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State v. Gross

Court of Appeals of Ohio, Second District, Montgomery

November 9, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MARK GROSS Defendant-Appellant

         Criminal Appeal from Municipal Court Trial Court Case No. 16-CRB-3490

          STEPHANIE L. COOK, Atty. Reg. No. 0067101, City of Dayton Prosecutor's Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

          ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant

          OPINION

          HALL, P.J.

         {¶ 1} Mark Gross appeals his convictions for loitering to engage in solicitation and soliciting. We affirm the loitering conviction but reverse the soliciting conviction.

         I. Facts and Proceedings

         {¶ 2} One late afternoon in May 2016, Dayton police detective Mistan Bailey was working undercover as a prostitute in the 500 block of Xenia Avenue. The area was the target of a prostitution decoy operation because of its high level of prostitution and large number of neighborhood complaints. Bailey was walking along the sidewalk, and Gross was riding his bicycle in the opposite direction on the other side of the street. Gross passed her and then crossed the street, turned around, and rode back to her. After engaging in small talk, he asked Bailey what she was up to. She told him that she was "working." Gross asked how much it would cost, and Bailey replied that that depended on what he wanted. How much for "everything, " he asked. Fifty dollars, she said. How about $40, Gross countered. Bailey agreed. Gross left, and Bailey understood that he would come back to meet her later. Bailey then signaled the watching officers to take Gross down.

         {¶ 3} Taking the stand in his own defense, Gross testified that he was only flirting with Bailey. He said that he had never seen her before, though he admitted that he believed that she was working as a prostitute. Gross said that they talked for a few minutes and then he continued downtown.

         {¶ 4} Gross was charged with loitering to engage in solicitation under R.C. 2907.241(A)(2) and soliciting under R.C. 2907.24(A). After a bench trial in Dayton Municipal Court, the judge found him guilty of both charges. Gross was sentenced to a 60-day suspended jail term on each count, placed on probation for one year, and ordered to attend "John School" and be tested for HIV.

         {¶ 5} Gross appealed.

         II. Analysis

         {¶ 6} Gross assigns three errors to the trial court. The first and second assignments of error respectively challenge the sufficiency of the evidence and the weight of the evidence. The third assignment of error alleges that the trial court should have merged the convictions.

         Sufficiency and Weight of the Evidence

         {¶ 7} The first assignment of error challenges the sufficiency of the evidence supporting Gross's convictions for loitering to engage in solicitation and soliciting. And the second assignment of error challenges the ...


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