Prostitution, Criminal Tools and the Website

After Gerald Strothers was convicted “of two counts of promoting prostitution, one count of possession of criminal tools and one count of the lesser included offense of attempted promoting of prostitution” and sentenced to “one year of community control sanctions”, he appealed.  State v. Strothers, 2012 WL 4123398 (Ohio Court of Appeals 2012).

The case began when

East Cleveland Police Detective Antonio Malone testified . . . received information from a confidential informant that a house was being used to facilitate prostitution at 14019 Northfield Avenue in East Cleveland, Ohio. The informant told police of a website, `Backpage.com,’ which advertised those services. Officer Malone and East Cleveland Police Sergeant Randy Hicks began an investigation.

State v. Strothers, supra.

Hicks and Malone testified as to the results of the investigation at Strothers’ trial:

Hicks stated that through an investigation of postings on Backpage.com, he was able to discover a brothel being run in East Cleveland that was called the `Chocolate Factory’ or `Batcave.’ Hicks explained the web postings provided a phone number to which text messages could be sent in order to become a `member’ of the Chocolate Factory.

He was later able to confirm that the phone number was assigned to Gerald Strothers and that phone number was posted on his personal Facebook page. Hicks testified that he sent a text message to the number provided on the advertisements (the same number on Strothers' Facebook page) posing as a `John’ who was interested in the Chocolate Factory's services.

He stated that in return he received several messages that quoted prices, gave the address of the house and several photographs of naked females were transmitted. The address that was provided was the same as the one listed on Gerald Strothers' Facebook page.

Malone. . . . [said] he then called Strothers posing as the `John.’ The telephone calls were recorded, audio and video, and admitted into evidence. Strothers stated during the telephone call that the price for `full service’ was $69.99.

Malone testified that in his experience `full service’ meant `oral sex and regular sex, intercourse.’ Malone arranged to arrive at the house on July 21, 2011, where he would meet with Shatori Stallings.

After the phone call, Malone received a text message again advising him of the address. This text was sent from another telephone number Malone established as belonging to Strothers via Strothers' Facebook page. A search warrant was obtained and executed on July 21, 2011, and both Strothers and Stallings were arrested.

State v. Strothers, supra.

Stallings also testified. State v. Strothers, supra. Stallings said she met Strothers

a few months prior to the . . . arrest. She had been to [his] house on at least two occasions prior to the date of the arrest. She [said] the first time she went to the house, she and Strothers discussed his Backpage.com business to promote sex and he suggested that she work for him with a 60/40 split. Stallings testified that . . . she agreed to work for Strothers. . . .

[She said] that on July 21, 2011, [he] contacted her and asked her to be a fill in because he was not sure if other girls were available. When she was asked at trial as to what she would be filling in for, she stated, `[h]aving sex for money.’

State v. Strothers, supra.

Strothers’ first argument on appeal was that the trial judge erred when he denied Strothers’ motion for a judgment of acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure.  State v. Strothers, supra.  Under Rule 29(a), the trial judge must,

on motion of a defendant . . . after the evidence on either side is closed, . . . order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses.

State v. Strothers, supra.  The appellate court noted that the question that arises when a defendant moves for acquittal is “`whether, 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.’”   State v. Strothers, supra (quoting State v. Jackson, 2006 Ohio 1938 (Ohio Court of Appeals 2006).

It then outlined the elements of the three crimes of which Strothers was convicted. State v. Strothers, supra.  The first one was promoting prostitution by violating Ohio Revised Code §§ 2907.22(A)(1) and (A)(4) and the second, related charge, was attempting to violate Ohio Revised Code § 2907.22(A)(2). State v. Strothers, supra.   Section 2907(A) states that

[n]o person shall knowingly: (1) Establish, maintain, operate, manage, supervise, control, or have an interest in a brothel; (2) Supervise, manage, or control the activities of a prostitute in engaging in sexual activity for hire; . . . (4) For the purpose of violating or facilitating a violation of this section, induce or procure another to engage in sexual activity for hire.

State v. Strothers, supra.  

The Court of Appeals explained that while the statute did not “define the word `brothel’”,” it had, in an earlier case, defined a brothel as `synonymous with the word “bordello,” which is defined as `a building in which prostitutes are available’” State v. Strothers, supra (quoting State v. Kiriazis,  2004–Ohio–502 (Ohio Court of Appeals 2004). It also noted that the Ohio attempt statute, Ohio Revised Code § 2923.02, states that “`[n]o person . . . shall engage in conduct that, if successful, would constitute or result in the offense’” the defendant allegedly sought to commit. State v. Strothers, supra.  

The Court of Appeals found that the testimony presented at trial, “if believed” by the jury, “does establish all the elements of the crimes for which Strothers was convicted.”  State v. Strothers, supra.  

First, we examine promoting prostitution. The testimony of the officers . . . establish that Strothers created a website to promote the use of his home for members of the `Chocolate Factory’ to meet women who were advertised under Backpage.com's escort section. These advertisements had Strothers' phone numbers and address associated with them.

When Malone called the number to arrange a time to come to the chocolate factory he spoke with Strothers, who quoted a price of $69 .99 and instructed him to bring about $100–150 with him.

When these facts are taken in conjunction with the testimony of Stallings . . ., it is clear that a trier of fact could find Strothers was, in fact, promoting prostitution. Strothers was managing a `building in which prostitutes were available.’ He procured Stallings for the purposes of engaging in sex for hire, and the record is clear that he attempted to supervise, manage, or control the activities of a prostitute in engaging in sexual activity for hire. . . .

[A] rational trier of fact, looking at the evidence in the light most favorable to the prosecution could find beyond a reasonable doubt that Strothers committed the crimes he was convicted of for promoting prostitution. 

State v. Strothers, supra.  

Strothers was also convicted of possessing criminal tools by violating Ohio Revised Code § 29.23.24(A), which states that “[n]o person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.” State v. Strothers, supra.   The Court of Appeals found the evidence was also sufficient to support Strothers’ conviction for this crime. State v. Strothers, supra.  

Our analysis with respect to the crime of promoting prostitution, in conjunction with the materials removed from the house and bagged as evidence, establish that Strothers possessed devices or instruments with purpose to use them criminally. Police confiscated cell phones that rang when the numbers associated with both the `Chocolate Factory’ and Strothers were called.

They confiscated two books titled `Sex Secrets of Escorts’ and `A Blueprint for Escort Services.’ They also seized . . . what was estimated to be about 20 condoms. The conduct Strothers was engaged in leads a reasonable trier of fact to identify these items as those that would be used by Strothers for a criminal purpose beyond a reasonable doubt.

State v. Strothers, supra.  

Finally, Strothers claimed the trial judge erred “in allowing Malone to provide testimony that amounted to opinion testimony” on three occasions.  State v. Strothers, supra.  The Court of Appeals noted that Ohio Rules of Evidence Rule 701 allows “lay witnesses to present opinion testimony.”  State v. Strothers, supra.  As this site notes, lay witnesses (i.e., witnesses who are not expert witnesses) are generally not allowed to give opinion testimony.  But Ohio Rule of Evidence 701 says that if the witness

is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

State v. Strothers, supra. 

Strothers first argued that the trial judge erred when, as noted above, he let Malone testify as to “the meaning of `full service.’” State v. Strothers, supra.  The Court of Appeals found that the

opinion seems to be rationally based on Malone's perception given all the information he discovered during his investigation. Furthermore, it is helpful to determine a fact or issue in the case. It does not amount to error on the court's part to allow this testimony; it is in line with the allowances of lay person testimony under Ohio Rule of Evidence 701.

State v. Strothers, supra. 

Strothers also argued that the trial judge erred in allowing Malone to testify “to the fact that brothels often have a door fee.” State v. Strothers, supra.  The Court of Appeals found that the trial judge did not err in admitting this testimony.  State v. Strothers, supra. It explained that it was relevant to issues involved in the case

because the text messages received by the police instructed them to bring a case of bottled water or beer as a substitute for the door fee. Malone stated he learned of this practice while researching brothels.

State v. Strothers, supra. 

Finally, the Court of Appeals addressed Strothers’ argument that the trial judge erred in allowing Malone to testify that “criminals do not like to talk about prices on the phone.”  State v. Strothers, supra.  The court found this testimony was

relevant because during the second recorded telephone call, Strothers stated that he did not want to discuss prices over the phone, even though he did so during the first conversation. The Ohio Supreme Court stated, `Rule 701 contemplates that the opinion testimony of the lay witness will be helpful.’

Undoubtedly, the trial judge thought that that was the case. Admission of such testimony was not required, but it was not an abuse of discretion to hear it.

The testimony provided was that of a police detective who researched the practice of brothels utilizing door fees and who had extensive experience as to how criminals speak on the telephone. Malone stated he had investigated about 400 drug cases and 15 to 20 prostitution cases.

State v. Strothers, supra.  So the Court of Appeals rejected all three of Strothers’ arguments about Malone’s testimony, finding that the trial judge did not err in admitting it.  State v. Strothers, supra. It s therefore affirmed his conviction and sentence.  State v. Strothers, supra.