United States v. Linnear

DECISION HODGSON, Chief Judge: The accused’s conduct with a cashier at a base exchange branch and a subordinate in the security police squadron resulted in his conviction by military judge alone of pandering, soliciting another to commit prostitution and sodomy in violation of Articles 134 and 125, U.C.M.J., 10 U.S.C.A. §§ 934 and 925. The approved sentence extends to a bad conduct discharge, confinement at hard labor for 16 months and reduction to airman first class. I The accused argues there is insufficient evidence to support his conviction for pandering and soliciting another to commit prostitution. This assignment of error requires some discussion of the facts. The evidence at trial is in general agreement, with the accused contending that the women misunderstood the tenor of his conversations with them. The record established that Senior Airman H. was a security policewoman and the accused was her flight chief. During early fall of 1981, H was in. the accused’s office. There they discussed her future goals and what she wanted out of life. H responded that she “liked nice cars” and “wanted to have a lot of nice things.” The accused asked her if she “had to be in love with someone to go to bed with them.” H was offended by the question and told the accused she thought he was referring to prostitution. The accused denied this, and indicated he was discussing an escort service he planned to start. We find the facts supporting this specification to be insufficient to affirm a conviction for soliciting another to commit prostitution. The term “solicitation” means any statement or act which may be understood to be a serious request to commit an offense. H repeatedly stated she believed the accused when he denied he was suggesting that she engage in prostitution. In summary, we are not convinced beyond a reasonable doubt of the accused’s guilt. Accordingly, Specification 2 of Charge I is set aside and ordered dismissed. As to the pandering allegation, there is ample evidence to support the conviction. B E was a cashier at the base exchange snack bar located in the basement of the headquarters building. She met the accused during February — March 1982, and their conversation drifted toward the past-time of “fooling around.” A week later they again met at the snack bar and the accused suggested that she could make extra money by becoming “one of his girls”; B E understood this to mean being a prostitute. The accused indicated that this would include both oral and group sex. Subsequently they discussed money arrangements which the accused said would be divided “60/40.” Sometime during the later part of March the accused came to the snack bar just as B E was getting ready to open. She closed the door, placed a sheet of paper over the wire opening in the door, and committed fellatio on the accused. Later, B E told the Office of Special Investigations (OSI) of the incident in the snack bar and the accused’s overtures that she become a prostitute. She agreed to meet him at her apartment and to allow law enforcement officials to record their conversation. The transcript established that the accused came to her apartment on 31 March 1982. He suggested there was money to be made with the sale of photographs, i.e., two to four dollars for a set of three. He indicated she would receive 40 percent of the money that she got from the “tricks.”1 The “tricks” would include both — 630 — men and women. He asked her to undress, which she did. At trial and on appeal the accused urges that his conversations with B E were “sexual games or fantasies” between lovers, and he never intended to entice her into being a prostitute. To “entice” means to wrongfully solicit, persuade, procure, allure, attract, draw by brandishment, coax or seduce. United States v. Brown, 8 U.S.C.M.A. 255, 24 C.M.R. 65 (1957). The accused’s conduct meets almost every meaning of the term. His denial as to intent is a question for the fact finder — in this case the trial judge. By his finding of guilty the trial judge indicated his belief that the accused’s purpose was to entice B E into being a prostitute. We concur in that assessment. See generally, United States v. Harris, 8 M.J. 52 (C.M.A.1979). II At trial and on appeal the accused concedes that he and B E engaged in fellatio in a base exchange snack bar during March 1982. However, citing state and federal decisions,2 he argues that this was an act committed in private with a consenting adult and, since constitutionally protected, may not serve as the basis for a criminal prosecution. Assuming, arguendo, that Article 125, U.C.M.J. does not apply to heterosexual sodomy between consenting adults in private, we are not prepared to say that such conduct here was “private” where it occurred in a business establishment open to the general public. In fact there were customers in the outer area waiting for the snack bar to open. That the act took place behind a closed door with a sheet of paper over a wire opening in the door does not make it “private.” Under these circumstances the accused has no basis to claim that his privacy has been invaded. United States v. Scoby, 5 M.J. 160 (C.M.A.1978); United States v. Jones, 14 M.J. 1008 (A.C.M. R.1982). III Finally, the accused maintains that it was prejudicial error for the military judge to impose sentence without first informing the parties what he considered the maximum punishment to be. We disagree. In a bench trial, the military judge is not required to advise counsel as to the maximum punishment imposable before inviting argument as to sentence. United States v. Marshall, 3 M.J. 1047 (A.F.C.M.R.1977); pet. denied 6 M.J. 104 (C.M.A.1978). However, it is the better practice to do so and we strongly suggest that military judges follow such a procedure. The remaining findings of guilty are affirmed. Reassessing the sentence in light of the dismissed specification, the offenses affirmed, and the entire record, we find appropriate only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for 12 months, and reduction to airman first class. Footnotes [1] A “trick” is a professional engagement of a prostitute. Webster’s Third New International Dictionary 2442, 1969. [2] Griswold v. Connecticut, 381 U.S. 479, 494, 85 S.Ct. 1678, 1687, 14 L.Ed.2d 510 (1965); People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980).