Dinkins v. United States, 7303.

• Decision Date: 10 May 1977
• Docket Number: No. 7303.,7303.
• Parties: Diane DINKINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

374 A.2d 292

Diane DINKINS, Appellant, v. UNITED STATES, Appellee.

No. 7303.

District of Columbia Court of Appeals.

Argued En Banc May 10, 1976.

Decided May 10, 1977.

Rehearing En Banc Denied September 13, 1977.

COPYRIGHT MATERIAL OMITTED

Marvin M. Waldman, Chevy Chase, Md., appointed by this court, for appellant.

Stephen R. Spivack, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson, and Nicholas Gilman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, FICKLING,^* KERN, GALLAGHER, NEBEKER, YEAGLEY, HARRIS and MACK, Associate Judges, REILLY, Chief Judge, Retired, and PAIR, Associate Judge, Retired.

NEBEKER, Associate Judge:

This is an appeal from a conviction under D.C.Code 1973, § 22-2701, for what popularly but inaccurately has been called soliciting for prostitution. The case was originally submitted without oral argument to a division consisting of Judges Fickling, Mack and Pair (retired). In the usual course, and according to our intracourt practice, a proposed opinion of the court, authored by Judge Fickling, was circulated to the nondivision judges. Judge Pair circulated a dissent. The division majority proposed to reverse for lack of evidence on a rationale to be discussed herein. A majority of the judges in regular active service sua sponte withheld release and publication of the proposed opinion and set the case for en banc consideration.¹ We affirm the conviction, and, in doing so, reject the notion that the statute is so drafted as to make critical the questions of who makes the first contact or overture (visual or verbal) and who first broaches the subject of money or gain for such services. No issue of entrapment is raised and therefore our holding is confined to evidentiary sufficiency²

The facts of this case are not atypical although our dissenting colleagues strain to view them as such. A covert policeman, in his private car, was cruising the area where Dinkins was standing on the sidewalk. He slowed down, said "Hi", and waved to her. She had been standing there "for a long time" — the officer had driven "around the corner a couple of times." She was dressed in a red sweater, a blue miniskirt, and corduroy knee-length boots. She came over to the car and, as she put her head through the open window, the officer said, "What are you doin[g]?" She replied, "What do you want to do?" When he inquired, "What do you do?", she responded, "Anything you want". He then inquired as to her cost and she responded, "Ten and three" — meaning ten dollars for herself and three dollars for the room. He asked where they would go and she said, "Right down the street." There were tourist homes in the area. The officer got out of the car and said, "Well, look . . . [w]hat do I get for my money?" She repeated, "Anything you want". When asked what she did, she said, "Well, you know, what is it that I don't do?" He responded, "Well, you know, a lot of girls have certain hangups about certain things, right?" She responded, "Well, I don't have any hangups." She then stated she would "french, fuck, anything you want." They got into the car and he drove off after signaling his nearby partner to close in for an arrest which promptly occurred.

The gravamen of appellant's contention is that "no solicitation [was] made for prostitution since Miss Dinkins' conduct was responsive [to the officer] rather than [initiatory]", and that in any event the element of money or gains fails of proof since the officer mentioned that subject first. The proposed division opinion agreed with her.

We begin our analysis by application of the most fundamental of axioms. We look to what the statute says.³ D.C.Code 1973, § 22-2701, provides:

It shall not be lawful for any person to invite, entice, persuade, or to address for the purpose of inviting, enticing, or persuading, any person or persons sixteen years of age or over in the District of Columbia, for the purpose of prostitution, or any other immoral or lewd purpose, under a penalty of not more than $250 or imprisonment for not more than ninety days, or both.

It should be noted at the outset that neither the word "solicit" nor the word "solicitation" is used in the statute. This omission becomes crucial in view of appellant's and the dissent's extensive reliance on the word in stating their major premise that an initial or active effort to prevail upon a person is required to constitute an offense under the statute. Whatever may be the merits of an argument that a solicitation requires such an initial, active effort as opposed to a merely responsive one, this issue is simply not present here. Therefore, so much of appellant's argument as focuses on the definitional limits and innuendoes of the word "solicitation" is not relevant to the disposition of this case.

A survey of the fifty states' statutes dealing with prostitution reveals an extensive use of the word "solicit".⁴ In contrast, the District of Columbia statute uses the phrase "address for the purpose of" (emphasis supplied). Address is neutral in the sense of being active or passive, initiatory or responsive in the effectuation of a purpose. One definition of "address" in Webster's Third New International Dictionary 24(6a) (1971) is: "to speak, write or otherwise communicate directly to." "Speaking or communicating directly to" may be done responsively. It carries with it no element or overtone of active initiation of a conversation or transaction. The word "address" in the statute, therefore, removes the suggestion that an initial, active effort to engage someone in a conversation or transaction involving prostitution is a prerequisite to guilt.

This conclusion is enhanced by the use of the word "entice" in the statute. An enticement also does not require an active, initiatory effort but can occur in a responsive manner. One meaning of "entice" is: "to draw on by arousing hope or desire: ALLURE, ATTRACT . . . TEMPT". Webster's Third New International Dictionary, supra at 757. See also Bayouth v. State, 294 P.2d 856, 863 (Okl.Cr. 1956). The trial judge reasonably could have concluded that appellant's comment, "I'll do anything you want to do", was intended to tempt or to draw on by arousing hope or desire and therefore operated as an enticement. One can entice in this manner for the purpose of a commercial sex act without being the one to initiate the overall conversation or transaction. Enticement can occur at any point in a conversation and, therefore, even responsive conduct or speech can ripen into an enticement.

Once there is an enticement or an address for the purpose of enticement, it becomes unimportant who broaches the commercial nature of the transaction. It is sufficient that an understanding emerges that a commercial venture was contemplated when the sexual availability was made apparent. This court has specifically stated that an individual could be found guilty in a case in which it is the officer rather than the person charged who asks how much it would cost. United States v. Smith, D.C. App., 330 A.2d 759, 761 (1975). Appellant in effect concedes this point by referring to Smith as a case in which the defendant's conduct was sufficient to constitute the offense. Yet, in Smith, the officer broached the topic of money.

As support for the proposition that where the officer broaches the sexual-commercial nature of the agreement the accused would not be guilty of the offense, the dissent and appellant rely upon Williams v. United States, D.C.App., 342 A.2d 367 (1975). But Williams deals with no issue beyond entrapment. Williams said basically that there is no entrapment if a defendant approaches an officer to solicit for prostitution. Williams does not purport to analyze the elements of the offense, nor, as already noted, is there an issue of entrapment in the present case.

Proof of particular language or conduct is not necessary to establish the offense. For example, an offer to perform a specific sex act is not necessary to complete the offense, United States v. Smith, supra at 761, although appellant in the instant case did refer to specific sex acts she would be willing to perform. Nor is it significant that the arresting officer makes the first overture. That fact was also present in Wajer v. United States, D.C.App., 222 A.2d 68 (1966).

In the final analysis, it is a question of fact whether the acts and words of the defendant in general, viewed in the light of surrounding circumstances, constitute the enticing or addressing prohibited by the statute. See Wajer v. United States, supra; Golden v. United States, D.C.Mun.App., 167 A.2d 796 (1961); Curran v. United States, D.C.Mun.App., 52 A.2d 121 (1947). Were specific language or conduct determinative, as urged by appellant, every prostitute could know how to avoid arrest. Prostitutes would merely have to avoid broaching the subject of money or avoid initiating the conversation, leaving that to the other person. If that person were a covert law enforcement officer, he would soon become conspicuous by his doing likewise. Thus, his identity would be compromised before incriminating conduct reached offense level.

It can be seen that both minority opinions, if thoughtfully considered, would relegate to obsoletism the defense of entrapment in § 22-2701 prosecutions by placing reflexive reliance on who uttered the first word in the encounter. They would make it unnecessary for a determination ever to be made whether the accused was predisposed to violate that provision by substituting an arbitrary test of conversational timing masked behind an evidentiary sufficiency evaluation.

We hold that appellant's attire, her prolonged presence on the street corner, her approach to a complete stranger, her extremely suggestive verbal responses to the officer, her prompt discussion of financial terms, and her ready arrangement for a room are legally sufficient, when...