State v. Salti

• Decision Date: 17 January 2019
• Docket Number: No. 106834,106834
• Citation: 2019 Ohio 149
• Parties: STATE OF OHIO PLAINTIFF-APPELLEE v. RAED A. SALTI DEFENDANT-APPELLANT
• Court: Ohio Court of Appeals

2019 Ohio 149

STATE OF OHIO PLAINTIFF-APPELLEE v. RAED A. SALTI DEFENDANT-APPELLANT

No. 106834

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

January 17, 2019

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-17-620106-A

BEFORE: E.T. Gallagher, J., Kilbane, A.J., and Keough, J.

ATTORNEYS FOR APPELLANT

Mark Stanton

Cuyahoga County Public Defender

BY: Frank Cavallo

Assistant Public Defender

Courthouse Square, Suite 200

310 Lakeside Avenue

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O'Malley

Cuyahoga County Prosecutor

BY: Holly Welsh

Hannah Smith

Assistant Prosecuting Attorneys

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Raed Salti, appeals his convictions and claims the following five errors:

1. The trial court committed plain error by permitting the state to proceed on an indictment that should have been severed under Crim.R. 14, prejudicing appellant's right to a fair trial.

2. Appellant was denied the effective assistance of counsel in his trial.

3. The cumulative errors committed during the trial deprived appellant of a fair trial.

4. There was insufficient evidence produced at trial to support a finding of guilt on all counts.

5. The appellant was found guilty against the manifest weight of the evidence.

{¶2} Finding some merit to the appeal, we affirm the trial court's judgment in part and reverse it part.

I. Facts and Procedural History

{¶3} Salti was charged with twelve counts of rape in violation of R.C. 2907.02(A)(2), nine counts of kidnapping in violation of R.C. 2905.01(A)(4), seven counts of extortion in violation of R.C. 2905.11(A)(5), one count of compelling prostitution in violation of R.C. 2907.21(A)(2)(a), and one count of gross sexual imposition in violation of R.C. 2907.05(A)(1). The rape charges included repeat violent offender and sexually violent predator specifications. The state dismissed one count of rape and one count of kidnapping before trial.

{¶4} The indictment, which alleged offenses against eight victims over a period of several years, resulted from an investigation that began in March 2016 when K.K.¹ reported a rape to the Garfield Heights police. K.K. testified at trial that she met someone named "Becky" on a social media website called MeetMe. K.K. never met Becky in person or spoke with her over the phone, but conversed with her via text messaging. After several exchanges, Becky told K.K. that she knew someone who could offer K.K. a job in a convenience store called Max & Grady's in Garfield Heights. The store owner, identified as Rae, called K.K. to discuss the position and agreed to meet K.K. in person for an interview.

{¶5} Two days later, Rae, later identified as Raed Salti, picked K.K. up from her home and took her to the store for the interview. When they arrived, another man, whom K.K. believed tobe an employee, gave her an alcoholic beverage even though she was underage. K.K. was 19 years old at the time of these events. (Tr. 295.)

{¶6} During a tour of the store, Salti took K.K. into a storage room in the basement where he placed a belt around her neck and forced her to give him oral sex. He threatened to kill her if she refused, ejaculated in her mouth, and forced her to swallow his semen. (Tr. 289.) He told her to call him "Daddy," and threatened that she "better be a good girl" or he would come to her house and tell her parents what she had done.

{¶7} After the rape, Salti told her to close her eyes. When she opened them, a second man opened her mouth and forced her to perform oral sex on him. Salti took photographs and a videorecording of K.K. performing oral sex on himself and the other man. He also forced K.K. to remove the top of her dress and smile while he took a topless photograph of her.

{¶8} After the assaults, Salti gave K.K. another alcoholic beverage, told her to drink it, and warned there would be consequences if she failed to comply with his orders. Salti also demanded that K.K. smoke marijuana with him and his coworkers. Afterwards, Salti took K.K. to a strip club, but the bouncer would not admit her because she was underage. Thereafter, one of Salti's associates dropped K.K. off in her neighborhood, and she walked home. K.K. continued to communicate with Salti via text messaging in the ensuing days because he threatened her, and she did not want to endanger herself or her family.

{¶9} K.K. tried to believe the incident never occurred, that it was a horrible dream, and that she would wake up and everything would be okay. But K.K. could not deny the assault occurred because she received a text message, purportedly from Becky, asking: "How's my sister slut?" (Tr. 314.) She received a second text from Becky containing a photograph of herself performing oral sex on the second man in the storage room. The photograph was accompanied by a message that said: "That's so bad of you." (Tr. 314.)

{¶10} K.K. also received threats from Salti. Salti asked "[D]o I have to get you in trouble with Mommy and Daddy in order to grab your attention?" (Tr. 316.) In another message, he warned: "If you don't stay down on me, I promise to tell your parents how bad their daughter has been." In yet another message, he stated: "Happy St. Patrick's Day, you fucking bitch. I'll stop being mean to you if you remember to say good morning or good night or even hi, Daddy." (Tr. 317, 321.) The text messages were admitted into evidence at trial.

{¶11} When asked why K.K. did not immediately report the rape to her parents or the police, she explained that she was scared, did not know how to tell someone, and did not want to believe the incident really happened. (Tr. 328.) However, K.K.'s sister, who noticed a change in K.K.'s demeanor following the "interview," continually questioned K.K. about it. Consequently, K.K. told her sister and parents about the rape five days later, and her parents reported the rape to the Garfield Heights police. The police investigated the allegations and executed a search warrant of Max & Grady's where detectives seized, among other things, three cell phones, which led to the discovery of other victims. (Tr. 727, 729.)

{¶12} K.K. blocked Becky and Salti's phone numbers on her phone. However, a few days later, K.K. received a text from Salti containing his picture and a message that said: "Daddy misses his daughter." (Tr. 323.) The message was sent from a new phone number. (Tr. 322.) K.K. took a picture of the text and photograph and emailed it to Detective Carl Biegacki of the Garfield Heights Police Department, who used the photograph to identify Salti as the perpetrator.

{¶13} Biegacki testified that he interviewed Salti, who voluntarily unlocked two of the phones seized during the search. Biegacki downloaded photographs from the phones onto a computer before sending the phones to the Internet Crimes Against Children task force ("ICAC") for professional analysis. (Tr. 748.) Biegacki compared the photographs he downloaded with other extractions made by ICAC and was able to identify additional victims. Biegacki explained:

There were so many pictures on these phones, it's impossible to tell who all of these girls are. Some didn't have face shots, some just had shots of just their midsections and whatever, so I was fortunate enough to get some that actually had their phone numbers and some of them had their names written on certain texts or whatever. So running them through [OHLEG and LEADS],² I was able to determine where they live.

(Tr. 729.)

{¶14} Biegacki interviewed at least five additional victims depicted on Salti's phones, and they repeated similar stories:

Each girl or each lady that I talked to there were common threads in almost all the girls. The name Becky kept coming up. Some of the girls actually thought they were talking to Becky. Most of them did anyways. But really, it was Mr. Salti. And what would happen is they would send him nude photos thinking it was going to be Becky, then he would turn around and say, you know, I'm going to show everybody these pictures. I'm going to send them to your family, send them to your school, try to get these girls to have sex with him, he would do that; or threaten to send people to their house[s] to hurt them or their famil[ies].

(Tr. 731.) Some of the women identified from Salti's phone were not interested in talking to Biegacki, but others were relieved to finally report what happened to them. (Tr. 746-747.) Three of the victims identified on Salti's phone testified at trial in addition to other victims.

{¶15} Jason Howell, a digital forensic examiner assigned to ICAC, examined two of Salti's phones; a Samsung Galaxy Mini smartphone and a Samsung Galaxy S5 smartphone. The Galaxy Mini had four registered accounts on MeetMe, one Kik Messaging account under the name Jordan Davis 220, and a Snapchat instant messaging account with the username HolyBeckz1. Howell explained that other users on Snapchat would see the name HolyBeckz1 and "[t]hat's who they would think they were talking to." (Tr. 671.) The Galaxy Mini contained 5,559 images, many of which were taken for a social media application that was rebranded as MeetMe. (Tr. 672.)

{¶16} The Galaxy S5 contained 49 registered user accounts, including three MeetMe accounts with three different user names as well as accounts on Kik Messenger, Craigslist, Snapchat, Facebook Messenger, Instagram, Talktone, and others. Howell explained that applications such as Talktone allow a person to use a different phone number than the number associated with the phone and make calls through the internet. (Tr. 685.) When asked about his examination of the SD card, the portable digital storage device in the Galaxy S5, Howell replied:

There were several images and videos on the SD card. A lot of those images contained self-taken pictures from the suspect, commonly referred to as selfies, and there

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