State v. Kalna

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[Cite as State v. Kalna, 2020-Ohio-5016.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, Plaintiff-Appellee, v. DAVID KALNA, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 18 MA 0133 Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 18 CR 403 BEFORE: Carol Ann Robb, Gene Donofrio, David A. D’Apolito, Judges. JUDGMENT: Affirmed. Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and Atty. John Laczko, City Centre One, Suite 975, 100 East Federal Street, Youngstown, Ohio 44503 for Defendant-Appellant. –2– Dated: September 28, 2020 Robb, J. {¶1} Defendant-Appellant David Kalna appeals the judgment of the Mahoning County Common Pleas Court entered after a jury found him guilty of trafficking in persons and compelling prostitution. Appellant initially takes issue with the trial court’s denial of his motion to suppress which raised a Miranda argument. Appellant also claims the state failed to present sufficient evidence on the elements of the offenses. Finally, he asserts the jury verdict was contrary to the manifest weight of the evidence. For the following reasons, these arguments are overruled, and the trial court’s judgment is affirmed. STATEMENT OF THE CASE {¶2} On April 12, 2018, Appellant was indicted on three counts, all with regard to his daughter: (1) trafficking in persons (a child under 16 years of age); (2) trafficking in persons (for conduct occurring after the child turned 16); and (3) compelling prostitution (of a minor). Counts one and two were first-degree felonies, and count three was a thirddegree felony.1 On May 1, 2018, a detective interviewed Appellant while he was incarcerated, and Appellant denied the allegations against him. Appellant thereafter moved to suppress his statement, arguing the detective did not fully advise him of his Miranda rights and Appellant did not explicitly state that he wanted to waive his rights. (Supp.Mot.); (Supp.Tr. 3). After a suppression hearing, the court denied the suppression motion on September 26, 2018, finding the rights were adequately relayed by the detective and Appellant knowingly, intelligently, and voluntarily waived those rights. {¶3} The case was tried to a jury in November 2018. The victim testified that her family moved often, her parents both used drugs, and they struggled for money. (Tr. 190192). When she was 15 years old, she lived in a house on Lakeview Avenue in Youngstown with her father (Appellant), mother, and three younger sisters. She said they lived next to “a house full of Mexicans” one of whom said his name was Alex Ramirez. In the same indictment, co-defendant Alex Ramirez was charged with rape and compelling prostitution with regards to this victim. He was also charged with rape (of the victim’s sister) and gross sexual imposition (as to another sister). 1 Case No. 18 MA 0133 –3– (Tr. 190). Appellant would regularly instruct the victim to go to this house to borrow money. (Tr. 196). {¶4} Unbeknownst to the victim, Ramirez was in his mid-thirties (with a wife and children in Mexico). (Tr. 193-194). When Ramirez asked to take the victim out to a restaurant, Appellant charged Ramirez $25 for the opportunity. (Tr. 245). After dinner, Ramirez parked the car and sexually assaulted the victim by putting his hands down her pants and touching her in a way that hurt. She said he grabbed her, hit her, and threatened her. (Tr. 199, 245). {¶5} After the victim’s sister was hit in the head with a pipe by a neighbor, Appellant allowed Ramirez to live in the family’s house (for protection). (Tr. 200-201, 221). The victim said Ramirez slept in her room. (Tr. 201). The victim testified that Ramirez threatened to “beat [her] ass” if she did not perform oral sex on him. (Tr. 202). While she was 15 years of age, she estimated that she performed oral sex on Ramirez 10 to 15 times and was forced to have vaginal intercourse with him 20 to 25 times. (Tr. 212-213). She explained that he would pull her by the hair, grab her arms, hit her, kick her, and throw her around to force sex upon her. (Tr. 202-203). {¶6} The victim did not specifically tell Appellant that Ramirez was sexually assaulting her but “personally felt that my dad knew what happened but I didn’t know, and how could you not know something like that was going on.” (Tr. 224). She did not report the situation to authorities because she was afraid she would be removed from the house (away from her sisters) and because Appellant was still her father; when she initially spoke to a detective, she did not want her father charged. (Tr. 213-214, 222, 237). As to the understanding Appellant had with Ramirez, the victim explained that Ramirez would give Appellant money after Appellant would send texts threatening to tell the police about the situation between Ramirez and the victim. (Tr. 203-204, 211-212). {¶7} After three months, Ramirez moved out, but the victim still spent time with him. She said that if she refused, then Appellant would beat her, hit her, yell at her, and lock her in her room. (Tr. 204-205). Appellant also threatened to eject her from the family house if she refused to go out with Ramirez. (Tr. 206). The victim feared Appellant as he was violent if Ramirez delayed in providing money; she said Appellant would also hit her mother. (Tr. 236-237). On cross-examination, the victim admitted that she posted Case No. 18 MA 0133 –4– herself on Facebook as dating Ramirez; she explained that she alternately did not want people to know what was actually happening by masking the situation as a relationship while wishing to draw attention to her plight. (Tr. 229, 238). {¶8} When the victim was 16 years old, she traveled with Ramirez to Akron where he went to work on a roofing job; during this time, Appellant threatened to call the police if Ramirez did not send him money. (Tr. 205, 211, 232). A receipt showed that $45 was wired to the victim’s mother (as Appellant had no identification as required to accept the wire). (Tr. 211). In addition to providing Appellant with money, Ramirez also let Appellant use a Dodge Charger (which the victim’s mother later wrecked). (Tr. 208, 210). {¶9} The situation stopped in the summer of 2016, when Appellant called the police and the victim was charged with domestic violence against her sister and Appellant. (Tr. 214-215, 231). The victim did not speak with the detective about the events until February 2017. While Appellant was in jail, he tried to discourage her from testifying and tried to instruct her what to say. (Tr. 216-217). {¶10} The victim’s sister agreed that her parents had issues with drugs, her father could not keep a job, and her father was violent with the victim and their mother if he lacked money for drugs. (Tr. 253-255). She said they moved often (and were homeless at one point). She said Ramirez claimed to be 19 years old and then said he was 25 years old, but they later discovered he was 35 years old. (Tr. 256). This sister confirmed that her father forced the victim to spend time with Ramirez and would yell if she refused. (Tr. 257). She also confirmed that Ramirez stayed in the victim’s room when he moved in with them. (Tr. 260). {¶11} Neighbor 1 testified that he was formerly friends with Appellant and saw Appellant purchase pills. Three times, Appellant said to him, “for a hundred bucks you can have my daughter for the night.” (Tr. 292-293). The neighbor responded, “you’re Fing crazy.” (Tr. 294). He often heard Appellant “offer to sell the girls to the Mexicans” for $100 and say that “if they didn’t have money for the girls then they wouldn’t go over there.” (Tr. 293-294). This neighbor once called the police for a disturbance when Appellant was yelling and called Children’s Services three times. (Tr. 296). Case No. 18 MA 0133 –5– {¶12} Neighbor 2 testified that Appellant asked for money all the time; after seeing Appellant take pills, he started providing food instead of money. (Tr. 301-303). He confirmed that the family had Ramirez’s Charger. (Tr. 304). He said Appellant moved in with him for a short time after he moved from Lakeview Avenue. At that time, he heard Appellant on the phone with Ramirez saying that he needed to pay if he was going to be around his daughter. (Tr. 306-307). If Appellant was not paid, he would threaten violence or threaten to call the police. (Tr. 307, 309). This witness heard Appellant say that “if he was going to keep his daughter down there and not pay he’d go to jail for statutory rape because she’s a minor.” (Tr. 310). This witness called the police twice about violence in Appellant’s home and called Children Services and the school due to his concern with Appellant’s demands for money in return for the daughter. (Tr. 315). {¶13} Neighbor 3 testified that he often sat on his front porch. One time after midnight, he heard Appellant yell at the victim to get over to the next door neighbor’s house. This neighbor also heard Appellant call the victim “a little whore.” (Tr. 328). {¶14} A person who did carpentry jobs with Appellant said that during an argument, he asked Appellant, “What type of man sells his own kids?” Instead of denying the accusation, Appellant answered, “Who cares what I do with my kids. They’re my kids. I can do what I want with them.” (Tr. 338). {¶15} The state also presented testimony from a foster care agent, a nurse practitioner, a jail records officer, and the investigating detective. The detective testified that Appellant called his second oldest daughter multiple times from jail, instructing her to talk the victim out of testifying because there was no case without her; Appellant also said if the victim testified, then he was “done with her. She better get the fuck outta my house.” (Tr. 415-416). He instructed this child to get the victim “on board.” (Tr. 417-418). Although there was a no-contact order against Appellant, he also contacted the victim after using another’s inmate’s personal identification number; he told her what to say in court and how to say it. (Tr. 421-424). Parts of these jail calls were played to the jury. {¶16} The defense called a Youngstown police officer to the stand to testify that he responded to a call from Appellant on May 3, 2016. Appellant sought assistance in retrieving the victim from the neighbor’s house, but no one answered the door when they knocked. Hours later, the officer returned, and Appellant showed him a text from the Case No. 18 MA 0133 –6– victim saying “the police would just find a dead body” which the officer interpreted as meaning she would hurt herself. (Tr. 446). After she exited the house, she was transported to the hospital. {¶17} Appellant’s mother (the victim’s grandmother) testified that the victim introduced Ramirez as her boyfriend and they acted as if they were in love. (Tr. 449450). She said the victim wanted to run away with Ramirez instead of returning to her father. (Tr. 454). She acknowledged that Appellant lies to get away with things, has anger management problems, and acts controlling and violent. (Tr. 455). {¶18} The victim’s mother testified that she saw the victim with Ramirez between 10 and 20 times and said they appeared to be only friends. (Tr. 461). She said he stayed with them for just a week after an argument with the people in the house where he lived; there was a fight between two of those people, and one of her daughters ended up getting hit with a pipe. (Tr. 462). The victim’s mother said Ramirez was supposed to stay in the bedroom assigned to her son (who rarely stayed with them). (Tr. 460-462). She denied hearing Appellant indicate to Ramirez that he could have sex with the victim for money. (Tr. 462). {¶19} On cross-examination, the victim’s mother disclosed that when they lived on Lakeview Avenue, she worked a full-time job and had a second job as well, while Appellant was unemployed or doing odd jobs. (Tr. 467, 470). As a result, she was not often present at the home with the children. (Tr. 471). She acknowledged Appellant used pills (“roxies”) and she participated at times. (Tr. 468). She noted that she has been in a relationship with Appellant since they were teenagers, stating: “He was the man figure. He – I honestly – I gave the role to – you know, he was the – he was the provider and, you know, he took care of everything.” (Tr. 466). She admitted that Appellant’s behavior could turn violent. (Tr. 464-466). {¶20} Finally, the defense presented the testimony of Appellant’s second oldest daughter. She testified that the victim was in a relationship with Ramirez; she said she saw them kissing, holding hands, and going on dates. (Tr. 476). She testified that she also went to the house where Ramirez lived in order to receive money, noting the neighbors sometimes owed Appellant money for work he performed. (Tr. 477). She said Ramirez provided money to the victim, which the victim sometimes relayed to their father; Case No. 18 MA 0133 –7– she saw Ramirez give the victim $500 after they moved out of the father’s house and into their aunt’s house. (Tr. 478-479). She acknowledged that at times, they lacked food or water due to their parents’ drug issues. (Tr. 488). She also testified that Ramirez sexually assaulted her by putting his hand down her pants and penetrating her vagina, but she fought her way free. (Tr. 491). {¶21} The jury found Appellant guilty as charged. At sentencing, the parties agreed the charge of compelling prostitution merged with the human trafficking counts, and the state elected to proceed to sentencing on the human trafficking counts. The court imposed the maximum sentence of 15 years on each count of trafficking in persons to be served consecutively for a total of 30 years in prison. See R.C. 2905.32(E). Appellant filed a timely appeal from the November 13, 2018 sentencing entry, which was amended nunc pro tunc on January 24, 2019 to correct a typographical error. ASSIGNMENT OF ERROR ONE: MIRANDA {¶22} Appellant sets forth three assignments of error, the first of which provides: “THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE PREJUDICE OF APPELLANT AND VIOLATED HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT BY OVERRULING APPELLANT’S MOTION TO SUPPRESS AND ADMITTING INTO EVIDENCE APPELLANT’S STATEMENT GIVEN TO POLICE ON MAY 1, 2018.” {¶23} To protect the Fifth Amendment right to be free from self-incrimination and the Sixth Amendment right to counsel, the police must warn the suspect before a custodial interrogation “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Where a suppression motion challenges a Miranda waiver, the state has the burden to show by a preponderance of the evidence that the suspect knowingly, intelligently, and voluntarily waived his privilege against self-incrimination and his right to retained or appointed counsel before speaking to the police. State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶ 23, citing Miranda, 384 U.S. at 475. {¶24} “To determine whether a suspect knowingly, intelligently, and voluntarily waived his Miranda rights, courts examine the totality of the circumstances.” Barker, 149 Case No. 18 MA 0133 –8– Ohio St.3d 1 at ¶ 24. The totality of the circumstances can include: background and criminal experience; age, education, and intelligence; capacity and ability to understand the rights and the consequences of waiving those rights; the details of the interview (including length, frequency); and the existence of deprivation, mistreatment, threat, or inducement. State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 9. {¶25} The suppression motion challenged whether his Miranda rights were properly relayed to Appellant. As the trial court concluded, the detective reviewed each of the rights with Appellant. This is evidenced by the transcript of the interview attached to Appellant’s suppression motion and the DVD admitted as an exhibit at the suppression hearing, which allowed the trial court to watch and listen to the detective reciting the Miranda rights and Appellant’s responses. {¶26} On appeal, Appellant suggests the detective was required to specifically ask Appellant if he understood his Miranda rights. Before bringing Appellant to the interview room, the detective visited him in jail to ask him if he wanted to be interviewed. He said he did, and the detective transported him to the interview room where the proceedings were then recorded by video. When the detective began by noting that he previously spoke to Appellant about having an attorney, Appellant interrupted and said “let me do this.” Appellant then recited that he could stop the interview at any time by asking for his attorney. The detective added, “Or you could just say, I don’t want to interview.” The detective asked about the attorney appointed for Appellant at the initial proceedings and Appellant confirmed that this was still his attorney. {¶27} Then, the detective stated he was “going to give you Miranda warnings so you have a good understanding of them” and asked Appellant if he understood what Miranda warnings were. When the detective said, “You have the right to remain silent,” Appellant said, “Oh, yes, yes, yes, yes” while nodding his head. When the detective said, “Anything you say will be used against you in a court of law,” Appellant continued to nod his head and replied, “Absolutely.” When the detective spoke of Appellant’s right to an attorney and said an attorney will be appointed for him if he could not afford one, Appellant responded, “Absolutely.” {¶28} In sum, Appellant essentially voiced that he understood his rights. In any event, Miranda does not require a police officer to specifically ask and receive a direct Case No. 18 MA 0133 –9– response on whether a suspect understands his or her rights. Lather, 110 Ohio St.3d 270 at ¶ 13. Again, the totality of the circumstances is the standard for determining a defendant’s understanding and waiver. See id. at ¶ 9-13. {¶29} An issue touched upon in the suppression motion and confirmed as a defense argument at the suppression hearing was whether Appellant did in fact waive his rights. (Supp.Tr. 3). Appellant suggests that after reciting the rights, the detective was required to specifically ask him if he was waiving his rights and wait to receive an answer from Appellant. He urges that the court should not presume he waived his rights merely because he gave a statement. {¶30} On this topic, it has been stated that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” Miranda, 384 U.S. at 475. Nevertheless, it was subsequently explained how an express statement of waiver is not necessary. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 175, 560 L.Ed.2d 286 (1979). “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived” his Miranda rights. Id. The statement in Miranda (that mere silence is not enough) “does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights.” Id. Waiver can be inferred from the actions and words of the person interrogated. Id. {¶31} The Ohio Supreme Court recently addressed an argument that the police failed to secure a valid Miranda waiver because they did not specifically ask the suspect before the interrogation began whether he wanted to waive his rights and speak to them. In rejecting this argument, the Court explained: “a Miranda waiver need not be expressly made in order to be valid. * * * A court may infer a waiver from a suspect's behavior, viewed in light of the surrounding circumstances.” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 188, citing Butler, 441 U.S. at 373 {¶32} As explained above, Appellant said from jail that he wished to be interviewed and was thus brought to the interview room. The interview was in the afternoon and was not lengthy. Appellant began the interview by confirming his knowledge that he could ask for an attorney and stop the interview. He then indicated Case No. 18 MA 0133 – 10 – verbally that he understood the Miranda rights, which the detective recited to him. Appellant began talking without prompting or cajoling (after he replied “Absolutely” to the detective’s recitation of the final Miranda right). As the trial court pointed out, there was no intimidation, coercion, or deception by the detective. No promises or threats were made or implied. Appellant was 37 years old and had prior experience with the police and with the criminal justice system. He spoke well, did not appear to be under the influence of any substances, and portrayed the mental capacity to understand his rights and the implications of waiving his rights. He was permitted to use the restroom when he wished, and he returned from the restroom joking about a sign. Lastly, Appellant got angry, asked for his attorney, and ended the interview, at which point the detective proceeded to terminate the interview, collect his belongings, and exit the room. Appellant then called him back to re-engage. As the trial court pointed out, this further showed Appellant knew his rights, how to waive and exercise them, and the implications of both. The trial court rationally found from the totality of the circumstances that Appellant knowingly, intelligently, and voluntarily waived his Miranda rights. {¶33} Appellant’s brief sets forth an alternative issue that was not raised in the suppression motion or argued orally at the suppression hearing. The brief claims the detective failed to comply with Appellant’s mid-interrogation (post-Miranda waiver) statement that he was “done with the interview” and his accompanying unambiguous request for his attorney. Appellant made these requests 27 minutes into the interview (at 11:19:12 through 11:19:53 on the video). He was upset with the detective’s recitation of information Appellant gave earlier in the interview. Appellant said, “You’re gonna sit here and call me a liar. I’m done with the interview.” {¶34} The detective said, “Alright” and began packing his belongings. Appellant continued to talk, which prompted the detective to inquire if he wanted to keep talking; Appellant said he did not and wanted his lawyer. The detective finished packing, stood up, and started to exit the room, while Appellant continued to talk about the charges. As the detective was leaving the room, Appellant pleaded, “sit down and talk to me man.” This prompted the detective to ask Appellant if he wanted to continue talking, and Appellant said he wanted answers and continued speaking. approximately within a one-minute timespan. Case No. 18 MA 0133 This all occurred – 11 – {¶35} A defendant’s suppression motion must specify the grounds raised. See, e.g., State v. Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994) (“the defendant must state the motion's legal and factual bases with sufficient particularity to place the prosecutor and court on notice of the issues to be decided”); Crim.R. 47 (the motion “shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations”). “The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits.” City of Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). {¶36} As the state points out, the suppression motion (whether the written motion or the oral statement at the hearing) only raised the sufficiency of the Miranda rights and the lack of an explicit waiver. The motion did not argue that the detective was not permitted to re-engage with Appellant after Appellant said the interview was over and asked for counsel; nor did the motion cite law on this topic. Attached to the suppression motion was a transcript of the parts of the interview said to be relevant to the motion, which was only the first 5 pages (containing the Miranda rights, Appellant’s replies to the rights, and the very beginning of the interview). At the hearing, the video was played for the court, and the state used Appellant’s later invocation of his rights and his decision to continue the interview as part of the totality of the circumstances showing that he understood his rights and waived them knowingly, intelligently, and voluntarily. In defense counsel’s oral suppression arguments, he did not raise to the trial court an issue with the detective’s return to the interview after Appellant called him back. Finally, when the court summarized the issues before and after the hearing, counsel did not add to the suppression argument. (Supp.Tr. 2-3, 26-29). As such, the issue was not before the trial court and was not preserved for appeal. {¶37} Furthermore, when Appellant asked for his attorney, the detective stopped the interview, collected his belongings, and began to leave the room. Appellant called him back. Appellant’s brief cites law on the duty to stop questioning upon invocation of the right to remain silent and the right to counsel. See, e.g., Davis v. United States, 512 U.S. 452, 459-462, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (an unambiguous request for Case No. 18 MA 0133 – 12 – counsel mid-interrogation requires cessation of the interrogation); Michigan v. Mosley, 423 U.S. 96, 100-103, 96 S.Ct. 321, 325, 46 L.Ed.2d 313 (1975) (if the defendant indicates during questioning that he wishes to remain silent, the officer must scrupulously honor the request and cease the interrogation; the defendant controls the duration of the interrogation). {¶38} However, the brief does not then discuss why Appellant’s re-engagement of the interview was ineffective, where he invoked his right to stop the interview and his right to counsel but immediately kept talking, changed his mind, and called the officer back into the room. For instance, in holding that an interview cannot be re-instituted until the defendant has consulted with counsel where he stops an interview by asking for an attorney, the Supreme Court noted, “we do not hold or imply that Edwards was powerless to countermand his election * * *.” Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The accused who “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” (Emphases added). Id. at 484-485. Had Appellant raised the matter, the trial court may have found that, after invoking the right to stop the interview and obtain counsel, Appellant: “(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). {¶39} Moreover, the statements which were both given by Appellant at the interview and which were summarized by the detective at trial were not particularly incriminating. Appellant’s brief does not discuss whether the detective’s testimony could be considered harmless. The introduction at trial of information provided after a Miranda violation is subject to harmless error review. State v. Maxwell, 139 Ohio St.3d 12, 2014Ohio-1019, 9 N.E.3d 930, ¶ 122-123; State v. Miller, 8th Dist. Cuyahoga No. 106946, 2018-Ohio-4898, ¶ 37; State v. Savors, 7th Dist. Columbiana No. 09-CO-32, 2010-Ohio6084, ¶ 34. See also State v. Gomez, 6th Dist. Lucas No. L-17-1130, 2019-Ohio-576, ¶ 56 (“Because the statements made by appellant following his alleged invocation of his right to counsel were inconsequential to his conviction in this case, and in light of the overwhelming proof of appellant's guilt established by the remaining evidence that was Case No. 18 MA 0133 – 13 – introduced by the state, we find that any error in the trial court's denial of appellant's motion to suppress his post-Miranda statements was harmless”). Pursuant to Crim.R. 52(A): “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” If there was no prejudice from the introduction of the evidence and upon excising the offending evidence, there remains evidence beyond a reasonable doubt of the defendant’s guilt, an error can be adjudged harmless beyond a reasonable doubt. State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 33 (same test for constitutional and non-constitutional errors). {¶40} The May 1, 2018 statement sought to be suppressed was not a confession; nor was it played for the jury. At trial, the detective relayed a minimal amount of the information provided by Appellant at the interview. Some information in Appellant’s statement that was conveyed to the jury by the detective was merely a confirmation of background facts, such as that he lived on Lakeview Avenue with his daughters for two or three years, a group of people from Mexico lived next door, and he originally believed Ramirez was much younger. There was overwhelming evidence of these facts in any event. Other parts of Appellant’s statement mentioned in the detective’s testimony emphasized how Appellant made some denials that were at odds with the victim’s claims. For instance, the detective said Appellant denied Ramirez lived with them. (Tr. 405). However, this happened before Appellant made the mid-interrogation request for counsel, and thus, it would not have been affected by a termination of the interview. {¶41} Appellant’s brief does not specify what facts that were both learned after the interview resumed and mentioned in the detective’s trial testimony were prejudicial to him. Some of the contested facts may include the detective’s testimony that Appellant said: he did not receive money from Ramirez but then remembered receiving money by wire for food for the children; he did not receive a car from Ramirez (and laughed and asked where it was); and he did not have a drug issue. (Tr. 407). The detective’s recital of such statements could be considered harmless as there is no indication that it was prejudicial or contributed to the decision to convict Appellant; other evidence supports a finding of Appellant’s guilt beyond a reasonable doubt. In any event, as explained supra, the issue was not raised to the trial court. Case No. 18 MA 0133 – 14 – {¶42} For the various reasons set forth supra, this assignment of error is overruled. ASSIGNMENT OF ERROR TWO: SUFFICIENCY {¶43} Appellant’s second assignment of error provides: “THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS CONVICTIONS FOR TRAFFICKING IN PERSONS AND COMPELLING PROSTITUTION WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.” {¶44} Whether the evidence is legally sufficient to sustain a conviction is a question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing the sufficiency of the evidence, the court views the evidence in the light most favorable to the prosecution to ascertain whether any rational juror could have found the elements of the offense proven beyond a reasonable doubt. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). The rational inferences to be drawn from the evidence are also evaluated in the light most favorable to the state. See State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999). {¶45} An evaluation of witness credibility is not involved in a sufficiency review as the question is whether the evidence is sufficient if it is believed. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency involves the state's burden of production rather than its burden of persuasion. Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). If the court finds insufficient evidence to support a conviction, then a retrial is barred. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 16-20 (evidence presented by the state that was erroneously admitted by the trial court can be considered in the sufficiency evaluation because the remedy for the erroneous admission of prejudicial evidence is a new trial). {¶46} Appellant was convicted of violating both division (A)(1) and (A)(2)(a) of R.C. 2905.32, which provide in pertinent part: (A) No person shall knowingly recruit, lure, entice, isolate, harbor, transport, provide, obtain, or maintain, or knowingly attempt to recruit, lure, entice, Case No. 18 MA 0133 – 15 – isolate, harbor, transport, provide, obtain, or maintain, another person if any of the following applies: (1) The offender knows that the other person will be subjected to involuntary servitude or be compelled to engage in sexual activity for hire * * * (2) The other person is less than sixteen years of age * * * and either the offender knows that the other person will be subjected to involuntary servitude or the offender's knowing recruitment, luring, enticement, isolation, harboring, transportation, provision, obtaining, or maintenance of the other person or knowing attempt to recruit, lure, entice, isolate, harbor, transport, provide, obtain, or maintain the other person is for any of the following purposes: (a) To engage in sexual activity for hire * * *.” Where division (A)(1) refers to “knows that the other will be subject to involuntary servitude or compelled to engage in sexual activity for hire,” the statute provides: “the element of ‘compelled’ does not require that the compulsion be openly displayed or physically exerted. The element of ‘compelled’ has been established if the state proves that the victim's will was overcome by force, fear, duress, intimidation, or fraud.” R.C. 2905.32(B). The charge under division (A)(1) was for conduct occurring in the months after the victim turned 16, and the charge under division (A)(2)(a) was for conduct occurring during the year the victim was 15 years old. {¶47} Appellant takes issue with the element of knowingly. For instance, he says he did not knowingly recruit, provide, or isolate his daughter or attempt to do so with knowledge that she would be subjected to involuntary servitude or that she would be compelled to engage in sexual activity for hire. See R.C. 2905.32(A)(1),(2)(a). He also states he did not know his act of providing his daughter to Ramirez was for the purpose of engaging in sexual activity for hire. See R.C. 2905.32(A)(2)(a). Appellant concludes the state failed to prove there was an agreement whereby he knew he was receiving money from Ramirez in exchange for the sexual acts Ramirez compelled on the victim. Appellant also challenges the sufficiency of the evidence on his mens rea for the merged count of compelling prostitution, which has the following pertinent elements: “knowingly Case No. 18 MA 0133 – 16 – * * * Induce, procure, encourage, solicit, request, or otherwise facilitate * * * A minor to engage in sexual activity for hire * * *.” R.C. 2907.02(A)(2)(a). {¶48} Circumstantial evidence inherently possesses the same probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). “A conviction can be sustained based on circumstantial evidence alone.” State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991). This is especially true with regard to the element of intent. “A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature.” R.C. 2901.22(B). “A person has knowledge of circumstances when he is aware such circumstances probably exist.” Id. “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.” Id. {¶49} There was evidence from which some rational person could find Appellant acted knowingly. We incorporate by reference the facts set forth in our Statement of the Case in addition to the following highlights. Neighbor 1 heard Appellant offer to sell his daughters for $100 to the Mexican residents in the neighboring house. (Tr. 293-294). Appellant also offered the victim (and a different daughter) to this neighbor for $100 for a night. (Tr. 292-293). The victim testified that Appellant’s communications with Ramirez often involved him threatening to tell the police about continuing unlawful sexual encounters Ramirez had with the victim unless Ramirez provided Appellant with money as demanded. (Tr. 203-204, 211-212). Neighbor 2 (who let Appellant live with him at one point) confirmed that Appellant made such demands on Ramirez, with Appellant threatening to report Ramirez’s conduct with his daughter to the police if he did not continue paying. (Tr. 306-310). {¶50} The victim stated that if she refused to spend time with Ramirez, then her father would beat her, hit her, yell at her, lock her in her room, or threaten to eject her from the house. (Tr. 204-206). She feared Appellant and said Appellant would be violent toward her and her mother if Ramirez delayed in providing money. (Tr. 236-237). Neighbor 3 witnessed Appellant yelling at the victim in the middle of the night and ordering her to go to the residence where Ramirez lived; he also heard Appellant speak of the Case No. 18 MA 0133 – 17 – victim’s sexual relationship with an older man. (Tr. 327-328). The victim’s sister testified that Appellant forced the victim to spend time with Ramirez and that he would yell if she refused; she also said Appellant received money from Ramirez and the victim often retrieved it for him. (Tr. 257-259). A family friend said that when he confronted Appellant with his conduct of selling his child, Appellant did not deny the accusation and instead voiced that he could do what he wished with his children. (Tr. 338). {¶51} In a sufficiency evaluation, we view these facts and the rational inferences which can be drawn from the facts in the light most favorable to the state. See Goff, 82 Ohio St.3d at 138; Filiaggi, 86 Ohio St.3d at 247. Appellant is discounting the value of circumstantial evidence which can be just as powerful as direct evidence and has the same probative value. See Treesh, 90 Ohio St.3d at 485. Because a defendant's intent dwells in his mind, the surrounding facts, circumstances, and resulting inferences are all used to demonstrate intent. Id. For a sufficiency review, the question is merely whether “any” rational juror could properly have found the contested element satisfied beyond a reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Viewing all of the evidence and rational inferences in the light most favorable to the prosecution, a rational juror could find that Appellant had the requisite mental state of knowingly as he knew the requisite circumstances “probably” existed and all of the other material elements were established beyond a reasonable doubt as well. See R.C. 2901.22(B) (defining knowingly). In accordance, Appellant’s sufficiency argument fails, and this assignment of error is overruled. ASSIGNMENT OF ERROR THREE: MANIFEST WEIGHT {¶52} Appellant’s third assignment of error contends: “THE TRIAL COURT DENIED APPELLANT DUE PROCESS UNDER THE FOURTEENTH AMENDMENT DUE TO THE FACT HIS CONVICTIONS FOR TRAFFICKING IN PERSONS AND COMPELLING PROSTITUTION WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.” {¶53} Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.” Thompkins, 78 Ohio St.3d at 387. Although the effect of the evidence in inducing belief Case No. 18 MA 0133 – 18 – is evaluated, weight of the evidence is not a question of mathematics. Id. A weight of the evidence review considers whether the state met its burden of persuasion. See id. at 390 (Cook, J., concurring) (as opposed to the burden of production involved in a sufficiency review). When a defendant claims the conviction is contrary to the manifest weight of the evidence, the appellate court is to review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, 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. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins, 78 Ohio St.3d at 387. The discretionary power of the appellate court to grant a new trial on these grounds is to be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id. {¶54} “[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact occupies the best position from which to weigh the evidence and judge the witnesses' credibility by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We therefore proceed under the premise that when more than one competing interpretation of the evidence is available and the one chosen by the fact-finder is not unbelievable, we do not choose which theory we believe is more credible and impose our view over that of the fact-finder. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). {¶55} Although only two of the three appellate judges on the panel must vote to reverse a conviction on the grounds of sufficiency of the evidence, the situation is different for reversing a jury verdict on weight of the evidence grounds. Where a case was tried by a jury, only a unanimous appellate court can reverse on the ground that the verdict was against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 389, 678 N.E.2d 541, citing Ohio Constitution, Article IV, Section 3(B)(3). The power of the court of appeals to sit as the “thirteenth juror” is limited in order to preserve the jury's role with Case No. 18 MA 0133 – 19 – respect to issues surrounding the credibility of witnesses and the weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 389. {¶56} Appellant asks this court to consider the effect of any: contradicted, conflicting, and impeached evidence; items that were not proven; vague and uncertain evidence; and incredible, self-serving, or unreliable testimony. Appellant reiterates his argument on the element of knowingly, urging that the evidence weighs heavily against his knowledge. He suggests there was a lack of direct evidence that he knew Ramirez was compelling the victim to engage in sex because of the money he demanded from Ramirez or that he was a party to an agreement with Ramirez. For instance, Appellant says the totality of the evidence does not show he “unequivocally knew that [the victim] was being subjected to sexually assault * * *.” As to this statement, we make some observations that would also relate to the topic of sufficiency. {¶57} First, the “sexually assaulted” part of his argument appears to be attacking the elements concerning involuntary servitude or compulsion of the victim. This argument could be relevant to the count of human trafficking involving conduct after the victim turned 16, which has elements involving an offender who “knows that the other person will be subjected to involuntary servitude or be compelled to engage in sexual activity for hire.” See R.C. 2905.32(A)(1). However, the argument would not apply to the count for human trafficking of a child under 16 because in addition to having an element involving knowledge of involuntary servitude, that count had the alternative element involving a defendant who knowingly performs or attempts to perform certain acts (such as recruit, provide, or lure) for a purpose of “engag[ing] in sexual activity for hire.” 2905.32(A)(2)(a). See Similarly, the count for compelling prostitution of a minor merely required him to “knowingly * * * Induce, procure, encourage, solicit, request, or otherwise facilitate * * * A minor to engage in sexual activity for hire” (with no compelling or involuntary element). See R.C. 2907.21(A)(2)(a). Compare R.C. 2907.21(A)(1). {¶58} Second, we must point out that the mens rea of knowingly or the element of knowledge is not modified by the word “unequivocal.” As set forth supra, “A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware such circumstances probably Case No. 18 MA 0133 – 20 – exist.” R.C. 2901.22(B) (and knowledge of the existence of a particular fact can be established if the defendant subjectively believes that there is a high probability of that fact and fails to make inquiry or acts with conscious purpose to avoid learning it). {¶59} For the count of human trafficking after the victim turned 16, the element “compelled” can be performed by an actor other than the defendant. See R.C. 2905.32(A)(1). Moreover, the compulsion need not be openly displayed or physically exerted; this element is established if the state proves that the victim's will was overcome by force, fear, duress, intimidation, or fraud. R.C. 2905.32(B). We also reiterate how circumstantial evidence has the same value as direct evidence. Treesh, 90 Ohio St.3d at 485. We now review a sampling of the evidence relevant to weighing the evidence, while incorporating the information set forth in the Statement of the Case above. {¶60} A neighbor testified that Appellant offered the victim to him for the night in exchange for money. He also heard Appellant make incriminating statements about selling his daughter(s) to the neighboring “Mexicans.” When confronted by a friend, Appellant did not deny that he sold his daughter; instead, he voiced that he could do what he wanted with his daughters. Appellant was heard demanding money from Ramirez and threatening to stop the sexual encounters with the victim by calling the police if Ramirez did not meet his payment demands. {¶61} As to the victim’s credibility, Appellant points to testimony that the victim held Ramirez out as her boyfriend. The victim’s grandmother testified for Appellant (her son) and said she thought the victim and Ramirez were in love, and one of the victim’s sisters testified that they appeared to be dating. Their credibility was for the jury. The victim’s other sister testified for the state and observed that it did not seem like the victim wanted to go with Ramirez when forced to do so by their father. We also note the victim’s mother testified for the defense, and she said she only thought Ramirez and the victim were friends. Moreover, the victim explained that she may have created an illusion they were dating as a result of shame combined with a cry for help by bringing attention to the situation. It was also suggested that the situation confused the victim and the money provided by Ramirez may have eventually caused the victim to bond with her abuser. {¶62} The victim testified that her father forced her to spend time with Ramirez and ordered her to obtain money from him. A neighbor saw Appellant ordering her to the Case No. 18 MA 0133 – 21 – house where Ramirez lived in the middle of the night. The victim’s testimony was not incredible in the sense that the evidence would weigh heavily against Appellant’s convictions. She said Ramirez forced sex upon her on multiple occasions. She said her father forced her to be with Ramirez, even letting him move into her bedroom for a period. She also said her father continually asked Ramirez for money. The victim’s testimony about Appellant’s demands for money were confirmed by others who testified, including a friend who heard Appellant speak of an unlawful sexual relationship as his leverage for demanding money and letting Ramirez continue to spend time with his daughter. The jury saw the victim testify and could judge her credibility by weighing her voice inflection, demeanor, and gestures. This is also true regarding the testimony presented by the other witnesses. In addition, the circumstantial evidence and the reasonable inferences reasonably allow the jury to conclude the state met its burden of persuasion. {¶63} There was conflicting evidence. Appellant presented the testimony of a police officer who was called to help get the victim out of the neighbor’s home. As aforestated, Appellant presented the testimony of his mother, the mother of his daughters, and one of his other daughters in an attempt to counter the claims of the victim and impeach her credibility. The daughter who testified for the defense noted that she too would go to the house where Ramirez lived to borrow money and said Appellant would ask Ramirez to be paid for work he performed for him. She acknowledged that Ramirez gave the victim money, which the victim sometimes passed on to Appellant. She even saw Ramirez give the victim $500 one time. This child disclosed that Ramirez sexually assaulted her as well. She also acknowledged that they went without food or water due to their parents’ drug issues, which coincided with the victim’s testimony suggesting Appellant needed to obtain money in this manner due to his drug use. {¶64} Finally, the jury heard about jail calls from Appellant to this daughter where he encouraged her to talk to the victim about not testifying. He said the victim needed to “get on board” rather than saying the victim needed to tell the truth. He also contacted the victim from jail in violation of a no-contact order and told her what to say in court. {¶65} After reviewing the entire record, weighing the evidence and all reasonable inferences, considering the credibility of witnesses, and determining whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created a manifest Case No. 18 MA 0133 – 22 – miscarriage of justice, a unanimous panel does not agree that this is an exceptional case in which the evidence weighs heavily against his three convictions. See Lang, 129 Ohio St.3d 512 at ¶ 220, citing Thompkins, 78 Ohio St.3d at 387. This assignment of error is overruled. {¶66} For the foregoing reasons, the trial court’s judgment is affirmed. Donofrio, J., concurs. D’Apolito, J., concurs. Case No. 18 MA 0133 [Cite as State v. Kalna, 2020-Ohio-5016.] For the reasons stated in the Opinion rendered herein, the assignments of error are overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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