State v. Charity

• Decision Date: 07 July 1982
• Docket Number: No. 12416,12416
• Citation: 637 S.W.2d 319
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Thomas CHARITY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 319

637 S.W.2d 319

STATE of Missouri, Plaintiff-Respondent, v. Thomas CHARITY, Defendant-Appellant.

No. 12416.

Missouri Court of Appeals, Southern District, Division Two.

July 7, 1982.

Motion for Rehearing or to Transfer Denied July 26, 1982.

Application to Transfer Denied Sept. 13, 1982.

Michael Baker, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., William K. Haas, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Chief Judge.

The defendant was charged with the class C felony of promoting prostitution in the second degree by controlling a prostitution enterprise involving two or more prostitutes. He was found guilty by a jury and sentenced to seven years' imprisonment. By astute counsel he presents eight points of alleged error by the circuit court.

By one of those points the defendant asserts the circuit court erred in failing to quash the information because the same violated designated sections of the Constitution of the United States and the State of Missouri. The point further states the conduct prohibited is so broadly defined as not to properly state what is prohibited and to interfere with freedom of speech. He adds that the "conduct prohibited by the statute and charged in the information is so broad and vague" to not adequately apprise the defendant of the crime with which he was charged.

Even though the defendant acknowledged this court has jurisdiction of this appeal, this point requires this court to determine if that is true. If this case involves the validity of a statute of this state in the constitutional sense, this court does not have jurisdiction of the appeal. Art. 5, § 3, Mo.Const., as amended 1976. However, the mere assertion of statutory invalidity does not deprive this court of appellate jurisdiction. Little River Drainage Dist. v. Houck, 282 Mo. 458, 222 S.W. 384 (banc 1920). "In order to deprive this court of appellate jurisdiction the constitutional question must be real and substantial and not merely colorable." Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 767 (Mo.App.1974).

A claim of violation of a constitutional guaranty may be said to be substantial when, upon preliminary inquiry, the contention discloses a contested matter of right, involving some fair doubt and reasonable room for controversy; but, if such preliminary inquiry discloses that the contention is so obviously unsubstantial and insufficient, either in fact or in law, as to be plainly without merit and a mere pretense, the claim may be deemed to be merely colorable. State v. Egan, 272 S.W.2d 719, 725 (Mo.App.1954).

This point of the defendant does not remove this appeal from the jurisdiction of this court. A motion alleging that an information is void for lack of specificity does not raise a constitutional issue. State v. Hale, 248 S.W. 958 (Mo.1923). Also, in view of the defendant's limited attack and the authorities upholding that part of the Missouri Criminal Code in question, such as Caesar's Health Club v. St. Louis County, 565 S.W.2d 783 (Mo.App.1978), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978); J.B.K., Inc. v. Caron, 600 F.2d 710 (8th Cir. 1979), if the motion could be said to raise the validity of the statute, the contention is merely colorable and not substantial. Caesar's Health Club, supra, and J.B.K., Inc., supra, also clearly establish the defendant's attack upon the specificity of the information is ill founded.

The defendant makes a limited attack upon the sufficiency of the evidence and the sufficiency of the evidence to support the verdict directing instruction. In considering those points this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deductible therefrom tending to support the verdict and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). When so considered, the evidence established the following general facts.

Through a manager, the defendant operated the Aquarius Massage Parlor in Joplin. Upon entering the establishment a customer was told of the types of massages available and the prices. The females on duty were displayed and the customer selected his masseuse. Initially the customer was told no sex was available, but in the "backroom" he learned sex was available for an additional charge. The defendant paid the females a net of approximately $89 per week. If a customer desired sex an additional charge was negotiated by the masseuse and she received the additional charge. The masseuses were told not to charge less than an additional $20 for sex. The one female who was asked about it said she had made in excess of $2,000 per week. Another said she gave the defendant part of her "tips." The females were instructed to have sex only if the customer had paid for one of the higher priced massages, such as a "one-girl nude," price $40. If a customer desiring sex had not paid such an amount to the front desk, he had to do so before sex was permitted. A female who violated this rule would be fired.

The defendant's attack is that there was no evidence that during the period charged of August 1, 1979, to October 1, 1979, two or more females engaged in prostitution activity at the Aquarius. The first female who testified said she plied her trade at the Aquarius from February, 1978, to July, 1979. She explained in detail the operation of the business. The next witness testified that he managed the business for the defendant from July, 1977, to January, 1980. He stated that typically the business was staffed with three females in the daytime and five females at night. He confirmed the operation of the business in the manner detailed by the first witness. The second female witness specifically testified that she worked as a prostitute in the manner detailed at the Aquarius during the period in question. In this connection, she stated "(t)he only thing he told us not to have sex on anything less than one-girl nude." (Emphasis added). A third female was called by the defendant. She stated she worked as a prostitute at the Aquarius from 1976 or 1977 to an undisclosed date, but the defendant did not know she engaged in prostitution. The testimony of the manager and the other two females provide a credible basis from which the jury could find the defendant had full knowledge of all activities at the Aquarius, contrary to the defendant's contention. That testimony is also a basis for the jury to conclude that two or more females worked as prostitutes at the Aquarius from August 1, 1979, to October 1, 1979. This is emphasized by the testimony of the manager concerning a typical staff. Any doubt is removed by the manager's testimony that on August 9, 1979, he fired a female, not the one that testified, who engaged in sex with a customer who had paid the management for only a $20 massage.

The defendant's next two points are based upon an alleged nondisclosure by the state. On April 7, 1980, the defendant filed in the associate division of the circuit court a request for disclosure. While the request did not specifically mention Rule 25.03, it did request disclosure substantially as outlined in that rule. Thereafter, the defendant waived a preliminary hearing and was bound over to the circuit court. The transcript was filed in the circuit court on April 24, 1980. Thereafter, on May 13, 1980, the information was filed in the circuit court. On April 6, 1981, seven days before the case was for trial, the defendant filed in the circuit court a motion to compel disclosure. The motion was overruled. During the trial, the defendant objected to the state's witnesses testifying because the state had not disclosed their names and addresses, their police records and any statements given to the state. The court overruled these objections. The names of the witnesses were endorsed upon the information. The trial examination of these witnesses revealed only that one had misdemeanor charges in Arkansas that were dropped and another had given a statement to the state. Other than this, there is no showing in the record concerning what a disclosure by the state would have revealed.

By these two points the defendant argues the trial court committed reversible error because he was entitled to disclosure under Rule 25.03 and because the absence of disclosure caused his trial to be fundamentally unfair and deprived him of his constitutional right to due process. To support this argument he asserts that disclosure probably would have revealed information by which he could have effectively impeached the state's witnesses.

By the latter part of his argument, the defendant is apparently referring to the doctrine against the suppression of evidence by the state enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and further developed in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Also see State v Collor, 502 S.W.2d 258 (Mo.1973); State v. Bebee, 577 S.W.2d 658 (Mo.App.1979); Lee v. State, 573 S.W.2d 131 (Mo.App.1978). However, in making this argument the defendant has failed to distinguish between the duty of the state to disclose under Rule 25.03 and under the doctrine of Brady. The distinction is noted in State v. Thompson, 610 S.W.2d 629 (Mo.1981). While disclosure under Rule 25 has constitutional underpinnings, State v. Wilkinson, 606 S.W.2d 632 (Mo. banc 1980), its purpose is also to allow a party to prepare for trial and eliminate surprise. Simeone, The New Rules of Criminal Discovery in Missouri, 31 Mo.Bar Journal 16 (1975). The scope of materials subject to disclosure under Rule 25 is broader than under the Brady doctrine. There is also a difference in the procedure by which defendant creates a duty for the state to disclose under Rule 25.03 and the proof necessary to establish there was a duty for the state to disclose under the Brady...