State v. Demott

VAUGHN, Judge. Defendant contends that the prostitution statute is unconstitutional on its face for vagueness and overbreadth. G.S. 14-203 defines “prostitution” as follows: “The term ‘prostitution’ shall be construed to include the offering or receiving of the body for sexual intercourse for hire, and shall also be construed to include the offering or receiving of the body for indiscriminate sexual intercourse without hire. The term ‘assignation’ shall be construed to include the making of any appointment or engagement for prostitution or any act in furtherance of such appointment or engagement.” The statute under which defendant was tried is as follows: “14-204. Prostitution and various acts abetting prostitution unlawful. — It shall be unlawful: (1) To keep, set up, maintain, or operate any place, structure, building or conveyance for the purpose of prostitution or assignation. (2) To occupy any place, structure, building, or conveyance for the purpose of prostitution or assignation; or for any person to permit any place, structure, building or conveyance owned by him or under his control to be used *18 for the purpose of prostitution or assignation, with knowledge or reasonable cause to know that the same is, or is to be, used for such purpose. (8) To receive, or to offer or agree to receive any person into any place, structure, building, or conveyance for the purpose of prostitution or assignation, or to permit any person to remain there for such purpose. (4) To direct, take, or transport, or to offer or agree to take or transport, any person to any place, structure, or building or to any other person, with knowledge or reasonable cause to know that the purpose of such directing, taking, or transporting is prostitution or assignation. (5) To procure, or to solicit, or to offer to procure or solicit for the purpose of prostitution or assignation. (6) To reside in, enter, or remain in any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution or assignation. (7) To engage in prostitution or assignation, or to aid or abet prostitution or assignation by any means whatsoever.” At trial, defendant did not raise any question about the constitutionality of the statute. Nevertheless, we have considered the arguments set out in her brief on this question and find those arguments without merit. Defendant contends that the cases should have been dismissed because the State’s own evidence discloses entrapment as a matter of law. “Entrapment is a defense and prosecution is barred only when it is established that the criminal intent started in the mind of the officer or agent of the State and by him was implanted in the innocent mind of the accused, luring him into commission of an offense which he would not otherwise have committed. In this State the burden is on the defendant to establish the defense of entrapment to the satisfaction of the jury.” (Emphasis added.) State v. Salame, 24 N.C. App. 1, 7, 210 S.E. 2d 77, 81. The State’s evidence did not establish entrapment as a matter of law. The question was properly left for determination by *19 the jury under instructions to which no exceptions are brought forward on appeal. Defendant contends that she has been convicted more than once for the same offense in violation of her constitutional guaranty against double jeopardy. The Legislature by enacting G.S. 14-204 “has set forth in six paragraphs definitions in minute detail of numerous substantive offenses, in the main — specific acts pertaining to aiding and abetting prostitution or assignation. And then the Legislature set forth the all-inclusive section which reads: ‘7. To engage in prostitution or assignation, or to aid or abet prostitution or assignation by any means whatsoever.’ ” State v. Cox, 244 N.C. 57, 59, 92 S.E. 2d 413, 415. The evidence here is that on the evening of 4 January 1974, defendant, for the purpose of prostitution, gave the agent directions to the apartment where she lived, entered the apartment with him, and there offered her body to him for sexual intercourse for the sum of $100.00, all at the agent’s request. This evidence is evidence of defendant’s guilt of violating the three subsections with which she was charged, and possibly others. For example, the violation of 14-204(4) was complete when she directed and invited the agent to her apartment for prostitution, the violation of 14-204(6) was complete when she entered her apartment with him for that purpose and, after entering her apartment, she violated 14-204(2) by occupying it for the purpose of prostitution. The allegations in warrants charging violations or subsections (2), (4) and (6) can be, as here, so cast that neither offense is made an essential element of any other. Here, neither warrant relies on the elements of the offense charged in either of the others. Although the three statutory charges grew out of the same transaction, a bilateral application of the facts required to prove any one of the charges would not necessarily prove either of the others. Defendant’s constitutional guaranty against multiple punishments for the same offense has not been violated. Although not suggested by either party on appeal, we believe there is a reason to modify the judgments entered in the Superior Court when the spirit and intent of the statute is considered. *20 The statute seeks to punish those who offer their bodies for sexual intercourse for hire and to punish those who, by any means, knowingly aid and promote that activity. The enterprise sought to be proscribed, the offering of the body for hire, has been fragmented into multiple substantive offenses. This fragmentation serves the laudable purpose of not only punishing those who, at any stage, engage in the promotion of the enterprise, but is an obvious prosecutorial aid to those whose respon-siblity it is to suppress the vice. Although the defendant here could have been convicted under even more of the foregoing sections, we do not believe it to have been the legislative intent that she be separately and cumulatively punished under three of them for her conduct with agent Gray on the evening in question. As a practical matter anyone who has violated subsection (7) of G.S. 14-204, which is the gravamen of defendant’s offensive conduct, has most likely, in the process of doing so, violated one or more of the other subsections of the statute. The Legislature, by making each step taken in furtherance of the vice of offering the body for sexual hire a separate crime, has made it possible to obtain convictions where, given the nature of the activity, they would otherwise be most difficult to obtain. It punishes all who aid and abet prostitution by the means set out in the statute or by “any means whatsoever” to the same extent that it punishes those who offer their bodies for that purpose. We believe that this was what the Legislature sought to accomplish rather than to pyramid the punishment. Accordingly, on the facts of these cases, involving this particular statute, we arrest judgment in two of the cases and allow the third to stand. In No. 74CR21709 — No error. In No. 74CR21710 — Judgment arrested. In No. 74CR21711 — Judgment arrested. Judges Martin and Arnold concur.