[Cite as State v. Hsu, 2024-Ohio-2584.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 113392 v. :
CHIH-WEI HSU, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 3, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-682421-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Melissa Riley, Assistant Prosecuting Attorney, for appellee.
Edward M. Heindel, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Appellant Chih-Wei Hsu (“appellant”) brings this appeal challenging
his convictions for promoting prostitution and possession of criminal tools. After a
thorough review of the applicable law and facts, we affirm the judgment of the trial
court. I. Factual and Procedural History
In June 2023, the Northeast Ohio Human Trafficking Task Force
(“Task Force”) observed an ad from Adultlook.com, which is a website where sex
providers advertise services to potential customers. The ad stated as follows:
Nude Japanese and Russian girls, full of VIP service, two sexy young girl [sic], big boobs, fun, shower, sex with many positions, BBBJ, doggy style, f*ck, enjoy, oral, 69 position, passionate kissing, penis massage, penis suck, specially f*ck your own style, waiting for [sic] have fun with you, come and check us out, our number one goal is to make you leave happy and refreshed
The ad noted a cell phone number along with hours of operation and
stated that it was in Parma. Task Force Investigator Scott Moran texted the number
and attempted to set up a date for the following day. He requested two “girls” for
VIP service and was quoted a price of $600. He agreed to the price and arranged to
meet up the next morning. He was told to go to an address on North Church Drive
in Parma Heights, Ohio.
The next day, Investigator Moran went to the location, which was an
apartment building, and texted the telephone number from the ad when he arrived.
He was directed to Unit 130, where he headed along with other assisting detectives
and Parma Heights police officers following at a distance. He knocked on the door,
and a woman dressed in lingerie answered. She gestured for him to be quiet.
Investigator Moran then identified himself as law enforcement, and he
and the assisting officers cleared and secured the apartment. When the woman opened the door, she had a cell phone in her hand
and Investigator Moran was able to observe that it was open to an app called
WeChat, which was the chat he had engaged in when he arranged the date.
Officers observed an additional person in the apartment, who was later
identified as appellant. He was located in the furthest corner of the kitchen area of
the apartment. According to Investigator Moran, it did not seem as though any food
was being prepared in the kitchen.
Photographs were taken of the apartment unit by the officers. There
was no furniture in the living room, but there was a Nest Camera in one upper corner
that faced the living room. A corner of the carpet in the living room was disturbed,
and when it was pulled up, there were dozens of condoms hidden underneath.
In one of the bedrooms was a bed and a nightstand. On the nightstand
were more condoms, KY Jelly, Johnson’s Baby Oil, and other forms of lubricant.
Another bedroom also contained a bed and nightstand and was illuminated with a
pink light. On this nightstand was a hairbrush, flushable cleansing wipes, food,
glasses, and Johnson’s Baby Oil.
Appellant was in possession of a Chinese passport, and the woman
had a passport from Romania. When asked why he was there, appellant stated that
he had just moved in a day or two ago and was there to provide cooking for the
residence.
Appellant was arrested, and officers seized $400 that was found on his
person. Three cell phones were located in the apartment. One cell phone was a Samsung Galaxy phone that required a passcode to open, which appellant provided.
When officers used the passcode, the phone opened to the same WeChat
conversation that the woman had had on her phone when Investigator Moran
entered. All three phones were seized as evidence.
An extraction was performed on the Samsung phone that appellant
had assisted the officers in opening. On the phone were pictures of a number of
items that had been observed in the apartment unit, including the Nest Camera,
flushable wipes, and a mattress. There was also a picture of the woman who had
answered the door, a table from the apartment unit, and pink LED lights.
In addition, the phone held videos from the Nest Camera. Multiple
videos depicted women allowing unknown males to enter the apartment unit.
Another video showed appellant leaving the kitchen area and going to the living
room closet.
The phone also contained group texting chats where terminology
related to prostitution was used. Text messages were extracted from the cell phone,
including one from appellant to another woman that stated:
Trip in 11 minutes? You promised your VIP service when you came. Now you’re disappointing me with your performance. He won’t come back when you’re done with these guests. Now the manager has received the complaint. Please change your VIP service must be maintained for more than 45 minutes. Thanks.
When officers spoke with management of the apartment, they learned
that the unit was leased by a person named Tao Yan. The day after appellant was
arrested, an eviction notice was issued to Tao Yan and “all other occupants.” Appellant was indicted on charges of (1) promoting prostitution, a
felony of the fourth degree, in violation of R.C. 2907.22(A)(1); (2) promoting
prostitution, a felony of the fourth degree, in violation of R.C. 2907.22(A)(2); and
(3) possession of criminal tools, a felony of the fifth degree, in violation of R.C.
2923.24(A).
The matter proceeded to a jury trial where the State presented the
testimony of Investigator Moran, Cleveland Police Department Detective Kevin
Navratil, who performed the cell phone extraction, and Chad Tibbits, a crime analyst
for the Task Force. Appellant did not present any witnesses or evidence.
The jury found appellant guilty of all three counts. Appellant was
sentenced to 12 months in prison on each count to be served concurrently, and he
was labeled a Tier I sex offender. Appellant then filed the instant appeal, raising
three assignments of error for our review:
I. The convictions were not supported by sufficient evidence.
II. The guilty verdicts were against the manifest weight of the evidence.
III. The trial court erred when it failed to merge Counts 1 and 2 as these were allied offenses of similar import.
II. Law and Analysis
A. Sufficiency of the Evidence
In his first assignment of error, appellant argues that his convictions
were not supported by sufficient evidence. In particular, with regard to the
promoting prostitution charges, appellant contends that there was no evidence that
appellant managed or supervised any prostitution and that he was merely present in the apartment when the officers arrived. He asserts that there was no money
exchanged and sexual activity was never offered. Further, as it relates to the criminal
tools conviction, appellant argues that he was not engaging in any criminal purpose
while he was standing in the kitchen. He maintains that he was at the apartment
solely to cook and, therefore, his cell phone was not a criminal tool.
A sufficiency challenge requires a court to determine whether the
State has met its burden of production at trial and to consider not the credibility of
the evidence but whether, if credible, the evidence presented would sustain a
conviction. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 273 (1991), citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A defendant is entitled to an acquittal of one or more offenses under
Crim.R. 29 “[i]f the evidence is insufficient to sustain a conviction.” State v.
Macalla, 2008-Ohio-569, ¶ 38 (8th Dist.). In order to satisfy the burden of
production, a party is required to furnish ample evidence to establish a prima facie
case. See State v. Petway, 2020-Ohio-3848, ¶ 47 (11th Dist.). The role of an
appellate court is not to determine whether the evidence presented by the State
should be accepted as true, but rather to ascertain if the evidence, when accepted as
true, would sustain a conviction against the defendant. State v. Nelson, 2014-Ohio-
2189, ¶ 14 (8th Dist.), quoting Thompkins, 78 Ohio St.3d 380. We are precluded from setting aside a conviction based on insufficiency of the evidence unless we
conclude “that reasonable minds could not reach the conclusion reached by the trier
of fact.” State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
“‘Proof of guilt may be made by circumstantial evidence, real evidence,
and direct evidence, or any combination of the three, and all three have equal
probative value.’” State v. Rodano, 2017-Ohio-1034, ¶ 35 (8th Dist.), quoting State
v. Zadar, 2011-Ohio-1060, ¶ 18 (8th Dist.). Although circumstantial evidence and
direct evidence have obvious differences, those differences are irrelevant to the
probative value of the evidence and circumstantial evidence carries the same weight
as direct evidence. Id., citing State v. Cassano, 2012-Ohio-4047, ¶ 13 (8th Dist.).
Further, circumstantial evidence may not only be sufficient “‘“but may also be more
certain, satisfying, and persuasive than direct evidence.”’” Id. at ¶ 36, quoting State
v. Hawthorne, 2011-Ohio-6078, ¶ 9 (8th Dist.), quoting Michalic v. Cleveland
Tankers, Inc., 364 U.S. 325, 330 (1960).
In the instant matter, appellant was charged with promoting
prostitution under two subsections of R.C. 2907.22(A), which prohibits a person
from knowingly (1) establishing, maintaining, operating, managing, supervising,
controlling, or having an interest in a brothel or any other enterprise for facilitating
engagement in sexual activity for hire; and (2) supervising, managing, or controlling
the activities of a prostitute in engaging in sexual activity for hire.
The State presented evidence that appellant maintained, operated,
managed, supervised, or controlled a brothel or any other enterprise that facilitated engagement in sexual activity for hire and also supervised or managed the activities
of a prostitute. First, the State demonstrated that the activities being conducted in
the apartment constituted a brothel or an enterprise that was facilitating
engagement in sexual activity for hire and that the woman who answered the door
in lingerie and others that appeared in the pictures on appellant’s phone were
prostitutes engaging in sex for hire. The apartment contained sparse furnishings
but had beds and nightstands that contained products used for sexual activity,
including condoms and lubricants. Moreover, the ad to which Investigator Moran
responded clearly set forth that sexual activity was available for hire.
In addition, appellant had pictures on his phone of supplies that were
purchased in order to facilitate the sex acts and kept surveillance of the women
working at the apartment and the men coming and going. Evidence showed that the
Nest Camera was purchased several days after the apartment was leased. There was
a picture of the receipt on appellant’s phone, and the credit card used was the same
card that was tied to appellant’s PayPal account. In addition, appellant’s phone had
videos from the Nest Camera.
Appellant contends that his cell phone was not being used for any
criminal purpose. However, the State presented evidence demonstrating that
appellant’s cell phone was, in fact, used as part of his criminal conduct. There are
photos on the phone of men coming and going from the apartment unit; appellant
was engaged in a group chat on the phone that used prostitution terminology; and he was texting one of the women to tell her that she needed to provide VIP service
for longer than 45 minutes.
After viewing the evidence in a light most favorable to the State, we
conclude that a rational trier of fact could have found beyond a reasonable doubt
that appellant had promoted prostitution and possessed criminal tools. Appellant’s
convictions were therefore based upon sufficient evidence, and his first assignment
of error is overruled.
B. Manifest Weight of the Evidence
In his second assignment of error, appellant argues that his
convictions were against the manifest weight of the evidence. Appellant presents
the same argument as he did with regard to the sufficiency of the evidence, to wit:
he was simply present in the apartment and there was no evidence that he was
involved in compelling prostitution.
When reviewing a manifest weight challenge, an appellate court
“‘weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” State v. Virostek, 2022-Ohio-
1397, ¶ 54 (8th Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.
1983). A reversal on the basis that a verdict is against the manifest weight of the
evidence is granted “‘only in the exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, quoting Martin
at 175.
As this court has previously stated:
The criminal manifest weight of-the-evidence standard addresses the evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio St.3d at 386, 1997-Ohio-52, 678 N.E.2d 541 (1997). Under the manifest weight-of-the-evidence standard, a reviewing court must ask the following question: whose evidence is more persuasive — the state’s or the defendant’s? Wilson at id. Although there may be legally sufficient evidence to support a judgment, it may nevertheless be against the manifest weight of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95, 2000-Ohio-276, 723 N.E.2d 1054 (2000).
When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact finder’s resolution of the conflicting testimony. Wilson at id., quoting Thompkins at id.
State v. Williams, 2020-Ohio-269, ¶ 86-87 (8th Dist.).
In its role as the “thirteenth juror,” an appellate court must review the
entire record, weigh the direct and circumstantial evidence and all reasonable
inferences drawn therefrom, and consider the credibility of the witnesses to
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 at 387, quoting Martin.
Appellant does not provide any separate reasoning as to why his
convictions were against the manifest weight of the evidence and simply reiterates
the same assertions he raised in his sufficiency argument. Notwithstanding his
failure to develop his manifest weight challenge, we find that appellant’s convictions for promotion of prostitution and possession of criminal tools were not against the
manifest weight of the evidence.
As discussed above, the State’s case relied on circumstantial evidence
that “requires ‘the drawing of inferences that are reasonably permitted by the
evidence.’” State v. Wachee, 2021-Ohio-2683, ¶ 36 (8th Dist.), quoting Cassano,
2012-Ohio-4047, at ¶ 13 (8th Dist.). “‘Circumstantial evidence is proof of facts by
direct evidence from which the trier of fact may infer or derive by reasoning other
facts in accordance with the common experience of mankind.’” Id., quoting State v.
Hartman, 2008-Ohio-3683, ¶ 37 (8th Dist.). “Circumstantial evidence and direct
evidence inherently possess the same probative value.” Jenks, 61 Ohio St.3d 259, at
paragraph one of the syllabus.
Having reviewed the entire record, we cannot say the jury in this case
clearly lost its way and created such a manifest miscarriage of justice that appellant’s
convictions must be reversed and a new trial ordered. Based upon the evidence
discussed in the prior assignment of error, appellant has not demonstrated that his
convictions were against the manifest weight of the evidence and his second
assignment of error is overruled.
C. Merger
In his third assignment of error, appellant argues that the trial court
erred by failing to merge Counts 1 and 2 as allied offenses of similar import. He contends that the promoting prostitution convictions should have merged because
there were no identifiable separate acts that could constitute two crimes.
R.C. 2941.25 prohibits the imposition of multiple punishments for the
same criminal conduct and provides:
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
The Supreme Court of Ohio, in State v. Ruff, 2015-Ohio-995,
established that the test for determining whether offenses are allied offenses of
similar import requires the trial court to consider three separate factors: import,
conduct, and animus. Convictions do not merge and a defendant may be sentenced
for multiple offenses if any of the following are true: (1) the conduct constitutes
offenses of dissimilar import, (2) the conduct shows that the offenses were
committed separately, or (3) the conduct shows that the offenses were committed
with separate animus. Id. at ¶ 25. Two or more offenses of dissimilar import exist
“when the defendant’s conduct constitutes offenses involving separate victims or if
the harm that results from each offense is separate and identifiable.” Id. at
paragraph two of the syllabus. As it relates to the merger argument, appellant was convicted of two
offenses of promoting prostitution. The elements of the two separate offenses of
promoting prostitution in this case are (1) knowingly establishing, maintaining,
operating, managing, supervising, controlling, or having an interest in a brothel or
any other enterprise for facilitating engagement in sexual activity for hire; and
(2) knowingly supervising, managing, or controlling the activities of a prostitute in
engaging in sexual activity for hire.
With regard to the first factor under Ruff, we find that the two offenses
of promoting prostitution are dissimilar in import. Establishing, maintaining, or
operating a brothel is distinct from supervising, managing, or controlling the
activities of a prostitute that is engaged in sexual activity for hire.
Under the second Ruff factor, we find that the two offenses of
promoting prostitution were committed separately. The first offense involved
obtaining supplies related to sexual activity and the Nest Camera for the apartment,
which was being used as a brothel. The second offense was committed when
appellant kept surveillance on the women in the apartment and sent a text message
to one of the women to tell her to perform VIP service for at least 45 minutes.
Finally, with regard to the third Ruff factor, the two offenses of
promoting prostitution were committed with a different animus. One required the
motivation to establish, maintain, or operate a brothel while the other involved the
motivation to supervise, manage, or control a prostitute. The offenses were not allied offenses of similar import, and the trial
court was therefore not required to merge the two separate offenses of promoting
prostitution. Appellant’s final assignment of error is overruled.
III. Conclusion
Appellant’s convictions were supported by sufficient evidence and not
against the manifest weight of the evidence. In addition, the trial court did not err
in declining to merge Counts 1 and 2 for purposes of sentencing. All of appellant’s
assignments of error are overruled, and the judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______________________________ FRANK DANIEL CELEBREZZE, III, JUDGE
MICHELLE J. SHEEHAN, P.J., and EILEEN T. GALLAGHER, J., CONCUR