People v. Morey, Docket No. 193900

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: NEFF
• Citation: 230 Mich.App. 152,583 N.W.2d 907
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sherry Ann MOREY, Defendant-Appellant.
• Docket Number: Docket No. 193900
• Decision Date: 02 June 1998

Page 907

583 N.W.2d 907 230 Mich.App. 152 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Sherry Ann MOREY, Defendant-Appellant. Docket No. 193900. Court of Appeals of Michigan. Submitted Feb. 10, 1998, at Grand Rapids.
Decided June 2, 1998, at 9:10 a.m.
Released for Publication Sept. 10, 1998.

Page 908

[230 Mich.App. 153] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Vicki L. Seidl, Assistant Prosecuting Attorney, for People.

Jeanice Dagher-Margosian, Ann Arbor, for Defendant-Appellant.

Before RICHARD ALLEN GRIFFIN, P.J., and HOLBROOK, and NEFF, JJ.

NEFF, Judge.

Following a jury trial, defendant was convicted of pandering, M.C.L. § 750.455; M.S.A. § 28.710, and accepting the earnings of a prostitute, M.C.L. § 750.457; M.S.A. § 28.712. She was sentenced to three years' probation, the first four months to be spent in jail. She now appeals as of right. We affirm in part and reverse in part.

230 Mich.App. 154] I

A Grand Rapids police officer, taking part in an undercover operation designed to curtail prostitution, called defendant's massage service from a hotel room and made an appointment for a massage at a cost of $75 an hour. Defendant agreed to send over a blonde in her mid-twenties with a nice figure. Shortly thereafter, a masseuse calling herself "Heather" and later identified as Christine Hanlon arrived at the hotel room. Hanlon had the officer disrobe and proceeded to give him a nonsexual massage. After twenty minutes, the officer asked if there were any "extras" available; after negotiations, Hanlon agreed to have sexual intercourse with him

Page 909

for an additional $100. When Hanlon completely undressed and crawled into bed with him, he gave a signal and his fellow officers rushed in from an adjoining room and arrested Hanlon for soliciting for prostitution

Hanlon agreed to cooperate with the police by telephoning defendant and asking her to send a second masseuse to the room under the pretext that the officer wished to have sex with two women. Hanlon specifically used the word "sex" twice in her conversations with defendant, making it clear that the customer was interested in sex for money. Defendant replied that she would send a masseuse named Patti Jo Carlton. ¹

When Carlton arrived, she had the officer lie on the bed and gave him a brief massage. She then reached for his penis as if to masturbate him. He stopped her by asking what else was available. Carlton stated that she would perform oral sex on him for $100. He [230 Mich.App. 155] agreed, and Carlton started to perform the act. She was then arrested. Shortly thereafter, a female police officer drove Hanlon and Carlton to a local restaurant parking lot to meet with defendant. Hanlon handed defendant $300, of which $150 was for time she and Carlton spent in the hotel room, and $150 was attributable to other "calls" the two had made. ² Defendant was then arrested.

II

Defendant first argues that the prosecution presented insufficient evidence to establish beyond a reasonable doubt that defendant was guilty of accepting the earnings of a prostitute and of pandering. We find that sufficient evidence exists to support defendant's conviction of accepting the earnings of a prostitute, but not of pandering.

A

M.C.L. § 750.457; M.S.A. § 28.712, prohibiting one from accepting the earnings of a prostitute, states:

Any person who shall knowingly accept, receive, levy or appropriate any money or valuable thing without consideration from the proceeds of the earnings of any woman engaged in prostitution, or any person, knowing a female to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of the prostitution of said prostitute, or from moneys loaned or advanced to or charged against her by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, shall be guilty of a felony, punishable by imprisonment in the state prison not more than [230 Mich.App. 156] twenty years. And such acceptance, receipt, levy or appropriation of such money or valuable thing, shall, upon any proceeding or trial for violation of this section, be presumptive evidence of lack of consideration.

Defendant insists that her conviction under this statute must be reversed because no "sex act" actually took place in the hotel room, and because the money that she received from Carlton and Hanlon at the time of her arrest did not represent proceeds or earnings of prostitution. We disagree.

Contrary to defendant's argument, an actual act of prostitution occurred when Carlton agreed to perform fellatio for $100, and, in preparing to do so, actually initiated physical contact with the officer's "private areas." See People v. Warren, 449 Mich. 341, 347, 535 N.W.2d 173 (1995) ("sexual stimulation of a customer's penis by direct manual contact, in exchange for money, is prostitution"). Although the act of fellatio was not completed, we find that it was an act of prostitution.

We also reject defendant's claim that the actual currency received by defendant on the night in question was not the proceeds or earnings of a prostitute. Viewing the evidence in a light most favorable to the prosecution, we find that the officer gave both Hanlon and Carlton money in exchange for the massages and the interrupted act of fellatio. Hanlon subsequently gave defendant $300, which represented defendant's share

Page 910

for the time spent by Hanlon and Carlton not only with the officer, but also with previous customers. Defendant's challenge is without merit.

[230 Mich.App. 157] Sufficient evidence was presented to sustain the jury's determination that defendant was guilty of accepting the earnings of a prostitute.

B

Defendant also challenges the sufficiency of the evidence supporting her conviction for pandering. Specifically, defendant argues that because both Carlton and Hanlon were allegedly prostitutes before their encounter with the officer, defendant could not be convicted of inducing, persuading, inveigling, or enticing Carlton and Hanlon to become prostitutes as proscribed by M.C.L. § 750.455; M.S.A. § 28.710. We agree.

M.C.L. § 750.455; M.S.A. § 28.710 provides in pertinent part as follows:

Any person who shall procure a female inmate for a house of prostitution; or who shall induce, persuade, encourage, inveigle or entice a female person to become a prostitute; or who by promises, threats, violence or by any device or scheme, shall cause, induce, persuade, encourage, take, place, harbor, inveigle or entice a female person to become an inmate of a house of prostitution or assignation place, or any place where prostitution is practiced, encouraged or allowed; or any person who shall, by promises, threats, violence or by any device or scheme, cause, induce, persuade, encourage, inveigle or entice an inmate of a house of prostitution or place of assignation to remain therein as such inmate; or any person who by promises, threats, violence, by any device or scheme, by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, or having legal charge, shall take, place, harbor, inveigle, entice, persuade, encourage or procure any female person to enter any place within this state in which prostitution is practiced, encouraged or allowed, for the purpose of prostitution ... shall be guilty of a felony, punishable by imprisonment in the state prison for not more than twenty years.

[230 Mich.App. 158] The pandering statute is designed to penalize individuals...