STATE OF OHIO, PLAINTIFF-APPELLEE vs. GERALD STROTHERS, DEFENDANT-APPELLANT
No. 97687
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 1, 2012
2012-Ohio-5062
E. Gallagher, J., Sweeney, P.J., and S. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-552709
Michael P. Maloney
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} Gerald Strothers appeals from his conviction rendered in the Cuyahoga County Court of Common Pleas. Strothers argues that the court erred in denying his
{¶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 servicеs. 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 exрlained 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 tеxt message to the number provided on the advertisements (the same number on
{¶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 statеd 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
{¶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
{¶9} In his first assignment of error, Strothers argues that the court erred when it denied his
{¶10} “[T]he test an appellate court must apply when reviewing a challenge based оn 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
(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
{¶13} The attempt statute,
{¶14} Strothers was also convicted of possessing criminal tools by violating
{¶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 wеre 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 fаcts are taken in conjunction with the
{¶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.
{¶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-2684
appellate 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 cоurt‘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 tо 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 оf 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, аnd 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 affiаnt, 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 аffidavit pursuant to
{¶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 whiсh 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
{¶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 allowаnces of lay person testimony under
{¶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
{¶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 reseаrching 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, ”
{¶29} Strothers’ third and final assignment of error is overruled.
{¶30} The judgment of the trial court is affirmed.
It is orderеd that appellee recover from appellant costs herein taxed.
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
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and SEAN C. GALLAGHER, J., CONCUR