State v. Hartman

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Pursuant to IND.CODE § 85-88-4-2(1), the State of Indiana appeals the grant of John Hartman's motion to dismiss an action charging him with Promoting Prostitution,² a Class C felony. We reverse and remand.

ISSUE

The sole issue on appeal is whether the trial court erred in granting Hartman's motion to dismiss the charge of promoting prostitution.

FACTS

On September 6, 1988, Richard Truog contacted an escort service to arrange for an "escort" to perform a sexual act. Truog was informed that his "escort" would call him. Hartman, the "escort," called Truog and directed him to Hartman's home, and they engaged in a sexual act. On September 20, 1991, the State filed an information and probable cause affidavit alleging that Hartman promoted prostitution. The trial court granted Hartman's motion to dismiss finding that the statute was intended to reach the conduct of a third party, and not the immediate parties to the act of prostitution. Record at 35.

DISCUSSION AND DECISION

Hartman was charged with violating IND.CODE § 835-45-4-4(5). This subsec tion provides that a person who "knowingly or intentionally conducts or directs another person to a place for the purpose of prostitution commits promoting prostitution[.]" No Indiana cases have dealt previously with this subsection.

In Benjamin v. State (1987), Ind.App., 508 N.E.2d 1360, the court considered the argument that I.C. § 35-45-4-4 was designed to criminalize activities of third persons promoting prostitution, not that of the prostitute or the patron. Id. at 1361. Benjamin was charged under subsection 3, which provides that a person who "having control over the use of a place, knowingly or intentionally permits another person to use the place for prostitution; ... commits promoting prostitution." The Benjamin court determined that subsection 3 was not limited to a third-party promoter who provided the place for another to commit prostitution. Id. The court found that the language was broader and encompassed permitting prostitution in a place over which the prostitute has control. Id. at 1862.

We follow the reasoning in Benjamin and conclude that subsection 5 is not restricted to nonparticipating third persons, but that it includes the prostitute who directs the patron to a place for the purpose of prostitution. In construing subsection 5, we must give the words their plain, ordinary, and usual meaning. Id. The language is clear and requires only that 1) a person; 2) knowingly or intentionally conduct or direct; 3) another person; 4) to a place for prostitution. See I.C. § 35-45-4-4(5). We will not add a requirement that the person giving the directions be a nonparticipating third party; only the legislature has that prerogative. If the legislature intended only to include nonparticipating third parties under subsection 5, such change must be made by the legislature.

Lastly, we note that the trial court relied upon Miller v. State (1889), 121 Ind. 294, 23 N.E. 94. The reliance upon Miller is misplaced because the case considered the forerunner of 1.C. § 85-45-4-4(1), which contains clear language requiring a third party. We find Miller to be distinguishable from the case at bar which is based upon I.C. § 35-45-4-4(5) that does not contain similar language.

Reversed and remanded.

SHIELDS, J., concurs. BAKER, J., dissents with separate opinion.

2 . IND.CODE § 35-45-4-4(5).