COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59132 STATE OF OHIO, : CITY OF MAPLE HEIGHTS : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DANIEL G. ELAM : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 17, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Garfield Heights Muni. Court : Case No. 88-8767 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: JOSEPH W. DIEMERT, JR. Director of Law/Prosecutor City of Maple Heights 1360 S.O.M. Center Road Cleveland, Ohio 44124-2189 For defendant-appellant: MICHAEL I. SHAPERO Attorney at Law 5333 Northfield Road Bedford Heights, Ohio 44146 - 2 - FRANCIS E. SWEENEY, J.: Defendant-appellant, Daniel G. Elam, was charged on November 15, 1988 with importuning in violation of R.C. 2907.07(B). After a jury trial, appellant was found guilty as charged. Appellant timely appeals his conviction, raising two assignments of error for our review. For the reasons set forth below, we affirm. Appellant's first assignment of error states: THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN DENYING DEFENDANT'S MOTION TO DISMISS UNDER CRIM. R. 12 AND IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL UNDER CRIM. R. 29(A). Appellant contends the trial court should have granted his motion to dismiss and his motion for acquittal. Appellant argues no direct solicitation occurred between appellant and his victim, nor were "fighting words" used in the alleged solicitation. This argument lacks merit. The trial court is limited in its review of the crime charged insofar as it cannot inquire into the sufficiency of the evidence to support the charge. See, State v. Hodel (Aug. 16, 1990), Cuyahoga App. No. 57069, unreported; United States v. Calandra (1974), 414 U.S. 338, 339; see, also, State v. Davis (1988), 38 Ohio St. 3d 361, 365. It is improper for a trial court to determine whether sufficient evidence exists to support - 2 - a charge prior to trial by ruling on a defendant's motion to dismiss brought pursuant to R.C. 2937.04 and Crim. R. 12. Hodel, supra, at 3; State v. Patterson (May 23, 1989), Montgomery App. No. 11271, unreported. If, at the close of the state's case, there was insufficient evidence as a matter of law to support the charge, the proper procedure for the trial court would be to grant appellant's motion for acquittal brought pur- suant to Crim. R. 29. Hodel, supra, at 3; State v. Rollins (May 27, 1988), Fulton App. No. F-878-1, unreported. In the present case, appellant's motion to dismiss chal- lenged the sufficiency of the evidence to support the crime charged. Therefore, the trial court did not err in overruling appellant's motion. Pursuant to Crim. R. 29(A), the trial court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reason- able doubt. State v. Apanovich (1987), 33 Ohio St. 3d 19, 23; State v. Bridgeman (1978), 55 Ohio St. 261. The credibility of testimony and the weight of the evidence are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. The importuning statue [R.C. 2907.07(B)] states that "[n]o person shall solicit a person of the same sex to engage in sexual activity with the offender, when the offender knows such solicit- - 3 - ation is offensive to the other person, or is reckless in that regard." Sexual activity is defined as both "sexual conduct" and "sexual contact." R.C. 2907.01. Further, fondling another's crotch falls into the definition of "sexual contact" [R.C. 2907.01(B)], while fellatio falls within the definition of "sex- ual conduct [R.C. 2907.01(A)]. Finally, the Ohio Supreme Court has held in State v. Phipps (1979), 58 Ohio St. 2d 271, in paragraph one of its syllabus: Under R.C. 2907.07(B), persons may not be punished for "solicit[ing] a person of the same sex to engage in sexual activity with the offender, when the offender knows such solicitation is offensive to the other per- son, or is reckless in that regard," unless the solicitation, by its very utterance, inflicts injury or is likely to provoke the average person to an immediate retaliatory breach of the peace. (Cincinnati v. Karlan, 39 Ohio St. 2d 107, and State v. Hoffman, 57 Ohio St 2d 129, approved and followed.) (Emphasis added.) In the present case, Michael Vitali, a sixteen-year-old at the time of the incident, testified to having received several phone calls from a "Bryan Clay" beginning October 26, 1988. On the first call, the caller stated that Michael reminded him of a friend. On October 29, 1988, "Bryan Clay" called again inquiring of Michael whether he had received a letter. Michael testified the caller said the same stuff he said on the first call and inquired whether they could meet sometime. Michael further stated that on November 1, 1988, his mother read to him the contents of a letter which she found concerning the writer's - 4 - first homosexual experience and stating "[a]ll I want to do is fondle your crotch or suck on your cock." The letter further stated the writer didn't want "any trouble with the Law (sic.) or your parents." Finally, the letter suggested the writer could find Michael a good job and stated he looked forward to meeting Michael. Michael testified he was offended by the letter and scared that "someone wanted to do this." The letter came in an envelope, hand-delivered to the Vitalis' residence since no stamp or postage mark was on the envelope, with a false return address, hand-written, and the initials "B.C." at the top right-hand corner. Michael, with his mother, got in contact with Detective Arko of the Maple Heights Police Department, who suggested they set up a meeting with the caller. Michael further testified that "Bryan Clay" called him again on the 7th and 9th of November. Finally, it was agreed that they would meet at Stafford Park at 8:30 p.m., November 9th. Michael then went to Stafford Park and met with appellant. Michael stated he recognized appellant's voice as being that of the caller's and further testified he recognized the voice of the caller each time he called. Additionally, Michael testified appellant identified himself as "Bryan." After approximately two minutes, the police arrived and appellant was arrested. It is undisputed that appellant never made any sexual suggestions to Michael over the phone or in person. - 5 - Cheryl Vitali, Michael's mother, corroborated much of Michael's testimony. Mrs. Vitali further testified she told Michael about the contents of the letter, including the request for sexual activity. Detective Ronald Arko of the Maple Heights Police Department also corroborated much of Michael's testimony. Detective Arko further stated he found a green notebook in appellant's car. The green notebook, which was admitted into evidence, contains hand- written notes relating to a phone conversation with a "Mike" concerning a letter and sets up a meeting at Stafford Park. Thenotebook also contains the writer's views about said meeting, how the writer could "take chance out of 1rst meeting (sic.)," and the writer's "plans." Finally, Dr. Phillip D. Bouffard, a forensic document exami- ner, testified it was his opinion that it is highly probable that both the writing on the envelope sent to the Vitali residence and the writing on the notebook were done by the same person. Therefore, we conclude the trial court did not err in over- ruling appellant's motion for acquittal brought pursuant to Crim. R. 29(A). Michael and Cheryl Vitali testified that Michael knew of the contents of the letter. Moreover, Michael testified he was offended by the letter as well as being scared that "someone wanted to do this." Thus, it is clear that the solicitation, by its very utterance, inflicted injury upon Michael. Further, the letter itself indicates the writer's awareness of its offensive - 6 - nature by requesting Michael to throw it away after reading it since the writer wished to avoid trouble with the "Law" and Michael's parents. Accordingly, appellant's first assignment of error is over- ruled. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN ADMITTING INTO EVI- DENCE THE LETTER ALLEGEDLY WRITTEN BY THE DEFENDANT TO MICHAEL VITALI AS IT WAS IRRE- LEVANT, IMMATERIAL AND HIGHLY PREJUDICIAL. Appellant argues the letter in question is not relevant, and therefore inadmissible, since it was never read by the alleged victim, Michael Vitali. Alternatively, appellant contends that if the letter is relevant, its probative value is outweighed by its prejudicial effect since it did not contain "fighting words." An appellate court, when reviewing the trial court's admis- sion or exclusion of evidence, must limit its review to whether the lower court abused its discretion. State v. Finnerty (1989), 45 Ohio St. 3d 104, 107. A trial court abuses its discretion when it acts in an unreasonable, arbitrary or unconscionable manner. Id. A reviewing court should not substitute its judg- ment for that of a trial court. See, State v. Jenkins (1984), 25 Ohio St. 3d 164, 222. In the present case, it is clear the trial court did not abuse its discretion in admitting the letter in question. Evid. R. 401 defines relevant evidence as "any evidence having any tendency to make the existence of any fact that is of consequence - 7 - to the determination of the action more probable than it would be without the evidence." Appellant argues the letter is irrelevant since the importuning statute requires "direct" solicitation. This argument lacks merit. R.C. 2907.07(B) states "[n]o person shall solicit a person of the same sex to engage in sexual conduct . . .." "Solicit" is defined in Black's Law Dictionary (5th ed., 1979) as "to appeal for something." Webster's New Collegiate Dictionary (1976), follows along these lines as well. From a mere reading of the statute, it is evident that the solicitation need not be "direct," as opposed to "indirect," as appellant argues. Indeed, the Ohio Supreme Court has stated that the statute regulates solicitation, "whether it be by speech, writings, or gestures that make it manifest to the person offended." Phipps, supra, at 275. R.C. 2907.07(B) merely requires that appellant made the solicitation to a person who received it and that the appellant knew the person would be offended by it, or was reckless in that regard. Therefore, the letter is clearly relevant. Appellant further argues the letter's prejudicial effect substantially outweighs its probative value since it did not contain "fighting words." Evid. R. 403(A). This argument is equally uncompelling. In Phipps, supra, at 278, the Ohio Supreme Court held, "While the statute [R.C. 2907.07(B)], on its face, sweeps too broadly, it can be narrowly construed to proscribe only the 'fighting' words category of unprotected speech. - 8 - 'Fighting' words are those 'which by their very utterance inflict injury or tend to incite an immediate breach of the peace.'" (Citations omitted.) (Emphasis added.) In the present case, Michael testified he was offended by the contents of the letter as well as scared that "someone wanted to do this." Clearly, appellant inflicted injury upon Michael judging from his typical reaction to appellant's solicitation. Therefore, the trial court did not err in admitting the letter into evidence. Accordingly, appellant's second assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KRUPANSKY, C.J. SPELLACY, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .