IN THE SUPREME COURT OF OHIO ON APPEAL FROM THE COURT OF APPEALS FOR THE SIXTH APPELLATE DISTRICT OF OHIO WOOD COUNTY, OHIO

Transcription

1 , IN THE SUPREME COURT OF OHIO STATE OF OHIO CASE NO. ^... J fs^ ' Plaintiff-Appellee, vs. IC.A. No. WD T.C. No CR 645 KEVIN DONALDSON Defendant-Appellant. ON APPEAL FROM THE COURT OF APPEALS FOR THE SIXTH APPELLATE DISTRICT OF OHIO WOOD COUNTY, OHIO APPELLANT'S MEMORANDUM IN SUPPORT OF SUPREME COURT JURISDICTION JON PAUL RION NICOLE RUTTER-HIRTH of RION, RION & RION, L.P.A., INC. Registration No P.O. Box W. Second St., Suite 2150 Dayton, OH (937) Attorney for Defendant-Appellant PAUL DOBSON WOOD COUNTY PROSECUTORS OFFICE Registration No One Courthouse Square Bowling Green, Ohio (419) Attorney for Plaintiff-Appellee ECLE OVEN OCT CLERK OF COURT REME C0URT OF ( jj y ttf 3 ^ %'f,'s L / - f ^ i t ^^^,:{^ f,^...,

2 TABLE OF CONTENTS CITES PAGES TABLE OF CONTENTS i-ii STATEMENT IN SUPPORT OF JURISDICTION STATEMENT OF THE CASE AND FACTS FIRST PROPOSITION OF LAW A VICTIM IN A CASE CANNOT ALSO BE DESIGNATED AS A CO- CONSPIRATOR, FOR PURPOSES OF ADMITTING THEIR STATEMENTS AGAINST THE DEFENDANT, PURSUANT TO EvID.R.801(D)(2)(e) SECOND PROPOSITION OF LAW A STATEMENT OF A CO-CONSPIRATOR, WHICH DOES NOT CONSTITUTE HEARSAY, CANNOT BE ADMIT'TED UNLESS THE PROPONENT OF THE STATEMENT PROVIDES INDEPENDENT PROOF OF THE CONSPIRACY PRIOR TO INTRODUCTION OF THE STATEMENT There are no recognized exceptions, including harmless error, to the requirement that proof of the conspiracy must be made before the statement can be admitted at trial. CONCLUSION CERTIFICATE OF SERVICE

3 AUTHORITIES CITED Cases (listed alphabetically) In re: -11eagan R Ca1.App.4th 17, 49 Cal.Rptr.2d 325 (1996) Michigan v. Bryant S.Ct.1143, 179L.E.2d 93 (2011) State v. BakeY , 8, Ohio App.3d 629, 739 N.E.2d 819 (12`h Dist. 2000) State v. Braun t' Dist , 2009 Ohio 4875 State v. Carter , 8 72 Ohio St.3d 545, 651 N.E.2d 965 (1995) State v. Hand , Ohio St.3d 378, 2006 Ohio 18 State v. l;ucas , 10, Ohio St.3d 1, 2003 Ohio 4778, 795 N.E.2d 642 State v. Rafferty nd Dist CA 15, 2013 Ohio 1585 Williamson v. United States U.S. 594, 598, 114 S.Ct (1994) Statutes and Other References (listed in order they appear in memorandum) Evid.R.801(C)... 2,7 Evid.R.801(D)(2)(e) , 3, 7, 8, 9, 10 R.C ,7 R.C Evid.R.804(B)(3) Fed.Evid.R.801(d)(2)(E) ii

4 WHY THIS COURT SHOULD ACCEPT JURISDICTION IN TIIIS MATTER The offense at issue here is a felony offense, human trafficking, carrying a mandatory term of imprisonment. This is a newer statute. It is counsel's understanding that there have been only a few convictions in Ohio for this offense and that Kevin Donaldson's conviction was the first. Counsel is aware of one other conviction for the same offense, in the United States District Court, Northern District of Ohio, in T'oledo. While this is compelling in and of itself, the way in which Donaldson was convicted makes this case one of interest for this court's review. The allegation was that Donaldson drove two adult women, Quawana Pirela and Monique Negron, to a hotel in Bowling Green to engage in prostitution. The state charged this as more than compelling prostitution or promoting prostitution, claiming he compelled them (against their will) to engage in sexual activity for hire. This element - compulsion - s the difference between a low to mid-level felony which carries community control and a _elony of the first degree carrying a mandatory prison term of ten to fifteen years. The,tate intended to prove Pirela and Negron were victims, not co-defendants. Neither of the vomen were charged with any offenses because, as law enforcement testified, they were 7ictims. The iiight Donaldson was arrested, the women were provided with dinner and a us ticket home to New York. At trial, they were provided with hotel accommodations by Ze state. They were the victims Donaldson was accused of trafficking. The first compelling reason to accept this case is the state's use of statements etween Donaldson and the victims pursuant to the co-conspirator exception to hearsay.

5 Specifically, the state wanted to introduce statements the victims made at the time of Donaldson's arrest and text messages with Donaldson to show Donaldson compelled the women to engage in prostitution. Hearsay is a statement, other than one made by the declarant while testimony at trial or a hearing, offered in evidence to prove the truth of the matter assei-ted. Evid.R.801(C). A statement is not hearsay if it is offered against a party, by a coconspirator dar-iiig the course of and in furtherance of the conspiracy; so long as there is iridependent proof of the conspiracy offered before admission of the statement. Evid.R.801(D)(2)(e). Conspiracy is defined as the planning or aid in planning of the cornmission of the charged offense or agreement that one or more parties will engage in conduct that facilitates the commission of the charged offense. R.C The existenee of a conspiracy must be established before a trial cotu t admits the statements to prevent admission of otherwise inadmissible hearsay statements. State v. Hand, 107 Ohio St.3d 378, 2006 Ohio 18. "The statements of a co-conspirator is not admissible pursuant to Evid.R.801(D)(2)(e) until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proo " State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965 (1995). Pursuant to State v. Baker, 137 Ohio App.3d 629, 739 N.E.2d 819 (12'h Dist. 2000), to establish proof of the conspiracy, the prosecution must provide proof of the following: 2

6 (1) the existence of the conspiracy; (2) defendant's participation in the conspiracy; (3) declarant's participation in the conspiracy; (4) the statement was made during the course of the conspiracy; (5) the statement was made in furtherance of the conspiracy. At trial, the state presented no evidence of a conspiracy to the court and made no factual arguments about the existence of a conspiracy at all. No witness had testified to establish the conspiracy at that time. There was no evidence that the statements were made during or in fiu-therance of a conspiracy. In fact, no evidence of the conspiracy of any kind was presented when the court pennitted the statements. The court simply concluded a conspiracy existed and allovved the evidence. This was the first error. "I'he second compelling issue surrounding use of these statements is that Pirela and Negron were not co-conspirators but victims. Negron and Pirela were treated like victims from the time of Donaldson's arrest and were provided food and transportation to New York. They were never charged with any offenses. They were provided hotel accommodations for the trial. The state's theory of the case was that Donaldson compelled them to engage in prostitution with physical force and financial incentives. It was improper for the trial court to declare the victims as co-conspirators for purposes of using their statements against Donaldson. As the victim of the offense, their statements are inherently unreliable because their objective is (presumptively) to convict Donaldson. Evid.R.801(D)(2)(e) does not envision use of a victim's statement as an exception to the definition of hearsay. This is contrary to the statute and therefore this court should accept this matter to address this compelling issue.

7 Counsel cannot find one case in Ohio that permits victims' statements to be used as statements by a co-conspirator for purposes of avoiding the hearsay bar. This court has previously addressed the issue of victims being treated as co-conspirators in another context, discussing the significant distinction between the two. See State v. Lucas, 100 Ohio St.3d 1, 2003 Ohio 4778, 795 N.E.2d 642 (this court held that parties protected by a protection order cannot be charged for aiding and abetting the restrained party from violating the order). Donaldson's case present an opportune time for this court to address whether a victim can also be a co-conspirator for purposes of using their statements against the defendant in a criminal conviction by that victim. STATEMENT OF THE CASE AND FACTS Quawana Pirela and Monique Negron were from New York. They frequented A:tm Arbor, Michigan, where they were staying on November 8, On that evening, Pirela called Kevin Donaldson asking for a ride to Bowling Green, Ohio, to meet a friend for dimler (trial, vol. IV, pg ). Donaldson agreed as he had been friends with Pirela for a few years. Donaldson and his cousin picked up the women and dropped them off in a parking lot in Bowling Green, near a restaurant and hotel. He was unaware of their real intentions; to meet a John who responded to their ad on Backpage.com (trial, vol. IV, pg ). Pirela was a prostitute and had been for years, even before meeting Donaldson (trial, vol.1v, pg. 181). Operation Shield was a sting operation to combat prostitution. Det. Schwartz was 4

8 working undercover pursuant to that operation that evening and had arranged to meet Pirela and Negron. Once the women entered the hotel room, they engaged in conversation with the agent, and were arrested shortly thereafter. They were not the focus of investigation, however, as law enforcement immediately arrested Donaldson who had driven away. They focused on charging him. The girls were sent back to New York on the state's dime. Donaldson was charged with human trafficking and promoting prostitution. At trial, the court permitted introduction of statements by Pirela and Negron from the night of Donaldson's arrest and text messages between the women and Donaldson. The first statement was introduced through the testimony of Detective Swartz. The state played a taped phone call between Swartz and "Asia" (Pirela). Det. Swartz also testified as to statements made by the females to him at the time of Donaldson's arrest (trial, vol. III, pg , ). The state also (over objection) sought to introduce statements of Pirela and the other victim, "Hazel" (Monique Negron) (trial, vol. IV, pg. 9-12). The court, without hearing any evidence or proffers, ruled that text messages between Donaldson and the two victims were not hearsay because they were made in furtherance of the conspiracy (trial, vol. IV, pg ). The court admitted it had not viewed any of the statements or evidence at issue when making its decision (trial, vol. IV, pg. 12). The state introduced the text messages (trial, vol. IV, pg. 122). Simultaneously, law enforcement testified that Negron and Pirela were never charged because thev were victims of human trafficlcing 5

9 (trial, vo. IV, pg. 157). Defense counsel renewed his objection to their statements being admitted as statements of co-conspirators, arguing victims are not co-conspirators (trial, vol. IV, pg ). In the appeal, the state conceded that the conspiracy was not established before the evidence was admitted; however that error was harmless (Brief of Appellee, pg. 14). Disregarding this concession, the Sixth District Court of Appeals made a simple, conclusory statement that the state had shown evidence that Donaldson participated in a conspiracy by voluntarily transporting the women to Bowling Green for the purpose of engaging in illegal activity (Decision, pg. 8-9). The appellate court did not provide any factual support for this conclusion, nor cite to any evidence presented to the trial court. The court failed to address the untimeliness of proving the conspiracy and ignored the concession that the proof of the conspiracy occurred after the statements were admitted. The issue of whether the victims could be co-conspirators for purposes of admitting their statements against Donaldson was not thoroughly addressed by the court of appeals. FIRST PROPOSITION OF LAW A VICTIM IN A CASE CANNOT ALSO BE DESIGNATED AS A CO- CONSPIRATOR, FOR PURPOSES OF ADMITTING THEIR STATEMENTS AGAINST THE DEFENDANT, PURSUANT TO EVID.R.801(D)(2)(e) It was charged that Donaldson compelled two victims, Pirela and Negron, to engage in sexual activity for hire. Prior to trial, the state indicated it would prove the element of compulsion by introducing text messages between Donaldson and Pirela, and 6

10 statements made by Pirela and Negron to law enforcement the night of Donaldson's arrest. Defense counsel objected on the basis that the statements were hearsay. Neither Negron or Pirela were likely to testify. Without hearing any evidence or viewing the evidence the state sought to introduce, the court made a finding that they were co-conspirators and allowed the statements. First, Donaldson is charged with human trafficking. This prohibits compelling another from engaging in involuntary servitude or sexual activity for hire. R.C His conviction was contingent upon the state proving he compelled Negron and Pirela to engage in the sexual activity. The only evidence of this was from statements of Pirela and Negron made to law enforcement at the time of Donaldson's arrest and in text messages to him. Defense counsel argued those statements were hearsay; the judge held they were not. Hearsay is a statement, other than one made by the declarant while testimony at trial or a hearing, offered in evidence to prove the truth of the matter asserted. Evid.R (C). Hearsay is not admissible absent specific statutory exceptions. Id. A ;tatement is not hearsay if it is offered against a party, by a con-conspirator during the ourse of and in furtherance of the conspiracy, so long as there is independent proof of the onspiracy offered before admission of the statement. Evid.R.801(D)(2)(e). Conspiracy is lefined as the planning or aid in planning of the commission of the charged offense or greement that one or more parties will engage in conduct that facilitates the commission,f the charged offense. R.C The existence of a conspiracy must be established before a trial court adrnits the 7

11 statements to prevent admission of otherwise inadmissible hearsay statements. State v. Hand, 107 Ohio St.3d 378, 2006 Ohio 18. "The statements of a co-conspirator is not admissible pursuant to Evid.R (D)(2)(e) until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proof." State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965 (1995). To establish proof of the conspiracy, the prosecution must provide proof (1) of the existence of the conspiracy; (2) defendant's participation in the conspiracy; (3) declarant's participation in the conspiracy; (4) the statement was made during the course of the conspiracy; (5) the statement was made in furtherance of tlie conspiracy. State v. Baker, 137 Ohio App.3d 629, 739 N.E.2d 819 (12th Dist. 2000). Donaldson argues the victim of a criminal offense cannot also be a co-conspirator for purposes of admitting their statements against the defendant at trial. These two positions are inconsistent; to be a co-conspirator is directly contray to being a victim. Therefore the safeguards which may render a co-conspirators statements reliable (as anticipated by the legislature when drafting Evid.R.801(D)(2)(e)) are absent if the statement comes from a victim instead. The hearsay rule is premised on the theory that out-of-court staternents are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might had faulty memory; his words might be misunderstood or taken out of context by the listener. And the ways in which these dangers are minimized for in-court statements - the oath, the witness' awareness of the gravity of the proceedings, the jury's ability to observe the witness' demeanor, and, most importantly, the right of the opponent to cross-examine - are generally absent for things said out of court. 8

12 Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct (1994). Because of the inherent unreliability of hearsay statements, there are very specific, limited, exceptions to the definition of hearsay. The exception here - statements of a coconspirator - has a fairly limited scope. As cited above, there are several requirements that must be met before a statement of a co-conspirator can be admitted, as follows: proof of the existence of the conspiracy (Baker, supra).; defendant's participation in the conspiracy (Id); declarant's participation in the conspiracy (Id); the statement was made during the course of the conspiracy (Id); the statement was made in furtherance of the conspiracy (Id); there must be independent evidence of the conspiracy beyond the statements at issue (Evid.R.801(D)(2)(e)); the statement cannot merely describe the conspiracy or events that occurred (State v. Braun, 8t' Dist , 2009 Ohio 4875, and State v. Rafferty, 2IId Dist CA 15, 2013 Ohio 1585); the statement must be made before the conspiracy ended or to conceal it (Rafferty, supra); these requirements must be proven before the statement can be admitted (Evid.R.801(D)(2)(e)). The issue here is whether Pirela and Negron were co-conspirators. Beginning at the time of the arrest, they were treated as victims. They were given food, shelter and transportation. They were never charged with any offenses. Law enforcement testified at trial that they were the victims of human trafficking for which Donaldson was charged. It is inconsistent for the state to identify them as victims for purposes of charging Donaldson with human trafficking and then argue at trial that they were co-conspirators to allow for their statements to be used against Donaldson. Further, the protections afforded by the co-conspirator exception to the definition 9

13 of hearsay are not satisfied here because the statements were made between the defendant and the victims. The reason statements of co-conspirators are admissible pursuant to Evid.R.801(D)(2)(e) is because statements amongst co-conspirators are, by their nature, made for a purpose other than use at trial. See Michigan v. Bryant, 131 S.Ct.1143, 179L.E.2d 93 (2011). Similar to the exception permitting statements against one's interest, Evid.R.804(B)(3), the statements have reliability because they are detrimental to the person making it and made for another purpose, to further the conspiracy. However, because the statements were between Donaldson and the named victims, the statements are not reliable. The victims made statements which inculpated Donaldson. It goes without saying that a defendant and a victim have two very different interests. The trial court erred in failing to consider this, despite counsel's numerous objections on this basis. Undersigned counsel has researched this particular issue diligently and cannot locate a case where this specific issue is addressed. It is for this reason that counsel urges this court to address whether a victim can also be identified as a co-conspirator for purposes of introducing their statements at trial against a defendant. Finally, this court has addressed the issue of whether victims should be coconspirators in another context. In State v. Lucas, 100 Ohio St.3d 1, 2003 Ohio 4778, 795 N.E.2d 642, this court held a party protected by a protection order cannot be charged with complicity for aiding or abetting the prohibited party from violating the order, The rationale was simple, and applies here: "when the Legislature has imposed criminal penalties to protect a specific class of individuals, `it can hardly have meant that a member 10

14 of that very class should be punishable either as an aider or abettor or as a coconspirator."' Lucas citing In re: Meagan R., 42 Cal.App.4th 17, 49 Cal.Rptr.2d 325 (1996). Applying this principle here, to allow victims to be classified as co-conspirators in Donaldson's case invites the same in all criminal cases. To state this delicately, many victims hold some level of accountability or responsibility in criminal offenses. Counsel wonders how courts will be able to determine what victims could also be construed as coconspirators, and if a victim holds some level of culpability, does that affect what statements can be used against the defendant, or is it limited just to statements that show the victim's complicity to the offense? This opens a floodgate of litigation that will require trial and appellate courts to determine whether a victim is actually that, and determine the victim's culpability level. Certainly that is not what prosecutors all over Ohio want litigated before and during trial; the level of culpability their victim had in the offense. This case present an opportune time for this court to address whether a victim can also be a co-conspirator for purposes of using their statements against the defendant in a criminal conviction by that victiin. 11

15 SECOND PROPOSITION OF LAW A STATEMENT OF A CO-CONSPIRATOR, WHICH DOES NOT CONSTITUTE HEARSAY, CANNOT BE ADMITTED UNLESS THE PROPONENT OF THE STATEMENT PROVIDES INDEPENDENT PROOF OF THE CONSPIRACY PRIOR TO INTRODUCTION OF THE STATElo'IENT There are no recognized exceptions, including harmless error, to the requirement that proof of the conspiracy must be made before the statement can be admitted at trial. As previously stated, the trial court allowed several of the victim's statements to be presented through testimony of law enforcement. The court held: "under various grounds, at this juncture, I would deny the objection under hearsay, obviously subject to renewal depending on how the testimony comes forth at this point" (trial, vol. III, pg. 187). Det. Swartz then proceeded to testify as to statements made by the females at the time of Donaldson's arrest and played a tape of the discussions (trial, vol. III, pg , ). The following day, the court permitted introduction of text messages between Donaldson and the two victims, saying they were not hearsay because they were made in furtherance of the conspiracy (trial, vol. IV, pg ). The court admitted it had not viewed any of the statements or evidence at issue when making its decision (trial, vol. IV, pg. 12). In the appeal, the state conceded that the conspiracy was not established before the evidence was admitted; however that error was harmless (Brief of Appellee, pg. 14). Disregarding this concession, the Sixth District Court of Appeals made a simple, 12

16 conclusory statement that the state had shown evidence that Donaldson participated in a conspiracy by voluntarily transporting the women to Bowling Green for the purpose of engaging in illegal activity (Decision, pg. 8-9). The appellate court did not provide any factual support for this conclusion, nor cite to any eviden.ce presented to the trial court. The court failed to address the untimeliness of proving the conspiracy and ignored the concession that the proof of the conspiracy occurred after the statements were admitted. The legislature in Ohio mandated that proof of the conspiracy must be made before the statement is admitted. Ohio also requires independent evidence of the conspiracy beyond the statements sought to be introduced. This differs from the federal standard, wherein independent proof of the conspiracy is implicit but not expressly mandated. See Fed.Evid.R.801(d)(2)(E). There were significant errors here requiring this court's review. The evidence of the conspiracy was limited to the statements themselves and thus there was no independent evidence. Also, the state did not present any evidence of the conspiracy prior to the statements being admitted. Still further, the court made a finding that a conspiracy existed without any factual support. Finally, there was no evidence that the statements were made in furtherance of the conspiracy or during the conspiracy. In fact, there was no evidence presented at all. The court even admitted it had not viewed the statements and felt it may be improper to do so. The state conceded these issues, but argued the errors were harmless. The Sixth District did not explicitly address these errors and simply concluded a 13

17 conspiracy existed. Donaldson contends these statements constituted the only evidence of compulsion, and absent the statements, he could not be convicted of this offense. To allow these statements in to a trial, without a prima facie showing of the existence of a conspiracy, creates a significant risk. The most obvious issue would arise if the proponent of the statement is unable to prove the existence of a conspiracy and the jury has been exposed to the evidence. As in this case, the error was not harmless. The state used the statements themselves to prove a conspiracy, and provided no evidence of it prior to admitting the statements. This was the only evidence Donaldson compelled the women, which ultimately lead to his conviction. For these reasons, this court must accept jurisdiction of this matter. CONCLUSION For the reasons argued above in three propositions of law, Donaldson urges this court to accept jurisdiction of this matter. Respectfully Submitted, ' z t JonaPait `on ) Nicoie,R tter-hirth (# ) RION, ON & RION, LPA, Inc. 14

18 CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that a copy of the foregoing was forwarded to the office of Attorney for Appellee, via regular mail, on the same day as filing. Nk\olt Rutter-Hirth (# ) RION,',RION & RION, LPA, Inc. 15

19 IN THE COURT OF APPEALS OF OHIO SIXT'H APPELLATE DISTRICT WOOD COUNTY State of Ohio Appellee Court of Appeals No. WD Trial Court No. 2012CR0645 V. Kevin J. Donaldson Appellant DECISION AND JUDGMENT Decided: August 22, 2014 Paul Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers, and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee. Mollie B. Hojnicki, for appellant. SINGER, J. { 1} Appellant, Kevin Donaldson, appeals his conviction in the Wood County Court of Common Pleas, on two counts of trafficking in persons and two counts of 1.

20 promoting prostitution. All counts carried specifications. For the reasons that follow, we affirm. { 2} A jury trial commenced on April 22, Detective Peter Swartz of the Toledo Police Department, testified that he is currently assigned to the Northwest Ohio Violent Crimes Against Children Task Force. As part of his job duties, he participates in undercover investigations of prostitution. That is what he was doing on November 8, 2011, when he contacted two young women who had advertised services under the "escort" section of a website known as Backpage.com. {l[ 3} Detective Swartz testified that the task force obtained four rooms in a local Bowling Green, Ohio hotel. One room was for Swartz, one room was for a female undercover officer, one room was for technical equipment and one room was for arrests and interviews. Swartz called a woman named "Asia" from the advertisement and asked her how much it would be for her and her friend "Hazel" to come to his hotel room for sex. Asia told him it would be $300 for the both of them. Swartz agreed to the price and Asia told him they were on their way. When they arrived at the hotel, Asia told Swartz to put the $300 on the bed. The women began to take their clothes off when Swartz signaled his fellow officers to enter the room and detain them. {T 4} Wood County sheriff's detective Christopher Klewer testified that on November 8, he also participated in the undercover investigation. Specifically, he was stationed outside of the hotel in an unmarked vehicle. The officers inside the hotel 2.

21 advised him to watch for two young women. Soon, he watched as two young women walked across the parking lot and entered the hotel. He testified that from his experience in working on many undercover prostitution stings, the prostitutes are usually dropped off by someone else. He then turned his attention to the area around him hoping to find a suspicious car. In a nearby parking lot, he noticed a Volkswagen with Michigan plates. He testified that the car caught his attention because it was the only occupied car in the lot that appeared to have a direct view to the hotel. He testified that he watched the car for approximately ten minutes before he was notified that the women had been detained. At that point, the Volkswagen. exited the parking lot and Klewer began to follow it. When the Volkswagen driver failed to signal for a left turn, Klewer notified a nearby marked sheriff's car of the violation. The marked car pulled the Volkswagen over and Klewer followed behind. { 5} Klewer testified that he initially approached the passenger side of the vehicle where he smelled a distinct odor of marijuana, and noticed that the passenger was covered in green, vegetative material. He also had a bag of marijuana in his pocket. Both occupants were arrested. The driver was identified as appellant. Klewer testified that he read appellant his Miranda rights and then asked him about the women. Appellant told him that he and the women were from New York and that the women had paid him $50 to bring them to the hotel. He told Klewer he did not know why the women wanted to go to the hotel. 3.

22 {^ 6} On November 21, 2012, appellant was indicted on two counts of trafficking in persons, violations of R.C (A) and first degree felonies and, two counts of promoting prostitution., violations of R.C (A)(3) and felonies of the fourth degree. A jury found him guilty on all counts. He was sentenced to 12 years in prison. He now appeals setting forth the following assignments of error: 1. The trial court erred when it admitted impermissible expert testimony. II. The trial court erred when it admitted liearsay and other improper evidence over objection. III. 'I'he state committed prosecutorial misconduct by refusing to grant immunity to its own witness for the purpose of preventing the jury from hearing exculpatory evidence and denying appellant his right to confront witnesses. IV. The trial court abused its discretion when it allowed the state to present extrinsic evidence of a prior inconsistent statement in violation of Evid.R { 7} In his first assignment of error, appellant contends that the court erred in admitting the testimony of Michigan State Police Detective Edward Price as an expert in the subculture of sex trafficking. 4.

23 { 8} Evid.R. 702, which governs expert testimony, states: A witness may testify as an expert if all of the following apply: (A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; (C) The witness' testimony is based on. reliable scientific, technical, or other specialized information. * * * { 9} "Pursuant to Evid.R. 104(A), the trial court determines whether an individual qualifies as an expert, and that determination will be overturned only for an abuse of discretion." State v. Baston, 85 Ohio St.3d 418, 423, 709 N.E.2d 128 (1999). An abuse of discretion connotes that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {J(10} Detective Price, a 17-year veteran of the Michigan State Police, testified that he is currently assigned to the Southeast Michigan Crimes Against Children Task Force where he investigates sex trafficking and missing children cases. In particular, he has been working on sex trafficking cases since Since that time, he estimated that 5.

24 he has worked on hundreds of those cases and he has trained other officers to work on those cases. He stated that he has previously testified in other courts regarding the subculture of sex trafficking. At that point, the state asked the court to qualify Price as expert in sex trafficking pursuant to Evid.R. 702(A) and defense counsel objected. {^ ll} Out of the hearing of the jury, the state explained to the court that Price's testimony would touch on his personal experience with sex trafficking which is beyond the knowledge or experience possessed by lay persons. Because of his experience, the state argued, he is well versed in matters such as the types of sex trafficking, the relationship between the traffickers and their victims, recruitment methods and the psychological effects oftrafficking on the victims. DcfeiisC cowl,eliook e^ccptioizto Pricc`testi'tyint^, tibiiut th^. 1^5^cliblobic<31 effccts oftrat:ticl.in<7 as he is ncitlicr a psycliolorist rnor ^l ps; chiati-ist. Nctiiig thit tlic ritle does not t-e,q(iii-e PriLC to be ^I 11syc11olc+(ist 01-P,A_ClIiatriSt. tile coiit t^^vacit«ic.d dcfetl^,c CoLirisel's, oiijcction tuld found tnit hi.; testimonn would he ofvaluable assirt^ince to tlie j^u-ti in i^lterprclin^ thc eviclencc. { 121 "Courts should favor the admissibility of expert testimony whenever it is relevant and the criteria of Evid.R. 702 are met." State v. Neiraeth, 82 Ohio St.3d 202, 207, 694 N.E.2d 1332 (1998). Based on Price's unique experience and first-hand knowledge of a world few people are ever exposed. to, we find that the court,aidi-jot ahll Se ias di5creiion in allowing Price to testify as an expert in sex trafficking. Appellant's first assigmnent of error is found not well-taken. 6.

25 { 13} In his second assignment of error, appellant contends that the court erred by admitting certain evidence. First, appellant points to the admission of state's exhibit No. 32, a recording of the telephone call Detective Swartz made to "Asia." Appellant also alleges that the court erred in admitting copies of text messages between the women. Appellant claims the recording and the transcripts of the text messages amount to inadmissible hearsay. The state maintains that the recording and the transcripts were admissible pursuant to Evid.R. 801(D)(2). { 14} "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). A trial court possesses broad discretion with respect to the admission of evidence, including the discretion to determine whether evidence constitutes hearsay and whether it is admissible hearsay. State v. Graves, 9th Dist. Lorain No. 08CA009397, 2009-Ohio-1133, 4. { 15} Under Evid.R. 801 (D)(2)(e), certain statements are not "hearsay." The rule states, in pertinent part: A statement is not hearsay if; ***[t]he statement is offered against a party and is * * * a statemen.t by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy. 7.

26 { 16} The existe.nee of a conspiracy nli_lst be established beforc a trial court may admit what otherwise may eoristitute inadmissible: hearsa} statemeiits,.state v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ^ 100. "[T]he statement of a coconspirator is not admissible pursuant to Evid.R. 801(D)(2)(e) until the proponent of the statement has made a prima facie showing of the existence of the conspiracy by independent proof." State v. Carter, 72 Ohio St.3d 545, 550, 651N.E.2d 965 (1995). To establish independent proof: a conspiracy, the prosecution must provide proof: "(1) of the existence of a conspiracy; (2) of the defendant's participation in the conspirae_y; (3) of the declarant's participation in the conspiracn;(4) that the statement was made during the course of the conspiracy; and (5) that the statement was made in furtherance of the conspiracy." (Citation omitted:) State v. Baker, 137 Ohio App.3d 628, 653, 739 N.E.2d 819 (12th Dist.2000).' A prima facie case is made where the evidence introduced is sufficient to support, but not compel, a particular conclusion, and which only furnishes evidence that the jury may consider and weigh, but need not accept. State v. Braun, 8th Dist. Cuyahoga No , 2009-Ohio-4875, 107. (Additional citations omitted.). { 17} Conspiracy has been defined as the planning or aid in planning the commission of the charged offense or agreement that one of more of parties will engage in conduct that facilitates the commission of the charged offense. R.C { 18} Before the admission of the disputed evidence, the state had shown evidence that appellant participated in a conspiracy by voluntarily transporting the 8.

27 women to Bowling Green for the sole purpose of engaging in illegal activity. We find this to be a sufficient prima facie case for pluposes of Evid. R. 801(D)(2)(e). {' 19} Next, appellant contends that the court erred in admitting the testimony of FBI agent James Hardy. Appellant contends that he impermissibly expressed his opinion on the veracity of Quawana Pirela, otherwise known as "Asia." { 20} Hardy testified that on November 8, 2011, he was the coordinator of the investigation that ultimately led to appellant's arrest. After the women were detained by law enforcement in the hotel room, Hardy interviewed both of them separately. He testified that they appeared frightened and upset. {i[ 21} Qu^it\ dnlifircl^i took ih: staniti for 1.hc dc('ense anc1 ti--slitic.d that appel lant il,ld ncver c.c:>il) pclleci l-lcr to erli» }irostittrtioii. The. state tlicn called Hardy back to the stand. He testified that her testimony was inconsistent with the information she gave him when he initially interviewed her. When asked, based on his vast experience investigating prostitution rings, his opinion of Pirela's demeanor while on the stand, he replied: She appeared to me to be extremely fearful. It was very, very difficult for her to make eye contact with her pimp. And it appeared it was very difficult, even though she said things that contradicted her statement, to me it appeared very difficult for her to even come into court and be in close proximity to her pimp. 9.

28 { 22} "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). Although opinion testimony regarding the truthfulness of a witness is inadmissible, a witness may give "testimony in the form of opinions or inferences * * * which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Evid.R "Testimony in the form of an opinion or inference otherwise admissible is n.ot objectionable solely because it embraces an ultimate issue to be decided by the trier of fact." Evid.R { 23} Like Detective Price discussed above, Agent Hardy was also qualified by the court as an expert witness in the field of sex trafficking. Thus, \\c find his testinioiiy> witll 1c(T,-rcls to I'irela's cicn^ga ^c^r idi^>>tisibl^. MorcovUi^ ^ttti testinroliy ti^as rele\raw tliat lie c,flcrt:cl e0tierlcc, oi l'ii-c;l i's Mconsistent statc.nieiits Appellant's second assignment of error is found not well-taken. { 24} In his third assignment of error, appellant contends that the state committed prosecutorial misconduct in refusing to grant Pirela and her friend "Hazel" immunity from prosecution. When both women were called to the stand by the state, they invoked their Fifth Amendment rights against self-incrimination. Pirela later testified for the defense. 10.

29 { 25} Initially, we note that it is within the trial court's discretion to grant immunity. State ex rel. Leis v. Outcalt, 1 Ohio St.3d 147, 438 N.E.2d 443 (1982). R.C provides in pertinent part: In any criminal proceeding in this state or in any criminal or civil proceeding brought pursuant to Chapter 2981 of the Revised Code, if a witness refuses to answer or produce information on the basis of the witness's privilege against self-incrimination, the court of common pleas of the county in which the proceeding is being held, unless it finds that to do so would not further the administration of justice, shall compel the witness to answer or produce the information, if both of the following apply: (1) The prosecuting attorney of the county in which the proceedings are being held makes a written request to the court of common pleas to order the witness to answer or produce the information, notwithstanding the witness's claim of privilege; (2) The court of common pleas informs the witness that by answering, or producing the information the witness will receive immunity under division (B) of this section. { 26} Prosecutorial misconduct has been defined as "conduct [which] deprives the defendant of a fair trial." State v..[vauy er, 15 Ohio St.3d 239, 266, 473 N.E.2d 768 (1984). 11.

30 { 27} The record shows that the state, in fact, made significant efforts to obtain the cooperation of the women to explore the possibility of immunity to no avail. The court noted their use of the subpoena process and their offers to provide transportation, food and lodging. When defense counsel suggested that the state conveniently created a situation where the women could be deemed unavailable as witnesses for evidentiary purposes, the court stated: "[1] t[ii iih tlie recortl«-ii1 supp^,rt tliat the sttite hms donc evenlhiiig in its hoi^er :':: ` tl^^cou^^h rr1i(ch lna4hii)<^ of teeth ^etlin<.^ a resoltition c,e tli^iiinmnitv sit(zatioti." Filiclin- no eontiucton thc lxart o.'ihe state ^\,Iiic:h del)rii7ed a1?pcll int of Li lait tcial, appellant's third ;ls^,il;niiicnt of cffor is founci not ^^^ll t al:cn. {^ 28} In his fourth assignment of error, appellant contends that the court erred in allowing the state to admit state's exhibit No. 35, a recording of Agent Hardy's interview of Pirela on November 8, which was inconsistent with her in court testimony. Evid.R. 613 provides: Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply: (1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require; 12.

31 (2) The subject matter of the statement is one of the following: (a) A fact that is of consequence to the determination of the action other than the credibility of a witness; (b) A fact that may be shown by extrinsic evidence under Evid.R. 608(A), 609, 616(A), or 616(B); (c) A fact that may be showi7 by extrinsic evidence under the common law of impeachment if not in conflict with the Rules of Evidence. { 29} We find no abuse of discretion in the court's admission of state's exhibit No. 35. In the interview, Pirela discusses her life as a prostitute and the fact that all of the money she earns must be given to appellant. 'fhis isclcarly iiieoilsistent \N-ith her testimonv ori thc, s(al7c1 ;^hete s1ie fti-^js thol'oti`^i;1-;' eross-e^amiriecl. 1%lorem^cr, the jur^ ^^ ^sg,iven a l'umttinginstrt_iction infioruiinl thcm tl-lat tl)e ent ider]ce tivas only to be considetecl for impcsich^^^^^nt puiposes. Appellant's fourth assignment of error is found not well-taken. { 30} The judgment of the Wood County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is hereby ordered to pay the costs incurred on appeal. Judgment affirmed. 13.

32 State of Ohio v. Kevin J. Donaldson WD A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Mark L. Pietrykowski, J. Arlene Singer, J. JUDGE Thomas J. Osowik. J. JUDGE CONCUR. JIJDGE This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: 14.