Hensley v. City of Norfolk, 750100

• Decision Date: 10 October 1975
• Docket Number: No. 750100,750100
• Citation: 216 Va. 369,218 S.E.2d 735
• Court: Virginia Supreme Court
• Parties: Donna J. HENSLEY et al. v. CITY OF NORFOLK. Record

Page 735

218 S.E.2d 735

216 Va. 369

Donna J. HENSLEY et al. v. CITY OF NORFOLK.

Record No. 750100.

Supreme Court of Virginia.

Oct. 10, 1975.

Anthony L. Montagna, Jr., Norfolk, for plaintiffs in error.

Douglas Fredericks, Asst. City Atty. (Philip R. Trapani, City Atty., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

This is an appeal of the convictions of three defendants, Donna J. Hensley, Barbara McClure and Ernest L. Cole, for violations of several Norfolk City ordinances. The cases, which stem from the activities on June 26, 28 and 29, 1974, at the 'Venus I Massage Parlor' in Norfolk, were consolidated for trial and heard by the court sitting without a jury on September 24, 1974.

The main issues on appeal involve the constitutionality of the ordinances upon which the convictions were based, the sufficiency of the evidence, and certain matters of procedure.

Testifying for the City were three Norfolk police officers and two 'civilian' undercover agents sent to the massage parlor by the police to obtain evidence. The only defendant who testified was Donna J. Hensley.

The evidence showed that on June 26, 1974, Thomas Swah, an undercover agent, entered the establishment in question, which was open to the public. The defendant Cole was sitting in a 'cage-like room' just inside the entrance, and Swah paid Cole $20.00 for a massage. Cole then directed Swah to another room in the building where he met the defendant Hensley, who instructed Swah to disrobe. Swah followed the instructions and Hensley then proceeded to massage his person. She was dressed in 'an oversized T-shirt' and 'something basically like shorts.' During the massage, Hensley masturbated Swah and solicited him for prostitution and oral sodomy.

The evidence further disclosed that on June 28, 1974, about 11:15 p.m., John Kipper, another undercover agent, entered the massage parlor, paid the defendant Cole $20.00, and was directed into a 'waiting room.' After some time, the defendant Hensley appeared, 'led' Kipper to 'a cubicle room in the back of the building,' and told him to disrobe. Kipper undressed and Hensley then proceeded to massage him. The evidence does not show whether or not she was clothed. While massaging Kipper, Hensley masturbated him and solicited him for prostitution and oral sodomy.

Kipper spent about one hour in the establishment. Shortly after he left, Norfolk Police Officers Morgante, Nebrotskie, and Banks arrived on the scene and arrested the defendants. Morgante then recovered from Cole the money which Kipper had paid, the serial numbers of which had been previously recorded by the officers.

Nebrotskie, after entering the establishment, saw the defendant McClure going from one of the 'back stalls' of the massage parlor to another.

Morgante, when asked to state the general reputation of the massage parlor, testified that 'seven out of ten would say it was just a house of prostitution. A whorehouse.'

The Case of Barbara McClure

The warrant charged this defendant with 'frequenting a disorderly house', in violation of Norfolk City Code § 31-18, ¹ and she was convicted of that offense. Our view of her case requires consideration of only one of her assignments of error, Viz., that the evidence was insufficient to support a conviction. We agree with the defendant.

McClure's motion to strike the City's evidence as to her, made at the close of the City's case in chief, should have been sustained by the trial court. The City's evidence shows that she was merely present in the massage parlor and this is not sufficient to support the conviction.

The Case of Ernest L. Cole

Cole was convicted of 'keeping and maintaining a disorderly house' in violation of Norfolk City Code § 31-18, note 1 Supra. He attacks the constitutionality of the ordinance.

First, he contends that it is unconstitutional on its face because it is vague. We do not agree. We have considered and rejected an identical attack on this very ordinance in Flannery v. City of Norfolk, 216 Va. 362, 218 S.E.2d 730 (1975), this day decided. Flannery controls here; therefore, this portion of the defendant's argument needs no further elaboration.

Second, the defendant takes the position that the ordinance is overbroad because it abridges the right under the First and Fourteenth Amendments of peaceable assembly. He contends that the Venus I Massage Parlor 'is a legitimate and lawful activity' and 'people have a right to assemble there as in any business.' This argument is completely frivolous. The limited scope of that part of the ordinance under which Cole was charged places no restriction on the constitutionally protected right of assembly. It merely proscribes keeping and maintaining a house where certain unlawful conduct takes place.

We likewise reject Cole's further contention that, even if constitutional, the ordinance has been applied to him in an 'unreasonable, arbitrary and capricious manner.' He argues that there is 'a myriad of other ordinance provisions and state statutes that could be employed to charge individuals who have committed offenses growing out of the operation of a massage parlor.' As we perceive his contention, it is that other charges, such as keeping a bawdyhouse, ² more properly fit this crime.

Even if we assume Cole is correct that there is a 'myriad' of other statutes and ordinances under which he could be properly prosecuted, this argument is without merit. A prosecutor has the discretion to decide under which of several applicable statutes the charges shall be instituted. People v. Thrine, 218 Mich. 687, 690-91, 188 N.W. 405, 406 (1922). See Myers v. District Court, 184 Colo. 81, 518 P.2d 836, 838 (1974).

Cole next contends that the evidence was insufficient to convict him. We disagree. As the City maintains, under § 31-18, note 1 Supra, there are four elements to the offense of keeping and maintaining a disorderly house. The defendant must keep, maintain, or operate it for himself or another; it must be in fact a disorderly house; the activities must be continuing in nature, Foster v. Commonwealth, 179 Va. 96, 100, 18 S.E.2d 314, 316 (1942); and the defendant must have had knowledge of the illegal practices carried on in the establishment. Warsaw v. City of Norfolk, 190 Va. 862, 866, 58 S.E.2d 884, 885-86 (1950); Bennett v. Commonwealth, 182 Va. 7, 11-12, 28 S.E.2d 13, 14 (1943).

In this case, the foregoing elements were proved beyond a reasonable doubt. First, Cole was obviously operating the place for himself or another. He was stationed inside the entrance; he received money from the customers; and he directed them to the location in the building where they could be 'served.' Second, the evidence of masturbation and solicitation qualifies the massage parlor as a nuisance Per se and hence a 'disorderly house.' Flannery v. City of Norfolk, supra, 216 Va. at 366, 218 S.E.2d at 734. Third, the evidence shows the unlawful activities were continuing in nature, that is, they took place during portions of at least three separate days. Finally, Cole's knowledge of the illegal occurrences is apparent. He was present and in charge of an establishment, where unlawful acts were taking place and which had the general reputation of being a brothel. He will not be heard to argue that he was ignorant of what was going on around him.

The Case of Donna J. Hensley

This defendant was convicted under warrants charging her with: 'frequenting a house of ill fame' on June 26, 1974, in violation of Norfolk City Code § 31-55; ³ 'soliciting' on June 26, 1974, in violation of Norfolk City Code § 31-56; ⁴ 'immoral conduct' on June 28, 1974, in violation of § 31-55; and 'soliciting for immoral purposes' on June 28, 1974, in violation of § 31-56.

She contends, first, that one of the warrants issued for the June 28 offenses was invalid because the evidence shows it was issued before the offense was committed. We do not agree. While there are certain inconsistencies in the testimony of the witness Kipper and the police officers concerning the time and manner of the issuance of the warrant, the factual finding of the trial court that it was issued after the offense had been committed is fully supported by the evidence, and we will not disturb that finding.

She contends, next, that the foregoing ordinances are void because they are vague. She argues that the words 'immoral' and 'lewdness,' in § 31--55, are 'so devoid of meaning that men of common intelligence could not agree on their meaning.' She makes the same complaint of the words 'lewd, lascivious, indecent or prostitute' in § 31-56. We reject these arguments.

Section 31-55 meets the test of constitutional certainty we have this day enunciated in Flannery, supra. The terms of the ordinance give a reasonably intelligent person fair notice of the conduct which is prohibited. Moreover, the enactment does not encourage arbitrary action by those who enforce and administer it. We construe the general word 'immoral,' which modifies 'purposes' in the phrase 'immoral purposes', to be restricted and limited by the specific words 'lewdness, assignation, prostitution' and 'illicit sexual intercourse', according to the maxim of statutory construction Noscitur a sociis. ⁵ Construed in that manner, it is unlawful under § 31-55 to frequent, reside in or visit For the purpose of lewdness, assignation, prostitution or illicit sexual intercourse any of the places designated in the ordinance when that place is used for any of the stated purposes.

Thus narrowed the ordinance is not vague because the terms lewdness, assignation, prostitution and illicit sexual intercourse have clear and specific meanings. 'Lewdness' is a common law offense and is defined as '(g) ross and wanton indecency in sexual relations . . . so notorious as to tend to corrupt community's morals.' Black's Law Dictionary 1052 (Rev.4th ed. 1968). 'Assignatio...