[Cite as State v. Kamleh,

.]

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,

,

,

); (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,

,

,

(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,

,

,

(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,

,

,

(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,

,

, 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,

,

,

(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,

,

,

(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,

,

,

(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,

,

,

, quoting Jackson v. Virginia,

,

,

(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,

,

(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,

,

(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,

(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,

; State v. Bentley,

11th Dist. No. 2004-P-0053,

; State v. Jones, 5th Dist. No.

10CA3366,

.

{¶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,

. See also United States v. Spikes,

(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,

,

,

(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,

,

(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,

,

(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.

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,

,

,

(1976). To allow otherwise would permit the state to

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

{¶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,

,

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

v. Carter,

,

,

. 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,

,

,

(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,

, 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,

, ¶ 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,

; 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,

,

,

; State v. Wright, 8th Dist. No. 95096,

, ¶ 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,

,

,

, 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,

,

,

(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