STATE OF OHIO v. JAY P. BAKHSHI
C.A. CASE NO. 25585
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
March 28, 2014
[Cite as State v. Bakhshi, 2014-Ohio-1268.]
T.C. NO. 12CRB6319. (Criminal appeal from Municipal Court)
Rendered on the 28th day of March, 2014.
AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant City Prosecutor, 335 W. Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek, Ohio 45434
Attorney for Defendant-Appellant
FROELICH, P.J.
{¶ 1} Jay Bakhshi was found guilty after a jury trial in the Dayton Municipal Court of gambling, in violation of
{¶ 2} Bakhshi appeals from his conviction, claiming that his conviction was based on insufficient evidence and was against the manifest weight of the evidence, that he was denied effective assistance of counsel, that he was the victim of selective prosecution, and that the trial court abused its discretion at sentencing. For the following reasons, the portion of the trial court‘s sentence that required community service as a condition of community control will be reversed, and the matter will be remanded for resentencing on that condition; in all other respects, the trial court‘s judgment will be affirmed.
I. Factual and Procedural History
{¶ 3} The State‘s evidence at trial established the following facts.
{¶ 4} Bakhshi‘s friend, co-defendant Thomas Boscarino, rented the IUE-CWA Union Hall on Woodman Avenue in Dayton to hold a fundraising event for Boscarino‘s adult son, Nikolaos, on July 28, 2012. Nikolaos had been involved in a physical altercation with police officers, resulting in legal and medical expenses. Boscarino did not rent the facility for use by a non-profit charitable organization, as recognized by the IRS.
{¶ 5} On the day of the event (July 28), the Dayton Police Department received a complaint that Boscarino would be holding an event involving illegal gambling and illegal liquor sales at the IUE Hall. Lieutenant Stivers called Sergeant Gary Lowe, who then contacted Detective Raymond St. Clair and asked him (St. Clair) to contact Detectives Thomas Oney and Doug George to see if they would conduct an undercover investigation. Detectives Oney and George agreed to participate in the investigation, and they reported to
{¶ 6} At approximately 10:00 p.m., Detectives Oney and George went to the IUE Hall, in plain clothes, to enter the facility. Outside was a sign advertising, “Sat 28 July 5 PM to MID, $15 donation, all you can eat pizza and beer.” The detectives paid the requested $15 donation and were provided an orange wristband and cup. Upon entering, they went to the bar area near the kitchen, where the detectives obtained beer (for no additional cost) and Detective George got a shot of Jack Daniel‘s for $2. The detectives then got pizza from another table.
{¶ 7} The detectives noticed people playing cards on the other side of the IUE Hall. They went over and saw that the individuals were playing Texas Hold ‘Em, a “standard poker game.” Bakhshi was the dealer for the table. As the games were played, people placed bets with poker chips in accordance to Texas Hold ‘Em rules. Once the hand was completed, Bakhski raked in the chips and counted them. Bakhshi took a small percentage of the chips from the table, placed them in a small plastic container that was sitting on a seat to his left, and then gave the remainder of the “pot” to the winning player. The detectives recognized that the amount taken by Bakhshi was a “cut,” a portion retained by the “house” as profit for whoever is operating the game.
{¶ 8} After watching a few hands, Detective Oney went back to the kitchen area and purchased $25 of poker chips. Oney received black and white poker chips, which were worth $1 (white) and $5 (black). When a seat opened up at Bakhshi‘s table, Oney began to play. He asked Bakhshi what the cut was, and Bakhshi indicated it was about ten percent,
{¶ 9} Play at the table stopped when Boscarino stepped onto a small stage and gave a short speech. During his talk, Boscarino indicated that there were two Dayton police officers at the event. Oney testified that people started staring at him and Detective George.
{¶ 10} After Boscarino‘s speech concluded, Detective Oney contacted his supervisor and informed him that his and Detective George‘s identities had been compromised, that beer was being sold, and that Texas Hold ‘Em was being played with a cut. Players resumed playing poker, and Detective George purchased $40 worth of poker chips from Bakhshi and sat down to play. At this time, Bakhshi brought out a sign describing the game and method of donation. Bakhshi also began asking the players if it were alright if they contributed a ten percent donation. Detective Oney also resumed playing until uniformed officers and other detectives arrived.
{¶ 11} When uniformed police officers arrived, the IUE Hall was “locked down” and Detective George identified some of the people that he observed engaging in illegal activity. Numerous items were collected pursuant to a search warrant. Those items included poker chips, cards, kegs of beer, bottles of liquor, a television, a computer, invoices, flyers, money totaling $2,561.25, a vial of Miller Lite beer and a vial of Jack Daniel‘s, cups, and wrist bands.
{¶ 12} Bakhshi was arrested and charged by complaint with gambling. Upon motions by Bakhshi and the State, the case was consolidated with those of his five
{¶ 13} Bakhshi appeals from his conviction, raising five assignments of error.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 14} Bakhshi‘s first and second assignments of error claim that his conviction was based on insufficient evidence and was against the manifest weight of the evidence.
{¶ 15} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing whether the State has presented sufficient evidence to support a conviction, the relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless “reasonable
{¶ 16} In contrast, “a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’ refers to a greater amount of credible evidence and relates to persuasion”). When evaluating whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 17} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). However, we may determine which of several competing inferences suggested by the evidence should be preferred. Id. The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175.
{¶ 18} Bakhshi was convicted of gambling, in violation of
{¶ 19}
{¶ 20} Bakhshi argues that his conviction for gambling should be reversed for three reasons. First, he asserts Texas Hold ‘Em is not a “game of chance.”
{¶ 21} Second, Bakhshi claims that there was no evidence that he was going to
{¶ 22} Upon review of the record, the State presented evidence that the Texas Hold ‘Em table was a “game of chance conducted for profit,” i.e., it was “designed to produce income for the person who conducts or operates the game of chance.” See
{¶ 23} Third, Bakhshi asserts that
{¶ 24} Additional comments by the Legislative Service Committee further illustrate, however, that the reach of
The penny-ante poker game in one‘s own home with friends, the dime-a-hole Saturday golf match, and the office football pool are not prohibited, unless some profit is taken other than the gain accruing to a winner. If a nominal charge is made for admission or for a seat in the game, or a small percentage of the pot or pool is taken, or the house takes an edge in the odds, then profit enters the picture.
(Emphasis added.)
{¶ 25} The evidence at trial reveals that Boscarino organized the July 28, 2012 event to be a fundraiser for his son‘s legal and medical expenses. Although there is no evidence that Boscarino conducted similar gambling operations on an ongoing basis, the Texas Hold ‘Em table fell within the scope of
{¶ 26} Bakhshi‘s gambling conviction was based on sufficient evidence and was not against the manifest weight of the evidence. The first and second assignments of error are overruled.
III. Ineffective Assistance of Counsel: Speedy Trial
{¶ 27} In his third assignment of error, Bakhshi states that he “was deprived of effective assistance of counsel.” Bakhshi claims that his trial counsel rendered ineffective
{¶ 28} We review alleged instances of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland at 688. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel‘s conduct fell below an objective standard of reasonableness and that his or her errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id.
{¶ 29} The right to a speedy trial is guaranteed by the
{¶ 30} A defendant can establish a prima facie case for a speedy trial violation by demonstrating that the trial was held past the time limit set by statute for the crime with which the defendant is charged. State v. Gray, 2d Dist. Montgomery No. 20980, 2007-Ohio-4549, ¶ 15. “If the defendant can make this showing, the burden shifts to the State to establish that some exception[s] applied to toll the time and to make the trial timely. If the State does not meet its burden, the defendant must be discharged.
{¶ 31} Bakhshi was charged with a first-degree misdemeanor. A person charged with a first-degree misdemeanor or another misdemeanor for which the penalty is imprisonment for more than 60 days must be brought to trial within 90 days after the person‘s arrest or service or summons.
{¶ 32} The time within which a defendant must be brought to trial may be extended for the reasons specifically enumerated in
{¶ 33} Bakhshi was arrested on July 29, 2012, and the trial was originally scheduled for September 13, 2012. The trial date was reset by the court, sua sponte, to October 17, 2012, due to (1) an older case that took precedence and went forward with a jury on September 13, and (2) the parties made the court aware that the consolidated cases would require a three-day trial, instead of the two days that are normally required.
{¶ 34} The case was again continued on October 2, 2012, when the trial court
{¶ 35} Bakhshi claims that his speedy trial rights were violated when the trial court granted, over his objection, the State‘s October 2, 2012 motion for a continuance due to a back-up at the laboratory. The State responds that Bakhshi‘s speedy trial time was extended by several tolling events, including Bakhshi‘s request for discovery, his motion to consolidate his case with those of his co-defendants, his request for a bill of particulars, the trial court‘s sua sponte continuance of the September trial date, and the State‘s request for a continuance due to a delay in obtaining laboratory results.
{¶ 36} We agree with the State that Bakhshi‘s speedy trial rights were not violated when he was brought to trial on November 8, 2012. Bakhshi filed several motions that tolled the speedy trial time. For example, he filed a demand for discovery on August 3, 2012, and a motion for a bill of particulars on August 14, 2012. A defendant‘s demand for discovery or a bill of particulars is a tolling event, pursuant to
{¶ 37} In addition, prior to the expiration of Bakhshi‘s speedy trial time, the State moved for – and the trial court granted – a continuance of the trial date on the ground that “[t]he Lab is backed up and results are not yet available.” We find no fault with the trial court‘s conclusion that a continuance for purposes of awaiting laboratory results was “reasonable and for good cause,” or with a 13-day delay of the trial date (from October 26 to November 8) on that basis. Given this conclusion, we need not address the other alleged bases for tolling the speedy trial time.
{¶ 38} In summary, Bakhshi‘s right to a speedy trial was not violated when he was brought to trial on November 8, 2012. Consequently, his trial counsel did not provide ineffective assistance when counsel failed to move for a dismissal on speedy trial grounds.
{¶ 39} Bakhshi‘s third assignment of error is overruled.
IV. Selective Prosecution
{¶ 40} In his fourth assignment of error, Bakhshi claims that he was subject to selective prosecution. His complaint appears to be more one of targeted enforcement, rather than constitutionally-prohibited selective prosecution.
{¶ 41} In general, the decision whether to prosecute a criminal offense is left to the discretion of the prosecutor. State v. Turner, 192 Ohio App.3d 323, 330, 2011-Ohio-393, 949 N.E.2d 57 (2d Dist.), citing United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). The prosecutor‘s decision is entitled to a “strong presumption of regularity,” and a defendant must do more than simply show that others who are similarly situated were not prosecuted. Id., citing Cleveland v. Trzebuckowski, 85 Ohio St.3d 524, 533, 709 N.E.2d 1148 (1999). A defendant claiming selective prosecution
“ ‘bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government‘s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.’ ” State v. Flynt (1980), 63 Ohio St.2d 132, 134, 17 O.O.3d 81, 407 N.E.2d 15, quoting United States v. Berrios (C.A.2, 1974), 501 F.2d 1207, 1211.
State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 44.
{¶ 42} Bakhshi asserts that the July 28 fundraising event was targeted by the police, because the purpose of the event was to raise money for Boscarino‘s son, Nikolaos, who had accumulated legal and medical expenses arising out of an altercation with a police officer at Taggart‘s bar in Dayton.
{¶ 43} Sergeant Lowe testified that he was called by Lieutenant Stivers because Stivers‘s confidential informant had reported a fundraiser for the Boscarino defense. The primary concern was illegal alcohol sales and gambling. Stivers also told Lowe that there
{¶ 44} The record does not support Bakhshi‘s claim of selective prosecution or targeted enforcement (even assuming the latter is prohibited). Bakhshi does not attempt to identify other individuals who held a similar event, with illegal gambling and distribution of alcohol through “donations”, but were not prosecuted. Nor is there any evidence that the prosecution was based on any constitutionally impermissible consideration. In addition, the testimony of Oney, George, St. Clair, and Lowe at trial reflects that none of the police officers who conducted the investigation of Boscarino‘s fundraiser was involved in the events regarding Nikolaos at Taggart‘s, and none of the officers had a close association with the officer who was allegedly injured by Nikolaos. We can glean nothing from the record that the decisions to arrest and prosecute Bakhshi were acts of intentional and purposeful discrimination.
{¶ 45} Bakhshi‘s fourth assignment of error is overruled.
IV. Sentencing
{¶ 46} Bakhshi‘s fifth assignment of error claims that the trial court abused its discretion in sentencing him. He states that he is a business man without a history of “persistent criminal activity,” that the event was a one-time event, that his intent was simply to help his friend, Boscarino, and that he did not commit the worst form of the offense. Bakhshi claims that his sentence was excessive under the circumstances.
{¶ 47} When sentencing for a misdemeanor offense, the trial court is guided by the “overriding purposes of misdemeanor sentencing,” which are to protect the public from future crime by the offender and others and to punish the offender.
{¶ 48} “A trial court is also required to consider the nature and circumstances of the offense, whether there was a history of persistent criminal activity or character that reveals a substantial risk of the offender committing another offense, and numerous other factors related to the offender and the offense.
{¶ 49} We review misdemeanor sentences for an abuse of discretion. State v. Peagler, 2d Dist. Montgomery No. 24426, 2012-Ohio-737, ¶ 3.
{¶ 50} Pursuant to
{¶ 51} At sentencing, the State argued that Bakhshi “understood what he was doing was wrong.” The prosecutor commented that Bakhshi‘s “attitude” changed after Boscarino‘s speech, when Boscarino stated that police officers were present, and that Bakhshi continued with the illegal behavior after the speech. The State argued that there needed to be a “serious consequence” for Bakhshi‘s actions.
{¶ 52} In response, defense counsel told the trial court that Bakhshi‘s sole purpose in helping with the July 28 event was to help the family of a friend. Counsel stated that “[h]is error in judgment, if there is one, was in helping his friend and getting caught up in that whole thing.” Counsel informed the court that Bakhshi led a law-abiding life and is a productive member of society. When asked by the court, Bakhshi stated that he is self-employed and that he has owned his own construction company for “going on four
{¶ 53} The trial court orally imposed a suspended 180-day jail term, one year of non-reporting community control (with the condition that he complete 500 hours of community service), a $1,000 fine, and court costs, including jury costs. The trial court‘s judgment entry, filed on January 7, 2013, reflected that sentence and included an additional condition that the 500 hours of community service be performed by April 19, 2013.2
{¶ 54} From the record on appeal, it is difficult to reconcile the circumstances of Bakhshi‘s offense with the imposition of the maximum $1,000 fine and maximum 500-hour community service requirement. Bakhshi was not the organizer of the event, and his involvement was limited to being the dealer at the Texas Hold ‘Em table, an act he performed for free on a one-time basis for his friend. Unlike his co-defendant Boscarino, there is no evidence that Bakhshi aimed to profit from the event or had any control over how the profits would be used. Nevertheless, given the financial implications of a gambling offense, we cannot conclude that the trial court abused its discretion in imposing a $1,000 fine. In addition, we cannot conclude that the jail term, which was suspended in its entirety, was unreasonable.
{¶ 55} The trial court did err when it ordered Bakhshi to complete 500 hours of community service by April 19, 2013. The trial court sentenced Bakhshi on January 3, 2013 to 500 hours of community service. In the judgment entry filed on January 7, 2013, it
{¶ 56} A defendant has a right to be present at every stage of a criminal proceeding, including sentencing.
{¶ 57} Bakhshi was not informed at his sentencing of the condition that he complete 500 hours of community service by April 19, 2013. The addition of a specific time limitation in the trial court‘s judgment entry violated his right to notice and due process. We therefore conclude that the trial court erred in its imposition of community service as a condition of Bakhshi‘s community control. Accordingly, the community service condition imposed in the judgment entry is reversed, and the matter is remanded for resentencing on this condition.
{¶ 58} Bakhshi‘s fifth assignment of error is overruled in part and sustained in part.
V. Conclusion
{¶ 59} The portion of the trial court‘s judgment that required community service as a condition of community control will be reversed, and the matter will be remanded for resentencing on that condition. In all other respects, the trial court‘s judgment will be affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Amy B. Musto
Robert Alan Brenner
Hon. Carl Sims Henderson