State v. Sawitke

2025 Ohio 1089

• Court: Ohio Court of Appeals
• Decided: March 28, 2025
• Docket: 30179
• Status: Published

Opinion

[Cite as State v. Sawitke, 2025-Ohio-1089.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 30179 : v. : Trial Court Case No. 2023-CRB-1320 : JUSTIN SAWITKE : (Criminal Appeal from Municipal Court) : Appellant : :

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OPINION

Rendered on March 28, 2025

COLIN P. COCHRAN, Attorney for Appellant

STEPHANIE L. COOK, Attorney for Appellee

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HUFFMAN, J.

{¶ 1} Defendant-Appellant Justin Sawitke appeals from his conviction for loitering

to engage in solicitation. He contends that his conviction was based on insufficient

evidence and was against the manifest weight of the evidence. He points out that only he -2-

and the decoy police officer testified regarding the facts giving rise to his arrest, and he

asserts that the officer’s testimony was not credible because she had poor recollection of

their interaction. However, the officer’s testimony was sufficient to demonstrate the

elements of loitering to engage in solicitation and, because the credibility and the weight

to be given to the testimony of each witness were matters for the jury to resolve, we will

not substitute our judgment for that of the jury on the issue of witness credibility. For these

reasons, we affirm the judgment of the trial court.

I. Background Facts and Procedural History

{¶ 2} In April 2023, several Dayton Police Department detectives conducted a

street-level decoy prostitution operation at North Main Street and Mumma Avenue in

Dayton, which is a high prostitution area. At the time of her interaction with Sawitke,

Officer McDonald, an undercover decoy prostitute dressed in plain clothes and equipped

with a hidden recording device, was standing on Mumma Avenue and observed a Honda

CRV driven by Sawitke come out of an alleyway. Shortly after she spotted Sawitke in his

vehicle, they had a verbal interaction that resulted in the following charges against

Sawitke: one count of loitering to engage in solicitation in violation of R.C. 2907.241(A)(2),

a misdemeanor of the third degree; one count of soliciting in violation of R.C. 2907.24(A),

a misdemeanor of the third degree; and one count of engaging in prostitution in violation

of R.C. 2907.231(B), a misdemeanor of the first degree. Sawitke entered a plea of not

guilty. Just before trial, the State dismissed the charge of soliciting, and the matter

proceeded to a jury trial on the remaining two counts.

{¶ 3} At trial, Detective Orick testified regarding the practice of street-level -3-

prostitution decoy operations by the Dayton Police Department near high prostitution

areas, which are in response to prostitution complaints. He explained that decoy officers

are trained to be sting operatives in environments where people are seeking out

prostitutes. During those operations, decoy officers look for individuals driving through

alleys when there is no reason to do so, as that activity is suggestive of persons looking

for prostitutes. Orick was on surveillance when Sawitke was arrested and received the

signal from Officer McDonald that Sawitke had engaged in a conversation seeking sex

from her.

{¶ 4} Officer McDonald also testified. According to Officer McDonald, as Sawitke

approached her in the alleyway, she walked toward him; he made eye contact with her

and moved his belongings to the back of the vehicle. He stopped his vehicle

approximately 30 feet from a stop sign, which made him less visible to marked cruisers

traveling on bigger thoroughfares. When McDonald approached Sawitke’s vehicle, he

rolled down the passenger side window and unlocked the door. He then greeted her and

asked her if she wanted to get in the vehicle; she asked him what he wanted. He indicated

that he wanted “head,” or oral sex, from her, and she offered to do it for ten dollars. He

asked her if she was a police officer (a common question by “Johns” seeking sex from a

prostitute), which she denied. He then agreed to pay her ten dollars. She told him that

she had to retrieve her bags and suggested that he make a loop around the block to give

her time to gather her things. Once he left, she signaled to other officers standing by that

an agreement had been reached between them, and then she walked in the opposite

direction. Sawitke drove away and was arrested shortly thereafter. Officer McDonald’s -4-

recording device failed to properly record their conversation, and she could not recall

certain aspects of their interaction, including their exact conversation and the color of

Sawitke’s vehicle.

{¶ 5} Sawitke testified on his own behalf. According to him, he was driving a beige

Honda CRV to his mother’s house with his two small children in the backseat. Upon

seeing Officer McDonald on the side of the road, he pulled over to ask her if she needed

a ride. He told her the direction that he was “headed.” When she offered him ten dollars,

he thought her cash offer was odd but assumed that she intended to pay for a ride. He

then asked her if she was a police officer because he thought their interaction was

peculiar, and he was not trying to pick up prostitute. He testified that he often assisted

people on the side of the road, offering rides or cash to those in need. According to

Sawitke, McDonald told him that she needed to pick up her belongings in the alleyway

before getting in his vehicle, and he decided to leave without saying anything further. The

police then trailed him, and he was arrested.

{¶ 6} The jury found Sawitke guilty of loitering to engage in solicitation and not

guilty of engaging in prostitution, and the trial court referred the matter for a presentence

investigation. Sawitke was sentenced to 60 days in jail, plus courts costs. He timely

appealed.

II. Assignments of Error

{¶ 7} On appeal, Sawitke asserts the following two assignments of error:

APPELLANT’S CONVICTION WAS BASED ON INSUFFICIENT

EVIDENCE AS A MATTER OF LAW. -5-

APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 8} Sawitke contends that the jury’s verdict finding him guilty of loitering to

engage in solicitation was based on insufficient evidence that he acted purposefully. He

argues that Officer McDonald’s recollection of the events was poor, as evidenced by her

testimony. He asserts that, because her recording device did not provide a proper

recording of their conversation, the only credible evidence regarding his intent came from

his own testimony, in which he specifically stated that he never attempted to engage in

solicitation, and not from the unreliable testimony of Officer McDonald. He further argues

that the jury clearly lost its way in believing Officer McDonald’s minimal uncertain

recollection of their interaction.

{¶ 9} Sawitke was found guilty of loitering to engage in solicitation under R.C.

2907.241(A)(2), which states:

(A) No person, with purpose to solicit another to engage in sexual activity

for hire and while in or near a public place, shall do any of the following:

...

(2) Engage or attempt to engage another in conversation;

“Purposely” is a culpable mental stated defined under R.C. 2901.22(A) as:

A person acts purposely when it is the person's specific intention to cause

a certain result, or, when the gist of the offense is a prohibition against

conduct of a certain nature, regardless of what the offender intends to

accomplish thereby, it is the offender's specific intention to engage in -6-

conduct of that nature.

{¶ 10} A sufficiency of the evidence argument relates to a dispute concerning

whether the State “presented adequate evidence on each element of the offense to allow

the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2009-

Ohio-525, ¶ 10 (2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380 (1997). “The

relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light

most favorable to the State, could have found the essential elements of the crime proven

beyond a reasonable doubt.” State v. Sheeders, 2019-Ohio-3120, ¶ 27, citing State v.

Dennis, 79 Ohio St.3d 421, 430 (1997). “A guilty verdict will not be disturbed on appeal

unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’ ” Id.

In other words, on review for sufficiency, courts are to assess not whether the State’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction. Thompkins at 390.

{¶ 11} A weight of the evidence argument, on the other hand, challenges the

believability of the evidence and asks which of the competing inferences suggested by

the evidence is more believable or persuasive. Wilson at ¶ 12, citing State v. Hufnagel,

1996 WL 501470 (2d Dist. Sept. 6, 1996). “[W]hen reviewing an argument challenging

the weight of the evidence, an appellate court reviews the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses, and

determines whether, in resolving conflicts in the evidence, the finder 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.” Sheeders at ¶ 28, citing Thompkins at 387, quoting -7-

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).

{¶ 12} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” State v. Flores-Lopez, 2017-Ohio-690, ¶ 49 (2d Dist.), citing State

v. McCrary, 2011-Ohio-3161, ¶ 11 (10th Dist.); accord State v. Robinson, 2015-Ohio-

1167, ¶ 17 (2d Dist.). As a result, “a determination that a conviction is supported by the

weight of the evidence will also be dispositive of the issue of sufficiency.” Id., citing State

v. Braxton, 2005-Ohio-2198, ¶ 15 (10th Dist.).

{¶ 13} “The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts primarily to resolve.” Wilson at ¶ 15, citing State v.

DeHass, 10 Ohio St.2d 230 (1967). In State v. Lawson, 1997 WL 476684 (2d Dist. Aug.

22, 1997), we explained:

Because the factfinder . . . has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of

appeals to find that a judgment is against the manifest weight of the

evidence requires that substantial deference be extended to the factfinder’s

determinations of credibility. The decision whether, and to what extent, to

credit the testimony of particular witnesses is within the peculiar

competence of the factfinder, who has seen and heard the witness.

Thus, we will not substitute our judgment for that of the trier of fact on the issue of witness

credibility unless it is patently apparent that the trier of fact lost its way in arriving at its -8-

verdict. See Wilson at ¶ 17, citing State v. Bradley, 1997 WL 691510 (2d Dist. Oct. 24,

1997).

{¶ 14} We observe that, although this court considers the credibility of witnesses

in reviewing the record, we accord due deference to the trier of fact. The jury had the

opportunity to view the witnesses’ testimony and adjudge their credibility. The trier of fact,

viewing the record as a whole, could have found that Officer McDonald’s testimony was

credible. As acknowledged by Sawitke, in this case, the jury was forced to choose

between two conflicting sets of testimony, and he believes that his testimony was more

credible. However, “[w]e will not disturb the choice made by the trier of the facts between

witnesses and conflicting testimony unless it is so incredible that it defies belief . . . .”

State v. Morgan, 2002-Ohio-3567, *1 (2d Dist.).

{¶ 15} We do not find Officer McDonald’s testimony to be that incredible. She was

standing on the side of the road in an alleyway in a high prostitution area when Sawitke

approached her in his vehicle. While she was uncertain of the color of Sawitke’s Honda

CRV and could not recall specific aspects of their conversation, she judged the situation

as one in which Sawitke sought to engage in solicitation based on the totality of their

interaction. She testified that he slowly drove toward her but stopped his vehicle

approximately 30 feet from the stop sign at the corner, making him less visible to marked

cruisers traveling on bigger thoroughfares. While doing so, he made eye contact with her

and moved his belongings to the back of the vehicle, presumably to engage her attention

and make room for her in the vehicle. When she approached his vehicle, he rolled down

the passenger side window and unlocked the door. He greeted her, asking her if she -9-

wanted to get in the vehicle, and she asked him what he wanted. He indicated that he

wanted “head,” or oral sex, from her. When she offered to do it for ten dollars, he asked

her if she was a police officer, which was a common question by men seeking sex from

a prostitute. She denied that she was a police officer, and he agreed to pay her ten dollars

before apparently changing his mind and driving away. Under these circumstances,

reasonable minds could have concluded that Sawitke did not just happen to drive out of

his way down an alley in a high prostitution area to engage in a conversation with a

stranger for the purpose of offering her a ride with his young children in the backseat, but

rather he did so with the purpose of soliciting Officer McDonald to engage in sexual

activity for hire.

{¶ 16} Although Sawitke recounted a different version of their interaction, the

credibility and the weight to be given to their testimony were matters for the jury to resolve,

and we will not substitute our judgment for that of the jury on the issue of witness

credibility. The record does not support a conclusion that the jury lost its way at arriving

at its verdict and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered. After examining the entire record, weighing the

evidence and all reasonable inferences, and considering the credibility of the witnesses,

we find that Sawitke’s conviction for loitering to engage in solicitation was not against the

manifest weight of the evidence.

{¶ 17} Our determination that Sawitke’s conviction was supported by the weight of

the evidence is dispositive of the issue of sufficiency. However, we also conclude that the

evidence presented, when viewed in a light most favorable to the State, was sufficient to -10-

demonstrate that Sawitke acted purposely in engaging another (Officer McDonald) in a

conversation to solicit sexual activity for hire while in a public place. This was enough to

persuade a reasonable trier of fact that the elements of loitering to engage in solicitation

had been proven beyond a reasonable doubt.

{¶ 18} Sawitke’s two assignments of error are overruled.

III. Conclusion

{¶ 19} The judgment of the trial court is affirmed.

TUCKER, J. and LEWIS, J., concur.