COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72278 STATE OF OHIO Plaintiff-appellee JOURNAL ENTRY vs. AND DWAYNE BOGAN OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: AUGUST 6, 1998 CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court Case No. CR-343687 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES DEANNA O'DONNELL Cuyahoga County Prosecutor Attorney at Law 22649 Lorain Road JOCELYN CONWELL Fairview Park, Ohio 44126 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant, Dwayne Bogan, appeals from the judgment of the trial court which found defendant guilty of promoting prostitution. On appeal, defendant argues that (1) the trial court erred by allowing other acts testimony, (2) the court should have granted a mistrial, (3) the conviction was against the manifest weight of the evidence, and (4) the conviction was not supported by sufficient evidence. For the reasons that follow, we affirm the judgment of the trial court. Helen Parries, a detective with the Cleveland Police Street Crimes Unit, testified first for the state. On August 8, 1996, she received a phone message reporting prostitution on Brookpark Road. The caller, Robert Morales, informed the police about a male in a Cadillac who was picking up and dropping off prostitutes in the area. The caller further described the male and gave the license plate of the car. Several days later, several undercover officers from the police department investigated using two unmarked police vehicles and two civilian vehicles. Two of the officers were Sergeant William Cunningham and Detective Emmanuel Roman. At approximately 3:00 a.m., Parries parked her vehicle in the area designated in the complaint. Parries then received a radio broadcast from Roman and Cunninham of a suspected pimp driving in the area and dropping off prostitutes in different locations. Sergeant Cunningham and Detective Roman each drove in an unmarked car. The other officers arrested defendant and the women, with Parries assisting. She -3- described the women as scantily dressed with see-through clothes exposing everything. She further testified that defendant drove a 1991 Cadillac which matched the vehicle described by Morales. Also testifying for the state was Robert Morales, who works at the House of Books, a store that sells adult magazines and videos. On August 8, 1996, he called to complain about a man with four prostitutes in his car parked on the House of Books' property. He stated that the man drove the women around on numerous occasions, dropped them off, and continually returned to check on them. Morales described the man, the car, and the license plate and identified defendant as this man. He observed scantily-clad women, three or four at a time, exit defendant's car and flag down men. After dropping the women off, defendant would stay in the area and watch their activity. At the end of the evening defendant never left without the women. Morales himself had been propositioned by the women, who asked him whether he wanted sexual favors. Steven Bowles, a supervisor for a security company, was the next witness to testify. He patrols various parking lots in the area around the Airport, which is near Brookpark Road. On August 13, 1996, he observed a Cadillac with a male and two females in the area. He identified defendant as the male driving the car. As defendant parked near a bar, Bowles saw two scantily-clad women exit, go straight to the sidewalk, and whistle and wave at cars. Defendant stayed in the parked Cadillac while the women got into some cars, left, and returned. Bowles was familiar with two girls named Chocolate and Bananna. He observed Banana engage in oral -4- sex and Chocolate engage in physical sexual activity in cars with defendant parked nearby. On August 13, 1996, he observed defendant and the two women arrested. A fourth witness, Emanuel Roman, is a detective with the Cleveland Police Department. On August 13, 1996, Roman posed as a john driving up and down Brookpark Road. Before going out, Roman was informed of complaints regarding a suspected pimp driving a 1991 Cadillac with specific plates. Later that evening, Roman observed a 1991 tan Cadillac with these plates. This tan Cadillac was driven by a man matching the description of the suspected pimp whom Roman identified at trial as the defendant. He observed two women exit the Cadillac, which was in a bar parking lot. One girl approached and entered Sergeant Cunningham's car. Roman followed as Cunningham drove away and pulled into a gas station. The police placed under arrest the woman, as well as defendant, who had followed Cunningham into the gas station. William Cunningham was the final witness for the state. He is a sergeant in the Cleveland Police Department and the officer in charge of the street crimes unit. On August 13, 1996, he worked undercover on Brookpark Road. He was informed of the complaints of prostitution and the description of a Cadillac dropping off prostitutes in the area. While driving, he noticed a man in a Cadillac with two women passengers. When Cunningham pulled into the parking lot, one of the women approached his car and entered. At this point police cars arrived and Cunningham placed the woman -5- under arrest. At trial Cunningham identified defendant as the driver of the Cadillac. The defendant did not present any witnesses. The jury returned a verdict of guilty of promoting prostitution. Defendant timely appealed raising four assignments of error. The first states as follows: I. THE TRIAL COURT ERRED BY ALLOWING OTHER ACTS TESTIMONY INTO EVIDENCE IN CONTRAVENTION OF OHIO EVIDENCE RULE 404(B). In this assignment, defendant claims the trial court violated Evid.R. 404(B) in allowing Morales' and Bowles' observations that defendant transported and dropped off scantily-clad women in the area prior to the night defendant was arrested. Evid.R. 404(B) states as follows: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The trial court has broad discretion regarding the admissibility of evidence. State v. Reed (1996), 110 Ohio App.3d 749. Evid.R. 404 generally prohibits the circumstantial use of prior acts evidence, that is, character as proof of conduct. If the evidence is not offered to prove that the defendant acted in conformity with a pertinent character trait, however, then the rule does not apply. See, Giannelli Snyder Evidence (1996) 248-249, Section 404.11. Moreover, Evid.R. 404(B) does not apply if the acts in question are intrinsic as opposed to extrinsic, i.e. the acts are part of the events in question or form part of the -6- immediate background of the alleged act which forms the basis for the crime charged. See, 3 Jones On Evidence Civil And Criminal, (1992) 328, Section 17:13; State v. Curry (1975), 43 Ohio St.2d 66, 73. In the case at bar, the testimony about defendant's supervision of the prostitutes prior to August 13, 1996 was not presented to prove that defendant acted in conformity with any particular character trait. Rather, the testimony demonstrated a continuing course of action regarding defendant's activities as a pimp. State v. Logan (Nov. 10, 1993), Cuyahoga App. No. 63943, unreported. Accordingly, Evid.R. 404(B) does not apply, and defendant's first assignment of error is overruled. The second assignment states as follows: II. THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S MOTION FOR MISTRIAL. In this assignment, defendant argues that the trial court erred by not granting a mistrial because one of the state's witnesses referred to the criminal check performed on defendant after his arrest. Specifically, Emmanuel Roman testified as follows: Q. Now, also on the night of August 13th strike that. There was a question posed to you earlier about obtaining the defendant's social security number and running a record check I believe on cross-examination? A. Yes, there was. Mr. Thompson: Judge, may we approach, please? THE COURT: You may. (after a sidebar discussion off the record, the testimony continued) Q. Let me rephrase the question. There was a question posed to you on direct examination something to the effect of verifying the defendant's employment status on -7- the night in question because there was some comment about him becoming a chauffeur. A. Yes. Q. Were you able to verify the defendant's employment status on the night in question, Detective? A. I did not run his social security number. Social security number was run by Detective Cottom.[sic] Q. Is that standard procedure when an arrest is made a detail such as this is done, a check is done? A. When we arrest a person for a felony, we do a BCI check, which is a record check, of the male which involves if he was arrested any place in Cleveland, Ohio, or in the State of Ohio or -- Mr. Thompson: Objection. THE COURT: Sustained. Without getting -- don't get into that procedure. Q. Were you able to obtain any information about the defendant's employment status pursuant to the information that you were able to obtain from the BCI investigation? A. No, I did not. Q. And why was that, sir? Mr. Thompson: Objection, THE COURT: Overruled. A. Because when we got the BCI check, it came back with seven aliases and four -- Mr. Thompson: Objection, your Honor. THE COURT: Sustained. Sustained. Mr. Thompson: Can we approach the bench? THE COURT: No. It's sustained. (Tr. 276-278.) The above-quoted exchange does not warrant a reversal. First, in our review of the record we did not find any motion for a mistrial. In his brief, moreover, appellant fails to cite any page in the transcript where this motion might have been offered. See, State v. Washington (July 31, 1997), Cuyahoga App. No. 71431, unreported; App.R. 16(A). Having failed to ask the trial court for a mistrial, defendant cannot now seek this relief for the first time on appeal. See, State v. Maurer (1984), 12 Ohio St.3d 239; State v. Williams (1977), 51 Ohio St.2d 112; Yerrick v. East Ohio Gas(1964), 119 Ohio App. 220. Second, the testimony did not deny -8- defendant a fair trial. The trial court sustained defense counsel's objection before any information of defendant's past criminal record was presented to the jury. Accordingly, the trial court did not abuse its discretion by not granting a mistrial. State v. Simmons (1989), 61 Ohio App.3d 514, 517. Defendant's second assignment of error is overruled. The third assignment states as follows: III. THE VERDICT FINDING THE APPELLANT GUILTY OF PROMOTING PROSTITUTION, IN VIOLATION OF OHIO REVISED CODE S2907.22, IS AGAINST THE WEIGHT OF THE EVIDENCE. In this assignment, defendant contends that the jury's verdict finding him guilty of promoting prostitution was against the manifest weight of the evidence. This assignment lacks merit. The Ohio Supreme Court recently reiterated the standard for reviewing such claims. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 475 U.S. at 42 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ) State v. Thompkins (1997), 78 Ohio St.3d 380, 387. In the case at bar, it cannot be said that the jury clearly lost its way and created a manifest miscarriage of justice. The -9- jury heard consistent testimony from a number of witnesses who all described defendant's behavior consistent with the supervision of prostitutes. Defendant routinely transported the prostitutes, watched them as they solicited customers, followed them while the services were provided, and left with the prostitutes after each night's work. Accordingly, the jury verdict which found defendant guilty of promoting prostitution is not against the manifest weight of the evidence. Defendant's third assignment of error is overruled. Defendant's fourth assignment states as follows: IV. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILT AGAINST APPELLANT ON A CHARGE OF PROMOTING PROSTITUTION. In this assignment, defendant contends that the state presented insufficient evidence to convict him of promoting prostitution. Promoting Prostitution is defined in R.C. 2907.22 as follows: (A) No person shall knowingly: (2) Supervise, manage, or control the activities of a prostitute in engaging in sexual activity for hire; The Thompkins court also discussed a challenge to the sufficiency of the evidence. With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question -10- of law. State v. Robinson (1955), 162 Ohio St.486, 55 O.O. 388, 124 N.E.2d 148. Id. at 386. When determining whether the evidence against a defendant is legally sufficient, a reviewing court must view the evidence presented in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259. In the case at bar, the state presented considerable evidence that defendant transported scantily clad women to various locations in an area known for prostitution. Whenever defendant would drop the women off, they would go to the street and begin flagging down potential johns. Defendant would park nearby and talk to the women before and after each encounter. While defendant is correct that there is no direct evidence that he supervised or controlled these prostitutes, there is certainly strong circumstantial evidence of supervision and control that satisfies the statute. Regarding circumstantial evidence, the Jenks court stated as follows: The reasoning used by several of the federal circuit courts is useful, and is thus worthy of comment. In United States v. Obergon (C.A.11, 1990), 893 F.2d 1307, 1311, the court stated: In judging the sufficiency of evidence, we must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942). The jury verdict must be sustained if any reasonable construction of the evidence allowed the jury to find the appellants guilty beyond a reasonable doubt. United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir.1984). The evidence may be sufficient even though it is not inconsistent with every reasonable hypothesis of innocence. The jury is free to choose among reasonable constructions of the evidence. *** The test is `identical whether the evidence is direct or circumstantial, and no distinction is to be made between the weight given to either direct or circumstantial evidence.' *** (Citations omitted.) -11- Jenks at 266. In this case, the jury was free to choose the reasonable construction that defendant's actions of transporting, consulting, following, and observing the work of these prostitutes constituted supervision and control. Accordingly, defendant's conviction was supported by sufficient evidence. The fourth assignment is overruled. Judgment affirmed. -12- 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. BLACKMON, A.J., and PATTON, J., CONCUR. DIANE KARPINSKI 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 .