State v. Barrington , 52 Wash. App. 478 ( 1988 )

Swanson, J.

This appeal challenges Gerald M. Barring-ton's conviction of promoting prostitution in the first degree as charged in count 2¹ on the grounds that (1) he was denied his right to a unanimous jury verdict; (2) the evidence as to his knowledge of the prostitute's age was insufficient to sustain a first degree promoting prostitution conviction; and (3) the court's instruction defining the knowledge element is erroneous.

Count 2 of the amended information charged that Barrington "during a period of time intervening between June 1, 1986 and August 28, 1986, did knowingly advance and profit from prostitution of Kimberly Lott, a person who was less than 18 years old; contrary to RCW 9A.88.070-(l)(b),. . ."

The State's evidence consisted primarily of the testimony of Lott and several police officers. Barrington did not testify or offer any contradictory evidence. Lott described the circumstances surrounding her first meeting with Barring-ton in early June of 1986 in downtown Seattle and thereafter on Aurora Avenue. She testified that their association began that evening when he picked her up, took her home and she turned her money over to him. She described her association with the appellant as essentially a business relationship in which she committed acts of prostitution and gave the proceeds received from such activity to the defendant. She testified that she worked for him virtually every day and earned $300 to $400 a day. He took all of her earnings, provided her transportation and lodging when needed, directed her activity and gave her money for expenses. It was only when Barrington "beat her up" in August of 1986 that she went to the police and their relationship terminated.

Because Lott testified to many acts of prostitution which took place over a period of months and also described in some detail Barrington's actions in promoting and benefiting from her prostitution, appellant contends that a jury could disagree as to which acts constituted the crime charged. Therefore, appellant argues that an instruction on jury unanimity should have been given.

Even though the appellant did not request such an instruction, the State concedes that it is an issue of constitutional magnitude that may be raised for the first time on appeal. Brief of Respondent, at 5.

In State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), a case upon which the appellant relies for its unanimity instruction argument, the defendant was accused of molesting his 13-year-old granddaughter. He was charged with one count of statutory rape and one count of indecent liberties. She testified to various incidents of abuse occurring over a 21-month period including sexual intercourse. She also discussed four separate episodes which occurred during one summer. The defense moved to compel an election which was denied on the basis that only one continuing offense had been charged. The jury returned a general verdict of guilty. The Supreme Court reversed and held that

When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected.

Petrich, at 572.

To ensure a unanimous verdict, the court said the State may elect which act it relies upon for conviction or the jury must be instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. Petrich, at 572.

However, the court recognized that

[ujnder appropriate facts, a continuing course of conduct may form the basis of one charge in an information. But "one continuing offense" must be distinguished from "several distinct acts," each of which could be the basis for a criminal charge. See United States v. Berardi, 675 F.2d 894 (7th Cir. 1982); People v. Mota, [115 Cal. App. 3d 227, 171 Cal. Rptr. 212 (1981)]. To determine whether one continuing offense may be charged, the facts must be evaluated in a commonsense manner.

Petrich, at 571.

In State v. Gooden, 51 Wn. App. 615, 754 P.2d 1000, review denied, 111 Wn.2d 1012 (1988), a promoting prostitution case recently decided by this court and remarkably similar to the instant case, we held that " [promoting prostitution is a continuing course of conduct which falls within the Petrich exception." Gooden, at 620.

The defendant's course of conduct here is virtually undistinguishable from that described in Gooden. In the instant case Barrington used Lott as the defendant in Gooden used W and V to promote an enterprise with a single objective—to make money. Gooden also points out the differences between the child molesting in Petrich involving numerous acts of criminal conduct with the same child victim wherein each incident could support the charge and the ongoing enterprise of promoting prostitution.

Further, the evidence presented primarily by Lott in the instant case described the nature of their business relationship and the part they both played in the enterprise. The incidents of prostitution Lott discussed were primarily illustrative of the nature of the enterprise rather than solely descriptive of separate distinct acts or transactions between Lott and Barrington which, if believed, would prove the crime charged. That is not to say that a promoting prostitution charge could not consist of several distinct transactions occurring as did the sexual abuse incidents in Petrich, "in a separate time frame and identifying place." Petrich, at 571. See State v. Song, 50 Wn. App. 325, 748 P.2d 273 (1988) (promotion of prostitution charges involving different prostitutes at different times may constitute multiple crimes, at least for sentencing purposes).

Barrington was charged with violating RCW 9A.88.070-(l)(b) which states:

(1) A person is guilty of promoting prostitution in the first degree if he knowingly:

(b) Advances or profits from prostitution of a person less than eighteen years old.

The jury was instructed in the language of RCW 9A.88-.060(1) and (2) that

(1) "Advances prostitution." A person "advances prostitution" if, acting other than as a prostitute or as a customer thereof, he causes or aids a person to commit or engage in prostitution, procures or solicits customers for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.

(2) "Profits from prostitution." A person "profits from prostitution" if, acting other than as a prostitute receiving compensation for personally rendered prostitution services, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of prostitution activity.

We said in Gooden,

[although the statute regarding promoting prostitution in the first degree permits conviction for each distinct act, it also contemplates a continuing course of conduct: instituting, aiding, or facilitating a prostitution enterprise.

Gooden, at 618.

Here the uncontroverted evidence persuasively pointed to the promotion of a prostitution enterprise conducted over a period of about 3 months in which Barring-ton received the profits from Lott's prostitution, not separate distinct acts occurring in a separate time frame and identifying place as in Petrich. Neither a unanimity instruction nor an election was necessary. As we stated in Gooden, at 620,

Unanimity was only necessary with regard to the course of conduct. The State presented substantial evidence to support Gooden's course of conduct; consequently, Gooden received unanimous verdicts regarding both of his convictions.

Similarly here, substantial evidence supports Barring-ton's course of conduct and so a unanimous verdict was received. There was no error.

Next, Barrington contends that there is insufficient evidence in the record to support a finding that he knew Kimberly Lott was under 18 years old when he promoted her prostitution. He asks that his first degree promoting prostitution conviction be set aside and the case remanded for entry of a conviction of promoting prostitution in the second degree, a lesser included offense.

RCW 9A.88.070, "Promoting prostitution in the first degree", reads in pertinent part:

(1) A person is guilty of promoting prostitution in the first degree if he knowingly:

(b) Advances or profits from prostitution of a person less than eighteen years old.

The following testimony was elicited from Lott in order to discern what Barrington knew about her age.

Q. [State] Did you ever tell the defendant how old you were?

A. [Lott] Umm-umm.

Q. Did you ever celebrate a birthday or anything of that sort with him?

A. I did my—I told him that I was 17 when I met him and I was really only 16. So, I kind of celebrated my 18th birthday, which was really my 17th.

Q. Where were you when you celebrated your 18th birthday or this so-called 18th birthday with the defendant?

A. That's when in Tacoma I had got a big lick. I got a lot of money. So, I had left, and I went to Seattle, because I knew he couldn't be there. So, I went to Seattle and then I kind of celebrated with Kelly. Then I got back with him about five days later.

Appellant argues that Lott's testimony, "I told him that I was 17 when I met him and I was really only 16" is ambiguous and could be construed as meaning that, at some later unknown point, she informed Barrington that she was only 17 when she met him. Therefore, appellant contends that Barrington would not have known of Lott's minority status until after she purportedly turned 18. Appellant also maintains that there is no testimony at all about when Barring-ton supposedly discovered Lott's purported age. He claims that there is no evidence that Lott celebrated her birthday with Barrington.

Appellant concedes that Lott's testimony could be construed to mean that when Lott met Barrington she told him that she was 17 years old. Lott's subsequent statement, "So, I kind of celebrated my 18th birthday, which was really my 17th" supports the interpretation that she met the defendant when she was 16 but she misrepresented to him that she was 17. The statement makes sense only if Barrington believed previously that Lott was 17 years of age.

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is whether, '"after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Gear, 30 Wn. App. 307, 310, 633 P.2d 930 (1981) (quoting Jackson v. Virginia, 443 U.S. 307, 334, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); accord, State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980)). Any challenge to the sufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Gear, at 310 (quoting State v. Holbrook, 66 Wn.2d 278, 401 P.2d 971 (1965)).

Reviewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence for the jury to find Barrington knew beyond a reasonable doubt that Lott was under 18 years of age when he promoted her prostitution.

Finally, Barrington argues that the trial court's instruction defining knowledge impermissibly allowed the jury to apply an objective standard to determine whether he acted knowingly or with knowledge. Barrington asserts that the use of this objective standard violated his due process rights.

The trial court's jury instruction 9 stated as follows:

A person knows or acts knowingly or with knowledge when he or she is aware of a fact, facts or circumstances or result described by law as being a crime.

If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.

Acting knowingly or with knowledge also is established if a person acts intentionally.²

In State v. Shipp, 93 Wn.2d 510, 610 P.2d 1322 (1980), the Washington Supreme Court decided that only if a jury is instructed that it is permitted but not required to find knowledge if it finds that the defendant had "'information which would lead a reasonable man in the same situation to believe that [the relevant] facts exist'" can a definition of constructive knowledge be constitutional. State v. Kees, 48 Wn. App. 76, 82, 737 P.2d 1038 (1987) (quoting Shipp, at 514); State v. Rivas, 49 Wn. App. 677, 689, 746 P.2d 312 (1987).

The instruction given in the instant case has been construed in both Kees and Rivas as well as in State v. Davis, 39 Wn. App. 916, 696 P.2d 627 (1985). In all three cases it was held that the instruction complied with the requirements established in Shipp because it allowed the jury to consider the subjective intelligence or mental condition of the defendant. Therefore, Barrington's argument that the trial court erred in giving its knowledge instruction is without merit.

Barrington's conviction of promoting prostitution in the first degree is affirmed.

Coleman, A.C.J., concurs.

1 Count 1 was dismissed with prejudice because the State's primary witness as to that count failed to appear for trial.

2 This instruction is WPIC 10.02 (revised).