[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                    :   Appellate Case No. 28294
                                                :
 v.                                             :   Trial Court Case No. 2018-CRB-3885
                                                :
 ABDALLA S. JALI                                :   (Criminal Appeal from Municipal Court)
                                                :
          Defendant-Appellant                   :
                                                :

                                          ...........

                                          OPINION

                            Rendered on the 24th day of January, 2020.

                                          ...........

AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant Prosecuting Attorney, City of Dayton
Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 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 conviction on one

count of solicitation following a jury trial in Dayton Municipal Court. Jali contends that his

conviction was based on insufficient evidence because the police 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 court will be affirmed.



                               I. Facts and Course of Proceedings

       {¶ 3} On June 29, 2018, a complaint was filed in Dayton Municipal Court, 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 misdemeanors.            The charges

against Jali arose from a June 28, 2018 prostitution sting operation that was conducted

in the 900 block of North Main Street in Dayton, Ohio.              The area 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 about heavy prostitution.

       {¶ 4} On June 28, 2018, Dayton Police Officer Alaina Hammond was working

undercover as a decoy in the street crimes unit. Hammond had received training from

other police officers on how to act as a prostitute and had also observed prostitutes.

Essentially, Hammond was to make eye contact with drivers or with 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 interviewing detective for

this operation.   Bailey was located about a block away and monitored interactions

between Hammond and potential subjects, for safety purposes. After each interaction,

Bailey contacted the subjects and interviewed them about what had 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 Hammond 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 was 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 Jali 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 and 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 Jali had introduced

himself as Dali, but he corrected her and said, “No, Jali.” Transcript of Proceedings

(“Tr.), p. 58.

       {¶ 8} Jali asked Hammond what she was doing, and she said, “I was just 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 Hammond, 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. Because 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 arrest,

she told him that she was going to gather her things and come back. Jali said “OK,” and

Hammond then gave the predetermined signal to her team to arrest Jali. When an arrest

is made, the arrestee is moved to another area and the police continue with operations.

       {¶ 11} After the signal was given, marked units stopped Jali and he was moved to

a separate location so that Detective Bailey could speak with him.            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 some basic information like his

name, date of birth, and address.

       {¶ 12} Jali was a refugee from Sudan and had lived in the United States 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 English by the time of trial.

However, he usually spoke Arabic.

       {¶ 13} According to Jali, he left his home on the day of the arrest and was on the
                                                                                            -5-


way to a garage where his car was being fixed. To get there, he needed to take the bus.

He met a woman (Hammond) near the bus stop, who made eye contact when he was

sitting on a bench at the bus stop. Hammond came closer and was smiling at him and

batting her eyelashes. After he said hi, and she responded, she 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. However, he admitted that

he did ask Hammond if she would be interested or willing to have sex.

         {¶ 15} Jali denied talking about money or trying to pay Hammond. He testified

that Hammond mentioned 20 pounds1, 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 “twenty”

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 would just have sex

with [him], as people do.” Tr. at p. 96.

         {¶ 16} Hammond then said she was going to get something, and Jali thought 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 Jali's motion to preclude the


1
    Jali referenced pounds, rather than dollars, during his testimony.
                                                                                          -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 granted 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 eventually held on

January 10, 2019, with interpreters present. At trial, the State presented testimony from

Bailey and Hammond, and a rebuttal witness. Jali testified on his own behalf. The jury

then found Jali guilty of soliciting but not guilty of loitering. 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 totaling $1,115.

       {¶ 19} Jali now appeals from his conviction.



                      II. Sufficiency and Manifest Weight of the Evidence

       {¶ 20} Jali's First Assignment of Error states that:

              The Conviction for Solicitation Was Without Sufficient Evidence

       Because the Officer Entrapped Mr. Jali into the Solicitation Charge.

       {¶ 21} Under this assignment of error, Jali contends that his conviction 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 person engaged

in conduct that a section of the Revised Code prohibits and (2) acts with the requisite
                                                                                         -7-


degree of culpability for each element as to which a culpable mental 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 State has

presented adequate evidence on each element of the offense to allow 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 admitted at trial

       to determine whether such evidence, if believed, would convince the

       average mind of the defendant's guilt beyond a reasonable doubt. The

       relevant inquiry is whether, after viewing the evidence in a light most

       favorable to the prosecution, any rational trier of fact could have found the

       essential elements of the crime proven beyond a reasonable doubt.

(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 inferences suggested by

the evidence is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In

this situation, a court reviews “ ‘the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving
                                                                                            -8-


conflicts in the evidence, the jury clearly lost its way and created 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 only 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 interpretations 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 concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence 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 conviction 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), which 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 activity for hire’ means an implicit

or explicit agreement to provide sexual activity in exchange for anything of value paid to

the person engaging in such sexual activity, to any person trafficking 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 Section 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 activity, (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 originates 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 person 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 response to an open

       inquiry, is immaterial. Furthermore, whether the criminal idea or purpose

       instead originated with the other person implicates the affirmative defense

       of entrapment and the related issue of the accused's predisposition, which

       are evidentiary issues to be resolved after proof of solicitation 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 want.” He then clarified

that he wanted sex. When Hammond asked if 20 dollars was ok, Jali 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. Accordingly, 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 jury 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 exercise 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 what extent, to credit the

testimony of particular witnesses is within the peculiar competence 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 jury, which had

the best opportunity to observe the witnesses. We also note that 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 vehicle. 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 English was a little bit broken,

Jali also could understand what the officer was conveying and responded appropriately

to the questions he was asked.

         {¶ 34} In light of the above discussion, the conviction was not against the manifest

weight of the evidence. As noted, it was also supported by sufficient 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 into

         Evidence.

         {¶ 36} Under this assignment of error, Jali contends that the trial court erred in

failing to admit Defendant's Exhibit A, which is a piece of notebook paper on which Jali

wrote down words in Arabic and English.

         {¶ 37} Jali testified that when he calls the police, sometimes he writes 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 identified Exhibit A as a piece

of paper showing that when he lost his papers, he wrote down exactly what he wanted to

say and translated it into English.

       {¶ 38} After testimony had ended, Jali's counsel asked to admit Exhibit A, but the

trial court rejected the request. During discussion of this exhibit, the State argued that

the document was self-serving hearsay, while the defense contended that it was relevant

to show Jali's actual language abilities and that he was not lying about his English skills.

Tr. at p. 114. The trial court concluded that there was no need for the exhibit, because

Jali had testified about his process. Id. at p. 116.

       {¶ 39} “The admission or exclusion of relevant evidence rests within the 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 abuse of discretion. An abuse

of discretion indicates a trial court attitude that is arbitrary, 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 discretion ‘will result in decisions

that are simply unreasonable, rather than decisions that are unconscionable 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 there is no sound reasoning

process that would support that decision. It is not enough that the reviewing court, were

it deciding the issue de novo, would not have found that reasoning process to be

persuasive, perhaps in view of countervailing reasoning processes that would support a
                                                                                                -13-


contrary result.” AAAA Ents. at 161.

       {¶ 40} Evid.R. 402 provides that “[a]ll relevant evidence is admissible,” and

irrelevant evidence is not admissible.          Evid.R. 401 defines relevant evidence as

“evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable 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 the police about losing his

papers. According to Jali, this call was made a few weeks after he was arrested for

solicitation. It did not relate to the solicitation, nor did it 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 relevance, Evid.R.

403(B) gives trial courts discretion to exclude relevant evidence, “if its probative value is

substantially outweighed by considerations of undue delay, or needless presentation of

cumulative evidence.” “ ‘Cumulative evidence’ is additional evidence 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 down English

and Arabic words when he called the police about losing his papers. 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 trial 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 judgment 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 prohibit 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 distinguishable as it relied in

part on a Backpage ad which identified “sex for hire”. I would reverse and vacate the

conviction.



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Amy B. Musto
Adam James Stout
Hon. Carl Sims Henderson
