         [Cite as State v. Moore, 2013-Ohio-5613.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-130170
                                                         TRIAL NO. 12CRB-19383
        Plaintiff-Appellant,                         :

  vs.                                                :     O P I N I O N.

LELAND MOORE                                         :

        Defendant-Appellee.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 20, 2013



John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and William T.
Horsley, Assistant City Prosecutor, for Plaintiff-Appellant,

James Grey Wolf, for Defendant-Appellee.
                        OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Judge.

       {¶1}    The state of Ohio appeals the judgment of the Hamilton County

Municipal Court granting what was styled as a “Motion to Suppress” by defendant-

appellee Leland Moore.


                             Moore’s Arrest and Motion


       {¶2}    On June 22, 2012, Moore was arrested for soliciting under R.C.

2907.24(A) and for loitering to engage in solicitation under R.C. 2907.241. The

arrest was made as part of a “reverse prostitution sting” in which Cincinnati police

officers posed as prostitutes to ensnare persons soliciting sexual activity for hire.

       {¶3}    On January 23, 2013, Moore filed a document styled “Motion to

Suppress,” with an accompanying memorandum.              In his memorandum, Moore

argued that “[t]he state cannot show that the defendant solicited another to engage

in sexual activity as such is statutorily required for the commission of the charged

offenses.”

       {¶4}    Following an evidentiary hearing, the trial court granted Moore’s

motion. The basis of the court’s ruling was that the state “has failed to prove that the

Defendant solicited Officer Mandy Hesselbrock * * * to engage in any of the acts

identified within the definitions of ‘sexual conduct’ or ‘sexual contact.’ ” The court

therefore held that there was no probable cause for the arrest and granted Moore’s

motion “in its entirety.”

                        Moore’s Motion was not Cognizable

       {¶5}    In a single assignment of error, the state contends that the trial court’s

judgment granting the motion was contrary to law. We agree.




                                                2
                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}     Although framed as a motion to suppress, Moore’s filing was in

essence a motion to dismiss the charges based on an asserted lack of evidence that he

had committed the offenses. The trial court’s ruling, in turn, was based upon the

same perceived deficiency in the state’s case.

       {¶7}     A motion to dismiss can raise only matters that are capable of

determination without a trial of the general issue. Crim.R. 12(C); State v. Scott, 174

Ohio App.3d 446, 2007-Ohio-7065, 882 N.E.2d 500, ¶ 9 (1st Dist.); State v.

Etheridge, 8th Dist. Cuyahoga No. 87859, 2006-Ohio-6768, ¶ 5; State v. Serban, 5th

Dist. Stark No. 2006 CA 00198, 2007-Ohio-3634, ¶ 25. If a motion requires the

examination of evidence beyond the face of the indictment or complaint, the issue

must be presented in a motion for acquittal at the close of the state’s case. Scott at ¶

9; Serban at ¶ 26. Thus, even where the state and the defendant have stipulated the

facts that form the basis of the charges, a motion to dismiss is premature, because

there is no equivalent for a motion for summary judgment in criminal proceedings.

Scott at ¶ 9.

       {¶8}     In this case, Moore’s motion challenged the sufficiency of the state’s

evidence to support the convictions, and the motion was therefore not properly

heard prior to trial. The complaints were facially valid, and all of the elements of the

charges were properly alleged. Accordingly, the trial court erred in granting the

motion, and we sustain the state’s assignment of error.

                                       Conclusion

       {¶9}     We reverse the trial court’s judgment and remand the cause for further

proceedings consistent with law and this opinion.

                                               Judgment reversed and cause remanded.

HENDON, P.J., and DEWINE, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.


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