State v. Strothers

2012 Ohio 4275

• Court: Ohio Court of Appeals
• Decided: September 20, 2012
• Docket: 97687
• Status: Published

Opinion

[Cite as State v. Strothers, 2012-Ohio-4275.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97687

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

GERALD STROTHERS DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-552709

BEFORE: E. Gallagher, J., Sweeney, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: September 20, 2012 ATTORNEY FOR APPELLANT

Michael P. Maloney 24441 Detroit Road Suite 300 Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Daniel T. Van Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.:

{¶1} Gerald Strothers appeals from his conviction rendered in the Cuyahoga

County Court of Common Pleas. Strothers argues that the court erred in denying his

Crim.R. 29 motion for acquittal, in overruling his motion to suppress evidence, and in

admitting opinion evidence. For the following reasons, we affirm Strothers’ conviction.

{¶2} East Cleveland Police Detective Antonio Malone testified that he received

information from a confidential informant that a house was being used to facilitate

prostitution at 14019 Northfield Avenue in East Cleveland, Ohio. The informant told

police of a website, “Backpage.com,” which advertised those services. Officer Malone

and East Cleveland Police Sergeant Randy Hicks began an investigation.

{¶3} Sergeant Hicks testified at trial as to the results of this investigation. Hicks

stated that through an investigation of postings on Backpage.com, he was able to

discover a brothel being run in East Cleveland that was called the “Chocolate Factory” or

“Batcave.” Hicks explained the web postings provided a phone number to which text

messages could be sent in order to become a “member” of the Chocolate Factory. He

was later able to confirm that the phone number was assigned to Gerald Strothers and

that phone number was posted on his personal Facebook page. Hicks testified that he

sent a text message to the number provided on the advertisements (the same number on

Strothers’ Facebook page) posing as a “John” who was interested in the Chocolate

Factory’s services. He stated that in return he received several messages that quoted

prices, gave the address of the house and several photographs of naked females were transmitted. The address that was provided was the same as the one listed on Gerald

Strothers’ Facebook page.

{¶4} Detective Malone also testified as to the investigation. He stated that he

then called Strothers posing as the “John.” The telephone calls were recorded, audio

and video, and admitted into evidence. Strothers stated during the telephone call that

the price for “full service” was $69.99. Detective Malone testified that in his experience

“full service” meant “oral sex and regular sex, intercourse.” Malone arranged to arrive

at the house on July 21, 2011, where he would meet with Shatori Stallings. After the

phone call, Malone received a text message again advising him of the address. This text

was sent from another telephone number Malone established as belonging to Strothers

via Strothers’ Facebook page. A search warrant was obtained and executed on July 21,

2011, and both Strothers and Stallings were arrested.

{¶5} Hicks testified that after arresting Strothers, he accused Strothers of

running a brothel and advised Strothers about the text message and phone call evidence.

Strothers admitted he made a mistake and apologized.

{¶6} Stallings also testified in this case. She stated that she met Strothers a few

months prior to the date of the arrest. She had been to Strothers’ house on at least two

occasions prior to the date of the arrest. She stated that the first time she went to the

house, she and Strothers discussed his Backpage.com business to promote sex and he

suggested that she work for him with a 60/40 split. Stallings testified that at that point

she agreed to work for Strothers. Stallings also stated that she posed for photographs

that Strothers took of her on a motorcycle wearing underwear, the same photos that police received via text message from Strothers the day the search warrant was executed.

Stallings testified that on July 21, 2011, Strothers contacted her and asked her to be a

fill in because he was not sure if other girls were available. When she was asked at trial

as to what she would be filling in for, she stated, “[h]aving sex for money.”

{¶7} Strothers was convicted of two counts of promoting prostitution, one count

of possession of criminal tools and one count of the lesser included offense of attempted

promoting of prostitution. He was sentenced to one year of community control

sanctions. It is from this conviction that he appeals.

{¶8} In his first assignment of error, Strothers argues that the court erred when it

denied his Crim.R. 29 motion for acquittal.

{¶9} “[T]he test an appellate court must apply when reviewing a challenge

based on a denial of a motion for acquittal is the same challenge based on the sufficiency

of the evidence to support a conviction.” State v. Thompson, 127 Ohio App.3d 511,

525, 713 N.E.2d 456 (8th Dist.1998). This court has said, in evaluating a sufficiency

of evidence argument

[c]ourts 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. 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. The weight and credibility of the evidence are left to the trier of fact. State v. Jackson, 8th Dist. No. 86542, 2006-Ohio-1938, ¶ 23.

{¶10} Strothers was convicted of promoting prostitution by violating R.C.

2907.22(A)(1) and (A)(4), and attempting to violate R.C. 2907.22(A)(2). This statute

reads, (A) No person shall knowingly: (1) Establish, maintain, operate, manage, supervise, control, or have an interest in a brothel; (2) Supervise, manage, or control the activities of a prostitute in engaging in sexual activity for hire; * * * (4) For the purpose of violating or facilitating a violation of this section, induce or procure another to engage in sexual activity for hire.

{¶11} There is nothing in this statute to define the word “brothel.” However,

this court has defined a brothel as, “synonymous with the word ‘bordello,’ which is

defined as ‘a building in which prostitutes are available.’” State v. Kiriazis, 8th Dist.

No. 82887, 2004-Ohio-502 (citing Merriam Webster’s Collegiate Dictionary, 146 (10

Ed.1996))

{¶12} The attempt statute, R.C. 2923.02 reads, “No person, purposely or

knowingly, and when purpose or knowledge is sufficient culpability for the commission

of an offense, shall engage in conduct that, if successful, would constitute or result in the

offense. * * * Whoever violates this section is guilty of an attempt to commit an

offense.”

{¶13} Strothers was also convicted of possessing criminal tools by violating

R.C. 29.23.24(A), which reads, “(A) No person shall possess or have under the person’s

control any substance, device, instrument, or article, with purpose to use it criminally.”

{¶14} We find that the testimony, if believed, does establish all the individual

elements of the crimes for which Strothers was convicted. First, we examine promoting

prostitution. The testimony of the police officers in this case establish that Strothers

created a website to promote the use of his home for members of the “Chocolate

Factory” to meet women who were advertised under Backpage.com’s escort section. These advertisements had Strothers’ phone numbers and address associated with them.

When Detective Malone called the number to arrange a time to come to the chocolate

factory he spoke with Strothers, who quoted a price of $69.99 and instructed him to

bring about $100-150 with him. When these facts are taken in conjunction with the

testimony of Stallings who stated Strothers wanted her to work at that house, on the same

day, and engage in acts of “having sex for money,” it is clear that a trier of fact could

find that Strothers was, in fact, promoting prostitution. Strothers was managing a

“building in which prostitutes were available.” He procured Stallings for the purposes

of engaging in sex for hire, and the record is clear that he attempted to supervise,

manage, or control the activities of a prostitute in engaging in sexual activity for hire.

The elements of the offenses have been established by the state, and a rational trier of

fact, looking at the evidence in the light most favorable to the prosecution could find

beyond a reasonable doubt that Strothers committed the crimes he was convicted of for

promoting prostitution. Jackson.

{¶15} We also find that the elements of possessing criminal tools have been

supported by sufficient evidence. Our analysis with respect to the crime of promoting

prostitution, in conjunction with the materials removed from the house and bagged as

evidence, establish that Strothers possessed devices or instruments with purpose to use

them criminally. Police confiscated cell phones that rang when the numbers associated

with both the “Chocolate Factory” and Strothers were called. They confiscated two

books titled “Sex Secrets of Escorts” and “A Blueprint for Escort Services.” They also

seized a bag of what was estimated to be about 20 condoms. The conduct that Strothers was engaged in leads a reasonable trier of fact to identify these items as those that would

be used by Strothers for a criminal purpose beyond a reasonable doubt.

{¶16} Strothers’ first assignment of error is overruled.

{¶17} In his second assignment of error, Strothers argues that the court erred in

denying his motion to suppress the evidence found as a result of a search of his home.

For the reasons that follow, we cannot consider this assignment of error.

{¶18} Strothers’ notice of appeal to this court has failed to establish notice as to

any challenge to the denial of the motion to suppress. App.R. 3(D) states that a notice

of appeal “shall designate the judgment, order or part thereof appealed from * * *.”

This court has held that it is “without jurisdiction to review a judgment or order which is

not designated in appellant’s notice of appeal.” State v. Wright, 8th Dist. No. 95634,

2011-Ohio-3583, citing Parks v. Baltimore & Ohio RR., 77 Ohio App.3d 426, 428, 602

N.E.2d 674 (8th Dist.1991), and Schloss v. McGinness, 16 Ohio App.3d 96, 97-98, 474

N.E.2d 666 (8th Dist.1984). This court has also applied this holding in several other

cases. See State v. Kennedy, 8th Dist. No. 79143, 2002-Ohio-42; State v. Millhouse, 8th

Dist. No. 79910, 2002-Ohio-2255, ¶ 51-52.

{¶19} In the present case, Strothers made no attempt and, therefore, failed to

amend his notice of appeal under the procedures outlined in App.R. 3(F). He also failed

to file a separate notice of appeal based on the second assignment of error. For the

reasons stated above, the appellant’s second assignment of error falls outside the scope

of the current appeal and will not be addressed by this court.

{¶20} Strothers argues in his third assignment of error that the court erred in allowing Malone to provide testimony that amounted to opinion testimony on three

occasions.

{¶21} Ohio rules do allow lay witnesses to present opinion testimony. The

Ohio Rules of Evidence state,

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. Evid.R. 701.

{¶22} Assessment of admission of lay person opinion testimony is evaluated

under an abuse of discretion standard. The Ohio Supreme Court has stated, “[w]e must

review the trial court’s decision whether to admit evidence under Evid.R. 701 according

to an abuse of discretion standard, which has been defined as connoting ‘more than an

error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable

attitude on the part of the court.’” (Internal citations omitted.) Urbana ex rel. Newlin

v. Downing, 43 Ohio St.3d 109, 113, 539 N.E.2d 140 (2d Dist.1989).

{¶23} Strothers alleges that the trial court erred when it allowed Malone to

testify as to the meaning of “full service.” Malone described “full service” as meaning

“oral sex and regular sex.” As Strothers failed to object to this testimony at trial, it must

be examined under a plain error standard. In order for this opinion to constitute plain

error, first it must be apparent from the record that it amounted to an error. Under the

abuse of discretion standard we do not find that the court allowing this testimony was

“unreasonable, arbitrary, or unconscionable.” Id. The opinion seems to be rationally

based on Malone’s perception given all the information he discovered during his investigation. Furthermore, it is helpful to determine a fact or issue in the case. It does

not amount to error on the court’s part to allow this testimony; it is in line with the

allowances of lay person testimony under Evid.R. 701. Therefore, the second step in the

plain error analysis is unnecessary. This does not amount to plain error.

{¶24} Strothers’ next two alleged errors of allowing opinion testimony were

objected to in court. Therefore, the plain error standard is not required, and we evaluate

these arguments solely under the aforementioned abuse of discretion standard.

{¶25} Malone testified to the fact that brothels often have a door fee. This was

relevant because the text messages received by the police instructed them to bring a case

of bottled water or beer as a substitute for the door fee. Malone stated he learned of this

practice while researching brothels. The next opinion Malone was allowed to testify to

was the statement he made that criminals do not like to talk about prices on the phone.

This was relevant because during the second recorded telephone call, Strothers stated

that he did not want to discuss prices over the phone, even though he did so during the

first conversation. The Ohio Supreme Court stated, “Evid. R. 701 contemplates that the

opinion testimony of the lay witness will be helpful. Undoubtedly, the trial judge

thought that that was the case. Admission of such testimony was not required, but it was

not an abuse of discretion to hear it.” Urbana at 113. The testimony provided was that

of a police detective who researched the practice of brothels utilizing door fees and who

had extensive experience as to how criminals speak on the telephone. Malone stated he

had investigated about 400 drug cases and 15 to 20 prostitution cases. It does not

constitute an abuse of discretion that the court allowed this testimony as it was deemed reliable and helpful.

{¶26} Strothers’ third and final assignment of error is overruled.

{¶27} 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 be sent to said lower court to carry this

judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and SEAN C. GALLAGHER, J., CONCUR

Appendix

Assignments of Error

I. “The trial court erred in denying appellant’s criminal rule 29 Motion for Acquittal when there was insufficient evidence to prove the elements of promoting prostitution.

II. The trial court erred in denying appellant’s motion to suppress evidence.

III. The trial court erred in admitting opinion evidence of a detective.”