STATE OF OHIO v. GERALD STROTHERS
No. 97687
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 20, 2012
2012-Ohio-4275
BEFORE: E. Gallagher, J., Sweeney, P.J., and S. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-552709. JUDGMENT: AFFIRMED. RELEASED AND JOURNALIZED: September 20, 2012.
Michael P. Maloney
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
{¶1} Gerald Strothers appeals from his conviction rеndered 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 services. Officer Malone аnd 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
{¶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 fоr “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 aсcused 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 tо 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 wоrk for Strothers. Stallings also stated that she posed for photographs that Strothers took of her on a motorcycle wearing underwear, the same photos that
{¶7} Strothers was convicted of two counts of promoting prostitution, one count of possession оf 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} In his first assignment of error, Strothers argues that the court erred when it deniеd his
{¶9} “[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.
{¶10} Strothers was convicted of promoting prostitution by violating
(A) No person shall knowingly: (1) Establish, maintain, oрerate, 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.
{¶11} 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))
{¶12} The attempt statute,
{¶13} Strothers was also convicted of possessing criminal tools by violating
{¶14} 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 оf 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.
{¶15} 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 сell 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
{¶16} Strothers’ first assignment of error is overruled.
{¶17} In his second assignment of error, Strothers argues that the court erred in denying his motion to suppress the evidеnce found as a result of a search of his home. For the reasons that follow, we cannot consider this assignment of error.
{¶18} Strothers’ notice of appeal to this court has failed to establish notice as to any challenge to the denial of the motion to suppress.
{¶19} In the present case, Strothers made no attempt and, therefore, failed to amend his notice of appeal under the procedures outlined in
{¶20} Strothers argues in his third assignment of error that the court erred in
{¶21} 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 .
{¶22} Assessment of admission of lay person opinion testimony is evaluated under an abuse of discretion standard. The Ohio Supreme Court has statеd, “[w]e must review the trial court‘s decision whether to admit evidence under
{¶23} 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 errоr 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
{¶24} 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 аrguments solely under the aforementioned abuse of discretion standard.
{¶25} 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, ”
{¶26} Strothers’ third and final assignment of error is overruled.
{¶27} 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 mandаte pursuant to
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
Appendix
Assignments of Error
- “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.
- The trial court erred in denying appellant‘s motion to suppress evidence.
- The trial court erred in admitting opinion evidence of a detective.”