COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68543 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION RAMONE DAVIS, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-310920 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Scott G. Salisbury Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Jean M. Gallagher Assistant Public Defender 100 Lakeside Place 1200 W. Third Street, N.W. Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Ramone Davis, is appealing his conviction after a bench trial for promoting prostitution, a violation of R.C. 2907.22, with a violence specification. Appellant asserts there was insufficient evidence to support this conviction. For the following reasons, we affirm. Detective William Leonard of the Cleveland Police Department Street Crimes Unit testified that he was patrolling Euclid Avenue in an unmarked vehicle at 2:30 a.m. Appellant, who had been sitting on the front steps of an apartment building on the south side of Euclid, flagged Detective Leonard down. Detective Leonard pulled over. Appellant crossed Euclid Avenue and walked over to Leonard's car. Appellant asked Leonard if he was Mr. Fisher, appellant's old coach. Detective Leonard replied that he was not Mr. Fisher. Then appellant asked Leonard if he was looking for a woman. Leonard said, "I could be". Appellant said that if Leonard gave him fifty dollars, appellant would get a woman to perform oral sex for Leonard. Leonard said that he would pull off the street. Leonard pulled into the Speedy Muffler parking lot. Leonard heard appellant call to a female who was on the same doorstep appellant had been sitting. Appellant said, "Hey, Babe, come on over here." The female got up and started walking across the street toward Leonard's car. -3- Leonard saw two people in the shadows on nearby Wickford Avenue. He "got a bad feeling" and called for backup. Two police cruisers arrived within minutes. Detective Leonard arrested appellant. A computer check revealed that the female had no record, so she was released. Appellant testified that he was waiting for the bus, when he believed he saw Mr. Fisher, his old coach, driving down the street. Appellant approached the vehicle and discovered the driver was not Mr. Fisher. The driver asked appellant about the girl appellant had been standing next to when he was across the street. Appellant did not know the girl and did not talk to her. Appellant asked the driver for a ride. The driver agreed, and pulled into the Speedy Muffler lot. When appellant reached the car in the Speedy Muffler lot, the driver had already drawn his gun. Appellant denied offering the services of a prostitute. The girl ran over to the car later and did not hear the conversation appellant had with the driver. Appellant's sole assignment of error states: MR. DAVIS' RIGHTS UNDER ARTICLE I, SECTION 16, OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM. R. 29 ACQUITTAL WHEN HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution, and determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. The -4- state must prove the following essential elements in this case, to obtain a conviction for promoting prostitution: the offender knowingly supervises, manages or controls the activities of a prostitute in engaging in sexual activity for hire. R.C. 2907.22(A)(2). In this case, there is evidence appellant offered to sell the services of a female. When the under-cover police officer said he was interested, appellant told a female to come over, and the female complied. From this evidence, a reasonable trier of fact could conclude that appellant knowingly managed, supervised or controlled the activities of a prostitute engaging in sexual activity for hire. The "activities of a prostitute in engaging in sexual activity for hire" are not limited to sexual activity itself, but may include other acts, such as the solicitation of money. State v. McGlothin (August 2, 1995), Montgomery App. No. CA 14687, unreported. Supervision, management and control may include making assignments. Id. Appellant managed and supervised the solicitation of money from the under-cover detective and assigned the female to the job. There was sufficient evidence to sustain the conviction. Accordingly, appellant's assignment of error is overruled. The decision of the trial court is affirmed. -5- 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 Common Pleas Court 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. PATTON, C.J., CONCURS. HARPER, J., DISSENTS. (See attached dissenting opinion.) JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68543 STATE OF OHIO : : Plaintiff-appellee : : vs. : DISSENTING OPINION : RAMONE DAVIS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 5, 1996 SARA J. HARPER, J., DISSENTING: I respectfully dissent from the majority's affirmance of appellant's conviction of promoting prostitution in violation of R.C. 2907.22. Appellant contends the trial court erred when it denied his motion for acquittal based on the ground that the state failed to proffer sufficient evidence to sustain appellant's conviction for promoting prostitution. For the reasons stated herein, I believe appellant's conviction for promoting prostitution should have been modified to a conviction for procuring in violation of R.C. 2703.23. -2- In reviewing a Crim.R. 29(A) motion, a trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury." State v. Bridgeman (1978), 55 Ohio St. 261, 263. When reasonable minds cannot convict, a Crim.R. 29(A) motion must be granted, the charges should be dismissed, and the case should not be given to the jury. Id. To obtain a conviction for promoting prostitution, the state must prove that a defendant knowingly supervises, manages or controls the activities of a prostitute. R.C. 2907.02(A). The state, to obtain a conviction for procuring prostitution, must show that a defendant knowingly enticed or solicited another to patronize a prostitute. R.C. 2907.23. According to the testimony adduced at trial, appellant asked the undercover police officer if he was interested in a female. The undercover police officer indicated that he was interested, and appellant called out to a female to come over to the car. The female then walked toward the car. Given these facts, the majority finds that a reasonable trier of fact could conclude that appellant knowingly managed, supervised or controlled the activities of a prostitute engaged in sexual -3- activity for hire. The majority cites State v. McGlothin (Aug. 2, 1995), Montgomery App. No. 14687, unreported. In McGlothin, the court addressed whether a prostitute must actually engage in sexual activity in order for her "supervisor" to be convicted of promoting prostitution in violation of R.C. 2907.22(A)(2). The court held the "activities of a prostitute in engaging in sexual activity for hire" are not limited to sexual activity itself but may include other acts, such as the solicitation of money. Id. I do not believe that a reasonable trier of fact could conclude that appellant knowingly managed, supervised or controlled the activities of a prostitute engaging in sexual activity for hire when appellant called out to the female to come over and she complied with his request. This evidence does not support a conviction for promoting prostitution. Rather, in my opinion, the evidence supports a conviction for procuring, in violation of R.C. 2907.23. In the case sub judice, appellant asked the undercover police officer if he was interested in the sexual services of a female. The undercover police officer indicated that he was interested. Next, appellant called out to a female to come over, and the female complied. The intent of R.C. 2907.23 was to prohibit appellant's conduct, according to the Committee's Comments to H511, following .