In re T.J. , 2014 Ohio 4919 ( 2014 )

[Cite as In re T.J., 2014-Ohio-4919.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: T.J. C.A. No. 27269
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DL 13 11 2178
DL 12 08 1912
DECISION AND JOURNAL ENTRY
Dated: November 5, 2014
HENSAL, Presiding Judge.
{¶1} Appellant, T.J., appeals from the judgment of the Summit County Court of
Common Pleas, Juvenile Division, adjudicating her delinquent by virtue of her having committed
the offenses of solicitation and promoting prostitution. This Court affirms.
I.
{¶2} On November 6, 2013, several members of the Summit County Sheriff’s Office
conducted a prostitution sting at the Holiday Inn Express in Green. While one undercover
officer waited in a hotel room equipped with video surveillance, other officers contacted females
via the website “backpage.com.” Services were negotiated with the women over the phone and,
once the women arrived at the hotel room, the undercover officer solidified the arrangement.
After the woman agreed to accept payment for rendering sexual services, other members of the
Sheriff’s Office entered the room and arrested the women. T.J., who was seventeen at the time,
was one of the women arrested during the sting.
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{¶3} The following day, a complaint was filed against T.J., alleging that she was a
delinquent child by reason of having committed the crimes of (1) promoting prostitution, a third-
degree felony in violation of R.C. 2907.22; and (2) solicitation, a third-degree misdemeanor in
violation of R.C. 2907.24. T.J. was also charged with a probation violation, as the conduct in
which she was alleged to have engaged was committed while she was on probation. T.J. denied
all of the charges, and the case proceeded to an adjudicatory hearing.
{¶4} Directly after the first witness at the adjudicatory hearing was sworn in, defense
counsel moved the court to dismiss the delinquency charge related to the offense of promoting
prostitution. Defense counsel noted that the sworn complaint against T.J., while alleging the
commission of both promoting prostitution and soliciting, relied upon the same factual narrative
to substantiate both offenses. Because the factual narrative only supported the offense of
soliciting, defense counsel argued, the complaint failed to allege any facts that might constitute
the offense of promoting prostitution.
{¶5} In response to defense counsel’s argument, the State asked the court for leave to
amend the complaint in order to add the statutory language contained in R.C. 2907.22(A)(1).
The court granted the amendment in the interests of justice, but offered defense counsel a
continuance. Defense counsel declined the opportunity to seek a continuance and opted to
proceed with the adjudicatory hearing. At the conclusion of the hearing, the trial court found T.J.
delinquent by virtue of her having committed the offenses of solicitation and promoting
prostitution. The court then entered its dispositional orders.
{¶6} T.J. now appeals from the court’s judgment and raises two assignments of error
for our review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND THE
COMPLAINT AFTER THE ADJUDICATION HEARING STARTED
BECAUSE THE STATE’S AMENDMENT CHANGED THE ESSENTIAL
FACTS AND AMOUNTED TO AN UNSWORN COMPLAINT.
{¶7} In her first assignment of error, T.J. argues that the trial court erred when it
allowed the State to amend the complaint against her after the adjudicatory hearing had already
begun. Specifically, she argues that the court should not have allowed the State to amend the
delinquency charge related to promoting prostitution. We disagree.
{¶8} A complaint charging a juvenile with delinquency must be made under oath,
identify by number the statute alleged to have been violated, and “[s]tate in ordinary and concise
language the essential facts that bring the proceeding within the jurisdiction of the court * * *.”
Juv.R. 10(B)(1)-(3). Once an adjudicatory hearing has commenced, a complaint generally may
be amended either by agreement of the parties or, “if the interests of justice require, upon order
of the court.” Juv.R. 22(B). When the complaint is one charging delinquency, however, one
must ask whether “the proposed amendment would change the name or identity of the specific
violation of law so that it would be considered a change of the crime charged if committed by an
adult.” Id. If so, the complaint only may be amended by agreement of the parties. Id. “Where
requested, a court order shall grant a party reasonable time in which to respond to an
amendment.” Id.
{¶9} “Unlike the Criminal Rules, the Juvenile Rules do not specify that a complaint
must list each and every element of the offense.” In re G.E.S., 9th Dist. Summit No. 23963,
2008-Ohio-2671, ¶ 17. Instead, a delinquency complaint must contain the “essential facts” and
the “numerical designation of the statute” at issue. Juv.R. 10(B)(1). The complaint “need not
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specify the exact numerical designation of the statutory subsection under which the State intends
to proceed so long as a reasonable, ordinary person would understand the charges against him,
based on the language in the complaint.” In re G.E.S. at ¶ 15.
{¶10} R.C. 2907.22(A) defines the offense of promoting prostitution and contains four
subsections. The statute provides that no person shall knowingly
(1) Establish, maintain, operate, manage, supervise, control, or have an interest in
a brothel or any other enterprise a purpose of which is to facilitate engagement in
sexual activity for hire;
(2) Supervise, manage, or control the activities of a prostitute in engaging in
sexual activity for hire;
(3) Transport another, or cause another to be transported, in order to facilitate the
other person’s 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.
R.C. 2907.22(A)(1)-(4). A violation of any of the four subsections is a third-degree felony if a
minor is involved, regardless of “whether or not the offender knows the age of the minor.” R.C.
2907.22(B).
{¶11} In the complaint against T.J., Detective Larry Brown averred that he had
knowledge that T.J. appeared to be a delinquent child,
in that, on or about the 6th day of November, 2013, * * * [w]hile conducting a
multi-agency prostitution sting at 898 Arlington Ridge (Holiday Inn Express) in
the City [o]f Green, [T.J.] did solicit an undercover officer to engage in sexual
activity for hire, which acts are sufficient to establish the elements of Promoting
Prostitution, in violation of Ohio Revised Code Section(s) 2907.22, a felony of
the 3rd degree if committed by an adult * * *.
Thus, the complaint identified the name of the charged offense (promoting prostitution), the
statute number of the charged offense (R.C. 2907.22), and the felony offense level of the charged
offense (third-degree felony). It did not identify a specific subsection of R.C. 2907.22 or allege
the elements of any specific subsection of R.C. 2907.22.
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{¶12} Discovery commenced and, one week before the adjudicatory hearing, the State
filed its pretrial statement. In its pretrial statement, the State alleged that T.J. “did knowingly
establish, maintain, operate, manage, supervise, control or have an interest in an enterprise a
purpose of which is to facilitate engagement in sexual activity for hire.” The State further
alleged that T.J. “admitted to managing and controlling the activities of a prostitute in engaging
in sexual activity for hire.” Accordingly, the State’s pretrial statement referred to the statutory
language contained in R.C. 2907.22(A)(1) and (A)(2).
{¶13} After the first witness at the adjudicatory hearing was sworn in, T.J. moved the
court to dismiss the complaint on the basis that it failed to properly allege a count of promoting
prostitution. T.J. argued that the facts alleged in the complaint only pertained to soliciting and
that it was impossible to discern from the complaint which of several subsections of R.C.
2907.22 was at issue. The State then moved to amend the complaint to indicate that T.J. “did
knowingly establish, maintain, operate, manage, supervise, control or have an interest in an
enterprise the purpose of which was to facilitate engagement in sexual activity for hire.” See
R.C. 2907.22(A)(1). T.J. objected to the amendment, but the court allowed it on the basis that it
did not change the name or level of the offense. The court offered T.J. a continuance, in light of
the amendment, but T.J. indicated that she was prepared to go forward with the hearing.
{¶14} T.J. argues that the court erred by allowing the State to amend the complaint
against her because the amendment changed the essential facts of her complaint and required her
to respond to an unsworn charge. According to T.J., the Juvenile Rules only permit an
amendment if it conforms to the evidence and amounts to a lesser-included offense of the crime
charged. See 1994 Staff Note, Juv.R. 22. Because her original complaint only charged her with
delinquency as a result of her having committed misdemeanor solicitation, T.J. argues, the State
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could not amend it to allege that she had committed a completely separate felony offense; to wit:
promoting prostitution.
{¶15} T.J.’s original complaint was not limited to a charge of delinquency by virtue of
her having committed misdemeanor solicitation. The complaint also specifically charged her
with delinquency as a result of her having committed the felony offense of promoting
prostitution. The complaint named the charged offense of promoting prostitution, listed its
statute number (R.C. 2907.22), and classified it as a third-degree felony. In seeking an
amendment, the State never sought to change the nature of the charged offense. Instead, it
sought to include language in the complaint that would clarify the subsection of the statute under
which the State was proceeding. As previously set forth, the Juvenile Rules do not require the
State to list each essential element or identify the statutory subsection under which it intends to
proceed in the complaint. In re G.E.S., 2008-Ohio-2671, at ¶ 15. Compare State v. Headley, 6
Ohio St. 3d 475, 478-479 (1983) (criminal indictment fatally defective when “one of the vital
elements identifying the crime is omitted from the indictment”). The question is simply whether
a reasonable person would have understood the charges against him. In re G.E.S. at ¶ 15.
{¶16} Reviewing the complaint at issue here, a reasonable person in T.J.’s position
would have understood that he or she was being charged with delinquency as a result of having
committed third-degree felony promoting prostitution under R.C. 2907.22. The State’s request
to include the statutory language from R.C. 2907.22(A)(1) did not change the name of the
offense, the level of the offense, or the penalty associated with the offense. While the State
would have been prudent to set forth distinct factual narratives for each of the charges here, we
cannot conclude that the amendment actually changed the name or identity of the offense. See
Juv.R. 22(B). See also State v. Davis, 121 Ohio St. 3d 239, 2008-Ohio-4537, syllabus
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(“[A]mending the indictment to change the penalty or degree changes the identity of the
offense.”). Thus, the trial court could allow the amendment in the interests of justice. See Juv.R.
22(B).
{¶17} The proposed amendment was consistent with the State’s pretrial statement,
which was filed one week before the adjudicatory hearing, and, as detailed below, conformed to
the evidence against T.J. Further “[i]f [T.J.] had believed [her]self to be prejudiced by the
amendment, [s]he could have moved the court for a continuance in accordance with Juv.R.
22(B).” State v. Thomas, 9th Dist. Lorain No. 95CA006055, 1996 WL 99770, *3 (Mar. 6, 1996).
The court specifically offered T.J. a continuance, and she declined it. Having reviewed the
record, we cannot conclude that the court erred by allowing the State to amend its complaint
against T.J. Therefore, T.J.’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN AN ADJUDICATION
FOR PROMOTING PROSTITUTION BECAUSE THE STATE PRESENTED
ABSOLUTELY NO EVIDENCE OF THE EXISTENCE OF A BROTHEL[.]
{¶18} In her second assignment of error, T.J. argues that the State produced insufficient
evidence to adjudicate her delinquent for having committed the crime of promoting prostitution.
We disagree.
{¶19} “Although juvenile delinquency cases are technically civil in nature, this Court
applies the same sufficiency and manifest weight standards of review in a juvenile delinquency
case that it applies in an adult criminal appeal due to the ‘inherently criminal aspects’ of
delinquency proceedings * * *.” In re L.F., 9th Dist. Lorain No. 10CA09880, 2012-Ohio-302, ¶
6, quoting In re R.D.U., 9th Dist. Summit No. 24225, 2008-Ohio-6131, ¶ 6. “Whether the
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evidence is legally sufficient to sustain [an adjudication of delinquency] is a question of law”
that this Court reviews de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to
support [an adjudication of delinquency] is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. 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 (1991), paragraph two of the syllabus. “The test for sufficiency
requires a determination of whether the State has met its burden of production at trial.” State v.
Collmar, 9th Dist. Summit No. 26496, 2013-Ohio-1766, ¶ 7.
{¶20} R.C. 2907.22(A)(1) provides that “[n]o person shall knowingly * * * [e]stablish,
maintain, operate, manage, supervise, control, or have an interest in a brothel or any other
enterprise a purpose of which is to facilitate engagement in sexual activity for hire.” Whoever
violates the foregoing provision commits the offense of promoting prostitution. R.C.
2907.22(B).
{¶21} T.J. argues that the court erred by finding her delinquent because the State failed
to prove that she established, maintained, operated, managed, supervised, controlled, or had an
interest in a brothel. T.J. asserts that a brothel requires a physical location and that “[n]othing in
2907.22(A)(1) makes it a crime to offer services across the Internet.”
{¶22} R.C. 2907.22(A)(1) was amended on September 29, 2013, approximately one
month before T.J.’s arrest. While the prior version of the subsection required evidence of a
brothel, the version that formed the basis of T.J.’s delinquency charge required the State to prove
that T.J. established, maintained, operated, managed, supervised controlled, or had an interest in
a brothel “or any other enterprise a purpose of which is to facilitate engagement in sexual
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activity for hire.” (Emphasis added.) R.C. 2907.22(A)(1). T.J.’s complaint, as amended,
specifically alleged that she “did knowingly establish, maintain, operate, manage, supervise,
control or have an interest in an enterprise the purpose of which was to facilitate engagement in
sexual activity for hire.” Thus, the State was not required to set forth evidence of a brothel.
{¶23} Detective Larry Brown, a detective with the Summit County Sheriff’s Office,
testified that he helped organize a prostitution sting at the Holiday Inn Express in Green. He
explained that he and his fellow officers used websites, including “backpage.com,” to contact
females and arrange meetings with them at the hotel for the purpose of purchasing their sexual
services. Detective Brown testified that T.J. was one of the females who came to the hotel the
day of the sting. A video recording from one of the hotel rooms being used that day depicts T.J.
entering the room with another young female. The two exchange in small talk with an
undercover officer, who eventually asks the price for T.J. and the other female to engage in
sexual activity with him. Once a price is solidified and T.J. and the other female indicate their
willingness to proceed, the video recording depicts other officers entering the room and arresting
both women.
{¶24} Detective Brown testified that he interviewed T.J. directly after her arrest.
According to Detective Brown, T.J. admitted that she had posted the advertisement that the
police department found on backpage.com. T.J. explained that the boilerplate in the
advertisement always remained the same, but that she would swap out the picture of the girl
depicted in the advertisement, depending on which girl was available that day. T.J. further
explained that she used her iPhone to post the pictures, but that the phone number listed on the
advertisement was linked to a disposable phone. T.J. showed Detective Brown the pictures she
kept on her iPhone. He described the pictures as “girls posing provocatively, girls that had their
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shirts off that were in just a bra and other girls that were partially naked.” According to
Detective Brown, “[y]ou could see braces, you could see that [the girls in the pictures] looked to
be younger and it was just photos that were in her phone that matched photos like [the one on the
backpage.com advertisement].”
{¶25} Detective Brown testified that T.J. admitted she had been prostituting herself for a
few months. He further testified that T.J. explained the breakdown of the money that she and her
female companion would receive on any given call. Specifically, she explained that the person
who drove them to the location would generally be given a small fee for doing so and that she
and the other girl would then split the remaining proceeds 50/50. According to Detective Brown,
T.J. was “adamant” that she was the one who had posted the advertisements on backpage.com.
T.J. also used her iPhone to show Detective Brown the posts that she had made to the website.
{¶26} The State introduced into evidence the actual backpage.com advertisement that
the police department used to contact T.J. and the young female that came with her on the day of
her arrest. The advertisement identifies the woman in the picture as “Jaimie” and is captioned:
“Jaimie new to backpage. 100$ special today only!!!” The date stamp below the caption
indicates that the advertisement was posted to backpage.com on October 30, 2013. The text of
the advertisement provides:
New to backpage[.]
If you come to me I have a special going only for tonight. Looking for some
generous gentlemen to spend some time with tonight. Located on the east side of
Akron. In call and outcall available[.] Ask about my two girl special. Call or
text 330******* for more info and ask about Jaimie. I don’t disappoint. Money
back guarantee[.]
The advertisement also includes two pictures of the girl who accompanied T.J. to the hotel room
on the night of her arrest. One picture is a close-up of the girl smiling in a seated position. The
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other picture shows the same girl, smiling while lying across a large bed with the lengths of both
of her legs exposed.
{¶27} Viewing the evidence in a light most favorable to the State, a rational trier of fact
could have found that T.J. knowingly established, maintained, operated, managed, supervised,
controlled, or had an interest in an enterprise whose purpose was to “facilitate engagement in
sexual activity for hire.” R.C. 2907.22(A)(1). T.J. was arrested when she and another female
responded to an advertisement on backpage.com and agreed to engage in sexual activity in
exchange for money. T.J. admitted to Detective Brown that she personally posted the
advertisement on backpage.com, using her cell phone. Detective Brown observed pictures of
provocatively-posed, young females on T.J.’s phone. Further, T.J. explained to Detective Brown
how she would post the same “Jaimie” advertisement with different pictures, depending on
which females were available to work on a given day. T.J. claimed responsibility for the
services offered on the website and admitted that she and her female companions would split the
money they received for engaging in sexual activity with the people who responded to the
advertisement. Given all of the foregoing, we cannot conclude that T.J.’s adjudication of
delinquency for having committed the offense of promoting prostitution was based on
insufficient evidence. T.J.’s second assignment of error is overruled.
III.
{¶28} T.J.’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, J.
CONCURS.
CARR, J.
DISSENTING.
{¶29} I respectfully dissent. I would conclude that the juvenile court erred by allowing
the State to amend the complaint after commencement of the adjudicatory hearing without
agreement of the parties, because the amendment changed the identity of the offense. Juv.R.
22(B).
{¶30} Both Juv.R. 10(B)(1) and R.C. 2152.021(A)(1) require that a complaint alleging a
child to be delinquent shall contain a recitation of the particular facts on which the alleged
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violation is based. The majority relies on this Court’s prior opinion in In re G.E.S., 9th Dist.
Summit No. 23963, 2008-Ohio-2671, ¶ 15, for the proposition that the delinquency complaint
“need not specify the exact numerical designation of the statutory subsection under which the
State intends to proceed so long as a reasonable, ordinary person would understand the charges
against him, based on the language in the complaint.” In G.E.S., we concluded that the
complaint apprised the juvenile of the identity of the alleged violation (sexual battery)
notwithstanding the absence of the precise statutory subsection because only one of the twelve
possible subsections contained the word “impaired” and that word was recited in the facts in the
complaint. Id. at ¶ 16-17.
{¶31} In this case, the complaint purported to charge T.J. with promoting prostitution
pursuant to R.C. 2907.22. There are four possible subsections which support a charge for
promoting prostitution, and none was referenced by number in the complaint. Unlike G.E.S.,
where that complaint recited language clearly specific to one of the twelve possible subsections,
the complaint in this case did not recite facts implicating the elements of any provision of R.C.
2907.22. Instead, the recitation of facts supported a charge of solicitation pursuant to R.C.
2907.24.
{¶32} It is clear that inclusion of an inexact numerical designation of the statute and an
offense level are not alone sufficient to apprise a juvenile of the identity of the violation with
which he has been charged. Both the juvenile rules and statutory authority require more,
specifically a recitation of particular facts which clarify the violation to a reasonable, ordinary
person. Because the complaint effectively identified a charge of solicitation, it was error for the
trial court to allow the State to amend the complaint to recite facts pertinent to a charge of
promoting prostitution as such amendment changed the identity of the offense. Accordingly, I
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would sustain T.J.’s first assignment of error and remand the matter with direction that the trial
court dismiss the complaint purporting to allege a charge of promoting prostitution. I would then
decline to address the second assignment of error as moot.
APPEARANCES:
CEDRIC COLVIN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.