State v. Hartman
| Decision Date | 02 July 1992 |
| Docket Number | No. 49A02-9110-CR-452,49A02-9110-CR-452 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. John HARTMAN, Appellee-Defendant. 1 |
| Court | Indiana Appellate Court |
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellant-plaintiff.
Dennis E. Zahn, James H. Voyles, Indianapolis, for appellee-defendant.
Pursuant to IND.CODE Sec. 35-38-4-2(1), the State of Indiana appeals the grant of John Hartman's motion to dismiss an action charging him with Promoting Prostitution, 2 a Class C felony. We reverse and remand.
The sole issue on appeal is whether the trial court erred in granting Hartman's motion to dismiss the charge of promoting prostitution.
On September 6, 1988, Richard Truog contacted an escort service to arrange for an "escort" to perform a sexual act. Truog was informed that his "escort" would call him. Hartman, the "escort," called Truog and directed him to Hartman's home, and they engaged in a sexual act. On September 20, 1991, the State filed an information and probable cause affidavit alleging that Hartman promoted prostitution. The trial court granted Hartman's motion to dismiss finding that the statute was intended to reach the conduct of a third party, and not the immediate parties to the act of prostitution. Record at 35.
Hartman was charged with violating IND.CODE Sec. 35-45-4-4(5). This subsection provides that a person who "knowingly or intentionally conducts or directs another person to a place for the purpose of prostitution commits promoting prostitution[.]" No Indiana cases have dealt previously with this subsection.
In Benjamin v. State (1987), Ind.App., 508 N.E.2d 1360, the court considered the argument that I.C. Sec. 35-45-4-4 was designed to criminalize activities of third persons promoting prostitution, not that of the prostitute or the patron. Id. at 1361. Benjamin was charged under subsection 3, which provides that a person who "having control over the use of a place, knowingly or intentionally permits another person to use the place for prostitution; ... commits promoting prostitution." The Benjamin court determined that subsection 3 was not limited to a third-party promoter who provided the place for another to commit prostitution. Id. The court found that the language was broader and encompassed permitting prostitution in a place over which the prostitute has control. Id. at 1362.
We follow the reasoning in Benjamin and conclude that subsection 5 is not restricted to nonparticipating third persons, but that it includes the prostitute who directs the patron to a place for the purpose of prostitution. In construing subsection 5, we must give the words their plain, ordinary, and usual meaning. Id. The language is clear and requires only that 1) a person; 2) knowingly or intentionally conduct or direct; 3) another person; 4) to a place for prostitution. See I.C. Sec. 35-45-4-4(5). We will not add a requirement that the person giving the directions be a nonparticipating third party; only the legislature has that prerogative. If the legislature intended only to include nonparticipating third parties under subsection 5, such change must be made by the legislature.
Lastly, we note that the trial court relied upon Miller v. State (1889), 121 Ind. 294, 23 N.E. 94. The reliance upon Miller is misplaced because the case considered the forerunner of I.C. Sec. 35-45-4-4(1), which contains clear language requiring a third party. We find Miller to be distinguishable from the case at bar which is based upon I.C. Sec. 35-45-4-4(5) that does not contain similar language.
Reversed and remanded.
The intention of the legislature constitutes the law. Wedmore v. State (1954), 233 Ind. 545, 551, 122 N.E.2d 1, 4. Therefore, "[i]n reviewing a statute, our foremost objective is to determine and effect legislative intent." Spaulding v. Int'l Bakers Serv., Inc. (1990), Ind., 550 N.E.2d 307, 309.
In my view, this court in Benjamin v. State (1987), Ind.App., 508 N.E.2d 1360 and again today ignored this primary rule of statutory construction, leading to a construction of IND.CODE 35-45-4-4 antithetical to the intent of the General Assembly, and raising serious problems under Art. 1, Secs. 16 and 18 of the Indiana constitution. I must therefore respectfully dissent from the majority opinion.
Three Indiana statutes proscribe the different aspects of remunerated sexual activity: 1
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 a 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;
(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.
The majority relies on the plain meaning rule to hold subsection 5 of the promoting prostitution statute, IND.CODE 35-45-4-4, is not restricted to nonparticipating third parties to a given act of prostitution. I disagree. In my view, subsection 5 applies only to third party non-participants to a given act of prostitution.
The plain meaning rule of IND.CODE 1-1-4-1(1), "which holds that statutory words will be accorded their ordinary significance and commonly accepted meaning ... 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." Park 100 Development Co. v. Indiana Dep't of State Revenue (1981), Ind., 429 N.E.2d 220, 222 (emphasis added). 2 See also Johnson County Farm Bureau Coop. Assoc. v. Indiana Dep't of Revenue (1991), Ind. Tax, 568 N.E.2d 578, 583, aff'd, Ind., 585 N.E.2d 1336. In determining legislative intent, it is proper to review the drafters' explanations of a statute. Indiana Aeronautics Comm'n v. Ambassadair, Inc. (1977), 267 Ind. 137, 368 N.E.2d 1340, cert. denied sub nom. Four Winds, Inc. v. Indiana Aeronautics Comm'n (1978), 436 U.S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403. Moreover, we cannot presume the legislature intended to enact a statute with an absurd result. State, ex rel. Hatcher v. Lake Superior Court (1986), Ind., 500 N.E.2d 737.
Here, the clearest expression of the legislature's intent is contained in the comments the Criminal Law Study Commission included in its proposed final draft of the 1976 revision of our penal code. With regard to IND.CODE 35-45-4-4, the Commission stated:
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. 45-45-4-2 and I.C. 35-45-4-3], who is acting in collaboration with a prostitute, or who knowingly facilitates or renders help in the practice of prostitution.
Benjamin, supra, at 1361 (quoting Indiana Penal Code, Proposed Final Draft, p. 129 (Criminal Law Study Commission 1974)) (emphasis in original and added).
Although not binding, see Indiana Aeronautics Comm'n, supra, these explanations nonetheless strike me as dispositive of intent in this instance because the General Assembly adopted the proposed final drafts of IND.CODE 35-45-4-2, prostitution, 35-45-4-3, patronizing a prostitute, and 35-45-4-4, promoting prostitution, without revision, and more importantly, because a reading of IND. CODE 35-45-4-4 that allows prosecutions like the present one will lead to absurd results.
Imagine the typical portrayal of a prostitution scene. A prostitute standing on a street corner is approached by a potential patron. The two agree to a remunerated sexual act. They have now violated the prostitution and patronizing a prostitute statutes, respectively, and for the purpose of getting convictions for prostitution and patronizing a prostitute, nothing more is needed. In the real world, however, the agreement will probably be consummated. It may be consummated on the spot, in public, but it is far more likely that the prostitute or the patron will "direct" or "conduct" the other to a place with some degree of privacy. In the majority's view, whichever party suggested the place is now subject to liability under subsection 5. Moreover, if the place...
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State v. Hartman
...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 The State presented the following facts in its affidavit for probable cause. On September 6, 1......