State v. Moore , 2013 Ohio 5613 ( 2013 )

[Cite as State v. Moore, 2013-Ohio-5613.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130170
TRIAL NO. 12CRB-19383
Plaintiff-Appellant, :
vs. : O P I N I O N.
LELAND MOORE :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 20, 2013
John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and William T.
Horsley, Assistant City Prosecutor, for Plaintiff-Appellant,
James Grey Wolf, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, Judge.
{¶1} The state of Ohio appeals the judgment of the Hamilton County
Municipal Court granting what was styled as a “Motion to Suppress” by defendant-
appellee Leland Moore.
Moore’s Arrest and Motion
{¶2} On June 22, 2012, Moore was arrested for soliciting under R.C.
2907.24(A) and for loitering to engage in solicitation under R.C. 2907.241. The
arrest was made as part of a “reverse prostitution sting” in which Cincinnati police
officers posed as prostitutes to ensnare persons soliciting sexual activity for hire.
{¶3} On January 23, 2013, Moore filed a document styled “Motion to
Suppress,” with an accompanying memorandum. In his memorandum, Moore
argued that “[t]he state cannot show that the defendant solicited another to engage
in sexual activity as such is statutorily required for the commission of the charged
offenses.”
{¶4} Following an evidentiary hearing, the trial court granted Moore’s
motion. The basis of the court’s ruling was that the state “has failed to prove that the
Defendant solicited Officer Mandy Hesselbrock * * * to engage in any of the acts
identified within the definitions of ‘sexual conduct’ or ‘sexual contact.’ ” The court
therefore held that there was no probable cause for the arrest and granted Moore’s
motion “in its entirety.”
Moore’s Motion was not Cognizable
{¶5} In a single assignment of error, the state contends that the trial court’s
judgment granting the motion was contrary to law. We agree.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Although framed as a motion to suppress, Moore’s filing was in
essence a motion to dismiss the charges based on an asserted lack of evidence that he
had committed the offenses. The trial court’s ruling, in turn, was based upon the
same perceived deficiency in the state’s case.
{¶7} A motion to dismiss can raise only matters that are capable of
determination without a trial of the general issue. Crim.R. 12(C); State v. Scott, 174
Ohio App.3d 446, 2007-Ohio-7065, 882 N.E.2d 500, ¶ 9 (1st Dist.); State v.
Etheridge, 8th Dist. Cuyahoga No. 87859, 2006-Ohio-6768, ¶ 5; State v. Serban, 5th
Dist. Stark No. 2006 CA 00198, 2007-Ohio-3634, ¶ 25. If a motion requires the
examination of evidence beyond the face of the indictment or complaint, the issue
must be presented in a motion for acquittal at the close of the state’s case. Scott at ¶
9; Serban at ¶ 26. Thus, even where the state and the defendant have stipulated the
facts that form the basis of the charges, a motion to dismiss is premature, because
there is no equivalent for a motion for summary judgment in criminal proceedings.
Scott at ¶ 9.
{¶8} In this case, Moore’s motion challenged the sufficiency of the state’s
evidence to support the convictions, and the motion was therefore not properly
heard prior to trial. The complaints were facially valid, and all of the elements of the
charges were properly alleged. Accordingly, the trial court erred in granting the
motion, and we sustain the state’s assignment of error.
Conclusion
{¶9} We reverse the trial court’s judgment and remand the cause for further
proceedings consistent with law and this opinion.
Judgment reversed and cause remanded.
HENDON, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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