State v. Linder

• Decision Date: 02 March 1981
• Docket Number: No. WD,WD
• Citation: 613 S.W.2d 918
• Parties: STATE of Missouri, Respondent, v. Linda J. LINDER, Appellant. 31676.
• Court: Missouri Court of Appeals

Page 918

613 S.W.2d 918

STATE of Missouri, Respondent, v. Linda J. LINDER, Appellant.

No. WD 31676.

Missouri Court of Appeals, Western District.

March 2, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 30, 1981.

As Modified On Court's Own Motion April 16, 1981.

Application to Transfer Denied May 11, 1981.

Philip F. Cardarella & Katheryn Shields, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

Before MANFORD, P. J., WASSERSTROM, C. J., and NUGENT, J MANFORD, Presiding Judge.

This is a direct appeal from a jury conviction for promoting prostitution of one under the age of 16 years. The jury assessed punishment at eight years in the Department of Corrections. The judgment is affirmed.

Five points of error are presented on appeal, which in summary allege the trial court erred in (1) overruling appellant's motion for directed verdict because the evidence was insufficient to support a jury finding that appellant caused or ordered a person to commit or engage in an act of prostitution; (2) improperly instructing the jury regarding the elements of § 567.050 by the use of MAI-CR 21.06 because said instruction was not applicable to the facts of the case and by the refusal of offered MAI-CR 33.01; (3) refusing to direct a verdict that the evidence was insufficient to support a jury finding that any act of prostitution occurred; (4) in allowing impermissible argument by the prosecutor and (5) allowing the introduction of unrelated crimes.

Appellant had a 14-year-old daughter. On January 30 at about 9:00 p. m., this girl had retired to her bed, at which time her stepfather joined her (in bed). At a later hour, appellant observed the two in bed, an argument ensued and appellant left the residence. The stepfather got back in bed with the girl. Later, appellant phoned the residence and when her daughter answered the phone, appellant asked the girl if she was dressed. The daughter handed the phone to her stepfather, got up and dressed. The stepfather then gave the girl appellant's coat and the two of them left the residence. The stepfather drove the girl to the Howard Johnson Motel. The girl was told to go to Room 140, knock on the door and ask for the "man from San Antone". Although the girl had some difficulty locating Room 140, she was soon assisted by her stepfather who helped her locate the room. She knocked on the door and was admitted. The stepfather then left the motel without approaching or entering Room 140.

Earlier in the evening, after the argument with her husband, appellant went to the Howard Johnson Motel, whereupon she had drinks with two of the state's witnesses in the motel's cocktail lounge. Appellant asked those witnesses if they wanted some company and "offered to call her sister". She then accompanied one of the witnesses to his room, whereupon they had sexual relations. At this point, appellant and this one witness were joined by the state's second witness. Appellant then proceeded to have sexual relations with the second witness.

After the sexual encounter with the second witness, appellant made a phone call to her daughter from the motel room. The girl later arrived and had sexual relations with both of the state's witnesses. Appellant and her daughter then dressed. The following colloquy relates what took place at this point:

"Q. Okay, and did you overhear any conversations or see anything at that time?

A. Yes, my Mother asked him for the hundred dollars.

Q. Okay, and did you see the man give her some money?

A. Yes."

The daughter went to school the next day, called her grandmother and related the events of the night before.

The two male participants verified that they met appellant in the cocktail lounge and that they both ended up in Room 140 and had sexual relations with appellant and her daughter. They both testified that appellant made a phone call from the motel room. One of these men verified that he paid the $100 by paying appellant with five $20 bills.

Appellant offered no defense. The evidence closed. The jury was instructed and after deliberation, found appellant guilty and assessed punishment. This appeal followed.

As her first point of error, appellant argues that she was entitled to a directed verdict because the evidence failed to support a finding that appellant caused or ordered a person to commit or engage in an act of prostitution. Appellant argues that the evidence fails to show beyond a reasonable doubt that she was guilty of violating § 567.050, RSMo 1978. That statute reads as follows:

"567.050. Promoting prostitution in the first degree ¹

1. A person commits the crime of promoting prostitution in the first degree if he knowingly

(1) Promotes prostitution by compelling a person to enter into, engage in, or remain in prostitution; or

(2) Promotes prostitution of a person less than sixteen years old.

2. The term "compelling" includes

(1) The use of forcible compulsion;

(2) The use of a drug or intoxicating substance to render a person incapable of controlling his conduct or appreciating its nature;

(3) Withholding or threatening to withhold dangerous drugs or a narcotic from a drug dependent person.

3. Promoting prostitution in the first degree is a class B felony."

Reducing the statute to its simplest form and without conceding that the evidence supports a finding that an act of prostitution occurred, appellant argues that under the statute, a person cannot promote prostitution if that person is acting as a prostitute. Appellant refers this court to § 567.010, RSMo 1978. The section pertinent reads as follows:

"(1) 'Promoting prostitution', a person 'promotes prostitution' if, acting other than as a prostitute or a patron of a prostitute, he knowingly

(a) Causes or aids a person to commit or engage in prostitution; or ...

(c) Provides persons or premises for prostitution purposes; or ...

(f) Engages in any conduct designed to institute, aid or facilitate an act or enterprise of prostitution ..."

In her argument, appellant references (1)(a) of § 567.010 and from that, urges this court to adopt a hard and fast rule declaring that one who is a prostitute could not be guilty of promoting prostitution under § 567.050. Respondent argues that §§ 567.050 and 567.010 as interrelated, "simply mean(s) that a prostitute may not be charged with promoting the prostitution of herself."

This is a case of first impression in our state and as a result thereof, there is no Missouri precedent to guide this court. Appellant directs the court's attention to decisions from our sister state of New York. Appellant argues that our statute is patterned after the New York statute, see New York Penal Law, § 230.00, et seq. The two decisions from New York are People v. Trinci, 7 A.D.2d 885, 181 N.Y.S.2d 256 (1959), cert. denied 362 U.S. 914, 80 S.Ct. 665, 4 L.Ed.2d 621 (1960) and People v. Jelke, 1 N.Y.2d 321, 152 N.Y.S.2d 479, 135 N.E.2d 213 (1956). These New York cases dealt with New York Penal Statute, § 2460, which was repealed in 1978 and replaced by § 230, et seq. The revision incorporated much of the previous language of § 2460. In neither of the foregoing New York decisions did the courts conclude, as appellant contends, that a prostitute could not be found guilty of promoting prostitution. The Trinci case turned upon the insufficiency of the evidence to support a conviction for placing a female in the charge or custody of another for immoral purposes, which is a prescribed, prohibited act within the New York statute. The Jelke case turned upon the court's interpretation of the New York statute and stated that the main purpose of the statute (which prohibits attempts to entice a woman to live a life of prostitution) is "to get the tycoons of organized vice, ..." Jelke, 152 N.Y.S.2d at 483, 135 N.E.2d at 216. It is clear, both from the reading of the New York statute and the reading of Trinci and Jelke that none is controlling of the instant case. This court also finds the case of People v. Gallucci, 62 A.D.2d 1129, 404 N.Y.S.2d 768 (1978), which involved insufficiency of the evidence to convict an accused under the New York Statute for promoting prostitution arising from a stag party, is not controlling.

In attempting to determine the legislative intent of §§ 567.010 and 567.050, the court has considered and found the comments to those sections to be persuasive. It appears from the reading of such comments that well-defined rules of interpretation emerge. Section 567.010 has been designed to eliminate the need for separate statutes covering the procuring of, pimping of, transporting of, keeping a house for prostitution or leasing of such facilities for, or profiting from the earnings of prostitutes. This same section includes the language, "any other conduct designed to institute, aid or facilitate an act or enterprise of prostitution..."

Thus, it can be concluded, both from the reading of § 567.010 and the accompanying comments that our state statute is designed to encompass the New York statute. It cannot be said, as appellant contends, that because she may have engaged in prostitution, she is insulated from the statute charging her with promotion. The legislative intent expressed within § 567.010(1) simply excludes the prosecution of a prostitute or a patron for promoting prostitution in a single act of prostitution involving only the prostitute and the patron. Neither the prostitute nor the patron can be charged with the promotion of prostitution in a case involving only an act of prostitution as between them. Rather, the promotion of prostitution under § 567.050 involves a third party.

What appellant overlooks are the events which took place in the instant case and the fact that, in line with § 567.050, the acts of appellant were inclusive of prostitution and the promotion of prostitution. The fact that appellant had previously engaged in...