State v. Williams, 65124

• Citation: 315 N.W.2d 45
• Decision Date: 20 January 1982
• Docket Number: No. 65124,65124
• Parties: STATE of Iowa, Appellee, v. Gilbert Mitchell WILLIAMS, Jr., Appellant.
• Court: United States State Supreme Court of Iowa

Page 45

315 N.W.2d 45

STATE of Iowa, Appellee, v. Gilbert Mitchell WILLIAMS, Jr., Appellant.

No. 65124.

Supreme Court of Iowa.

Jan. 20, 1982.

Mark J. Wiedenfeld of Grefe & Sidney, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., Dan L. Johnston, Polk County Atty., and Michael E. Hansen, Asst. County Atty., for appellee.

Considered by REYNOLDSON, C. J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

Defendant, Gilbert Mitchell Williams, appeals from his conviction of pimping in violation of section 725.2, The Code, and pandering in violation of section 725.3, The Code. We affirm.

The facts of this case are essentially as follows. On August 27, 1979, Craig Hamilton, a Des Moines police officer, and Debbie Govi, a confidential informant with the Des Moines Police Department, were conducting a prostitution investigation. At approximately 7:00 p.m., pursuant to a prearranged plan, Govi was walking in the downtown area of Des Moines. Barbara Lee, a codefendant, and Susan Wadley confronted Govi and told her she could make a lot of money by engaging in prostitution. Lee and Wadley then introduced Govi to defendant, who discussed prostitution with her and eventually told her he wanted her to work for him as a prostitute.

After Govi's conversation with defendant, she and Hamilton went to the Des Moines Police Station, where Hamilton conferred with another officer and decided to strengthen the case against defendant before filing charges. Govi subsequently returned to the area where she met defendant and delivered a note requesting defendant to call her later. Govi then went to an apartment rented by the police department and awaited defendant's telephone call. During the call, which was tape recorded and introduced into evidence at trial, Govi expressed an interest in becoming a prostitute. Defendant, inter alia, told Govi that she could begin working whenever she was ready; described how to approach potential customers, what precautions to take, what to charge, and how her earnings would be divided with him; and said that he would provide her with protection. Govi agreed to meet defendant the following night.

The next evening Govi met Hamilton and other officers at the police station. The officers took Govi to the Nollen Plaza, where she met defendant. After a brief conversation, Govi walked around the plaza with Lee and Wadley. By prearrangement, Hamilton approached the three women and, posing as a potential customer, motioned for Govi to step aside. Hamilton then instructed Govi to tell Lee and Wadley that she had just been solicited for fifty dollars. Govi did so and asked the two women what she should do. They told her to take him to Room 214 at the Kirkwood Hotel. Hamilton accompanied Govi to the hotel room where they remained for approximately twenty minutes. While in the room, Hamilton gave Govi a marked fifty-dollar bill, but they did not engage in any sexual activity. Hamilton and Govi left the hotel room, and Govi returned to the plaza area and gave defendant the money. Defendant, Wadley, and Lee were then arrested by Hamilton and several other officers. Defendant had the marked bill and the key to the hotel room in his possession at the time of his arrest.

Defendant was tried jointly with Lee, who was charged with pandering for her role in the incident. See State v. Lee, 315 N.W.2d 60 (Iowa 1982). Defendant was convicted by jury verdict of pimping and pandering in violation of sections 725.2 and 725.3, The Code, respectively, and received the maximum sentence allowed by law, see § 902.9(4), The Code. Defendant contends: (1) the evidence is insufficient to support his conviction of either pimping or pandering; (2) the trial court erred in allowing admission of evidence of his prior felony conviction; (3) the evidence is insufficient to support a finding of absence of entrapment; (4) the trial court erred in refusing to allow him to introduce evidence of the State's amendment of and subsequent attempt to amend the trial information; (5) several incidents of prosecutorial misconduct deprived him of a fair trial; (6) the trial court improperly instructed the jury; and (7) the trial court abused its discretion by imposing too severe of a sentence and by failing to state on the record adequate reasons for the sentence.

I. Sufficiency of the evidence. Defendant contends the evidence is insufficient to sustain the jury's verdicts of guilty of either pimping or pandering because (1) both offenses require proof of actual prostitution and (2) even if they do not, the evidence is still insufficient to support a verdict of guilty of either charge. Defendant raised the first contention in a pretrial motion to dismiss the information and raised both contentions in a motion for a directed verdict during trial and again in a posttrial motion for a new trial. All of these motions were overruled.

A. Pandering. Section 725.3, The Code, provides:

A person who persuades or arranges for another to become an inmate of a brothel, or to become a prostitute, such person not having previously engaged in prostitution, or to return to the practice of prostitution after having abandoned it, or who keeps or maintains a brothel or who knowingly takes a share in the income from a brothel, commits a class "D" felony.

(Emphasis added). Defendant was charged with and convicted of violating the italicized portion of this provision. He contends that by virtue of the terms "persuades" and "become" the statute requires the subject of the offense to actually become a prostitute. It is undisputed that undercover agent Govi never intended to become and did not become a prostitute.

In interpreting the meaning of the language at issue, we are guided by familiar rules of statutory construction. It is well established that penal statutes must give fair warning of the conduct prohibited, State v. Price, 237 N.W.2d 813, 815 (Iowa), appeal dismissed, 426 U.S. 916, 96 S.Ct. 2619, 49 L.Ed.2d 370 (1976), and are to be construed strictly, with doubts being resolved in favor of the accused. State v. Lawr, 263 N.W.2d 747, 750 (Iowa 1978). Since the strict construction rule is based on doubt, it will not be applied when it will defeat the obvious intent of the legislature. State v. Powers, 278 N.W.2d 26, 28 (Iowa 1979). In interpreting the meaning of a criminal statute, courts may properly consider the evil sought to be remedied and the purposes or objectives of the enactment. State v. Sullivan, 298 N.W.2d 267, 271 (Iowa 1980). Furthermore, the meaning of a statute may be "ascertained by reference to prior judicial decisions, similar statutes, the dictionary, or common generally accepted usage." Id. at 270. With these principles in mind, we turn to the provision at issue.

Section 725.3 provides that "(a) person who persuades or arranges for another ... to become a prostitute" commits the criminal offense of pandering. (Emphasis added). Defendant focuses on the term "persuades"; he claims the term requires the subject of the offense to actually become a prostitute, and that defendant's conduct merely constituted an attempt to persuade. The State maintains that actual prostitution is not required by section 725.3. Dictionary definitions of "persuade" are not determinative, since the term, in proper context, may mean: to induce by argument into a position or conclusion; plead with, use persuasion upon, urge; or to demonstrate, prove, or bring about. Webster's Third New International Dictionary 1687 (1976). Defendant has not addressed the term "arranges." Arrange is defined as: to put in order; make preparations for, plan; come to an agreement or understanding about; or effect, usually by consulting. Id. at 120. While, as a matter of semantics, it may be argued that use of the terms "persuades" and "arranges" in section 725.3 makes the provision subject to more than one interpretation, we believe the legislature has given clear and fair warning of the conduct prohibited.

The obvious purpose of section 725.3, when read in its entirety, is to prevent the spread of prostitution by imposing punishment for those individuals who encourage commission of the crime. Since the statute is preventive, it would be anomalous for the legislature to require commission of the crime it sought to discourage. Accordingly, we hold that the legislature in using the terms "persuades" or "arranges" did not intend to require an act of actual prostitution as an element of the offense of pandering. Reflective of this intent is the fact that section 725.1, The Code, does not require an act of actual prostitution for a person to be guilty of the criminal offense of prostitution. ¹

Our holding is supported by other authority. One commentator states:

Under statutes which provide that it shall be unlawful to invite, solicit, or procure a female to have unlawful sexual intercourse, the solicitation constitutes the offense, even though the solicitation is unsuccessful, or no illicit intercourse results from the solicitation, since the gist of the offense is not alone the practice of prostitution, but also the spread of prostitution. The woman is not an accomplice, although she consents.

73 C.J.S. Prostitution § 7(b) (1951) (footnotes omitted). And other jurisdictions with comparable statutes prohibiting pandering or similar offenses hold that the crime is committed when the inducement is attempted and that an act of prostitution need not occur. See, e.g., People v. Bradshaw, 31 Cal.App.3d 421, 425, 107 Cal.Rptr. 256, 259 (1973) (under statute defining pandering as using any device to cause, induce, persuade, or encourage another to become prostitute, act of prostitution not necessary element of offense proscribed by word "encourage"); People v. Madison, 93 Ill.App.3d 922, 924, 49 Ill.Dec. 549, 418 N.E.2d 193, 194 (1981) (under statute defining pandering as arranging or offering to arrange situation in which...