State v. Short, 2017 Ohio 7200

Background

Defendant Kenneth Short was tried in Dayton Municipal Court after an undercover sting; he was convicted after a bench trial of soliciting in violation of R.C. 2907.24(A)(1) and sentenced to suspended jail time and community control.
Detective Phelps‑Powers placed an ad on Backpage and exchanged text messages with Short; Short initiated contact, requested specific sexual acts, and agreed to the detective’s quoted hourly/half‑hour rates, then met at a hotel where he was arrested with $130 and a condom.
At trial the parties stipulated to the detective’s anticipated testimony, the police report, and the text message printout; the stipulation included that the ad was placed in Backpage’s “sex for money” section.
Post‑trial Short argued insufficiency: he contended he only accepted the officer’s offer (did not solicit) and noted a purported off‑the‑record agreement to exclude the Backpage section from the stipulation; no formal modification of stipulations was filed.
The trial court found Short’s conduct satisfied solicitation (actus reus), and the appellate court held the off‑the‑record modification ineffective, treated the original stipulation as binding, and affirmed the conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Short’s conduct was legally sufficient to prove solicitation under R.C. 2907.24(A)(1)	Short initiated contact, named sexual acts, agreed to the detective’s quoted prices and met at the hotel — these facts establish an offer to engage in sexual activity for hire	Short merely accepted an undercover officer’s suggestion; he never asked for payment or mentioned money, so he did not ‘solicit’ (crime is in the asking)	Held: Sufficient evidence of solicitation. Short’s initiation, specification of acts, agreement to price, and meeting supported conviction; the solicitation prohibition covers offers, counteroffers, and responses to open inquiries
Whether the parties effectively modified the trial stipulation to exclude Backpage’s “sex for money” section	State relied on the stipulation that the ad was placed in that section to show awareness payment was expected	Short claimed an off‑the‑record agreement excluded the section from stipulation and that the record should not include it	Held: Off‑the‑record modification ineffective; no formal motion or court approval — original stipulation stands
Whether failure to move for Crim.R. 29 at trial waived appellate sufficiency review	State argued absence of a Crim.R. 29 motion waived sufficiency review, so manifest‑weight standard should apply	Short argued sufficiency preserved by not‑guilty plea and appellate precedent allowing sufficiency review without a Crim.R. 29 motion	Held: No waiver. Under Ohio Supreme Court precedent a Crim.R. 29 motion is not required to preserve a sufficiency challenge on appeal
Whether precedent (Swann/Howard) precludes conviction where undercover officer initiated price	State: Solicitation can occur in response to an open inquiry or as a counteroffer; defendant’s conduct may still solicit	Short: Cited Swann/Howard to argue agreeing to officer’s offer is not solicitation	Held: Court distinguished Swann/Howard — here defendant’s conduct went beyond mere agreement (initiated contact, specified acts, sought assurances, agreed to price) and conviction aligns with cases recognizing solicitation can be shown by conduct beyond an explicit initial ask

Key Cases Cited

State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (defines distinctions between sufficiency and manifest‑weight review)
State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (sets standard for sufficiency review in criminal cases)
State v. Jones, 91 Ohio St.3d 335 (Ohio 2001) (failure to move for Crim.R. 29 does not necessarily waive sufficiency challenge)
State v. Carter, 64 Ohio St.3d 218 (Ohio 1992) (same principle regarding preservation of sufficiency claims)
State v. DeHass, 10 Ohio St.2d 230 (Ohio 1967) (credibility determinations are for the factfinder)