State v. Simon
| Decision Date | 23 December 1991 |
| Docket Number | No. 26446-0-I,26446-0-I |
| Citation | 64 Wn.App. 948,831 P.2d 139 |
| Parties | STATE of Washington, Respondent, v. Gregory SIMON, Appellant. |
| Court | Washington Court of Appeals |
Washington Appellate Defender, Theresa B. Doyle, Seattle, for appellant.
Norm Maleng, King County Pros. Atty., Michael Shaw, Deputy, Seattle, for respondent.
Appellant Gregory Simon challenges his conviction for promoting prostitution in the first degree. Specifically, appellant contends that (1) the information was constitutionally defective, (2) there was insufficient evidence to support a conviction under one of the charged means of promoting prostitution, (3) the trial court erred in admitting a detective's testimony about the nature of the relationship between a pimp and prostitute, and (4) the trial court erred in admitting testimony regarding post arrest threats made by appellant. We reverse and remand for a new trial.
On February 22, 1990, the State filed an information charging appellant Gregory Simon with promoting prostitution in the first degree:
That the defendant Gregory Mark Simon[ ] in King County, Washington, during a period intervening between February 15, 1990 to February 18, 1990, did knowingly advance and profit from the prostitution of Bobbie Bart[all], a person who was less than 18 years old;
Contrary to RCW 9A.88.070(1)(b), and against the peace and dignity of the state of Washington.
The day before trial, the State amended the information to charge alternative means of committing the crime:
That the defendant Gregory Mark Simon[ ] in King County, Washington, during a period intervening between February 15, 1990 to February 18, 1990, did knowingly advance and profit by compelling Bobbie J. Bart[all] by threat and force to engage in prostitution; and did advance and profit from the prostitution of Bobbie Bart[all], a person who was less than 18 years old;
Contrary to RCW 9A.88.070(1)(a) and (b), and against the peace and dignity of the state of Washington.
At trial, Simon did not object to the contents of the amended information. Also at trial, both the State and the defense agreed that the State had the burden of proving that Simon knew Bobbie Bartall was under 18.
Bobbie Bartall (Bartall) testified on behalf of the State. Bartall, 17, testified that she began prostituting at the age of 12 in Clackamas, Oregon. In December 1989, Bartall met appellant Gregory Simon (Simon) and Jimmy Love in Portland, Oregon. Jimmy Love later became Bartall's pimp.
In early February 1990, Simon became Bartall's pimp. Bartall testified that Simon "kind of decided that I would be with him." Bartall testified that Simon informed Jimmy Love that he was taking over as Bartall's pimp.
With money that Bartall earned from prostituting, Simon bought train tickets to Seattle. Before leaving for Seattle, Simon arranged to have false identification made for Bartall because she had several warrants out for her arrest and because she was only 17. Bartall testified that Simon knew that she was 17 because he had seen her birth certificate, her GED, and her army papers, and also because she had told him that she was 17.
In Seattle, Bartall and Simon moved into the Greenlake Motel. Bartall testified that Simon paid for the room with money that she had given him. Bartall stated that she worked as a prostitute for 4 or 5 days in Seattle and that she turned the money she earned over to Simon.
Bartall testified that at one point when she told Simon she wanted to leave, Simon "[b]asically told me that it wasn't going to be that way." Another time when Bartall told Simon that she was leaving, Bartall testified that Simon "grabbed me at the door and dragged me into the motel room, and we struggled for a moment, and he brought me in." When asked if she felt she could leave Simon, Bartall testified:
A No.
Q Why not?
A Basically because once they see you can get money for them, they are not going to want you to leave. And you can always get money. And after that one incident, when I started to walk out the door, he was just--like he said he knew how to find me if I'd leave.
Q He would know to find you?
A Yes.
Q Did he know where to find you?
A Yes.
Q Where would that be?
A He knew where my house was, where the apartments [were]. He knew basically the spots where I hung out, the town I was from, you know, stuff like that. He had phone numbers of mine--addresses.
On February 18, 1990, Simon gave Bartall $35.00 to purchase clothing for use in prostitution. Bartall went to the Bon Marche at Northgate where she was arrested for shoplifting. Bartall told the arresting officer her true name and that she was a prostitute. She also told the officer that Simon was her pimp. Subsequently, Simon was arrested at the Greenlake Motel.
When asked by the prosecutor why she was willing to testify against Simon, Bartall stated:
A Basically because once the thing--Once they did arrest him, he began to make threats towards me.
Q Did you directly talk to the defendant?
A No, I did not.
Q So what you are talking about was something that was indirect?
A The sergeant told me.
Q And is that--That's why you are willing to testify as a witness in this case?
A That's not all of it.
Q What's the rest of it?
A It's part of it. Basically because I'm tired of pimps being able to just think since they got the title of a pimp, they can go around abusing and using people.
The defense later moved for a mistrial arguing that the threats allegedly made by Simon after his arrest were hearsay and prejudicial. The trial court held that a mistrial was not appropriate because, from the testimony, it was clear that the threats were not directly from Simon; therefore, the jury would not be unduly confused or prejudiced. The court also stated that the testimony was relevant to Bartall's state of mind and her willingness to testify.
The State also called Detective Robert Benson. Detective Benson, a Seattle Police vice detective, took a statement from Bartall after her arrest for shoplifting. Detective Benson had been involved in investigating street prostitution for over 6 years and had investigated over 400 prostitution related crimes. Detective Benson testified about his contact with prostitutes and about his conversations with prostitutes regarding the pimp/prostitute relationship. Detective Benson stated that he had investigated over 50 promoting prostitution cases. Detective Benson also testified that he had taken no course work in this area and that there are no courses for police officers that cover arresting prostitutes or investigating promotion of prostitution. The court qualified Detective Benson as an expert, over defense objections of lack of foundation.
Detective Benson then testified, based on his experience, about the relationship between a pimp and a prostitute:
A I would have to say that my experience indicates that there are in fact two separate and distinct relationships based essentially on the same premises. And that is the pimp's psychological manipulation of the prostitute. And, in fact, there are what are referred to as a "Hard Mack" and a "Soft Mack."
Q What does the term "Mack" mean?
A "Mack" is a street word that used to refer to a pimp. And it comes from the French word for pimp.
Q Okay.
A A "Soft Mack" typically will be--Most prostitutes will encounter a "Soft Mack" before a "Hard Mack." The "Soft Mack" will be what's referred to as a boyfriend pimp. It will be somebody who butters her and tells her that she's real good looking, and we can have our way with the world, babe. Just go out and get us some money. He's the pimp that will convince her that he is in love with her, and this is their avenue to progress in the world. And then there's the "Hard Mack." And generally, when a gal encounters a "Hard Mack," some[one] who is very forceful and psychologically dominating, they are already in the state of mind where they are amenable to that person's suggestions or threats, even if the threats aren't overt; they are in a frame of mind where they are amenable.
....
Q What sort of personalities do most of the prostitutes have that you have come in contact with?
A Most of the prostitutes that I have come in contact with have had very little or no self-esteem. They think very poorly of themselves. They are essentially, in their own minds, they are worthless.
....
Q Do most of the prostitutes that you had contact with enjoy being prostitutes?
A No, they don't.
Q Why do they continue doing it?
A They have no option.
Q In their mind they have no option?
A Correct.
Q In terms of the financial relationship between a pimp and a prostitute, what would be a typical financial relationship?
A The financial--The standard financial relationship is that the prostitute gives the pimp every penny that she earns. And say, for example, if she smokes cigarettes she'd have to come to him to get money back to go buy cigarettes. If a pimp finds a prostitute holding out any of her profits, in some cases, well, that's grounds for punishment, whatever his punishment might be.
Q How do pimps regulate maintaining their stock of prostitutes? Is that question clear?
Q Maybe I can rephrase it.
A Yes.
Q How is it that a pimp manages to keep control of or have access to prostitutes?
A Okay. The prostitutes come from the ranks of the runaways. Essentially, by keeping in contact with the people that are on the street looking for...
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