Dickerson v. City of Richmond

• Decision Date: 01 July 1986
• Docket Number: No. 0051-84,0051-84
• Citation: 346 S.E.2d 333,2 Va.App. 473
• Parties: Clarence DICKERSON, v. CITY OF RICHMOND. Record
• Court: Virginia Court of Appeals

Page 333

346 S.E.2d 333

2 Va.App. 473

Clarence DICKERSON, v.CITY OF RICHMOND.

Record No. 0051-84.

Court of Appeals of Virginia.

July 1, 1986.

C. David Whaley(Morchower, Luxton & Whaley, Richmond, on brief), for appellant.

James C. Roberts(Gary J. Spahn, Drew St. J. Carneal, Acting City Atty., Michael L. Sarahan, Asst. City Atty., Warren B. Von Schuch, Asst. Com. Atty., Mays, Valentine, Davenport & Moore, Richmond, on brief), for appellee.

Present: BARROW, BENTON and KEENAN, JJ.

BENTON, Judge.

Clarence Dickerson was arrested on a warrant charging him with "loitering for the purpose of soliciting or engaging in prostitution or other lewd, lascivious or indecent act," a misdemeanor under the Richmond City Code.¹He was tried by a jury found guilty of "loitering for the purpose of prostitution," and sentenced to twelve months in jail.Dickerson contends on appeal that the ordinance violates several provisions of the state and federal constitutions.He also challenges the sufficiency of the evidence and contends that the court erred in denying his motion for a mistrial on the basis of comments in the Commonwealth's opening statement.We conclude that the evidence is insufficient to sustain the conviction, and reverse.

Detectives Steve Dalton and Richard Palmer, assigned to the Morals Squad of the Richmond Bureau of Police, Vice Division, were sitting in a parked car at Madison and Broad Streets on July 18, 1984, at 1:10 a.m., when they first observed Dickerson, dressed in blue jeans and a shirt tied above his navel, and carrying a tan purse.Dickerson occasionally stood with one foot on the curb and the other foot in the street and waved at passing vehicles with male occupants.Detectives Dalton and Palmer each testified to Dickerson's actions with respect to three vehicles; Dalton gave the license numbers for two of the three vehicles.

The detectives saw Dickerson wave at a vehicle on Broad Street.The vehicle circled the block and parked on the north side of Broad Street.Dickerson walked from the southeast corner of Broad and Madison Streets to the vehicle, entered it, and talked to the driver for approximately three minutes.Dickerson then left the vehicle and returned to the southeast corner of Broad and Madison Streets.

From this position Dickerson watched traffic on Broad Street and peered around the corner down Madison Street toward Grace Street.At 1:15 a.m., Dickerson approached a white Vega stopped in the 200 block of Madison Street.Leaning into the passenger side, Dickerson talked to the driver for approximately one minute.He then walked to the corner of Madison and Grace Streets, where he"just leaned on the light pole."

At 1:27 a.m., an unmarked police vehicle carrying uniformed officers drove up Madison Street.Detectives Dalton and Palmer saw Dickerson walk away and go behind a building on the northwest corner of Madison and Grace Streets.He remained there, "peering around," until the unmarked police vehicle passed.

At 1:30 a.m., Dickerson approached a Ford Fairmount which had stopped on Madison Street, and talked to the Ford's male driver from the driver's side for one or two minutes.Dickerson then returned to the corner of Madison and Grace Streets.

Detectives Dalton and Palmer asked a uniformed officer to detain Dickerson until they could leave their observation point.Detective Dalton approached Dickerson, identified himself, and asked how long Dickerson had been on the corner.Dickerson replied that he had been there a half hour.Detective Dalton asked what he had been doing on the corner.Dickerson said that he was just resting.Detective Dalton asked what he had been doing on the corner of Broad and Madison Streets.Dickerson said that he had been doing "nothing."He also told the detectives that he was not employed.The detectives then arrested Dickerson for "soliciting for the purpose of prostitution."

Because we conclude that the evidence in this case was insufficient to sustain the conviction, we decline to address Dickerson's challenges to the constitutionality of the ordinance.

One of the most firmly established doctrines in the field of constitutional law is that a court will pass upon the constitutionality of a statute only when it is necessary to the determination of the merits of the case.

Bissell v. Commonwealth, 199 Va. 397, 400, 100 S.E.2d 1, 3(1957)(citations omitted).See alsoJones and Hall v. Commonwealth, 210 Va. 299, 303, 170 S.E.2d 779, 782(1969);Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253(1969).

The offense for which the defendant was convicted contains two elements:

--to loiter, lurk, remain, or wander about in a public place, or in any place within view of the public or open to the public;

--[for] the purpose of engaging in prostitution, or of patronizing a prostitute, or of soliciting for or engaging in any other act which is lewd, lascivious or indecent.²

To obtain a conviction under the ordinance the City must prove beyond a reasonable doubt both the act and mental state.Sufficient proof of one element, but not the other, will result in reversal.Papachristou v. City of Jacksonville, 405 U.S. 156, 163, 92 S.Ct. 839, 843, 31 L.Ed.2d 110(1972);McKeon v. Commonwealth, 211 Va. 24, 26-27, 175 S.E.2d 282, 284(1970).

Dickerson and the City concur that the mental state element of the ordinance requires proof of specific intent.We agree.SeeMaye v. Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351(1972).We also note that this conclusion is consistent with several decisions which have discussed enactments similar to the Richmond ordinance.SeeShort v. City of Birmingham, 393 So.2d 518, 521(Ala.Crim.App.1981);City of South Bend v. Bowman, --- Ind.App. ---, 434 N.E.2d 104, 106-07(1982);State v. Evans, 73 N.C.App. 214, 326 S.E.2d 303, 307(1985);In the matter of D, 27 Or.App. 861, 557 P.2d 687, 690(1976), appeal dismissed sub nom.D. v. Juvenile Department of Multnomah County, 434 U.S. 914, 98 S.Ct. 385, 54 L.Ed.2d 271(1977).

In most cases, of course, the City must satisfy its burden of proving specific intent by circumstantial evidence.Whitley v. Commonwealth, 223 Va. 66, 73, 286 S.E.2d 162, 166, cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148(1982);Banovitch v. Commonwealth, 196 Va. 210, 216, 83 S.E.2d 369, 373(1954).Under familiar principles, such proof is insufficient if it creates merely a suspicion of guilt; the City's evidence must be consistent with guilt and exclude every reasonable hypothesis that the accused is innocent of the charged offense.Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29(1963).

With these principles in mind, we turn to the circumstances of this case.Overruling a motion to set aside the verdict, the trial court summarized the City's evidence in this fashion:

This happened with three cars, [waving] at other cars.It's late at night, quarter after one, quarter til two....His only explanation was he was resting.He was standing.He did hide when the police came.My recollection is two uniformed officers came up in an unmarked car, and he went into the shadows and waited until they left, and then came back out.And, I think the strange thing about these cases is the appearance of the defendant, leads to what common sense tells you, that people that are soliciting for the purpose of this would dress differently than normal people....I believe there was a conclusion he was dressed like a female, although the officer said he had on a blouse tied in a knot and his [navel] was exposed, and he had a pocketbook, which I think would be a consideration that the jury could consider....It is a far cry from people just standing on the corner being arrested.And, really, [at] that hour of the night has a whole lot to do with it.And, it might have been an entirely different situation maybe if this was three o'clock in the afternoon.It is not likely that you would have three friends that would come by at one fifteen in the morning, quarter til two.

The court's summary accurately represents the totality of the City's evidence.On appeal, we view the evidence in a light most favorable to the City, granting all reasonable inferences that can be drawn from the evidence.Gooden v. Commonwealth, 226 Va. 565, 571-72, 311 S.E.2d 780, 784(1984);Evans v. Commonwealth, 215 Va. 609, 612, 212 S.E.2d 268, 271(1975).

As the trial court's summary indicates, the jury was presented with proof of several circumstances which were consistent with a suspicion of guilt, including the time of the alleged offense, Dickerson's mode of attire, his ostensibly exclusive interest in vehicles with male occupants and the fact that he withdrew from his street-corner position when the unmarked police vehicle approached.In addition, the City proved that Dickerson more than once waved at motor vehicle operators, a circumstance...