City of Cleveland v. Joyce McCune, 93-LW-0481

Decision Date11 February 1993
Docket Number61776,93-LW-0481
PartiesCITY OF CLEVELAND, Plaintiff-appellee v. JOYCE McCUNE, Defendant-appellant
CourtOhio Court of Appeals

Criminal appeal from Cleveland Municipal Court Case No. 91-CRB-6592.

For plaintiff-appellee: MARK A. McCLAIN, Prosecutor, EDWARD T BUELOW, Assistant, Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113.

For defendant-appellant: JOHN PARIS, THOMAS PARIS, Attorneys at Law, 41575 Illuminating Building, Cleveland, Ohio 44113.

OPINION

DONALD C. NUGENT, J.

This is an appeal from the Cleveland Municipal Court from a judgment finding appellant guilty of loitering for the purpose of solicitation of prostitution in violation of Cleveland Codified Ordinance §691.11.

On March 23, 1991, Officer William Reiber of the Cleveland Police Department was operating an undercover vehicle in the East 40th and Carnegie Avenue area, near the Reno Hotel which is known to be used by prostitutes, when he observed appellant and another female working the area. Officer Reiber testified that he observed appellant and another female attempting to stop passing automobiles on three separate occasions that night. However, each time Reiber got too close, appellant and the other female ran into the hotel. Nonetheless, appellant was arrested later that evening when she left the hotel in a car.

Officer Reiber further testified that he has arrested appellant three times for loitering for the purpose of prostitution and that appellant has at least one conviction for such offense.

On cross-examination, Officer Reiber stated that he was approximately two hundred fifty-five feet away from appellant as she spoke with the driver of a stopped automobile. Although it was dark, Officer Reiber believed the driver was a male. Finally, Officer Reiber testified that he did not actually see appellant make any contacts.

Officer William Leonard also testified to having observed appellant and another female flagging down automobiles outside the Reno Hotel. Later, Officer Leonard learned that a car containing one of the females was leaving the hotel. Consequently, Officer Leonard, along with Det. Reiber and two other detectives, stopped the automobile and placed appellant under arrest.

On cross-examination, Officer Leonard stated that he did not recognize the woman as they were flagging down cars. Rather, it was after they had stopped appellant's automobile that they recognized her. Officer Leonard also stated appellant was the only person in the automobile.

Finally, appellant testified on her own behalf. She stated that on the night in question, she and her boyfriend were driving home from the theater when she noticed an old friend. They stopped the car, and appellant got out of the car, hugged her friend, got back into the car and drove away. The police then pulled them over and placed appellant under arrest.

Based on the foregoing, the trial court found appellant guilty of loitering for purposes of soliciting prostitution. Appellant duly appeals, raising the following assignments of error for our review:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN FORCING DEFENDANT TO TRIAL AND REFUSING TO GRANT DEFENDANT A CONTINUANCE UPON A SHOWING THAT THE PARTIES, BOTH PROSECUTOR AND DEFENDANT, BELIEVED THEY WERE APPEARING FOR A PRE-TRIAL.
II. THE TRIAL COURT'S FINDING OF GUILTY IS WHOLLY UNSUPPORTED AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND IS THEREFORE CONTRARY TO LAW.

In appellant's first assignment of error, appellant argues the trial court abused its discretion in denying appellant's motion for a continuance based on appellant's belief, and apparently the prosecutor's as well, that the parties were in court for a pre-trial.

It is well settled that the granting of a continuance in a criminal case is within the sound discretion of the trial court. State v. Unger (1981), 67 Ohio St.2d 65. In ruling on a motion for continuance, the trial court must look...

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