People v. Morey, Docket No. 193900

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

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.

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.

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

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.

The pandering statute is designed to penalize individuals who induce, persuade, encourage, or entice women who are not prostitutes into becoming prostitutes. In People v. Cook, 96 Mich. 368, 370, 55 N.W. 980 (1893), our Supreme Court reversed the defendant's conviction under a statute that made it a felony to "solicit or in any manner induce a female to enter such a house for the purpose of becoming a prostitute." The Court explained:

Some force must be given to the word "become"; and it is evident that the legislature did not intend to make the offense complete by the mere soliciting of a female who was already a prostitute, and in a house of ill fame, to go from that place into another house of like character. [Id. at 373, 55 N.W. 980.]

This reasoning was applied to the current pandering statute in People v. Slipson, 154 Mich.App. 134, 137, 397 N.W.2d 250 (1986), where this Court held that a defendant cannot be convicted of violating M.C.L. § 750.455; M.S.A. § 28.710 if the victim is already a prostitute or the defendant reasonably believes that the person is already a prostitute. Indeed, any other interpretation would render meaningless the phrase "to become a prostitute." People v. Rocha, 110 Mich.App. 1, 15, 312 N.W.2d 657 (1981).

In the present case, the record reveals that both Carlton and Hanlon had engaged in prostitution before their encounter with the officer. ³ The prosecution failed to produce evidence demonstrating beyond a reasonable doubt that the women were not prostitutes before their employment by defendant, and that defendant actually induced, persuaded, or encouraged them to become prostitutes. Consequently, defendant's conviction for pandering must be reversed.

III

Next, defendant challenges the instructions given to the jury regarding the pandering charge. Because defendant did not object to the instruction at trial, relief can be granted only if manifest injustice would result. People v. Van Dorsten, 441 Mich. 540, 544-545, 494 N.W.2d 737 (1993). Moreover, this issue is rendered moot by our decision that the evidence was legally insufficient to support the pandering charge. However, because the instructions were erroneous and we believe our comments here will be of benefit to the bench and bar, we will address the claims of error raised.

A

In its final instructions to the jury, the court stated:

The defendant is also charged with the crime of pandering. To prove this charge, the prosecution must prove each of the following...