State v. Mahalli

2025 Ohio 1551

• Court: Ohio Court of Appeals
• Decided: May 1, 2025
• Docket: 114300
• Status: Published

Opinion

[Cite as State v. Mahalli, 2025-Ohio-1551.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114300 v. :

SAID MAHALLI, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 1, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-687275-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Dominic Neville, Assistant Prosecuting Attorney, for appellee.

Andrew S. Pollis, Supervising Attorney, and Jordan Marton and Jane Wiertel, Certified Legal Interns, Milton and Charlotte Kramer Law Clinic, Case Western Reserve University School of Law, for appellant.

KATHLEEN ANN KEOUGH, J.:

Said Mahalli (“Mahalli”) appeals the jury’s verdict convicting him of

a single count of trespass into a habitation when a person is present or likely to be present, a fourth-degree felony in violation of R.C. 2911.12(B) and (E). Mahalli

argues that the trial court erred in denying his Crim.R. 29 motion. After a careful

review of the law and facts, we affirm.

I. Factual and Procedural History

Mahalli was the owner of a residential property located at 861

Helmsdale Road in Cleveland Heights, Ohio (“the property”). While several

occupants were renting space in the residential property, the county foreclosed on

the property. In July 2022, following a sheriff’s sale, Maysun Investments LLC

(“Maysun”) purchased the property. Maysun, through a contractual agreement,

designated Realty Now Property Management and its owner, Andrew Weiner

(“Realty Now” or “Weiner”), as the managers of the property.

Weiner testified that after the property was purchased, a

representative went to the property to assess it for renting and noted that two of the

property’s three units were occupied by tenants, who eventually left “maybe a month

or two” after the sale but never paid Maysun any rent money. (Tr. 187.) Maysun

changed the locks to the home. Despite this, a couple of months later, another set

of tenants moved into all three units on the property and when asked, the tenants

said that they were paying rent to Mahalli. Weiner testified that it took “several

months and extensive efforts” to evict these tenants, estimating that it cost around

$1,300 in legal fees and at least eight to ten months of lost rent, in the range of

$16,000 to $20,000. (Tr. 190, 221 and 222.) Once the eviction of the new tenants was complete, Weiner went to

the property and discovered that the tenants had left a dog behind. According to

Weiner, “[w]e were trying to work with somebody to get the dog picked up, because

the dog was just chained up outside.” (Tr. 191-192.) He said that the condition of

the home was poor, but that it was “theoretically” in livable condition, citing

“running water,” “electricity,” and an intact roof, but stated that he did not think

Maysun “would be able to rent it for very much money[.]” (Tr. 192.) Weiner testified

that at this time, the home had been properly secured: “Locks were changed. All the

doors were closed. They all latched. We test all the doors. All the windows are

closed and locked.” (Tr. 192-193.)

Christopher Tetzlaff, a contracted maintenance worker for Realty

Now, testified that on November 6, 2024, he met with court bailiffs to facilitate the

eviction of the new set of tenants. Once the tenants had moved out and removed all

of their personal property, Tetzlaff secured and locked the property, changing the

exterior locks, the common door locks, and securing all inner doors and windows.

Tetzlaff also recalled that because the upstairs unit could not be secured with a

typical locking method, he built a physical, nonremovable wall, “six and a half feet

of three-eighths-inch thick plywood secured to wooden molding with very heavy

screws.” (Tr. 228.)

Tetzlaff returned to the property the next day, on November 7, 2024,

to check on the dog. The tenant was allegedly going to retrieve the dog, so Tetzlaff

was tasked with checking that the dog had been removed from the property. Upon arrival, he saw a work vehicle in the driveway and observed Mahalli coming out of

the house, through “the rear door common entry.” (Tr. 231.) He also observed one

of the former tenants with Mahalli. Upon further inspection of the premises, Tetzlaff

noted “damage to the window that was pried open and the damage to the rear door

that looked like it had been hit and, also, the lock blown out.” (Tr. 231.) There was

a chair below the open window. Tetzlaff took photographs of the scene that he

identified at trial, and then called Weiner, who arrived at the scene along with police

officers. Mahalli, however, had left by the time Weiner arrived. Upon arrival,

Weiner noted that the “side window was broken, and the door to the side door lock

was damaged. The door was damaged. And everything in the basement had been

removed.” (Tr. 195.) He elaborated that the basement had a lot of “miscellaneous

stuff, work materials and tools.” (Tr. at id.) According to Weiner, Mahalli had

previously called Realty Now to inform them that he was going to retrieve his items,

but was specifically told that he did not have permission to enter the property under

any circumstances. (Tr. 222.)

Officer Antoine Danford (“Ofc. Danford”) of the Cleveland Heights

Police Department testified that he responded to the scene. He testified that upon

arrival, Tetzlaff informed him that two males had been trespassing but had left in

their vehicles and showed him the photographs of the license plates that he had

taken. Ofc. Danford sent the license plate numbers to dispatch, and both came back

as registered to individuals with the last name “Mahalli.” He corroborated Tetzlaff’s

observations of the scene, testifying that he observed the dining room window was shattered, as if somebody tried to force entry into it. They put a chair — propped a chair on the side of the window. The doorknob to the rear access door was taken off, and it was — there was just trash thrown about the house . . . . We went upstairs to the second floor unit, and I observed damage to the second floor rear access door, where somebody tried to pry it open. And they damaged the wood going around the deadbolt.

(Tr. 257-258.)

Ofc. Danford stated that he photographed the damage to the property

and called a company to remove the abandoned dog from the premises. After

completing his report, he spoke to Weiner, who confirmed that he wanted to press

charges against Mahalli. At the time, nothing had been reported as taken or missing

and Ofc. Danford’s report reflected this.

At the close of the State’s case, Mahalli’s counsel moved for acquittal

pursuant to Crim.R. 29, arguing that the State failed to demonstrate the elements of

trespass, and that someone was present or likely to be present in the home.

Mahalli testified in his own defense. He testified that the property

was his “base” where he stored various items related to his work, including work on

other properties that he managed. He stated that the flat-roof garage on the

property contained his things, including “toilets, sink, bowl, electrical, plumbing, all

kind of fitting, plumbing, fitting, PVC.” (Tr. 288.) He also stated that he had a

“compressor . . . . I had two new windows that I bought, because that window that

this guy they claim ─ I bought two new windows that was upstairs.” (Tr. 288.)

Mahalli testified that in the summer of 2021, one of his tenants

informed him that the home had been sold. Mahalli met Uri Gofman, whom he believed was one of the owners of Maysun, and they had an agreement that Maysun

would purchase the property in the foreclosure sale and in exchange, Mahalli paid

him $5,000 in cash. Mahalli testified that part of this agreement included Maysun

and/or Gofman keeping the house for a “year, year and a half,” but Mahalli could

still keep his tenants and his property there, and then Mahalli would give him the

full amount that he paid in the sheriff’s sale. (Tr. 294.) Mahalli testified numerous

times that the City of Cleveland Heights specifically went after his properties, and

that when the home went into Maysun’s name, the City of Cleveland Heights “didn’t

go after them like they came after us.” (Tr. 294.)

According to Mahalli, nobody at Maysun cautioned him that he could

not keep his tenants or personal property at the home and since Gofman was

purportedly the owner of Maysun, he believed that Gofman had the authority to

allow him access to the home.

Mahalli testified that prior to November 6 and 7, he entered the

property numerous times to fix various issues that his tenants were having with

electrical and plumbing. On November 6 and 7, 2024, Mahalli testified that he had

gone to the home, but did not force the door open, because one of his tenants had

left the door open for him. Mahalli specifically testified that neither he nor his

workers broke anything to get into the home and that he specifically had permission

from Gofman, as well as one of the tenants, to enter the home. Mahalli speculated

that Gofman did not respond to his subpoena because Gofman was federally

indicted for committing fraud. The jury found Mahalli guilty, and the trial court sentenced him to

community-control sanctions. It is from this conviction that Mahalli appeals,

assigning the following error for our review.

The trial court erred in denying Mr. Mahalli’s Crim.R. 29 motion for judgment of acquittal.

II. Law and Analysis

Crim.R. 29(A) provides that a court “shall order the entry of the

judgment of acquittal of one or more offenses . . . if the evidence is insufficient to

sustain a conviction of such offense or offenses.” Since Crim.R. 29 questions the

sufficiency of the evidence, we apply the same standard of review to a trial court’s

ruling on a Crim.R. 29 motion as we do in reviewing challenges to the sufficiency of

the evidence presented at trial. Fairview Park v. Peah, 2021-Ohio-2685, ¶ 37 (8th

Dist.).

The test for sufficiency requires a determination as to whether the

prosecution met its burden of production at trial. State v. Cottingham, 2020-Ohio-

4220, ¶ 32 (8th Dist.). 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. State v. Thompkins, 78

Ohio St.3d 380, 386 (1997). 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. Id. Proof of guilt may be supported “by circumstantial evidence, real evidence, and

direct evidence, or any combination of the three, and all three have equal probative

value.” State v. Rodano, 2017-Ohio-1034, ¶ 35 (8th Dist.). Although circumstantial

evidence and direct evidence have obvious differences, those differences are

irrelevant to the probative value of the evidence, and circumstantial evidence carries

the same weight as direct evidence. State v. Cassano, 2012-Ohio-4047, ¶ 13 (8th

To convict Mahalli of trespass into a habitation when a person is

present or likely to be present, the State was required to prove that Mahalli “by force,

stealth, or deception . . . trespass[ed] in a permanent or temporary habitation of any

person when any person other than an accomplice of the offender is present or likely

to be present.” R.C. 2911.12(B) and (E). R.C. 2911.10 provides that for purposes of

R.C. 2911.12, the element of trespass is any violation of R.C. 2911.21, which provides

that trespass is committed when the offender acts “without privilege.” “Privilege” is

“an immunity, license, or right conferred by law, bestowed by express or implied

grant, arising out of status, position, office, or relationship, or growing out of

necessity.” R.C. 2901.01(A)(12).

On appeal, Mahalli renews the same arguments that his trial counsel

raised during trial: (1) the State failed to prove that Mahalli lacked privilege to enter

the property and (2) the State failed to prove that at the time of the offense, someone

was present or likely to be present at the property. A. Lack of Privilege

Mahalli argues that the only witnesses who could properly establish

that Mahalli did not have permission or privilege to enter the premises are the actual

property owners, and not a single property owner testified at trial. He argues that

without this testimony, the State’s evidence fails as a matter of law.

Mahalli does not cite any case law indicating that only the property

owner may establish permission or privilege. R.C. 2901.01(A). To the contrary, R.C.

2901.01(A)(12) specifically provides that privilege may be granted in several

different ways, one of which includes “bestowed by express or implied grant, arising

out of status, position, office, or relationship, or growing out of necessity.”

Moreover, R.C. 2911.21(E) provides that “land or premises” includes “any land,

building, structure, or place belonging to, controlled by, or in custody of another,

any separate enclosure or room, or portion thereof.” In the context of R.C.

2911.12(B), it has been determined that “the [S]tate was not required to present the

testimony of the actual owner. It had to prove that [the defendant] had no privilege

to be on the property.” State v. Janson, 2009-Ohio-3256, ¶ 13 (1st Dist.). This is

because “[t]respass is an invasion of the possessory interest of the property, not an

invasion of title.” State v. Herder, 65 Ohio App.2d 70, 74 (10th Dist. 1979).

Accordingly, Mahalli’s contention that only the property owner may establish

privilege is without merit. The State had to prove that the person(s) or entities that

held a possessory interest in the property did not give Mahalli the privilege to enter,

whether directly or through their agents. In the present matter, the jury heard two competing theories. The

jury heard Weiner explain that Maysun contracted his company, Realty Now, to

manage the property. As Weiner explained, this contractual relationship gave

Realty Now control of the property for management purposes, including assessing

its condition for rental, managing any current tenants, and making any necessary

improvements. Weiner testified that Mahalli was specifically instructed to stay away

from the property, and Tetzlaff, Weiner’s employee, also testified that he did not

believe that Mahalli had permission to enter the property on the date in question.

The jury also heard Mahalli’s explanation, that he had an under-the-

table deal with Uri Gofman, whom he believed had the authority to allow him to

continue using the property. Mahalli’s explanation was somewhat corroborated by

the fact that after the original tenants moved out, Mahalli accepted a new set of

tenants and collected the rent from them and attended to their maintenance issues.

Weiner testified, however, that Mahalli’s conduct was not approved and that it took

significant effort and time to evict these tenants. The jury also heard that the locks

were changed and that when Mahalli was seen in the home, there were pry marks

on the doors and windows, as well as a broken window.

In light of this conflicting testimony, the jury was empowered to

believe or disbelieve any of the witnesses. The jury heard each explanation of the

circumstances and chose to believe that Mahalli did not have a privilege to enter the

property based on the direct and circumstantial evidence as offered during trial

indicating that Weiner and/or Realty Now had a possessory interest in the property and that Mahalli was not given permission to enter and indeed had to enter by force.

Viewing the evidence in favor of the State, sufficient evidence existed upon which

the jury could have reached this conclusion.

B. “Present or Likely to Be Present at the Property”

The second portion of Mahalli’s assignment of error contests the trial

court’s denial of Crim.R. 29 as it relates to the requirement that the State prove that

the offense occurred “when any person other than an accomplice of the offender is

present or likely to be present” pursuant to R.C. 2911.12(B).

Mahalli directs us to State v. Kilby, 50 Ohio St.2d 21 (1977). Kilby

involved an aggravated burglary, but the portion of the statute at issue included

similar language to the statute herein, “in which at the time any person is present or

likely to be present.” The Kilby Court held that based on the facts presented to the

jury, the jury could not reasonably find that “no person was present or likely to be

present” at the time of the burglary. Id. at 25. It relied on the fact that the subject

property was a permanent residence that was “regularly inhabited” and that the

family was “in and out of the home on the day in question.” Id. The Kilby victims

were visiting with neighbors in close proximity to their home, and the Court

described the circumstances as merely “fortuitous” that the home was unoccupied

at the time the burglary occurred. Id.

Contrary to Mahalli’s assertion, we find Kilby distinguishable from

the facts of this case, but nevertheless provides guidance on our analysis of this issue.

Kilby makes clear that the question of whether someone is “present or likely to be present” is a factual question that is best resolved by the jury. Id. at 23 (“The Court

of Appeals erred in taking the aggravating element of ‘present or likely to be present’

out of the province of the jury.”).

Here, the facts are distinguishable. Unlike in Kilby, where it was clear

that the property in question was regularly inhabited by a family that was merely

yards away at the neighbor’s home, we can only describe the property in this matter

as in a state of flux. Tenants were only evicted the day before Mahalli’s trespass —

in fact, one of the tenants was with Mahalli at the time that he returned to the house.

After the tenants had removed their things, Tetzlaff, on behalf of Weiner and Realty

Now, changed the locks and secured the property. Tetzlaff, Weiner, and Mahalli all

testified that on the day of the incident, a dog was chained up in the back of the

home. Tetzlaff and Weiner testified that items had been left behind in the home.

On these facts, we find that sufficient evidence existed upon which the

jury could have found that someone was “present or likely to be present” at the time

Mahalli entered the home. We note that the statute does not require anything other

than the fact that a “person” is present or likely to be present; it does not specify that

this person has to be an owner or an occupant.

Mahalli points us to several facts in the record from which a trier of

fact may reasonably conclude that someone was not “present or likely to be present.”

Specifically, Mahalli references Realty Now’s plans to do slight rehabilitation, Realty

Now’s “backlog” in their construction schedule, that this home’s “history” was unlike

any home they had every dealt with, and that Realty Now did not discover Mahalli’s new tenants until months after they moved into the premises. He argues that upon

the facts, the jury could not have possibly found that someone was “present or likely

to be present” at the home.

Mahalli ignores, however, that there were sufficient facts upon which

the jury could have found that someone was “present or likely to be present.” It is

reasonable to conclude that a person was or was likely to be present based on the

presence of a dog that requires food and water daily. Moreover, Mahalli’s testimony

indicates that he was aware of the status of the property, that is, Mahalli knew that

the property had been foreclosed on and purchased, that Realty Now and/or Weiner

had undertaken extensive efforts to remove the current tenants, that they had lost

rent in the process, and that the home needed renovation before it could be rented

out or re-sold. Moreover, Tetzlaff testified that he was there for the specific purpose

of checking on the dog and he was able to take photographs of Mahalli on the scene

that day. Tetzlaff’s actions are also consistent with someone who was not expecting

Mahalli to be at the property ─ he called Weiner immediately, who called the police.

On these facts, sufficient evidence existed upon which the jury could conclude that

it was likely that someone would be present to take care of the dog, or present to

assess the home after the move out, remove excess trash left behind by the tenants

who had recently left, begin work on the premises, or any of the other scenarios that

can be inferred from the specific facts of this case. III. Conclusion

Having carefully considered Mahalli’s arguments and the record

before us, we overrule his sole assignment of error and find that the trial court did

not err in refusing to grant Mahalli’s Crim.R. 29 motion at trial.

Judgment affirmed.

It is ordered that appellee recover from appellant 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

common pleas court 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.

KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, P.J., and WILLIAM A. KLATT, J.,* CONCUR

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)