[Cite as State v. Barker,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellate Case No. 25732 Plaintiff-Appellee : : Trial Court Case No. 12-CR-477 v. : : KEVIN J. BARKER : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 28th day of March, 2014.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ADAM L. NEMANN, Atty. Reg. #0076802, 12463 South High Street, Columbus, Ohio 43206 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Kevin Barker appeals from his conviction and sentence for

Engaging in a Pattern of Corrupt Activity, Promoting Prostitution, and Possession of Criminal 2

Tools. He contends that he was denied the effective assistance of counsel at trial. He further

contends that the State did not present evidence sufficient to support the conviction and that the

conviction is against the weight of the evidence.

{¶ 2} We conclude that the claims of ineffective assistance of trial counsel are not

supported by the record before us. We further conclude that the evidence presented by the State

would permit a rational trier of fact to find Barker guilty of the charged offenses. Finally, we

conclude that the judgment is not against the manifest weight of the evidence. Accordingly, the

judgment of the trial court is Affirmed.

I. Barker’s Peekaboodayton Business

{¶ 3} In 2010, Dayton Police Department Vice Unit Detectives began investigating a

business which advertised services under the “Escort” section of a website known as

Backpage.com. Detectives called the telephone numbers listed in these advertisements and

arranged meetings with various women at local hotels. One of the ads showed a woman with

her hand in her underwear. Two others showed women with their buttocks exposed. One

picture had a woman posing in her bra and another showed a woman reclining with her buttocks

exposed. One of the advertisements showed a woman’s naked torso with her breasts and vaginal

area covered in strawberries and cream. One breast was partially exposed. Some of the pictures

of the ads were found stored on Barker’s cell phones and laptop computer.

{¶ 4} Three women were thereafter arrested for, and convicted of, solicitation. A

fourth woman was arrested on an unrelated warrant. The telephone numbers given in the

advertisements were tracked to Barker whom, the detectives determined, operated a business 3

known as Peekaboodayton. The detectives subpoenaed records from Backpage.com and

ultimately determined that the advertisements on Backpage.com had been placed and paid for by

Barker.

{¶ 5} Detective Molly Hamby made contact with Barker and pretended to be interested

in working for the business. Barker and Hamby made arrangements to meet at a local bar.

Barker brought one of his employees, Nicole Ford, to the meeting. When Hamby asked Barker

what was expected of employment, Barker replied, “[a]ll guys want is sex.” Throughout the

meeting Barker made statements that he did not encourage his employees to engage in sexual acts

with clients. He also stated that he thought having sex was not worth the price paid by clients.

He made a statement that he did not want Hamby to “f**k anybody or suck anybody,” but that if

a client had lots of money the employee could “go ahead and jack them off.” Barker further

stated that if an employee was in a room with a client and felt “comfortable, [then] what she

decides to do with the client was her call.” He also told her that she might go on appointments

where a client requested that two women “got down with” each other while the client watched.

Barker told Hamby that he could not tell her how much to charge for sexual activity, but he did

tell her that she should never be the first to “throw a number out.” Nicole Ford stated that she

had engaged in sex with clients with whom she had been sent on dates. The meeting was

recorded by other detectives at the scene.

{¶ 6} Detectives obtained a search warrant for Barker’s residence which was the

mailing address he used when creating his account with Backpage.com. Detectives met there

with Barker’s wife, from whom he was separated, and determined that Barker was living in

Trotwood with his girlfriend. Detectives went to the Trotwood home and spoke to him. He 4

invited them into his home and consented to a search of the premises. The detectives obtained a

laptop computer, two cellular telephones and some employment contracts.

{¶ 7} It was determined that the two cellular telephones had the phone numbers listed

on Backpage.com and were also utilized to arrange meetings with the Peekaboodayton employees

who were subsequently arrested for solicitation. Barker admitted to the detectives that he owned

Peekaboodayton and that he placed the Backpage.com advertisements. He stated that he ran a

legitimate business. The business began as “Honey’s,” then changed to “G Wet Spot” before

changing its name to Peekaboodayton.

{¶ 8} One of the women arrested for solicitation during a sting operation testified that

she worked for Barker and Peekaboo and that she and the other female employees discussed, in

Barker’s presence, the fact that they engaged in sex with clients. However, she also stated that

she was not certain that Barker knew that sex was occurring. She testified that Barker drove her

to and from her appointments, had her sign a contract, and personally took pictures of her to post

on the internet. The woman testified that sex was involved in “probably twenty or more” jobs to

which she was sent. She testified that she was a prostitute and that Barker was “basically [her]

pimp.” The woman testified that Barker drove her to her meeting with Detective St. Clair and

that during the ride Barker stated that he “had a bad feeling” about the meeting. She testified

that she continued to work for Barker following her arrest for solicitation.

{¶ 9} David Barnes, a Special Agent with the FBI assigned as laboratory director at the

Miami Valley Regional Computer Forensic Lab, testified that during his examination of the

laptop obtained from Barker’s residence he found evidence that the computer was used to access

Backpage.com. He further found evidence of research regarding a Cincinnati prostitution ring as 5

well as ten other “hits” on the term “prostitution.”

{¶ 10} Detective Doug George testified that in his experience as a Vice Detective, he

was aware that prostitutes posted in the “escort” section of the “adult” section of Backpage.com.

As part of this investigation, George responded to an ad on Backpage.com that indicated that a

girl was available to go to a hotel and had a Barker’s telephone number listed in the ad. No one

answered his call, but George later received a call from a woman who identified herself as

“Megan.” George met the woman at a local hotel. The woman asked him if he had

“protection.” They then proceeded to go to a gas station and purchase condoms. The woman

and George agreed to a price for sex. Ultimately, the woman was arrested and convicted of

solicitation.

{¶ 11} George also responded to a Peedaboodayton ad featuring a woman clad in

underwear with her buttocks in full view. Again, the ad had Barker’s telephone number. A

meeting was arranged with that woman at a hotel in Butler Township. George and the woman

reached an agreement regarding money for sex. At that point, Detective St. Clair called

George’s cell phone and, posing as George’s boss, stated that he was coming to George’s room.

George and the woman agreed that she would leave and wait across the street until George

finished his meeting and called her. She gave him her cell phone number and left. The woman

was subsequently arrested on an unrelated warrant. George testified that she was not charged

with solicitation, because the meeting did not take place in Dayton.

{¶ 12} Detective Raymond St. Clair testified that he has made more then 2,500 arrests

for prostitution, and has attended training seminars on the subject. He testified that he targets

“escort” agencies under the “adult” section of advertisements because he has never responded to 6

an ad of that description that did not result in a solicitation for prostitution. He testified that his

investigations into the stripper, strip club, massage, and dating sections of the adult section had

never resulted in prostitution.

{¶ 13} St. Clair, responding to Barker’s ad, met a woman at a hotel. After exchanging

money, the woman was arrested and convicted of soliciting prostitution.

{¶ 14} St. Clair testified that he responded to another ad traced to Peekaboo and Barker

that showed a woman dressed in a thong with her backside to the camera. St. Clair testified that

the ad drew his attention because it stated “[y]ou can enjoy everything on my menu[,]” which he

testified is a “prostitution term which refers to oral, vaginal and anal sex.” He also noticed that

she mentioned her “rates.” The telephone number listed on this ad was later traced to Barker.

Upon calling the number, St. Clair spoke with a woman who identified herself as April. She

asked him if he was looking for “GFE” which he testified is a prostitute term meaning “girlfriend

experience which is sex with kissing.” The woman also stated that the rate would be $160 and

she would send someone to meet him. He met a woman at a Dayton hotel. She stated that she

was made aware that he wanted “everything.” This woman was also arrested and convicted of

soliciting prostitution.

{¶ 15} St. Clair testified that after the investigation netted four separate arrests for

solicitation for prostitution he subpoenaed records from Backpage.com and learned that the

advertisements contained e-mail addresses and telephone numbers belonging to Barker. The ads

were charged to a credit card belonging to Barker’s estranged wife.1

{¶ 16} St. Clair found a website for Peekaboodayton.com that had a disclaimer stating

1 Barker later informed the detectives that he reimbursed his wife for each ad placed using her credit card. 7

that the company was a company of “independent entertainers” who “do not condone or support

any kind of prostitution activity.” St. Clair testified that in his experience, this type of disclaimer

is typical of a pimp trying to “wash his hands of his prostitutes.” The telephone number listed

on the home page of the website belongs to Barker. The website contained pictures of women

along with their height, weight and bra size. Some of the pictures were of girls in underwear or

bikinis. This website was also traced to Barker. St. Clair then made arrangements for Detective

Hamby to interview with Barker.

{¶ 17} A search warrant was issued for Barker’s home. Barker was living with his

girlfriend and consented to a search of their residence. The Peekaboo website was shut down

minutes after the detectives searched Barker’s residence.

{¶ 18} Nicole Ford testified that Barker was aware that some of her appointments

involved sex. She further testified that Barker would drive her to and from her appointments.

II. The Course of Proceedings

{¶ 19} Barker was indicted on one count of Engaging in a Pattern of Corrupt Activity in

violation of R.C. 2929.32(A)(1), two counts of Promoting Prostitution in violation of R.C.

2907.22(A)(2), and three counts of Possession of Criminal Tools in violation of R.C. 2923.24(A).

{¶ 20} Following trial Barker was convicted on all charges and sentenced to a prison

term of six years. Barker appeals.

III. Barker’s Claim of Ineffective Assistance of Counsel

Is Not Supported in the Record of this Appeal

{¶ 21} Barker’s First Assignment of Error states as follows: 8

APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 22} Barker contends that trial counsel was ineffective because he failed to: (1)

develop, and inform Barker of, a trial theory; (2) provide Barker with discovery; (3) interview

witnesses or present witnesses requested by Barker; (4) impeach witnesses with police reports;

(5) investigate other advertisements placed by Barker which demonstrate that he was a legitimate

businessman; (6) investigate a recanting witness; and (7) consult with Barker.

{¶ 23} To prevail on his ineffective-assistance claim, Barker must show that his

attorney's performance was deficient and that the deficient performance prejudiced him.

Strickland v. Washington,

,

,

(1984). Prejudice

exists where “there is a reasonable probability that, but for counsel's deficient performance, the

outcome would have been different.”

.

{¶ 24} Barker does not cite to any portion of the record to support his claims.

Instead, he attaches to his appellate brief an affidavit in which he avers that trial counsel was

deficient in the above-cited ways. In a Decision and Entry dated November 19, 2013, upon

motion of the State, we struck the affidavit as being outside of the record of this appeal. We

cannot consider matters outside the record in a direct appeal. State v. Pittman, 2d Dist.

Montgomery No. 25167,

, citing State v. Cooperrider,

,

(1983).

{¶ 25} Upon review, we find nothing in the record to lend support to Barker’s claims of

ineffective assistance of counsel. It appears from the record that trial counsel had a theory of the

case, which constituted, in part, of presenting Barker as a responsible man with a military 9

background who ran a legitimate business. He further portrayed Barker as having been

unfortunate to hire some women who were not trustworthy and who violated the terms of their

contracts by engaging in sexual acts with customers. Whether counsel informed Barker of that

theory, or provided him with discovery materials, is not something that can be gleaned from the

record. Likewise, whether counsel consulted with Barker, investigated witnesses or

advertisements, or failed to present or interview necessary witnesses is not something we can

determine from this record. Finally, it appears that counsel did make reference to police reports

during his cross-examination of the witnesses presented by the State.

{¶ 26} Barker’s First Assignment of Error is overruled.

IV. Barker’s Convictions Are Supported by Sufficient Evidence

and Are Not Against the Manifest Weight of the Evidence

{¶ 27} Barker’s Second and Third Assignments of Error provide:

THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

THE EVIDENCE AGAINST MR. BARKER WAS INSUFFICIENT TO

SUSTAIN A JURY VERDICT OF GUILTY.

{¶ 28} Barker contends that the record does not contain evidence sufficient to sustain his

convictions and that the convictions are not supported by the manifest weight of the evidence.

{¶ 29} “A challenge to the sufficiency of the evidence differs from a challenge to the

manifest weight of the evidence.” State v. McKnight,

,

,

. “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is 10

whether, after reviewing 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.’ ” Id. at ¶ 70. A claim that a jury verdict is against the manifest weight of the evidence

involves a different test. The court, reviewing 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. Black,

,

,

(2d Dist.).

{¶ 30} “Weight of the evidence concerns the inclination of the greater amount of

credible evidence offered at trial, to support one side of the issue, rather than the other.” State v.

Thompkins,

,

(1997), citing Black's Law Dictionary 1594

(6th Ed. 1990). The credibility of the witnesses and the weight to be given to their testimony are

matters for the trier of facts to resolve. State v. DeHass,

,

(1967). “Because the factfinder, be it the jury, or, as in this case, the trial judge, has the

opportunity to see and hear the witnesses, the cautious exercise of discretionary power of a court

of appeals to find that a judgment is against the manifest weight of the evidence requires that a

substantial deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar

competence of the factfinder, who has seen and heard the witnesses.” State v. Lawson, 2d Dist.

Montgomery No. 16288,

, *5 (Aug. 22, 1997). This court will not substitute its 11

judgment for that of the trier of facts on the issue of witness credibility unless it is patently

apparent that the trier of fact lost its way in arriving at its verdict.

{¶ 31} The State was required to prove Barker guilty of Promoting Prostitution in

violation of R.C. 2907.22(A)(2) which states that “[n]o person shall knowingly * * * [s]upervise,

manage, or control the activities of a prostitute in engaging in sexual activity for hire.” “A

person acts knowingly, regardless of purpose, when he is aware that his conduct will probably

cause a certain result or will be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” R.C. 2901.22(B).

{¶ 32} Barker contends that he “operated an agency for women to perform massages,

private dances, and entertain at bachelor parties.” He claims that he actively discouraged the

women from engaging in sexual activity with clients of the business. He notes that his contracts

with the women explicitly state that the women will not “participate in any form of prostitution

or soliciting of money for sexual services.” He further notes that the business website contained

a disclaimer that the company did not condone prostitution. He also argues that he thought

Hamby had her “own clientele who she engaged in sexual activities,” and that was why he

expressed his opinion on her “performing manual sex on a client.” Finally, he argues that the

record reveals that the four encounters between the detectives and the women who solicited them

cannot be traced to his agency.

{¶ 33} We disagree with Barker’s assessment of the evidence. There is evidence that, if

believed, supports a finding that the four encounters between the detectives and the women who

were subsequently arrested resulted from advertisements posted by Barker on behalf of his

company. The advertisements used pictures found on Barker’s phone and laptop; and there is 12

evidence that he was responsible for taking the pictures. Furthermore, the calls made to the

women as a result of the ad were made to telephones belonging to Barker. There is evidence

that Barker drove his employees to their appointments with clients and was aware that they were

engaging in sexual activity with the clients. Indeed, there is evidence in the record that the

woman who testified that Barker knew she was arrested for prostitution was not fired.

Furthermore, there is evidence that Barker did not fire Nicole Ford, despite knowing that she

engaged in sex with clients. There is also evidence that Barker took a cut of each woman’s

earnings from her appointments. Regardless of his disclaimers concerning sex, the evidence

supports a finding that Barker managed a business that engaged women to act as prostitutes. We

conclude that this evidence is sufficient to prove the offense of Promoting Prostitution, and that

this conviction is not against the manifest weight of the evidence.

{¶ 34} Barker was also convicted of Engaging in a Pattern of Corrupt Activity, in

violation of R.C. 2923.32(A)(1), which states that “[n]o person employed by, or associated with,

any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise

through a pattern of corrupt activity or the collection of an unlawful debt.” An enterprise

“includes any individual, sole proprietorship, partnership, limited partnership, corporation, trust,

union, government agency, or other legal entity, or any organization, association, or group of

persons associated in fact although not a legal entity. [An enterprise] includes illicit as well as

licit enterprises.” R.C. 2923.31(C). A “ ‘pattern of corrupt activity’ means two or more

incidents of corrupt activity, whether or not there has been a prior conviction, that are related to

the affairs of the same enterprise, are not isolated, and are not so closely related to each other and

connected in time and place that they constitute a single event.” R.C. 2923.31(E). “Corrupt 13

activity” consists of “engaging in, attempting to engage in, conspiring to engage in, or soliciting,

coercing, or intimidating another person to engage in * * * [a]ny violation of section 2907.22

[Promoting Prostitution].” R.C. 2923.31(I)(2)(c). “The existence of an enterprise is an element

distinct from the pattern of [corrupt] activity and proof of one does not necessarily establish the

other.” State v. Beverly, 2d Dist. Clark No. 2011 CA 64,

, citing U.S. v.

Turkette,

,

,

(1981).

{¶ 35} In this case, there is evidence that Peekaboodayton is an enterprise owned by

Barker, who is helped in running the business by his girlfriend.2 This enterprise is, according to

Barker, a legitimate business designed to provide adult entertainment in the form of private

dances and massages. The business made disclaimers of prostitution through its website and its

employment contracts. There is evidence that some of the entertainment provided by the

business was merely legal adult entertainment. Barker admitted that he posted, and paid for, the

advertisements for each of the women working for Peekaboodayton. He also provided the

phones that the clients were directed to call. He took the women to and from their engagements,

and took a portion of each woman’s fees.

{¶ 36} There is also evidence to support multiple convictions for Promoting Prostitution,

which are the basis for the “pattern of corrupt activity element” of Engaging in Corrupt Activity.

Barker was aware that the women his company hired were engaging in prostitution while on

assignments for the company. There is also evidence that four different women responded on

behalf of Peekaboodayton to calls placed by Dayton Vice Detectives George and St. Clair from

2 There is testimony in the record that, if believed, established that the girlfriend handled some of the incoming phone calls from potential clients. 14

November 2010 to May 2011. Those women offered the detectives sex in exchange for money.

Furthermore, there is evidence that one of those women had engaged in sex for money on

assignments to which Barker had sent them on at least twenty prior occasions, and one had done

so on at least 75 different occasions. This evidence is corroborated by Barker’s interview with

Detective Hamby indicating that Barker was aware that the women were performing sexual acts

for money.

{¶ 37} We conclude that there is sufficient, credible evidence to support Barker’s

conviction for Engaging in a Pattern of Corrupt Activity, and that conviction is not against the

manifest weight of the evidence.

{¶ 38} Finally, Barker was convicted of Possession of Criminal Tools, in violation of

R.C. 2923.24(A). That statute states, “[n]o person shall possess or have under the person's

control any substance, device, instrument, or article, with purpose to use it criminally.” “A

person acts purposely when it is his specific intention to cause a certain result, or, when the gist

of the offense is a prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”

R.C. 2901.22(A).

{¶ 39} These charges relate to the laptop computer and two cellular telephones that

were taken from Barker. There is evidence in the record sufficient to prove, beyond reasonable

doubt, that Barker used these items for the purpose of Promoting Prostitution. The Possession of

Criminal Tools convictions are not against the manifest weight of the evidence.

{¶ 40} We conclude that the State presented evidence sufficient to prove beyond

reasonable doubt that Barker committed the charged offenses. We further conclude that this is 15

not the rare case where the jury lost its way and its verdicts are against the manifest weight of the

evidence. Accordingly, the Second and Third Assignments of Error are overruled.

V. Conclusion

{¶ 41} All of Barker’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.

.............

DONOVAN and WELBAUM, JJ., concur.

Copies mailed to:

Mathias H. Heck Andrew T. French Adam L. Nemann Hon. Barbara P. Gorman