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Date: 01-11-2019

Case Style:

STATE OF OHIO -vs- GHANI M. KHALIFA-EL

Case Number: 2018CA00020

Judge: Patricia Delaney

Court: COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: JOHN D. FERRERO
KATHLEEN O. TATARSKY

Defendant's Attorney: DONOVAN HILL

Description:





On August 25, 2017, Detective Bob Rajcan of the Alliance Police
Department, Special Investigations Unit, was informed by a Confidential Informant (“CI”)
that he received a text from Franki Jo Collins stating she had heroin to sell. Franki Jo
Collins, wife of Defendant-Appellant Ghani M. Khalifa-El, was known to the police
department and had recently been released from prison for drug crimes. Det. Rajcan
agreed to finance the drug transaction.
{¶3} Det. Rajcan and the CI prepared for the controlled drug buy. The CI was
first searched by the police to make sure he did not possess any drugs or drug
paraphernalia. Det. Rajcan provided the CI with a syringe to give to Collins. It was known
that Collins would strip search the CI before the transaction, so the CI was fitted with an
audio recorder around his ankle, instead of using a video and audio recorder. Det. Rajcan
gave the CI $120.00 in cash, which was previously photocopied for later identification. A
surveillance team was assigned to monitor the drug transaction.
{¶4} Collins told the CI to come to a location on West Main Street, Alliance, Ohio,
near a corner market called Korosy’s Korner. The location was adjacent to the residence
Collins shared with Khalifa-El. Det. Rajcan parked in the apartment’s parking lot to
monitor the buy. Det. Rajcan was wearing a point-of-view camera to record what he was
Stark County, Case No. 2018CA00020 3

able to see of the drug transaction. Lieutenant Don Wensel was positioned nearby to pick
up the CI after the buy and transport any collected drugs to the police station.
{¶5} After being prepared for the drug buy, the CI met Collins at the Korosy’s
Korner store. Collins took the CI to the back of the nearby apartment building where she
checked him for a wire. She did not discover the audio recorder on the CI’s ankle. Collins
instructed the CI to go to the basement laundry room of the apartment building on West
Main Street. She told the CI the heroin would be in a sink in the laundry room. The CI was
to leave the money in the sink.
{¶6} The CI went to the basement laundry room and Collins waited in front of the
apartment building. In the laundry room, the CI did not see any heroin in the sink. The CI
started to walk up the stairs to tell Collins the heroin was not there when he saw Khalifa
El:
A. She said, Go down in the basement and the heroin is going to be in the
sink. And I was to put the money there, grab it and leave. Well, it wasn’t
there. So I started to go back up to tell here it wasn’t there and that’s when
Meech – I don’t know his name.
Q. Is Meech – is the Defendant the person you referred to as Meech?
A. Yeah, I don’t know his name. And he was standing down in the basement
as I was going back up to tell Franki that the heroin wasn’t there. But when
he seen me and stopped me, he’s like, Did she take care of you? Meaning
did she give me the heroin. I was like, No. And he’s like, That’s because I
put it – he had moved it. He said he moved it. I put it right there. It was on
Stark County, Case No. 2018CA00020 4

the stairs. And he told me to go put the money in the sink and grab the
heroin.
(T. 315-316).
{¶7} The CI put the money in the sink, took the heroin from the stairs, and left
the building. He was picked up by Lt. Wensel, who had the CI place the drugs on the floor
of the car. The CI and the drugs were transported back to the Alliance Police Department.
{¶8} Det. Rajcan observed Khalifa-El leave the apartment building and walk with
Collins to their residence. Det. Rajcan returned to the police department where he field
tested the retrieved drugs, which tested positive for heroin. Later that day, Khalifa-El was
arrested by the Alliance Police Department. Khalifa-El admitted to being in the basement
of the apartment building, but claimed he was there to see if the coin-operated washing
machine worked because the dryer in his apartment building was broken.
{¶9} The recovered drugs were tested by the Stark County Crime Lab. The
drugs were determined to contain heroin and U-47700. U-47700 is a Schedule I controlled
substance.
{¶10} On October 20, 2017, Khalifa-El and Collins were indicted by the Stark
County Grand Jury for their activities on August 25, 2017. The indictment charged Khalifa
El with one count of Aggravated Trafficking in Drugs, a fourth-degree felony in violation
of R.C. 2925.03(A)(1)(C)(1)(A), and one count of Trafficking in Heroin, a fifth-degree
felony in violation of R.C. 2925.03(A)(1)(C)(6)(A). The indictment alleged that Khalifa-El
either committed the crimes himself and/or aided or abetted another in so doing. Khalifa
El entered a plea of not guilty to both charges.
Stark County, Case No. 2018CA00020 5

{¶11} Khalifa-El was appointed trial counsel. The matter proceeded to a jury trial
where Khalifa-El elected to proceed pro se and trial counsel was placed on stand-by. The
jury returned a verdict of guilty on both counts.
{¶12} The trial court merged the offenses for sentencing purposes. The trial court
sentenced Khalifa-El to 17 months in prison.
{¶13} It is from this judgment Khalifa-El now appeals.
ASSIGNMENT OF ERROR
{¶14} Khalifa-El raises one Assignment of Error:
{¶15} “APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
ANALYSIS
{¶16} Khalifa-El contends in his sole Assignment of Error that his convictions were
against the manifest weight and sufficiency of the evidence. We disagree.
{¶17} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for
a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme
Court held, “An appellate court's function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the
Stark County, Case No. 2018CA00020 6

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.”
{¶18} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶19} Khalifa-El was convicted of violating R.C. 2925.03(A)(1)(C)(1)(a), which
states in pertinent part, “No person shall knowingly do any of the following * * * sell or
offer to sell a controlled substance or a controlled substance analog * * * [i]f the drug
involved in the violation is any compound, mixture, preparation, or substance included in
schedule I or schedule II, * * *, whoever violates division (A) of this section is guilty of
aggravated trafficking in drugs.” Khalifa-El was also charged and convicted of violating
R.C. 2925.03(A)(1)(C)(6)(a), which states in pertinent part, “No person shall knowingly do
any of the following * * * sell or offer to sell a controlled substance or a controlled
substance analog * * * [i]f the drug involved in the violation is heroin or a compound,
mixture, preparation, or substance containing heroin, whoever violates division (A) of this
section is guilty of trafficking in heroin.”
Stark County, Case No. 2018CA00020 7

{¶20} Khalifa-El argues in his appeal that the evidence presented by the State
was contradictory and insufficient to meet the elements of aggravated trafficking in drugs
and trafficking in heroin. Khalifa-El points to the testimony of Det. Rajcan to show there
was an absence of direct evidence that Khalifa-El was engaged in trafficking or aided or
abetted another in so doing. Det. Rajcan did not see Khalifa-El during the alleged
transaction. The drugs allegedly obtained from the drug transaction were not tested for
DNA or fingerprint evidence. While Det. Rajcan arrested Collins and Khalifa-El shortly
after the alleged transaction, the police never recovered the photocopied money used in
the transaction. There was no evidence presented that Khalifa-El was not permitted to be
in the basement laundry room. The State’s primary fact witness, the CI, had a criminal
record and a history of drug use.
{¶21} R.C. 2923.03 provides:
(A) No person, acting with the kind of culpability required for the commission
of an offense, shall do any of the following
* * *
(2) Aid or abet another in committing the offense.
{¶22} R.C. 2923.03(F) further states:
Whoever violates this section is guilty in the commission of an offense, and
shall be prosecuted and punished as if he were a principal offender. A
charge of complicity may be stated in terms of this section, or in terms of
the principal offense.
{¶23} Here, Khalifa-El was indicted for trafficking of drugs and heroin in terms of
the principal offenses and/or aiding or abetting another in so doing. By virtue of R.C.
Stark County, Case No. 2018CA00020 8

2923.03(F), Khalifa-El was on notice that evidence could be presented that he was either
a principal offender, or an aider and abettor. State v. Polite, 5th Dist. Stark No. 2017 CA
00129, 2018-Ohio-1372, 2018 WL 1747931, ¶¶ 56-58 citing State v. Dotson (1987), 35
Ohio App.3d 135, 138, 520 N.E.2d 240, 244. Even if the aiding and abetting language
was not included in the indictment, charging a defendant in an indictment as if he were a
principal will sustain proof that he acted as an aider and abettor of the principal. Id. citing
State v. Senzarino (C.P.1967), 10 Ohio Misc. 241, 39 O.O.2d 383, 224 N.E.2d 389; State
v. Smith (Mar. 25, 1988), Allen App. No. 1–85–48, unreported, 1988 WL 32979.
{¶24} Aiding and abetting may be shown by both direct and circumstantial
evidence, and participation may be inferred from presence, companionship, and conduct
before and after the offense is committed. State v. Cartellone, 3 Ohio App.3d 145, 150,
444 N.E.2d 68 (8th Dist.1981), citing State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d
884 (4th Dist.1971). Aiding and abetting may also be established by overt acts of
assistance such as driving a getaway car or serving as a lookout. Id. at 150, 3 OBR 163,
444 N.E.2d 68. See State v. Trocodaro, 36 Ohio App.2d 1, 65 O.O.2d 1, 301 N.E.2d 898
(10th Dist.1973); State v. Lett, 160 Ohio App.3d 46, 52, 2005–Ohio–1308, 825 N.E.2d
1158, 1163 (8th Dist.).
{¶25} The State presented evidence that Khalifa-El actively participated and/or
aided or abetted in the drug transaction. Collins directed the CI to the basement laundry
room to pick up the drugs and leave money in the laundry room sink. Khalifa-El was in
the basement laundry room when the CI went there as directed. Khalifa-El admitted to
being in the laundry room at the time the CI was there. The CI testified Khalifa-El asked
him whether he was taken care of, told him to leave the money in the sink, and directed
Stark County, Case No. 2018CA00020 9

the CI to the steps where the CI found the drugs. On cross-examination, the CI did not
waver from his description of his interaction with Khalifa-El in the basement laundry room.
The CI left the basement laundry room with drugs that were immediately collected by the
police and tested positive for heroin and U-47700.
{¶26} The jury was free to accept or reject any or all of the evidence offered by
the parties and assess the witnesses' credibility. Indeed, the jurors need not believe all of
a witness' testimony, but may accept only portions of it as true. State v. McGregor, 5th
Dist. Ashland No. 15-COA-023, 2016-Ohio-3082, 2016 WL 2942992, ¶ 10. In this case,
the jury believed the testimony of Det. Rajcan and the CI that Khalifa-El was in the
basement laundry room as an active participant and/or aided or abetted in trafficking of
heroin and drugs.

Outcome: Based on our review of the record, we find Khalifa-El’s conviction was not
against the sufficiency or manifest weight of the evidence.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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