Luginbuhl v. State

• Decision Date: 13 May 1987
• Docket Number: No. 32A01-8610-CR-289,32A01-8610-CR-289
• Citation: 507 N.E.2d 620
• Parties: Ok J. LUGINBUHL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 620

507 N.E.2d 620

Ok J. LUGINBUHL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 32A01-8610-CR-289.

Court of Appeals of Indiana,

First District.

May 13, 1987.

Rehearing Denied June 16, 1987.

Carr L. Darden, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Ok J. Luginbuhl appeals her conviction of promoting prostitution, a class C felony. She essentially raises two issues on this appeal:

(1) Whether the record contains sufficient evidence that Luginbuhl procured Moon K. Doom for purposes of prostitution.

(2) Whether the trial court erred in allowing the State to introduce evidence of Doom's conviction of prostitution.

We affirm.

The record reveals the following facts favorable to the verdict: Russell, a vice detective, went to a health spa where he paid Luginbuhl for a massage. Russell initiated conversation with Luginbuhl during the massage regarding the possibility of her performing oral sex on him. Luginbuhl was not interested; however, Russell persisted. When Luginbuhl asked how much Russell would be willing to tip, he removed sixty-five dollars from his wallet. Luginbuhl took the money and left the room, agreeing to check with the other girl. Thereafter she returned with another female, Moon Doom, who subsequently began to fondle Russell's genitals. An arrest occurred at that point. Additional facts will be stated as required.

I. Sufficiency of Evidence

Luginbuhl contends that the trial court erred in denying her motion for a directed verdict and that the evidence is insufficient to support the verdict because the State failed to prove the actus reus of the crime as charged by the State. The State alleged by information that Luginbuhl "knowingly or intentionally procured Moon K. Doom for Dep. Randy Russell for the purpose of prostitution."

A directed verdict is proper only where there is a total lack of evidence on some essential issue or where there is no conflict in the evidence and it allows only an inference in favor of the innocence of the accused. Where there is sufficient evidence to sustain a conviction on appeal, an earlier ruling denying a motion for directed verdict cannot be error. Vincent v. State (1986), Ind., 489 N.E.2d 49, 53; Pearson v. State (1982), Ind., 441 N.E.2d 468, 475.

Upon a review for sufficient evidence, this court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If the existence of each element of the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be disturbed. In such a review, we will not weigh conflicting evidence nor will we judge the credibility of the witnesses. Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Upon a claim of insufficient evidence, however, it does become our duty to examine the evidence closely, not with a view toward resolving conflicts thereon, but for the purpose of determining whether or not, after resolving all reasonable doubts in favor of the verdict, it may be said that, upon such evidence, a reasonable man could have reached such a verdict, beyond a reasonable doubt. Woods v. State (1980), 274 Ind. 624, 413 N.E.2d 572, 575.

Luginbuhl relies upon the supreme court's decision in LaMar v. State (1953), 231 Ind. 508, 109 N.E.2d 614 as a basis for asserting that the evidence was insufficient to support her conviction. She contends the evidence failed to show she did anything to "bring about," "effect" or "cause" the act of prostitution committed by Moon Doom. Luginbuhl's argument assumes that by use of the word "procure" in the statute at issue in this case, the legislature contemplated a showing of conduct designed to effectuate the act of prostitution. We do not believe the LaMar decision compels us to attribute such a narrow meaning to the act of procuring in the context of the statute at issue here, IND.CODE 35-45-4-4(2).

In LaMar v. State, 109 N.E.2d 614, the court considered the meaning of the word "procure" in the context of a former statute, Sec. 10-4211, Burns' 1942 Repl., defining the offense of pandering. Citing various definitions of the word "procure", the court held that the evidence was insufficient to show that LaMar "unlawfully and feloniously procure[d] one Diane Hamilton, as an inmate for a house of prostitution...." The evidence indicated that Hamilton, a prostitute, had initiated her relationship with LaMar. Hamilton contacted LaMar and arranged for the payment to LaMar of monies received.

By focusing on the acts undertaken by Hamilton, the court highlighted LaMar's passive role in the arrangements between herself and the prostitute. Since it was the conduct of LaMar which was at issue in the case, the decision elucidates that submissive conduct will not suffice; the State must show more than conduct evincing a permissive disposition toward prostitution to show the procurement of another person.

Two of the definitions incorporated in the LaMar decision illustrate the broad range of behavior considered by the courts to be descriptive of an act of procurement.

"... to 'procure' is to initiate a proceeding to cause a thing to be done; to instigate; to continue, bring about, effect or cause. * * * To persuade, induce, prevail upon or cause. * * * To 'procure' an act to be done is not synonymous with to "suffer" it to be done."

LaMar v. State, 109 N.E.2d at 618 citing Black's Law Dictionary, 3d Ed., at 1437.

" 'Procure', as used in these statutes, means to acquire or get, and it necessarily implies the use of persuasion, solicitation, encouragement, and assistance in achieving the unlawful purpose; but the use of promises, threats, violence, or fraud are not necessarily included within the term."

LaMar, supra citing 73 C.J.S. at 236.

IND.CODE 35-45-4-4(2) (Supp.1978) establishes the essential elements of the crime of promoting prostitution as charged by the State against Luginbuhl:

A person who ...

(2) knowingly or intentionally procures, or offers or agrees to procure, a person for another person for the purpose of prostitution.

Thus, while the State could have shown that it was Luginbuhl's conscious objective to procure Doom for Russell for purposes of prostitution, the State need only show that Luginbuhl was aware that there was a high probability, that she was procuring Doom for Russell and that she was doing so for the purpose of prostitution. See I.C. 35-41-4-2. ¹

Reviewing the record in the present case, we find direct evidence that Luginbuhl actively furthered the act of prostitution which occurred, and strong circumstantial evidence that Luginbuhl knowingly solicited Doom for Russell and actually brought about or effected the criminal offense. Luginbuhl did more than permit the criminal activity; she facilitated the act by checking out the patron, soliciting the "tip" and arranging for Doom to meet with Russell. Luginbuhl told Russell that she would be able to get him oral sex for sixty-five dollars.

Moreover, Doom knew when she met with Russell what conduct was expected. In light of the fact that Doom immediately began to perform an act of fondling when Luginbuhl left the room, and Luginbuhl's statement to Russell that "the other girl might", we believe that it was reasonable for the jury to infer that Luginbuhl knew Doom was receptive to prostitution, and prevailed upon Doom to engage in the prohibited conduct.

Though reasonable men may have differed in reaching the verdict, this court need not find that the circumstantial evidence in the case overcomes every reasonable hypothesis of innocence. Lovell v. State (1985), Ind., 474 N.E.2d 505, 507. Rather, when the evidence...