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