State v. WestState v. West
Rendered on the 25th day of November, 2009.
Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Atty. Reg. No.0069828, Asst. Pros. Attorney, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
J. A. Adams, Atty. Reg. No. 0072135, 424 Patterson Road, Dayton, OH 45419
Attorney for Defendant-Appellant
GRADY, J.:
{¶ 1} Defendant, Vickie L. West, appeals from her convictions for soliciting another to engage in sexual activity for hire after a positive HIV test,
{¶ 2} Detective Thomas Harshman of the Dayton Police Department Vice Crime Unit testified at West‘s trial that he drove to a busy intersection in Dayton where West was seen speaking with drivers of vehicles that had stopped there. As Harshman approached the intersection, West extended her hand to make a hitchhiking signal. Harshman stopped, and West got into his car.
{¶ 3} Detective Harshman testified that West introduced herself as “Jessie” and that he introduced himself as “Tom.” Harshman told West that he “was just killing time.” West then asked, “Would you like a great blow job? I swallow.” Harshman testified: “I told her, ‘sure.’ And then asked her what she needed for that.” Harshman said West did not reply, and instead began “rubbing my penis on the outside of my pants.” Harshman testified that prostitutes do that to determine whether the other person is a law enforcement officer. As they drove away, Harshman again “asked her what she needed.” West replied “that she wanted a new pair of shoes, and that shoes cost $24; but she would settle for $20.” (T. 124-126).
{¶ 4} Harshman drove to a bank where an ATM is located, to obtain the twenty dollars West had asked for. When they arrived, Harshman and another officer, Detective Raymond St. Clair, who
FIRST ASSIGNMENT OF ERROR
{¶ 5} “APPELLANT RESPECTFULLY SUBMITS THAT SHE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED TO HER BY THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION.”
{¶ 6} Counsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel‘s performance. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must affirmatively demonstrate to a reasonable probability that were it not for counsel‘s errors, the result of the trial likely would have been different. Id.; State v. Bradley (1989), 42 Ohio St.3d 136. Further, the threshold inquiry should be whether a defendant was prejudiced, not whether counsel‘s performance was deficient. Strickland.
{¶ 7} West complains that her trial counsel failed to provide reasonable representation in her defense because he called no witnesses and offered no other evidence, and instead relied on
{¶ 8} West‘s trial counsel told the jury in his opening statement that West “is going to testify in this case. She‘s going to tell you about her life experiences and tell you everything about her past and be open about it.” (T. 91-92). Counsel told the jury that West had previously been convicted and “served some time in prison,” but is “on parole today and, at the time of this incident, she was doing well. She will report to you.” (T. 92).
{¶ 9} West did not testify at trial. When the trial court inquired of West whether her decision to not testify was knowing and voluntary, West confirmed that it was. West told the court that her decision was made after consulting with her counsel, but the record does not indicate when West made that decision.
{¶ 10} West complains that her trial counsel was deficient in promising the jury that she would testify when she did not, and that she was prejudiced as a result. The State argues that West‘s counsel cannot be charged with knowledge that West would not testify when he represented to the jury that she would. The State also
{¶ 11} In his closing argument, West‘s counsel told the jury:
{¶ 12} “I want to apologize for something to start with. We had told you that Vickie was going to testify. But if you remember something what I told you in opening, actually in voir dire when we were first talking, I mentioned to each and every one of you that, if I, as the attorney, advise Vickie that she did not need to testify, that she would leave that decision to me, that you would not hold that against her. I want you each to remember that.” (T. 153).
{¶ 13} An opening statement permits counsel to tell the jury what evidence it will hear. However, counsel should be wary of representing that a defendant will waive her Fifth Amendment right and testify, especially when whether she will is then an open question, as it apparently was here. If a defendant elects to not testify, the representation may then burden a defendant‘s exercise of her constitutional right.
{¶ 14} Nevertheless, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.
{¶ 15} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 16} “APPELLANT RESPECTFULLY SUBMITS THAT HER CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{¶ 17} A person is not guilty of a criminal offense unless (1) the person engaged in conduct that a section of the Revised Code prohibits and (2) acts with the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.
{¶ 18}
{¶ 19} The courts in State v. Howard (1983), 7 Ohio Misc.2d 45, and State v. Swann (2001), 142 Ohio App.3d 88, held that an accused‘s mere agreement to a proposal made by another that they engage in sexual activity or that the accused would do that for hire does not constitute solicitation, because “the crime is in the asking,” Howard, at 45, and “the specific crime . . . does not prohibit acceptance, only entreaty.” Swann, at 90. Defendant relies on those holdings, and points out that while she offered to engage in sexual activity, she made no mention of a price of any kind, except in response to Officer Harshman‘s inquiry concerning “what she needed for that.” Defendant argues that, therefore, the evidence failed to prove that her act of solicitation included an offer to perform “for hire.”
{¶ 20} “‘Prostitute’ means a male or female who engages in sexual activity for hire, regardless of whether the hire is paid to the prostitute or to another.”
{¶ 21} In Swann, the First District Court of Appeals reasoned that because criminal statutes must be construed strictly against the state and liberally in favor of the accused,
{¶ 22} The conduct that
{¶ 23} Defendant‘s convictions are therefore supported by sufficient evidence.
{¶ 24} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 25} “APPELLANT WAS CONVICTED UNDER A DEFECTIVE INDICTMENT.”
{¶ 26} Because
{¶ 27} The indictment charging West with a violation of
{¶ 28}
{¶ 29} The State‘s motion was not untimely, and the omission of a culpable mental state from
{¶ 30} Defendant argues that failure to allege recklessness in the indictment nevertheless prejudiced her due process right
{¶ 31} The third assignment of error is overruled. The judgment of conviction and sentence will be affirmed.
DONOVAN, P.J., And BROGAN, J., concur.
Copies mailed to:
Michele D. Phipps, Esq.
Jay A. Adams, Esq.
Hon. Mary Katherine Huffman