[Cite as State v. Jacob,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102076

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

HARRY J. JACOB, III DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-584560-A

BEFORE: Laster Mays, J., Boyle, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: November 19, 2015 -i-

ATTORNEY FOR APPELLANT

Russell S. Bensing 600 IMG Building 1360 East Ninth Street Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy McGinty Cuyahoga County Prosecutor

By: Matthew E. Meyer Christopher D. Schroeder Assistant County Prosecutors Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 ANITA LASTER MAYS, J.:

{¶1} On September 4, 2014, Harry J. Jacob III (“Jacob”) was found guilty of three

counts of solicitation under R.C. 2907.24(A)(1), misdemeanors of the third degree, and

two counts of falsification under R.C. 2921.13(A)(11) and (13), misdemeanors of the first

degree.1 The trial court imposed a sentence of 60 days in jail on each of the solicitation

counts, to run concurrently, and 180 days in jail on the falsification counts. The court

suspended the latter sentence, placing Jacob on two years of probation with six months of

electronic home monitoring.

{¶2} After review of the record, we agree with the trial court’s judgment and

affirm. Jacob assigns four errors for our review:

I. The trial court erred to the prejudice of defendant by entering verdicts of guilty of three counts of solicitation that were not supported by sufficient evidence, in derogation of Defendant’s right to due process of law under the Fourteenth Amendment to the United States Constitution.

II. The trial court erred to the prejudice of defendant entering verdicts of guilty of three counts of solicitation that were against the manifest weight of evidence, in derogation of defendant’s right to due process of law under the Fourteenth Amendment to the United States Constitution.

Jacob was charged with 21 counts. Rule 29 was granted for one count of bribery, one count 1

of dereliction of duty, three counts of promoting prostitution, and two counts of tampering with records. He was found not guilty of one count of solicitation, two counts of tampering with records, one count of failure to report a felony, one count of possessing criminal tools, and one count of tampering with evidence. Although charged, he was not prosecuted for two additional counts of solicitation. III. The trial court erred to the prejudice of defendant by entering verdicts of guilty of two counts of falsification that were not supported by sufficient evidence, in derogation of defendant’s right to due process of law under the Fourteenth Amendment to the United States Constitution.

IV. The trial court erred to the prejudice of defendant by entering verdicts of guilty of two counts of falsification that were against the manifest weight of evidence, in derogation of defendant’s right to due process of law under the Fourteenth Amendment to the United States Constitution.

I. Facts and Procedural Posture

{¶3} While in office, Jacob, a former municipal court judge, repeatedly engaged in

and paid for sexual acts with prostitutes. He responded to a backpage advertisement

where a woman (“J.J.”) placed an ad offering massages for $200. Once they met in

person, the massages turned into sex for money. He continued to request J.J.’s services

by calling her and asking her to meet him at various hotels across the state in order to

have sex for money.

{¶4} Jacob also engaged in a three-way sexual act with J.J. and B.B., the second

woman he hired for sex. Jacob met B.B. through J.J. and would contact B.B. through

J.J. for threesomes. He paid and requested that J.J. and B.B. perform sexual acts on each

other while he watched and masturbated. Jacob paid between $200 and $700 depending

on the services and situation, and brought wine and lingerie for each of the women. He

also asked B.B. to perform additional sexual acts with him for which he paid.

{¶5} In addition to J.J. and B.B., Jacob solicited sexual services from G.J., a third

woman. He also engaged in a three-way sexual act with J.J. and G.J., after which he

began contacting G.J. for sex after the initial three-way encounter. He sent a friend request on Facebook to G.J. and began requesting sexual meetings with her at the same

hotels he and J.J. would meet. The state produced records showing phone calls from

Jacob to the women on the dates they would engage in sexual activity for hire.

{¶6} In addition to soliciting prostitution services, Jacob amended a charge on the

record in an ex parte proceeding without a prosecutor present. He then signed a journal

entry memorializing that fact even though it was false. On May 10, 2012, defendant

Holt (“Holt”) was involved in a domestic dispute with his stepson and hit him. Holt’s

mother called the police, and Holt was asked to come to the police station for questioning.

In a written statement, Holt said that he hit his stepson in the arm and the back. Based

off of his statements, Holt was charged with domestic violence.

{¶7} On Monday, May 21, 2012, Holt appeared before Jacob. Deborah Turner

(“Turner”), the Bedford Heights prosecutor, was not in court because the Bedford Heights

docket was heard on Tuesdays. However if Bedford Heights cases were heard on days

other than Tuesday, the court would call Turner to inform her and ask for her input. On

this day, Turner was not notified by the court. The only circumstance where a case

could be resolved without Turner’s agreement was an absolute plea, where the defendant

would plead guilty to the original charge without amendment.

{¶8} Holt tried to plead guilty to the charge of domestic violence, but Jacob noted

his concern on record that a conviction of domestic violence would keep Holt from

owning a firearm as well as prevent him from working as a state-testing nursing assistant. For these reasons, Jacob amended the charge and found Holt guilty of disorderly

conduct.

{¶9} During this hearing Jacob did not read Holt his rights, ask him if he consulted

with an attorney, hear from the victim, or contact Turner. Instead, he changed the

charge from domestic violence to disorderly conduct, and wrote by hand on the file

“State” to give the impression that the prosecutor amended the charge. He then signed a

judgment entry that was journalized May 25, 2012.

{¶10} As a result, Jacob was found guilty, after a bench trial, of three counts of

solicitation and two counts of falsification. Jacob’s attorney, during the trial, admitted

that Jacob “engaged in the services of prostitutes on a number of occasions.” Jacob also

admitted to “signing off on a journal entry that’s factually inaccurate.” Despite this,

Jacob argues that he should have been charged with prostitution under R.C. 2907.25

instead of solicitation under R.C. 2907.24(A)(1), and because of that, the evidence is not

sufficient to convict him under solicitation. Additionally, Jacob also admits to signing

the inaccurate journal entry, but denies that he knowingly did it, which is an element of

the falsification statute, R.C. 2921.13. As a result, he filed this timely appeal.

A. Standard of Review

{¶11} When an appellate court reviews a claim of insufficient evidence, “the

relevant inquiry is whether, after viewing 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.” State v. Leonard,

,

,

, quoting State v. Jenks,

,

(1991), paragraph two of the syllabus. The weight to be given the evidence and the

credibility of the witnesses are primarily for the trier of fact. State v. Tenace,

,

,

.

{¶12} In reviewing a claim challenging the manifest weight of the evidence, the

question to be answered is whether

there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether 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.

(Internal citations and quotations omitted.) Leonard at 68.

{¶13} “Although a court of appeals may determine that a judgment of a trial court

is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.” State v. Thompkins,

,

(1997). Weight of the evidence concerns the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather than

the other. It indicates clearly to the jury that the party having the burden of proof will be

entitled to their verdict, if, on weighing the evidence in their minds, they shall find the

greater amount of credible evidence sustains the issue which is to be established before

them. Weight is not a question of mathematics, but depends on its effect in inducing

belief. Black’s Law Dictionary 1433 (6th Ed. 1990). {¶14} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting

testimony.”

, quoting Tibbs v. Florida,

,

,

(1982).

II. Law and Analysis

A. Solicitation

{¶15} The evidence was sufficient to find Jacob guilty of solicitation.

R.C. 2907.24(A)(1) states that “no person shall solicit another who is eighteen years of

age or older to engage with such other person in sexual activity for hire.” Jacob

admittedly engaged in prostitution with at least three women. However he claims that

there is not enough evidence to prove that he solicited these women for sex.

{¶16} He argues that they offered to have sex with him for which he accepted and

paid for their services. A person is not guilty of a criminal offense unless (1) the person

engaged in conduct that a section of the Revised Code prohibits and (2) acts with the

requisite degree of culpability for each element as to which a culpable mental state is

specified by the section defining the offense. R.C. 2901.21(A). The burden of proof

for all elements of the offense, beyond a reasonable doubt, is on the prosecution. R.C.

2901.05(A).

{¶17} “Sufficiency” of the evidence is a term of art for the legal standard that is

applied to determine whether the evidence that was offered is sufficient as a matter of law to support a finding of criminal liability. Thompkins,

,

. “R.C. 2907.04(A) requires the state to offer evidence sufficient to prove (1) the

accused’s solicitation of another, (2) to engage in sexual activity, (3) for hire.” State v.

West, 2d Dist. Montgomery No. 22966,

, ¶ 18. This appeal is about one

word, solicit. (Emphasis added.) Jacob agrees that he engaged in sexual activity for

hire, but that he did not solicit the women for the sexual activity.

{¶18} Solicit means “to seek, to ask, to influence, to invite, to tempt, to lead on, or

to bring pressure to bear.” State v. Kent, 8th Dist. Cuyahoga No. 98863,

. Jacob did indeed solicit prostitution services. After the initial

meeting, Jacob sought, asked, and invited J.J. by calling her and asking her to meet him at

various hotels across the state in order to engage in sexual services. In addition to

soliciting J.J.’s services, Jacob requested threesomes and promised special favors in

return. He also influenced her by buying wine and lingerie. He even offered an

increase in payment for certain acts that influenced her to say yes.

{¶19} Jacob argues that since he simply responded to an advertisement, he

accepted an offer for sex, not solicited sex. However advertisements are not offers.

Dawson v. Giant Eagle, Inc., 8th Dist. Cuyahoga No. 93337,

,¶ 8. An

offer is “the manifestation of willingness to enter into a bargain, so made as to justify

another person in understanding that his assent to that bargain is invited and will conclude

it.”

J.J.’s advertisement invited many people to make an offer for her services.

Her advertisement was not an offer because the terms were not complete. Once Jacob responded to her advertisement, he and J.J. discussed price and services. They even

haggled over the price for certain services. Additionally, Jacob assented but by his

actions nothing was ever concluded. Because of this, J.J.’s advertisement was not an

offer.

{¶20} Jacob also argues that these set of facts are analogous to the facts in State v.

Swann,

,

(1st Dist. 2001), where the court decided

that the prostitute was not guilty of solicitation because she merely accepted the

undercover officer’s offer to engage in prostitution. We disagree that this decision is

relevant to this case. Jacob was not merely driving around when a prostitute offered him

sex. He responded to an online advertisement and made an offer to all three women for

sexual activity. He asked them to engage in three-way sex, asked for specific sexual

favors, and requested that they perform sexual acts on him for a price. He provided

wine, lingerie, and meeting places while paying her varying sums of money based upon

specific sexual acts. This is the very definition of solicitation. Because there was

sufficient and substantial evidence that Jacob solicited at least three women to engage in

sexual activity for hire, consequently, we affirm the trial court’s decision.

B. Falsification

{¶21} The evidence was sufficient to find Jacob guilty of falsification.

R.C. 2921.13 states, “No person shall knowingly make a false statement, or knowingly

swear or affirm the truth of a false statement previously made, when any of the following

applies”: (11) The statement is made on an account, form, record, stamp, label, or other writing that is required by law; and

(13) The statement is made in a document or instrument of writing that purports to be a judgment, lien, or claim of indebtedness and is filed or recorded with the secretary of state, a county recorder, or the clerk of a court of record.

{¶22} Jacob does not dispute the fact that he signed off on a journal entry that

was factually inaccurate. Instead, he argues that he did not actually know the journal

entry was false. We emphatically reject this claim. Jacob’s signature was reflected on

a journal entry that he provided the information for falsification. (Emphasis added.)

{¶23} Jacob would like for this court to believe that he simply forgot that he

changed the record, and therefore, cannot be held responsible for its inaccurate

information. However, the facts establish that he was fully aware of his duplicitous

actions and tried to hide them. Jacob knew that the journal entry was false because he

was the one who changed it; he changed the entry to make it appear that the prosecutor

authorized the amendment to the original charge, and then he signed off on the entry.

This clearly demonstrates that he knowingly falsified the journal entry, not just signed a

falsified journal entry.

{¶24} Jacob argues that his signature is on a boilerplate document, and he did not

know that the record in the case was falsified. This argument is baseless. As stated

above, Jacob is the one who amended the charge and signed the journal entry reflecting

the same. Jacob was fully aware that this information was false. Because of these facts, we affirm the trial court’s decision and hold that the evidence was sufficient and

substantial to find Jacob guilty of falsification.

{¶25} The trial court’s decision is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ ANITA LASTER MAYS, JUDGE

PATRICIA ANN BLACKMON, J., CONCURS; MARY J. BOYLE, P.J., CONCURS IN JUDGMENT ONLY