COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68770 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION LANI SMITH : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 15, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-318070. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor George M. George Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Robert R. Clarico Assistant Public Defender The Marion Building, Room 307 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 SWEENEY, JAMES D., P.J.: Defendant-appellant Lani Smith appeals from his conviction of one count of promoting prostitution in violation of R.C. 2907.22. He was sentenced to a term of incarceration of six months and fined $1,000. The appellant challenges the sufficiency of the evidence to support his conviction. On November 25, 1994, Cleveland Police Detectives Michael Felice and Jeffrey Hustak were assigned as undercover officers investigating complaints of prostitution at the Sky Bar lounge located at 16400 Brookpark Road, Cleveland, Ohio. Detective Felice was approximately one hundred fifty yards away from the Sky Bar seated in a vehicle parked on West 164th Street, south of Brookpark Road. Because the area is illuminated by street lights and lights from the parking lots of the businesses located on Brookpark, the detective could see quite well. At approximately 10:30 p.m. Detective Felice observed the appellant pull into the parking lot of the Sky Bar. The appellant was seated in the passenger seat of a vehicle driven by a white female later identified as Lena Beck. Ms. Beck exited the vehicle and went to the passenger window. After the appellant rolled down the window, she squatted next to the car and engaged him in conversation. During the conversation, the appellant motioned with his arm towards the west. Ms. Beck walked away from the vehicle and stood by the corner of the building in the direction the appellant had pointed. The appellant's gestures indicated to the - 3 - detective that the appellant was directing Ms. Beck to an area in which to stand. As she stood there a motorist approached and she engaged the driver in conversation. The motorist then drove to the rear of the building. This happened on three separate occasions. Detective Felice testified that this behavior, in his experience, is consistent with prostitution. After Ms. Beck spoke with the first motorist she returned to her vehicle and spoke to the appellant for approximately one minute. When the second motorist approached, Ms. Beck looked over her shoulder at the male driver of the car and then spoke once more to the appellant. She left the appellant and approached the motorist. After a few seconds the motorist drove away and Ms. Beck returned to speak to the appellant. This same scenario was repeated a third time. After the third encounter, Detective Felice observed Ms. Beck approach Detective Hustak who arrived in an undercover vehicle. Ms. Beck entered the vehicle and was subsequently placed under arrest for soliciting. Detective Felice approached the appellant and placed him under arrest as well. On cross-examination, Detective Felice testified that he observed the appellant for approximately fifteen to twenty minutes; that Ms. Beck was the driver of the car in which she arrived and that he believed that she was also the owner of that car; and that although he could not hear the conversation between the appellant - 4 - and Ms. Beck he did see the appellant pointing. Detective Felice also testified that a paper lunch bag full of condoms was found on the front seat of the vehicle in which the appellant had been seated. As a member of the detail, Cleveland Police Detective Hustak was assigned an undercover vehicle and was to attempt to have any prostitutes working in the area solicit him. Initially he was parked in his vehicle on Brookpark Road west of the Sky Bar and he was in radio contact with Detective Felice. Once it was determined that he had not previously been in contact with Ms. Beck and would not be recognized by her, Detective Hustak entered the drive of the Sky Bar. When he reached the area where Ms. Beck had been standing he observed that she was squatting next to the vehicle in which she had arrived and that she was talking to the appellant. Detective Hustak testified that since her back was to him Ms. Beck did not see him arrive. He rolled down his window and looked at the appellant. Detective Hustak could see the appellant nod his head and point his thumb towards him. Ms. Beck turned around but did not immediately move from her crouched position next to the appellant. She first looked at Detective Hustak and asked if he wanted her. When he responded in the affirmative, she stood up and approached the undercover vehicle on the driver's side. She asked him if he was "dating," a term used to indicate that a man is interested in the services of a prostitute. He again responded in the affirmative and she entered the passenger side of his vehicle. - 5 - Once in his vehicle she offered to perform oral sex for thirty dollars. Ms. Beck was arrested for soliciting prostitution. Detective Hustak testified that the appellant seemed to be controlling Ms. Beck and directing her to certain people. In his experience, at this location, it is not unusual to find such a male and female team. On cross-examination, Detective Hustak stated that initially Ms. Beck was only fifteen feet from his vehicle and that there was visual contact between Ms. Beck and himself prior to her approach to his vehicle. He testified that if she was waiting for a particular person she would have known he was not that person. The appellant presented the testimony of Ms. Beck. Ms. Beck testified that she has known the appellant since 1987 and their acquaintance was renewed within the last year. Ms. Beck and her children attended Thanksgiving dinner at the home of the appellant's parents where they afterwards spent the night. The appellant, who does not own a vehicle, requested a ride back to his home on East 87th Street in Cleveland. She agreed to drive him home in her car. Prior to leaving, Ms. Beck contacted the father of her two infant children. She was in need of money for diapers and it was agreed that they meet at the Sky Bar. Ms. Beck stated that she was familiar with the area around the Sky Bar and was aware of its reputation for prostitution. - 6 - Upon arrival at the bar she exited the vehicle to stretch her legs. She was going to enter the restaurant next door and obtain some food, the appellant chose to remain in the car. She said hello to a few friends and customers, but did not enter the bar. Ms. Beck explained that she owns her own escort service; that she has engaged in prostitution; and that at this point she had no plans to solicit. Ms. Beck does not remember the appellant making any kind of gestures, but that once he did point to a vehicle he believed may have been the car belonging to the man for whom they were waiting. Ms. Beck stated that she returned to her vehicle to obtain a cigarette and her purse which she wanted in order to purchase food at the restaurant. After she retrieved her purse she was approached by the police officer. She was between the car and the restaurant door when the officer rolled down his window and asked her if she was looking for a "date." Ms. Beck testified that once it was offered she was not going to turn it down. On cross- examination, Ms. Beck testified that she was unaware of how long the police officer was there "because I turned around and went to walk into the restaurant" (T. 97). She testified that she does not approach strangers and that the officer spoke to her first; that the officer requested a price; and that he asked what services would be performed. Ms. Beck stated that she does not ever initiate a discussion of the price or the services. - 7 - Ms. Beck testified that the appellant did not direct, manage or control her activities; that she had not discussed prostitution with him; that she had no intention of soliciting that evening; and that he had no knowledge of what she had done. While she was seated in the police vehicle she heard over the radio that a man she believed matched the description of the father of her children had arrived on the scene. On cross-examination, Ms. Beck testified that the father of her children is black, a fact known to the appellant prior to the evening of November 25, 1994. She also stated that Officer Hustak is white. She waited approximately one half-hour to forty-five minutes that evening, but she never entered the restaurant. The appellant sets forth one assignment of error: MR. SMITH'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AS HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. A reviewing court may not reverse a judgment of conviction in a criminal case where the guilty verdict was returned by the trier of fact on sufficient evidence. State v. DeHass (1967), 10 Ohio St.2d 230. An appellate court's function, when reviewing the sufficiency of the evidence, is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. The relevant inquiry is whether, - 8 - 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. Id., citing Jackson v. Virginia (1979), 443 U.S. 307. Promoting prostitution is defined in R.C 2907.22(A)(2): (A) No person shall knowingly: * * * * (2) Supervise, manage, or control the activities of a prostitute in engaging in sexual activity for hire; In the case sub judice, the testimony of Detectives Felice and Hustak was sufficient to support the appellant's conviction. The officers' testimony revealed that the appellant and Ms. Beck arrived at a known place of prostitution together. Ms. Beck exited the vehicle and spoke to the appellant on his side of the car; the appellant gestured to areas in the parking lot; and Ms. Beck proceeded to stand in those areas. Ms. Beck approached vehicles on three occasions and after each encounter she returned to speak with the appellant. Officer Hustak testified that when he drove into the parking lot Ms. Beck had her back towards him; that the appellant directed her attention to him; that she then walked to his vehicle and solicited prostitution; and that the appellant could see him clearly as could Ms. Beck as she approached. The testimony revealed that Officer Hustak is white and the man Ms. Beck claimed to be awaiting was black. - 9 - The record in this case demonstrates that sufficient evidence was presented which would convince a rational trier of fact of the appellant's guilt beyond a reasonable doubt. The appellant's assignment of error is overruled. Judgment affirmed. - 10 - 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. SARA J. HARPER, J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .