State v. Massey, 61268

• Decision Date: 21 February 1979
• Docket Number: No. 61268,61268
• Citation: 275 N.W.2d 436
• Parties: STATE of Iowa, Appellee, v. Ronald Arthur MASSEY, Appellant.
• Court: Iowa Supreme Court

Page 436

275 N.W.2d 436

STATE of Iowa, Appellee, v. Ronald Arthur MASSEY, Appellant.

No. 61268.

Supreme Court of Iowa.

Feb. 21, 1979.

Alfredo G. Parrish, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., J. Susan Allender, West Des Moines, Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C. J., and REES, HARRIS, McCORMICK and LARSON, JJ.

McCORMICK, Justice.

We granted further review of a decision of the Court of Appeals affirming defendant Ronald Arthur Massey's conviction by jury and sentence for keeping a house of ill fame in violation of § 724.3, The Code, 1977. He contends the trial court erred in ruling on evidence and in instructing the jury. We vacate the decision of the Court of Appeals and reverse the trial court because of trial court errors in admitting reputation evidence and in instructing upon prostitution.

The statutes involved in this case were repealed as part of the criminal law revision effective January 1, 1978, but this prosecution was unaffected by that event. See § 801.5, 1977 Code Supp.

The jury could find from the evidence that at the times material here defendant operated a business involving the sale of sexual services in Des Moines under the name "Leisure Spa". These services included "massages" and sexual intercourse. The massages were similar to those described in our opinion in State ex rel. Clemens v. Toneca, Inc., 265 N.W.2d 909 (Iowa 1978). The State's evidence showing these activities came from a former employee of defendant and several undercover officers.

Three State witnesses also testified that the Leisure Spa had a general reputation as a front for prostitution. Defendant objected to this testimony on the ground that the foundation requisites specified in State v. Hobbs, 172 N.W.2d 268 (Iowa 1969), were not met, but the trial court overruled the objections after holding the Hobbs requirements did not apply to reputation evidence admitted pursuant to § 724.4, The Code, 1977.

Then, in instructing the jury on the nature of the charge, the trial court defined prostitution as "the performance of a sex act or acts for pecuniary gain". Defendant made a timely objection to the instruction, alleging that prostitution was limited to sexual intercourse for pecuniary gain. The trial court overruled the objection "despite what the cases seem to say."

We hold that the court erred in overruling defendant's objections to the reputation evidence and to the instruction on the offense.

Because these errors require reversal, we do not reach defendant's other claims. They involve matters which should not occur upon retrial.

I. Reputation evidence. Under § 724.4 the State was authorized to introduce evidence of the general reputation of the Leisure Spa as a house of ill fame. The actual character of the premises was an element of the offense, and reputation testimony was admissible as evidence of such character. See State v. Mauch, 236 Iowa 217, 219, 17 N.W.2d 536, 537 (1945) ("guilt is usually established by proof of facts and circumstances which are badges of a bawdy house, and testimony of its reputation as such"); see I Wigmore on Evidence § 78 (Third Ed. 1940).

In State v. Hobbs, 172 N.W.2d 268 (Iowa 1969), this court delineated foundation requirements for testimony about an accused's reputation. They are: "(1) The background, occupation, residence, etc., of the character witness, (2) His familiarity and ability to identify the party whose general reputation was the subject of comment, (3) Whether there have in fact been comments concerning the party's reputation for a given trait, (4) The exact place of these comments, (5) The generality of these comments, many or few in number, (6) Whether from a limited group or class as opposed to a general cross-section of the community, (7) When and how long a period of time the comments have been made". Id. at 272.

The foundation for evidence of the general reputation of defendant's premises in the present case was seriously deficient in several of these particulars. However, the State argues the Hobbs requisites are inapplicable under § 724.4. We have not previously decided this issue.

However, under an analogous statute involving an alleged liquor nuisance, this court held that the general reputation of a place is subject to the same standard as the general reputation of a person. See State v. Pickett, 202 Iowa 1321, 1325, 210 N.W. 782, 783 (1926) ("A general reputation refers to what is said of a person or place generally in the community. It cannot be proven by the statement of one or two individuals, but must be such as is generally current in the community."). In that case the court held it was error to allow police officers to testify to the reputation of a place among themselves.

Reputation evidence is based on hearsay, and its reliability is dependent upon the factors included in the Hobbs foundation requisites. We see no reason why the evidence of the general reputation of a place has less need for reliability than evidence of the general reputation of a person. In either situation the evidence may lead to a defendant's conviction of serious crime.

We hold that the Hobbs foundation requirements are applicable under § 724.4. The only difference is that the word "pla...