State v. Strothers ( 2012 )

[Cite as State v. Strothers, 2012-Ohio-5062.]
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: November 1, 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
ON RECONSIDERATION1
1
The original announcement of decision State v. Gerald Strothers, 8th Dist.
No. 97687, 2012-Ohio-4275, released September 20, 2012, is hereby vacated. This
opinion, issued upon reconsideration, is the court’s journalized decision in this
appeal. See App.R. 22(C); see also S.Ct.Prac.R. 2.2(A)(1).
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} Strothers’ three assignments of error are as follows:
Assignment 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.
Assignment of Error II
The trial court erred in denying appellant’s motion to suppress evidence.
Assignment of Error III
The trial court erred in admitting opinion evidence of a detective.
{¶9} In his first assignment of error, Strothers argues that the court erred when it
denied his Crim.R. 29 motion for acquittal.
{¶10} “[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.
{¶11} 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.
{¶12} 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))
{¶13} 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.”
{¶14} 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.”
{¶15} 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.
{¶16} 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.
{¶17} Strothers’ first assignment of error is overruled.
{¶18} In his second assignment of error, Strothers argues the trial court erred in
denying his motion to suppress all evidence collected from his home during the search
on July 21, 2011. In particular, Strothers argues that the affidavit filed in support of the
search warrant did not provide sufficient probable cause to issue the warrant. This
argument lacks merit.
{¶19} In outlining our standard of review, the Second District in State v. Mays,
2d Dist. No. 23986, 2011-Ohio-2684appellate courts give great deference to the factual findings of the trier of
facts. At a suppression hearing, the trial court serves as the trier of fact,
and must judge the credibility of witnesses and the weight of the evidence.
The trial court is in the best position to resolve questions of fact and
evaluate witness credibility. In reviewing a trial court’s decision on a
motion to suppress, an appellate court accepts the trial court’s factual
findings, relies on the trial court’s ability to assess the credibility of
witnesses, and independently determines whether the trial court applied the
proper legal standard to the facts as found. An appellate court is bound to
accept the trial court’s factual findings as long as they are supported by
competent, credible evidence. (Internal citations omitted.)
The Fourth Amendment to the United States Constitution and Section 14,
article 1 of the Ohio Constitution requires [sic] that a warrant only be
issued if probable cause for the warrant is demonstrated through an oath or
affidavit. State v. Robinson, 2d Dist. No. 20458, 2004-Ohio-5281.
In determining the sufficiency of probable cause in an affidavit submitted
in support of a search warrant, [t]he task of the issuing magistrate is simply
to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the ‘veracity’
and ‘basis of knowledge’ of persons supplying hearsay information, there
is a fair probability that contraband or evidence of a crime will be found in
a particular place.” (Illinois v. Gates [1983], 462 U.S. 213, 238-239, 103
S.Ct. 2317, 76 L.Ed.2d 527 followed.)
In reviewing the sufficiency of probable cause in an affidavit submitted in
support of a search warrant issued by a magistrate, neither a trial court nor
an appellate court should substitute its judgment for that of the magistrate
by conducting a de novo determination as to whether the affidavit contains
sufficient probable cause upon which that court would issue the search
warrant. Rather, the duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause
existed. In conducting any after-the-fact scrutiny of an affidavit submitted
in support of a search warrant, trial and appellate courts should accord
great deference to the magistrate’s determination of probable cause, and
doubtful or marginal cases in this area should be resolved in favor of
upholding the warrant. Id.{¶20} In the instant case, Strothers directs us to the affidavit submitted to the
judge by Detective Randy Hicks. The affidavit described the facts gathered regarding
Strothers’ sex for hire and prostitution business in detail. Strothers does not dispute this
fact. However, Strothers alleges that Detective Hicks, the affiant, did not participate in
the conversations involving payment for sexual acts, nor did he articulate the sexual acts
discussed between Strothers and Detective Malone. Notwithstanding the foregoing, the
trial court permitted Detectives Malone and Hicks to testify about their understanding of
the words “full service” as oral sex and sexual intercourse. Strothers argues this
explanation is not contained in the affidavit and without this additional information, the
affidavit was insufficient. We disagree.
{¶21} Courts have generally held that “in determining whether probable cause
exists to support the issuance of a search warrant, a trial court is confined to the four
corners of the affidavit and any recorded testimony made part of the affidavit pursuant to
Crim. R. 41(C).” State v. O’Connor, 12th Dist. No. CA2001-08-195, 2002-Ohio-4122,
Mays. It is apparent from Strothers’ argument that he takes issue with the court’s
allowing elaboration testimony about the investigation. We find no error with the trial
court allowing such explanation. The four corners of the Detective Hicks’ affidavit
clearly provide probable cause that a person utilizing the telephone number (216)
244-9058 was advertising sexual services through a website. The affidavit indicated
that when the number was called, there was a recorded discussion about sexual services
and the prices for sexual services being provided at 14019 Northfield. Thus, we
conclude that the affidavit contained sufficient evidence to support the issuance of the
search warrant.
{¶22} Strothers’ second assignment of error is overruled.
{¶23} 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.
{¶24} 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.
{¶25} 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).
{¶26} 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.
{¶27} 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.
{¶28} 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.
{¶29} Strothers’ third and final assignment of error is overruled.
{¶30} 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