[Cite as State v. Van Pelt, 2016-Ohio-2678.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : CASE NO. CA2015-08-142 

 

 : O P I N I O N 

 - vs - 4/25/2016 

 : 

TRACY J. VAN PELT, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT 

Case No. 15 CRB 02478-A 

Neal D. Schuett, Hamilton City Prosecutor, 345 High Street, 2nd Floor, Hamilton, Ohio 

45011, for plaintiff-appellee 

Christopher Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendantappellant 

 HENDRICKSON, J.

{¶ 1} Defendant-appellant, Tracy J. Van Pelt, appeals from her conviction in the 

Hamilton Municipal Court for loitering to engage in solicitation. For the reasons set forth 

below, we affirm. 

{¶ 2} On July 7, 2015, Sean Gill, a detective with the Trenton Police Department, was 

assisting the Hamilton Police Department in an undercover operation to discover prostitutes 
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working in Hamilton, Ohio. Around 3:00 p.m., Gill was notified that a known prostitute was in 

the area near the intersection of East Avenue and Long Street. Gill, who was wearing a wire, 

drove an unmarked police car into the area and saw appellant standing on the side of the 

road near the intersection. Gill pulled over to the side of the road, approximately 20 to 30 

feet away from appellant. Appellant made eye contact with Gill, approached Gill's car, and 

tried to open the locked passenger door. After the door was unlocked, appellant got into the 

car and closed the door. 

{¶ 3} Once inside Gill's car, appellant had a conversation with Gill, which was 

recorded. Gill asked if appellant "wanted to party," and appellant responded "hell, yeah." Gill 

then asked appellant for a "blow job," and she responded by asking, "You ain't a cop, right?" 

After Gill assured appellant he was not a cop, appellant gave directions on where they could 

go to "party." As Gill was driving, he offered $20 for the blow job. Appellant did not respond 

to the monetary offer. 

{¶ 4} As Gill was following appellant's directions, he began to call out the streets he 

was turning on so that other officers who were listening in were aware of his movement. This 

made appellant nervous, and she again asked if Gill was a police officer, stating that she had 

been "busted before" for solicitation. Gill denied being a cop and kept driving. He continued 

to repeat appellant's directions. He then told appellant, "I don't got a lot of money." At this 

time, appellant responded, "I - - I really don't do that" and that she "need[ed] to be 

comfortable" with him first. She told Gill to pull over because he was "freaking her out" by 

"saying street names and everything" and that "means * * * you could be the police." Gill 

pulled over and tried to assure appellant he was not a cop and that he wanted to party with 

her, but appellant said "[n]o, I got to be safe" and exited the car. 

{¶ 5} Appellant was later arrested and charged with loitering to engage in solicitation 

in violation of R.C. 2907.241(A)(2), a misdemeanor of the third degree. She pled not guilty, 
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and a bench trial was held on July 30, 2015. At trial, the state presented testimony from Gill 

and introduced into evidence the recording of Gill's conversation with appellant. The state 

then rested and appellant made a Crim.R. 29 motion for acquittal, which was denied by the 

trial court. Thereafter, appellant rested her defense without calling any witnesses or 

admitting any exhibits into evidence. The matter was submitted to the court, and the court 

found appellant guilty of loitering to engage in solicitation. Appellant was subsequently 

sentenced to 60 days in jail, with credit for 24 days served. 

{¶ 6} Appellant timely appealed her conviction, raising two assignments of error. For 

ease of discussion, we will address the assignments of error together. 

{¶ 7} Assignment of Error No. 1: 

{¶ 8} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT 

[APPELLANT OF] LOITERING TO ENGAGE IN SOLICITATION. 

{¶ 9} Assignment of Error No. 2: 

{¶ 10} [APPELLANT'S] CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE. 

{¶ 11} In her first and second assignments of error, appellant argues her conviction for 

loitering to engage in solicitation was not supported by sufficient evidence and was against 

the manifest weight of the evidence. 

{¶ 12} Whether the evidence presented at trial is legally sufficient to sustain a verdict 

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead, 

194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of 

the evidence underlying a criminal conviction, an appellate court examines the evidence in 

order to determine whether such evidence, if believed, would convince the average mind of 

the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No. 

CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after 
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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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. 

{¶ 13} A manifest weight of the evidence challenge, on the other hand, examines the 

"inclination of the greater amount of credible evidence, offered at a trial, to support one side 

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of 

the evidence, the reviewing court must look at the entire record, weigh the evidence and all 

reasonable inferences, consider the credibility of the witnesses, and determine whether in 

resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. 

State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. "While 

appellate review includes the responsibility to consider the credibility of witnesses and weight 

given to the evidence, 'these issues are primarily matters for the trier of fact to decide.'" 

State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State 

v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court, 

therefore, will overturn a conviction due to the manifest weight of the evidence only in 

extraordinary circumstances when the evidence presented at trial weighs heavily in favor of 

acquittal. Id., citing Thompkins, 78 Ohio St.3d at 387. 

{¶ 14} Although the legal concepts of sufficiency of the evidence and weight of the 

evidence are both quantitatively and qualitatively different, "[a] determination that a conviction 

is supported by the manifest weight of the evidence will also be dispositive of the issue of 

sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. 

See also State v. Shindeldecker, 12th Dist. Preble No. CA2015-06-014, 2015-Ohio-264, ¶ 

14. 
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{¶ 15} Appellant contends the state failed to present evidence that she "purposefully 

solicited" Gill to engage in sexual activity. Pursuant to R.C. 2907.241(A)(2), "[n]o person, 

with purpose to solicit another to engage in sexual activity for hire and while in or near a 

public place, shall * * * [e]ngage or attempt to engage another in conversation." The term 

"solicit" has been defined as "to entice, urge, lure, or ask." State v. Swann, 142 Ohio App.3d 

88, 89 (1st Dist.2001); State v. Renner, 12th Dist. Clermont No. CA2010-06-042, 2011-Ohio539, ¶ 10. A person acts "purposefully" when "it is the person's 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 the offender's 

specific intention to engage in conduct of that nature." R.C. 2901.22(A). 

{¶ 16} Purpose or intent may be proven by circumstantial evidence. State v. McGraw, 

12th Dist. Fayette No. CA2009-10-020, 2010-Ohio-3949, ¶ 12. "A conviction based on purely 

circumstantial evidence is no less sound than a conviction based on direct evidence." State 

v. Conley, 12th Dist. Warren No. CA2013-06-055, 2014-Ohio-1699, ¶ 16. As long as the 

evidence would convince the average mind of the defendant's guilt beyond a reasonable 

doubt, circumstantial evidence is sufficient to sustain a conviction. Id., citing State v. 

McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 75. 

{¶ 17} After examining the record, weighing the evidence and reasonable inferences, 

and examining the credibility of Gill's testimony, we find that appellant's conviction for 

loitering to engage in solicitation was not against the manifest weight of the evidence and 

was supported by sufficient evidence. The state presented testimony and evidence from 

which the judge, as the trier of fact, could have found all elements of the offense proven 

beyond a reasonable doubt. 

{¶ 18} Here, the state presented evidence that appellant, a "known prostitute" who 

admitted to having been "busted before," made eye contact with Gill and walked 20 to 30 feet 
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to his passenger door before getting into his vehicle, which was parked on a public street. 

Gill testified he had never met or spoke with appellant prior to her getting into his vehicle. He 

also denied beckoning her over to his vehicle. Once appellant was in the vehicle, appellant 

stated "hell, yeah" she wanted to party and she started giving directions to where they could 

go to "party." She gave these directions after being asked to perform fellatio and after being 

offered $20 for the sex act. Appellant attempted to screen Gill to find out if he was an officer, 

asking multiple times whether Gill was a cop and mentioning a prior "bust." It was only after 

Gill made appellant nervous by repeating her directions that appellant denied she would 

engage in a sex act for money. Appellant told Gill he had "freak[ed] her out" by saying the 

street names they were traveling on as his actions indicated he "could be the police." 

Appellant's need "to be safe" and leave Gill's vehicle happened only after she developed 

fears that Gill was a police officer. 

{¶ 19} The foregoing provided sufficient circumstantial evidence that appellant, with 

the purpose of enticing or luring Gill into sex for hire, approached his vehicle and engaged 

him in conversation. We therefore conclude that the trier of fact did not lose its way or create 

such a manifest miscarriage of justice that appellant's conviction for loitering to engage in 

solicitation must be reversed. As appellant's conviction was not against the manifest weight 

of the evidence, we necessarily conclude that the state presented sufficient evidence to 

support the trial court's finding of guilt. See Jones, 2013-Ohio-150 at ¶ 19. 

{¶ 20} Appellant's first and second assignments of error are, therefore, overruled. 

{¶ 21} Judgment affirmed. 

M. POWELL, P.J., and RINGLAND, J., concur.