State v. White , 118 N.E.3d 410 ( 2018 )

[Cite as State v. White, 2018-Ohio-3076.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27749
:
v. : Trial Court Case No. 2016-CR-1517/1
:
JERMAR W. WHITE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 3rd day of August, 2018.
...........
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant
.............
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FROELICH, J.
{¶ 1} Jermar W. White was convicted after a bench trial in the Montgomery County
Court of Common Pleas of unlawful sexual conduct with a minor (10 or more years older
than the victim), pandering obscenity involving a minor, two counts of trafficking in
persons, and two counts of compelling prostitution in furtherance of human trafficking.
White was acquitted of two additional charges. The trial court designated him a Tier II
sex offender and sentenced him to concurrent sentences totaling 11 years in prison.
{¶ 2} White appeals from his convictions, raising five assignments of error. He
claims that (1) the trial court erred in denying his motion to suppress evidence, (2) his
convictions were based on insufficient evidence and against the manifest weight of the
evidence, (3) he received ineffective assistance of counsel, (4) the trafficking in persons
statute, R.C. 2905.32(A)(2)(a), is unconstitutionally vague, and (5) the State engaged in
misconduct when it offered at trial the testimony of his co-defendant, Iesha Heard.
{¶ 3} For the following reasons, the trial court’s judgment as to the charge of
pandering obscenity involving a minor (Count 4) will be reversed. In all other respects,
the trial court’s judgment will be affirmed.
I. Motion to Suppress
{¶ 4} In his first assignment of error, White claims that the trial court erred in failing
to suppress statements that he made to the police, as well as evidence that was seized
pursuant to a search warrant that was obtained in reliance on those statements.
{¶ 5} In deciding a motion to suppress, the trial court assumes the role of trier of
facts and is in the best position to resolve questions of fact and evaluate the credibility of
witnesses. State v. Pence, 2d Dist. Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing
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State v. Hopfer, 112 Ohio App. 3d 521, 548, 679 N.E.2d 321 (2d Dist.1996). The court
of appeals must accept the trial court’s findings of fact if they are supported by competent,
credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-
Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App. 3d 586, 639 N.E.2d 498 (2d
Dist.1994). Accepting those facts as true, the appellate court must then determine as a
matter of law, without deference to the trial court’s legal conclusion, whether the
applicable legal standard is satisfied. Id.
{¶ 6} Detective John Howard of the Dayton Police Department, Street Crimes Unit,
was the sole witness at the suppression hearing. The State also presented two exhibits:
(1) a DVD of Howard’s interviews with White and Heard at the police station, and (2) a
search warrant packet for the home where White was staying. Howard’s testimony and
the State’s exhibits established the following facts.
{¶ 7} In April 2016, 15-year-old J.J. met White (age 31) and White’s girlfriend,
Heard, at a friend’s house in Huber Heights. White was introduced as “Shiloh.”
Approximately three weeks later, on or about May 8, 2016, J.J. was walking with two
friends when a car driven by White pulled up; Heard was in the front passenger seat.
J.J. entered the vehicle, and they went to a residence on Lilac Avenue in Dayton.
{¶ 8} On May 10, 2016, J.J reported several encounters that she had with “Shiloh”
to two employees at her school. The employees transported J.J. to the police
department, where J.J. indicated that sexual conduct and activity occurred in a house,
which she could describe. J.J. described White and Heard and the vehicle they were
driving. J.J. directed a uniformed officer to the house on Lilac Avenue.
{¶ 9} The police conducted surveillance on the residence. The police saw White
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and Heard enter the vehicle that J.J. had described. Officers conducted a traffic stop of
the vehicle, and White and Heard were transported to the police station.
{¶ 10} Detective Howard and Detective Mistan Bailey were assigned to the case.
Their unit, the Street Crimes Unit, investigates street-level drug dealers, prostitution,
human trafficking, and liquor permits, with an emphasis on prostitution and human
trafficking. Detective Howard separately interviewed J.J., Heard, and White at the police
station on May 10; Detective Bailey was present and took notes. Both of the interviews
of Heard and White occurred in an interview room that was equipped with an audiovisual
recording device. Heard corroborated many of the statements that J.J. had made.
{¶ 11} Detective Howard spoke with White after interviewing Heard. After
confirming White’s name and address and asking a few preliminary questions, Howard
advised White of his Miranda rights using a card that he was provided by the prosecutor’s
office. White stated that he understood each of his rights. Howard asked White a few
additional questions, and White answered.
{¶ 12} Shortly after the questioning began, White stated, “I really don’t right now
even want to answer any questions,” and he expressed that he thought he was brought
to the police station illegally and described how he was brought there. Howard
responded, “So do you want to talk to me or do you not.” White replied that he did not
know what the process was, and he wanted to know if he would be booked into the jail
that night. The detectives explained that it was a possibility that White would go to jail.
For approximately ten minutes, Howard asked more questions about what occurred
between White, Heard, J.J., and S.M. (another juvenile victim), and White responded.
White denied knowledge of the Backpage website, taking photos of S.M. and J.J., and
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having J.J. perform oral sex on him. At the end of the interview, Howard told White that
he would be booked into the jail. The entire interview lasted approximately 15 minutes.
White did not, at any time, indicate that he wanted a lawyer.
{¶ 13} Howard testified at the suppression hearing that White was then placed in
a different interview room closer to the detectives’ desks so that he (Howard) could
complete paperwork. Shortly after being placed in the second room, which did not have
audiovisual equipment, White knocked on the door, wanting to speak with Detective
Howard. Howard and Bailey entered the room and told White that if he wanted to talk,
they could return to the first interview room. White told the detectives that he did not
want to go back to the other room, but that “people are always making these types of
accusations or complaints against him.” White stated that the “same thing happened two
or three years ago.” Detective Howard told White that if White wanted to keep talking,
they could go back to the first interview room. White declined, and the detectives
stopped talking with White.
{¶ 14} After the interview with White, the police obtained a search warrant for the
residence on Lilac Avenue, which belonged to White’s sister. The warrant was based
on statements by J.J., Heard, and White. The warrant was signed by a judge and
executed within three days.
{¶ 15} In denying White’s motion to suppress, the trial court found that Howard
advised White of his Miranda rights, that White “willingly participated in the conversation
with the police officers” and “spoke freely to the police after acknowledging that he
understood his rights.” The trial court further found that White’s statements were made
voluntarily. Finally, the trial court concluded that the search warrant was supported by
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probable cause.
{¶ 16} Under the Fifth Amendment to the United States Constitution, no person
shall be compelled to be a witness against himself or herself. In order to ensure that this
right is protected, statements resulting from custodial interrogations are admissible only
after a showing that the procedural safeguards described in Miranda v. Arizona, 384 U.S.
436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), have been followed. State v. Earnest,
2d Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶ 21. To counteract the coercive
pressure of custodial interrogations, police officers must warn a suspect, prior to
questioning, that he or she has a right to remain silent and a right to the presence of an
attorney. Maryland v. Shatzer, 559 U.S. 98, 103–104, 130 S. Ct. 1213, 175 L. Ed. 2d 1045
(2010), citing Miranda.
{¶ 17} A “suspect may effectively waive [his or her Miranda] rights * * * only if the
waiver is made voluntarily, knowingly and intelligently.” State v. Dailey, 53 Ohio St. 3d
88, 91, 559 N.E.2d 459 (1990), citing Miranda at 444. Thus, a court may recognize the
validity of a waiver of Miranda rights only if it finds that (1) “the relinquishment of the
right[s] [was] voluntary in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception[,]” and (2) the person had “a full
awareness of both the nature of the right[s] being abandoned and the consequences of
the decision to abandon [them].” Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,
89 L. Ed. 2d 410 (1986); State v. Marejka, 2d Dist. Montgomery No. 27662, 2018-Ohio-
2570, ¶ 14. “[A] suspect who has received and understood the Miranda warnings, and
has not invoked his Miranda rights, waives the right to remain silent by making an
uncoerced statement to the police.” Burghuis v. Thompkins, 560 U.S. 370, 388-389, 130
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S.Ct. 2250, 176 L. Ed. 2d 1098 (2010). Courts examine the totality of the circumstances
to determine whether a suspect has knowingly, intelligently, and voluntarily waived his or
her Miranda rights. State v. Clark, 38 Ohio St. 3d 252, 261, 527 N.E.2d 844 (1988).
{¶ 18} The opportunity to exercise Miranda rights exists throughout the
interrogation, and thus, the interrogation must cease when the defendant exercises his
right to end the questioning. State v. Villegas, 2d Dist. Montgomery No. 27234, 2017-
Ohio-2887, ¶ 13; State v. Miller, 7th Dist. Mahoning No. 13 MA 12, 2014-Ohio-2936, ¶
41, citing Miranda at 473-474 and Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321,
46 L. Ed. 2d 313 (1975) (recognizing that a defendant’s right to “cut off questioning” must
be “scrupulously honored”).
{¶ 19} “Whether a statement was made voluntarily and whether an individual
knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct
issues.” State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 30. A
defendant’s statements to police after a knowing, intelligent, and voluntary waiver of the
individual’s Miranda rights are presumed to be voluntary. Id., citing Miranda. “The
Miranda presumption applies to the conditions inherent in custodial interrogation that
compel the suspect to confess. It does not extend to any actual coercion police might
engage in, and the Due Process Clause continues to require an inquiry separate from
custody considerations and compliance with Miranda regarding whether a suspect’s will
was overborne by the circumstances surrounding his confession.” State v. Porter, 178
Ohio App. 3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.), citing Dickerson v.
United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).
{¶ 20} “In deciding whether a defendant’s confession is involuntarily induced, the
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court should consider the totality of the circumstances, including the age, mentality, and
prior criminal experience of the accused; the length, intensity, and frequency of
interrogation; the existence of physical deprivation or mistreatment; and the existence of
threat or inducement.” State v. Edwards, 49 Ohio St. 2d 31, 358 N.E.2d 1051 (1976),
paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S. Ct. 3147,
57 L. Ed. 2d 1155 (1978). See also State v. Brewer, 48 Ohio St. 3d 50, 58, 549 N.E.2d 491
(1990); State v. Beaty, 2d Dist. Montgomery No. 24048, 2011-Ohio-5014, ¶ 16.
{¶ 21} In general, the State has the burden to show by a preponderance of the
evidence that a defendant’s confession was voluntarily given. State v. Melchior, 56 Ohio
St.2d 15, 381 N.E.2d 195 (1978).
{¶ 22} At the outset, the State contends that White was not in custody at the time
of the interview at the police station. The State notes that, although White was
transported to the station by the police, he was not handcuffed or restrained, the door to
the interview room was open, and Detective Howard told White that he (White) might be
booked into jail that day, but he (Howard) did not know yet.
{¶ 23} Miranda defined custodial interrogation as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.” Miranda, 384 U.S. 436, 444, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966). “[T]he ultimate inquiry is simply whether there [was] a ‘formal
arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”
California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983),
citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977).
Whether a person is subject to custodial interrogation is an objective question, focusing
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on how a reasonable person in the suspect’s position would have understood the
situation. J.D.B. v. North Carolina, 564 U.S. 261, 270, 131 S. Ct. 2394, 180 L. Ed. 2d 310
(2011); Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
{¶ 24} Detective Howard testified at the suppression hearing that officers were
conducting surveillance of the Lilac Avenue residence while he and Detective Bailey
interviewed J.J. at the police station. After officers observed White and Heard get into a
vehicle that matched the description J.J. had given, officers conducted a traffic stop of the
vehicle. Officers then transported White and Heard to the police station, where Detective
Howard interviewed them after providing Miranda warnings. Statements made by White
during his interview reflected that he did not believe that he had been lawfully brought to
the police station and that he was not there voluntarily. White indicated to Detective
Howard that he was handcuffed while he was transported to the police station, although
the record does not indicate on what grounds he was brought to the station. Given that
White was transported involuntarily to the police station in handcuffs and that he was
interviewed at the station, we conclude that White was in custody when he was
interviewed by Howard.
{¶ 25} We have reviewed the video-recording of White’s interview at the police
station. The interview occurred in a small interview room equipped with a table against
the wall and three chairs, which were occupied by White and Detectives Howard and
Bailey. Howard asked White a few preliminary questions to confirm White’s name and
address and whether he had previously been read his Miranda rights, and then Howard
read White his Miranda rights from a card provided by the prosecutor’s office. White
indicated that he understood his rights. White was not asked if he wished to waive his
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Miranda rights, but he proceeded to answer Detective Howard’s questions. We find
nothing in the interview process that would suggest that White’s decision to subsequently
speak to the detective was involuntary.
{¶ 26} Turning to the voluntariness of White’s statements, the record reflects that
White’s interview began at approximately 9:00 p.m. and lasted for less than 20 minutes.
White carried a glass of water when he entered the room; he was not handcuffed. White
provided his birthdate to Detective Howard; he was 31 years old. White had previously
been arrested, most recently the year before the interview; White’s answer to whether he
had previously been informed of his rights was difficult to hear, but it sounded like he did
not recall. White did not appear to be under the influence of drugs or alcohol, and he
appeared to be intelligent. Although some of the exchanges between White and
Detective Howard were argumentative, Howard made no threats, promises, or any other
coercive statements. There is no evidence of coercive police activity. The record thus
supports the trial court’s conclusion that White’s statements were voluntarily made.
{¶ 27} Within a few minutes of the start of the interview, White expressed that he
“really don’t right now even want to answer any questions,” and he expressed that he
thought the stop of his vehicle and his transportation to the police station were unlawful.
While a suspect’s right to “cut off questioning” must be “scrupulously honored,” the
suspect’s invocation of that right must be clear and unambiguous. Burghuis, 560 U.S.
at 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098; State v. Blythe, 2d Dist. Montgomery No.
24961, 2013-Ohio-1688, ¶ 25. White’s comment about not wanting to answer questions
was immediately followed by several statements complaining about how he was brought
to the police station. Taken together, White did not clearly or unambiguously state that
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he wanted the interview to cease; rather, he expressed to Detective Howard that he did
not want to talk until he understood why he was there. Based on White’s unclear
statement regarding whether he wanted to invoke his right to remain silent, Detective
Howard properly asked White if he wanted to continue talking. See Davis v. United
States, 512 U.S. 452, 461, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994) (“[W]hen a suspect
makes an ambiguous or equivocal statement [regarding an attorney,] it will often be good
police practice for the interviewing officers to clarify whether or not he actually wants an
attorney.”). White responded by asking Detective Howard what the process was and
whether he was going to be booked into jail; Howard responded, “Possibly.” White told
Howard that another officer had said that White would be arrested, and the two men
discussed the inconsistency in the responses that White had received.
{¶ 28} Detective Howard then asked White again if he wanted to talk to him
(Howard). White stated, “I don’t understand why I should talk to you if I can’t just get a
solid answer” about whether he (White) was going to be jailed. Detective Howard
responded that he had given White a solid answer, and Detective Bailey told White that
Howard was trying to explain the situation to him. White then stated that he did not know
anything about Backpage and had “nothing to do with” Backpage, and he asked Howard
what was going on. Howard then asked White about whether J.J. and S.M. had been to
his house, and White answered. Howard and White then had an exchange about
whether anyone had given oral sex to him and other allegations that had been made.
{¶ 29} After reviewing the video of White’s interview, we conclude that White’s
statements were not made after a clear and unambiguous invocation of his right to remain
silent.
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{¶ 30} The trial court also did not err in failing to suppress White’s statement made
in the second interview room. “Police are not required to readminister Miranda warnings
to a suspect when a relatively short period of time has elapsed since the initial warnings.”
State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 119.
When deciding whether initial warnings remain effective for later
interrogations, courts look at the totality of the circumstances. Powell at ¶
119, citing State v. Roberts, 32 Ohio St. 3d 225, 232, 513 N.E.2d 720 (1987).
Courts are instructed to consider: (1) the length of time between the initial
warnings and the subsequent interrogation; (2) whether the warnings and
the subsequent interrogation were given in different places; (3) whether the
warnings given and the subsequent interrogation were conducted by
different officers; (4) the extent to which statements given in the subsequent
interrogation differed from previous statements; and (5) the apparent
intellectual and emotional state of the suspect. Roberts at 232, quoting
State v. McZorn, 288 N.C. 417, 434, 219 S.E.2d 201 (1975). The purpose
of the test is to “determine whether the initial warnings have become so
stale and remote that there is a substantial possibility that the individual was
unaware of his constitutional rights at the time of the subsequent
interrogation.” State v. Grissom, 1st Dist. No. C-100542, 2011-Ohio-1796,
¶ 13, citing McZorn at 434.
State v. Kottner, 1st Dist. Hamilton No. C-120350, 2013-Ohio-2159, ¶ 24.
{¶ 31} Detective Howard testified at the suppression hearing that, after the first
interview ceased, he took White to a different interview room that did not have video-
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recording equipment. Howard testified that he “locked the door, turned around to walk
away, and he [White] knocked on the door as I was turning to walk away.” Howard
testified the he unlocked the door, opened it, and asked White, “What’s up?” White
asked to talk to him (Howard). Howard further testified:
I told Bailey to come over. I told him [White] if he wanted to keep on talking
to me, can we go back to the other room? He was – didn’t want to go over
there. He made the statement that this type of thing happened to him two
or three years ago. At that point I stopped him and asked him, did he want
to go back to the interview room and talk to me? And he said no, and I
closed the door.
{¶ 32} Based on Howard’s testimony, which the trial court found credible, a very
short period of time elapsed between the end of the first interview and when White
reinitiated a conversation with Detective Howard. White had simply been moved down
the hall to a different room. Under these circumstances, Howard was not required to
provide Miranda warnings a second time. Moreover, although Howard asked White if he
wanted to go back to the first interview room, White’s subsequent statement that “this
type of thing” had previously happened was a spontaneous, voluntary statement and not
the product of interrogation by Howard. Finally, White’s statements to Howard in the
second interview room were not introduced at trial; accordingly, any error in failing to
suppress those statements was harmless.
{¶ 33} Finally, White asserts that all evidence seized pursuant to the search
warrant should have been suppressed, because the search warrant relied on statements
made by White to the detectives at the police station. Having concluded that the trial
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court properly denied White’s motion to suppress the statements he made at the police
station, the search warrant affidavit was not deficient for referencing the statements that
White made. And, upon our independent review of the search warrant affidavit, we
conclude that the search warrant was supported by probable cause, even if the
references to White’s statements at the police station were excluded.
{¶ 34} White’s first assignment of error is overruled.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 35} In his second assignment of error, White claims that his convictions were
based on insufficient evidence and were against the manifest weight of the evidence.
{¶ 36} A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to sustain the verdict as a
matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,
citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (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, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶ 37} In contrast, “a weight of the evidence argument 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; see Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. When evaluating whether a
conviction is against the manifest weight of the evidence, the appellate court must review
the entire record, weigh the evidence and all reasonable inferences, consider witness
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credibility, and 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, citing State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 38} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations
does not render the conviction against the manifest weight of the evidence. Wilson at ¶
14. A judgment of conviction should be reversed as being against the manifest weight
of the evidence only in exceptional circumstances. Martin at 175.
{¶ 39} The State’s evidence at trial established the following facts.
{¶ 40} In the spring of 2016, J.J. and S.M., both 15 years old, were best friends.
S.M. was also friends with Heard, whom S.M. had known since elementary school; Heard
was older than J.J. and S.M., and Heard was involved with White, who was 31 years old.
J.J. first met Heard at S.M.’s house; this encounter was brief and unremarkable.
{¶ 41} In April 2016, Heard and White picked up S.M. and J.J. in White’s vehicle;
White was introduced as “Shiloh.” The four drove around and smoked marijuana. (This
was referred to as a “blunt cruise.”) At some point, the car stopped, and White moved
from the front seat to the back seat to sit with J.J.; S.M. moved to the front seat and began
driving with Heard in the passenger seat. S.M. testified that Heard asked her if she knew
what escorting was, and S.M. said no. Heard told S.M. that it was “basically prostitution”
and “then they [Heard and White] told [S.M.] and [J.J.] that they needed more people to
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do it with them.” (Trial Tr. at 248.) White asked J.J. if she had been sexually active and
if she ever thought about making money for it. J.J. responded that she would not
consider doing anything like that. White told J.J. that if she considered doing sex acts
for money, he, Heard, and S.M. would be part of it with her. J.J. understood that “money
would be made and then would be given to [White] and if anything I needed [sic], I would
have to go to him for it.” (Trial Tr. at 112.) J.J. said to White that she did not agree
with what he was proposing, and the conversation between J.J. and White became
heated. S.M. told J.J. to calm down and listen to what White had to say. White and
Heard left S.M. and J.J. at S.M.’s house. J.J. recalled White’s saying that he would see
her again.
{¶ 42} On Saturday, May 7, 2016, J.J. was walking to the store with two friends
when she saw Heard and White in a car. J.J. asked White, who was driving, if he could
give the group a ride to the store. White agreed, and the three climbed into the back
seat of the car. As they headed to the store, White stated that he needed to stop at “the
house,” which Heard identified as White’s sister’s home. White drove to a residence on
Lilac Avenue in Dayton; the five sat in the driveway and smoked a “blunt.” White then
went inside the house.
{¶ 43} After a while, Heard drove J.J.’s friends home, and she asked J.J. to send
a message to S.M. for her. After communicating with S.M., Heard picked up S.M. in the
car, and the three (Heard, S.M., and J.J.) went to Wal-Mart and then back to the Lilac
Avenue house. Upon reaching the house, the group went inside and down to the
basement, where White was.
{¶ 44} The four drank alcohol, and White talked to J.J. and S.M. about engaging
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in sex for hire. J.J. testified that “it was mainly Shiloh talking.” (Trial Tr. at 130.) White
told J.J. and S.M. that they would make money and give it to him, and they would go to
him if they needed anything. White told J.J. what the prices would be based on the
amount of time spent. J.J. testified that White told her that she would be doing sex acts
ranging from just sitting with the person to oral sex to “regular sex” with that person.
(Trial Tr. at 131.) White told J.J. that a condom would be used. White referred to these
encounters as “plays” and said that the amount J.J. would earn would depend on the
number of plays. White also told J.J. and S.M. that they would receive a phone (to share)
for their plays. That night, J.J. and S.M. slept in the basement of the Lilac Avenue
residence.
{¶ 45} The next morning (Sunday, May 8), White made breakfast for them and told
them that they needed to take photographs for Backpage, a website where they could
advertise “escort” services. White told J.J. and S.M. to wear their bras and underwear
for the photos. White later had J.J. and S.M. remove their bras for some photos.
Individual photos were taken of J.J. and S.M.; White told J.J. and S.M. how to pose.
White then took photos of J.J., S.M., and Heard together, again telling them how to pose
(topless), because White was “going to put us on Backpage as a package.” (Trial Tr. at
139.) All of the photos were taken on Heard’s cell phone. White gave pseudonyms for
the girls on Backpage: J.J. was Royalty, S.M. was Loyalty, and Heard was Honesty.
{¶ 46} J.J. testified that White had a gun that he kept in his pocket; White told her
that if anything went wrong during a play, he would handle it.
{¶ 47} S.M. and J.J. spent the rest of the day at the Lilac Avenue residence. At
some point, White told J.J., S.M., and Heard that they would “practice” sex acts on him.
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White told them that “if we couldn’t be able to act on him, then we most likely won’t want
to act on strangers.” (Trial Tr. at 153.) White put on a condom, and Heard performed
oral sex first, then J.J. performed oral sex, and S.M. went third. That evening, they again
smoked marijuana and drank alcohol, and they all slept there overnight.
{¶ 48} While J.J. was “napping” on Sunday night, she was awakened by Heard
and told that she (J.J.) had a $500 play. J.J. stated that she did not feel like going and
went back to sleep. (Heard testified that J.J. did not actually have a play, and the
statement was a joke.) On Monday night, Heard went on a play and S.M. left with her,
but J.J. stayed behind; Heard had told J.J. that White “wanted his alone time with” J.J.
(Trial Tr. at 157.) After Heard and S.M. had left, White tried to “lay with” J.J., but J.J.
would not let him. White then put on a condom, told J.J. that he wanted her to perform
oral sex on him, and said he would pay her. J.J. asked if White would leave her alone if
she complied, and White said yes. J.J. then performed oral sex on White. J.J. tried to
pull away, but White held her head until he ejaculated.
{¶ 49} J.J. testified that White never asked how old she was, but he knew how old
S.M. was and that S.M. and J.J. had gone to the same school. J.J. testified that she told
Heard that she (J.J.) was 15, and that White was seated next to her in the car when this
conversation occurred. White told J.J. that she should tell people that she was 18. S.M.
testified that White had asked about J.J.’s and her age; S.M. did not recall whether this
occurred during the “blunt cruise” or the first night at the house. S.M. testified that “[w]e
both told him – [.J.J.] was 15 at that time. And I’m pretty sure I told him I was 16 because
my birthday was coming up.” (Trial Tr. at 253.)
{¶ 50} On Tuesday, May 10, Heard and White drove J.J. to school and S.M. home;
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Heard and White expected to pick up J.J. and S.M. after school. Beatrice Keeton, a
group leader at J.J.’s school, noticed that J.J. had been absent on May 9 and that, on
May 10, J.J. was wearing nicer clothes than she usually wore and had money that she
typically did not have. Toward the end of the school day, Keeton pulled J.J. aside and
asked her what was going on. J.J. appeared a bit anxious and rocked in her chair; she
told Keeton what had happened. Keeton relayed the information to her supervisor,
Tasha Stertmeyer, who then also spoke with J.J. Stertmeyer contacted the police, who
asked Keeton and Stertmeyer to bring J.J. to the station.
{¶ 51} After speaking with an officer, Keeton, Stertmeyer, the officer, and J.J. got
into Strertmeyer’s car, and J.J. directed them to the house on Lilac Avenue. J.J. also
pointed out the car that Heard and White used. The four then returned to the police
station. White and Heard were arrested later that day. The police subsequently
contacted S.M. about what had occurred.
{¶ 52} After a police investigation, White was indicted for
 Counts 1 & 2: unlawful sexual conduct with a minor (10 or more years older than
the victim – J.J. and S.M., respectively)
 Count 3: rape (force or threat of force – J.J.)
 Count 4: pandering obscenity involving a minor
 Counts 5 & 6: trafficking in persons (J.J. and S.M., respectively)
 Counts 7 & 8: compelling prostitution, with a human trafficking specification (J.J.
and S.M., respectively).
The trial court acquitted White of Counts 2 and 3, but found him guilty on the remaining
six charges.
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{¶ 53} On appeal, White claims that the State presented insufficient evidence to
support his convictions on Counts 1, 4, 5, and 6. White does not challenge the
sufficiency of the State’s evidence regarding Counts 7 and 8.
{¶ 54} R.C. 2907.04(A), unlawful sexual conduct with a minor, provides: “No
person who is eighteen years of age or older shall engage in sexual conduct with another,
who is not the spouse of the offender, when the offender knows the other person is
thirteen years of age or older but less than sixteen years of age, or the offender is reckless
in that regard.” White claims that the State presented no evidence that White knew J.J.’s
age or that he acted in disregard of a known risk that she was under 16 years of age.
{¶ 55} We disagree with White’s contention. On direct examination, J.J. testified
that White never asked how old she was, but he knew how old S.M. was and that S.M.
and J.J. had attended the same school. During cross-examination, J.J. testified that,
during the “blunt cruise,” Heard asked her how old she was. J.J. testified that she told
Heard that she was 15 and was turning 16 in November. J.J. stated that she assumed
that White also learned how old she was, because White “was listening. He was there.
He was sitting right next to me when I told her how old I was.” (Trial Tr. at 224.) J.J.
had previously testified on direct examination that White told her to tell people that she
was 18. Moreover, S.M. expressly testified that White had asked her about J.J.’s and
her age; S.M. did not recall whether this occurred during the “blunt cruise” or the first night
at the house. S.M. testified that White was told that J.J. was 15 years old. J.J.’s
and S.M.’s testimony, if believed, was sufficient to prove that White knew that J.J. was
thirteen years of age or older but less than sixteen years of age or that White was reckless
in that regard. White’s conviction on Count 1 was not based on insufficient evidence.
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{¶ 56} Count 4 involved pandering obscenity involving a minor, in violation of R.C.
2907.321(A)(1). That statute provides that “[n]o person, with knowledge of the character
of the material or performance involved, shall do any of the following: (1) Create,
reproduce, or publish any obscene material that has a minor as one of its participants or
portrayed observers.” White claims that the photographs of S.M. and J.J. were created
jointly by Heard, S.M., J.J., and White, and that they were reproduced and published by
Heard, not White. He further claims that the photos were not “obscene.”
{¶ 57} R.C. 2907.01(F) defines “obscene” materials as follows:
When considered as a whole, and judged with reference to ordinary adults
or, if it is designed for sexual deviates or other specially susceptible group,
judged with reference to that group, any material or performance is
“obscene” if any of the following apply:
(1) Its dominant appeal is to prurient interest;
(2) Its dominant tendency is to arouse lust by displaying or depicting sexual
activity, masturbation, sexual excitement, or nudity in a way that tends to
represent human beings as mere objects of sexual appetite;
(3) Its dominant tendency is to arouse lust by displaying or depicting
bestiality or extreme or bizarre violence, cruelty, or brutality;
(4) Its dominant tendency is to appeal to scatological interest by displaying
or depicting human bodily functions of elimination in a way that inspires
disgust or revulsion in persons with ordinary sensibilities, without serving
any genuine scientific, educational, sociological, moral, or artistic purpose;
(5) It contains a series of displays or descriptions of sexual activity,
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masturbation, sexual excitement, nudity, bestiality, extreme or bizarre
violence, cruelty, or brutality, or human bodily functions of elimination, the
cumulative effect of which is a dominant tendency to appeal to prurient or
scatological interest, when the appeal to such an interest is primarily for its
own sake or for commercial exploitation, rather than primarily for a genuine
scientific, educational, sociological, moral, or artistic purpose.
{¶ 58} The State states, citing Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37
L. Ed. 2d 419 (1973) and Urbana ex rel. Newlin v. Downing, 43 Ohio St. 3d 109, 539 N.E.2d
140 (1989), that obscenity requires a depiction of sexual conduct in a patently offensive
way. It notes that the photographs of S.M. and J.J. depict only sexual contact, not sexual
conduct, as defined by R.C. 2907.01. The State thus concedes that the photographs
were not “obscene” and that there was insufficient evidence to support White’s conviction
for pandering obscenity involving a minor.
{¶ 59} The State presented individual photographs of S.M. and J.J. wearing lacy
underwear. In several photos, S.M. and J.J. covered their bare breasts with their hands.
Other photos showed S.M. and J.J. from behind, focusing on their buttocks. There are
also a series of photographs with S.M., J.J., and Heard together; a few show them lying
in a “spooning” pose, with S.M. in the middle and Heard’s hand on S.M.’s buttocks.
Although the photographs are undoubtedly sexual in nature, we agree with the State’s
assessment that the photographs of J.J. and S.M. are not obscene, as that term is defined
by statute and case law. White’s claim that his conviction on Count 4 was based on
insufficient evidence is sustained.
{¶ 60} Next, White claims that the State failed to present sufficient evidence to
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support his convictions for trafficking in persons in violation of R.C. 2905.32(A)(2)(a).
That statute provides, in relevant part:
(A) No person shall knowingly recruit, lure, entice, isolate, harbor, transport,
provide, obtain, or maintain, or knowingly attempt to recruit, lure, entice,
isolate, harbor, transport, provide, obtain, or maintain, another person if any
of the following applies:
***
(2) The other person is less than sixteen years of age * * *, and * * * the
offender’s knowing recruitment, luring, enticement, isolation, harboring,
transportation, provision, obtaining, or maintenance of the other person or
knowing attempt to recruit, lure, entice, isolate, harbor, transport, provide,
obtain, or maintain the other person is for any of the following purposes:
(a) To engage in sexual activity for hire[.]
{¶ 61} White contends that there was no evidence that he knowingly recruited S.M.
and J.J. He asserts that Heard “chose to recruit SM and indirectly JJ. White did not
know either of them. * * * The evidence shows that White merely helped Heard with her
attempts and eventual recruitment of SM and JJ.”
{¶ 62} The State presented evidence that White was the “mastermind” behind the
Backpage operation, and that he knowingly was involved in the recruitment of J.J. and
S.M. as additional escorts. Heard testified on direct examination that she met White
through an ex-boyfriend and communicated with White on Facebook when she lived in
Wilmington, Ohio. In March 2016, White asked Heard to come to Dayton to make some
money. Heard originally believed that she would be selling drugs, but White introduced
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Heard to a woman in Xenia and told Heard to watch how that woman worked. White told
Heard about Backpage, that she would be having sexual intercourse, and about what she
could charge based on the amount of time she spent with clients. White called this
“escorting” or “hitting a play.” White and the Xenia woman took photos of Heard for a
Backpage ad. When White and Heard came to Dayton a couple days later, Heard began
going out on “plays” – up to four per day – and gave the money to White. Heard testified
that White wanted her to find more females to do escorting; White told Heard that she
would not have to do “plays” anymore if she got other females involved.
{¶ 63} Although White was introduced to S.M. and J.J. by Heard, there was
evidence that White actively tried to recruit them as additional escorts. S.M. testified
that, during the “blunt cruise,” both Heard and White told J.J. and her that they (Heard
and White) needed more people to do plays. J.J. testified that White asked her if she
had been sexually active and if she ever thought about making money for it. J.J. further
testified that White said that if she (J.J.) considered doing sex acts for money, he, Heard,
and S.M. would be part of it with her. Heard also testified that White had conversations
with J.J. and S.M. about getting them involved; White said that it was good money and
better than just having sex for free. Both J.J. and S.M. understood that the money they
made from plays would be given to White. J.J. and S.M. both described how White
brought up taking pictures to upload to Backpage to get clients and that White directed
the photoshoot (what they wore and how they posed). White brought up that J.J. and
S.M. needed to practice on him so that they would be able to perform oral sex on
strangers. Heard testified that both she and White used her phone to respond to
Backpage clients. Upon review of the evidence, the State presented sufficient evidence
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for the trial court to conclude that White knowingly attempted to recruit S.M. and J.J. to
engage in sex for hire.
{¶ 64} Finally, White claims that his convictions were against the manifest weight
of the evidence. He argues that Heard, not he, was the individual who needed the
money, recruited S.M. and J.J., encouraged S.M.’s and J.J.’s participation, and advertised
them on Backpage on Heard’s ad with Heard’s phone. White does not specify the counts
to which this argument is directed. However, it appears to relate to both trafficking in
persons counts (Counts 5 and 6), as well as the counts of promoting prostitution in
violation of R.C. 2907.21(A)(2) (Counts 7 and 8), which prohibits a person from knowingly
inducing, procuring, encouraging, soliciting, requesting, or otherwise facilitating a minor
to engage in sexual activity for hire.
{¶ 65} As White argues, there was evidence at trial that Heard wanted to have her
own business (a strip club) and that she was trying to earn money so she could do that.
The State’s evidence indicated that Heard knew S.M. from her childhood, that she met
J.J. through S.M., and that she talked with S.M. about working as an “escort.” J.J. and
S.M. also testified that both Heard and White talked to them about engaging in sexual
activity for money. On cross-examination, Heard acknowledged that when she brought
J.J. and S.M. to the Lilac Avenue residence, she told them that she was making “good
money” on Backpage. The State’s evidence further indicated that Heard participated in
the photo session, encouraged J.J. and S.M. to “practice” oral sex on White, and used
her phone to discuss a play that would involve J.J. and S.M. As a result of her conduct,
Heard was charged with two counts of trafficking in persons and pandering obscenity
involving a minor, and she pled guilty to the pandering obscenity charge in exchange for
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the dismissal of the trafficking in persons charges. (See Def. Ex. A.)
{¶ 66} However, the evidence that Heard knowingly attempted to recruit S.M. and
J.J. to engage in sex for hire does not negate the State’s evidence that White also
knowingly attempted to recruit S.M. and J.J. to engage in sex for hire. Rather, the
manifest weight of the evidence reflects that Heard and White both attempted to recruit
J.J. and S.M. The State was not required to charge White with aiding and abetting in
Heard’s recruitment of S.M. and J.J., and, regardless, the State’s evidence supported a
conclusion that White, as a principal, knowingly attempted to recruit S.M. and J.J. to
engage in sex for hire. White’s convictions on Counts 5, 6, 7, and 8 are not against the
manifest weight of the evidence.
{¶ 67} White’s second assignment of error is sustained as to Count 4 and
overruled as to Counts 1, 5, 6, 7, and 8.
III. Ineffective Assistance of Counsel
{¶ 68} In his third assignment of error, White claims that his trial counsel rendered
ineffective assistance by failing to “fully and effectively cross-examine the State’s
witnesses with the evidence given” and by failing to properly prepare for trial. White
states that his trial counsel “could have and should have filed motions and compelled
Heard’s proffered testimony pursuant to her plea agreement and obtained additional
evidence and witnesses to refute that testimony.”
{¶ 69} To establish ineffective assistance of counsel, a defendant must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that the errors were serious enough to create a reasonable
probability that, but for the errors, the outcome of the case would have been different.
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See Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Bradley, 42 Ohio St. 3d 136, 142, 538 N.E.2d 373 (1989). Trial counsel is entitled
to a strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. A defendant is entitled to “reasonable
competence” from his or her attorney, not “perfect advocacy.” See Maryland v. Kulbicki,
136 S. Ct. 2, 5 (2015), citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L. Ed. 2d
1 (2003) (per curiam).
{¶ 70} “Strickland and its progeny establish that when a court is presented with an
ineffective-assistance-of-counsel claim, it should look to the full record presented by the
defendant to determine whether the defendant satisfied his [or her] burden to prove
deficient performance.” Reeves v. Alabama, __ U.S. __ 138 S. Ct. 22, 26, 199 L. Ed. 2d
341 (2017). Hindsight is not permitted to distort the assessment of what was reasonable
in light of counsel’s perspective at the time, and a debatable decision concerning trial
strategy cannot form the basis of a finding of ineffective assistance of counsel. State v.
Cook, 65 Ohio St. 3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-
400, 84 N.E.3d 193, ¶ 38 (2d Dist.).
{¶ 71} “A claim of ineffective assistance of counsel cannot be asserted on direct
appeal if it relies on matters outside the record.” State v. Harris, 2d Dist. Montgomery
No. 27179, 2017-Ohio-9052, ¶ 19.
{¶ 72} We find nothing in the record to suggest that trial counsel rendered
ineffective assistance at trial. We have reviewed the transcript of the entire trial, and
defense counsel thoroughly cross-examined S.M., J.J., and Heard about the escorting
business that White was attempting to build. White does not explain how his counsel’s
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cross-examinations of these and other witnesses were lacking, nor does White identify
what motions should have been filed and what additional evidence should have been
offered at trial. White’s claim of ineffectiveness appears to rely on unidentified materials
outside the record, and thus it is not properly raised on direct appeal.
{¶ 73} White’s third assignment of error is overruled.
IV. Constitutionality of R.C. 2905.32(A)(2)(a)
{¶ 74} In his fourth assignment of error, White claims that R.C. 2905.32(A)(2)(a),
the trafficking in persons statute, is void for vagueness. White focuses on the statutory
language that prohibits a person from knowingly attempting to recruit a person who is
“less than sixteen years of age” for the purpose of engaging in sexual activity for hire.
He asserts that, “[a]lthough the State proved that the victims in this case were 15 years
of age at the time the offense was committed, the statute barely notified White of the
conduct prohibited if he believed that both victims were 16.” White further states that
“the strict liability application in this statute does not provide sufficient standards to
prevent arbitrary and discriminatory enforcement.”
{¶ 75} At the outset, we note that White did not raise a constitutional challenge to
R.C. 2905.32(A)(2)(a) before the trial court. It is well established that “ ‘an appellate
court will not consider any error which counsel for a party complaining of the trial court’s
judgment could have called but did not call to the trial court’s attention at a time when
such error could have been avoided or corrected by the trial court.’ ” State v. Awan, 22
Ohio St. 3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St. 2d 56,
236 N.E.2d 545 (1968), paragraph three of the syllabus. (Other citations omitted.)
“[T]he question of the constitutionality of a statute must generally be raised at the first
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opportunity and, in a criminal prosecution, this means in the trial court.” (Citation
omitted.) Awan at 122. Consequently, White forfeited his constitutional challenge to R.C.
2905.32(A)(2)(a) by failing to object to its alleged ambiguity in the trial court. See State
v. Quarterman, 140 Ohio St. 3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.
{¶ 76} Nevertheless, we may consider constitutional challenges to the application
of statutes in specific cases of plain error or where the rights and interests involved may
warrant it. See Dayton v. Smith, 2018-Ohio-675, __ N.E.3d __, ¶ 30 (2d Dist.). To
demonstrate plain error, it must be shown that “but for a plain or obvious error, the
outcome of the proceeding would have been otherwise, and reversal must be necessary
to correct a manifest miscarriage of justice.” Quarterman at ¶ 16, citing State v. Davis,
127 Ohio St. 3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 29. “The burden of
demonstrating plain error is on the party asserting it.” Id., citing State v. Payne, 114 Ohio
St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.
{¶ 77} Even if we were to consider White’s constitutional challenge, we would not
find that the phrase “the other person is less than sixteen years of age” presents a plain
or obvious error that warrants a reversal of White’s trafficking in persons convictions on
grounds of vagueness. “[W]hen a statute is challenged under the due process doctrine
of vagueness, a court must determine whether the enactment (1) provides sufficient
notice of its proscriptions and (2) contains reasonably clear guidelines to prevent official
arbitrariness or discrimination in its enforcement.” Perez v. Cleveland, 78 Ohio St. 3d
376, 378, 678 N.E.2d 537 (1997), citing Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242,
39 L. Ed. 2d 605 (1974). Although White argues he did not know that S.M. and J.J. were
less than 16 years old, the statutory elements of the offense are sufficiently clear.
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{¶ 78} White’s fourth assignment of error is overruled.
V. Prosecutorial Misconduct
{¶ 79} In his fifth assignment of error, White claims that the State engaged in
misconduct when it offered the testimony of Heard, in accordance with a plea agreement,
knowing that her testimony was not truthful or in reckless disregard for the truth.
{¶ 80} The test for prosecutorial misconduct is whether the prosecutor’s conduct
was improper and, if so, whether that conduct prejudicially affected substantial rights of
the accused. State v. Martin, 2d Dist. Montgomery No. 22744, 2009-Ohio-5303, ¶ 15.
A prosecutor’s conduct during trial cannot be grounds for error unless the conduct
deprives the defendant of a fair trial. State v. Williams, 2d Dist. Montgomery No. 24548,
2012-Ohio-4179, ¶ 51, citing State v. Apanovitch, 33 Ohio St. 3d 19, 24, 514 N.E.2d 394
(1987). The focus of the inquiry is on the fairness of the trial, not on the culpability of the
prosecutor. State v. Bey, 85 Ohio St. 3d 487, 496, 709 N.E.2d 484 (1999).
{¶ 81} Where it is clear beyond a reasonable doubt that the trier of fact would have
found the defendant guilty, even absent the alleged misconduct, the defendant has not
been prejudiced, and his conviction will not be reversed. See State v. Underwood, 2d
Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review allegations of
prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d Dist.
Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S.
168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).
{¶ 82} White argues that the manifest weight of the evidence demonstrates that
Heard voluntarily came to Dayton, built a Backpage ad, provided sex for hire to raise
money for a business, recruited S.M. and J.J. to expand her business, created photos of
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them, and added them to her Backpage ad. White contends that Heard “drastically
changed her story against all evidence in the case” in order to get out of jail and reduce
the charges against her. White asserts that the prosecutors were aware or should have
been aware that Heard’s testimony would not be completely truthful, thus denying him a
fair trial.
{¶ 83} The record does not support White’s contention that the prosecutors
knowingly or recklessly offered untruthful testimony by Heard. J.J.’s and S.M.’s
testimony implicated both Heard and White. Heard’s testimony during direct
examination regarding White’s conduct was substantially consistent with the testimony
provided by J.J. and S.M. and other evidence obtained during the police investigation,
including photographs from Heard’s cell phone, the online Backpage ad, items located in
the basement of the Lilac Avenue residence, and DNA evidence. Moreover, Heard was
thoroughly cross-examined by defense counsel. During that examination, Heard
acknowledged that she wanted to start a business, that she came to Dayton with White
to make money for that purpose, and that she talked to J.J. and S.M. about making money
on Backpage. In short, the record does not support White’s contention that the State
knowingly or recklessly offered perjured testimony by Heard or that her testimony
deprived him of a fair trial.
{¶ 84} White’s fifth assignment of error is overruled.
VI. Conclusion
{¶ 85} The trial court’s judgment as to Count 4 (pandering obscenity involving a
minor) will be reversed. In all other respects, the trial court’s judgment will be affirmed.
.............
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HALL, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck
Heather N. Jans
Ben M. Swift
Hon. Timothy N. O’Connell