State v. Wendling

• Decision Date: 18 February 2022
• Docket Number: 29074
• Citation: 2022 Ohio 496
• Parties: STATE OF OHIO Plaintiff-Appellee v. EUGENE WENDLING Defendant-Appellant
• Court: Ohio Court of Appeals

2022-Ohio-496

STATE OF OHIO Plaintiff-Appellee
v.
EUGENE WENDLING Defendant-Appellant

No. 29074

Court of Appeals of Ohio, Second District, Montgomery

February 18, 2022

Criminal Appeal from Municipal Court Trial Court Case No. 2020-CRB-843

STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, City of Dayton Prosecutor's Office, Attorneys for Plaintiff-Appellee

ADAM JAMES STOUT, Atty. Reg. No. 0067714, Attorney for Defendant-Appellant

OPINION

TUCKER, P.J.

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{¶ 1} Defendant-appellant Eugene Wendling appeals from his convictions for soliciting and loitering to engage in solicitation following a jury trial in the Dayton Municipal Court. Wendling contends his convictions must be reversed because the trial court improperly instructed the jury. He also contends the convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.

{¶ 2} For the reasons that follow, we conclude that Wendling's assignments of error are without merit. Accordingly, the judgment of the trial court is affirmed.

I. Facts and Procedural History

{¶ 3} On February 27, 2020, the Dayton Police Department conducted a prostitution sting operation in the area of More Avenue and East Third Street. That area, which is a mix of commercial and residential properties, is known as a high prostitution area. On this date, Dayton Police Officer Keri Lightle was working undercover as a decoy. Wendling was arrested after an encounter with Lightle.

{¶ 4} On February 28, 2020, Wendling was charged by complaint in the Dayton Municipal Court with one count of soliciting in violation of R.C. 2907.24(A)(1), one count of loitering to engage in solicitation in violation of R.C. 2907.241(A)(2), and one count of loitering to engage in solicitation in violation of R.C. 2907.241(A)(4). The matter proceeded to a jury trial.

{¶ 5} At trial, Lightle testified on behalf of the State. According to Lightle, Wendling was driving a vehicle southbound on More Avenue when he pulled up to the curb where she was standing, approximately 30 feet from the stop sign located at the

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intersection of More Avenue and East Third Street. Lightle testified that Wendling rolled down the passenger-side front window, leaned toward her, and made eye contact with her. She testified that she then approached the vehicle, at which point she heard the door unlock and observed Wendling make a motion for her to get into the vehicle. Wendling opened the door but did not get into the vehicle. She then said, "Hey, what's going on?" Tr. p. 51. Lightle testified that Wendling indicated he wanted her to accompany him to his home on Park Lane.^[1] Lightle testified that she asked him what he had in mind, to which he replied, "head," which Lightle testified meant oral sex. Tr. p. 47. Lightle then suggested the amount of $20, and Wendling agreed. Lightle directed him to go to a nearby alley. The two continued to converse, and Lightle eventually stated that she would get her bag and meet him in the alley. Lightle testified that she was wearing a wire during the sting in order to audio-record her interactions with the individuals she encountered. She testified that the audio-recording designated as State's Exhibit 1 was an accurate record of her entire exchange with Wendling, with no modifications made to the recording.

{¶ 6} The audio recording corroborated Lightle's testimony. At the start of the recording, Lightle could be heard saying, "testing, testing." Prior to the exchange between Lightle and Wendling, there were recordings of Lightle addressing several other people. There were periods of time between each interaction during which the ambient street noise was all that could be heard on the recording. At approximately the 17-minute mark on the recording, the exchange between Lightle and Wendling began. After the

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initial greeting, Lightle asked Wendling what he was doing. Wendling stated that he lived on Park Lane and asked if she wanted to go there. Lightle stated that she could not go that far and then asked Wendling what he had in mind. Wendling responded, "head." Lightle then asked, "20 bucks?" Wendling responded, "I'll give you $20." Lightle then told Wendling to accompany her into the alley, but he said he could not; he also said he could not get caught and again asked her to go to his home. He mentioned that he was clean and sober. Lightle again told him she could not travel that far. She then stated, "if you want to do a blow job for $20 I'll meet you down here." Wendling again stated he did not want to get caught. Lightle asked him where he wanted to go, and Wendling again mentioned his home; he also mentioned his sobriety again and informed her he had a past history of heroin and crack use. Lightle then told him to meet her "up here," and stated she would get her bag. She then repeated, "twenty dollars, blow job." Wendling replied, "yep."

{¶ 7} Wendling also testified at trial. When asked why he was in the area of the encounter, Wendling testified he had been at an AA meeting on East Third Street, approximately 10 blocks away. He testified that he had attended daily AA meetings at that location for the past three years. Wendling further testified that, on the morning of the encounter, he had attended the meeting and discussed with another member that a third member, a woman, had relapsed and become a prostitute. He testified he left the meeting and went to a thrift store and a pawn shop before driving toward a restaurant for breakfast. Wendling stated that he was on More Avenue when he noticed a girl who looked like the person he had been discussing during his AA meeting; Wendling asserted that he turned around and went back to check. He indicated that he then stopped at the

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stop sign and looked at the woman; he realized he did not know the woman on the street, and then he "waved her off." Tr. p. 67. He also testified that his car window had not been rolled down and that Lightle had initiated contact with him when she opened his car door.

{¶ 8} When defense counsel asked why he kept mentioning his address during the exchange, Wendling stated he "wasn't going to do it in no [sic] alley and [ ] wasn't going to do it no matter what." Tr. p. 69. He then stated, "well, I don't know if I would have or not." Id. Defense counsel then asked why he mentioned "getting caught," and Wendling testified that he had previously received a citation for trespassing when he was caught parked in a turnaround area at the airport while he was in his car with his sister's friend. He also testified that he told Lightle about his issues with sobriety because he knew prostitutes were usually addicted to drugs and he wanted to give her numbers to call for help with that issue.

{¶ 9} Wendling also testified that the recording played for the jury did not capture the entirety of his conversation with Lightle. Specifically, he told the prosecutor during cross-examination that he also spoke to Lightle prior to the exchange the jury heard. The prosecutor then played a brief, hard-to-hear conversation which began at the 15-minute mark. After listening to it, Wendling asserted that this conversation had also involved him. According to Wendling, during this conversation he told Lightle he had been at an AA meeting and was heading to a restaurant for breakfast. He testified that he asked Lightle whether she wanted to go. He also testified that he also told her he had mistaken her for someone else.

{¶ 10} Wendling was found guilty of all charges, and the trial court sentenced him

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accordingly. Wendling appeals.

II. The Convictions were Supported by the Evidence

{¶ 11} We begin with Wendling's second assignment of error, which states:

THE DEFENDANTS CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 12} Although this assignment of error is framed in terms of a manifest weight argument, Wendling argues in his brief that his convictions were based upon insufficient evidence and were against the manifest weight of the evidence because he was induced to solicit Lightle.

{¶ 13} "A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law." State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to the state could have found the essential elements of the crime proven beyond a reasonable doubt." (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). "The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact." (Citations omitted.) Id.

{¶ 14} "A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more

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believable or persuasive." (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12. In assessing such an argument, the appellate court reviews" 'the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.'" State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, ...