of 

identity or corroboration of witnesses, such evidence must be “sufficiently 

similar to the conduct at issue” to permit the jury to draw a reasonable 

inference of knowledge or intent from the other act. * * * Evidence of other 

acts need not be identical to the charged conduct to show knowledge or 

intent pursuant to Rule 404(b), so long as the evidence is relevant in that it 

provides a reasonable basis for inferring knowledge or intent. (Citations 

omitted.) 

{¶34} Kamleh defended the receiving stolen property charge by claiming that he 

did not know that the cell phones he bought from Williams had been stolen. The state 

countered this defense by using Flowers’s testimony to prove that Kamleh was familiar 

with the idea that he could purchase a cell phone on contract from a carrier for far less 

than the retail price of the phone itself (cell phone companies subsidize the high cost of a 

cell phone in exchange for a contract), cancel the contract, and keep the cell phone. 
{¶35} Flowers’s testimony established that Kamleh independently knew that he 

could purchase cell phones on contract, cancel the contract, and keep the cell phones. 

This was essentially the same scheme executed by Williams. To be sure, the facts 

involving Flowers differed slightly from those involving Williams because Kamleh did 

not cancel the contracts on the cell phones that Flowers bought. But Flowers testified 

that Kamleh persuaded her to buy the cell phones in her name because he said he was 

going to cancel those contracts. The fact that he did not cancel those contracts as 

promised allowed the jury to draw a reasonable inference that he intended to keep the cell 

phones regardless of whether there was an existing contract. So while the circumstances 

described by Flowers were not identical to those involving Williams’s case, they were 

sufficiently similar that the court did not abuse its discretion by allowing Flowers to 

testify. 

 IV 

{¶36} Kamleh next argues that the court erred by failing to instruct the jury on 

accomplice testimony and other acts evidence. 

 A 

{¶37} Kamleh claims he requested an instruction on accomplice testimony, but in a 

later assignment of error he claims that trial counsel was ineffective for failing to seek 

that same instruction. We find nothing in the record to show that Kamleh requested an 

instruction on accomplice testimony, nor did he specifically object to the court’s jury 

instructions on this ground, so he has waived all but plain error. See Crim.R. 30(A). 
{¶38} There being no express request for an accomplice instruction, we look to 

three factors to determine whether a trial court’s failure to give the accomplice instruction 

constitutes plain error under Crim.R. 52(B): 

(1) whether the accomplice’s testimony was corroborated by other evidence 

introduced at trial; (2) whether the jury was aware from the accomplice’s 

testimony that he benefitted from agreeing to testify against the defendant; 

and/or (3) whether the jury was instructed generally regarding its duty to 

evaluate the credibility of the witnesses and its province to determine what 

testimony is worthy of belief. 

State v. Woodson, 10th Dist. No. 03AP-736, 2004-Ohio-5713, at ¶ 18; State v. Bentley, 

11th Dist. No. 2004-P-0053, 2005-Ohio-4648, at ¶ 58; State v. Jones, 5th Dist. No. 

10CA3366, 2011-Ohio-1108, ¶ 30. 

{¶39} Williams’s testimony was largely corroborated by Kamleh himself. 

Kamleh conceded that he purchased the cell phones from Williams but denied culpability 

for receiving stolen property on grounds that he did know that Williams was acting 

illegally by not returning the cell phones after he had cancelled the contracts. The jury 

knew that Williams agreed to cooperate with the police as part of his plea bargain, a fact 

divulged in the extensive testimony concerning the buy/bust operation. Finally, the court 

instructed the jury that it was the sole judge of the weight and credibility of the evidence. 

We therefore find that any error by the court in failing to give an accomplice instruction 

did not rise to the level of plain error. 

 B 

{¶40} Kamleh next complains that the court gave a truncated instruction on other 

acts evidence that was inadequate because it failed to identify what the other acts were 
(the Flowers transactions), failed to tell the jury that it could only consider the other acts 

testimony for a specific purpose, and failed to inform the jury that it had to assess 

independently Flowers’s credibility. 

{¶41} As Kamleh is forced to concede, the court instructed the jury that: 

 Evidence of other crimes, wrongs, not necessarily crimes, wrongs or 

other acts is not admissible to prove the character of the person in order to 

show that they acted in conformity therewith. It may, however, be 

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

preparation, plan, knowledge, identity, absence of mistake or accident. 

{¶42} This instruction did not name the specific factor named in the rule that the 

state relied upon for admitting the evidence of other acts. We have noted that a 

“shot-gun-style approach” to the use of Evid.R. 404(B) should be avoided and that the 

court should limit an other-acts instruction “to the stated purpose for which the other-acts 

evidence was introduced.” State v. Yancy, 8th Dist. Nos. 96527 and 96528, 

2011-Ohio-6274, fn. 2. See also United States v. Spikes, 158 F.3d 913, 929 (6th 

Cir.1998). 

{¶43} Kamleh did not ask the court to give a more refined other-acts instruction. 

Although the court’s jury instruction should have specified the purpose for allowing the 

other acts evidence, the failure to do was harmless error. Kamleh has not challenged the 

sufficiency or weight of the evidence supporting his conviction for receiving stolen 

property. The state presented compelling evidence to show that he was aware that 

Williams had been unlawfully obtaining the cell phones that he purchased. Apart from 

the rather obvious implications of paying a mere fraction of the retail cost of the 35 
high-end cell phones he purchased from Williams, Kamleh facilitated the thefts by 

providing Williams with the names, social security numbers, and driver’s licenses of two 

other persons so that Williams could use their names on the contracts. Indeed, when 

Williams wrecked his car and thought he might have to quit his job for want of 

transportation, Kamleh began driving him to and from work. The state thoroughly 

rebutted Kamleh’s claim that he did not know that the cell phones he bought from 

Williams were stolen by showing that he separately engaged in a similar course of 

conduct with Flowers and did not even bother cancelling those contracts. Finally, 

Kamleh was not a small-time operator — the large amount of cash and brand new 

iPhones found in his house was ample evidence that he was operating a cell phone racket. 

 The jury could easily have rejected Kamleh’s claim that he thought Williams was doing 

nothing more than exploiting a loophole that allowed him to cancel contracts without 

returning the cell phones. 

 C 

{¶44} Kamleh also complains that the court should have instructed the jury that it 

could not consider remarks made by a police officer that the 15 iPhones found in 

Kamleh’s safe were the subject of a different police investigation. 

{¶45} Kamleh objected to the other acts instruction on grounds that the “evidence 

presented of other unindicted charges should not be considered as to * * * his guilt or 

innocence in this case.” Although not specifically mentioning the iPhones as the subject 

of the objection, that omission was immaterial given that the court did give a standard 
other acts instruction that evidence of other acts was not admissible to prove “the 

character of the person in order to show that they acted in conformity therewith.” 

Having failed to inform the court of the precise basis for his objection, the court had no 

obligation to give a more specific instruction. 

 V 

{¶46} The fifth assignment of error complains of several instances in which trial 

counsel was ineffective: counsel elicited and failed to object to irrelevant and prejudicial 

evidence that Kamleh was being investigated for other crimes; counsel failed to object 

to improper witness bolstering; counsel failed to object to testimony regarding Kamleh’s 

decision to invoke his right to an attorney during his police interview; counsel failed to 

ensure that Kamleh received a proper interpreter; and that counsel failed to ensure that the 

court gave proper jury instructions on accomplice and other acts testimony. After 

reviewing the record, we find that most of the arguments Kamleh makes deal with trial 

strategy. The only instances meriting discussion are that trial counsel failed to object to 

testimony concerning Kamleh’s invocation of the right to counsel and that trial counsel 

failed to ensure that Kamleh received a proper interpreter at trial. 

 A 

{¶47} A claim of ineffective assistance of counsel requires a defendant to show 

that (1) the performance of defense counsel was seriously flawed and deficient and (2) the 

result of the defendant’s trial or legal proceeding would have been different had defense 

counsel provided proper representation. Strickland v. Washington, 466 U.S. 668, 104 
S.Ct. 2052, 80 L.Ed.2d 674 (1984). This analysis requires two distinct lines of inquiry. 

First, we determine “whether there has been a substantial violation of any of defense 

counsel’s essential duties to his client[.]” State v. Bradley, 42 Ohio St.3d 136, 538 

N.E.2d 373 (1989), paragraph two of the syllabus. When making this inquiry, we presume 

that licensed counsel has performed in an ethical and competent manner. Vaughn v. 

Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965). Second, we determine whether “the 

defense was prejudiced by counsel’s ineffectiveness.” Bradley, 42 Ohio St.3d at 

paragraph two of the syllabus. Prejudice requires a showing to a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 

different. Id. at paragraph three of the syllabus. 

 B 

{¶48} The police advised Kamleh of his Miranda rights following his arrest and he 

agreed to speak with the police. Kamleh told the police that he possessed the large 

number of cell phones found in his residence because he operated a cell phone store. 

When asked if he “followed up” on the cell phone store claim during the interview, a 

detective testified: 

He [Kamleh], when we interviewed him, the interview was brief, he 

asked for an attorney, and at that point in time we stopped the interview. 

The only information I was ever able to gain from him was that he claimed 

to be selling them at a place called LA Wireless in Michigan. 

{¶49} During cross-examination of this detective, defense counsel asked, “[n]ow, 

there was something else that you said before; that Mr. Kamleh wouldn’t cooperate and 

asked for an attorney?” The detective replied, “[h]e stopped the interview * * * and 
requested an attorney.” Defense counsel then asked whether Kamleh had been polite and 

had “answered every question that was posed?” The detective conceded that he had not 

watched the entire interview and that he derived his knowledge of how the interview 

ended from the report of that interview. The jury watched a videotape of that interview, 

including Kamleh’s invocation of the right to counsel. At no point did defense counsel 

object. 

{¶50} The state is not allowed to comment on a defendant’s post-Miranda silence 

for impeachment purposes because the Miranda warnings implicitly assure a defendant 

that he will not be penalized for remaining silent. Doyle v. Ohio, 426 U.S. 610, 618-619, 

96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). To allow otherwise would permit the state to 

suggest that the defendant’s retention of counsel indicates guilt. Id.

{¶51} The detective’s testimony on direct examination did not imply that Kamleh 

invoked his right to counsel in a manner that suggested his guilt, nor was the detective’s 

answer prompted by the state’s questioning. Defense counsel might have left the matter 

as it was, but instead chose to ask more questions on cross-examination. We presume 

the competence of licensed counsel, State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 

(1978), and, as a general proposition, defer to counsel on matters of trial strategy. State 

v. Carter, 72 Ohio St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965. Perhaps defense 

counsel thought that he needed to blunt the impact of the detective’s testimony by going 

on the offensive to show that Kamleh had cooperated in the interview. Admittedly, this 

might not be considered to be a winning strategy. But our standard of review in 
ineffective assistance of counsel cases does not permit us to find a violation of counsel’s 

essential duties based on a mere disagreement with defense counsel tactics. Even a 

questionable trial strategy does not compel a finding of ineffective assistance of counsel. 

State v. Smith, 89 Ohio St.3d 323, 328, 2000-Ohio-166, 731 N.E.2d 645 (2000). 

{¶52} Even if we were to assume that defense counsel’s actions fell below the 

objectively reasonable standard of professional representation, we cannot say that there is 

a reasonable probability that, but for counsel’s actions, the outcome of the trial would 

have been different. The state had significant evidence to show that Kamleh knew he 

was buying stolen cell phones from Williams. What is more, the state proved that 

Kamleh facilitated the theft by providing Williams with the names and identification 

numbers of uninvolved third parties so that Williams could take out cell phone contracts 

in names other than his own. Despite Kamleh’s claim that he thought Williams was 

doing nothing more than exploiting a loophole in Wal-Mart’s sales policy, the offense of 

receiving stolen property required the state to prove only that Kamleh have reasonable 

cause to believe that the cell phones had been stolen. Kamleh claimed to be a cell phone 

dealer himself — surely he would have understood that a party cancelling a new cell 

phone contract would not have been allowed to keep an expensive cell phone on the 

pretext of a “loophole.” 

 C 

{¶53} Kamleh also argues that defense counsel failed to ensure that he received a 

proper interpreter. The court allowed Kamleh’s aunt to act as “sort of an interpreter,” 
telling the jury that “[w]e’re supposed to be able to provide interpretative services, but it’s 

almost impossible to do that.” 

{¶54} R.C. 2311.14(A)(1) states that the court shall appoint an interpreter 

whenever a person “cannot readily understand or communicate” in a legal proceeding. 

Before assuming the duties of an interpreter, the interpreter must take an oath that “the 

interpreter will make a true interpretation of the proceedings to the party or witness, and 

that the interpreter will truly repeat the statements made by such party or witness to the 

court, to the best of the interpreter’s ability.” R.C. 2311.14(B). 

{¶55} Consistent with the court’s statement that the aunt would act as “sort of an 

interpreter,” Kamleh’s aunt did not swear an oath as required by R.C. 2311.14(A)(1). 

But by all appearances, her interpreting services were not required. As Kamleh 

concedes, “he has some level of English proficiency[.]” This is too modest — the 

videotape of his interview with the police shows that he easily understood the English 

language and used colloquialisms that were consistent with someone who had more than 

just a passing proficiency with the language. Moreover, the court heard Kamleh testify 

during the suppression hearing and as the transcript of that hearing showed, Kamleh had 

no difficulty understanding the proceedings or communicating. At all events, the aunt’s 

presence was nothing more than an accommodation to caution in the event Kamleh might 

need assistance. At no point in the record is there the least indication that Kamleh 

needed the assistance of an interpreter. Any objection by defense counsel would not only 

have been unnecessary, but futile. 
 VI 

{¶56} The receiving stolen property count contained a forfeiture specification for 

the $11,172.53 found on Kamleh’s person and in his safe. In its verdict, the jury 

specifically found that the cash was not subject to forfeiture. At sentencing, the state 

asked that it be permitted to hold the cash recovered from Kamleh at the time of his arrest 

as possible evidence in the event a retrial is ordered. The court granted the state’s 

request over a defense objection. The state now concedes that it did not seek forfeiture 

of those funds and “plans to return said funds at the conclusion of this case[.]” In the 

event the money has not been returned to Kamleh, we sustain this assignment of error 

with instructions for the court to order the state to return any funds seized from Kamleh. 

 VII 

{¶57} At sentencing, Kamleh addressed the court and continued to insist upon his 

innocence, claiming that he trusted the wrong person. The court rejected Kamleh’s 

statement, saying that he acted according to a “well-executed plan” and that Kamleh’s 

“fate was sealed * * * when you took this young lady [Flowers] * * * with you and she 

did the same thing you did.” Kamleh complains that the court erred by relying on 

uncharged conduct in sentencing him. 

{¶58} In State v. Cooper, 8th Dist. No. 93308, 2010-Ohio-1983, we held that “a 

defendant’s uncharged yet undisputed conduct may be considered in sentencing without 

resulting in error when it is not the sole basis for the sentence.” Id. at ¶ 15 (citations 

omitted). This is a familiar point of law. For example, incarcerated defendants who are 
being resentenced often ask for leniency based on their conduct while incarcerated. State 

v. Jackson, 8th Dist. No. 92365, 2009-Ohio-4995, ¶ 10. The exception occurs when the 

court considers acts for which the defendant was acquitted or conduct for charges that had 

been reduced by virtue of a plea bargain. State v. Williams, 8th Dist. No. 79273, 

2002-Ohio-503; State v. Russo, 8th Dist. No. 78096 (May 31, 2001). 

{¶59} Flowers’s testimony remained undisputed during the trial. The court was 

thus entitled to consider it when deciding on Kamleh’s sentence. 

 VIII 

{¶60} In his eighth assignment of error, Kamleh complains that the court abused 

its discretion by ordering him to serve one-year sentences on each count, with those 

sentences to run consecutive to each other. He primarily argues that his sentence was 

disproportionately longer than that given to Williams, who he notes actually stole the cell 

phones in question. 

{¶61} Although the court did not specifically reference the relevant statutory 

guidelines during the sentencing, its journal entry imposing sentence does state that it 

“considered all required factors of the law” and further states that a prison term “is 

consistent with the purpose of R.C. 2929.11.” The court’s statement that it considered 

the required statutory factors, without more, is sufficient to fulfill its obligations under the 

sentencing statutes. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 

306, ¶ 18; State v. Wright, 8th Dist. No. 95096, 2011-Ohio-733, ¶ 4. 
{¶62} We next consider whether the court abused its broad sentencing discretion 

by ordering Kamleh to serve the one-year prison terms consecutively. State v. Foster, 

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. 

{¶63} Kamleh was given a lengthier sentence for receiving the stolen cell phones 

than Williams received for the actual theft of the cell phones. But Williams pleaded 

guilty and agreed to cooperate with the investigation and prosecution of Kamleh, so the 

court could take that fact into account when sentencing. The state is permitted to 

encourage guilty pleas by offering substantial benefits to a defendant. Corbitt v. New 

Jersey, 439 U.S. 212, 223-24, 99 S.Ct. 492, 499-500, 58 L.Ed.2d 466 (1978). 

{¶64} Moreover, even though Kamleh was not the one who actually stole the cell 

phones, the evidence showed that he encouraged Williams to continue to do so after 

Williams expressed a desire to stop. Kamleh even duped the unsuspecting Flowers into 

buying cell phones, leaving her to foot the bill for those cell phones. The sheer number 

of cell phones found in his possession and the large amount of cash recovered from him 

indicated that Kamleh was operating on a large scale. Given these facts, along with 

Kamleh’s refusal to accept responsibility for his actions, we cannot find that the court 

abused its discretion in sentencing. 

{¶65} Judgment affirmed. 

It is ordered that appellee recover of appellant its 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 Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. The 

defendant’s conviction having been affirmed, any bail pending appeal is terminated. 

Case remanded to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MELODY J. STEWART, PRESIDING JUDGE 

KATHLEEN ANN KEOUGH, J., and 

MARY EILEEN KILBANE, J., CONCUR