People v. People, Docket Nos. 310312

• Decision Date: 17 December 2013
• Docket Number: 310424.,Docket Nos. 310312
• Citation: 843 N.W.2d 775,303 Mich.App. 466
• Parties: PEOPLE v. NORWOOD. People v. Hagar.
• Court: Court of Appeal of Michigan — District of US

303 Mich.App. 466

843 N.W.2d 775

PEOPLE

v.NORWOOD.

People

v.Hagar.

Docket Nos. 310312, 310424.

Court of Appeals of Michigan.

Submitted Oct. 1, 2013, at Detroit.

Decided Oct. 10, 2013.

Approved for publication Dec. 17, 2013, at 9:20 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Daniel E. Hebel, Assistant Prosecuting Attorney, for the people.

Valerie R. Newman, for John Norwood.

Neil J. Leithauser, for Nicole Hagar.

Before: M.J. KELLY, P.J., and WILDER and FORT HOOD, JJ.

PER CURIAM.

The prosecution appeals by leave granted the circuit court order affirming the district court's denial of the prosecution's motion to bind over defendants on a charge of pandering, MCL 750.455.¹ We reverse and remand to the circuit court for reinstatement of the charge against each defendant and for proceedings consistent with this opinion.

On April 8, 2011, an officer with the special operations unit of the Wayne County Sheriff's Office was working as an undercover decoy in the city of Detroit in response to complaints of prostitution. A Lincoln Navigator was driven nearby and the vehicle's passenger, defendant Nicole Marie Hagar, motioned for the officer to approach the vehicle. The vehicle's driver, defendant John Julius Norwood, spoke first and asked the officer how old she was. Defendants conversed with the officer and exchanged information regarding what they wanted her to do. Specifically, defendant Norwood offered to buy the officer new clothes, new shoes, a new residence, and cosmetic enhancement surgery in exchange for her work as a prostitute. The couple indicated that the officer could earn more money working for Norwood as a prostitute in Florida and that she would leave with defendant Hagar that night. Defendants also represented that defendant Norwood was good to work for and that defendant Hagar earned $1,000 a night. They also stated that the officer could earn extra money by engaging in the production of pornography with defendant Hagar. Defendants were arrested by other sheriff's officers. Following these proofs, the district court denied the prosecution's motion to bind defendants over on the charge of pandering, MCL 750.455, and the circuit court subsequently affirmed. We granted the prosecution's applications for leave to appeal.²

A district court's bindover decision that is contingent on the factual sufficiency of the evidence is reviewed for an abuse of discretion. People v. Redden, 290 Mich.App. 65, 83, 799 N.W.2d 184 (2010). A circuit court's review of the bindover decision involves examination of the entire preliminary examination record, and it may not substitute its judgment for that of the lower court. People v. Beydoun, 283 Mich.App. 314, 322, 770 N.W.2d 54 (2009). However, “[t]his Court reviews de novo the bindover decision to determine whether the district court abused its discretion, giving no deference to the circuit court's decision.” Redden, 290 Mich.App. at 83, 799 N.W.2d 184. When the district court decision addresses “whether the alleged conduct falls within the scope of a penal statute, the issue presents a question of law that we review de novo.” People v. Armisted, 295 Mich.App. 32, 37, 811 N.W.2d 47 (2011).

The interpretation and application of a statute presents a question of law that an appellate court reviews de novo. People v. Zajaczkowski, 493 Mich. 6, 12, 825 N.W.2d 554 (2012). “[T]he intent of the Legislature governs the interpretation of legislatively enacted statutes.” People v. Bylsma, 493 Mich. 17, 26, 825 N.W.2d 543 (2012). The intent of the Legislature is expressed in a statute's plain language. People v. Cole, 491 Mich. 325, 330, 817 N.W.2d 497 (2012). When statutory language is plain and unambiguous, the Legislature's intent is clearly expressed, and judicial construction is neither permitted nor required. Id. The use of the alternative term “or” indicates a choice between two or more things. Auto–Owners Ins. Co. v. Stenberg Bros., Inc., 227 Mich.App. 45, 50, 575 N.W.2d 79 (1997).

In People v. Morey, 461 Mich. 325, 328, 603 N.W.2d 250 (1999), our Supreme Court held that the pandering statute delineated eight activities for which a defendant could be charged. The Morey Court quoted MCL 750.455 and inserted numerals to delineate the eight different activities:

“Any person [1] who shall procure a female inmate for a house of prostitution; or [2] who shall induce, persuade, encourage, inveigle or entice a female person to become a prostitute; or [3] 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 [4] 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 [5] 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; or [6] who shall inveigle, entice, persuade, encourage, or procure any female person to come into this state or to leave this state for the purpose of prostitution; or [7] who upon the pretense of marriage takes or detains a female person for the purpose of sexual intercourse; or [8] who shall receive or give or agree to receive or give any money or thing of value for procuring or attempting to procure any female person to become a prostitute or to come into this state or leave this state for the purpose of prostitution, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 20 years.” [Morey, 461 Mich. at 328, 603 N.W.2d 250.]

In Morey, a jury convicted the defendant of pandering, MCL 750.455, and accepting the earnings of a prostitute, MCL 750.457. Morey, 461 Mich. at 326, 603 N.W.2d 250. On appeal in the Supreme Court, the Court held that there was insufficientevidence to support the pandering conviction. Id. at 326–327, 603 N.W.2d 250. In Morey, an undercover police officer had called the defendant's massage service from a motel room. Ultimately, a female arrived and performed massage services, but also negotiated to perform sexual services. After she was arrested, she agreed to cooperate with the police and telephoned the defendant, indicating that the client had requested a second masseuse. A second woman arrived and gave the officer a massage, but also offered to perform sexual services. After the second woman was arrested, she also agreed to cooperate with the police. The police drove the women to a restaurant where they provided a portion of their earnings to the defendant, who was then arrested. Id. at 327–328, 603 N.W.2d 250.

The defendant was charged pursuant to the second clause of the pandering statute; it was alleged that he acted to “ ‘induce, persuade, encourage, inveigle or entice a female person to become a prostitute[.]’ ” Id. at 329, 603 N.W.2d 250. The Court of Appeals held that this section of the statute penalized defendants who induce females who had not already engaged in prostitution to engage in prostitution. Id. Our Supreme Court analyzed the phrase “become a prostitute” and concluded that “to become a prostitute” was distinguishable from performing an act of prostitution. Id. at 329–333, 603 N.W.2d 250. Because the prosecution had failed to present evidence that the women were not prostitutes before the defendant employed them and failed to present evidence that the defendant “induced, persuaded, inveigled, or enticed them to become prostitutes,” the Supreme Court held that the pandering conviction was properly reversed by the Court of Appeals. Id. at 338, 603 N.W.2d 250.

However, our Supreme Court further acknowledged that the pandering statute, compared with other criminal offenses, was designed to punish individuals who prey on innocent females by punishing the conduct with up to 20 years' imprisonment:

It is reasonable to presume that the Legislature intended to punish separately and more severely those individuals who persuade or attempt to persuade a female to begin performing acts of prostitution. This conduct goes beyond mere facilitation of prostitution—these individuals prey on innocent females, attempting to induce them into a criminal livelihood. Certainly society has a greater interest in...