State v. Hartman

• Decision Date: 13 November 1992
• Docket Number: No. 49S02-9211-CR-911,49S02-9211-CR-911
• Citation: 602 N.E.2d 1011
• Parties: STATE of Indiana, Appellant (Plaintiff Below), v. John HARTMAN, Appellee (Defendant Below).
• Court: Indiana Supreme Court

Page 1011

602 N.E.2d 1011

STATE of Indiana, Appellant (Plaintiff Below), v. John HARTMAN, Appellee (Defendant Below).

No. 49S02-9211-CR-911.

Supreme Court of Indiana.

Nov. 13, 1992.

Linley E. Pearson, Atty. Gen. of Indiana and Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellant.

Dennis E. Zahn and James H. Voyles, Indianapolis, for appellee.

ON CRIMINAL PETITION TO TRANSFER

SHEPARD, Chief Justice.

This controversy involves Indiana's prostitution laws, and it is best described in plain English: Can the State use the "pimp" statute to charge a prostitute with a felony for engaging in conduct that is otherwise by definition only a misdemeanor? We hold it cannot.

On September 20, 1990, appellee John Hartman was charged with promoting prostitution, a class C felony, Ind.Code Ann. Sec. 35-45-4-4(5) (West 1986). He moved to dismiss for failure to plead facts constituting an offense under the statute. The trial court granted Hartman's motion. A divided Court of Appeals reversed and remanded for trial. State v. Hartman (1992), Ind.App., 594 N.E.2d 830. We grant Hartman's petition to transfer.

The State presented the following facts in its affidavit for probable cause. On September 6, 1988, Richard Truog contacted an Indianapolis escort service by telephone to arrange for an "escort" to perform a sexual act on him. Truog spoke with a man who called himself Jim. Truog paid $125 for his "escort" by giving his credit card number over the phone. Jim advised him that an employee of the escort service named John would call him and arrange a rendezvous. Appellee John Hartman later called Truog and gave directions to his home. When Truog arrived at Hartman's residence, Hartman allegedly fondled Truog's genitals. For this the State charged Hartman not with prostitution, a class A misdemeanor, but with promoting prostitution, a class C felony. ¹

Three Indiana statutes proscribe the activities of prostitutes, their patrons, and their pimps. The respective statutes read:

35-45-4-2 Prostitution

Sec. 2. A person who knowingly or intentionally:

(1) performs, or offers or agrees to perform, sexual intercourse or deviate sexual conduct; or

(2) fondles, or offers or agrees to fondle, the genitals of another person;

for money or other property commits prostitution, a Class A misdemeanor. However, the offense is Class D felony if the person has two (2) prior convictions under this section.

35-45-4-3 Patronizing a prostitute

Sec. 3. A person who knowingly or intentionally pays, or offers or agrees to pay, money or other property to another person:

(1) for having engaged in, or on the understanding that the other person will engage in, sexual intercourse or deviate sexual conduct with the person or with any other person; or

(2) for having fondled, or on the understanding that the other person will fondle, the genitals of the person or any other person;

commits patronizing a prostitute, a Class A misdemeanor. However, the offense is a Class D felony if the person has two (2) prior convictions under this section.

35-45-4-4 Promoting prostitution

Sec. 4. A person who:

(1) knowingly or intentionally entices or compels another person to become a prostitute;

(2) knowingly or intentionally procures, or offers or agrees to procure, a person for another person for the purpose of prostitution;

(3) having control over the use of a place, knowingly or intentionally permits another person to use the place for prostitution (4) receives money or other property from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution; or

(5) knowingly or intentionally conducts or directs another person to a place for the purpose of prostitution; commits promoting prostitution, a Class C felony. However, the offense is a Class B felony under subdivision (1) if the person enticed or compelled is under eighteen (18) years of age.

Ind.Code Ann. (West 1986).

The State charged Hartman under subsection (5) of the statute on promoting prostitution. The information alleged that Hartman "did knowingly and unlawfully conduct or direct Richard Truog to a place ... for the purpose of prostitution." In granting Hartman's motion to dismiss, the trial court held that the promoting statute was intended to reach the conduct of a third party, and not the immediate parties to the act of prostitution. The Court of Appeals reversed, declaring that the plain meaning of "directing another person to a place for prostitution" encompassed Hartman's alleged act of calling Truog and giving him directions to his house.

While it is true that the plain meaning of the verb "direct" is consistent with Hartman's actions, we are persuaded that such an interpretation in this case is inconsistent with legislative intent. As Judge Baker noted in his dissenting opinion, the plain meaning rule of statutory interpretation " 'must be applied in conjunction with the basic principle that all statutes should be read where possible to give effect to the intent of the legislature.' " Hartman, 594 N.E.2d at 833 (Baker, J., dissenting) (alteration in original) (quoting Park 100 Dev. Co. v. Indiana Dep't of State Revenue (1981), Ind., 429 N.E.2d 220, 222).

This appeal presents one of those rare instances where the intent of those who wrote the law is readily discerned. The Criminal Law Study Commission included in its proposed final draft of the 1976 revision of the penal code the following comment with regard to Ind.Code Sec. 35-45-4-4:

The proposed section creates a comprehensive single crime of promoting prostitution, embracing various acts which in fact tend to promote prostitution. It reaches the conduct of a third party (for the immediate parties to the act of prostitution are already covered by [I.C. 35-45-4-2 and I.C. 35-45-4-3], who is acting in collaboration with a prostitute, or who is exploiting a prostitute, or who knowingly facilitates or renders help in the practice of prostitution."

Indiana Penal Code 129 (Proposed Final Draft) (Criminal Law Study Commission 1974) (emphasis added).

Beyond this dispositive explanation, reading the three prostitution statutes in context with one another imports an inescapable conclusion: one statute targets the prostitute, another targets the customer, and a third targets the pimp.

It is also worth noting that it takes two prior convictions for...