[Cite as State v. White, 2018-Ohio-3076.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 27749
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-1517/1
                                                  :
 JERMAR W. WHITE                                  :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 3rd day of August, 2018.

                                             ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
     Attorney for Defendant-Appellant

                                            .............
                                                                                              -2-


FROELICH, J.

       {¶ 1} Jermar W. White was convicted after a bench trial in the Montgomery County

Court of Common Pleas of unlawful sexual conduct with a minor (10 or more years older

than the victim), pandering obscenity involving a minor, two counts of trafficking in

persons, and two counts of compelling prostitution in furtherance of human trafficking.

White was acquitted of two additional charges. The trial court designated him a Tier II

sex offender and sentenced him to concurrent sentences totaling 11 years in prison.

       {¶ 2} White appeals from his convictions, raising five assignments of error. He

claims that (1) the trial court erred in denying his motion to suppress evidence, (2) his

convictions were based on insufficient evidence and against the manifest weight of the

evidence, (3) he received ineffective assistance of counsel, (4) the trafficking in persons

statute, R.C. 2905.32(A)(2)(a), is unconstitutionally vague, and (5) the State engaged in

misconduct when it offered at trial the testimony of his co-defendant, Iesha Heard.

       {¶ 3} For the following reasons, the trial court’s judgment as to the charge of

pandering obscenity involving a minor (Count 4) will be reversed. In all other respects,

the trial court’s judgment will be affirmed.

                                   I. Motion to Suppress

       {¶ 4} In his first assignment of error, White claims that the trial court erred in failing

to suppress statements that he made to the police, as well as evidence that was seized

pursuant to a search warrant that was obtained in reliance on those statements.

       {¶ 5} In deciding a motion to suppress, the trial court assumes the role of trier of

facts and is in the best position to resolve questions of fact and evaluate the credibility of

witnesses. State v. Pence, 2d Dist. Clark No. 2013 CA 109, 2014-Ohio-5072, ¶ 7, citing
                                                                                          -3-

State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996). The court

of appeals must accept the trial court’s findings of fact if they are supported by competent,

credible evidence in the record. State v. Isaac, 2d Dist. Montgomery No. 20662, 2005-

Ohio-3733, ¶ 8, citing State v. Retherford, 93 Ohio App.3d 586, 639 N.E.2d 498 (2d

Dist.1994). Accepting those facts as true, the appellate court must then determine as a

matter of law, without deference to the trial court’s legal conclusion, whether the

applicable legal standard is satisfied. Id.

       {¶ 6} Detective John Howard of the Dayton Police Department, Street Crimes Unit,

was the sole witness at the suppression hearing. The State also presented two exhibits:

(1) a DVD of Howard’s interviews with White and Heard at the police station, and (2) a

search warrant packet for the home where White was staying. Howard’s testimony and

the State’s exhibits established the following facts.

       {¶ 7} In April 2016, 15-year-old J.J. met White (age 31) and White’s girlfriend,

Heard, at a friend’s house in Huber Heights.            White was introduced as “Shiloh.”

Approximately three weeks later, on or about May 8, 2016, J.J. was walking with two

friends when a car driven by White pulled up; Heard was in the front passenger seat.

J.J. entered the vehicle, and they went to a residence on Lilac Avenue in Dayton.

       {¶ 8} On May 10, 2016, J.J reported several encounters that she had with “Shiloh”

to two employees at her school.         The employees transported J.J. to the police

department, where J.J. indicated that sexual conduct and activity occurred in a house,

which she could describe. J.J. described White and Heard and the vehicle they were

driving. J.J. directed a uniformed officer to the house on Lilac Avenue.

       {¶ 9} The police conducted surveillance on the residence. The police saw White
                                                                                        -4-


and Heard enter the vehicle that J.J. had described. Officers conducted a traffic stop of

the vehicle, and White and Heard were transported to the police station.

      {¶ 10} Detective Howard and Detective Mistan Bailey were assigned to the case.

Their unit, the Street Crimes Unit, investigates street-level drug dealers, prostitution,

human trafficking, and liquor permits, with an emphasis on prostitution and human

trafficking. Detective Howard separately interviewed J.J., Heard, and White at the police

station on May 10; Detective Bailey was present and took notes. Both of the interviews

of Heard and White occurred in an interview room that was equipped with an audiovisual

recording device. Heard corroborated many of the statements that J.J. had made.

      {¶ 11} Detective Howard spoke with White after interviewing Heard.              After

confirming White’s name and address and asking a few preliminary questions, Howard

advised White of his Miranda rights using a card that he was provided by the prosecutor’s

office. White stated that he understood each of his rights. Howard asked White a few

additional questions, and White answered.

      {¶ 12} Shortly after the questioning began, White stated, “I really don’t right now

even want to answer any questions,” and he expressed that he thought he was brought

to the police station illegally and described how he was brought there.           Howard

responded, “So do you want to talk to me or do you not.” White replied that he did not

know what the process was, and he wanted to know if he would be booked into the jail

that night. The detectives explained that it was a possibility that White would go to jail.

For approximately ten minutes, Howard asked more questions about what occurred

between White, Heard, J.J., and S.M. (another juvenile victim), and White responded.

White denied knowledge of the Backpage website, taking photos of S.M. and J.J., and
                                                                                        -5-


having J.J. perform oral sex on him. At the end of the interview, Howard told White that

he would be booked into the jail. The entire interview lasted approximately 15 minutes.

White did not, at any time, indicate that he wanted a lawyer.

      {¶ 13} Howard testified at the suppression hearing that White was then placed in

a different interview room closer to the detectives’ desks so that he (Howard) could

complete paperwork. Shortly after being placed in the second room, which did not have

audiovisual equipment, White knocked on the door, wanting to speak with Detective

Howard. Howard and Bailey entered the room and told White that if he wanted to talk,

they could return to the first interview room. White told the detectives that he did not

want to go back to the other room, but that “people are always making these types of

accusations or complaints against him.” White stated that the “same thing happened two

or three years ago.” Detective Howard told White that if White wanted to keep talking,

they could go back to the first interview room.      White declined, and the detectives

stopped talking with White.

      {¶ 14} After the interview with White, the police obtained a search warrant for the

residence on Lilac Avenue, which belonged to White’s sister. The warrant was based

on statements by J.J., Heard, and White. The warrant was signed by a judge and

executed within three days.

      {¶ 15} In denying White’s motion to suppress, the trial court found that Howard

advised White of his Miranda rights, that White “willingly participated in the conversation

with the police officers” and “spoke freely to the police after acknowledging that he

understood his rights.” The trial court further found that White’s statements were made

voluntarily. Finally, the trial court concluded that the search warrant was supported by
                                                                                          -6-


probable cause.

       {¶ 16} Under the Fifth Amendment to the United States Constitution, no person

shall be compelled to be a witness against himself or herself. In order to ensure that this

right is protected, statements resulting from custodial interrogations are admissible only

after a showing that the procedural safeguards described in Miranda v. Arizona, 384 U.S.

436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been followed. State v. Earnest,

2d Dist. Montgomery No. 26646, 2015-Ohio-3913, ¶ 21. To counteract the coercive

pressure of custodial interrogations, police officers must warn a suspect, prior to

questioning, that he or she has a right to remain silent and a right to the presence of an

attorney. Maryland v. Shatzer, 559 U.S. 98, 103–104, 130 S.Ct. 1213, 175 L.Ed.2d 1045

(2010), citing Miranda.

       {¶ 17} A “suspect may effectively waive [his or her Miranda] rights * * * only if the

waiver is made voluntarily, knowingly and intelligently.” State v. Dailey, 53 Ohio St.3d

88, 91, 559 N.E.2d 459 (1990), citing Miranda at 444. Thus, a court may recognize the

validity of a waiver of Miranda rights only if it finds that (1) “the relinquishment of the

right[s] [was] voluntary in the sense that it was the product of a free and deliberate choice

rather than intimidation, coercion, or deception[,]” and (2) the person had “a full

awareness of both the nature of the right[s] being abandoned and the consequences of

the decision to abandon [them].” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135,

89 L.Ed.2d 410 (1986); State v. Marejka, 2d Dist. Montgomery No. 27662, 2018-Ohio-

2570, ¶ 14. “[A] suspect who has received and understood the Miranda warnings, and

has not invoked his Miranda rights, waives the right to remain silent by making an

uncoerced statement to the police.” Burghuis v. Thompkins, 560 U.S. 370, 388-389, 130
                                                                                       -7-


S.Ct. 2250, 176 L.Ed.2d 1098 (2010). Courts examine the totality of the circumstances

to determine whether a suspect has knowingly, intelligently, and voluntarily waived his or

her Miranda rights. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988).

      {¶ 18} The opportunity to exercise Miranda rights exists throughout the

interrogation, and thus, the interrogation must cease when the defendant exercises his

right to end the questioning. State v. Villegas, 2d Dist. Montgomery No. 27234, 2017-

Ohio-2887, ¶ 13; State v. Miller, 7th Dist. Mahoning No. 13 MA 12, 2014-Ohio-2936, ¶

41, citing Miranda at 473-474 and Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321,

46 L.Ed.2d 313 (1975) (recognizing that a defendant’s right to “cut off questioning” must

be “scrupulously honored”).

      {¶ 19} “Whether a statement was made voluntarily and whether an individual

knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct

issues.” State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 30. A

defendant’s statements to police after a knowing, intelligent, and voluntary waiver of the

individual’s Miranda rights are presumed to be voluntary. Id., citing Miranda. “The

Miranda presumption applies to the conditions inherent in custodial interrogation that

compel the suspect to confess. It does not extend to any actual coercion police might

engage in, and the Due Process Clause continues to require an inquiry separate from

custody considerations and compliance with Miranda regarding whether a suspect’s will

was overborne by the circumstances surrounding his confession.” State v. Porter, 178

Ohio App.3d 304, 2008-Ohio-4627, 897 N.E.2d 1149, ¶ 14 (2d Dist.), citing Dickerson v.

United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

      {¶ 20} “In deciding whether a defendant’s confession is involuntarily induced, the
                                                                                        -8-


court should consider the totality of the circumstances, including the age, mentality, and

prior criminal experience of the accused; the length, intensity, and frequency of

interrogation; the existence of physical deprivation or mistreatment; and the existence of

threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976),

paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147,

57 L.Ed.2d 1155 (1978). See also State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d 491

(1990); State v. Beaty, 2d Dist. Montgomery No. 24048, 2011-Ohio-5014, ¶ 16.

      {¶ 21} In general, the State has the burden to show by a preponderance of the

evidence that a defendant’s confession was voluntarily given. State v. Melchior, 56 Ohio

St.2d 15, 381 N.E.2d 195 (1978).

      {¶ 22} At the outset, the State contends that White was not in custody at the time

of the interview at the police station.     The State notes that, although White was

transported to the station by the police, he was not handcuffed or restrained, the door to

the interview room was open, and Detective Howard told White that he (White) might be

booked into jail that day, but he (Howard) did not know yet.

      {¶ 23} Miranda defined custodial interrogation as “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way.” Miranda, 384 U.S. 436, 444, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966). “[T]he ultimate inquiry is simply whether there [was] a ‘formal

arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”

California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983),

citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).

Whether a person is subject to custodial interrogation is an objective question, focusing
                                                                                          -9-


on how a reasonable person in the suspect’s position would have understood the

situation. J.D.B. v. North Carolina, 564 U.S. 261, 270, 131 S.Ct. 2394, 180 L.Ed.2d 310

(2011); Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

       {¶ 24} Detective Howard testified at the suppression hearing that officers were

conducting surveillance of the Lilac Avenue residence while he and Detective Bailey

interviewed J.J. at the police station. After officers observed White and Heard get into a

vehicle that matched the description J.J. had given, officers conducted a traffic stop of the

vehicle. Officers then transported White and Heard to the police station, where Detective

Howard interviewed them after providing Miranda warnings. Statements made by White

during his interview reflected that he did not believe that he had been lawfully brought to

the police station and that he was not there voluntarily. White indicated to Detective

Howard that he was handcuffed while he was transported to the police station, although

the record does not indicate on what grounds he was brought to the station. Given that

White was transported involuntarily to the police station in handcuffs and that he was

interviewed at the station, we conclude that White was in custody when he was

interviewed by Howard.

       {¶ 25} We have reviewed the video-recording of White’s interview at the police

station. The interview occurred in a small interview room equipped with a table against

the wall and three chairs, which were occupied by White and Detectives Howard and

Bailey. Howard asked White a few preliminary questions to confirm White’s name and

address and whether he had previously been read his Miranda rights, and then Howard

read White his Miranda rights from a card provided by the prosecutor’s office. White

indicated that he understood his rights. White was not asked if he wished to waive his
                                                                                         -10-

Miranda rights, but he proceeded to answer Detective Howard’s questions. We find

nothing in the interview process that would suggest that White’s decision to subsequently

speak to the detective was involuntary.

       {¶ 26} Turning to the voluntariness of White’s statements, the record reflects that

White’s interview began at approximately 9:00 p.m. and lasted for less than 20 minutes.

White carried a glass of water when he entered the room; he was not handcuffed. White

provided his birthdate to Detective Howard; he was 31 years old. White had previously

been arrested, most recently the year before the interview; White’s answer to whether he

had previously been informed of his rights was difficult to hear, but it sounded like he did

not recall. White did not appear to be under the influence of drugs or alcohol, and he

appeared to be intelligent.     Although some of the exchanges between White and

Detective Howard were argumentative, Howard made no threats, promises, or any other

coercive statements. There is no evidence of coercive police activity. The record thus

supports the trial court’s conclusion that White’s statements were voluntarily made.

       {¶ 27} Within a few minutes of the start of the interview, White expressed that he

“really don’t right now even want to answer any questions,” and he expressed that he

thought the stop of his vehicle and his transportation to the police station were unlawful.

While a suspect’s right to “cut off questioning” must be “scrupulously honored,” the

suspect’s invocation of that right must be clear and unambiguous. Burghuis, 560 U.S.

at 381, 130 S.Ct. 2250, 176 L.Ed.2d 1098; State v. Blythe, 2d Dist. Montgomery No.

24961, 2013-Ohio-1688, ¶ 25. White’s comment about not wanting to answer questions

was immediately followed by several statements complaining about how he was brought

to the police station. Taken together, White did not clearly or unambiguously state that
                                                                                         -11-


he wanted the interview to cease; rather, he expressed to Detective Howard that he did

not want to talk until he understood why he was there.         Based on White’s unclear

statement regarding whether he wanted to invoke his right to remain silent, Detective

Howard properly asked White if he wanted to continue talking. See Davis v. United

States, 512 U.S. 452, 461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (“[W]hen a suspect

makes an ambiguous or equivocal statement [regarding an attorney,] it will often be good

police practice for the interviewing officers to clarify whether or not he actually wants an

attorney.”). White responded by asking Detective Howard what the process was and

whether he was going to be booked into jail; Howard responded, “Possibly.” White told

Howard that another officer had said that White would be arrested, and the two men

discussed the inconsistency in the responses that White had received.

          {¶ 28} Detective Howard then asked White again if he wanted to talk to him

(Howard). White stated, “I don’t understand why I should talk to you if I can’t just get a

solid answer” about whether he (White) was going to be jailed.          Detective Howard

responded that he had given White a solid answer, and Detective Bailey told White that

Howard was trying to explain the situation to him. White then stated that he did not know

anything about Backpage and had “nothing to do with” Backpage, and he asked Howard

what was going on. Howard then asked White about whether J.J. and S.M. had been to

his house, and White answered.         Howard and White then had an exchange about

whether anyone had given oral sex to him and other allegations that had been made.

          {¶ 29} After reviewing the video of White’s interview, we conclude that White’s

statements were not made after a clear and unambiguous invocation of his right to remain

silent.
                                                                                          -12-


       {¶ 30} The trial court also did not err in failing to suppress White’s statement made

in the second interview room. “Police are not required to readminister Miranda warnings

to a suspect when a relatively short period of time has elapsed since the initial warnings.”

State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 119.

       When deciding whether initial warnings remain effective for later

       interrogations, courts look at the totality of the circumstances. Powell at ¶

       119, citing State v. Roberts, 32 Ohio St.3d 225, 232, 513 N.E.2d 720 (1987).

       Courts are instructed to consider: (1) the length of time between the initial

       warnings and the subsequent interrogation; (2) whether the warnings and

       the subsequent interrogation were given in different places; (3) whether the

       warnings given and the subsequent interrogation were conducted by

       different officers; (4) the extent to which statements given in the subsequent

       interrogation differed from previous statements; and (5) the apparent

       intellectual and emotional state of the suspect. Roberts at 232, quoting

       State v. McZorn, 288 N.C. 417, 434, 219 S.E.2d 201 (1975). The purpose

       of the test is to “determine whether the initial warnings have become so

       stale and remote that there is a substantial possibility that the individual was

       unaware of his constitutional rights at the time of the subsequent

       interrogation.” State v. Grissom, 1st Dist. No. C-100542, 2011-Ohio-1796,

       ¶ 13, citing McZorn at 434.

State v. Kottner, 1st Dist. Hamilton No. C-120350, 2013-Ohio-2159, ¶ 24.

       {¶ 31} Detective Howard testified at the suppression hearing that, after the first

interview ceased, he took White to a different interview room that did not have video-
                                                                                       -13-


recording equipment. Howard testified that he “locked the door, turned around to walk

away, and he [White] knocked on the door as I was turning to walk away.” Howard

testified the he unlocked the door, opened it, and asked White, “What’s up?” White

asked to talk to him (Howard). Howard further testified:

      I told Bailey to come over. I told him [White] if he wanted to keep on talking

      to me, can we go back to the other room? He was – didn’t want to go over

      there. He made the statement that this type of thing happened to him two

      or three years ago. At that point I stopped him and asked him, did he want

      to go back to the interview room and talk to me? And he said no, and I

      closed the door.

      {¶ 32} Based on Howard’s testimony, which the trial court found credible, a very

short period of time elapsed between the end of the first interview and when White

reinitiated a conversation with Detective Howard. White had simply been moved down

the hall to a different room. Under these circumstances, Howard was not required to

provide Miranda warnings a second time. Moreover, although Howard asked White if he

wanted to go back to the first interview room, White’s subsequent statement that “this

type of thing” had previously happened was a spontaneous, voluntary statement and not

the product of interrogation by Howard. Finally, White’s statements to Howard in the

second interview room were not introduced at trial; accordingly, any error in failing to

suppress those statements was harmless.

      {¶ 33} Finally, White asserts that all evidence seized pursuant to the search

warrant should have been suppressed, because the search warrant relied on statements

made by White to the detectives at the police station. Having concluded that the trial
                                                                                         -14-


court properly denied White’s motion to suppress the statements he made at the police

station, the search warrant affidavit was not deficient for referencing the statements that

White made. And, upon our independent review of the search warrant affidavit, we

conclude that the search warrant was supported by probable cause, even if the

references to White’s statements at the police station were excluded.

       {¶ 34} White’s first assignment of error is overruled.

                 II. Sufficiency and Manifest Weight of the Evidence

       {¶ 35} In his second assignment of error, White claims that his convictions were

based on insufficient evidence and were against the manifest weight of the evidence.

       {¶ 36} A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to sustain the verdict as a

matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant

inquiry 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶ 37} In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19.                When evaluating whether a

conviction is against the manifest weight of the evidence, the appellate court must review

the entire record, weigh the evidence and all reasonable inferences, consider witness
                                                                                          -15-


credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact

“clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Thompkins at 387, citing State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 38} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.   State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at ¶

14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin at 175.

       {¶ 39} The State’s evidence at trial established the following facts.

       {¶ 40} In the spring of 2016, J.J. and S.M., both 15 years old, were best friends.

S.M. was also friends with Heard, whom S.M. had known since elementary school; Heard

was older than J.J. and S.M., and Heard was involved with White, who was 31 years old.

J.J. first met Heard at S.M.’s house; this encounter was brief and unremarkable.

       {¶ 41} In April 2016, Heard and White picked up S.M. and J.J. in White’s vehicle;

White was introduced as “Shiloh.” The four drove around and smoked marijuana. (This

was referred to as a “blunt cruise.”) At some point, the car stopped, and White moved

from the front seat to the back seat to sit with J.J.; S.M. moved to the front seat and began

driving with Heard in the passenger seat. S.M. testified that Heard asked her if she knew

what escorting was, and S.M. said no. Heard told S.M. that it was “basically prostitution”

and “then they [Heard and White] told [S.M.] and [J.J.] that they needed more people to
                                                                                       -16-


do it with them.” (Trial Tr. at 248.) White asked J.J. if she had been sexually active and

if she ever thought about making money for it.       J.J. responded that she would not

consider doing anything like that. White told J.J. that if she considered doing sex acts

for money, he, Heard, and S.M. would be part of it with her. J.J. understood that “money

would be made and then would be given to [White] and if anything I needed [sic], I would

have to go to him for it.”   (Trial Tr. at 112.) J.J. said to White that she did not agree

with what he was proposing, and the conversation between J.J. and White became

heated. S.M. told J.J. to calm down and listen to what White had to say. White and

Heard left S.M. and J.J. at S.M.’s house. J.J. recalled White’s saying that he would see

her again.

       {¶ 42} On Saturday, May 7, 2016, J.J. was walking to the store with two friends

when she saw Heard and White in a car. J.J. asked White, who was driving, if he could

give the group a ride to the store. White agreed, and the three climbed into the back

seat of the car. As they headed to the store, White stated that he needed to stop at “the

house,” which Heard identified as White’s sister’s home. White drove to a residence on

Lilac Avenue in Dayton; the five sat in the driveway and smoked a “blunt.” White then

went inside the house.

       {¶ 43} After a while, Heard drove J.J.’s friends home, and she asked J.J. to send

a message to S.M. for her. After communicating with S.M., Heard picked up S.M. in the

car, and the three (Heard, S.M., and J.J.) went to Wal-Mart and then back to the Lilac

Avenue house.     Upon reaching the house, the group went inside and down to the

basement, where White was.

       {¶ 44} The four drank alcohol, and White talked to J.J. and S.M. about engaging
                                                                                          -17-


in sex for hire. J.J. testified that “it was mainly Shiloh talking.” (Trial Tr. at 130.) White

told J.J. and S.M. that they would make money and give it to him, and they would go to

him if they needed anything. White told J.J. what the prices would be based on the

amount of time spent. J.J. testified that White told her that she would be doing sex acts

ranging from just sitting with the person to oral sex to “regular sex” with that person.

(Trial Tr. at 131.) White told J.J. that a condom would be used. White referred to these

encounters as “plays” and said that the amount J.J. would earn would depend on the

number of plays. White also told J.J. and S.M. that they would receive a phone (to share)

for their plays. That night, J.J. and S.M. slept in the basement of the Lilac Avenue

residence.

       {¶ 45} The next morning (Sunday, May 8), White made breakfast for them and told

them that they needed to take photographs for Backpage, a website where they could

advertise “escort” services. White told J.J. and S.M. to wear their bras and underwear

for the photos.   White later had J.J. and S.M. remove their bras for some photos.

Individual photos were taken of J.J. and S.M.; White told J.J. and S.M. how to pose.

White then took photos of J.J., S.M., and Heard together, again telling them how to pose

(topless), because White was “going to put us on Backpage as a package.” (Trial Tr. at

139.) All of the photos were taken on Heard’s cell phone. White gave pseudonyms for

the girls on Backpage: J.J. was Royalty, S.M. was Loyalty, and Heard was Honesty.

       {¶ 46} J.J. testified that White had a gun that he kept in his pocket; White told her

that if anything went wrong during a play, he would handle it.

       {¶ 47} S.M. and J.J. spent the rest of the day at the Lilac Avenue residence. At

some point, White told J.J., S.M., and Heard that they would “practice” sex acts on him.
                                                                                          -18-


White told them that “if we couldn’t be able to act on him, then we most likely won’t want

to act on strangers.” (Trial Tr. at 153.) White put on a condom, and Heard performed

oral sex first, then J.J. performed oral sex, and S.M. went third. That evening, they again

smoked marijuana and drank alcohol, and they all slept there overnight.

       {¶ 48} While J.J. was “napping” on Sunday night, she was awakened by Heard

and told that she (J.J.) had a $500 play. J.J. stated that she did not feel like going and

went back to sleep. (Heard testified that J.J. did not actually have a play, and the

statement was a joke.) On Monday night, Heard went on a play and S.M. left with her,

but J.J. stayed behind; Heard had told J.J. that White “wanted his alone time with” J.J.

(Trial Tr. at 157.) After Heard and S.M. had left, White tried to “lay with” J.J., but J.J.

would not let him. White then put on a condom, told J.J. that he wanted her to perform

oral sex on him, and said he would pay her. J.J. asked if White would leave her alone if

she complied, and White said yes. J.J. then performed oral sex on White. J.J. tried to

pull away, but White held her head until he ejaculated.

       {¶ 49} J.J. testified that White never asked how old she was, but he knew how old

S.M. was and that S.M. and J.J. had gone to the same school. J.J. testified that she told

Heard that she (J.J.) was 15, and that White was seated next to her in the car when this

conversation occurred. White told J.J. that she should tell people that she was 18. S.M.

testified that White had asked about J.J.’s and her age; S.M. did not recall whether this

occurred during the “blunt cruise” or the first night at the house. S.M. testified that “[w]e

both told him – [.J.J.] was 15 at that time. And I’m pretty sure I told him I was 16 because

my birthday was coming up.” (Trial Tr. at 253.)

       {¶ 50} On Tuesday, May 10, Heard and White drove J.J. to school and S.M. home;
                                                                                           -19-


Heard and White expected to pick up J.J. and S.M. after school. Beatrice Keeton, a

group leader at J.J.’s school, noticed that J.J. had been absent on May 9 and that, on

May 10, J.J. was wearing nicer clothes than she usually wore and had money that she

typically did not have. Toward the end of the school day, Keeton pulled J.J. aside and

asked her what was going on. J.J. appeared a bit anxious and rocked in her chair; she

told Keeton what had happened.           Keeton relayed the information to her supervisor,

Tasha Stertmeyer, who then also spoke with J.J. Stertmeyer contacted the police, who

asked Keeton and Stertmeyer to bring J.J. to the station.

        {¶ 51} After speaking with an officer, Keeton, Stertmeyer, the officer, and J.J. got

into Strertmeyer’s car, and J.J. directed them to the house on Lilac Avenue. J.J. also

pointed out the car that Heard and White used. The four then returned to the police

station.     White and Heard were arrested later that day.         The police subsequently

contacted S.M. about what had occurred.

        {¶ 52} After a police investigation, White was indicted for

          Counts 1 & 2: unlawful sexual conduct with a minor (10 or more years older than

           the victim – J.J. and S.M., respectively)

          Count 3: rape (force or threat of force – J.J.)

          Count 4: pandering obscenity involving a minor

          Counts 5 & 6: trafficking in persons (J.J. and S.M., respectively)

          Counts 7 & 8: compelling prostitution, with a human trafficking specification (J.J.

           and S.M., respectively).

The trial court acquitted White of Counts 2 and 3, but found him guilty on the remaining

six charges.
                                                                                           -20-


       {¶ 53} On appeal, White claims that the State presented insufficient evidence to

support his convictions on Counts 1, 4, 5, and 6.           White does not challenge the

sufficiency of the State’s evidence regarding Counts 7 and 8.

       {¶ 54} R.C. 2907.04(A), unlawful sexual conduct with a minor, provides: “No

person who is eighteen years of age or older shall engage in sexual conduct with another,

who is not the spouse of the offender, when the offender knows the other person is

thirteen years of age or older but less than sixteen years of age, or the offender is reckless

in that regard.” White claims that the State presented no evidence that White knew J.J.’s

age or that he acted in disregard of a known risk that she was under 16 years of age.

       {¶ 55} We disagree with White’s contention. On direct examination, J.J. testified

that White never asked how old she was, but he knew how old S.M. was and that S.M.

and J.J. had attended the same school. During cross-examination, J.J. testified that,

during the “blunt cruise,” Heard asked her how old she was. J.J. testified that she told

Heard that she was 15 and was turning 16 in November. J.J. stated that she assumed

that White also learned how old she was, because White “was listening. He was there.

He was sitting right next to me when I told her how old I was.” (Trial Tr. at 224.) J.J.

had previously testified on direct examination that White told her to tell people that she

was 18. Moreover, S.M. expressly testified that White had asked her about J.J.’s and

her age; S.M. did not recall whether this occurred during the “blunt cruise” or the first night

at the house.     S.M. testified that White was told that J.J. was 15 years old.         J.J.’s

and S.M.’s testimony, if believed, was sufficient to prove that White knew that J.J. was

thirteen years of age or older but less than sixteen years of age or that White was reckless

in that regard. White’s conviction on Count 1 was not based on insufficient evidence.
                                                                                        -21-


      {¶ 56} Count 4 involved pandering obscenity involving a minor, in violation of R.C.

2907.321(A)(1). That statute provides that “[n]o person, with knowledge of the character

of the material or performance involved, shall do any of the following: (1) Create,

reproduce, or publish any obscene material that has a minor as one of its participants or

portrayed observers.” White claims that the photographs of S.M. and J.J. were created

jointly by Heard, S.M., J.J., and White, and that they were reproduced and published by

Heard, not White. He further claims that the photos were not “obscene.”

      {¶ 57} R.C. 2907.01(F) defines “obscene” materials as follows:

      When considered as a whole, and judged with reference to ordinary adults

      or, if it is designed for sexual deviates or other specially susceptible group,

      judged with reference to that group, any material or performance is

      “obscene” if any of the following apply:

      (1) Its dominant appeal is to prurient interest;

      (2) Its dominant tendency is to arouse lust by displaying or depicting sexual

      activity, masturbation, sexual excitement, or nudity in a way that tends to

      represent human beings as mere objects of sexual appetite;

      (3) Its dominant tendency is to arouse lust by displaying or depicting

      bestiality or extreme or bizarre violence, cruelty, or brutality;

      (4) Its dominant tendency is to appeal to scatological interest by displaying

      or depicting human bodily functions of elimination in a way that inspires

      disgust or revulsion in persons with ordinary sensibilities, without serving

      any genuine scientific, educational, sociological, moral, or artistic purpose;

      (5) It contains a series of displays or descriptions of sexual activity,
                                                                                         -22-


       masturbation, sexual excitement, nudity, bestiality, extreme or bizarre

       violence, cruelty, or brutality, or human bodily functions of elimination, the

       cumulative effect of which is a dominant tendency to appeal to prurient or

       scatological interest, when the appeal to such an interest is primarily for its

       own sake or for commercial exploitation, rather than primarily for a genuine

       scientific, educational, sociological, moral, or artistic purpose.

       {¶ 58} The State states, citing Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37

L.Ed.2d 419 (1973) and Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d 109, 539 N.E.2d

140 (1989), that obscenity requires a depiction of sexual conduct in a patently offensive

way. It notes that the photographs of S.M. and J.J. depict only sexual contact, not sexual

conduct, as defined by R.C. 2907.01. The State thus concedes that the photographs

were not “obscene” and that there was insufficient evidence to support White’s conviction

for pandering obscenity involving a minor.

       {¶ 59} The State presented individual photographs of S.M. and J.J. wearing lacy

underwear. In several photos, S.M. and J.J. covered their bare breasts with their hands.

Other photos showed S.M. and J.J. from behind, focusing on their buttocks. There are

also a series of photographs with S.M., J.J., and Heard together; a few show them lying

in a “spooning” pose, with S.M. in the middle and Heard’s hand on S.M.’s buttocks.

Although the photographs are undoubtedly sexual in nature, we agree with the State’s

assessment that the photographs of J.J. and S.M. are not obscene, as that term is defined

by statute and case law. White’s claim that his conviction on Count 4 was based on

insufficient evidence is sustained.

       {¶ 60} Next, White claims that the State failed to present sufficient evidence to
                                                                                          -23-


support his convictions for trafficking in persons in violation of R.C. 2905.32(A)(2)(a).

That statute provides, in relevant part:

       (A) No person shall knowingly recruit, lure, entice, isolate, harbor, transport,

       provide, obtain, or maintain, or knowingly attempt to recruit, lure, entice,

       isolate, harbor, transport, provide, obtain, or maintain, another person if any

       of the following applies:

       ***

       (2) The other person is less than sixteen years of age * * *, and * * * the

       offender’s knowing recruitment, luring, enticement, isolation, harboring,

       transportation, provision, obtaining, or maintenance of the other person or

       knowing attempt to recruit, lure, entice, isolate, harbor, transport, provide,

       obtain, or maintain the other person is for any of the following purposes:

       (a) To engage in sexual activity for hire[.]

       {¶ 61} White contends that there was no evidence that he knowingly recruited S.M.

and J.J. He asserts that Heard “chose to recruit SM and indirectly JJ. White did not

know either of them. * * * The evidence shows that White merely helped Heard with her

attempts and eventual recruitment of SM and JJ.”

       {¶ 62} The State presented evidence that White was the “mastermind” behind the

Backpage operation, and that he knowingly was involved in the recruitment of J.J. and

S.M. as additional escorts. Heard testified on direct examination that she met White

through an ex-boyfriend and communicated with White on Facebook when she lived in

Wilmington, Ohio. In March 2016, White asked Heard to come to Dayton to make some

money. Heard originally believed that she would be selling drugs, but White introduced
                                                                                         -24-


Heard to a woman in Xenia and told Heard to watch how that woman worked. White told

Heard about Backpage, that she would be having sexual intercourse, and about what she

could charge based on the amount of time she spent with clients. White called this

“escorting” or “hitting a play.” White and the Xenia woman took photos of Heard for a

Backpage ad. When White and Heard came to Dayton a couple days later, Heard began

going out on “plays” – up to four per day – and gave the money to White. Heard testified

that White wanted her to find more females to do escorting; White told Heard that she

would not have to do “plays” anymore if she got other females involved.

       {¶ 63} Although White was introduced to S.M. and J.J. by Heard, there was

evidence that White actively tried to recruit them as additional escorts. S.M. testified

that, during the “blunt cruise,” both Heard and White told J.J. and her that they (Heard

and White) needed more people to do plays. J.J. testified that White asked her if she

had been sexually active and if she ever thought about making money for it. J.J. further

testified that White said that if she (J.J.) considered doing sex acts for money, he, Heard,

and S.M. would be part of it with her. Heard also testified that White had conversations

with J.J. and S.M. about getting them involved; White said that it was good money and

better than just having sex for free. Both J.J. and S.M. understood that the money they

made from plays would be given to White. J.J. and S.M. both described how White

brought up taking pictures to upload to Backpage to get clients and that White directed

the photoshoot (what they wore and how they posed). White brought up that J.J. and

S.M. needed to practice on him so that they would be able to perform oral sex on

strangers.   Heard testified that both she and White used her phone to respond to

Backpage clients. Upon review of the evidence, the State presented sufficient evidence
                                                                                        -25-


for the trial court to conclude that White knowingly attempted to recruit S.M. and J.J. to

engage in sex for hire.

       {¶ 64} Finally, White claims that his convictions were against the manifest weight

of the evidence. He argues that Heard, not he, was the individual who needed the

money, recruited S.M. and J.J., encouraged S.M.’s and J.J.’s participation, and advertised

them on Backpage on Heard’s ad with Heard’s phone. White does not specify the counts

to which this argument is directed. However, it appears to relate to both trafficking in

persons counts (Counts 5 and 6), as well as the counts of promoting prostitution in

violation of R.C. 2907.21(A)(2) (Counts 7 and 8), which prohibits a person from knowingly

inducing, procuring, encouraging, soliciting, requesting, or otherwise facilitating a minor

to engage in sexual activity for hire.

       {¶ 65} As White argues, there was evidence at trial that Heard wanted to have her

own business (a strip club) and that she was trying to earn money so she could do that.

The State’s evidence indicated that Heard knew S.M. from her childhood, that she met

J.J. through S.M., and that she talked with S.M. about working as an “escort.” J.J. and

S.M. also testified that both Heard and White talked to them about engaging in sexual

activity for money. On cross-examination, Heard acknowledged that when she brought

J.J. and S.M. to the Lilac Avenue residence, she told them that she was making “good

money” on Backpage. The State’s evidence further indicated that Heard participated in

the photo session, encouraged J.J. and S.M. to “practice” oral sex on White, and used

her phone to discuss a play that would involve J.J. and S.M. As a result of her conduct,

Heard was charged with two counts of trafficking in persons and pandering obscenity

involving a minor, and she pled guilty to the pandering obscenity charge in exchange for
                                                                                        -26-

the dismissal of the trafficking in persons charges. (See Def. Ex. A.)

      {¶ 66} However, the evidence that Heard knowingly attempted to recruit S.M. and

J.J. to engage in sex for hire does not negate the State’s evidence that White also

knowingly attempted to recruit S.M. and J.J. to engage in sex for hire. Rather, the

manifest weight of the evidence reflects that Heard and White both attempted to recruit

J.J. and S.M. The State was not required to charge White with aiding and abetting in

Heard’s recruitment of S.M. and J.J., and, regardless, the State’s evidence supported a

conclusion that White, as a principal, knowingly attempted to recruit S.M. and J.J. to

engage in sex for hire. White’s convictions on Counts 5, 6, 7, and 8 are not against the

manifest weight of the evidence.

      {¶ 67} White’s second assignment of error is sustained as to Count 4 and

overruled as to Counts 1, 5, 6, 7, and 8.

                         III. Ineffective Assistance of Counsel

      {¶ 68} In his third assignment of error, White claims that his trial counsel rendered

ineffective assistance by failing to “fully and effectively cross-examine the State’s

witnesses with the evidence given” and by failing to properly prepare for trial. White

states that his trial counsel “could have and should have filed motions and compelled

Heard’s proffered testimony pursuant to her plea agreement and obtained additional

evidence and witnesses to refute that testimony.”

      {¶ 69} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the case would have been different.
                                                                                        -27-

See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Trial counsel is entitled

to a strong presumption that his or her conduct falls within the wide range of reasonable

assistance.   Strickland, 466 U.S. at 688.      A defendant is entitled to “reasonable

competence” from his or her attorney, not “perfect advocacy.” See Maryland v. Kulbicki,

136 S.Ct. 2, 5 (2015), citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d

1 (2003) (per curiam).

      {¶ 70} “Strickland and its progeny establish that when a court is presented with an

ineffective-assistance-of-counsel claim, it should look to the full record presented by the

defendant to determine whether the defendant satisfied his [or her] burden to prove

deficient performance.” Reeves v. Alabama, __ U.S. __ 138 S.Ct. 22, 26, 199 L.Ed.2d

341 (2017). Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel. State v.

Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-

400, 84 N.E.3d 193, ¶ 38 (2d Dist.).

      {¶ 71} “A claim of ineffective assistance of counsel cannot be asserted on direct

appeal if it relies on matters outside the record.” State v. Harris, 2d Dist. Montgomery

No. 27179, 2017-Ohio-9052, ¶ 19.

      {¶ 72} We find nothing in the record to suggest that trial counsel rendered

ineffective assistance at trial. We have reviewed the transcript of the entire trial, and

defense counsel thoroughly cross-examined S.M., J.J., and Heard about the escorting

business that White was attempting to build. White does not explain how his counsel’s
                                                                                         -28-


cross-examinations of these and other witnesses were lacking, nor does White identify

what motions should have been filed and what additional evidence should have been

offered at trial. White’s claim of ineffectiveness appears to rely on unidentified materials

outside the record, and thus it is not properly raised on direct appeal.

       {¶ 73} White’s third assignment of error is overruled.

                     IV. Constitutionality of R.C. 2905.32(A)(2)(a)

       {¶ 74} In his fourth assignment of error, White claims that R.C. 2905.32(A)(2)(a),

the trafficking in persons statute, is void for vagueness. White focuses on the statutory

language that prohibits a person from knowingly attempting to recruit a person who is

“less than sixteen years of age” for the purpose of engaging in sexual activity for hire.

He asserts that, “[a]lthough the State proved that the victims in this case were 15 years

of age at the time the offense was committed, the statute barely notified White of the

conduct prohibited if he believed that both victims were 16.” White further states that

“the strict liability application in this statute does not provide sufficient standards to

prevent arbitrary and discriminatory enforcement.”

       {¶ 75} At the outset, we note that White did not raise a constitutional challenge to

R.C. 2905.32(A)(2)(a) before the trial court. It is well established that “ ‘an appellate

court will not consider any error which counsel for a party complaining of the trial court’s

judgment could have called but did not call to the trial court’s attention at a time when

such error could have been avoided or corrected by the trial court.’ ” State v. Awan, 22

Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56,

236 N.E.2d 545 (1968), paragraph three of the syllabus.          (Other citations omitted.)

“[T]he question of the constitutionality of a statute must generally be raised at the first
                                                                                          -29-


opportunity and, in a criminal prosecution, this means in the trial court.”         (Citation

omitted.) Awan at 122. Consequently, White forfeited his constitutional challenge to R.C.

2905.32(A)(2)(a) by failing to object to its alleged ambiguity in the trial court. See State

v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.

       {¶ 76} Nevertheless, we may consider constitutional challenges to the application

of statutes in specific cases of plain error or where the rights and interests involved may

warrant it. See Dayton v. Smith, 2018-Ohio-675, __ N.E.3d __, ¶ 30 (2d Dist.). To

demonstrate plain error, it must be shown that “but for a plain or obvious error, the

outcome of the proceeding would have been otherwise, and reversal must be necessary

to correct a manifest miscarriage of justice.” Quarterman at ¶ 16, citing State v. Davis,

127 Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 29. “The burden of

demonstrating plain error is on the party asserting it.” Id., citing State v. Payne, 114 Ohio

St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 17.

       {¶ 77} Even if we were to consider White’s constitutional challenge, we would not

find that the phrase “the other person is less than sixteen years of age” presents a plain

or obvious error that warrants a reversal of White’s trafficking in persons convictions on

grounds of vagueness. “[W]hen a statute is challenged under the due process doctrine

of vagueness, a court must determine whether the enactment (1) provides sufficient

notice of its proscriptions and (2) contains reasonably clear guidelines to prevent official

arbitrariness or discrimination in its enforcement.” Perez v. Cleveland, 78 Ohio St.3d

376, 378, 678 N.E.2d 537 (1997), citing Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242,

39 L.Ed.2d 605 (1974). Although White argues he did not know that S.M. and J.J. were

less than 16 years old, the statutory elements of the offense are sufficiently clear.
                                                                                           -30-


       {¶ 78} White’s fourth assignment of error is overruled.

                               V. Prosecutorial Misconduct

       {¶ 79} In his fifth assignment of error, White claims that the State engaged in

misconduct when it offered the testimony of Heard, in accordance with a plea agreement,

knowing that her testimony was not truthful or in reckless disregard for the truth.

       {¶ 80} The test for prosecutorial misconduct is whether the prosecutor’s conduct

was improper and, if so, whether that conduct prejudicially affected substantial rights of

the accused. State v. Martin, 2d Dist. Montgomery No. 22744, 2009-Ohio-5303, ¶ 15.

A prosecutor’s conduct during trial cannot be grounds for error unless the conduct

deprives the defendant of a fair trial. State v. Williams, 2d Dist. Montgomery No. 24548,

2012-Ohio-4179, ¶ 51, citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394

(1987). The focus of the inquiry is on the fairness of the trial, not on the culpability of the

prosecutor. State v. Bey, 85 Ohio St.3d 487, 496, 709 N.E.2d 484 (1999).

       {¶ 81} Where it is clear beyond a reasonable doubt that the trier of fact would have

found the defendant guilty, even absent the alleged misconduct, the defendant has not

been prejudiced, and his conviction will not be reversed. See State v. Underwood, 2d

Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21.                We review allegations of

prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d Dist.

Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S.

168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

       {¶ 82} White argues that the manifest weight of the evidence demonstrates that

Heard voluntarily came to Dayton, built a Backpage ad, provided sex for hire to raise

money for a business, recruited S.M. and J.J. to expand her business, created photos of
                                                                                         -31-


them, and added them to her Backpage ad. White contends that Heard “drastically

changed her story against all evidence in the case” in order to get out of jail and reduce

the charges against her. White asserts that the prosecutors were aware or should have

been aware that Heard’s testimony would not be completely truthful, thus denying him a

fair trial.

         {¶ 83} The record does not support White’s contention that the prosecutors

knowingly or recklessly offered untruthful testimony by Heard.           J.J.’s and S.M.’s

testimony implicated both Heard and White.               Heard’s testimony during direct

examination regarding White’s conduct was substantially consistent with the testimony

provided by J.J. and S.M. and other evidence obtained during the police investigation,

including photographs from Heard’s cell phone, the online Backpage ad, items located in

the basement of the Lilac Avenue residence, and DNA evidence. Moreover, Heard was

thoroughly cross-examined by defense counsel.             During that examination, Heard

acknowledged that she wanted to start a business, that she came to Dayton with White

to make money for that purpose, and that she talked to J.J. and S.M. about making money

on Backpage. In short, the record does not support White’s contention that the State

knowingly or recklessly offered perjured testimony by Heard or that her testimony

deprived him of a fair trial.

         {¶ 84} White’s fifth assignment of error is overruled.

                                       VI. Conclusion

         {¶ 85} The trial court’s judgment as to Count 4 (pandering obscenity involving a

minor) will be reversed. In all other respects, the trial court’s judgment will be affirmed.

                                       .............
                                   -32-




HALL, J. and TUCKER, J., concur.


Copies mailed to:

Mathias H. Heck
Heather N. Jans
Ben M. Swift
Hon. Timothy N. O’Connell
