Kim v. State , 230 Ga. App. 342 ( 1998 )

496 S.E.2d 272 (1998) 230 Ga. App. 342

KIM
v.
The STATE.

No. A97A2349.

Court of Appeals of Georgia.

January 8, 1998. Reconsideration Denied January 26, 1998. Certiorari Denied May 14, 1998.

Germano, Kimmey & Cheatwood, John L. Kimmey III, Atlanta, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Maurice Bennett, Assistant Solicitors, for appellee.

HAROLD R. BANKE, Senior Appellate Judge.

Susan Marie Kim was convicted of masturbation for hire. She challenges the sufficiency of the evidence on appeal.

This case arose after law enforcement authorities received a complaint from a woman whose husband purportedly had paid for a sexual act at a local health spa. Price v. State, 222 Ga.App. 655, 657(2), 475 S.E.2d 692 (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). A detective arranged for a confidential informant who had previously received sexual stimulation at the spa to investigate. The confidential informant made an appointment for a massage and obtained a wire tap and funds from the authorities.

During the confidential informant's massage, the detective listened from a surveillance van outside the spa. After the confidential informant disrobed and paid Kim $60, she also undressed and massaged him for 15 to 20 minutes. Then Kim told him to turn over, began fondling his genitalia, and asked if he wanted "what else he usually got." At that point, the confidential informant signaled the detective, who immediately entered to discover Kim, naked, straddling the confidential informant with his genitalia in her hand. The detective ordered Kim to dress and arrested her. Held:

Whether the evidence, viewed in the light most favorable to the State, is sufficient to permit the jury to find each essential element of the crime presents a close question. Jackson v. Virginia, 443 U.S. 307, 319-320, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560 (1979). "[T]he crime is committed when a person for hire ... erotically stimulates the genital organs of another by (a) manual contact, (b) other bodily contact, or (c) instrumental manipulation...." Harwell v. State, 237 Ga. 226, 227 S.E.2d 344 (1976).

Kim maintains that no evidence supported the element that she acted "for hire" because the arrest occurred before any discussion of payment or any money for the sexual service exchanged hands. The primary evidence supporting the "for hire" element is the confidential informant's testimony that Kim had massaged and masturbated him at least five times previously and had usually allowed him to "tip" her for the service at its conclusion (which was interrupted by Kim's arrest here).^[1]

Masturbation for hire, like prostitution, is defined in terms of commercialization. Pak v. State, 206 Ga.App. 78, 79, 424 S.E.2d 292 (1992). Thus, notwithstanding Kim's argument, this offense does not require proof that money actually exchanged hands or that the defendant was paid an exact amount of money. The State was simply required to show that the act was performed "for hire," as part of a business transaction. Id.; Harwell, 237 Ga. at 226, 227 S.E.2d 344.

The confidential informant's unobjected-to testimony about the prior transactions spoke to that issue. Furthermore, Kim's own question to the confidential informant at the massage's conclusion, when she asked if he wanted "what else he usually got," bolstered his testimony. We believe this evidence was sufficient to present a jury question on whether the act was committed for money. See Bailess v. State, 168 Ga.App. 56, 57, 308 S.E.2d 61 (1983).

Judgment affirmed.

McMURRAY, P.J., and SMITH, J., concur.

NOTES

[1] This evidence is, in effect, unobjected-to similar transaction testimony which was admitted without prior notice or a hearing as contemplated by Uniform Superior Court Rule 31.3. Although this Court has held that the admission of similar transaction evidence without a Rule 31.3 hearing is not waivable error despite a failure to object, our Supreme Court has raised questions about this rule's validity. Stirrat v. State, 226 Ga.App. 350, 351-352(2)(a), 486 S.E.2d 640 (1997). In Williams v. State, 267 Ga. 308, 309-310(3), 477 S.E.2d 570 (1996), the Court held that the issue could not be raised for the first time on appeal. Here, Kim failed to raise the issue at trial or on appeal. Thus, any error was waived.