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State v. Calhoun

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TOREY RASHAD CALHOUN DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598918-A

          ATTORNEYS FOR APPELLANT Marcus S. Sidoti Jordan & Sidoti, L.L.P. Mary Catherine Corrigan.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Yosef M. Hochheiser Gregory J. Ochocki Assistant County Prosecutors.

          BEFORE: Boyle, J., Kilbane, P.J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, J.

         {¶1} Defendant-appellant, Torey Rashad Calhoun, appeals from a judgment convicting him of promoting prostitution and possessing criminal tools. He raises two assignments of error for our review:

1. The trial court erred by admitting improper expert testimony in violation of the Ohio Rules of Evidence, the Ohio Rules of Criminal Procedure and supporting case law.
2. The guilty verdict cannot be upheld because evidence and testimony presented at trial did not establish appellant's [guilt] beyond a reasonable doubt.

         {¶2} Finding no merit to his appeal, we affirm.

         I. Procedural History and Factual Background

         {¶3} In September 2015, Calhoun was indicted on two counts: promoting prostitution in violation of R.C. 2907.22(A)(2), a fourth-degree felony, and possessing criminal tools (condoms and cell phones) in violation of R.C. 2923.24(A) with a furthermore clause that the tools were intended for use in the commission of a felony, which elevated the offense from a first-degree misdemeanor to a fifth-degree felony. Calhoun pleaded not guilty to all charges and waived his right to a jury trial. The following evidence was presented to the bench.

         {¶4} Officer Stephen Krebs of the Westlake Police Department testified that on August 28, 2015, he was investigating prostitution in the city of Westlake. He found a local ad on backpage.com in the adult section by using the keyword, "Westlake." The ad stated:

Hello Gentlemen my name is Heavenly[.] ARE YOU READY TO HAVE THE BEST TIME OF YOUR LIFE? IF SO IM JUST THE GIRL YOU BEEN LOOK FOR!! BODY OF GODDESS. THE FACE OF AN ANGEL!!! NO NEED TO BE SHY...100% REAL & RECENT PICS[.] VERY OPEN MINDED[.] TREAT YOURSELF TO THE BEST ME!! Out calls in calls call 330-445-0002[.]

(Emojis omitted.)

         {¶5} The ad then states that the "poster's age is 23, " the "location" is "Cleveland, Westlake Cleveland." And there is a "post ID" number of "23846062 Cleveland."

         {¶6} Officer Krebs contacted Detective James Scullin to inform him of the backpage.com ad. Detective Scullin, posing undercover as a prospective "client, " sent a text message to the number posted in the ad asking for a "date." Through back and forth text messages to the number, Detective Scullin learned what "the rates were" and that he should come to the Extended Stay America ("Extended Stay) hotel on Clemens Road in Westlake for his "date."

         {¶7} Detective Scullin testified that he has personally investigated, or has been involved in, at least 75 prostitution cases through backpage.com. He explained that when people request services on backpage.com, they do not just ask for "sex." They use "a somewhat coded language." Instead of asking for "sex, " they ask for a "date." He also explained that people use the term "donation" because they do not want to say that they are "paying for services."

         {¶8} Detective Scullin stated that when he pulled into the hotel, he could see into the lobby. He immediately recognized the desk clerk, who he had dealt with in the past. He then saw a male inside the lobby, which he said "piqued" his interest because he knew from his experience that a "prostitute" does not usually work alone. The male appeared to be talking to the hotel desk clerk. At that point, Detective Scullin radioed to Officer Krebs and another officer, Officer Funari, to "just be aware" of the man in the lobby.

         {¶9} Detective Scullin contacted the number posted in the ad to inform the prostitute that he was there. He got out of his vehicle when he received a call from a female telling him where to go. He saw a female come out of the hotel to meet him. He then went with the female into the building of the hotel that he said she accessed with a key card. The moment he stepped into the building, Detective Scullin identified himself as a police officer and detained the female. He also took the key card from her at that time with the intent to find out what room the key card belonged to.

         {¶10} Detective Scullin called Officers Krebs and Funari, both nearby in marked police cars, to come to the hotel. At that time, he also saw the male who had been inside the lobby "walking in the east parking lot" from the lobby area toward the southeast corner of the property.

         {¶11} Detective Scullin took the key card to the clerk at the front desk and learned that it belonged to room 301. The officers obtained a search warrant to search room 301. When they arrived at the room, Calhoun was in the hallway standing by room 301. Detective Scullin later learned that room 301 was registered in Calhoun's name.

         {¶12} Detective Scullin stated that Calhoun denied knowing the female at first, but then eventually admitted to knowing her. Calhoun told the officers that he met the female in Arizona and drove her from Arizona to Ohio. Calhoun also stated that he purchased a cell phone for the female. The officers found an empty cell phone box and condoms in the room. They also confiscated the female's cell phone as well as Calhoun's cell phone.

         {¶13} Officer Krebs testified that while searching room 301, he found a copy of directions from Phoenix, Arizona to Westlake, Ohio that someone had printed from Rand McNally driving directions and maps. On the printed directions, someone had written: "Can't miss out new girl best." Officer Krebs also found handwritten notes in the hotel room. The notes were admitted into evidence. The notes stated:

Hello Gentlemen
Are you read have the best time of your life?
If so I'm just the girl you've been looking for!!
Body of a godess
The face of an angel!!!
No need to be shy...
100% real and recent pics
very open minded
f.e.t.i.s.h. friendly
...No games
Treat yourself to the ...

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