State v. Hall

[Cite as State v. Hall, 2016-Ohio-7301.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103788
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN F. HALL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-579817-A
BEFORE: Stewart, J., Jones, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 13, 2016
ATTORNEY FOR APPELLANT
Michael B. Telep
4438 Pearl Road
Cleveland, OH 44109
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Matthew E. Meyer
James A. Gutierrez
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant John Hall was tried and convicted by a jury of
obstructing justice and tampering with evidence. He directly appeals those convictions
by raising three assignments of error arguing that: 1) there was insufficient evidence to
convict him of tampering with evidence; 2) the court erred by allowing improper
impeachment questioning at trial; and 3) the court erred in granting the state’s pretrial
motion in limine. For the reasons that follow, we affirm.
{¶2} In 2013, Hall was charged in a four count, secret indictment with obstructing
justice, tampering with evidence, bribery, and intimidation of a crime victim or witness.
All charges in the indictment stemmed from Hall’s alleged interference with an FBI raid
on a local convenience store suspected of food stamp fraud, and date back to the spring of
2010 when Hall was working as a Cleveland police officer. In total, sixteen witnesses
testified at trial — which included 13 state witnesses and three defense witnesses, one of
whom was Hall. Following trial, the jury returned a verdict of not guilty on the bribery
and witness intimidation counts but found Hall guilty of obstructing justice and tampering
with evidence. The court sentenced Hall to a six-month prison term on the obstructing
justice count to be served concurrent with an 18-month prison term on the tampering with
evidence count.
{¶3} A summary of the relevant facts and evidence elicited at trial shows that in
2010, Hall was working as a Cleveland police detective in the fourth district’s vice unit.
Hall had been a member of the Cleveland police force since the early 1990s, and had
spent his entire time on the force stationed at the fourth district. During his tenure with
the Cleveland police, Hall came to be acquainted with certain members of the Salti family
who owned numerous grocery and convenience stores throughout the fourth district.
Hall and Mousa Salti were friends and Hall became acquainted with other family
members by virtue of this friendship. Mousa Salti owned the Little Eagle grocery store,
which was located in close proximity to the fourth district’s headquarters, until his death
in 2009. Following Mousa’s death, Hall remained on friendly terms with Mousa’s
brother, Issa Salti, and other individuals who worked at Little Eagle.
{¶4} Around this same time period, Hall’s detective duties involved assisting a
United States Department of Agriculture (“USDA”) agent who was investigating
potential food stamp fraud at numerous grocery stores located in the fourth district. Hall
helped the agent by providing the agent with a confidential informant (“CI”) who, while
wired, would attempt to conduct illegal food stamp transactions at the stores that the
agent had identified based on suspicious food stamp activity. Hall supervised many of
these attempted transactions by watching undercover from the CI’s car in the parking lot
of the store, while the agent would watch and listen to the wire with other officers from a
discreet location nearby. Although Hall was present at many of the attempted buys, he
was not present at all of them.
{¶5} Initially when the agent started working closely with Hall in 2009, the agent
had identified 10-15 stores within the area that were flagged for suspicious operations.
The list would eventually expand to over 20 stores and included the name of the stores,
their owners, and their locations. One of the stores on the list was the Little Eagle
grocery store owned by Mousa Salti. The agent testified that the CI made five different
attempts at conducting an illegal food card transaction at the store, but was successful on
only one of those occasions. The occasion in which the CI was successful was also the
only attempt in which Hall was not present in watching from the CI’s vehicle. However,
the agent testified that Hall was present during many successful fraudulent transactions at
other locations. During the attempts at the Little Eagle store, Hall never disclosed his
friendship with Mousa Salti to the agent.
{¶6} Eventually, the agent came to learn that Salti Salti, another brother, was
operating a grocery store called Superior Sunoco in the area. The agent knew Salti Salti
from a previous case in which he investigated Salti for food stamp fraud in Akron, Ohio.
The agent believed that Salti was once again conducting illegal food stamp transactions at
the Superior Sunoco after surveying the store’s food stamp transaction data and learning
from other informants that the store would give cash for cards. Although Salti was on
probation at the time, he was able to get food stamp servicer status because he was not
listed as the official store owner and his wife filled out the servicer application in her
name.
{¶7} The agent, through the CI, made ten successful fraudulent transactions at the
Superior Sunoco, the last transaction being a cash-for-card transaction performed by Salti.
The agent explained at trial that although food stamp fraud includes selling unpermitted
items, such as alcohol and tobacco products to individuals paying with their EBT cards,1
the most egregious form of the offense is when retailers give out cash for cards. Under
this scenario, the retailer gives cash for less than the amount available on the card but
keeps the card until the funds can be debited in a manner that is not suspicious. The
retailer then keeps the debited amounts. After the cards have been depleted, individuals
retrieve their cards and the cycle can begin again when the card is credited with funds the
next month. As explained by the agent, once a particular establishment is caught for
giving out cash, the store can permanently lose its food stamp servicer status. Because of
this, it is usually a big break in an investigation when a CI is able to secure a fraudulent
cash transaction.
{¶8} Hall was not aware that the agent was investigating Superior Sunoco when
the CI made the fraudulent purchases. In fact, Hall did not find out about Superior
Sunoco until May 11, 2010, the day of the cash transaction, when the agent contacted
Hall following the transaction to discuss obtaining a search warrant for the store. The
agent testified that he explained to Hall that he wanted to secure a search warrant quickly
because he had enough evidence on Salti and wanted to charge Salti in another case
EBT stands for “Electronic Benefit Transfer.” The card, which is used in all 50 states,
1
allows a recipient of government benefits to authorize a transfer of funds from a federal account to a
retailer, in exchange for products purchased. United States Department of Agriculture Food and
Nutrition Service, General Benefit Transfer Information,
http://www.fns.usda.gov/ebt/general-electronic-benefit-transfer-ebt-information (accessed October 6,
2016).
before he came off of probation. At the time the agent spoke with Hall about the
warrant, he was still unaware of Hall’s acquaintance with the Salti family.
{¶9} When the CI returned to the Superior Sunoco the next day to retrieve his EBT
card as Salti had instructed, Salti was not there. On May 14, 2010, the CI went to the
Superior Sunoco again to retrieve the card, this time Salti was there but told the CI that
his card had been thrown out. The CI was able to retrieve the card from the dumpster
behind the store, along with another individual’s EBT cards.
{¶10} According to the agent, this was the first time in his years of working for the
USDA as an agent that he has encountered a situation where a store threw out EBT cards.
The agent became concerned that Salti had been tipped off about the investigation in
some way. According to the agent, he was afraid that perhaps the CI’s card had been
flagged or that the CI had been recognized in the community because of the numerous
other buys at nearby stores. After further investigation, the agent learned from a
Superior Sunoco employee that Salti had been made aware of the investigation by a
person named Johnny. According to the employee, Johnny knew that the store was being
investigated and that the agent wanted to secure a charge against Salti before he came off
of probation.
{¶11} Because of the specificity of the information, the agent immediately zeroed
in on the conversation he previously had with Hall about securing the search warrant.
The agent’s first instincts were that Hall had briefed other members of the police force on
the impending warrant and that one of those officers leaked the information. The agent
approached Hall about this theory, but Hall maintained that he had not disclosed anything
about the investigation.
{¶12} Notwithstanding his concern that Salti had been tipped off, the agent
obtained a search warrant. Hall assisted the search warrant process by organizing
Cleveland police officers to be present in marked vehicles during the FBI search. Hall
was present during the search and asked to be present while the agent interviewed Salti on
the premises — which seemed strange to the agent. According to the agent, Salti got
agitated and began banging his handcuffed hands against his head when asked during the
interview whether he was tipped off. Salti said he was not tipped off. Despite
conducting an extensive search of the premises, the FBI agents were unable to uncover
any evidence of food stamp fraud. The agent testified that normally when CIs conduct
numerous fraudulent transactions with EBT cards and insider employees say that fraud is
taking place, he would expect to find logs of transactions, EBT cards, financial
statements, or other information on the premises indicating food stamp fraud. In this
instance, he found nothing.
{¶13} Immediately following the search, Salti was arrested on a previously secured
arrest warrant stemming from his illegal cash-for-card sale to the CI. While being held
pending charges at the county jail, Salti had his attorney contact the agent to say that Salti
wanted to talk to him. The agent organized an interview during which Salti told the
agent that the tip came from Hall. According to the agent, Salti was not offered anything
for his cooperation, but disclosed Hall’s tip voluntarily.
{¶14} At trial, Issa Salti testified that he had known Hall for many years because
Hall would often frequent the Little Eagle Food Mart where he worked. Issa informed
the court that he considered Hall a friend. Issa then testified that in May 2010, Hall
came into the Little Eagle store and asked for his cell phone number. Issa wrote it down
and gave it to him. Hall said nothing and walked out of the store. According to Issa,
about 15 minutes later, Hall called him to ask whether he knew who owned the Superior
Sunoco station. Issa told Hall that the owner was his brother Salti. At that point,
according to Issa’s testimony, Hall told him “what is going on over there needs to stop.”
When Issa asked what he meant by that, Hall told him that there was illegal activity
going on and that the activity included illegal EBT sales. Issa also testified that Hall
made it clear to him that the illegal activity at the Superior Sunoco needed to stop very
soon because the police were going to show up there and said that “things needed to get
cleaned up.” Following his conversation with Hall, Issa called Salti and another brother.
{¶15} Salti corroborated Issa’s testimony at trial and confirmed that he first
received Hall’s tip about the investigation by way of Issa in a phone call. Salti further
testified that because he did not know Hall that well, he had his brother-in-law, Jamal
Hanini — who, according to Salti, was better acquainted with Hall because he also
worked at Little Eagle — call Hall to confirm the information. According to Salti, he
spoke with Hanini later that night (the implication being after Hanini spoke to Hall) about
the tip and after that conversation he knew that he had to go clean up his store.
Specifically, he knew that he had to get rid of all food stamp cards, throw away any
suspicious receipts, and essentially leave no trace of food stamp fraud behind.
{¶16} Hall took the witness stand in his own defense. He testified regarding his
friendship with Mousa Salti and how he worked as a police detective with the USDA
agent investing food stamp fraud. Hall testified that he did not disclose his relationship
with the Salti family to the agent because he did not think it mattered. He further
testified that he did get Issa’s cell phone number and called him to see if he had any
knowledge about the owner of the Superior Sunoco. Hall explained that Issa told him
that his brother Salti owned and operated the store. According to Hall, when Issa asked
why he was inquiring, Hall just said that he wanted to know and that, with no intentions
to undermine the investigation, indicated to Issa that “something’s going on.” Hall
testified that was the end of their conversation and that he only asked about the owner
because he was curious to know if Salti Salti was related to Issa’s family. Hall said that
he never told Issa that things needed to be cleaned up, or that there was a current
investigation into food stamp fraud that would result in an imminent search of the
Superior Sunoco.
{¶17} In his first assigned error, Hall contends that the trial court erred in denying
his Crim.R. 29 motion for acquittal on the tampering with evidence charge on the basis
that the state failed to present sufficient evidence of every element of the offense.
Specifically, Hall argues that the state failed to show that he had the specific intent to
alter, destroy, conceal, or remove the evidence of food stamp fraud, or that he was
complicit in the act of tampering with evidence. We disagree.
{¶18} Pursuant to Crim.R. 29(A), a trial court may order a judgment of acquittal
either at the close of the state’s case or the close of all evidence, if it finds that the state
failed to present sufficient evidence of the elements of the offense charged. However, a
trial court “‘shall not order an entry of acquittal if the evidence is such that reasonable
minds can reach different conclusions as to whether each material element of a crime has
been proved beyond a reasonable doubt.’” State v. Williams, 8th Dist. Cuyahoga No.
103257, 2016-Ohio-5403, ¶ 22, quoting State v. Bridgeman, 55 Ohio St.2d 261, 381
N.E.2d 184 (1978), syllabus. And “[a] motion for judgment of acquittal under Crim.R.
29 should only be granted where reasonable minds could not fail to find reasonable
doubt.” Id., citing State v. Apanovitch, 33 Ohio St.3d 19, 23, 514 N.E.2d 394 (1987),
citing Bridgeman.
{¶19} Appellate courts review the denial of a Crim.R. 29 motion for acquittal
under the same test used for reviewing a challenge to the sufficiency of the evidence at
trial. Id. at 23, citing State v. Turner, 8th Dist. Cuyahoga No. 88489, 2007-Ohio-5449, ¶
72. The test requires that the appellate court examine the evidence in the light most
favorable to the prosecution to determine whether any rational trier of fact could have
found the elements of the offense proven beyond a reasonable doubt. State v. Smith, 8th
Dist. Cuyahoga No. 103483, 2016-Ohio-5512, ¶ 39, citing State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A reviewing court is not to
assess “whether the state’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio
St.3d 380, 390, 678 N.E.2d 541 (1997).
{¶20} Tampering with evidence in violation of R.C. 2921.12(A)(1) provides that:
No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the
following:
(A) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or
investigation.
{¶21} The three elements of this offense are: 1) having the knowledge of an
official proceeding or investigation in progress or likely to be instituted; 2) the alteration,
destruction, concealment, or removal of the potential evidence; and 3) having the purpose
of impairing the potential evidence’s availability or value in such proceeding or
investigation. State v. Straley, 139 Ohio St.3d 339, 11 N.E.3d 1175, 2014-Ohio-2139, ¶
11. The mens rea element of the offense requiring that the person act “purposely,” has
been interpreted to mean that the person has the specific intention to cause a certain
result. State v. Sharp, 8th Dist. Cuyahoga No. 103445, 2016-Ohio-2634, ¶ 19; R.C.
2901.22(A). “When determining whether the defendant acted purposely, a defendant’s
state of mind may be inferred from the surrounding circumstances.” Id., citing State v.
Rock, 3d Dist. Seneca No. 13-13-38, 2014-Ohio-1786, ¶ 13.
{¶22} At trial, Hall adamantly denied having any purpose in contacting Issa
beyond that of being curious about whether the owner of Superior Sunoco was related to
the members of the Salti family that he knew. Nevertheless, there is more than enough
evidence from the surrounding circumstances and testimony of the state’s witnesses for
the jury to find that Hall acted purposely with the intention of impairing potential
evidence when he contacted Issa. First, the state presented ample evidence of Hall’s
relationship with the Salti family going back to the late 1990s. Several of the Salti
family members, including Issa, regarded Hall as a friend, and such friendships could be
viewed by the jury as a motive for disclosing the information. Furthermore, Issa testified
that Hall told him that things needed to be “cleaned up” at the Superior Sunoco because
the police would be coming. Although Hall denies making this statement, the statement
alone, if believed, is sufficient to support a finding that Hall acted purposely to ensure
that evidence of the food stamp fraud would be altered, destroyed, concealed, or removed.
Moreover, the fact that Hall did not physically alter, destroy, conceal, or remove the
evidence himself is of no consequence. If Issa and Salti’s statements at trial are to be
believed, then Hall knowingly gave Salti information that encouraged Salti to get rid off
the evidence of food stamp fraud from the store, and Salti acted upon it. Accordingly, a
jury could find Hall was complicit in the destruction of evidence by knowing that the
destruction was likely to happen. Accordingly, we overrule the assigned error.
{¶23} In his second assignment of error, Hall argues that the trial court committed
reversible error when it permitted the state, over objection, to impeach Hall’s testimony
with specific acts evidence not relevant to Hall’s character for truthfulness.
{¶24} Ohio Evid.R. 608 governs how parties may attack witness credibility.
Specifically, section (B) explains when a party can impeach a witness with specific
instances of misconduct (noncriminal convictions) in order to attack the witness’s
character for truthfulness. This section states in relevant part:
Specific instances of the conduct of a witness, for the purpose of attacking
or supporting the witness’s character for truthfulness, other than conviction
of crime as provided in Evid. R. 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if clearly
probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the witness’s character for
truthfulness or untruthfulness * * *.
Id.{¶25} The decision whether to admit prior witness misconduct for impeachment
purposes under Evid.R. 608(B) is within the sound discretion of the trial court. State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 100, citing State v.
Boggs, 63 Ohio St.3d 418, 424, 588 N.E.2d 813 (1992). However, the court must be
mindful that evidence of prior bad acts should only be admitted where the evidence is
clearly probative of truthfulness or untruthfulness. Accord Drummond at ¶100-102; see
Evid.R. 608. Generally, prior bad acts that do not involve instances of dishonesty, are
not clearly probative of truthfulness. See State v. Tolliver, 16 Ohio App.3d 120, 474
N.E.2d 642 (8th Dist.1984) (explaining that, “[o]nly matters which are relevant to truth
and veracity, and not to a witness’s general moral character, are the proper subject of
cross-examination” and “[p]articular facts which tend to discredit the reputation of a
person who is sought to be impeached in other respects than as to his reputation for truth
and veracity are inadmissible.”).
{¶26} A review of the state’s cross-examination shows that the prosecution, from
the second question onward until several transcript pages into the examination, asked Hall
a barrage of questions regarding his prior bad acts, aimed at diminishing Hall’s
credibility. The prosecutor began the examination by commending Hall on some of the
accolades he received during his years on the police force, but then said, quite pointedly,
“but then on the other side, you’ve been in a little bit of trouble, have you not, with your
conduct?” before launching into a series of questions — which at times were not
questions at all but rather statements made by the prosecution — about Hall’s noncriminal
behavior. All questions were objected to by defense counsel in turn, and overruled by
the court. Accordingly, the state was allowed to ask Hall whether he hit somebody
during a bar fight, whether he was uncooperative with officers responding to that bar
fight, whether he encountered police officers while being intoxicated and belligerent in
the street, and whether he got into a second fight at a bar and again refused to identify
himself to responding officers. He was further questioned about allegations of menacing
and an allegation of domestic violence. Finally, he was asked about whether he showed
up to grand jury proceedings “without the right papers,” and instances of being
disciplined by the police force for unauthorized secondary employment and for wearing a
mask at a search warrant.
{¶27} None of these instances, maybe with the exception of the unauthorized
employment, reflect on Hall’s character for truthfulness. Accordingly, the court should
have sustained defense counsel’s objections and prevented the state from questioning Hall
on these acts.
{¶28} Although the state contends on appeal that Hall opened the door to the
questioning by discussing how long he has been a police officer, the well-intentioned
reasons for why he became an officer and the awards he has received as an officer, as
well as his calling another member of the police force to testify favorably about him, does
not allow the state to introduce noncriminal evidence of prior bad acts on
cross-examination to impeach him. Unless the prior acts clearly show Hall’s character
for untruthfulness, or directly contradict some statement that he made about himself, they
should not be allowed into evidence.
{¶29} Nevertheless, we have to conclude that the court’s error in admitting the
evidence did not prejudice Hall, and is therefore harmless. See Ryerson v. White, 8th
Dist. Cuyahoga No. 100547, 2014-Ohio-3233, ¶ 43 (a trial court error involving the
admission of evidence that does not affect a substantial right, does not prejudice the
defendant at trial, is not reversible error). Here, the evidence against Hall was
overwhelming. The state produced 13 witnesses who testified against Hall, with the
three most prominent witnesses — the agent, Issa, and Salti — giving detailed
descriptions of their conversations and interactions with Hall, that implicate him
considerably in the crimes for which he was convicted. We therefore overrule this
assigned error.
{¶30} In his final assignment of error, Hall contends that the trial court erred by
granting the state’s motion in limine which prevented him from calling certain law
enforcement witnesses to impeach Salti’s credibility. This assignment of error is not well
taken.
{¶31} Although Evid.R. 608(A) allows a party to call a character witness to testify
that another witness (the target witness) has a bad reputation for truthfulness, or that he
(the character witness) has a low opinion of the target witness’s character for truthfulness,
the decision whether to allow a character witness to testify is within the sound discretion
of the trial court. See State v. Solomon, 9th Dist. Summit No. 23545, 2008-Ohio-553, ¶
14. Generally, before a court will allow a character witness to testify about the
reputation of another witness, the proponent of the impeaching witness must show that
the impeaching witness is in a position to know the reputation of the witness to be
impeached. Id. “The impeaching witness must live in, do business in, or have some
other relationship with the community in which the witness to be impeached lives.” Id.,citing Radke v. State, 107 Ohio St. 399, 140 N.E. 586, (1923), paragraph one of the
syllabus. All of the impeaching witnesses that Hall wanted to call were law enforcement
officials. Thus, the witnesses’ opinions of Salti were formed through their run-ins with
him as a criminal. Accordingly, it cannot be said that these witnesses had a general
understanding of Salti’s reputation for truthfulness in the community. We therefore
cannot say that the court abused its discretion in granting the motion in limine.
{¶32} Additionally, Hall had a chance to extensively cross-examine Salti about his
many criminal convictions, including those exhibiting untruthful behavior such as his
fraud convictions. Therefore, there is no reason to believe that, even had the court erred
in denying the motion in limine, Hall was prejudiced by the denial.
{¶33} Judgment affirmed.
It is ordered that appellee recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE
LARRY A. JONES, SR., A.J., and
MARY EILEEN KILBANE, J., CONCUR