People v. Mason
| Citation | 642 P.2d 8 |
| Decision Date | 08 March 1982 |
| Docket Number | No. 81SA171,81SA171 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David George MASON, Defendant-Appellant. |
| Court | Supreme Court of Colorado |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., David K. Rees, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Robert C. Floyd, Denver, for defendant-appellant.
The defendant, David George Mason, was convicted of soliciting for prostitution, section 18-7-202, C.R.S.1973 , pandering, section 18-7-203, C.R.S.1973 , and pimping, section 18-7-206, C.R.S.1973 . He claims on this appeal that the statutory scheme proscribing offenses relating to prostitution is unconstitutional, that the evidence was insufficient to support his convictions, and that the court erred in instructing the jury on complicity. 1 Finding no error, we affirm.
The information as originally filed charged the defendant and Susan Neitzel with five counts based on offenses committed during the period of February 9 to June 5, 1979, in Arapahoe County, Colorado: one count of pimping by knowingly living on or being supported or maintained by money earned by Dianne Strong and Linda Kingrey through prostitution; two counts of soliciting for prostitution; and two counts of pandering. Prior to trial Susan Neitzel entered into a plea bargain and became the prosecution's principal witness against the defendant.
The charges arose out of the establishment and operation of a female escort service by the defendant and Neitzel. According to the prosecution's evidence the defendant employed forty to fifty women as female escorts during the period in question. These escorts worked solely for "tips", which were monies paid to them by customers for acts of prostitution. Neitzel hired the escorts, supervised the telephone answering service and bookkeeping aspects of the operation, and regularly met with the escorts to collect the fee owed to the service. The defendant's primary responsibility involved the composition and placement of newspaper advertisements under various names, including Danish Escorts, Pretty Baby Escorts, Copenhagen Ladies, Campus Cuties Escorts and Plato's Sexy Lady Escorts. A typical ad would read:
DANISH ESCORTS
861-7045
Major credit cards accepted
When a customer called the service in response to an ad he was told that there would be a $20 hourly fee paid to the service. This fee entitled the customer to a "nude switch body rub" which, according to Neitzel, consisted of a rub of the front and back side of the body, exclusive of intimate parts, administered by the escort to the customer and then by the customer to the escort, with both parties in the nude. The customer also was informed that "tipping" was discretionary and a female escort would call back shortly to answer any questions. After the customer placed a call with the service, one of the escorts would be contacted and a record made of the call for accounting purposes. The escorts would account twice weekly to Neitzel for the service fee due on the specific calls referred to them.
According to Neitzel the escort service was indistinguishable from prostitution and there were very few calls which did not result in an act of prostitution. In fact if no act of prostitution occurred, the escort ordinarily would not be required to refund the service fee for her call. The defendant often referred to the escorts as "stupid whores" and on slow days he would make such statements as, "come on, let's hurry up and get these tricks." Customers who did not negotiate an act of prostitution with the escort were commonly referred to as "bad calls."
On the evening of June 5, 1979, an officer of the Arapahoe County SCAT unit made a telephone call to the escort service and posed as a customer responding to a newspaper ad for Danish Escorts. The officer arranged by telephone for himself and another officer to meet two escorts in an Aurora motel room. After this initial call Dianne Strong and Linda Kingrey contacted the officer by telephone to confirm the appointment and later showed up at the motel. After explaining to the officers the agency fee of $20 per hour, they offered to perform an act of sexual intercourse and fellatio for $100. The officers paid each woman $100, plus the additional $20 for the agency's hourly fee. After the money was exchanged, the women started to undress and were arrested.
The court denied the defendant's motion for judgment of acquittal at the conclusion of the prosecution's case and the defendant elected not to present evidence. With respect to the charges of soliciting for prostitution and pandering the court submitted the following instruction to the jury:
"A person is legally accountable for the behavior of another constituting a criminal offense such as Soliciting for Prostitution or Pandering if, with the specific intent to promote or facilitate the commission of such offense, he aids, abets, or advises such other person in planning or committing such offense, and such other person commits the offense."
The jury returned guilty verdicts to all counts and this appeal followed in due course. 2
We first address the defendant's constitutional challenges to his convictions, next his claim of evidentiary insufficiency, and then his argument on the complicity instruction.
The defendant's constitutional claims are several. However, before addressing them specifically, we briefly set out the statutory proscriptions to which his constitutional challenges and other arguments are directed.
Section 18-7-201(1), C.R.S.1973 , classifies prostitution as a class 3 misdemeanor and defines that offense as follows:
"Any person who performs or offers or agrees to perform any act of sexual intercourse, fellatio, cunnilingus, masturbation, or anal intercourse with any person not his spouse in exchange for money or other thing of value commits prostitution."
Under section 18-7-202, C.R.S.1973 , a person commits soliciting for prostitution if he solicits another for the purpose of prostitution, arranges or offers to arrange a meeting of persons for the purpose of prostitution, or directs another to a place knowing such direction is for the purpose of prostitution. Pandering is defined in section 18-7-203(1)(b), C.R.S.1973 , to include the act of knowingly arranging or offering to arrange, for money or other thing of value, a situation in which a person may practice prostitution. Section 18-7-206, C.R.S.1973 defines pimping as follows:
"Any person who knowingly lives on or is supported or maintained in whole or in part by money or other thing of value earned, received, procured, or realized by any other person through prostitution commits pimping, which is a class 5 felony."
The defendant's due process, equal protection and constitutional privacy claims are interrelated and proceed from the same source, namely, the statutory definition of prostitution in section 18-7-201(1). This statute defines prostitution so as to include within its proscription sexual acts between non-married persons in consideration of money or other thing of value, but excludes these same acts between married partners even though performed for money or other valuable consideration. With this statutory differentiation as a foundation the defendant's arguments, simply stated, are as follows the legislative recognition that a marital partner, without risking criminal liability, may sell sexual favors to the other partner is a repudiation of any legitimate governmental interest in proscribing the same conduct between unmarried persons and, consequently, any such proscription violates due process of law, U.S.Const. Amend. XIV; the statutory definition of prostitution irrationally discriminates between marital and non-marital sexual conduct in violation of equal protection of the laws, U.S.Const. Amend. XIV; and the statutory proscription of prostitution infringes upon one's constitutional right of privacy in consensual sexual activity, U.S.Const. Amend. IX and XIV.
We find these arguments devoid of merit. Initially we note that one is not "entitled to assail the constitutionality of a statute except as he himself is adversely affected." People v. Blue, 190 Colo. 95, 101, 544 P.2d 385, 389 (1975). It is not our function to "overturn statutes presumptively valid on the strength of the speculations and conjectures of counsel as to what might happen under them." Bayly Co. v. Department of Employment, 155 Colo. 433, 437, 395 P.2d 216, 218 (1964). The record here is lacking a clear demonstration of how the differentiation in section 18-7-201(1) between non-marital and marital sexual conduct implicates the defendant's conviction for soliciting, pandering and pimping. Neither soliciting nor pandering entails an act of prostitution as essential to criminal liability. Although the crime of pimping requires proof that the accused knowingly lived on money earned through prostitution by another, there is not the slightest suggestion in the record that the pimping conviction was based upon sexual acts between persons married to each other. Under these circumstances the defendant's standing to raise the alleged infirmity in the statutory definition of prostitution as a basis for reversal may be seriously questioned. The People, however, have not challenged his standing and under these circumstances we elect to resolve the defendant's constitutional claims on their merits.
For purposes of due process, the state's interest in curbing prostitution cannot be denied. The health hazards posed by this activity as well as the high incidence of other criminal conduct associated with it are legitimate considerations which by themselves support legislative intervention in this area. See, e.g., State...
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