Opinion
C. A. 29492
07-07-2023
STATE OF OHIO Appellee v. BINALI DADAYEV Appellant
AMY B. MUSTO, STEPHANIE L. COOK, & ANDREW D. SEXTON, Attorneys for Appellee COLIN P. COCHRAN, Attorney for Appellant
(Criminal Appeal from Municipal Court) Trial Court Case No. 21CRB927
AMY B. MUSTO, STEPHANIE L. COOK, & ANDREW D. SEXTON, Attorneys for AppelleeCOLIN P. COCHRAN, Attorney for Appellant
OPINION
EPLEY, J.
{¶ 1} Binali Dadayev appeals from his convictions for soliciting and loitering to engage in solicitation following a jury trial in the Dayton Municipal Court. Dadayev claims that the trial court erred in failing to give a jury instruction on entrapment. For the following reasons, the trial court's judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} On March 15, 2021, Dayton police officers conducted a prostitution sting operation near the intersection of East Third Street and More Avenue, an area known for prostitution activity. Detective John Howard led the operation and watched from an unmarked vehicle. Officer Chelsea Weitz worked undercover as a decoy.
{¶ 3} In the late morning, while the operation was underway, Dadayev drove down Third Street and turned northbound onto More Avenue. He maintained eye contact with Officer Weitz as he turned, pulled to the side of the road on More, and then pumped his brake lights. After Officer Weitz approached, the two briefly spoke. The conversation resulted in an agreement that Weitz would provide a "blow job" for $15. Other officers followed Dadayev to his house on Wright Avenue, where he was arrested.
{¶ 4} Dadayev was charged by complaint with loitering to engage in solicitation in violation of R.C. 2907.241(A)(1) and soliciting in violation of R.C. 2907.24(A), both third-degree misdemeanors. Prior to trial, Dadayev presented a proposed jury instruction on entrapment. The State objected to the proposed instruction and sought an order prohibiting Dadayev's counsel from referring to entrapment during voir dire, opening statement, or closing. Alternatively, the State asked for an instruction to disregard all references to entrapment should defense counsel raise entrapment and then fail to present evidence to support it. The record does not contain a ruling on the State's motion.
{¶ 5} The matter proceeded to a jury trial in March 2022. Detective Howard and Officer Weitz testified for the State, and the prosecution also presented an audio- recording of the encounter. The defense offered photographs of the intersection where the encounter occurred, and Dadayev's wife testified on his behalf. Before closing arguments, defense counsel again asked for a jury instruction on entrapment. After hearing from counsel for both sides, the trial court denied the request, reasoning that the defense had not presented evidence to support a finding of entrapment by the government. After deliberating, the jury found Dadayev guilty of both offenses.
{¶ 6} The trial court sentenced Dadayev to 60 days in jail, of which 59 were suspended and credit was given for 1 day served. The court also imposed community control sanctions, including one year of basic supervision, HIV testing, and completion of "Johns' School." Dadayev was ordered to pay fines totaling $100 and jury costs. Except for the HIV testing requirement, the trial court stayed the sentence pending appeal.
{¶ 7} Dadayev appeals from his convictions, raising one assignment of error.
III. Entitlement to Jury Instruction on Entrapment
{¶ 8} In his assignment of error, Dadayev claims that the trial court erred in failing to give a jury instruction on entrapment.
{¶ 9} Jury instructions "must be given when they are correct, pertinent, and timely presented." State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995). A trial court must fully and completely give jury instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the factfinder. State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus; State v. Portis, 2d Dist. Montgomery No. 28677, 2021 -Ohio-608, ¶ 46. "[A] trial court does not err in failing to instruct the jury on an affirmative defense where the evidence is insufficient to support the instruction." (Citations omitted.) State v. Wendling, 2d Dist. Montgomery No. 29074, 2022-Ohio-496, ¶ 29.
{¶ 10} A trial court has discretion to determine whether the evidence presented at trial was sufficient to warrant a particular instruction. State v. Gibson, 2019-Ohio-1022, 133 N.E.3d 1006, ¶ 21 (2d Dist.). "In reviewing the record to ascertain the presence of sufficient evidence to support the giving of a [particular] jury instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." Id., quoting State v. Stevens, 2017-Ohio-498, 85 N.E.3d 119, ¶ 37 (12th Dist.).
{¶ 11} We review a trial court's decision whether to give a requested jury instruction for an abuse of discretion. Wendling at ¶ 30. An abuse of discretion occurs when the trial court's decision displays an attitude that is arbitrary, unreasonable, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 12} In this case, Dadayev requested an instruction on the affirmative defense of entrapment, which Dadayev had the burden of proving by a preponderance of the evidence. Wendling at ¶ 31; State v. Graham, 2019-Ohio-2033, 136 N.E.3d 959, ¶ 9 (2d Dist.), citing State v. Doran, 5 Ohio St.3d 187, 193, 449 N.E.2d 1295 (1983); R.C. 2901.05(A). An entrapment defense is established when the evidence demonstrates "the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute." Doran at 192. However, entrapment does not occur when the police merely afford an opportunity for the commission of an offense that the perpetrator was predisposed to commit. Id; Wendling at ¶ 31.
{¶ 13} Here, the State presented evidence that Dadayev initiated the encounter with Officer Weitz. Officer Weitz testified that Dadayev made eye contact with her as he was driving down Third Street. He continued that eye contact as he turned onto More Avenue and then "turned in his seat to be able to still make contact." Weitz stated that eye contact is one of the biggest indicators they have of someone's trying to solicit a prostitute. The officer further testified that Dadayev had pulled over to the side of the road approximately 15 yards from the intersection and started pumping his brakes, which is another indicator that the driver wants a prostitute to come talk. In response to Dadayev's conduct, Weitz started walking north on More toward his vehicle. When she hesitated, Dadayev "did it again," so she started crossing the street to go to the driver's side of his car. Dadayev nodded his head toward the passenger side, so Weitz went around to the passenger side. Dadayev reached over and opened the passenger door. Officer Weitz held the door open and spoke with him.
{¶ 14} According to Officer Weitz, Dadayev started out by asking if she "worked," which Weitz defined as "Are you a prostitute? Are you on duty?" Weitz responded affirmatively. Dadayev then asked her to get into the vehicle. Weitz told him she needed to know what he wanted first. Dadayev spoke about wanting to go to his house, and the officer again asked what he wanted. Dadayev said "job." Weitz asked what kind, saying she needed to know how much she was going to make. Dadayev replied "blow job." The officer told him that she could do a blow job for $15. Dadayev agreed, and Weitz told him to pull up to the stop sign. She then gave an indicator to undercover detectives that a deal had been made.
{¶ 15} The State played an audio-recording of the encounter. The recording captured Officer Weitz's side of the conversation, but Dadayev's side was difficult to understand. The audible portions of the recording were consistent with Officer Weitz's testimony. Notably, Dadayev could be heard asking for a "job," and when asked what kind, a "blow job."
{¶ 16} Dadayev's wife testified on his behalf. She stated that the couple relocated to a home on Wright Avenue in 2011. In 2020, they moved from that residence, but they continued to own it. In March 2021, when the offenses occurred, the Wright Avenue home was for sale and the Dadayevs were remodeling it.
{¶ 17} Dadayev's wife stated that she was familiar with her husband's cell phone habits. She indicated that if she called his cell phone when he was on his way, he would not answer and, instead, would stop and call her back. On March 15, 2021, she called Dadayev twice to make sure that he was okay. She said everything was okay when she called the first time, but she "[found] out what happened" when she called the second time. She testified that she always called Dadayev at lunchtime.
{¶ 18} Dadayev's wife acknowledged on cross-examination that she had not been with her husband when he was stopped by the police. She expressed that she "would never expect that something like that could happen" and that she was "very sad and never expected something like that from [her] husband."
{¶ 19} On this record, the trial court did not abuse its discretion in denying Dadayev's request for an entrapment instruction. The State's evidence demonstrated that Dadayev initiated the encounter through his prolonged eye contact, pumping his brake lights (twice), motioning for Officer Weitz to approach the passenger side of his vehicle, and opening the door for her. According to Officer Weitz, Dadayev began the conversation by asking if she worked, and he asked her to get in his car and come to his house. Dadayev was the one who brought up fellacio, and he was aware that payment was expected.
{¶ 20} Dadayev argues that there was evidence that he was not predisposed to commit the offenses. He states that he could have maintained eye contact with Officer Weitz to see if there were any pedestrians crossing the street at Third Street and More Avenue. He cites Officer Weitz's testimony that there was a "possibility" she was crossing Third Street when Dadayev prepared to turn onto More Avenue. Dadayev further asserts that he received a call from his wife, pulled his car over, and was approached by the police officer.
{¶ 21} Dadayev did not testify in his own defense to explain his actions. His wife's testimony reflects that she was not on the phone with him when the incident occurred and, while she indicated that she called him around lunchtime, there was no evidence that Dadayev had, in fact, pulled over to return a phone call from her. Dadayev claimed there was an innocent explanation for his prolonged eye contact with Officer Weitz, but he did not address his conduct upon stopping his vehicle, which included tapping his brakes, beckoning to her, and opening his car door for her. Although the prostitution sting operation afforded Dadayev the opportunity to commit the charged offenses, there was no evidence the police implanted the idea of engaging in those offenses in his mind. The trial court did not abuse its discretion in declining to give an entrapment instruction.
{¶ 22} Dadayev further contends that, based on Officer Weitz's testimony, he did not solicit a sexual act. He emphasizes that there was a "readily apparent English language barrier," and the officer pressed him for more information regarding the "job" and told him that she could do a blow job for $15. To the extent that Dadayev argues that he did not commit the offenses, his argument is inconsistent with his claim that the trial court should have given an instruction on entrapment. An affirmative defense, such as entrapment, "is in the nature of a 'confession and avoidance,' in which the defendant admits the elements of the crime, but seeks to prove some additional fact that absolves the defendant of guilt." State v. Rhodes, 63 Ohio St.3d 613, 625, 590 N.E.2d 261 (1992). A defendant in a criminal case must admit commission of the act constituting the criminal offense before an affirmative defense may be submitted to the jury. State v. Morefield, 2d Dist. Montgomery No. 26155, 2015-Ohio-448, ¶ 30. Dadayev cannot deny that he committed soliciting and loitering to engage in solicitation and also argue that the police entrapped him.
{¶ 23} Dadayev's assignment of error is overruled.
IV. Conclusion
{¶ 24} The trial court's judgment will be affirmed.
TUCKER, J. and HUFFMAN, J., concur.