After viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt that Mr. Elamin possessed devices or instruments with the intent to use those tools criminally.
State v. Elamin
2023 – Ohio – 1534
Eleventh District Appellate Court
Trumbull County, Ohio
May 8, 2023
Mr. 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.
The Ohio Bureau of Criminal Identification [hereinafter BCI] 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 6, 2020, Mr. Elamin and Special Agent Golec texted back and forth discussing the cost for prostitution and agreed upon a place and time to meet. When Mr. Elamin arrived at the motel to meet Special Agent Golec, the Liberty Township police department attempted to “grab” Mr. Elamin when he opened the door. Mr. Elamin ran away from the peace officers, and they followed and arrested him. When he was arrested, Mr. Elamin had a tub of petroleum jelly and a condom in his possession.
The peace officers brought Mr. Elamin to the police department. The detective interviewing Mr. Elamin asked him his name and social security number, and then read Mr. Elamin his Miranda rights. After reading him his rights, the detective asked Mr. Elamin for his phone number. Directly after writing down Mr. Elamin’s phone number, the detective read him a Miranda rights waiver form. Mr. Elamin signed the form waiving his rights and agreeing to speak with the detectives. The police department charged Mr. Elamin on four counts: Soliciting, Possessing Criminal Tools, Resisting Arrest, and Obstructing Official Business.
The jury trial began on February 24, 2022. Special Agent Golec, the peace officers who arrested Mr. Elamin, and the detectives who booked and interviewed Mr. Elamin testified for the prosecution. The state offered four exhibits into evidence:
Exhibit 1: the Miranda warning and waiver form Mr. Elamin signed;
Exhibit 2: the text messages between Mr. Elamin and Special Agent Golec;
Exhibit 3: the advertisement for “skipthegames.com;” and
Exhibit 4: the video of the detectives interviewing Mr. Elamin after his arrest.
On December 4, 2020, Mr. Elamin, appeals his convictions of Soliciting, a third-degree misdemeanor in violation of O.R.C. §2907.24(A)(1), and Possessing Criminal Tools, a first- degree misdemeanor in violation of O.R.C. §2923.24(A). For the following reasons, we affirm the judgment of the Girard Municipal Court.
Note: The first two appeals though not evaluated in this article were rejected by the Eleventh District Appellate Court.
Possession of Criminal Tools
Third assignment of error: “The trial court committed reversible error when it failed to grant Defendant-Mr. Elamin’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.”
O.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.”.
Mr. Elamin Testifies that he Wanted to Entrap the Undercover Deputy for ‘Scamming’ Him as a Prostitution Consumer
The evidence here, including Mr. Elamin’s own testimony, demonstrates that Mr. Elamin texted Special Agent Golec to solicit her for sexual activity for value. Mr. Elamin 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 Mr. Elamin had asked Special Agent Golec about her physical appearance and if she would be naked when he arrived. The text messages and Mr. Elamin’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. [Evidently Mr. Elamin’s ‘scamming’ investigation was going to be VERY thorough!]
The jury could have believed either Mr. Elamin’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 Mr. Elamin knowingly solicited another to engage in sexual activity for hire.
Possession of Criminal Tools
When a Tube of Petroleum Jelly Becomes a Criminal Tool
O.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.”
Here, the evidence and circumstances show that Mr. Elamin possessed a cellphone, condom, and a tub of petroleum jelly with the purpose of using those instruments criminally. Mr. Elamin 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. Mr. Elamin also testified that he texted Special Agent Golec concerning the price and asked if she would accept $60. Mr. Elamin had $60 in cash in his wallet at the time of arrest. Other tools Mr. Elamin possessed were the tub of petroleum jelly and the condom. Mr. Elamin denied that he intended to use those instruments with Special Agent Golec. [‘Scamming’ investigations require a lot of premeditation and deliberation! Of course, one wonders why he would run at the point he met the fully clothed take down team if he was investigating scammers.]
Again, the jury could have believed Mr. Elamin’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 Mr. Elamin possessed devices or instruments with the intent to use those tools criminally.
Mr. Elamin’s third assignment of error is without merit.
Did BCI Violate Mr. Elamin’s Miranda Rights?
Fourth assignment of error: “The trial court committed reversible error when
it permitted evidence of Defendant-Mr. Elamin’s phone number to be used at trial when there was not a knowing, voluntary, and intelligent waiver of Defendant-Mr. Elamin’s Miranda rights.”.
Mr. Elamin 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 waiver. However, the evidence shows that the detectives had verbally read Mr. Elamin his rights prior to asking for his phone number.
“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.” Miranda v. Arizona, 384 U.S. 436 at 478 (1966)
In this case, the detectives gave Mr. Elamin his Miranda warnings prior to asking for his phone number. Exhibit 4 shows that Mr. Elamin verbally stated that he understood that he had the right to remain silent after the detectives read him his rights. Thus, Mr. Elamin’s giving the detectives his phone number after being read his rights establishes an implied waiver of those rights.
Mr. Elamin’s fourth assignment of error is without merit.
Information for this article was obtained from State v. Elamin 2023 – Ohio – 1534.
This case was issued by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
- Substance, device, instrument, or article, with purpose to use it criminally – 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.” BCI does a nice job to include the petroleum jelly and condom as instruments of the crime and consequently charging, convicting and upholding the Possession of Criminal Tools statute. Law enforcement should apply this methodology to other nefarious criminals who use physical objects to promote criminal activity. Well done BCI!
- Miranda Challenge – The detectives did not ask the petroleum jelly-carrying Mr. Elamin his cell phone number until after he was properly Mirandized and waived his right to an attorney. The reason this was so critical to the Miranda claim was that Mr. Elamin’s phone number was inculpatory to the crime of Solicitation R.C. §2907.24. Mr. Elamin had initiated texting with Special Agent Brenda Golec, consequently his phone number was a critical element of Solicitation. For more information on Custodial Interrogation see: https://www.objectivelyreasonable.com/category/custodial-interrogation/
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