State v. Elamin

2023 Ohio 1534

• Court: Ohio Court of Appeals
• Decided: May 8, 2023
• Docket: 2022-T-0034
• Status: Published

Opinion

[Cite as State v. Elamin, 2023-Ohio-1534.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

STATE OF OHIO, CASE NO. 2022-T-0034

Plaintiff-Appellee, Criminal Appeal from the -v- Girard Municipal Court

SAAD I. ELAMIN, Trial Court No. 2020 CRB 01371 Defendant-Appellant.

OPINION

Decided: May 8, 2023 Judgment: Affirmed

Michael A. Scala, Girard City Prosecutor, Girard Municipal Court, 100 North Main Street, Girard, OH 44420 (For Plaintiff-Appellee).

Jason M. Jordan, Jason M. Jordan Legal Services, LLC, 3580 Darrow Road, Stow, OH 44224 (For Defendant-Appellant).

JOHN J. EKLUND, P.J.

{¶1} Appellant, Saad Elamin, appeals his convictions of Soliciting, a third-degree

misdemeanor in violation of R.C. 2907.24(A)(1), and Possessing Criminal Tools, a first-

degree misdemeanor in violation of R.C. 2923.24(A). For the following reasons, we affirm

the judgment of the Girard Municipal Court.

{¶2} The Ohio Bureau of Criminal Identification and Investigation created a

website, “skipthegames.com,” as part of a “sting operation” where Special Agent Brenda

Golec would “assume the role of a prostitute and [talk] to Johns that would contact the

number that was associated to the ad that was placed.” On December 4, 2020, Appellant saw an advertisement for the website and texted the number to inquire about soliciting

prostitution. On December 6, 2020, Appellant and Special Agent Golec texted back and

forth discussing the cost for prostitution and agreed upon a place and time to meet. When

Appellant arrived at the motel to meet Special Agent Golec, the Liberty Township police

department attempted to “grab” Appellant when he opened the door. Appellant ran away

from the peace officers, and they followed and arrested him. When he was arrested,

Appellant had a tub of petroleum jelly and a condom in his possession.

{¶3} The peace officers brought Appellant to the police department. The

detective interviewing Appellant asked him his name and social security number, and

then read Appellant his Miranda rights. After reading him his rights, the detective asked

Appellant for his phone number. Directly after writing down Appellant’s phone number,

the detective read him a Miranda rights waiver form. Appellant signed the form waiving

his rights and agreeing to speak with the detectives. The police department charged

Appellant on four counts: Soliciting, Possessing Criminal Tools, Resisting Arrest, and

Obstructing Official Business.

{¶4} Trial had been delayed several times for several reasons, including the

COVID-19 pandemic. The Girard Municipal Court eventually scheduled a jury trial to

begin on February 24, 2022. On February 22, 2022, Appellant moved to continue trial

“[d]ue to the past 2-week period involving the sudden stroke and sequent death” of trial

counsel’s father. The prosecution did not object to the motion. The court denied the

motion, explaining that it had been filed two days before trial, “this matter has been

pending since December 6, 2020,” “[t]he issues in this case are not complicated,” and

Case No. 2022-T-0034 “the Court has summoned over 100 potential jurors and the trial should last no longer

than two days.”

{¶5} The jury trial began on February 24, 2022. Special Agent Golec, the peace

officers who arrested Appellant, and the detectives who booked and interviewed

Appellant testified for the prosecution. The state offered four exhibits into evidence:

Exhibit 1: the Miranda warning and waiver form Appellant signed; Exhibit 2: the text

messages between Appellant and Special Agent Golec; Exhibit 3: the advertisement for

“skipthegames.com;” and Exhibit 4: the video of the detectives interviewing Appellant

after his arrest.

{¶6} The defense objected to Exhibits 2 and 3 being admitted into evidence,

arguing that the state failed to authenticate both exhibits. The state argued that Exhibit 2

was authenticated because Special Agent Golec testified that she had sent or received

the messages. The state argued that Exhibit 3 was authenticated because a detective

who worked on the sting operation testified that the advertisement was one used in that

operation. The court admitted all four exhibits into evidence.

{¶7} After the state rested its case, the defense moved to acquit on all counts

pursuant to Crim.R. 29. The court granted the motion to acquit only on the count of

Obstructing Official Business and denied the motion as to all other counts.

{¶8} Appellant testified at trial that he never intended to solicit for prostitution.

Appellant stated that he believed the advertisement to be a scam and that he only went

to the motel to “catch” the culprit.

{¶9} The jury found Appellant guilty of Soliciting and Possessing Criminal Tools,

but found him not guilty of Resisting Arrest.

Case No. 2022-T-0034 {¶10} Appellant appeals and raises four assignments of error.

{¶11} First assignment of error: “The trial court committed reversible error when it

denied Defendant-Appellant’s motion to continue filed February 22, 2022.”

{¶12} “The grant or denial of a continuance is a matter that is entrusted to the

broad, sound discretion of the trial judge.” Heerlein v. Farinacci, 11th Dist. Lake No.

2008–G–2818, 2008-Ohio-4979, ¶ 12, citing State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d

1078 (1981), paragraph one of the syllabus. “[A]n appellate court will not interfere with

the exercise of this discretion unless the action of the court is plainly erroneous and

constitutes a clear abuse of discretion.” State ex rel. Buck v. McCabe, 140 Ohio St. 535,

538, 45 N.E.2d 763 (1942).

{¶13} “‘The term “abuse of discretion” is one of art, connoting judgment exercised

by a court which neither comports with reason, nor the record.’ State v. Underwood, 11th

12 Case No. 2022-A-0040 Dist. Lake No. 2008-L-113, 2009-Ohio-208, ¶ 30, citing State

v. Ferranto, 112 Ohio St. 667, 676-678 [148 N.E. 362] (1925).” State v. Raia, 11th Dist.

Portage No. 2013-P-0020, 2014-Ohio-2707, ¶ 9. Stated differently, an abuse of discretion

is “the trial court's ‘failure to exercise sound, reasonable, and legal decision-making.’” Id.,

quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting

Black's Law Dictionary 11 (8th Ed.Rev.2004). “When an appellate court is reviewing a

pure issue of law, ‘the mere fact that the reviewing court would decide the issue differently

is enough to find error[.] * * * By contrast, where the issue on review has been confined

to the discretion of the trial court, the mere fact that the reviewing court would have

reached a different result is not enough, without more, to find error.’” Id. quoting Beechler

at ¶ 67.

Case No. 2022-T-0034 {¶14} “‘There are no mechanical tests for deciding when a denial of a continuance

is so arbitrary as to violate due process. The answer must be found in the circumstances

present in every case, particularly in the reasons presented to the trial judge at the time

the request is denied.’” Unger at 67, quoting Ungar v. Sarafite, 376 U.S. 575, 589-590,

84 S.Ct. 841, 11 L.Ed.2d 921, (1964).

{¶15} “‘In determining whether the trial court abused its discretion in granting or

denying the motion for a continuance, the reviewing court must balance the interests of

judicial economy and justice,’” as well as the court's right to control its own docket,

“against any potential prejudice to the defendant.” Timeoni v. Ciancibelli, 11th Dist.

Ashtabula No. 2006–A–0077, 2007-Ohio-2312, ¶ 17, quoting Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983); State v. Griesmar, 11th Dist. Lake No. 2009–

L–061, 2010-Ohio-824, ¶ 18.

{¶16} “In dealing with a motion to continue, a trial court should consider the

following factors: (1) the length of the delay requested; (2) whether other continuances

have been requested and received; (3) the inconvenience to litigants, witnesses,

opposing counsel and the court; (4) whether the requested delay is for legitimate reasons

or whether it is dilatory, purposeful, or contrived; (5) whether the defendant contributed to

the circumstance which gives rise to the request for a continuance; and (6) other relevant

factors, depending on the unique facts of each case.” Waldorf v. Waldorf, 11th Dist.

Trumbull No. 2013–T–0094, 2015-Ohio-1207, ¶ 11; Unger at 67–68.

{¶17} As recited above in ¶ 4, the court explained its reasons for denying the

motion to continue: that the case had been ongoing since December 2020, that the motion

Case No. 2022-T-0034 had been filed 2 days before trial, that the court summoned over 100 jurors, and that the

issues in the case were not complicated.

{¶18} Here, the court exercised sound, reasonable, and legal decision-making in

denying Appellant’s motion to continue. The court, as evidenced through its judgment

entry, balanced the interests of judicial economy and justice, as well as the court's right

to control its own docket against any potential prejudice to the defendant. Denying the

motion did not prejudice Appellant or Appellant’s trial counsel because (as the trial court

reasoned) he had had over one year to prepare for trial, the case had been continued

before, and the issues in the case were not complicated. In the interest of judicial

economy, the trial court’s denying Appellant’s motion to continue was not arbitrary.

{¶19} Appellant’s first assignment of error is without merit.

{¶20} Second assignment of error: “The trial court committed reversible error

when it allowed the admission of State’s Exhibit 2 and 3 over Defendant-Appellant’s

objection.”

{¶21} “A trial court's ruling on the admission of evidence is generally reviewed for

an abuse of discretion.” State v. Dotson, 11th Dist. No. 2017-T-0103, 2019-Ohio-2393,

139 N.E.3d 430, ¶ 49.

{¶22} Evid.R. 901(A) provides: “The requirement of authentication or identification

as a condition precedent to admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.”

{¶23} Evid.R. 901(B)(1) provides that a document may be authenticated through

testimony by a knowledgeable witness that a matter is what it is claimed to be.

Case No. 2022-T-0034 {¶24} Appellant first asserts that Exhibit 2, the text messages between himself

and Special Agent Golec, was not properly authenticated because Special Agent Golec

testified that she did not specifically remember the conversation. However, upon reading

the messages, Special Agent Golec remembered that she did have the conversation and

relayed the details to the court. “Statements from text messages are properly

authenticated and are admissible as a party-opponent admission when the recipient of

the messages identifies the messages as coming from the defendant.” State v.

Bickerstaff, 11th Dist. Ashtabula No. 2014–A–0054, 2015-Ohio-4014, ¶ 19. Here, Special

Agent Golec testified that the text messages were conversations she had with Appellant

(satisfying Evid.R. 901(B)(1)) and the messages were sent by the phone number that

Appellant gave the detectives as his own. Thus, Exhibit 2 was properly authenticated.

{¶25} We next address the authentication of Exhibit 3, the advertisement for

“skipthegames.com.”

{¶26} Detective Altier, who had investigated Appellant after his arrest, testified

that he was “familiar” with the advertisement for “skipthegames.com.” When showed the

advertisement at court, Detective Altier testified that he recognized it as “the ad that the

human trafficking task force was using on that day.”

{¶27} Pursuant to Evid.R. 901(B)(1), this authenticates the advertisement and

constitutes testimony that the advertisement was what it was claimed to be.

{¶28} The court did not abuse its discretion in admitting Exhibits 2 and 3 as both

were properly authenticated under Evid.R. 901(B)(1).

{¶29} Appellant’s second assignment of error is without merit.

Case No. 2022-T-0034 {¶30} Third assignment of error: “The trial court committed reversible error when

it failed to grant Defendant-Appellant’s Motion for judgment of acquittal where the state

failed to provide sufficient evidence to meet all of the essential elements of the charge of

Possession of Criminal Tools and Solicitation.”

{¶31} “The court on motion of a defendant or on its own motion, after the evidence

on either side is closed, shall order the entry of a judgment of acquittal of one or more

offenses charged in the indictment, information, or complaint, if the evidence is insufficient

to sustain a conviction of such offense or offenses.” Crim.R. 29. Under Crim.R. 29(A),

“a court shall not order an entry of judgment of acquittal if the evidence is such that

reasonable minds can reach different conclusions as to whether each material element

of a crime has been proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio

St.2d 261, 381 N.E.2d 261 (1978), at syllabus. “Thus, when an appellant makes a Crim.R.

29 motion, he or she is challenging the sufficiency of the evidence introduced by the

state.” State v. Patrick, 11th Dist. Trumbull Nos. 2003-T-0166, 2003-T-0167, 2004-Ohio-

6688, ¶ 18.

{¶32} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient

to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997). The appellate court’s standard of review for sufficiency of

evidence is to determine, after viewing the evidence in a light most favorable to the

prosecution, whether a rational trier of fact could find the essential elements of the crime

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

Case No. 2022-T-0034 {¶33} When evaluating the sufficiency of the evidence, we do not consider its

credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if

believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails

a review of the elements of the charged offense and a review of the state’s evidence.

State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.

{¶34} R.C. 2907.24(A), Soliciting, provides: “No person shall knowingly solicit

another to engage in sexual activity for hire in exchange for the person receiving anything

of value from the other person.”

{¶35} The evidence here, including Appellant’s own testimony, demonstrates that

Appellant texted Special Agent Golec to solicit her for sexual activity for value. Appellant

testified that he texted Special Agent Golec, but that it was all a ploy to catch her for

scamming him. Exhibit 2, the text messages, show that Appellant had asked Special

Agent Golec about her physical appearance and if she would be naked when he arrived.

The text messages and Appellant’s testimony also included his offer to pay her $60 for

her services and that he had $60 in his possession when the officers arrested him.

{¶36} The jury could have believed either Appellant’s testimony or the state’s

evidence, but we are not passing judgment on the jury’s credibility determinations. After

viewing the evidence in a light most favorable to the prosecution, a rational trier of fact

could find beyond a reasonable doubt that Appellant knowingly solicited another to

engage in sexual activity for hire.

{¶37} R.C. 2923.24(A), Possessing of Criminal Tools, provides: “No person shall

possess or have under the person's control any substance, device, instrument, or article,

with purpose to use it criminally.”

Case No. 2022-T-0034 {¶38} Here, the evidence and circumstances show that Appellant possessed a

cellphone, condom, and a tub of petroleum jelly with the purpose of using those

instruments criminally. Appellant testified at trial that he saw the advertisement and used

his cellphone to text Special Agent Golec to arrange a time and place to meet with her for

prostitution services. Appellant also testified that he texted Special Agent Golec

concerning the price and asked if she would accept $60. Appellant had $60 in cash in

his wallet at the time of arrest. Other tools Appellant possessed were the tub of petroleum

jelly and the condom. Appellant denied that he intended to use those instruments with

Special Agent Golec.

{¶39} Again, the jury could have believed Appellant’s testimony about the

petroleum jelly and condom, but, in a sufficiency of the evidence analysis, we do not pass

judgment on the jury’s credibility determinations. After viewing the evidence in a light

most favorable to the prosecution, a rational trier of fact could find beyond a reasonable

doubt that Appellant possessed devices or instruments with the intent to use those tools

criminally.

{¶40} Appellant’s third assignment of error is without merit.

{¶41} Fourth assignment of error: “The trial court committed reversible error when

it permitted evidence of Defendant-Appellant’s phone number to be used at trial when

there was not a knowing, voluntary, and intelligent waiver of Defendant-Appellant’s

Miranda rights.”

{¶42} Appellant specifically contends that he did not waive his Miranda rights

when he gave the detectives his phone number (which was used as evidence that he

committed the crimes) because he had given his number before he signed the written

Case No. 2022-T-0034 waiver. However, the evidence shows that the detectives had verbally read Appellant his

rights prior to asking for his phone number.

{¶43} “The fundamental import of the privilege while an individual is in custody is

not whether he is allowed to talk to the police without the benefit of warnings and counsel,

but whether he can be interrogated. * * * Volunteered statements of any kind are not

barred by the Fifth Amendment and their admissibility is not affected by our holding

today.” (Emphasis added.) Miranda v. Arizona, 384 U.S. 436 at 478, 86 S.Ct. 1602, 16

L.Ed.2d 694. As a result, the requirement of Miranda warnings “applies only when a

suspect is subjected to both custody and interrogation.” State v. Neyland, 139 Ohio St.3d

353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 119.

{¶44} “A Miranda waiver need not be in writing to be valid.” North Carolina v.

Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Nor is “an explicit

statement of waiver” necessary. Id. at 375-376, 99 S.Ct. 1755. “Where the prosecution

shows that a Miranda warning was given and that it was understood by the accused, an

accused's uncoerced statement establishes an implied waiver of the right to remain

silent.” Berghuis v. Thompkins, 560 U.S. 370, 384, 130 S.Ct. 2250, 176 L.Ed.2d 1098

(2010).

{¶45} In this case, the detectives gave Appellant his Miranda warnings prior to

asking for his phone number. Exhibit 4 shows that Appellant verbally stated that he

understood that he had the right to remain silent after the detectives read him his rights.

Thus, Appellant’s giving the detectives his phone number after being read his rights

establishes an implied waiver of those rights.

{¶46} Appellant’s fourth assignment of error is without merit.

Case No. 2022-T-0034 {¶47} The judgment of the Girard Municipal Court is affirmed.

MATT LYNCH, J.,

EUGENE A. LUCCI, J.,

concur.

Case No. 2022-T-0034