[Cite as State v. Van Pelt, 2016-Ohio-2678.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2015-08-142

                                                     :          OPINION
    - vs -                                                       4/25/2016
                                                     :

TRACY J. VAN PELT,                                   :

        Defendant-Appellant.                         :



                  CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
                               Case No. 15 CRB 02478-A



Neal D. Schuett, Hamilton City Prosecutor, 345 High Street, 2nd Floor, Hamilton, Ohio
45011, for plaintiff-appellee

Christopher Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, Tracy J. Van Pelt, appeals from her conviction in the

Hamilton Municipal Court for loitering to engage in solicitation. For the reasons set forth

below, we affirm.

        {¶ 2} On July 7, 2015, Sean Gill, a detective with the Trenton Police Department, was

assisting the Hamilton Police Department in an undercover operation to discover prostitutes
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working in Hamilton, Ohio. Around 3:00 p.m., Gill was notified that a known prostitute was in

the area near the intersection of East Avenue and Long Street. Gill, who was wearing a wire,

drove an unmarked police car into the area and saw appellant standing on the side of the

road near the intersection. Gill pulled over to the side of the road, approximately 20 to 30

feet away from appellant. Appellant made eye contact with Gill, approached Gill's car, and

tried to open the locked passenger door. After the door was unlocked, appellant got into the

car and closed the door.

       {¶ 3} Once inside Gill's car, appellant had a conversation with Gill, which was

recorded. Gill asked if appellant "wanted to party," and appellant responded "hell, yeah." Gill

then asked appellant for a "blow job," and she responded by asking, "You ain't a cop, right?"

After Gill assured appellant he was not a cop, appellant gave directions on where they could

go to "party." As Gill was driving, he offered $20 for the blow job. Appellant did not respond

to the monetary offer.

       {¶ 4} As Gill was following appellant's directions, he began to call out the streets he

was turning on so that other officers who were listening in were aware of his movement. This

made appellant nervous, and she again asked if Gill was a police officer, stating that she had

been "busted before" for solicitation. Gill denied being a cop and kept driving. He continued

to repeat appellant's directions. He then told appellant, "I don't got a lot of money." At this

time, appellant responded, "I - - I really don't do that" and that she "need[ed] to be

comfortable" with him first. She told Gill to pull over because he was "freaking her out" by

"saying street names and everything" and that "means * * * you could be the police." Gill

pulled over and tried to assure appellant he was not a cop and that he wanted to party with

her, but appellant said "[n]o, I got to be safe" and exited the car.

       {¶ 5} Appellant was later arrested and charged with loitering to engage in solicitation

in violation of R.C. 2907.241(A)(2), a misdemeanor of the third degree. She pled not guilty,
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and a bench trial was held on July 30, 2015. At trial, the state presented testimony from Gill

and introduced into evidence the recording of Gill's conversation with appellant. The state

then rested and appellant made a Crim.R. 29 motion for acquittal, which was denied by the

trial court.   Thereafter, appellant rested her defense without calling any witnesses or

admitting any exhibits into evidence. The matter was submitted to the court, and the court

found appellant guilty of loitering to engage in solicitation. Appellant was subsequently

sentenced to 60 days in jail, with credit for 24 days served.

       {¶ 6} Appellant timely appealed her conviction, raising two assignments of error. For

ease of discussion, we will address the assignments of error together.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT

[APPELLANT OF] LOITERING TO ENGAGE IN SOLICITATION.

       {¶ 9} Assignment of Error No. 2:

       {¶ 10} [APPELLANT'S] CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 11} In her first and second assignments of error, appellant argues her conviction for

loitering to engage in solicitation was not supported by sufficient evidence and was against

the manifest weight of the evidence.

       {¶ 12} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,

194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of

the evidence underlying a criminal conviction, an appellate court examines the evidence in

order to determine whether such evidence, if believed, would convince the average mind of

the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.

CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after
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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 (1991), paragraph two of the syllabus.

       {¶ 13} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the 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.

State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. "While

appellate review includes the responsibility to consider the credibility of witnesses and weight

given to the evidence, 'these issues are primarily matters for the trier of fact to decide.'"

State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State

v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court,

therefore, will overturn a conviction due to the manifest weight of the evidence only in

extraordinary circumstances when the evidence presented at trial weighs heavily in favor of

acquittal. Id., citing Thompkins, 78 Ohio St.3d at 387.

       {¶ 14} Although the legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different, "[a] determination that a conviction

is supported by the manifest weight of the evidence will also be dispositive of the issue of

sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

See also State v. Shindeldecker, 12th Dist. Preble No. CA2015-06-014, 2015-Ohio-264, ¶

14.
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       {¶ 15} Appellant contends the state failed to present evidence that she "purposefully

solicited" Gill to engage in sexual activity. Pursuant to R.C. 2907.241(A)(2), "[n]o person,

with purpose to solicit another to engage in sexual activity for hire and while in or near a

public place, shall * * * [e]ngage or attempt to engage another in conversation." The term

"solicit" has been defined as "to entice, urge, lure, or ask." State v. Swann, 142 Ohio App.3d

88, 89 (1st Dist.2001); State v. Renner, 12th Dist. Clermont No. CA2010-06-042, 2011-Ohio-

539, ¶ 10. A person acts "purposefully" when "it is the person's specific intention to cause a

certain result, or, when the gist of the offense is a prohibition against conduct of a certain

nature, regardless of what the offender intends to accomplish thereby, it is the offender's

specific intention to engage in conduct of that nature." R.C. 2901.22(A).

       {¶ 16} Purpose or intent may be proven by circumstantial evidence. State v. McGraw,

12th Dist. Fayette No. CA2009-10-020, 2010-Ohio-3949, ¶ 12. "A conviction based on purely

circumstantial evidence is no less sound than a conviction based on direct evidence." State

v. Conley, 12th Dist. Warren No. CA2013-06-055, 2014-Ohio-1699, ¶ 16. As long as the

evidence would convince the average mind of the defendant's guilt beyond a reasonable

doubt, circumstantial evidence is sufficient to sustain a conviction. Id., citing State v.

McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 75.

       {¶ 17} After examining the record, weighing the evidence and reasonable inferences,

and examining the credibility of Gill's testimony, we find that appellant's conviction for

loitering to engage in solicitation was not against the manifest weight of the evidence and

was supported by sufficient evidence. The state presented testimony and evidence from

which the judge, as the trier of fact, could have found all elements of the offense proven

beyond a reasonable doubt.

       {¶ 18} Here, the state presented evidence that appellant, a "known prostitute" who

admitted to having been "busted before," made eye contact with Gill and walked 20 to 30 feet
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to his passenger door before getting into his vehicle, which was parked on a public street.

Gill testified he had never met or spoke with appellant prior to her getting into his vehicle. He

also denied beckoning her over to his vehicle. Once appellant was in the vehicle, appellant

stated "hell, yeah" she wanted to party and she started giving directions to where they could

go to "party." She gave these directions after being asked to perform fellatio and after being

offered $20 for the sex act. Appellant attempted to screen Gill to find out if he was an officer,

asking multiple times whether Gill was a cop and mentioning a prior "bust." It was only after

Gill made appellant nervous by repeating her directions that appellant denied she would

engage in a sex act for money. Appellant told Gill he had "freak[ed] her out" by saying the

street names they were traveling on as his actions indicated he "could be the police."

Appellant's need "to be safe" and leave Gill's vehicle happened only after she developed

fears that Gill was a police officer.

       {¶ 19} The foregoing provided sufficient circumstantial evidence that appellant, with

the purpose of enticing or luring Gill into sex for hire, approached his vehicle and engaged

him in conversation. We therefore conclude that the trier of fact did not lose its way or create

such a manifest miscarriage of justice that appellant's conviction for loitering to engage in

solicitation must be reversed. As appellant's conviction was not against the manifest weight

of the evidence, we necessarily conclude that the state presented sufficient evidence to

support the trial court's finding of guilt. See Jones, 2013-Ohio-150 at ¶ 19.

       {¶ 20} Appellant's first and second assignments of error are, therefore, overruled.

       {¶ 21} Judgment affirmed.


       M. POWELL, P.J., and RINGLAND, J., concur.




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