State v. Allen

• Decision Date: 06 June 1980
• Docket Number: No. 512,512
• Citation: 37 Conn.Supp. 506,424 A.2d 651
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. Barbara ALLEN.

Page 651

424 A.2d 651

37 Conn.Supp. 506

STATE of Connecticut v. Barbara ALLEN.

No. 512.

Superior Court of Connecticut, Appellate Session.

Argued Jan. 28, 1980.

Decided June 6, 1980.

Richard Emanuel, Asst. Public Defender, with whom was Bruce A. Sturman, Asst. Public Defender, for appellant (defendant).

Robert E. Beach, Jr., Asst. State's Atty., for appellee (state).

DALY, Judge.

After a trial to the jury the defendant was convicted of prostitution in violation of General Statutes § 53a-82. The defendant appeals from the judgment rendered on the verdict and from the denial of her motion to set aside the verdict.

The jury reasonably could have found the following facts: At approximately 1:40 a. m. on March 25, 1976, a New Haven undercover officer was stopped at a traffic light at the intersection of Park and Chapel streets. He observed the defendant approach a car stopped in front of him and open and close the passenger door. The defendant then approached the officer's car, opened the passenger door and inquired if the officer had twenty dollars. Upon hearing an affirmative response, the defendant got into the car. A conversation ensued during which the defendant offered to have sex for twenty dollars. ¹ Shortly thereafter, both noticed a marked police cruiser in the area. The defendant urged the undercover officer to say, in the event that they were stopped, that he was taking her home or something to that effect. The officer drove to a prearranged location near a school where the defendant was arrested by other officers. No sexual activity was ever engaged in nor was there any transfer of money.

The defendant has assigned five counts of error in the conduct of the trial proceedings. Because our disposition of this case requires a remand for a new trial, we will first consider the defendant's challenge to the constitutionality of the prostitution statute under which she was convicted.

The defendant claims that General Statutes § 53a-82 suffers from the constitutional infirmities of vagueness and overbreadth, and that it infringes on her fundamental right of privacy. The defendant assumes a heavy burden in making this constitutional attack. In passing on the constitutionality of a legislative act, we will make every presumption and intendment in favor of its validity, and sustain the statute unless its unconstitutionality is established beyond a reasonable doubt. New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 148, 384 A.2d 337 (1977); Horton v. Meskill, 172 Conn. 615, 650, 376 A.2d 359 (1977).

Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Stolberg v. Caldwell, 175 Conn. 586, 610, 402 A.2d 763 (1978). "A statute ... which forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. Baggett v. Bullitt, 377 U.S. 360, 367, 84 S.Ct. 1316 (1320) 12 L.Ed.2d 377; Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126 (127) 70 L.Ed. 322." State v. Chetcuti, 173 Conn. 165, 167, 377 A.2d 263 (1977); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975). The constitution, however, requires no more than a reasonable degree of certainty. "The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. De George, 341 U.S. 223, 231-32, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951); State v. Chetcuti, supra, 173 Conn. 167-68, 377 A.2d 263. General Statutes § 53a-82 provides as follows: "A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee." The defendant contends that the statutory terms "sexual conduct" and "fee" are so inherently uncertain in their meaning that they failed to apprise her that her conduct was proscribed. She claims that the statute is unconstitutionally vague and that her conviction thereunder violated her right to due process of law under the fifth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. ²

Due process requires only that the law give sufficient warning to enable individuals to conduct themselves so as to avoid that which is forbidden. Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975); State v. Pickering, Conn. (41 Conn. L.J., No. 36, pp. 1, 4) (1980). It is recognized that many statutes will have some inherent vagueness, for "(i)n most English words and phrases there lurk uncertainties." Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945); Rose v. Locke, supra. In order to ascertain a statute's meaning it is often necessary to refer to judicial opinions involving the statute, to the common law, or to legal treatises or dictionaries. State v. Pickering, supra. The defendant correctly notes that the terms "sexual conduct" and "fee" are not further defined by the penal code in the context of prostitution. It also appears that no Connecticut judicial opinion has ever interpreted the specific language of this statute. Nonetheless, the meaning of the statutory language is clear and is sufficient to warn the ordinary person of the prohibited conduct.

While the language of this statute has not been previously construed by Connecticut courts, the identical language which appears in the New York penal code has withstood several constitutional vagueness challenges. United States v. Herrera, 584 F.2d 1137 (2d Cir. 1978); People v. Costello, 90 Misc.2d 431, 395 N.Y.S.2d 139 (1977); People v. Block, 71 Misc.2d 714, 337 N.Y.S.2d 153 (1972). We agree with the rationale propounded in those decisions that the terms "sexual conduct" and "fee," when appearing in the context of a statute prohibiting prostitution, have a commonly understood meaning. General Statutes § 1-1(a) provides that "(i)n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."

Dictionary definitions provide a fair explanation of the meaning of these terms. "Conduct" is defined as "(b)ehavior as portrayed by that which one does or omits to do." Ballentine's Law Dictionary (3d Ed.). "Sexual" conduct would thus be defined as conduct "of, characteristic of, or involving sex, the sexes, the organs of sex and their functions, or the instincts, drives, behavior, etc. associated with sex." Webster, Second New World Dictionary. The term "fee" is generally defined to be a remuneration charged for the rendering of professional services "Compensation often in the form of a fixed charge for professional service or for special and requested exercise of talent or of skill"; Webster, Third New International Dictionary; "(p) ayment asked or given for professional services, admissions, licenses, tuition, etc.; charge." Webster, Second New World Dictionary.

Further clarity is given to the meaning of the terms "sexual conduct" and "fee" by the fact that they appear in the context of a statute prohibiting prostitution. While certain words may appear unconstitutionally vague when viewed in a vacuum, when viewed in the next context of a statute they can provide fair notice of the conduct sought to be prohibited. State v. Carter, 89 Wash.2d 236, 239, 570 P.2d 1218 (1977). The statute under attack is entitled "Prostitution: Class A misdemeanor." The term "prostitution" is defined as "the act or practice of indulging in promiscuous sexual relations esp. for payment." Webster, Third New International Dictionary. "Prostitution" has a commonly understood meaning which has often been commented on by courts, including our own. " 'Prostitution ... normally suggests sexual relations for hire.' Cleveland v. United States, 329 U.S. 14, 17 (, 67 S.Ct. 13, 14, 91 L.Ed. 12)." State v. Allen, 2 Conn.Cir. 594, 597, 203 A.2d 248 (1964). See 77 A.L.R.3d 519.

The language of § 53a-82 is sufficiently precise to give the defendant fair notice that her conduct was prohibited. "The definition of prostitution as being a person who engages or agrees or offers to engage in sexual conduct with another person in return for a fee is not so vague as to make persons of common intelligence guess at its meaning. Although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that can be sufficiently understood and complied with by the ordinary person exercising ordinary common sense." United States v. Herrera, supra, 1149.

The defendant also claims that § 53a-82 is unconstitutionally vague on its face. Although the general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue, a statute may be challenged for vagueness on its face where it has the potential to inhibit the exercise of the first amendment freedoms of free speech and assembly. Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974); State v. Pickering, supra, 2n.3. The defendant claims that the prostitution statute infringes upon protected first amendment freedoms, and that she therefore may challenge the validity of its application to marginal situations even though her own conduct may clearly fall within the statute's proscriptions. This aspect of the defendant's constitutional vagueness challenge is essentially identical to her claim of overbreadth. While the vices of statutory vagueness and overbreadth are distinct; Mitchell v. King, supra, 169 Conn. 143, 363 A.2d 68; they are often congruent and are functionally indistinguishable when...